ICE Wants to Deport Me: Is It Too Late to Marry a U.S. Citizen?

Possibilities and complexities when a foreign national presents evidence of marriage to a U.S. citizen as a defense to removal from the United States.

By , J.D. · University of Washington School of Law

For people in the United States illegally and without immigration documents, a constant risk exists of being picked up by U.S. Immigration and Customs Enforcement (ICE), then placed into removal (deportation) proceedings. They might have a U.S. citizen or permanent resident boyfriend or girlfriend whom they've thought of marrying, but weren't sure yet. Or they might already be married, but because of the immigrant's unlawful U.S. entry, have been unable to apply for the green card without a risky trip outside the United States.

What if the immigrant gets picked up by ICE? This sometimes spurs the couple to marry right away. Would that actually help, or would it be too late by then to stop the deportation?

Applying for a Green Card in Removal Proceedings in Immigration Court

It is possible in some cases to get U.S. lawful permanent residence based on a marriage that took place after immigration proceedings were begun—in fact, to put forth the marriage as a defense to deportation—but it's not easy, and would definitely need a lawyer's help. This article will outline the basic issues involved.

Issue 1: Whether or Not the Non-Citizen Is Being Held in Detention

After an immigration arrest, the foreign-born person is normally held in a detention facility at first. A judge might grant release upon payment of a bond. If the couple can afford to pay the bond and get the non-citizen out of detention, this might be the time to actually get married. (Engineering a marriage while one person is being held in detention will be difficult.)

But that's a lot of "ifs." What's more, some categories of foreign nationals, namely those who have committed crimes, or who already have an outstanding order of removal on record, might not be eligible for bond at all.

Issue 2: Presumption of Marriage in Proceedings Not Being Bona Fide

With any application for lawful permanent residence (a green card) based on marriage, the couple must prove to the satisfaction of U.S. Citizenship and Immigration Services (USCIS) that the marriage is "bona fide"—in other words, is the real thing, not just a sham or fraud to get the foreign-born person a green card.

That's a challenge for all applicants. They must supply documents showing an intention to form a life together (such as joint bank statements and lease agreements). Applicants who are in the U.S. already must pass an interview in which both halves of the couple undergo questioning, in some cases in separate rooms, after which the answers are compared.

But the challenge is even greater when the non-citizen has been placed into removal proceedings. That's because a presumption is raised that you entered into marriage solely to gain an immigration benefit for the non-citizen. In short, you would have to work harder than the average couple to come up with sufficiently convincing evidence that your marriage is the real thing. (Your time living together should be helpful for this.)

You would need to clear this hurdle outside the court proceedings, by preparing and submitting to USCIS a Form I-130 with attached documentation of a bona fide marriage, then waiting for its response. With any luck, that response will come before your next scheduled hearing before an immigration court judge.

Issue 2: A Non-Citizen Who Entered the U.S. Illegally Cannot Adjust Status in Immigration Court Proceedings

In order to obtain a green card while in the U.S., the non-citizen must qualify to use a procedure known as "adjustment of status." Everyone who doesn't qualify for this must apply for their green card at a U.S. consulate in their home country.

In simplest terms, people who entered the U.S. legally and married a U.S. citizen can adjust their status here, while those who entered unlawfully (for example, by crossing the border away from a checkpoint area) cannot do so, and must instead use consular processing. That is true for ordinary applicants, and it's equally true in immigration court proceedings.

Thus, if the non-citizen entered on a visa or by other lawful means, the immigration court judge has the power (after the I-130 has been approved by USCIS) to either grant adjustment of status or to terminate removal proceedings so that the adjustment of status case can be decided by USCIS.

If the non-citizen entered unlawfully, however, the only hope is that the immigration court judge can be persuaded to terminate removal proceedings so that the foreign national can leave the country to do consular processing. And then there will be another hurdle to clear: After leaving the U.S., that person is likely to face a ten-year inadmissibility bar on returning, based on unlawful presence in the United States. The best hope here is probably to apply for what's called a provisional waiver. This will require showing extreme hardship to family members; another hurdle to clear, in terms of both eligibility and providing adequate proof.

Getting Legal Help

As mentioned above, this is complex territory, and we've given only a general overview. See an experienced immigration attorney for an in-depth analysis or your options and discussion of strategy, and for representation before USCIS and in court.

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