If Your Spouse is Caught Illegally Entering The U.S.

An overview of the legal options available if your spouse has been detained entering - or reentering - the United States unlawfully.

With the progression of globalization and increased mobility for all people around the world, relationships and marriages are also changing. Increasingly, U.S. citizens and permanent residents are meeting, and marrying, persons who might not have lawful immigration status. These relationships can face a difficult test if the unlawfully present spouse is detained by U.S. immigration authorities.

What should a U.S. citizen or permanent resident do if his or her spouse has been arrested by immigration authorities for entering or reentering the U.S. unlawfully?

Locating Your Detained Spouse

The first challenge a U.S. citizen or permanent resident spouse may face is locating his or her loved one. A person who is arrested for unlawful entry to the U.S. can be detained at any of a number of different locations depending on circumstance. Worse, depending on available space at detention facilities, security concerns, and a number of other factors, a detainee can be transferred to facilities in other counties and even in other states!

Fortunately, Immigration and Customs Enforcement (ICE) does recognize the need for loved ones to find relatives who have been detained by immigration authorities. If you have your spouse’s name, country of birth, and date of birth ready, you can try using ICE’s Online Detainee Locator. Be aware that it can take some time for immigration authorities to update their computer systems with your spouse’s information and location.

Alternatively, if your spouse already has an A number (an eight- or nine-digit number assigned by U.S. immigration authorities that begins with the letter “A”), you can check the United States Immigration Court system to see whether immigration proceedings have been started in your spouse’s case.

The toll-free Immigration Court Case Status line is 1-800-898-7180. You should have your spouse’s A number ready when you call. The automated phone system will instruct you on how to obtain case information.

Protecting Your Detained Spouse’s Legal Rights

In 1997, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, or “IIRIRA” for short. This law instituted harsh penalties for certain foreign nationals who unlawfully enter or attempt to enter the United States. Depending on the facts in your and your spouse’s case, your spouse may be subject to laws barring his or her ability to return to the U.S.

As you'll see, cases involving an unlawful entry to the U.S. can be complex and full of pitfalls. We strongly recommend that you and your spouse work with a licensed immigration attorney who can help navigate the immigration laws.

Expedited Removal at the Border

If your spouse is caught trying to enter unlawfully at or near the U.S. border, U.S. immigration officials may simply apply a process called “expedited removal.” This can happen if the officials determine that your spouse is not admissible to the United States. There is little you can do to stop the removal, and your spouse will be returned to his or her home country.

This does not mean your spouse is without recourse. If you are a U.S. citizen or lawful permanent resident (LPR), you may file an immigrant petition for your spouse, if you have not already done so. Then have your spouse seek an immigrant visa at a U.S. consulate or embassy abroad when the immigrant petition is approved and your spouse's "Priority Date" (if you're an LPR) has become current.

Your spouse will, however, likely have to apply for a "waiver" of prior unlawful status or immigration violations in order for the immigrant visa application to be approved. Waivers are requests for forgiveness by U.S. immigration authorities for any immigration violations an intending immigrant might have committed.

Your spouse will have to show that you would suffer extreme hardship if refused admission to the U.S. in order to receive approval of the waiver and reunite with you. Be aware that the immigration laws make these waivers available only in certain, narrow situations. We strongly advise you to seek a licensed attorney’s assistance if your spouse hopes to apply for a waiver.

Unlawfully Present in the U.S. for Less Than One Year

If your spouse is not subject to expedited removal, he or she will most likely be placed in immigration/removal proceedings before the U.S. Immigration Court. Your spouse will have a chance to convince an Immigration Judge that he or she deserves relief and should be allowed to stay. However, as noted above, the IIRIRA makes unlawful reentry cases particularly difficult.

If your spouse was unlawfully present in the U.S. for more than 180 days, but less than one year, left the U.S., and was caught after reentering or trying to reenter the U.S. unlawfully, he or she could be subject to a three-year inadmissibility bar. This would mean that your spouse would have to leave the U.S. and remain outside for at least three years before qualifying to return. However, as with the expedited removal scenario, a waiver of the three-year bar may be available for your spouse.

The law provides that an immigrant in this situation may seek a waiver if he or she can show that:

  1. he or she is the spouse of a U.S. citizen or permanent resident, and
  2. that the U.S. citizen or permanent resident spouse would suffer extreme hardship if the immigrant spouse is not allowed to stay in the U.S.

In the context of Immigration Court, you would need to file an immigrant visa petition for your spouse (if you have not already done so), and then ask the Judge for additional time so that your spouse can apply for an immigrant visa and the waiver at a U.S. consular post abroad. Unfortunately, as an unlawful entrant, your spouse will not be able to apply for permanent residence while in the United States.

Immigration Court proceedings can be very complex. Contact an immigration attorney who is experienced with such proceedings for assistance.

Unlawfully Present for One Year or More

If your spouse was unlawfully present in the U.S. for one year or more, left the U.S., and was caught entering or trying to enter the U.S. unlawfully, he or she faces an incredibly difficult road ahead. Someone who has been in the U.S. without authorization for a year of more would usually have to worry about a ten-year admissibility bar. In some situations, the ten-year bar, like the three-year bar, can be waived.

But for a person who has the one year of prior unlawful presence and was arrested reentering or trying to reenter the U.S. unlawfully, the IIRIRA imposes a permanent admissibility bar. Perhaps the harshest part of this penalty is that there is no waiver of the permanent bar available under the law.

If your spouse is in this situation, he or she is not without hope. There are other forms of immigration relief that might be available, including Cancellation of Removal, Asylum, Withholding of Removal, Temporary Protected Status, and other possibilities. However, we strongly recommend that you contact a licensed immigration attorney if you and your spouse face a permanent inadmissibility bar. Whether these forms of relief are available to your spouse is very highly dependent on the facts in your spouse’s case.

Cancellation of Removal is generally the most common form of relief available where there is a U.S. citizen or permanent resident spouse. An Immigration Judge can cancel your spouse’s removal from the U.S. if he or she is able to meet four very specific criteria:

  • First, your spouse must be able to show that he or she was physically present in the U.S. for at least ten years prior to applying for cancellation relief. Brief trips outside the U.S. might not count against your spouse’s physical presence, but such a determination is highly dependent on the facts.
  • Second, your spouse must show that he or she has been a person of good moral character. An Immigration Judge will consider things like criminal background, community service and membership, family relationships, church, and other factors to determine character.
  • Third, your spouse must show that he or she has not been convicted of or committed certain criminal offenses outlined under the law. The various offenses are too detailed to list here, but they include things like aggravated felonies and “crimes involving moral turpitude.” You and your spouse should consult an attorney if your spouse has a potential criminal background.
  • Last, your spouse must be able to show that you would suffer “exceptional and extremely unusual hardship” if your spouse was not allowed to remain in the United States. The “exceptional and extremely unusual” standard is a much higher requirement than any of the waivers noted above. For example, the economic hardship to a family from losing a wage earner or the emotional hurt of being separated from a loved one would not rise to the level of “exceptional and extremely unusual” hardship. This standard can be very difficult to meet. Consult an immigration attorney if you and your spouse face a permanent admissibility bar.

See Cancellation of Removal in Deportation Proceedings to learn about this legal option.

Other Situations

Your spouse may have been lawfully present before but was forced to leave because his or her lawful status expired. If your spouse is caught reentering or trying to reenter unlawfully in this situation, he or she can still face serious obstacles to returning to the U.S. and reuniting with you.

As a U.S. citizen or permanent resident, you can file an immigrant petition on behalf of your spouse if you have not done so already. Your spouse will then likely be eligible for apply for a waiver of his or her unlawful return. However, be warned that each case can hinge on particular facts. You will want to consult with an immigration attorney who can guide you and your spouse around any potential pitfalls. For example, if your spouse falsely claimed that he or she was a U.S. citizen when she tried to reenter, that could put your spouse in serious trouble!

If your spouse has been detained for entering or reentering the U.S. without lawful permission, you and your spouse have options. However, the immigration laws around unlawful reentry are fraught with potential inadmissibility bars and other dangers. Consult with a licensed immigration attorney who can help you and your spouse navigate your options.

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