Home Marriage Can Marriage Stop Deportation? What You Need To Know

Can Marriage Stop Deportation? What You Need To Know

Can Marriage Stop Deportation? What You Need To Know

Getting deported can be a terrifying prospect for many non-citizens currently residing in the United States. However, for those who’ve established significant family ties through marriage to a US citizen or lawful permanent resident, there may be options for relief from removal through what’s known as “family-based immigration.”

In this in-depth guide, we’ll explore the ins and outs of how marriage can potentially help stop deportation proceedings. We’ll outline the process and eligibility requirements, discuss alternate pathways if primary relief is denied, and address some common challenges and misconceptions. Let’s dive in.

Understanding ‘Removal’ vs. ‘Deportation’

When the government seeks to compel a non-citizen to leave the United States, this is formally termed “removal proceedings.” Colloquially, removal is often called “deportation,” but there is a distinction:

Deportation refers specifically to when a non-citizen is forcibly removed from the country due to criminal conduct.

Removal is a broader term that includes both deportation for criminal reasons as well as administrative removal for immigration violations like overstaying a visa.

So in summary – all deportations are removals, but not all removals are necessarily deportations, since removal proceedings can occur without any criminal element involved. With that key distinction in mind, we’ll use “removal” as the preferred legal terminology for the remainder of this post.

How Marriage Can Lead to Cancellation of Removal

For a non-citizen facing imminent removal, establishing eligibility for what’s officially known as “cancellation of removal” through a bona fide marriage to a US citizen or permanent resident offers one of the most direct paths to halt deportation proceedings. Here’s a closer look at how this process works:

Marriage Must Precede Removal Order

The marriage must have legally taken place before an “order of removal” is entered by an immigration judge. In other words, the non-citizen must already be married to their US spouse by the time removal proceedings conclude at trial.

Continuous Residency Requirement

Beyond just being married, the non-citizen must also prove continuous physical presence in the United States for at least three years if married to a US citizen or continuous residency for at least five years if married to a permanent resident.

Good Moral Character

Applicants must demonstrate good moral character during the entire period of claimed residency/presence up until a decision is rendered on the cancellation request. Criminal convictions or other offenses may disqualify an applicant under this requirement.

Hardship to Spouse or Child

Extreme and unusual hardship must be proven if the non-citizen spouse or their child who is a US citizen or permanent resident was to be forced to leave the country or stay behind without them. Things like medical/health issues, financial strain, lack of support systems, education disruption, etc. are factors considered in the hardship determination.

Interview with USCIS Officer

If all preliminary requirements are met based on documentation submitted, the non-citizen and their US citizen or permanent resident spouse will be called in for an interview with a USCIS immigration officer. The officer will assess credibility and eligibility.

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Immigration Judge’s Discretion

Provided the applicant persuades the officer, a cancellation request deemed eligible will then be put before an immigration judge for final adjudication. The judge has wide discretion to either grant or deny the application request based on the totality of circumstances in each unique case.

So in summary – cancellation of removal through marriage offers a direct path to halt actual deportation proceedings only if very specific legal criteria are fully satisfied and favorably weighed by immigration authorities. It’s not a guaranteed remedy by any means.

Alternate Options if Removal Not Cancelled

In the event an application for cancellation of removal through marriage is ultimately denied by an immigration judge during removal proceedings, there are still a few alternate forms of relief an individual may explore depending on their unique circumstances:

Appeal to the Board of Immigration Appeals (BIA)

Denied cases can be appealed within 30 days to the BIA, which is the highest administrative body that reviews immigration court decisions. However, the bar is high to overturn a judge’s ruling.

Motion to Reopen/Reconsider with New Evidence

If significant new evidence or changed circumstances arise, a motion can be filed within 90 days asking the original judge to re-examine the decision. Things like an approved family visa petition or additional hardship evidence could warrant reopening.

Prosecutorial Discretion Request

For those with especially sympathetic cases involving US citizen relatives, requesting prosecutorial discretion from ICE or USCIS to administratively close or terminate the removal case without a formal grant of status remains an outside option.

Asylum/Withholding of Removal

Individuals fearing persecution if returned to their home country due to race, religion, nationality, political opinion, or membership in a social group may attempt to defensibly establish eligibility for asylum or related protections in immigration court.

So while cancellation of removal is the most direct pathway, these alternative arguments for administrative relief deserve consideration as potential fallback options in certain situations where a marriage-based cancellation request was initially denied.

Eligibility Through Subsequent Marriage

An important point to note – getting married after already being in removal proceedings does not necessarily preclude one from requesting cancellation of removal based on that new marriage.

Under certain conditions, a subsequent bona fide marriage can still form the basis for cancellation relief:

1. Marriage must have taken place after proceedings began but before a final removal order is issued by the immigration judge.

2. All other eligibility requirements for cancellation like continuous physical presence and hardship must be independently satisfied based on the new marriage alone.

3. The subsequent marriage carries the additional burden of having to prove it is entered into in good faith rather than solely to circumvent a removal order.

So while the subsequent marriage route faces an uphill battle, it’s worth exploring as a legal option worth presenting to the immigration court for those taken into proceedings pre-marriage but who find a US spouse before a final decision is rendered by the judge.

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Common Challenges and Pitfalls

While marriage to a US citizen offers a viable path to avoid deportation in many instances, there are still significant challenges and common reasons why cancellation of removal requests through the family process can ultimately fail:

Fraudulent or Sham Marriages

Authorities scrutinize closely for marriages shown to be mainly fraudulent or entered into solely for immigration purposes without genuine commitment. False documentation or inconsistent testimony hurts credibility.

Lack of Hardship Evidence

Proving “exceptional and extremely unusual” hardship to a qualifying relative if removed is a high evidentiary burden. Generalized claims of financial or emotional difficulties don’t suffice on their own.

Criminal History or Other Bars

Even minor crimes or certain immigration violations like reentry after deportation can preclude a showing of “good moral character” needed over the full residency period.

Insufficient Residency or Presence

Not meeting the 3-5 years required of continuous physical presence or residence nullifies eligibility no matter marital circumstance. Even brief trips abroad can negatively impact the calculation.

Changed Circumstances

Intervening events like divorce, a spouse’s loss of status, or new criminal issues can negatively impact a still-pending cancellation case going forward.

Lack of Legal Representation

The complexities of immigration law make competent legal counsel critical for maximizing approval chances, yet many applicants face removal without attorney assistance due to cost barriers.

So the reality is that immigration relief through marriage remains an uphill battle for non-citizens in removal that demands addressing each caveat and pitfall with care, documentation, and strong advocacy to offset inherent skepticism surrounding the process.

Building a Strong Cancellation Case

For applicants seeking to avoid those common pitfalls and maximize chances of a successful cancellation request in the face of actual deportation, focusing application support on the following factors can help strengthen their claim:

Establish Longstanding Relationship

Present evidence like photos, letters, financial records showing consistent couple activities spanning the full residency/presence time claimed establishes the marriage is bona fide and not entered into solely to circumvent removal.

Document Hardship in Detail

Provide explicit evidence and testimony from relatives on extreme financial, medical, psychological, logistical hardship of one spouse and qualifying relatives should family be forced apart through deportation.

Pursue Post-Secondary Hardship

Where applicable, address education disruption for school-age US citizen children and argue their best interest lies keeping family unity through cancellation of parents’ removal.

Pursue Pre-Nuptial Relief Options

If recently married facing imminent removal, seek alternate discretions like administrative closure to buy time while expediting family petitions that could lead to formal status down the road once approved outside court.

Supplement with Alternate Relief

Creative lawyering should look at every option like asylum, withholding of removal, or Convention Against Torture protections as fail-safes in case primary cancellation case falls short on its own. Derivative asylum claims through spouses remain viable side-avenues.

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Provide Affidavits from Family

Letters from relatives in the US detailing their relationship history with the couple and the unimaginable hardship deporting one spouse would cause lends extra supporting evidence.

Highlight Community Roots Formed

Showing deep integration and community involvement like church membership, volunteering, or local business ownership demonstrates the United States has become their primary residence and societal ties.

Seek Pro Bono Legal Assistance

Major non-profit organizations provide free or low-cost representation for low-income individuals in removal courts across the nation. Pursuing pro-bono assistance greatly improves outcomes.

Request a Continuance If Needed

If documentation is still in progress at the cancellation hearing date, request more time from the judge to fully build the case rather than facing rushed denial due to incomplete evidence or representation challenges.

Remain Law-Abiding Post-Filing

Applicants must avoid any criminal or immigration violations after applying and before a decision is rendered, as new issues can upend an otherwise approvable case and defeat attempts to establish good moral character.

Prepare for Interview Scrutiny

USCIS officers may grill applicants and their U.S. spouse extensively during an interview to check the marriage’s legitimacy and watch for inconsistencies in testimonies that suggest fraud or convenience arrangement. Rehearsing questions and answers helps avoid surprises.

Frequently Asked Questions

Here are answers to some of the most common questions individuals facing potential deportation typically have regarding immigration relief options available through marriage:

Q: Can I request cancellation if I’ve already been ordered removed?

A: No, an order of removal must not have been entered yet for cancellation eligibility. Afterward, limited motions options may exist depending on circumstances.

Q: What proof do I need?

A: Joint bills/leases, commingled assets, photos together over time, correspondence, tax forms. Hardship evidence based on affidavits from family, health/financial records also key.

Q: How long until a decision?

A: Times vary greatly, but on average 12-18 months after applying depending on court backlogs. Employment authorization may be available during that period.

Q: What if we later divorce?

A: As long as cancellation was properly granted through the marriage at that time period, you maintain LPR status independently. But new criminal/immigration issues could impact future adjustment applications.

Q: Can past deportations affect relief?

A: Yes, certain previous deportations/reentries without permission may trigger permanent bars making one ineligible for cancellation or adjustment of status through marriage going forward. Consult an attorney.

Q: Does it matter where we married?

A: No, what matters most is bona fide nature of marriage exhibited since wedding date, not necessarily location itself. However, getting legally married in U.S. simplifies documentation.

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