| Litigation to End the Widow Penalty |
October 20, 2009 - With the passage of legislation that will become law upon President Obama's signature, the body of litigation surrounding the widow penalty may come to a satisfactory conclusion. Please check back later for more information, and in the meantime, review the LEGISLATION tab for more details on the new law.
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| CLICK THIS BUTTON FOR ANSWERS ABOUT THE NEW LAW |
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| The earliest court challenge to the widow penalty was the case of Pierno v. INS, 397 F.2d 949 (2d. Cir. 1968), where the U.S. Second Circuit Court of Appeals struck down the automatic revocation regulation. The Pierno case was the likely source of the "humanitarian reinstatement" regulations, wherein approved petitions can be reinstated. That left a crack into which other surviving spouses fell - where the death occurs prior to adjudication. Federal court challenges to the modern day widow penalty began in 2004 in Oregon with the case of Freeman v. Gonzales. In 2006, the U.S. Ninth Circuit Court of Appeals ruled that a spouse does not automatically lose status as a spouse due to the death of the citizen spouse during bureaucratic processing of permanent resident status. Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006) Further litigation has ensued around the country following the resistance to this ruling by officials of the Department of Homeland Security's United States Citizenship and Immigration Services.
Litigation Subpages
Hootkins Class Action - Ninth Circuit Class Certified But Nationwide Class Denied
Camacho Litigation - Northern District of Georgia - March 13, 2009
Coleman Litigation - Virginia - March 6, 2009
Enstrom Litigation - Illinois - May 26, 2009
Freeman Litigation - Ninth Circuit April 2009
Gorovets Litigation - New York - November 20, 2008
Hanford Litigation - Texas - filed Sep. 25, 2008
Kells Litigation - Missouri - filed October 14, 2008
Ledezma Litigation - Colorado - filed May 5, 2009
Lockhart Litigation - Ohio - victory! ...and decision upheld!
MacLean Litigation - Florida - filed April 20, 2009
McKoy Litigation - Maryland - filed December 4, 2008
Richards Litigation - E.D. New York - Victory!
Robinson Litigation - New Jersey - victory! ...but Third Circuit overturns!
Robledo Litigation - Maryland - filed October 2, 2008
Taing Litigation - Mass. - victory! ...and decision upheld!
Valero Litigation - New York - Dec. 12, 2008
CIRCUIT COURT MAP
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August 30, 2007 - SSAD pro bono counsel Brent Renison and Alan Diamante have filed the class action lawsuit in Los Angeles, California. If you are affected by this law, and think that you may be a class member, please complete the questionnaire and follow the directions for submission.
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SSAD Class Action Questionnaire |
| FREEMAN V. GONZALES - Carla Freeman's Fight to End the Widow Penalty
September 23, 2007 - Mrs. Carla Freeman gave up her fight for residency after years of fighting with the immigration agency that denied her case following her husband's death. While the government wore Mrs. Freeman down by finding any reason to deny her following her successful appeal, the bravery of her fight continues to help other widows and widowers around the country.
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May 29, 2007 - The Court of Appeals ruled today that Mrs. Freeman must decide whether to return to the United States and face deportation proceedings to gain lawful resident status, or face lifetime banishment from the country. Following the April 2006 Court of Appeals decision in her favor, the Portland Office of USCIS approved Mr. Robert Freeman's petition for Mrs. Carla Freeman, but asked that Mrs. Freeman proceed with U.S. State Department processing. The Court of Appeals had ruled that Mrs. Freeman remained a spouse, and that her adjustment of status application "should be adjudicated accordingly." Based on the ruling, Mrs. Freeman insisted on an adjudication of her application for adjustment of status. Instead, USCIS denied her adjustment of status, stating among other things that she did not merit discretionary relief because her husband was dead!
Mrs. Freeman challenged the USCIS action in "mandamus" proceedings. The Court of Appeals today, however, denied the mandamus request and allowed the USCIS ruling to stand. Now, Mrs. Freeman must decide whether to return to the United States and face deportation proceedings, six years after her application was filed, five years after her husband was killed, three years after her application was denied, and one year after the Court of Appeals ruled in her favor. If she does not return to fight her deportation, she will be barred for life due to unfounded allegations made in the USCIS denial.
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Court of Appeals Rules Mrs. Freeman Must Again Face Deportation Proceedings |
Court of Appeals Rules Widow Penalty Unlawful
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On April 21, 2006, a three judge panel of the US Ninth Circuit Court of Appeals unanimously vacated the removal order against Carla Freeman. In granting the petition submitted by Brent Renison and Michael Millender, the Court in an opinion authored by Judge Raymond C. Fisher, ruled that the widow Carla Freeman was not stripped of her status as a spouse of a US Citizen, and as such should not have been deported by the Department of Homeland Security. Additionally, the ruling lifts the 10 year ban on Mrs. Freeman's return to the US and requires that DHS adjudicate her application for permanent residence as a surviving spouse. The US government did not appeal the ruling. We remain optimistic that DHS will see this decision as a beneficial ruling, allowing Homeland Security to concentrate on more productive enforcement efforts, and adopt the decision on a nationwide basis.
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| Khin Win and husband Donn Mauro on their wedding day. Donn was killed by a drunk driver in 2006. Khin's application, filed in Las Vegas, Nevada, was denied. Implementation of the Freeman ruling in the 9th Circuit eventually helped to resolve her case. She is now a lawful permanent resident, due to the Freeman ruling. |
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