[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.

                          ____________________