By Heidi J Meyers
If you find your spouse or life partner in removal proceedings and you are a US citizen or permanent resident, you may sponsor your foreign national spouse while he or she is in removal proceedings, and they may be able to adjust to permanent residency as relief from removal.
Once an individual is in removal proceedings, the marriage petition and application for adjustment to permanent residency are adjudicated separately, in a two-step process. The immigration judge does not have any jurisdiction over I-130 marriage petitions. Only the USCIS can adjudicate I-130 marriage petitions.
This article will focus on the particulars of I-130 marriage petitions and I-485 adjustment when the immigrant spouse is in removal proceedings, and not review the general requirements for a marriage petition and adjustment.
THE SCENARIO WHERE THE US CITIZEN AND FOREIGN NATIONAL PARTNER ARE NOT ALREADY MARRIED AT THE TIME THE FOREIGN NATIONAL IS PLACED IN REMOVAL PROCEEDINGS.
Marriage while in ICE detention/prison is difficult, bureaucratic and cumbersome.
Where the US citizen and his or her foreign national partner are not yet married, and the partner is arrested by ICE and detained, it can be extremely difficult to get married while the US citizen’s loved one is in immigration prison. Marriage while in immigration detention (a prison by any other name) is bureaucratic and cumbersome, and marriage requests can take months to be processed. Meanwhile detainees generally have to appear in immigration court every two weeks or so while they are locked up, and if there is no progress in actually getting married, the respondent immigrant will not have relief from removal.
In Turner v Safley, 482 U.S. 78 (Sup.Ct. 1987), the US Supreme Court extended the fundamental right of marriage to prison inmates. The marital relationship is constitutionally protected in prison settings:
“First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released…and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits…, property rights…, and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
Id. at 95-96. The Supreme Court applied a “rational basis” test to the Missouri prison restrictions on marriage, finding that the state regulations were an exaggerated response to security concerns.
The ICE policy regarding marriage requests in detention, ICE/DRO Detention Standards Marriage Request (Dec. 2, 2008), https://www.ice.gov/doclib/dro/detention-standards/pdf/marriage_requests.pdf, is relatively old. Both parties need to request permission to marry. The particular facility may require a security investigation, the marriage application may be subject to facility rules and discipline, and even if the facility clears the marriage based on security concerns, ICE may object to the ceremony before it proceeds. For example, review Rambarrat v. Lyons, No. 9:26-cv-448 (ECC) (NDNY 2026), regarding the right to marry while in ICE detention, in the context of a habeas petition. The attorney should also review state law and local procedures regarding marriage while in ICE detention/prison.
Hopefully, the immigrant spouse will be released through a bond hearing or a habeas petition, and the couple can then more easily arrange their wedding ceremony.
The US citizen petitioner must explicitly request an exemption under 8 CFR 204.2(a)(1)(iii)(A) when filing the I-130 marriage petition.
There is a higher burden to prove good faith, genuine marriage, if the US citizen spouse and respondent immigrant get married when removal proceedings are already pending. The statute has a bar to approval of an I-130 marriage petition, if the beneficiary was already in removal proceedings at the time of the marriage.
INA §204(g) is entitled, “Restriction on petitions based on marriages entered while in exclusion or deportation proceedings”
See, INA § 204(g); 8 U.S.C. § 1154(g):
“a petition may not be approved to grant an alien immediate relative status or preference status by reason of a marriage which was entered into during the period described in section 1255(e)(2) . . . until the alien has resided outside the United States for a 2-year period beginning after the date of the marriage.”
Id. There is also a bar to adjustment based on a married entered into while in removal proceedings, INA §245(e); 8 U.S.C. §1255(e).
However, there is the bona fide marriage exemption, which waives the INA § 204(g) and INA §245(e) bars. The US citizen petitioner must explicitly request an exemption under 8 CFR §204.2(a)(1)(iii)(A) when filing the I-130 marriage petition. There is no separate form to file or fee to pay when requesting the exemption.
THE SCENARIO WHERE THE US CITIZEN PETITIONER AND FOREIGN NATIONAL ARE ALREADY MARRIED WHEN THE IMMIGRANT SPOUSE IS PLACED IN REMOVAL PROCEEDINGS.
If husband and wife are already legally married when the NTA (Notice to Appear in immigration court) is issued, this makes it much easier to file the marriage petition, and obtain enough time from the immigration court for USCIS to adjudicate it. Of course, the couple still needs to prove that the marriage is a genuine marriage not for immigration purposes.
THE ATTORNEY NEEDS TO MAKE A MOTION FOR A CONTINUANCE IN IMMIGRATION COURT FOR USCIS TO ADJUDICATE THE I-130. THE ATTORNEY SHOULD ALSO MOVE FOR ADMINISTRATIVE CLOSURE OR TERMINATION IN ORDER TO PRESERVE THESE ARGUMENTS ON APPEAL.
In order to obtain enough time for USCIS to adjudicate the marriage petition, the attorney should make a motion for a continuance. Under the current administration, immigration judges will likely not grant a motion for administrative closure, but the attorney should still include arguments in favor of administrative closure in order to preserve appeal.
Under the current administration, the most likely path to allow time for USCIS to adjudicate the I-130 is through a motion for a continuance, to try to get the case adjourned for a couple of years. According to federal regulations, 8 CFR §1003.29, a motion for a continuance in removal proceedings may be granted for “good cause”. Also, under 8 CFR §1240.6, after the hearing has commenced, the immigration judge may grant a reasonable adjournment on his or her own, or upon application by the respondent or the ICE prosecuting attorney.
Under Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), “An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.”
Please note, this holding depends on: 1) no opposition by the ICE attorney (OPLA, DHS prosecuting attorney; 2) the marriage petition is prima facie approvable; 3) the respondent is prima facie eligible for adjustment; 4) does the respondent merit adjustment in the exercise of discretion?; and 5) the reason for the continuance and any other procedural factors.
However, recent caselaw holds that the respondent will actually have to show more than prima facie eligibility, rather a likelihood of success, in order to be granted a continuance, Matter of L-A-B-R-, 27 I&N Dec. 405 at 413 (AG 2018), a decision issued by then-Attorney General Jeff Sessions during the first Trump term. The respondent also needs to show the approval of the collateral relief will materially affect the outcome of the removal proceedings. In Matter of Pinzon Rozo, 29 I&N Dec. 507 (BIA 2026), while it involved SIJ (Special Immigrant Juvenile) rather than an I-130 marriage petition, has implications for cases where the petitioner is a lawful permanent resident rather than a U.S. citizen, if there is a backlog in visa numbers in the F-2A category. In Pinzon Rozo, even though the SIJ application was approved, due to the backlog in visa numbers, the child was not immediately eligible for adjustment to permanent residency. The BIA held that “The Immigration Judge erred in granting the respondent, who has an approved petition for special immigrant juvenile classification, a continuance to await the availability of a visa, where the respondent’s priority date will not be current for an uncertain and lengthy period of time.”
In Pinzon Rozo, the BIA also emphasized the additional factor, not present in Hashmi, of exercising reasonable diligence in pursuing the visa petition. “...in seeking a continuance, the respondent bears the burden to show he “demonstrated reasonable diligence in pursuing the collateral adjudication.” Matter of L-A-B-R-, 27 I&N Dec. at 412. The respondent has not offered any explanation for why, despite last entering the United States in 2018, he waited to file his visa petition until 2025 at the age of 20.” Thus, couples who have been married for years, but the US citizen spouse has only recently filed an I-130 marriage petition, the immigration judge may wonder why it took them so long, and the US citizen spouse did not sponsor their foreign national wife or husband earlier.
Under the current administration, requesting administrative closure of removal proceedings so that the USCIS will have time to adjudicate the I-130 marriage petition is likely no longer a realistic avenue. Administrative closure allows the immigration judge to temporarily remove a case from the active docket, and temporarily pause removal proceedings. Administrative closure means that the case is still pending in immigration court, but there is no future court date. Either party may then move to put the case back on the calendar, and have the immigration judge schedule a court date.
During the first Trump administration, and now during the second, making a motion for administrative closure of removal proceedings for a pending I-130 will likely be denied. In Matter of Castro-Tum, 27 I&N Dec, 271 (A.G. 2028), the Attorney General held:
“Immigration judges and the Board do not have the general authority to suspend indefinitely immigration proceedings by administrative closure. To the extent the Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), are inconsistent with this conclusion, those decisions are overruled.”
The Trump administration re-interpreted federal regulations granting immigration judges broad powers to adjudicate and dispose of cases, basically stripping immigration judges of their power to administratively close cases so respondents would have time to pursue relief from removal:
“Neither 8 C.F.R. § 1003.10(b) nor 8 C.F.R. § 1003.1(d)(1)(ii) confers the authority to grant administrative closure. Grants of general authority to take measures “appropriate and necessary for the disposition of . . . cases” would not ordinarily include the authority to suspend cases indefinitely. Additionally, 8 C.F.R. § 1240.1(a)(1), which authorizes immigration judges to take actions that “may be appropriate” in removal proceedings, and 8 C.F.R. § 1240.1(c), which empowers immigration judges to “otherwise regulate the course of the hearing,” do not entail an authority to grant indefinite suspensions.” Id.
During the Biden administration, Attorney General Garland overruled Castro-Tum, as well as establishing a federal regulation explicitly allowing immigration judges to grant administration closure, and administrative closure became available to respondents married to US citizens or permanent residents in order to have time to get the I-130 marriage petition approved, and for those married to permanent residents to await the priority date or the petitioner’s naturalization.
But here we are in Trump 2.0, and immigration judges are systematically denying motions for administrative closure. See this excellent practice advisory by ILRC in order to preserve your arguments in favor of administrative closure for appeal, https://www.ilrc.org/resources/administrative-closure-termination-and-texas-v-department-justice.
ADJUSTMENT MAY BE IN REMOVAL PROCEEDINGS BEFORE THE IMMIGRATION JUDGE, OR IF THE IJ TERMINATES PROCEEDINGS, USCIS MAY ADJUDICATE THE ADJUSTMENT.
Once the marriage petition is approved, the Immigration Judge may hold a hearing to adjudicate the I-485 adjustment application, or if removal proceedings are terminated, then USCIS will adjudicate the I-485 adjustment.
The exception is where the immigrant is considered an arriving alien, in which case, the USCIS has jurisdiction over the adjustment.
We will not review the requirements for adjustment to permanent residency here, as this article is focused on the particular issues for immigrants in removal proceedings who are married to a US citizen.