We have been asked this question many times... Can I marry my fiancee or “significant other” while I am in the immigration court?
The short answer is that, yes, you can, but it will be more difficult to become a green card holder through that marriage.
This is an interesting topic for us at Sojourner Law, because our primary focus is on family-based immigration and removal defense for those in the immigration court. This question brings these two areas together. The Immigration and Nationality Act states that you may not adjust status to a permanent resident if the marriage was entered into during the pendency of removal proceedings. See INA § 245(e).
However, the INA and the Regulation allows for an exception to the general prohibition, if the petitioner can establish by “clear and convincing” evidence that the marriage was entered into in “good faith”. See INA § 245(e)(3) and 8 C.F.R. § 204.2(a)(1)(iii).
The regulation provides the following examples of how a petitioner can qualify for a good faith exception:
Documentation showing joint ownership of property
Lease showing joint tenancy of a common residence
Documentation showing co mingling of financial resources;
Birth certificate(s) of child(ren) born to the petitioner and beneficiary
Affidavits
Although no waiver application is required, the applicant must request the waiver in writing when submitting the I-130 petitioner.
A case from the 9th Circuit Court of Appeals provides an example of what does NOT constitute clear and convincing evidence. In Yepremyan v. Holder, 614 F.3d 1042, the court says that getting married is insufficient to show a bona fide marriage. The people in this case submitted a marriage certificate and two “vague” affidavits. The affidavits only stated that the couple “look like a very happy and great couple,” but did not provide any substantive information regarding their marriage.
Two years earlier, also in the 9th Circuit, the court held that a copy of a marriage certificate, a visa application, photographs of the wedding, and a joint phone bill were insufficient to prove, by clear and convincing evidence, that the petitioner’s marriage was bona fide. See Ahmed v. Mukasey, 548 F.3d 768 (9th Cir. 2008).
So, if you get married, or are planning to get married, while in Removal Proceedings, please contact our office to make sure you are meeting the regulation’s strict requirements of how you can establish, by clear and convincing evidence, that your marriage is bona fide and not entered into to evade immigration laws.
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