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April 7, 2008: I-130 Petition Filed While In Deportation (Removal) Proceedings

I-130 Petition Filed While In Deportation (Removal) Proceedings

My husband is in immigration custody and I need to file an I-130; will that prevent deportation? His hearing will be set very soon. What are our chances of him being allowed to stay in the United States?
— June Smith

This is just the beginning of a long and difficult process.

When a person is placed in deportation proceedings, the individual will receive a Notice to Appear (NTA) before an Immigration Judge. The NTA sets forth the reasons why the person is in deportation proceedings. Depending on the factual and legal allegations in the NTA, the individual may be able to provide a defense to their deportation.

Depending on the allegations, one possible defense is a bona fide marriage to a United States citizen, where the United States citizen has filed Form I-130, Petition for Alien Relative, on behalf of his or her spouse. Because the petition will be filed while the spouse is in deportation proceedings, the Petitioner must submit proof of the bona fides of the marriage along with the Form I-130. This evidence is required because there is an increased burden of proof when the marriage is entered into while the spouse is in removal proceedings because it is presumed that the marriage was entered into solely to provide an immigration benefit to the immigrant in proceedings. Just because a petition is filed does not mean that it will be automatically approved or that it will stop deportation proceedings.

Once the I-130 is filed, the Petitioner and Beneficiary may be scheduled for an interview at a local United States Citizenship and Immigration Service (USCIS) to determine whether the marriage is in fact out of love and not simply to procure an immigration benefit. If the I-130 is approved, then the Immigration Judge may elect to terminate removal proceedings so your adjustment of status case is within the jurisdiction of USCIS. In the alternative, the judge may require that the adjustment of status remains in the jurisdiction of the Immigration Court.

It is very important to realize that the above information is merely a general overview of the process and there may be numerous variations and obstacles along the way. It is extremely important that you contact a very experienced immigration attorney to review the record, properly prepare and file the appropriate forms and documentation, and represent you in court.

Michael Shane and Evan Shane, Immigration Attorneys

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Related:

Deportation Defense Services

Family-Based Immigration

Marriage Immigration

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