Marine Sergeant Michael H. Ferschke, Jr. Memorial Act

Madam Speaker, I move to suspend the rules and pass the bill (S. 1774) for the relief of Hotaru Nakama Ferschke.

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.

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.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I yield back the balance of my time.

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.

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.

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.

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.

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.

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.

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. Speaker, I am pleased to recognize, for as much time as he may consume, our colleague from Massachusetts, Jim McGovern.

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

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.

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.

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.

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.