U.S. Government Ends Deportation Cases Against Widows in Missouri, New York, Florida, Maryland and Texas

The U.S. government gave immigrant widows in Florida, Maryland, Missouri, New York and Texas a holiday present on Friday when it agreed to end legal efforts to deport them following the deaths of their husbands.

In Missouri, those efforts began in 2006 when Sgt. Robert K. Kells, of suburban St. Louis, died in a motorcycle accident only nine months after marrying his wife Khamphee, a native of Thailand.

His death had catapulted his family into the national controversy over the “widow penalty” – a U.S. government policy that had forced the deportation immigrant widows and widowers for over 70 years.

The so-called penalty required that an immigrant be married to a U.S. citizen for at least two years in order to obtain permanent residency. An immigrant could still be deported even if the marriage ended because the U.S. citizen died. Immigrants subjected to the “widow penalty” have been the focus of national media attention including a New York Times editorial published this past April. The so-called penalty required that an immigrant be married to a U.S. citizen for at least two years in order to obtain permanent residency

At issue was the U.S. Citizenship and Immigration Services (USCIS) view that Kells and her children, who had legally entered the U.S. in 2005 and applied for permanent residency at that time, were no longer “immediate” relatives of an American because Sgt. Kells died before the couple had been married for two years. Based on this, the USCIS denied the family’s petitions and began deportation proceedings.

Kells, who obtained the pro bono services of the St. Louis-based law firm Armstrong Teasdale LLP, sued the government in the U.S. District Court for the Eastern District of Missouri. Her lawyers argued that the widow and two children had filed the necessary petitions and were wrongfully stripped of their “immediate relative” status.

U.S. District Judge Charles Shaw agreed and said that the government had acted unlawfully. Congress did not intend for widows and widowers who properly filed for citizenship before the death of their spouses to be penalized because USCIS failed to act on their applications in a timely manner, the judge wrote in his opinion dated September 29.

He said that if he would construe the law in the way the government wanted, “it would lead to the absurd result that an alien spouse’s status might hinge solely on the amount of time it takes for a petition to be processed – a factor this is completely out of the spouse’s control.”

The judge ordered USCIS to reopen Kells application and to treat her and her children as “immediate relatives” under the law. However, the government filed notice it would appeal.

After rulings by Shaw and other judges, Congress acted to abolish the widow penalty and on October 28 President Barack Obama signed the Department of Homeland Security Appropriations Act that contains language eliminating the penalty. However, the Kells case along with at least four others were still pending in federal courts around the country. The settlement between government and plaintiffs lawyers on Friday ends those cases.

Mrs. Kells is represented by James Virtel, partner, along with associates Chad Silker and Darryl Chatman.