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visa
visa

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Freeman v. Gonzales

Facts

Carla Freeman, a dual citizen of South Africa and Italy, married Robert Freeman, a U.S. citizen, in February 2001. After their marriage, she returned to South Africa but later entered the U.S. under a Visa Waiver Program (VWP) that allowed a 90-day stay. Shortly before their first wedding anniversary, Robert died in a car accident. Mrs. Freeman had filed for adjustment of status to lawful permanent resident, but the Department of Homeland Security ruled that she was no longer a 'spouse' for adjustment purposes due to her husband's death occurring before two years of marriage.

Carla Freeman, a dual citizen of South Africa and Italy, married Robert Freeman, a U.S. citizen, in February 2001. After their marriage, she returned to South Africa but later entered the U.S. under a Visa Waiver Program (VWP) that allowed a 90-day stay. Shortly before their first wedding anniversary, Robert died in a car accident. Mrs. Freeman had filed for adjustment of status to lawful permanent resident, but the Department of Homeland Security ruled that she was no longer a 'spouse' for adjustment purposes due to her husband's death occurring before two years of marriage.

Issue

Whether Mrs. Freeman remained a 'spouse' under 8 U.S.C.S. 1151(b)(2)(A)(i) for the purposes of adjustment of status after her husband's death and whether the Visa Waiver Program's no-contest clause applied to her case.

Whether Mrs. Freeman remained a 'spouse' under 8 U.S.C.S. 1151(b)(2)(A)(i) for the purposes of adjustment of status after her husband's death and whether the Visa Waiver Program's no-contest clause applied to her case.

Rule

Once a VWP entrant files an adjustment of status application as an immediate relative, the alien is entitled to the procedural guarantees of the adjustment of status regime and is no longer subject to the Visa Waiver Program's no-contest clause.

Once a VWP entrant files an adjustment of status application as an immediate relative, the alien is entitled to the procedural guarantees of the adjustment of status regime and is no longer subject to the Visa Waiver Program's no-contest clause.

Analysis

The court determined that Mrs. Freeman's filing of the adjustment of status application entitled her to the procedural protections associated with that process. The court found that the government's application of the no-contest clause was contrary to the intent of Congress, which allows VWP entrants to adjust their status through immediate relative petitions. The court concluded that Mrs. Freeman's status as a spouse was not stripped by her husband's death, as she had initiated the adjustment process.

The court determined that Mrs. Freeman's filing of the adjustment of status application entitled her to the procedural protections associated with that process. The court found that the government's application of the no-contest clause was contrary to the intent of Congress, which allows VWP entrants to adjust their status through immediate relative petitions. The court concluded that Mrs. Freeman's status as a spouse was not stripped by her husband's death, as she had initiated the adjustment process.

Conclusion

The court granted the petition for review, remanding the case to the district director for further consideration consistent with the court's opinion and vacated the removal order against Mrs. Freeman.

The court granted the petition for review, remanding the case to the district director for further consideration consistent with the court's opinion and vacated the removal order against Mrs. Freeman.

Who won?

Carla Freeman prevailed in the case because the court found that she was entitled to the procedural protections of the adjustment of status process and that her spousal status was not negated by her husband's death.

Carla Freeman prevailed in the case because the court found that she was entitled to the procedural protections of the adjustment of status process and that her spousal status was not negated by her husband's death.

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