[Congressional Record Volume 156, Number 166 (Wednesday, December 15, 2010)]
[House]
[Pages H8365-H8368]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FOR THE RELIEF OF HOTARU NAKAMA FERSCHKE
Ms. CHU. Madam Speaker, I move to suspend the rules and pass the bill
(S. 1774) for the relief of Hotaru Nakama Ferschke.
The Clerk read the title of the bill.
The text of the bill is as follows:
S. 1774
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PERMANENT RESIDENT STATUS FOR HOTARU NAKAMA
FERSCHKE.
(a) In General.--Notwithstanding subsections (a) and (b) of
section 201 of the Immigration and Nationality Act, Hotaru
Nakama Ferschke shall be eligible for issuance of an
immigrant visa or for adjustment of status to that of an
alien lawfully admitted for permanent residence upon filing
an application for issuance of an immigrant visa under
section 204 of such Act or for adjustment of status to lawful
permanent resident.
(b) Adjustment of Status.--If Hotaru Nakama Ferschke enters
the United States before the filing deadline specified in
subsection (c), she shall be considered to have entered and
remained lawfully and shall, if otherwise eligible, be
eligible for adjustment of status under section 245 of the
Immigration and Nationality Act as of the date of the
enactment of this Act.
(c) Deadline for Application and Payment of Fees.--
Subsections (a) and (b) shall apply only if the application
for issuance of an immigrant visa or the application for
adjustment of status is filed with appropriate fees within 2
years after the date of the enactment of this Act.
[[Page H8366]]
(d) Reduction of Immigrant Visa Number.--Upon the granting
of an immigrant visa or permanent residence to Hotaru Nakama
Ferschke, the Secretary of State shall instruct the proper
officer to reduce by 1, during the current or next following
fiscal year, the total number of immigrant visas that are
made available to natives of the country of the alien's birth
under section 203(a) of the Immigration and Nationality Act
or, if applicable, the total number of immigrant visas that
are made available to natives of the country of the alien's
birth under section 202(e) of such Act.
(e) 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 Senate Budget Committee,
provided that such statement has been submitted prior to the
vote on passage.
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from
California (Ms. Chu) and the gentleman from Texas (Mr. Poe) each will
control 20 minutes.
The Chair recognizes the gentlewoman from California.
General Leave
Ms. CHU. Madam Speaker, I ask unanimous consent that all Members may
have 5 legislative days to revise and extend their remarks and include
extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from California?
There was no objection.
Ms. CHU. Madam Speaker, I yield myself such time as I may consume.
S. 1774 is an immigration relief bill for Hotaru Nakama Ferschke. By
now the story of Mrs. Ferschke and her late husband, Marine Sergeant
Michael H. Ferschke, Jr., should be well known to Members of the House.
The couple met in March 2007 when Sergeant Ferschke was stationed at
Camp Schwab in Okinawa, Japan. They dated for more than 1 year before
Sergeant Ferschke was deployed to Iraq. Shortly before his departure,
they learned that they were going to have a baby. They spoke about
getting married, moving back to the United States, and raising a family
together.
Two months after arriving in Iraq, they were married through a
ceremony conducted over the telephone. But just 1 month later, Sergeant
Ferschke tragically lost his life in combat.
The United States military recognizes the couple's marriage for
purposes of providing Mrs. Ferschke with a death gratuity. But our
immigration laws recognize only proxy marriages that have been
consummated, something this couple was never able to do following the
marriage. As a result, Mrs. Ferschke has been unable to move to the
United States on an immigrant visa, and her hopes of raising their son
with the love and support of Sergeant Ferschke's family have been
thwarted.
Last month, the House passed H.R. 6397, the Marine Sergeant Michael
H. Ferschke, Jr. Memorial Act. The purpose of that bill was to fix Mrs.
Ferschke's situation and to ensure that no other family is left in a
similar situation. Because that bill remains stuck in the Senate, a
relief bill for Mrs. Ferschke is the only way to right this wrong.
I commend Senators Webb, Alexander, Corker, and Udall for introducing
this bill in the Senate, and Representative John Duncan for his work on
a companion bill in the House. I would also recognize Judiciary
Committee Chairman John Conyers, Immigration Subcommittee Chairwoman
Zoe Lofgren, and Judiciary Committee Ranking Member Lamar Smith for
helping to move this bill to the floor.
I urge my colleagues to support this important legislation.
U.S. Department of Homeland
Security,
Washington, DC., March 5, 2010.
Hon. Zoe Lofgren,
Chair, Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law Committee on the
Judiciary, House of Representatives, Washington, DC.
Dear Madam Chair: In response to your request for a report
relative to H.R. 3182, private legislation for the relief of
Hotaru Nakama Ferschke, enclosed is a memorandum of
information concerning the beneficiary. This report is an
update of one previously provided your committee on February
26, 2010, revised to reflect additional information provided
by your staff.
The bill provides that the beneficiary shall be eligible
for issuance of an immigrant visa or for adjustment of status
to that of an alien lawfully admitted for permanent residence
upon filing an application for issuance of an immigrant visa
under section 204 of the Immigration and Nationality Act or
for adjustment of status to lawful permanent resident.
We hope the information provided is useful. Please do not
hesitate to call me if you have additional questions.
Sincerely,
Elliot Williams,
Director.
Department of Homeland Security
U.S. Immigration and Customs Enforcement
Memorandum of Information for H.R. 3182, 111th Congress
On July 10, 2009, Rep. John Duncan (R-TN) introduced H.R.
3182, private legislation to provide immigration relief for
Mrs. Hotaru Ferschke. This is the first private bill filed on
her behalf.
The beneficiary is the widow of Michael Harvey Ferschke,
Jr., a United States Marine who was killed-in-action August
10, 2008, as a result of a gunshot wound received as a member
of a dismounted patrol that was conducting combat operations
in Tikrit, Iraq. Mr. Ferschke passed away before an I-130
immediate relative petition could be filed on Ms. Ferschke's
behalf.
Mrs. Hotaru Ferschke was born on October 20, 1983, and is a
native and citizen of Japan. Mrs. Hotaru Ferschke has entered
the United States 3 times as a temporary visitor. She entered
the United States on December 12, 2007, August 15, 2008, and
February 27, 2009. Each time she came to the U.S. she
complied with the terms of her visa and departed before her
visa expired. Ms. Ferschke has never been placed in removal
proceedings or ordered removed.
Mrs. Hotaru Ferschke met her husband while he was stationed
at the U.S. Marine base in Okinawa, Japan. They traveled to
the United States from December 22, 2007, through December
30, 2007, for the Christmas holiday, where she met Michael's
parents, Mr. Michael H. Ferschke, and Mrs. Robin Ferschke.
When Michael Ferschke, Jr. received orders to deploy to Iraq,
Hotaru, who was pregnant, remained in Okinawa. Michael
Ferschke Jr. and Hotaru Nakama were married via
teleconference on July 10, 2008, while he was in Iraq and she
was in Japan. One month later, Michael was killed during
Operation Iraqi Freedom in support of the Global War on
Terrorism.
On August 15, 2008, Mrs. Hotaru Ferschke returned to the
United States to attend the funeral for her late husband in
Maryville, Tennessee. She returned to Okinawa on August 31,
2008.
On January 9, 2009, Mrs. Hotaru Ferschke gave birth to a
son, Michael Harvey Ferschke III at the Chatan Hospital,
Okinawa, Japan, and on February 27, 2009, she brought her
newborn son to the United States. When in the United States,
they reside with her late husband's parents in Tennessee.
Neighbors have welcomed Hotaru and her new son into the
community.
Mrs. Ferschke is the daughter of Mr. Masaaki and Mrs.
Takako Nakama, both of whom are natives and citizens of
Japan. Mrs. Hotaru Ferschke resides with her mother and
grandmother, Mitsu Shinzato. Mrs. Hotaru Ferschke is one of
four children, between sisters, Madoka Kudaka and Reika
Nakama and her half-sister NaNami Nakama. Mrs. Hotaru
Ferschke attended Okinawa Christian Junior College where she
majored in English.
Mrs. Hotaru Ferschke is currently employed as an
Administrative Specialist with the United States Army's 83rd
Ordnance Battalion CASB, Kadena Air Base Okinawa, Japan where
she has been employed since August 2007. Prior to her
employment with the 83rd Ordnance Battalion she was employed
at the Camp Courtney Commissary, Unit 5156, as a sales clerk.
Her annual salary is estimated to be $24,000.00 per year.
Mrs. Hotaru Ferschke has seen substantial support from the
community here in the United States. Mrs. Hotaru Ferschke is
not employed in the United States. She is a new member of the
American Widows Project, a support group for the wives and
husbands of fallen U.S. soldiers. Record checks concerning
criminal activity with U.S. Federal, state, and local law
enforcement agencies revealed no derogatory information.
Commercial databases revealed no known debts or encumbrances,
foreign or domestic. Inquiries with neighbors of Mr. Michael
H. Ferschke and Mrs. Robin Ferschke regarding Hotaru Ferschke
revealed no derogatory information.
I reserve the balance of my time.
Mr. POE of Texas. Madam Speaker, I am pleased to support this bill,
and I would like to yield such time as he may consume to the gentleman
from Tennessee (Mr. Duncan) for all of his efforts on companion
legislation.
Mr. DUNCAN. Madam Speaker, I thank the gentlewoman from California
(Ms. Chu) and the gentleman from Texas (Mr. Poe) for their work in
bringing this bill to the floor at this time.
As has been described, this is a private relief bill attempting to
allow the young widow of a marine who was killed in combat in Iraq to
bring the couple's young son and come to live with the marine's family
in the State of Tennessee in my district.
[[Page H8367]]
While everyone has supported this bill every step of the way, it has
run into some technical or procedural difficulties that have delayed it
until this point. As has previously been stated, I would like, as Ms.
Chu did, to thank particularly Senator Alexander and Senator Webb who
have taken such a personal interest in this bill on the Senate side,
and I would like to once again thank the House for passing the general
bill last month.
Mrs. Ferschke, the mother of this soldier, first came to see me about
this in December of 2008. Early in this Congress, we introduced a
private relief bill. It took a few months to get the necessary
information and complete the required paperwork, but this private bill
was taken up by the Subcommittee on Immigration in the Judiciary
Committee on July 23, 2009. At that time it received the support of
both Chairwoman Lofgren and Ranking Member King, both of whom I would
also like to thank. However, at that point there were some objections
to doing private bills in the other body, and so at the direction of
the staff of the Judiciary Committee, both majority and minority, we
attempted to do an amendment to the Defense bill. However, some of the
people on the Rules Committee, while supporting the bill, did not feel
it was germane to the Defense bill, which we also had to agree with,
but we were doing that at the direction of others. But I also would
like to thank the gentleman from Massachusetts (Mr. McGovern) because
hearing about this at the Rules Committee, he took a special and
personal interest in this bill also.
We then introduced a general bill, once again working with the staff
of the Judiciary Committee, whom I would also like to thank. That bill
was passed last month in the House, but we ran into some objections
here, and that is why we are back here today on this private relief
bill.
{time} 1120
Hotaru Ferschke, as has been stated, is the widow of the late
Sergeant Michael Ferschke of the U.S. Marine Corps. She was born on
October 20, 1983, in Okinawa, Japan. In March 2007, as Ms. Chu said,
when Sergeant Ferschke was stationed in Okinawa, he met her at a mutual
friend's party. They dated for more than a year before Sergeant
Ferschke was deployed to Iraq in April 2008. Shortly before Sergeant
Ferschke deployed, the couple learned that Hotaru was pregnant.
Sergeant Ferschke's parents and members of his military unit in Iraq
have attested to the fact that the couple already had planned to marry
before Hotaru became pregnant and had decided to live and raise their
future family in the United States.
The couple was married by proxy, by telephone, by a military chaplain
in July of 2008 while Sergeant Ferschke was in Iraq. But 1 month later,
in August of 2008, Sergeant Ferschke was killed in combat. Although the
marriage is legally valid and recognized by the military, in order for
Mrs. Ferschke to be recognized as Sergeant Ferschke's spouse for
immigration purposes, the marriage itself would have had to have been
consummated. Under the circumstances, this wasn't possible. The law
makes no allowance to the fact that Mrs. Ferschke was already pregnant
with her husband's child before the marriage ceremony took place.
I could go on and tell additional details, but I'll just leave those
for the statement that I have and say that this is something that I
think everyone has wanted to support all through this, and it is a
great moment for this family to hopefully finally complete this at this
time at the tail end of this Congress. And so I urge my colleagues to
support this very worthwhile legislation.
Ms. CHU. Madam Speaker, I reserve the balance of my time.
Mr. POE of Texas. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, I strongly support this legislation. I once again want
to thank the gentleman from Tennessee (Mr. Duncan) for his efforts in
this. It's a perfect example of how, if there's a problem, an issue
with a constituent in a congressional district, the gentleman from
Tennessee took the bull by the horns, so to speak, and solved this
problem and brought it before the attention of Congress in an effort to
resolve this problem.
I am pleased to support this bill for Hotaru Ferschke and would like
to thank John Duncan for all his efforts on her behalf. Hotaru is the
widow of the late Sgt. Michael Ferschke (U.S. Marine Corps). She was
born in Okinawa, Japan, and met Sgt. Ferschke there in 2007, where he
was stationed at USMC Camp Schwab. They dated for more than a year
before Michael was deployed to Iraq in 2008.
Shortly before Michael was deployed to Iraq, the couple learned that
Hotaru was pregnant. They had planned to marry before she became
pregnant. Michael and Hotaru were married ``by proxy'' via telephone on
July 10, 2008, while Sgt. Ferschke was in Iraq. They were never able to
see each other after their marriage because Michael was killed in
combat on August 10, 2008. Hotaru gave birth to Michael Ferschke, III
on January 7, 2009. Michael is a United States citizen.
Normally, the Immigration and Nationality Act would allow Hotaru to
receive her green card, despite the death of her husband. The INA
provides that ``in the case of an alien who was the spouse of a citizen
of the United States at the time of the citizen's death . . . if the
citizen served honorably in an active duty status in the military, air,
or naval forces of the United States and died as a result of injury or
disease incurred in or aggravated by combat, the alien . . . shall be
considered . . . to remain an immediate relative after the date of the
citizen's death. . . .''
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.'' Thus,
the Ferschke's marriage is not recognized for immigration purposes
because it was never consummated.
This provision, enacted in 1952, was designed to prevent marriage
fraud. However, according to the U.S. Embassy in Seoul, Korea, it is
clear that the Ferschke's relationship was bona fide.
While there is no precedent for such a private bill, the case seems
to be relatively unique and meritorious. There is no indication that
there was any fraud associated with the Ferschke's marriage.
I urge my colleagues to support this bill. Let us pay honor to the
memory of Michael Ferschke and grant his widow a future in the U.S.
Ms. ZOE LOFGREN of California. Madam Speaker, as Chairwoman of the
House Immigration Subcommittee, I first learned about Hotaru Ferschke
and her late-husband, Marine Sergeant Michael H. Ferschke, Jr., when
the Subcommittee formally met to consider H.R. 3182, a private
immigration bill introduced by Representative John Duncan. The Ferschke
case highlighted a little-known provision in our immigration laws,
which states that when a marriage takes place between two persons who
cannot both be physically present during the ceremony, the marriage is
not valid unless and until it is consummated. The provision allows no
exceptions, even where the bona fides of the marriage is recognized for
other purposes and consummation of the relationship prior to marriage
can be demonstrated beyond a shadow of a doubt.
Last month, I joined Representatives Duncan, Jim McGovern, and Lamar
Smith in offering H.R. 6397, a bill that would amend this provision of
our immigration laws to account for situations--like the one presented
here--where the failure to consummate such a marriage was the result of
service abroad in the United States Armed Forces. I was pleased that
the House passed that bill by voice vote, but we now must await final
passage in the Senate.
In the meantime, S. 1774 provides the only means by which Hotaru
Ferschke will be able to obtain lawful permanent residence in the
United States, so that she may raise her son--Mikey--in the country for
which his father gave his life.
Moreover, as the House is poised to pass the first private
immigration bills that will be sent to the President in 6 years, it is
worth making some brief remarks about such bills more generally.
Private legislation is perhaps the narrowest, most targeted form of
relief that Congress can provide. Private immigration bills have long
been recognized as necessary in compelling circumstances where the
inflexible application of existing law would lead to extraordinary
hardship. Such bills also can help Congress identify systemic problems
with our laws.
This country has a long history of passing private immigration
legislation. According to the Congressional Research Service, from
1936-2004, at least one private immigration law was enacted in each
Congress. During the Cold War, Congress enacted well over 1,000 private
immigration laws.
This long history came to a grinding halt in the 109th Congress, when
Congress failed to enact a single private immigration law. The same was
true of the 110th Congress and, until just recently, the 111th.
[[Page H8368]]
The Senate's passage of the two immigration relief bills before us
today--S. 4010 and S. 1774--is therefore important not only for the two
beneficiaries of the bills and their family members, but also for the
private bill process itself. Our immigration laws are broken--there can
be no doubt about that--and I am a firm believer that those laws must
be reformed. But even a perfect set of laws will occasionally result in
cases of extraordinary hardship, for which an individual exception to
the law may be necessary. Private immigration relief bills have played
a significant role in our history, and I am hopeful that they will
continue to play such a role after today's important votes.
Mr. POE of Texas. I yield back the balance of my time.
Ms. CHU. Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentlewoman from California (Ms. Chu) that the House suspend the rules
and pass the bill, S. 1774.
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.
____________________