Appeals court nixes widow's immigration bid

February 3, 2009 7:12:42 AM PST
A Jamaican woman who lost her American husband in the 2003 Staten Island Ferry crash cannot remain in the U.S. because they were not married long enough, a federal appeals court ruled Monday. Osserritta Robinson, 31, of Mahwah, N.J., is one of about 170 immigrants who have been denied residency status because of what some call the "widow penalty": a U.S. law that requires an immigrant to be married for two years to remain in the country if the American spouse dies.

Louis Robinson, her husband of seven months, was one of 11 people killed when a ferry crashed into a Staten Island pier on Oct. 15, 2003. He had submitted a petition for an immigrant visa on his wife's behalf seven months earlier. It was still pending at the time of his death.

The 3rd U.S. Circuit Court of Appeals issued a 2-1 decision Monday that said an immigrant who has been married to a U.S.

citizen for less than two years is not necessarily entitled to permanent status if the American spouse dies.

"Congress created a balance between the goal of family unity and the legitimate expectations of an alien-spouse whose connections to the United States were likely to have become solidified during the two-year marriage period," Judge Dolores Sloviter wrote on behalf of the majority.

The dissenting judge, Senior Judge Richard L. Nygaard, faulted government inefficiency. Nygaard reasoned that, if Osserritta Robinson's petition had been processed more quickly, she would have been a legal permanent resident at the time of the crash.

"Osserritta Robinson will be removed from the United States ...

simply because the petition filed on her behalf by her deceased husband is stuck in the government's bureaucracy," Nygaard wrote.

Robinson's lawyer, Jeffrey Feinbloom, plans to ask the full circuit court to hear the case because he believes the two-judge majority misinterpreted the statute.

"I think it's crazy that taxpayer resources are going toward fighting this issue nationally," Feinbloom said. "These people are victims. They've already been through the ultimate tragedy.

They're just being re-victimized."

Chris Rhatigan, a spokeswoman for the United States Citizenship and Immigration Services, did not immediately return a message left Monday.

Janet Napolitano, secretary of the Department of Homeland Security, asked her staff last week to review the issue and others involving noncitizen spouses.

That gives cautious optimism to lawyer Brent Renison, who has a federal class-action suit pending against the agency. The lawsuit was filed in federal court in California on behalf of Robinson and other members of the Oregon-based nonprofit Surviving Spouses Against Deportation. It asks a judge to declare that they can stay in the U.S. permanently.

"She (Napolitano) hasn't said that she's going to overturn the policy. We hope that she will do it, but that's yet to be seen. So, until then, we're going to continue with all our litigation," Renison said.