An Oregon immigration attorney says he plans to file a class-action lawsuit in Los Angeles this week to end the so-called "widow penalty" for more than 80 women facing possible deportation because their husbands died before their immigration paperwork was approved.
The U.S. Citizenship and Immigration Services says it cannot approve an application for permanent residence &
a so-called "green card" &
for the surviving spouse of a U.S. citizen if he or she dies during the first two years of marriage.
Attorneys for some of the estimated 85 women affected nationally say it's a matter of interpreting federal law, and the immigration agency has been too harsh.
The women include Dahianna Heard, the widow of Jeffrey Heard, killed in March 2006 when the Army soldier was shot in the head by insurgents while delivering equipment to U.S. troops in Iraq.
Dahianna Heard, a citizen of Venezuela who lives in Florida, now could be deported even though she and her husband had applied for her residency permit and were awaiting completion of the paperwork. They also had a son who is a U.S. citizen but faces an uncertain future if his mother is deported.
"This is a wrong that definitely has to be righted," said Heard's attorney, Ralph Pineda, of Orlando, Fla.
A spokesman for the immigration service in Washington, D.C., Chris Rhatigan, said the agency routinely considers such cases.
"The death of a spouse does not automatically result in termination of the application," Rhatigan said. "And we do look at these on a case-by-case basis."
The lawsuit lists two widows, including Carolyn Robb Hootkins, a former personal chef to the British royal family and the widow of actor William Hootkins, who had roles in "Star Wars," "Raiders of the Lost Ark," "Batman" and other films.
The other is Ana Maria Moncayo-Gigax, a citizen of Ecuador, whose husband, John Gigax, a U.S Border Patrol agent, was killed in November 1999 while working in Washington, D.C.
In her case, U.S. Rep. Buck McKeon, R-Calif., introduced private legislation &
a bill for a specific individual &
in 2005 to prevent her deportation, according to her attorney, Ron Tasoff, in Los Angeles.
Meanwhile the government has agreed to an administrative review of her case.
Other widows also have resorted to private legislation, turning to Democratic Sens. Dick Durbin and Barack Obama of Illinois and Bill Nelson of Florida, for example.
But lawyers say private bills are not an answer, and Nelson's efforts to amend the law to deal with the widow penalty died with the comprehensive immigration reform bill in Congress.
"A private bill is extremely difficult if not impossible to get through Congress," said Matt Nosanchuk, an aide to Nelson. "It's not an efficient nor an effective way to obtain relief for these folks."
Brent Renison, a Portland immigration attorney who has led the effort to change the law or ease its interpretation, said lack of response from the government and the failure of immigration reform in Congress forced him to consider a class-action lawsuit, which he plans to file before the end of the week in U.S. District Court for the Central District of California, Eastern Division, in Los Angeles.
Renison got involved in the case when immigration officials in Portland deported a South African woman whose American husband was killed in a traffic accident.
Carla Freeman, a dual citizen of South Africa and Italy, had a permanent resident application pending when U.S. Citizenship and Immigration Services officials moved to deport her without a hearing, putting her in leg shackles at one point.
Even after winning a 9th U.S. Circuit Court of Appeals ruling against the immigration service, the agency still refused to consider her application. She returned to South Africa.
Attorney seeks to end 'widow penalty'