As a Chicago divorce attorney who speaks three languages, the issues of immigration and divorce intersect constantly. Understandably upset, clients believe they can solve all of their problems by having their immigrant spouse deported as well as divorced. The reality is that it is extremely difficult to get the Department of Homeland Security to act on their limited authority to deport an immigrant spouse without extreme circumstances.
The possibility of deportation depends on the spouse’s status. If the spouse has no status (they’re undocumented) or the immigration status they once had has expired, then there is no deportation trigger. You could call the Department of Homeland Security’s tip line at 866-DHS-2-ICE and report the person. But DHS is looking for information relating to crimes like fraud, human trafficking, and gang-related crimes. Simply being undocumented is not something their tip line is looking for. I have never heard them acting on a tip of a merely undocumented person. Scheduling an appointment with a USCIS field office to meet in person would probably be more productive. My advice to anyone in this situation is to let bygones be bygones.
If the spouse has a conditional status – that is, the 2-year conditional status granted before the marriage will be reviewed for validity – this involves providing DHS with evidence of shared expenses, cohabitation, and, in this day and age, lots and lots of Facebook photos. If, during this 2-year period you believe that your marriage was a fraud, you can bring this to the attention of DHS. Immigration law INA 237(a)(1)(G) specifically provides that:
“An alien shall be considered to be deportable as having procured a visa or other documentation by fraud (within the meaning of section 212(a)(6)(C)(i)) and to be in the United States in violation of this Act (within the meaning of subparagraph (B)) if –
(i) the alien obtains any admission into the United States with an immigrant visa or other documentation procured on the basis of a marriage entered into less than 2 years prior to such entry… unless the alien establishes… that such marriage was not contracted for the purpose of evading any provisions of the immigration laws, or
(ii) it appears… that the alien has failed or refused to fulfill the alien’s marital agreement which… was made for the purpose of procuring the alien’s admission as an immigrant.”
The definition of “fraud” for these purposes is in INA 212(a)(6)(C)(i):
“In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure… a visa, other documentation, or admission… is inadmissible.”
As you can see, this is extremely broad. To get the Attorney General’s attention, the facts must be so egregious that they would warrant an annulment. For example, in Texas, Montenegro vs. Avila, 365 S.W.3d 822 had facts where:
“(1) Montenegro falsely represented his love… (8) Montenegro’s failure to disclose his sole reason for marrying Avila was an omission of material fact intended to induce her into the marriage.”
I use a Texas case as an example because there are no immigration annulment cases in Illinois. The last annulment case for fraud to go to appellate court in Illinois happened in 1979, and it only told us that “fraud goes to the essentials of the marital relationship…” – Wolfe vs. Wolfe 389 NE 2d 1189.
If your spouse has committed fraud in obtaining your marriage and is still in conditional residency status, report your spouse to DHS. They may cancel the green card.
If your spouse has already received permanent residency (a green card), you can still inform DHS, but to the best of my knowledge, there’s no formal way to initiate deportation at this stage.
If your spouse has already received citizenship, this will be a massive uphill battle. Treason is literally the standard for revoking citizenship, much less deportation.
In conclusion, I’ve had dozens of people inquire about this, and only one instance where the fraud was so extreme that I thought deportation might be warranted. In the end, it proved far too difficult under Illinois’ annulment laws.
“Marriage fraud” is a criminal offense, defined by 8 U.S.C.S. § 1325: “Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned… or fined… or both.”
Divorce is about moving from one chapter in your life to the next. I advise everyone to abide by the old Spanish proverb, “Living well is the best revenge.”
Update: A lot has changed since the Trump administration made immigration violations a priority. Deporting a spouse might be a thing now – or become one. As of now, it remains a puzzle.
Update #2: Trump is out of office, but deportations are still occurring if there is a finding of fraud by a state court.
How Can I Divorce My Spouse After They Have Been Deported?
If your spouse is in their home country, you can still get divorced in Illinois as long as you’ve been an Illinois resident for 90 days. Send them an appearance and a final judgment of dissolution to sign. Then file it in Cook County on their behalf.
Your spouse does not need to attend the final prove-up hearing. But you must be present either in person or via Zoom.
You must still physically serve your spouse with divorce papers. If you don’t know where they are or can’t serve them, request permission from the court to file for service via publication.
Contact my Chicago, Illinois law office if you’d like to learn more about divorce and your estranged spouse.
| Factor | Description |
|---|---|
| Marriage Fraud | If a marriage is found to be fraudulent—entered into solely for immigration benefits—the noncitizen spouse may face deportation. Evidence of a bona fide marriage is crucial. |
| Criminal Convictions | Convictions for certain crimes, including aggravated felonies or crimes involving moral turpitude, can render a noncitizen deportable, regardless of marital status. |
| Visa Overstay | Remaining in the U.S. beyond the authorized period of stay can lead to removal proceedings, even if married to a U.S. citizen. |
| Failure to Adjust Status | Marrying a U.S. citizen does not automatically grant legal status. The noncitizen spouse must properly file for adjustment of status to obtain lawful permanent residency. |
| Conditional Residency Issues | Spouses granted conditional residency must file a joint petition to remove conditions within 90 days before the two-year anniversary. Failure to do so can result in loss of status and potential deportation. |
| Violations of Immigration Law | Engaging in activities that violate immigration laws, such as unauthorized employment or misrepresentation, can lead to deportation proceedings. |
