Talk about U.S. Immigration

Widow Penalty: Need A Quick Fix.

October 9, 2009 on 5:43 pm | In my view | No Comments

The Federal District courts of Texas and of Missouri struck down the “widow (widower) penalty” rule as it is popularly known. The cases decided were Hanford v. Napolitano, on 9/17/09 and Kells v. Napolitano, decided on 9/29/09 respectively. The government’s stand is that a foreign national spouse loses the spousal status upon the death of the marriage partner and so could not continue with the marriage based permanent residence based on marriage to the now deceased U.S. citizen. The immigration agency had been denying these applications and petitions. Sometimes even an already approved petition is reopened to issue a denial and the foreign national widow or widower is placed in deportation proceedings. All because death separated the couple before a government officer could get to and process their immigration papers. What an irony of fate!

Several Federal Circuit Courts have earlier refused to agree with the government interpretation. But the Texas and Missouri courts struck down the rule as a matter of law and dispensed with the need to go to the Board of Immigration Appeals as a preliminary to seek redress before the court.

Spousal status should not be determined by fate and is not lost by the death of one of the marriage partners. The property law as the most common example recognizes the marital rights of the widow(er) attach soon after the marriage is complete unless dissolved before death of one of the parties to the marriage. Now try explaining this to the DHS.

The courts looked at interpretation and guidance from elsewhere in the absence of a clear legal language. However, as illogocal as it may sound, the Department of Homeland Seculrity passes the blame onto the legalese and wants the Congress to amend the rules before it could shift policy stand, acting like a real adverasary here. It should however be appreciated that the Agency does not wish to continue with deportation or removal attempts in these cases for two years. Secretary Napolitano states that is the most the government could do.

Unfairness of the rule is glaring from the fact that it is either being struck down or the government policy not recognized by courts after courts. In a good democracy, neither the Congress nor the government should force the public to go to courts, repeatedly, to seek redress against its own actions. Failure to recognize and redress the injustice to the aggrieved is despicable whether the reason is preoccupation of the Congress or unwillingness of the government to change its policy. Injustice due to illogical outcomes do a great dissrevice to our society. So, it is only ideal that Congress act now to clear its own mess and help those in bereavement. The political impasse over the fate of the unlawful foreign workers is well known. But a short wise step to comfort and treat with respect those who are legally here and grieving is immediately needed.