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Widow Penalty Class Action Lawsuit

by Brent Renison, Esq.

Surviving Spouses Against Deportation pro bono counsel Brent Renison and Alan Diamante filed a national class action lawsuit in Los Angeles, California federal court challenging the widow penalty. The case is Hootkins v. Chertoff, CV07-05696 (CAS) (C.D. Cal., filed August 30, 2007). A ruling limiting the class to the Ninth Circuit has been issued, the class has been certified in the Ninth Circuit.

If you are affected by this law, and think that you may be a class member, please complete the questionnaire and follow the directions for submission. Please also complete this if you are outside the Ninth Circuit and wish to request assistance. For more information, including a timeline of events, see below.







March 2, 2009 - Important Notice:  The Court Ordered that Notice of the Class Action be directed to all Ninth Circuit Class members through a combination of individual notice to class members who may be identified through reasonable effort and notice by publication.  The Court Ordered that requests for exclusion from the class be postmarked by April 6, 2009.  You don't have to do anything if you want to keep the possibility of receiving benefits from this lawsuit.  The Court further Ordered that Plaintiffs file a renewed Motion for Summary Judgment on or before March 9, 2009, and notice a hearing for April 20, 2009, that Defendants agree to file a Response on or before March 23, 2009, and optional replies will be due April 6, 2009.  The Court will hear arguments in the case April 20, 2009, and may issue a tentative order that day or thereafter.  The NOTICE TO CLASS MEMBERS describes in detail your legal rights and options in this lawsuit. Please read the Notice carefully, and if you have questions, follow the directions in the Notice.

January 9, 2009 - FAQ #2 issued to address Frequently Asked Questions about the Order Certifying the Class Action.

January 7, 2009 - The Court GRANTS Plaintiffs Motion to Lift Stay allowing the case to proceed and issues a final ruling on the Motion for Class Certification based upon the briefs already filed in the case prior to the stay being entered.  In a separate order, the Court GRANTED the Motion for Class Certification for Ninth Circuit Cases.  The hearing set for January 12, 2009 is therefore cancelled because it is unnecessary.

December 24, 2008 - Defendants filed a Statement of Non-Opposition to Plaintiff's Motion to Lift Stay, indicating that they do not oppose the request to place the case back in active status.  While the Court must enter an order to lift the stay, neither Plantiffs nor Defendants are standing in the way of the Court doing so.  Merry Christmas everyone, and best wishes to you and your family for a Happy New Year.

December 12, 2008 - Plaintiffs filed a Motion for an Order Lifting the Stay requesting that the Court reopen the case and issue a final Order on the Class Certification Motion.  The date of January 12, 2009 was noticed as the hearing date, but Plaintiffs waived oral argument, so it is unclear whether the Court will hold a hearing that day or if the hearing will be waived.  Defendants will file any opposition to the motion by December 24, 2008.

October 15, 2008 - The Parties filed a Joint Status Report, advising the Court that neither party sees any significant movement in the immediate future on either H.R. 6034 or S.3369.

August 21, 2008 - The Court entered an Order Granting Stipulation to Stay Proceedings.

August 15, 2008 - The Parties agreed in a Stipulation to request that the case be placed on hold while Congress considers H.R. 6034 and S. 3369, and in return, Defendants have agreed to allow the non-Ninth Circuit named plaintiffs and certain identified Ninth Circuit plaintiffs and class members who are known to class counsel on August 15, 2008 and who do not have a substitute sponsor to apply for Employment Authorization Documents (EAD) in the meantime.  If you have been in contact with Brent Renison, class counsel, prior to August 15, 2008, and need a work permit (EAD), and qualify based on the criteria above, you must contact Brent Renison directly (send email to before September 3, 2008.  Mr. Renison will submit a report of names to USCIS on September 3, 2008, so time is of the essence.

July 18, 2008 - The Court Ordered the case be placed on hold during settlement negotiations.  The parties are in settlement negotiations.  If you believe you are a class member based on the Court's tentative ruling, please contact Brent Renison immediately.

July 10, 2008 - The parties stipulated to request the court place the class order on hold for 30 days pending settlement negotiations.

July 8, 2008 - The parties stipulated to request the court place the class order on hold for 48 hours pending settlement negotiations.


June 30, 2008 - The Court tentatively Orders the Plaintiffs' Motion for Class Certification be GRANTED for cases arising in the Ninth Circuit (see Circuit Map for states covered by the Ninth Circuit).  The Order is Tentative, and a final ruling will follow.  The Court did not grant the Motion for residents of states outside the Ninth Circuit, however, because the Court found that it was important to allow the government to litigate the surviving spouse issue in different courts around the country, and also found that other Circuit Courts (outside the Ninth) have an interest in deciding the questions presented in the litigation.  Thus, for cases filed within the Ninth Circuit, the Court will allow the Plaintiffs to represent all those whose citizen spouses filed a petition and an affidavit of support on their behalf, and the Court will be able to rule on those cases even though a person is not named in the lawsuit.  On the other hand, for those cases that were not filed within the Ninth Circuit, and who are not named in the lawsuit, each will need to file their own lawsuits in the District Court with jurisdiction over their residence.  We expect that there will be many lawsuits filed throughout the country for those residing outside the Ninth Circuit following this decision, now that the Court has ruled that USCIS has right to litigate their position at further taxpayer expense - that death automatically strips spousal status.  The USCIS position is certain to be challenged by surviving spouses around the country.

Those Plaintiffs residing outside the Ninth Circuit and named in the lawsuit (Fishman-Corman, Engstrom, Diaz-Ruiz, Walsh, Lu, Arias-Angulo, Bernstein, Bayor, Standifer and Batool) are not affected by the ruling, because they are nonetheless Plaintiffs and the government defendants waived any venue objections previously.  The Court should be able to rule on these individual cases notwithstanding the Court's ruling on the Class.

Frequently Asked Questions Number 1 (FAQ1).

June 9, 2008 - The Court Orders Plaintiffs' Reply Stricken

June 3, 2008 - The Court on its own motion Ordered the hearing rescheduled to June 30, 2008, and canceled the June 9 hearing.

June 3, 2008 - DHS and USCIS file Motion to Strike Reply and Surreply to Reply.  More than two weeks after receiving Plaintiffs Reply, and only three business days before the motion hearing, USCIS objects to the Reply filed by Plaintiffs, and seeks to have Plaintiffs arguments disregarded by the Court, or alternatively asks the Court to allow USCIS to file a Surreply.

May 19, 2008 - Plaintiffs file Reply to Response

May 12, 2008 - DHS and USCIS file Response to Motion for Class Certification.  Providing additional arguments against certifying the action as a class, attorneys from the U.S. Department of Justice's Office of Immigration Litigation fight for their clients' rights to automatically deny surviving spouses legal status.

April 28, 2008 - Plaintiffs file Supplemental Memorandum of Law in Support of Class Action, along with declarations from plaintiffs and class members.  USCIS must file a response by May 12, 2008.

April 11, 2008 - DHS and USCIS file Answer to complaint, deny allegations and claim plaintiffs are no longer spouses of U.S. citizens.

April 10, 2008 - UPDATE - tentative order on preliminary injunction motion"The Court concludes that in light of Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), and district court decisions from other jurisdictions agreeing with Freeman, see e.g., Robinson v. Chertoff, 2007 U.S. Dist. LEXIS 34956, at *4 (D. N.J. 2007); Taing v. Chertoff, 2007 U.S. Dist. LEXIS 91411, at *28 (D. Mass. 2007); Lockhart v. Chertoff, 2008 U.S. Dist. LEXIS 889, at *30 (D. Ohio 2008), there are serious questions going to the merits of this case.  Specifically, it appears that defendants have improperly determined that the death of a United States citizen spouse before the two-year marriage anniversary of the citizen spouse and alien spouse, deprives the alien spouse of his or her surviving spouse status.

April 7, 2008 - A hearing on the preliminary injunction motion was held before the Honorable Judge Snyder.  Mr. Renison and Mr. Diamante were present for the plaintiffs, and Ms. Stevens and Ms. Glaser from the Department of Justice's Office of Immigration Litigation in D.C. represented the government.  Judge Snyder advised the parties in open court that she did not believe plaintiffs had made a sufficient showing for the granting of a preliminary injunction, in part because of a insufficient demonstration of irreparable harm, and because the class has not yet been certified.  The preliminary injunction was not issued, but she issued a temporary injunction staying removal proceedings in the case of class plaintiff Yelena Angulo Arias, and asked the government to explain in writing the basis of her removal proceedings by May 1, 2008.  Judge Snyder requested further briefing on the class certification motion, setting April 28, 2008 as the deadline for plaintiffs to file a supplemental briefing, and making the government's reply brief due May 12, 2008.  A hearing on the class certification motion will be held June 9, 2008.  Counsel for putative class members are encouraged to immediately contact Brent Renison in order to assist with providing declarations in support of the class certification motion.

March 20, 2008 - Plaintiffs file FIRST AMENDED COMPLAINT to include allegations in response to the USCIS Memorandum issued by Mike Aytes.

March 17, 2008 - Court issues ORDER DENYING Government Motion to Dismiss.  DHS is now required to answer the complaint, and the lawsuit will proceed.

March 3, 2008 - Court issues tentative ruling - DENIES Government Motion to Dismiss!  The Court indicated in open court that the final ruling would be issued in the next week.  The tentative ruling came in the form of a 31 page opinion.  The only losses suffered by the plaintiffs were that State Department was dismissed as a defendant, and that some plaintiffs' Administrative Procedure Act (APA) claims were dismissed.  Nevertheless, Secretary Chertoff and Director Gonzalez are still defendants, and have direct authority over I-130 adjudication.  Additionally, apart from the APA, the Court still retains Mandamus review over the claims.  Mandamus basically provides for the same relief as the APA claims.  It is for these reasons that we are declaring VICTORY in the Hootkins v. Chertoff litigation at this stage in the proceedings.  Notably, the Court did not dismiss the cases outside the Ninth Circuit, and stated, "Although, Ninth Circuit law does not bind this Court with respect to [plaintiffs outside the Ninth Circuit], the Court finds Freeman to be persuasive authority to be considered in adjudicating their claims."  Now the next hearing is April 7, 2008.  The government must answer the complaint within 25 days of the date of the final court ruling, which will likely coincide with the next hearing date. 

February 15, 2008 - Plaintiffs' Response in Opposition to Defendants' Supplemental Memorandum of Law in Support of Motion to Dismiss along with Exibits including the USA Patriot Act Surviving Spouse Provisions (Ex. A); the 2004 National Defense Authorization Act Surviving Spouse Provisions (Ex. B); and decades old statutes and regulations dealing with automatic revocation (Ex. C).

February 11, 2008 - DHS files Supplemental Memorandum in Support of Motion to Dismiss

January 28, 2008 - Brent Renison and Alan Diamante appeared before the Honorable Christina A. Snyder, U.S. District Judge in Los Angeles federal court.  The Court ordered additional briefing on jurisdictional and procedural issues, and set the case for another hearing March 3, 2008.  The hearing on the preliminary injunction was set for March 31, but by Stipulation of the Parties, the date was re-set for April 7, 2008.

January 18, 2008 - Plaintiffs Reply in Support of Motion for Preliminary Injunction filed. Briefing on the motions is now complete.

January 16, 2008 - Plaintiffs Reply in Support of Motion for Summary Judgment and Plaintiffs Reply in Support of Motion for Class Certification filed.

January 8, 2008 - DHS Reply in Support of Motion to Dismiss and Opposition to Motion for Summary Judgment filed by the Office of Immigration Litigation (OIL); DHS Opposition to Motion for Class Certification and DHS Opposition to Preliminary Injunction.  OIL has been hard at work defending DHS' position that "the law as it exists outside of the Ninth Circuit is that an alien married less than two years at the time of his or her United States citizens spouse's death automatically loses 'immediate relative' status if the I-130 petition has not been approved." See page 9 of Reply.

December 11, 2007 - Proposed Statement of Uncontroverted Facts and Conclusions of Law, in support of Motion for Summary Judgment, filed, along with Proposed Order for Summary Judgment.  These filings are necessary for the court to consider plaintiffs' request for Judgment without trial, and set out the proposed order for relief.  Upcoming deadlines are January 7, 2008 for the government's responses to the various motions and reply to the Motion for Summary Judgment, and January 18, 2008 for plaintiffs' reply.

November 30, 2007 - Stipulated Motion for Continuance of December 10, 2007 hearing until January.  The parties asked for additional time before a hearing before the court would be heard, due to the complexity of the issues, and the Motion was granted.  The next hearing, therefore, is January 28, 2008 at 10:00 a.m. in Los Angeles.

November 28, 2007 - Motion for Class Certification and Proposed Order for Class Certification filed; Motion for Preliminary Injunction and Proposed Order for Preliminary Injunction filed.  These motions were filed in order to certify the class of surviving spouses who are not plaintiffs as "Class Members" in order for surviving spouses who did not participate as plaintiffs in the lawsuit to obtain benefits under the litigation.  The Preliminary Injunction Motion asks the court to stay removal proceedings for surviving spouses, and to allow work and travel documents to be issued while the litigation is proceeding. 

November 26, 2007 - Brent Renison and Alan Diamante file Opposition to Motion to Dismiss and Cross Motion for Summary Judgement.  Hearing is set for December 10, 2007 at 10:00 a.m. with Judge Christina A. Snyder in U.S. District Court in Los Angeles.

November 13, 2007 - Government files Motion to Dismiss.  The government defendants in the class action lawsuit have filed a Motion to Dismiss the Class Action. 

August 30, 2007 - Surviving Spouses Against Deportation pro bono counsel Brent Renison with Parrilli Renison LLC and local counsel Alan Diamante of Los Angeles filed a Class Action complaint in the United States District Court for the Central District of California in Los Angeles today.  The complaint challenges the widow penalty, whereby the USCIS denies legal status to surviving spouses of American citizens due to the death of their spouse during lengthy administrative visa processing.

It is the hope that the Class Action lawsuit will achieve justice for those grieving spouses and their families, as well as shed light on this horrible practice that has existed for the past 37 years.  The time to end the widow penalty is now.