Posted on December 24, 2017

Can I Get My Husband Or Wife Deported?

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, the Department of Homeland Security is looking for information relating to crimes like, fraud, human-trafficking, gang-related crimes.  Simply being undocumented is not something their tip line is looking for. I, personally, have never heard them acting on a tip of a merely undocumented person.  Scheduling an appointment with 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 the Department of Homeland Security 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 the Department of Homeland Security.  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 of the alien and which, within 2 years subsequent to any admission of the alien in the United States, shall be judicially annulled or terminated, unless the alien establishes to the satisfaction of the Attorney General that such marriage was not contracted for the purpose of evading any provisions of the immigration laws, or

(ii) it appears to the satisfaction of the Attorney General that the alien has failed or refused to fulfill the alien’s marital agreement which in the opinion of the Attorney General was made for the purpose of procuring the alien’s admission as an immigrant.”

The definition of “fraud” for these purposes are in INA 212(a)(6)(C)(i):

“In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.”

As you can see, this is extremely broad. To get the Attorney General’s attention, the facts have to 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 for Avila and desire to have a family with her; (2) Montenegro was anxious to marry Avila for reasons other than love and family; (3) Montenegro saved money without Avila’s knowledge so that he could leave her as soon as he obtained legal resident status; (4) Montenegro had planned ahead to leave Avila; (5) Montenegro’s timing of events proved that he committed fraud by inducing Avila into marriage; (6) Montenegro learned he could use domestic violence allegations to obtain lawful resident status without having to rely on Avila; (7) Montenegro’s sole reason for marrying Avila was to obtain legal resident status in the U.S.; and (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, defendant’s knowledge of which has rendered it impossible for him to continue to perform the duties and obligations of his marriage.”  Wolfe vs. Wolfe 389 NE 2d 1189. So, the fraud must be so extreme that you couldn’t even be a husband or wife even if the fraud was revealed.  In this case, the husband said he wasn’t divorced when he married a woman’s whose religion didn’t allow for divorce.  In this modern day, I have a hard time thinking of a scenario where someone couldn’t fulfill the necessary obligations of marriage.

If your spouse has committed fraud in obtaining your marriage and your spouse is still in conditional residency status, simply report your spouse to the Department of Homeland Security and they will inform the agent supervising your spouse’s case. The Department of Homeland Security may cancel your spouse’s green card at this point.

If your spouse has already received permanent residency (their green card) then you can inform the Department of Homeland Security but, to the best of my knowledge, there is no formal way for the department to initiate the deportation at this stage.

If your spouse has already received their citizenship, this will be a massive uphill battle. Treason is literally the standard for revoking someone’s citizenship much less deporting them.

In conclusion, I have had dozens of people inquire about how to do this and only one instance where the fraud was so incredible that I felt, personally, that a deportation might be warranted.  In the end, it proved far too difficult to do under Illinois’ annulment laws.

If marriage fraud truly existed, the U.S. State’s Attorney may be the person you need to contact.

“Marriage fraud” is a criminal offense, defined by 8 U.S.C.S. § 1325 as follows: “Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than five years, or fined not more than $250,000, or both.”

Divorce is about moving from one chapter in your life to the next.   I would 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 an actual option.  As of right now, it remains a puzzle.

Update # 2: Trump is out of office…but deportations are occurring if there is a finding of fraud by a state court. 

How Can I Divorce My Spouse After My Spouse Has Been Deported?

If your spouse is now in their home country, you can still get divorced in Illinois so long as you have been an Illinois resident for 90 days.

You can simply send your spouse an appearance and a final judgment of dissolution of marriage to sign and return to you via mail or email.  You can then file your spouse’s appearance in Cook County on their behalf.

Your deported spouse does not need to be present for the final prove up hearing that finalizes your divorce.  But, you will need to be present in court or via Zoom at the final court date.

You will still have to physically serve your spouse with divorce papers wherever they are.

If you don’t know where your spouse is, exactly, or it is impossible to serve them in their home country, then you can request the court to grant you permission to file for service via publication.

Contact my Chicago, Illinois law office if you’d like to learn more about the divorce aspects regarding you and your estranged spouse.

To read this article in Spanish, click here.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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