Marrying to beat deportation

A Filipina named Imelda (no, not our Imelda), entered the United States legally as a temporary worker. She overstayed the permission given her to remain in the U.S. after repeatedly seeking an extension. Immigration authorities placed her in deportation proceedings. She conceded deportability. The Immigration Judge (IJ) granted her 30 days to depart voluntarily, based partly on her promise not to marry a U.S. citizen during that time.

Eleven days later, she married a U.S. citizen. They had been seeing each other for several months before the deportation hearing. Her husband filed a visa petition on her behalf, and Imelda filed a motion to reopen her deportation hearing to allow consideration of her application for adjustment of status. The IJ denied the motion to reopen because he considered her guilty of "a breach of faith and a misrepresentation” to the Court. The Board of Immigration Appeals (BIA) dismissed her appeal reasoning that neither the equity inherent in her marriage nor the hardship to her citizen spouse was entitled to much weight, because the marriage took place after she had been found deportable.

Imelda appealed to the Court of Appeals arguing that the BIA acted arbitrarily in dismissing her appeal because her case is not factually distinguishable from Matter of Garcia, 16 I. & N. Dec. 653 (BIA 1978), where the BIA established a policy of granting reopening in cases like hers. Like Imelda, the alien in Garcia’s case married a United States citizen and then filed a motion to reopen deportation proceedings to apply for adjustment of status based on marriage, which took place after the alien was found deportable and granted voluntary departure.

In Garcia’s case, the BIA announced this policy: "[W]e shall hereafter generally reopen the deportation proceedings in such cases unless clear ineligibility is apparent in the record... [W]e believe that discretion should, as a general rule, be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of a deportation hearing or upon a motion to reopen."

The BIA in Garcia’s case reopened the proceedings solely on the basis of the alien's last-minute marriage to a citizen, and did not require Garcia to show any additional equities. The BIA apparently considered the fact of marriage to a citizen an equity sufficient to warrant reopening. The BIA in Garcia’s case qualified its policy of normally granting reopening in marriage cases by stating that it did not intend to establish an inflexible rule requiring the IJ in all cases to reopen the proceedings. It clearly would not be an abuse of discretion for an immigration judge to summarily deny a motion to reopen upon his determination that the adjustment application would be denied in the exercise of discretion notwithstanding the approval of the petition.

The court said that BIA cannot properly rely on that qualification in this case. The BIA acts arbitrarily when it exercises its discretion to deny a reopening in one case when it has granted a reopening in another factually similar case. The BIA "may not proceed at whim, shedding its grace unevenly from case to case." 

The court held that because this case is virtually identical to the Garcia case, in which the BIA granted the alien's motion to reopen, the BIA acted arbitrarily in treating Imelda differently. Israel v. INS, 785 F.2d 738 (9th Cir. 1986).

*CAUTION: There is no guarantee that an alien’s marriage to a U.S. citizen while in deportation proceedings or after having been ordered deported will result in a visa. Each case is different. Furthermore, this case simply ruled that an alien who marries after having been ordered deported may move to reopen the case for consideration of an adjustment of status application by the IJ. The case did not say that the IJ will approve the application automatically. There is no such thing as “automatic”. Not even “automatic” transmission where the driver still has to shift the gears from “park” to “drive”.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort St., Suite 1110, Honolulu, HI  96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)