Many aliens (including a number of immigration lawyers) believe that marrying a U.S. citizen while they are in 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. Apparently, the lawyer did not have a strategy for using the marriage option. Very recently, a couple from an Asian country (not the Philippines) had used a lawyer (not Filipino) in an I-130 petition by a U.S. citizen wife to save her husband in removal proceedings but USCIS issued a Notice of Intent to Deny on the ground, among others, that the petitioner had not asked for an exemption from the prohibition against the approval of a visa petition for an alien if the marriage creating the relationship occurred while the alien was in removal proceedings
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. After the marriage, the U.S. citizen should then file a Form I-130 petition for the alien relative with the USCIS. 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). The marriage is a sham if the bride and groom did not intend to establish a life together at the time they were married.
Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).
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” (separate interview of each of the parties with the same questions asked and comparing their respective answers to check for discrepancies). 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
The alien should ask the Immigration Judge to continue the removal proceeding on the ground that there is a prima facie approvable I-130 petition that has been filed for the alien. See Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005). See also Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).
4. The I-130 petition is approvable if the petitioner establishes eligibility for the exemption (that the marriage is bona fide) by “clear and convincing evidence”. See INA § 245(e)(3).
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. The alien might consider requesting the Immigration Judge to administratively close the removal proceedings in order that the Form I-485 could be filed with USCIS. There is authority to the effect that a Form I-485 could be filed with the USCIS. simultaneously with the Form I-130 with a copy of the Form I-485 furnished the Immigration Judge. See Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005).
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).