| Lockhart v. Chertoff Litigation |
April 8, 2009 - Victory!!! The Sixth Circuit Court of Appeals, with jurisdiction over the states of Michigan, Ohio, Kentucky, and Tennessee, affirmed the lower court decision striking down the widow penalty! The Sixth Circuit joins the Ninth Circuit case of Freeman v. Gonzales, and parts with the misguided analysis of the Third Circuit in Robinson v. Chertoff. This is wonderful news for widows and widowers who reside in those states, because the government is now bound to follow the case in those states. The government has ninety days to decide whether to petition the U.S. Supreme Court for certiorari.
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Lockhart v. Napolitano Decision |
January 20, 2009 - Oral Argument took place in Cincinnati, Ohio. Surviving Spouses Against Deportation pro bono counsel Brent Renison argued for Plaintiff, and Elizabeth Stevens, Assistant Director, District Court Section, Office of Immigration Litigation, U.S. Department of Justice, argued for the government. The parties now await the Court's ruling.
August 2008 - Barbara Firstenberg, Cathy Shibley, and Brent Renison file Response Brief arguing that Mrs. Lockhart is not stripped of the status of a spouse due to her husband's death, and that the decision of the District Court should be honored and upheld. Department of Homeland Security, represented by the Office of Immigration Litigation within the U.S. Department of Justice, has argued that Mrs. Lockhart should be automatically stripped of the status of spouse when her husband died, exposing her to deportation.
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Lockhart Opening Brief by DHS |
Lockhart Reply Brief from Mrs. Lockhart |
Lockhart Reply Brief from DHS |
January 7, 2008 - VICTORY!!! The U.S. District Court of Ohio, The Honorable Judge Kathleen M. O'Malley, has ruled in favor of Mrs. Lockhart, following Freeman v. Gonzales, Robinson v. Chertoff, and Taing v. Gonzales!!! The Court ruled, "The Government's reading of [the immediate relative definition] is unfounded. As the well reasoned opinions of the Ninth Circuit (Freeman), Massachusetts District Court (Taing) and New Jersey District Court (Robinson) conclude, the plain language of the statute simply does not impose a two year requirement on "immediate relative" status for a surviving alien-spouse. This Court holds that an alien-spouse whose citizen-spouse dies after properly filing a Form I-130 petition on behalf of the alien-spouse is entitled to "immediate relative" status..."
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Lockhart v. Chertoff Order |
Petitioner Nelly Lockhart is a citizen and national of the Philippines. Nelly Lockhart was lawfully admitted to the U.S. on December 15, 2003 as a visitor. On January 20, 2004 Petitioner married Gerald Lockhart, a United States citizen. On or about February 1, 2004, Gerald Lockhart filed an I-130 petition on behalf of his wife Nelly Lockhart with the Cleveland, Ohio, USCIS district office. Simultaneously, Nelly Lockhart filed her I-485 Application to Register Permanent Residence or to Adjust Status, seeking adjustment of status to lawful permanent residence, relying on the citizen spouse’s Petition attesting to the alien’s status as spouse.
On or about May 2005 Petitioner and her U.S. citizen husband appeared for an interview at the Cleveland, Ohio USCIS office regarding the pending I-130 petition and I-485 application. Both gave testimony regarding the validity of their marriage. Following the interview date no decision was issued. While both applications remained filed, heard but unadjudicated, the citizen spouse died. USCIS denied both applications solely on the basis that Petitioner was stripped of her status of spouse, and no longer entitled to "immediate relative" classification under U.S. immigration law.
Mrs. Lockhart is now in removal proceedings with her next hearing scheduled for December 2007. Her attorney, Barbara Firstenberg of Ohio, has brought her case before the U.S. District Court for the Northern District of Ohio, along with co-counsel Cathy Shibley. The USCIS has indicated it will file a motion to dismiss, as it has in the other cases.
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Lockhart Complaint |
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