PASS THE MIC Editorials, Comments, and Opinions
In Support of Military Spouses by
Sean R. Hanover
Washington, D.C .
principal attorney at Hanover Law, P.C. in
Hanover is the
"DEL MUNDO IS AN ADDITIONAL ARROW FOR THE IMMIGRATION ATTORNEY'S QUIVER."
aving been actively involved with the U.S. Armed Forces for many years, I was delighted to help a young Navy family struggling with an immigration challenge. Seaman Frank Brown and his Japanese wife, Asoka Brown (both aliases to protect their identities), experienced significant problems stemming from Asoka's undocumented status. She had originally entered the United States legally through the Visa Waiver Program in October 2008 and married Frank. She then returned to Japan, where she continued to work and raise their only child. She did not adjust status and her husband did not sponsor her. In 2009, after concluding affairs in Japan, Asoka returned to North America, with Frank accompanying her; Frank had received an order to transfer to Norfolk, VA. They first vacationed in Canada and then entered the United States across the Canadian border without inspection. This uninspected entry was unintentional; as they drove to Norfolk, they gave no thought to the border crossing.
The Browns then stayed in the United States for three years without adjusting status or applying for any type of legal status. They approached our law firm in early 2012 to obtain help getting legal status. Asoka's entry without inspection status made this a difficult proposition. This was further complicated by Frank's impending deployment to the Persian Gulf; the prolonged separation would leave Asoka severely hamstrung without him—she
Immigration Law & the Military Purchase >
could not legally drive, work, or do anything outside of the immediate area of the base, where her military family ID card was operative.
WHAT OUR RESEARCH REVEALED We determined that Asoka was eligible to adjust status based on Del Mundo v. Rosenberg, 341 F. Supp. 345 (C.D. Cal. 1972). While rather dated, this case remains valid, and clarifies the rights of service members married to undocumented immigrants. In Del Mundo, the petitioner, a service member in the U.S. Navy, married an undocumented immigrant who had entered the United States illegally and faced deportation proceedings. The court articulated a policy rationale for adjusting the status of the spouse of a service member who entered without documentation:
Petitioner's husband is under military orders to remain in the United States, stationed at San Diego for a specified tour of duty. The Respondent's refusal to allow Petitioner to remain with her husband here during his tour of duty in the United States has placed an unreasonable burden upon the serviceman, a burden which is contrary to the language, intent and purpose of 8 USC §1354, undermines the morale of the serviceman, and is thus harmful to the best interests of the Armed Forces. Id. at 349.
In that vein, the court established a two-step test to see if a service member and his or her spouse should receive any protection under this ruling: 1. Is the spouse in fact a member of the U.S. Armed Services?
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