Marriage in removal proceedings
Many people assume that when an alien finds him or herself in the unfortunate circumstance of removal proceedings, one option is to marry a U.S. citizen or lawful permanent resident to obtain legal status. Unfortunately, obtaining status through marriage after you are already in proceedings is not as easy as obtaining it otherwise. Specifically, under INA § 204(g), an alien’s spouse cannot petition for the alien based on a marriage formed during removal proceedings unless the alien leaves the U.S. for two years beginning after the date of the marriage. As the petition is the basis on which an alien can adjust his or her status, this means that he or she must leave for two years before adjustment of status is a possibility. Moreover, when you depart the U.S. after being out of status, there are further bars and complications to coming back.
In order to avoid the requirement to leave the U.S. for two years, the alien and his or her spouse must prove by “clear and convincing evidence” (pursuant to INA § 245(e)(3)) that the marriage is bona fide. This standard is much more difficult to meet than the standard for ordinary marriage-based adjustments for two reasons:
1. The Automatic Presumption. By law, there is an automatic presumption that the marriage is fraudulent when it is formed during removal proceedings. This means that in order to overcome the assumption that the marriage is not real, the married couple must find a way to prove that they are really in love and have true intentions to remain a married couple, beyond a shadow of a doubt. In the regular marriage-based adjustment process, immigration officials are often cynical and suspicious, so the process is difficult. In the marriage-based adjustment process during removal proceedings, however, it is exceedingly difficult.
2. Documentary evidence. The alien must prove through extensive documentary evidence that his or her relationship is real. Sometimes meeting someone while in proceedings, falling in love, and then marrying them quickly and filing will not provide the requisite material to prove the relationship. Even if the marriage is based on a long-standing relationship, often the couple has not lived together, so that the documentary evidence is minimal.
In addition, it is important to know that if you are found to have presented a fraudulent marriage in order to obtain relief, you could potentially be prevented from ever obtaining an approved visa petition in the future, were you to apply to come back after deportation. Therefore, there is an inherent risk in even trying to gain relief based on marriage during proceedings.
As most individuals who have ever been involved in the immigration process know, outcomes can be arbitrary, and some real relationships are not found to be real by the USCIS when they obviously should be. Sadly, there are no absolutes or guarantees whichever route you choose, but it helps to understand what you are facing and what the potential consequences of your actions may be.