[Congressional Record Volume 156, Number 148 (Monday, November 15, 2010)]
[House]
[Pages H7408-H7410]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         MARINE SERGEANT MICHAEL H. FERSCHKE, JR. MEMORIAL ACT

  Mr. CONYERS. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 6397) to amend section 101(a)(35) of the Immigration and 
Nationality Act to provide for a marriage for which the parties are not 
physically in the presence of each other due to service abroad in the 
Armed Forces of the United States.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 6397

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Marine Sergeant Michael H. 
     Ferschke, Jr. Memorial Act''.

     SEC. 2. MILITARY MARRIAGES LACKING PHYSICAL PRESENCE.

       Section 101(a)(35) of the Immigration and Nationality Act 
     (8 U.S.C. 1101(a)(35)) is amended by inserting before the 
     period at the end ``(except for failure to consummate the 
     marriage caused by physical separation due to the service 
     abroad of one of the contracting parties in an active-duty 
     status in the Armed Forces of the United States)''.

     SEC. 3. COMPLIANCE WITH PAYGO.

       The budgetary effects of this Act, for the purpose of 
     complying with the Statutory Pay-As-You-Go Act of 2010, shall 
     be determined by reference to the latest statement titled 
     ``Budgetary Effects of PAYGO Legislation'' for this Act, 
     submitted for printing in the Congressional Record by the 
     Chairman of the Committee on the Budget of the House of 
     Representatives, provided that such statement has been 
     submitted prior to the vote on passage.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Conyers) and the gentleman from Texas (Mr. Poe) each will 
control 20 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on the bill before the House.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker and Members, the Marine Sergeant Michael Ferschke, Jr. 
Memorial Act, introduced by Representative John Duncan, is a simple 
but, I think, important measure that will help active duty members of 
our Armed Forces serving overseas--as well as their spouses. Under 
current immigration law, when a marriage takes place between two 
persons who cannot both be physically present during the ceremony, the 
marriage is deemed not valid until it is consummated. There are no 
exceptions to this provision, even in cases where it sometimes results 
in clear injustice. And so we learned about this legal requirement 
through the case of Sergeant Ferschke, a United States Marine stationed 
at Camp Schwab in Okinawa, Japan, who, in March of 2007, while on the 
base, met a Japanese woman named Hotaru Nakama at a birthday party for 
a mutual friend.

                              {time}  1500

  They dated for over a year before Sergeant Ferschke was deployed to 
Iraq. Shortly before his departure, they learned that they were going 
to have a baby, and they spoke about getting married, moving back to 
the United States and raising a family together. Two months after 
Sergeant Ferschke arrived in Iraq, the couple was married through a 
ceremony conducted over the telephone; but 1 month later, Sergeant 
Ferschke tragically, in combat, gave the ultimate sacrifice.
  The United States military recognizes this marriage, and Mrs. 
Ferschke has been assisted in raising their son by the payment of a 
death gratuity, but the marriage, itself, cannot be recognized under 
our immigration laws because it was never consummated after the 
marriage ceremony.
  Now, this legislation doesn't entirely eliminate the consummation 
requirement. It simply eliminates the requirement for active duty 
members of our Armed Forces who are serving abroad by creating a narrow 
exception in cases where the failure to consummate the marriage is 
caused by a physical separation due to active duty military service 
abroad by one of the parties to the marriage. This is a reasonable 
provision that will provide some measure of support and comfort to 
members of our Armed Forces serving abroad.
  So I commend our colleague John Duncan for introducing this measure. 
It was championed by our Immigration Subcommittee chairwoman, Zoe 
Lofgren, and our ranking member, Lamar Smith, and Jim McGovern. I thank 
them for their strong bipartisan support of the measure.
  I urge support of this measure, and I reserve the balance of my time.
  Mr. POE of Texas. I yield myself such time as I may consume.
  I support H.R. 6397, and I want to commend Mr. Duncan from Tennessee 
for introducing this legislation.
  Mr. Speaker, under the Immigration and Nationality Act, if a U.S. 
citizen dies while serving honorably in an active duty status in the 
United States Armed Forces as a result of injury or disease incurred in 
or aggravated by combat, the citizen's alien spouse can still seek 
permanent residence as an immediate relative of a U.S. citizen. 
However, the INA also provides that the term ``spouse'' does ``not 
include a spouse by reason of any marriage ceremony where the 
contracting parties thereto are not physically present in the presence 
of each other unless the marriage shall have been consummated.''
  This provision recently came to the attention of Congress through the 
case of Hotaru Ferschke. Mrs. Ferschke is the widow of late Marine 
Corps Sergeant Michael Ferschke. Hotaru was born in Okinawa, Japan, and 
met Sergeant Ferschke there in 2007 when he was stationed at Camp 
Schwab.

[[Page H7409]]

  The couple dated for more than a year before he deployed to Iraq on 
April 15, 2008. The couple learned that Hotaru was pregnant in March of 
2008. They had planned to marry before she became pregnant. Mr. 
Ferschke and Hotaru were married by proxy via telephone on July 10, 
2008, while Sergeant Ferschke was in Iraq. They were never able to see 
each other again after their marriage because Sergeant Ferschke was 
killed in the line of duty, in combat, on August 10, 2008.
  According to the INA, the Ferschkes' marriage is not recognized for 
immigration purposes because it was never ``consummated.'' However, the 
State Department and the Marine Corps both agree that the relationship 
was bona fide.
  Today's legislation is designed to help Hotaru and other widows in 
this terrible situation. It provides an exception to the consummation 
requirement when the failure to consummate the marriage is attributable 
to physical separation due to the deployment overseas of one of the 
spouses in an active duty status in the United States Armed Forces.
  I urge my colleagues to support this bill, and I reserve the balance 
of my time.
  Mr. CONYERS. Mr. Speaker, I am pleased to recognize, for as much time 
as he may consume, our colleague from Massachusetts, Jim McGovern.
  Mr. McGOVERN. I thank the chairman of the Judiciary Committee for 
yielding me the time and for his leadership on this issue. I also want 
to thank Congresswoman Zoe Lofgren for her leadership.
  Mr. Speaker, I am rising, basically, to praise my colleague from 
Tennessee, Representative Duncan. A few months ago, he came to the 
Rules Committee with this case, and he tried to amend a bill to be able 
to find a way to help turn this terrible tragedy into something that 
was reasonable so that this family could stay together and could stay 
here in the United States. Unfortunately, the measure was not germane 
to the bill that was pending before the Rules Committee, but he stuck 
with this issue, and I want to thank him for his perseverance because 
of this terrible tragedy where Sergeant Ferschke was killed in Iraq in 
August of 2008.
  It was Sergeant Ferschke's intention that his wife would reside in 
the United States and that his child would be raised in the United 
States. Without this legislation, that would not be able to be the 
case. Without legislative action, Mrs. Ferschke would have been forced 
to return to Japan at the end of her B-2 tourist visa, and she would 
not have been able to raise her son here in the United States despite 
his United States citizenship. I think any reasonable person looking at 
this case believes that Mrs. Ferschke and her son should be able to 
stay here in the United States.
  Congressman Duncan has helped to close this terrible loophole, so I 
just want to rise and say that, without his perseverance, without his 
taking this case to heart and without his intervention, quite frankly, 
this terrible tragedy would be even worse for this family. I thank my 
colleague for his work on this issue.
  I also thank the gentleman from Michigan for yielding to me. You 
know, we get up here and we always fight with each other on different 
issues, but here is a case where I think we can all come together for a 
common purpose and praise Representative Duncan from Tennessee for his 
work on this.
  Mr. Speaker, I rise today in support of H.R. 6397.
  Mr. Speaker, this is an important piece of legislation that fixes an 
unintended loophole in our immigration law that has caused additional 
heartache for the family of a Marine killed in action from Maryville, 
Tennessee.
  In July 2008, U.S. Marine Corps Sergeant Michael Ferschke married the 
love of his life in Japan, where he was stationed. The couple was 
overjoyed to be expecting their first child at the time of their 
marriage.
  Tragically, Sergeant Ferschke was killed in Iraq during combat just 
one month later in August 2008.
  Since the birth of her son in January 2009, Sergeant Ferschke's 
widow, Hota, has been living in a constant state of uncertainty. 
Because Michael's death precluded the couple from consummating their 
proxy marriage--despite Hota's pregnancy at the time of the ceremony--
the U.S. Department of Homeland Security does not recognize that they 
were legally married.
  Hota has tried every legal means--and done everything right--to try 
to immigrate to the United States and raise their son as they had 
planned to do near Srgt. Ferschke's family in Tennessee.
  Without legislative action, Ms. Ferschke will be forced to return to 
Japan at the end of her B2 tourist visa. If this comes to pass she will 
not be able to raise her son in the United States, despite his U.S. 
citizenship.
  Michael and Hota had clear intentions to raise their family in 
Tennessee. Michael's tragic death should not prevent Hota from 
receiving the legal benefits, including citizenship, that other legal 
widows of American servicemen are entitled too.
  I want to thank my friend, Congressman Jimmy Duncan, for his 
leadership on this issue and for bringing this loophole to our 
attention.
  Mr. Speaker, I urge my colleagues to vote ``yes'' on H.R. 6397.
  Mr. POE of Texas. Mr. Speaker, I yield such time as he may consume to 
the author of this bill, the gentleman from Tennessee (Mr. Duncan).
  Mr. DUNCAN. First of all, I want to say thank you to my colleague 
from Massachusetts (Mr. McGovern) for those very kind words and for his 
help on this. He has been very interested in this since my first 
appearance before the Rules Committee.
  I also want to thank Chairman Conyers. I want to thank Mr. Poe, 
especially our colleague Zoe Lofgren from California, who has helped on 
this as well, Senator Alexander in the other body, and Senator Webb, a 
former marine, who has taken a great interest in this legislation.
  Mr. Speaker, before we are Members for very long, we see things that 
we think would be impossible, things that somehow work out. We also see 
the opposite of that as we see some things that appear to be easy or 
simple that somehow turn into nightmares or serious problems. While 
this is something that, I think, almost everyone on both sides of the 
aisle who when they've heard about it have been supportive and helpful, 
it has been a difficult thing to reverse as to its technicality and to 
get this all worked out.
  This legislation has been adequately described by the three prior 
speakers, but I will say that I also rise in support of H.R. 6397. 
Certainly, this is a tragic situation in which a young marine was 
killed in action in Iraq 1 month after his marriage to this young woman 
from Japan. Then, of course, a little bit later, as has been described, 
the young woman, Mrs. Hota Ferschke, gave birth to Sergeant Ferschke's 
child.

                              {time}  1510

  Sergeant Ferschke was then killed in Iraq, as Mr. McGovern mentioned, 
during combat on August 10, 2008. Because Sergeant Ferschke's death 
prevented the couple from consummating their proxy marriage, the 
Department of Homeland Security does not recognize that the Ferschkes 
were legally married.
  Then Mrs. Ferschke gave birth to Michael Ferschke, III, in Okinawa on 
January 7, 2009. She immediately registered her son's birth with the 
State Department, securing his U.S. citizenship.
  After Sergeant Ferschke's death, Hota Ferschke filed a petition to 
immigrate to the U.S. In response to Hota Ferschke's petition, the DHS 
issued a denial of her petition, citing sections 1703 and 101(a)(35) of 
the Immigration and Nationality Act.
  Sergeant Ferschke and Hota had intended to raise baby Michael in the 
U.S. where Michael could grow up with Sergeant Ferschke's family. This 
legislation would amend current immigration law so that DHS would 
recognize a proxy marriage between two individuals caused because of an 
active duty servicemember's deployment abroad.
  This legislation will straighten out a tragic and sad situation for a 
woman and her child, and I think everyone sees the merit in this, or at 
least I hope they do, and I urge all of my colleagues to support this 
legislation.
  Mr. POE of Texas. Mr. Speaker, I yield back the balance of my time.
  Mr. CONYERS. Mr. Speaker, I just want to commend not only John Duncan 
and Jim McGovern, but I think that this legislation and the energies 
that went into its passage exemplify the fact that Members of this body 
work on small matters, as well as global and international concerns, 
but sometimes it goes unnoticed that in many of our offices, we're 
working on

[[Page H7410]]

matters that are not of historic moment in terms of the history of this 
country but they're of enormous importance to the constituents for whom 
we serve. This example of cooperation of the whole House in bringing 
this matter to our attention and remedy is, I think, salutary and 
commendable, and I thank all of those that worked with John Duncan on 
this.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Michigan (Mr. Conyers) that the House suspend the rules 
and pass the bill, H.R. 6397.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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