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Denied green cards spur suit

The class action seeks to reopen cases in which citizens died before their spouses got permanent residency status.

August 31, 2007|Anna Gorman | Times Staff Writer

Dahianna Heard's husband was fatally shot while working for a private security contractor in Iraq.

Raquel Williams' husband died of sleep apnea and heart problems.

Ana Maria Moncayo-Gigax's husband was killed in a car crash while on duty with the U.S. Border Patrol.

All three women were waiting for their permanent residency, but their U.S. citizen spouses died before the applications were approved. Immigration authorities later denied the cases because the women were no longer married to U.S. citizens.

The three are part of a class-action lawsuit, filed Thursday in federal court in Los Angeles, that seeks to end the "widow penalty" and asks the court to compel immigration authorities to reopen their cases.

There are nearly two dozen named plaintiffs in the suit, but Brent Renison, the attorney heading up the suit, estimates that there are at least 85 spouses affected nationwide. Some of them are already in deportation proceedings, he said.

"This is, bottom line, a moral issue," Renison said. The immigrants should not be "stripped of the status of a spouse" just because their husband or wife died, he said. "It's nobody's fault, and no one should be faulted."

Sen. Bill Nelson (D-Fla.) introduced an amendment to change the law, but it was part of the immigration bill that failed this summer. He is considering proposing new legislation.

Legislators have also introduced bills in an attempt to get permanent residency for some of the immigrants.

Under current law, U.S. citizens can petition for their spouses to get permanent residency, or green cards. But if the citizen dies before authorities approve the petition, the application is no longer valid, according to U.S. Citizenship and Immigration Services spokeswoman Chris Rhatigan. There are exceptions for spouses of military personnel who die in combat, she said.

But Renison said the immigration agency should be following a recent U.S. 9th Circuit Court of Appeals ruling that applicants do not lose their status as spouses because the government has not ruled on the case before the citizen's death.

The decision came in the case of Carla Freeman, a South African immigrant whose husband was killed when a Pepsi truck smashed into his car in Portland, Ore., in 2002. Immigration authorities say spouses should file their paperwork immediately after getting married to avoid potential problems.

"They can do it on the way to their honeymoon," Rhatigan said.

Federation for American Immigration Reform spokesman Ira Mehlman said immigrants shouldn't be entitled to residency benefits after their spouses die.

"If there is no spouse to be reunited with or to remain here with, [the law] seems to lose its purpose," he said.

For their part, the women are placing their hopes in the lawsuit.

Moncayo-Gigax, who lives in Valencia, met her husband while they were in college in Georgia. The Ecuadorean had come to the United States on a student visa and later got a work visa.

In 1998, the couple flew to Las Vegas and got married. The next year, John Gigax petitioned for his wife to become a permanent resident. But before the citizenship and immigration agency decided the case, Gigax died in a car accident in Virginia while on duty with the Border Patrol. In 2004, the petition was denied.

"It was unfair," said Moncayo-Gigax, 35, who is a graphic designer. "It's out of your hands. It is not like you can stop someone from dying."

Raquel Williams, 29, came to the United States on a tourist visa from Brazil in 2000 and got married two years later.

In September 2003, she woke up one morning to find her husband on the couch, not breathing. She called 911 and tried to administer CPR, but he never woke up. Doctors believe he died from sleep apnea and heart problems, his widow said.

Williams' husband had applied for her to become a permanent resident. She received the denial three months after his death. Their son was 6 months old.

"It's something really brutal that doesn't make sense," she said.

Williams, who lives with her in-laws in Orlando, Fla., said she can't imagine being forced to return to Brazil and taking her son away from his grandparents.

"My parents-in-law lost a son, and now they risk losing a grandson," she said.

anna.gorman@latimes.com

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