On August 30, 2007, a group of individual plaintiffs, the surviving spouses of U.S. citizens, filed a class action lawsuit in the U.S. District Court for the Central District Of California to challenge the "widow penalty" provision in federal immigration law. The named plaintiffs included the surviving spouse of Bill Hootkins a U.S. citizen and Hollywood actor who appeared in the films Star Wars and Raiders of the Lost Ark and the surviving spouse of a U.S. citizen and civilian military contractor killed by a roadside bomb while serving in the Iraq war.
Each of the named plaintiffs alleged that they married U.S. citizens and then obtained status as an "immediate relative" of a U.S. citizen. Each plaintiff then sought lawful permanent residence status but had their immigration application denied upon the death of their spouse. In denying each application, the government determined that the surviving spouse was no longer an "immediate relative" of a U.S. citizen, because they had been married for less than 2 years.
Plaintiffs sought injunctive and declaratory relief under the Immigration and Nationality Act, 8 U.S.C. § 1151, §1255; Administration Procedure Act, 5 U.S.C. § 701, Mandamus Act 28 U.S.C. § 1361, Declaratory Judgment Act, 28 U.S.C. § 2201. Plaintiffs also sought class action status.
On March 17, 2008, the court (Judge Christina A. Snyder) denied the government's motion to dismiss. A few days later plaintiffs filed an amended complaint to add allegations challenging the legality of 8 C.F.R. § 205.1(a)(3)(C)(3), which calls for automatic revocation of an I-130 upon the death of the citizen spouse in cases where: (1) the I-130 petition has been approved but (2) there has been no final decision on the alien's I-485 application.
On April 7, 2008, the court denied plaintiffs' motion for a class-wide preliminary injunction. Hootkins v. Chertoff, No. CV 07-5696 CAS MANX, 2008 WL 1735146 (C.D. Cal. Apr. 7, 2008).The Court also denied plaintiffs' motion for a preliminary injunction prohibiting defendants from withholding Employment
Authorization Documents and Advance Parole Travel Documents.
A month later, the court denied plaintiffs' request for a preliminary injunction prohibiting defendants from commencing removal proceedings against plaintiffs without prejudice to the request being renewed if further adverse action is taken, or threatened to be taken, against named plaintiffs.
On January 6, 2009, the court granted plaintiffs' motion for class certification for aliens residing in the Ninth Circuit whose United States citizen spouse died before the couple's two-year wedding anniversary, and whose citizen spouse filed an I-130 petition and a Form I-864 or I-864EZ affidavit of support on behalf of the alien spouse. Hootkins v. Chertoff, No. CV 07-5696 CAS(MANX), 2009 WL 57031 (C.D. Cal. Jan. 6, 2009). The Court further certified a subclass of alien spouses who entered the United States on fiancé visas.
Because some of the named plaintiffs reside outside of the Ninth Circuit and some in jurisdictions where the courts have not ruled in favor of plaintiffs' interpretation of the law, defendants moved for summary judgment as to those plaintiffs. The court denied defendants' motion with regard to the Sixth Circuit plaintiffs, but granted their motion with regard to the Third Circuit plaintiffs. Hootkins v. Napolitano, 645 F. Supp. 2d 856 (C.D. Cal. 2009). The court also granted in part plaintiffs' motion for summary judgment, finding that based on precedent in the Ninth and Sixth Circuits plaintiffs in those circuits were entitled to "immediate relative" classification based on their status as surviving spouses of deceased United States citizens.
In June 2009, defendants appealed to the U.S. Court of Appeals for the Ninth Circuit, challenging the district court's summary judgment order. [09-56019]. In January 2010, the circuit court granted the motion to dismiss the appeal (Circuit Mediator Lisa J. Evans).
On October 28, 2009, President Obama signed H.R. 2892 into law, which addresses (1)self-petitioning rights for all widow(er)s of American citizens and their children; and 2) certain survivors' rights for other immigrants. On December 14, 2009, USCIS published a new guidance memorandum on the processing of applications filed by surviving spouses of deceased U.S. citizens.
In January 2010, the parties submitted a settlement agreement, which required adjudication of all cases of class members in accordance with the new USCIS Guidance. Separate from the settlement agreement, the parties agreed that defendants would pay $125,000 for attorneys' fees and costs. The settlement agreement was approved by the court on April 5, 2010, and was in effect for two years from that date.Dan Dalton - 09/18/2007
Jennifer Bronson - 11/30/2013