Does marrying U.S. citizen while alien is in removal proceedings automatically save the alien?

Many aliens (including a number of immigration lawyers) believe that marrying a U.S. citizen while they are under removal proceedings will automatically save them from removal. In immigration, there is no such thing as “automatic”.

A Filipina in Hawaii was advised by the lawyer (not Filipino) of a Filipino under removal proceedings to marry the Filipino in order to save him from removal. She did. The Filipino was deported anyway. The Filipina was crying and blaming the lawyer for misleading them.

If you wish to try and save an alien from being deported using the marriage route, here is the strategy:

1. Determine the ground for removal. If it is for an aggravated felony as defined in INA § 101(a)(43) (such as, murder, sexual abuse of a minor, illicit trafficking in a controlled substance, or a crime of violence for which the term of imprisonment is at least one year), stop here. Committing an aggravated felony is a mandatory ground for removal.  Marrying the alien will not save such alien.

2. If the ground for removal is not for an aggravated felony, the U.S. citizen can marry the alien in removal proceedings provided the marriage is bona fide. Consider, however, that if the alien is in jail, it is well-nigh impossible to obtain permission from jail authorities for the inmate to be married. If the U.S. citizen and the alien met after the alien was placed in removal proceedings, it is more difficult to establish bona fides than if they had met before the alien was placed in removal proceedings.

3. The U.S. citizen should then file a Form I-130 petition for the alien relative. There is a general prohibition against the approval of a visa petition filed on behalf of an alien if the marriage creating the relationship occurred while the alien was in removal proceedings. 8 CFR § 204.2(a)(iii). However, the petitioner should make a written request for exemption stating the reason for the exemption and eligibility for the exemption. The request should be submitted with the Form I-130. 8 CFR § 204.2(a)(iii)(A).

The petitioner should also submit documents to establish that the marriage was entered into in good faith and not entered into for the purpose of procuring the alien’s entry as an immigrant. Such documents may include, but is not limited to: (a) documents showing  joint ownership of property, (b) lease showing joint tenancy of a common residence, (c) documentation showing commingling of financial resources, (d) birth certificates of children born to petitioner and the alien, if any, (e) affidavits of third parties with knowledge of the bona fides of the marital relationship, (6) any other documentation which is relevant to establish that the marriage was not entered into in order to evade the immigration laws of the United States.

The test of a bona fide marriage “is that the two parties have undertaken to establish a life together and assume certain duties and obligations." Lutwak v. United States, 344 U.S. 604, 611, 73 S. Ct. 481, 486, 97 L. Ed. 593 (1953); United States v. Diogo, 320 F.2d 898 (2d Cir. 1963).

USCIS will schedule an interview for the petitioner and the alien. The interview will focus on the bona fides of the marriage. The parties may be subjected to a “Stokes interview”. See Stokes v US, INS 393 F. Supp. 24 (SDNY 1975). For Stokes interview  questions, see https://search.yahoo.com/search?p=stokes+interview+questions&ei=UTF-8&fr=chrf-yff24

4. The I-130 petition is approvable if the petitioner establishes eligibility for the exemption by clear and convincing evidence.

5. If the I-130 petition is approved, the alien may file a Form I-485, Application for Adjustment of Status with the Immigration Judge. There is no guaranty that the Judge will approve it.  The alien must establish that he is eligible for adjustment of status as a matter of discretion. The alien could cite the factors in determining eligibility for cancellation of removal (Matter of C-V-T, 22 I&N Dec. 7 (BIA 1998) to establish eligibility for adjustment of status.

6. If the I-130 petition is denied, the petitioner may appeal to the Board of Immigration Appeals. 8 C.F.R.  § 204.2(a)(1)(iii)(E).

7. If the BIA dismisses the appeal, the petitioner should consider filing a petition for declaratory judgment to determine the validity of the marriage with the proper U.S. District Court. See Stokes v US, INS 393 F. Supp. 24 (SDNY 1975).

                  

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He served as a U.S. Immigration Officer. He is co-author with former Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Atty. Tipon has personally experienced the entire immigration cycle by entering the United States on a non-immigrant working visa to write law books, adjusting his status to that of a lawful permanent resident, and becoming a naturalized United States citizen.)