SSAD pro bono counsel Brent Renison and Alan Diamante filed a national class action lawsuit in Los Angeles, California federal court challenging the widow penalty. The case is Hootkins v. Napolitano, CV07-05696 (CAS) (C.D. Cal., filed August 30, 2007). A ruling limiting the class to the Ninth Circuit was issued. A final settlement of the lawsuit was approved on April 5, 2010 by the Court following passage of Pub. L. No 111-83. For more information on the new law, see the EDUCATION section.
April 5, 2010 - The Court held a final hearing on the proposed settlement, and hearing no objection from any plaintiffs or class members, entered an order granting final approval of the settlement.
March 1, 2010 - The Court held a hearing on the proposed settlement, which was entered into by class counsel and counsel for the government following the passage of P.L. 111-83, Sec. 568(c) (removing the two year limitation on self-petitions for widow(er)s). The Court gave preliminary approval of the proposed settlement, and set a hearing for April 5, 2010 at 10:00 a.m. to hear any complaints about the fairness of the settlement. Objections must be postmarked by March 26, 2010 or received by March 29, 2010 to be considered timely. You do not need to take any action if you do not object to the settlement.
May 1, 2009 - In a filing dated April 28, 2009 but issued today, May 1, 2009, the Court issued a FINAL ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS CLAIMS. Most importantly, the Court found that plaintiffs who reside in the Ninth and Sixth Circuits are entitled to "immediate relative" classification based on their status as surviving spouses of deceased United States citizens, and that defendants' application of Freeman to Ninth Circuit plaintiffs, in the manner set forth in the Aytes Memorandum, is invalid. The Court also clarified that the holding applies to named plaintiffs in the Ninth Circuit, as well as unnamed members of the Ninth Circuit class.
"Specifically, the Court finds that plaintiffs who reside in the Ninth and Sixth Circuits are entitled to 'immediate relative' classification based on their status as surviving spouses of deceased United States citizens. Furthermore, the Court finds defendants' application of Freeman to Ninth Circuit plaintiffs, in the manner set forth in the Aytes Memorandum, to be invalid. First the Court holds that the Freeman holding applies equally to those cases in which an I-485 application was not filed prior to the U.S. citizen spouse's death. Furthermore, the Court finds 8 C.F.R. Sec. 205.1(a)(3)(C)(2), which revokes an alien's I-130 form on the basis of the death of the alien's U.S. citizen spouse and requires the alien to petition for humanitarian reinstatement and to file a substitute affidavit of support as a prerequisite to reinstatement of the I-130, to be invalid as a matter of law as applied to plaintiffs in the Ninth and Sixth Circuits...Furthermore, defendants are cautioned that they may not use factors arising from their improper denial of plaintiffs' applications to again deny the petition and application upon reopening them...Defendants are hereby ordered to reopen the immediate relative petitions and applications for adjustment of status and immigrant visas of plaintiffs in the Sixth and Ninth Circuits, and to adjudicate them in a manner consistent with the holding of the Court." The Court left open the question of whether defendants may require a substitute affidavit of support as a prerequisite to admissibility.
April 22, 2009 - A hearing was held in federal court in Los Angeles on the Motions for Summary Judgment, and counsel for plaintiffs, Brent Renison and Alan Diamante together with counsel for defendants, Patricia Bruckner, argued points raised by the Court's tentative order. The Court issued Minutes of the hearing confirming that the Court heard the parties arguments and has now taken the arguments under submission and will issue a final ruling. The Court indicated a final ruling could come as soon as next week, but no timeline has been set.
April 20, 2009 - The Court has issued a TENTATIVE ORDER regarding plaintiffs' claims in the Hootkins v. Napolitano class action. The Court will hear arguments on the tentative order on April 22, 2009 at 10:00 a.m. in Los Angeles federal court. The Court, in its Tentative Order, ruled, "The Court DENIES defendants' motion for partial summary judgment as to plaintiffs in the Ninth Circuit. The Court GRANTS in part and DENIES in part plaintiffs' renewed motion for summary judgment.
The Order is tentative, and may be modified by the Court following argument by the parties. A final ruling will follow at a later date.
March 2, 2009 - IMPORTANT NOTICE: The Court Ordered that Notice of the Class Action be directed to all Ninth Circuit Class members through a combination of individual notice to class members who may be identified through reasonable effort and notice by publication. The Court Ordered that requests for exclusion from the class be postmarked by April 6, 2009. You don't have to do anything if you want to keep the possibility of receiving benefits from this lawsuit. The Court further Ordered that Plaintiffs file a renewed Motion for Summary Judgment on or before March 9, 2009, and notice a hearing for April 20, 2009, that Defendants agree to file a Response on or before March 23, 2009, and optional replies will be due April 6, 2009. The Court will hear arguments in the case April 20, 2009, and may issue a tentative order that day or thereafter. The NOTICE TO CLASS MEMBERS describes in detail your legal rights and options in this lawsuit. Please read the Notice carefully, and if you have questions, follow the directions in the Notice.
January 9, 2009 - FAQ #2 issued to address Frequently Asked Questions about the Order Certifying the Class Action.
December 24, 2008 - Defendants filed a Statement of Non-Opposition to Plaintiff's Motion to Lift Stay, indicating that they do not oppose the request to place the case back in active status. While the Court must enter an order to lift the stay, neither Plantiffs nor Defendants are standing in the way of the Court doing so. Merry Christmas everyone, and best wishes to you and your family for a Happy New Year.
December 12, 2008 - Plaintiffs filed a Motion for an Order Lifting the Stay requesting that the Court reopen the case and issue a final Order on the Class Certification Motion. The date of January 12, 2009 was noticed as the hearing date, but Plaintiffs waived oral argument, so it is unclear whether the Court will hold a hearing that day or if the hearing will be waived. Defendants will file any opposition to the motion by December 24, 2008.
October 15, 2008 - The Parties filed a Joint Status Report, advising the Court that neither party sees any significant movement in the immediate future on either H.R. 6034 or S.3369.
August 15, 2008 - The Parties agreed in a Stipulation to request that the case be placed on hold while Congress considers H.R. 6034 and S. 3369, and in return, Defendants have agreed to allow the non-Ninth Circuit named plaintiffs and certain identified Ninth Circuit plaintiffs and class members who are known to class counsel on August 15, 2008 and who do not have a substitute sponsor to apply for Employment Authorization Documents (EAD) in the meantime. If you have been in contact with Brent Renison, class counsel, prior to August 15, 2008, and need a work permit (EAD), and qualify based on the criteria above, you must contact Brent Renison directly (send email to email@example.com) before September 3, 2008. Mr. Renison will submit a report of names to USCIS on September 3, 2008, so time is of the essence.
June 30, 2008 - The Court tentatively Orders the Plaintiffs' Motion for Class Certification be GRANTED for cases arising in the Ninth Circuit (see Circuit Map for states covered by the Ninth Circuit). The Order is Tentative, and a final ruling will follow. The Court did not grant the Motion for residents of states outside the Ninth Circuit, however, because the Court found that it was important to allow the government to litigate the surviving spouse issue in different courts around the country, and also found that other Circuit Courts (outside the Ninth) have an interest in deciding the questions presented in the litigation. Thus, for cases filed within the Ninth Circuit, the Court will allow the Plaintiffs to represent all those whose citizen spouses filed a petition and an affidavit of support on their behalf, and the Court will be able to rule on those cases even though a person is not named in the lawsuit. On the other hand, for those cases that were not filed within the Ninth Circuit, and who are not named in the lawsuit, each will need to file their own lawsuits in the District Court with jurisdiction over their residence. We expect that there will be many lawsuits filed throughout the country for those residing outside the Ninth Circuit following this decision, now that the Court has ruled that USCIS has right to litigate their position at further taxpayer expense - that death automatically strips spousal status. The USCIS position is certain to be challenged by surviving spouses around the country.
Those Plaintiffs residing outside the Ninth Circuit and named in the lawsuit (Fishman-Corman, Engstrom, Diaz-Ruiz, Walsh, Lu, Arias-Angulo, Bernstein, Bayor, Standifer and Batool) are not affected by the ruling, because they are nonetheless Plaintiffs and the government defendants waived any venue objections previously. The Court should be able to rule on these individual cases notwithstanding the Court's ruling on the Class.
June 3, 2008 - DHS and USCIS file Motion to Strike Reply and Surreply to Reply. More than two weeks after receiving Plaintiffs Reply, and only three business days before the motion hearing, USCIS objects to the Reply filed by Plaintiffs, and seeks to have Plaintiffs arguments disregarded by the Court, or alternatively asks the Court to allow USCIS to file a Surreply.
May 12, 2008 - DHS and USCIS file Response to Motion for Class Certification. Providing additional arguments against certifying the action as a class, attorneys from the U.S. Department of Justice's Office of Immigration Litigation fight for their clients' rights to automatically deny surviving spouses legal status.
April 10, 2008 - UPDATE - tentative order on preliminary injunction motion"The Court concludes that in light of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), and district court decisions from other jurisdictions agreeing with Freeman, see e.g., Robinson v. Chertoff, 2007 U.S. Dist. LEXIS 34956, at *4 (D. N.J. 2007); Taing v. Chertoff, 2007 U.S. Dist. LEXIS 91411, at *28 (D. Mass. 2007); Lockhart v. Chertoff, 2008 U.S. Dist. LEXIS 889, at *30 (D. Ohio 2008), there are serious questions going to the merits of this case. Specifically, it appears that defendants have improperly determined that the death of a United States citizen spouse before the two-year marriage anniversary of the citizen spouse and alien spouse, deprives the alien spouse of his or her ‘surviving spouse’ status.”
April 7, 2008 - A hearing on the preliminary injunction motion was held before the Honorable Judge Snyder. Mr. Renison and Mr. Diamante were present for the plaintiffs, and Ms. Stevens and Ms. Glaser from the Department of Justice's Office of Immigration Litigation in D.C. represented the government. Judge Snyder advised the parties in open court that she did not believe plaintiffs had made a sufficient showing for the granting of a preliminary injunction, in part because of a insufficient demonstration of irreparable harm, and because the class has not yet been certified. The preliminary injunction was not issued, but she issued a temporary injunction staying removal proceedings in the case of class plaintiff Yelena Angulo Arias, and asked the government to explain in writing the basis of her removal proceedings by May 1, 2008. Judge Snyder requested further briefing on the class certification motion, setting April 28, 2008 as the deadline for plaintiffs to file a supplemental briefing, and making the government's reply brief due May 12, 2008. A hearing on the class certification motion will be held June 9, 2008. Counsel for putative class members are encouraged to immediately contact Brent Renison in order to assist with providing declarations in support of the class certification motion.
March 3, 2008 - Court issues tentative ruling - DENIES Government Motion to Dismiss! The Court indicated in open court that the final ruling would be issued in the next week. The tentative ruling came in the form of a 31 page opinion. The only losses suffered by the plaintiffs were that State Department was dismissed as a defendant, and that some plaintiffs' Administrative Procedure Act (APA) claims were dismissed. Nevertheless, Secretary Chertoff and Director Gonzalez are still defendants, and have direct authority over I-130 adjudication. Additionally, apart from the APA, the Court still retains Mandamus review over the claims. Mandamus basically provides for the same relief as the APA claims. It is for these reasons that we are declaring VICTORY in the Hootkins v. Chertoff litigation at this stage in the proceedings. Notably, the Court did not dismiss the cases outside the Ninth Circuit, and stated, "Although, Ninth Circuit law does not bind this Court with respect to [plaintiffs outside the Ninth Circuit], the Court finds Freeman to be persuasive authority to be considered in adjudicating their claims." Now the next hearing is April 7, 2008. The government must answer the complaint within 25 days of the date of the final court ruling, which will likely coincide with the next hearing date.
December 11, 2007 - Proposed Statement of Uncontroverted Facts and Conclusions of Law, in support of Motion for Summary Judgment, filed, along with Proposed Order for Summary Judgment. These filings are necessary for the court to consider plaintiffs' request for Judgment without trial, and set out the proposed order for relief. Upcoming deadlines are January 7, 2008 for the government's responses to the various motions and reply to the Motion for Summary Judgment, and January 18, 2008 for plaintiffs' reply.
November 13, 2007 - Government files Motion to Dismiss. The government defendants in the class action lawsuit have filed a Motion to Dismiss the Class Action.
August 30, 2007 - Surviving Spouses Against Deportation pro bono counsel Brent Renison with Parrilli Renison LLC and local counsel Alan Diamante of Los Angeles filed a Class Action complaint in the United States District Court for the Central District of California in Los Angeles today. The complaint challenges the widow penalty, whereby the USCIS denies legal status to surviving spouses of American citizens due to the death of their spouse during lengthy administrative visa processing.
It is the hope that the Class Action lawsuit will achieve justice for those grieving spouses and their families, as well as shed light on this horrible practice that has existed for the past 37 years. The time to end the widow penalty is now.