If you and your spouse are thinking of filing a marriage-based immigration case, you might be wondering if you could be arrested after the case is filed. Now that Texas SB4 has been largely upheld by the 5th Circuit Court of Appeals, local law enforcement officers may question a person’s immigration status. In addition, there have been isolated incidents in the Houston area of ICE officers going to homes after becoming aware that a person whose status has expired or who is suspected to be in the country without authorization. With all of this happening, it’s understandable that people are afraid of ICE showing up to arrest them after they file an immigration petition.
Why Would Ice Arrest Me While My Marriage-Based Case Is Pending?
When it comes to marriage and immigration, people ask about this often, and it’s no surprise. Everyone is justified in their concern, and it’s best to understand the possibilities before you file any immigration petition or application. ICE can arrest anyone who is deportable. There are many reasons someone could be deportable, but some of the most common reasons you might be deportable include:
- You have overstayed your allowed time in the US (for example, you came to the U.S. with a visa, but the period of time you were authorized to be in the US has passed and you’re still here
- You have a criminal record (including guilty plea to a crime, or a crime for which you received deferred adjudication and completed your probationary requirements) for a crime that makes you deportable. This includes drug offenses, domestic violence crimes, firearms offenses, voting when you are not a U.S. citizen, and some crimes involving moral turpitude.
- You were deported from the United States and never left or you left reentered the country without authorization or permission to do so
Will Ice Arrest Me While My Marriage-Based Case Pending?
None of us can predict the future, so it’s important to know the possibilities and be prepared. If you are deportable, it is possible that ICE could arrest you. However, ICE has limitations to its resources, so a person who is without status or has overstayed is usually less like to be arrested than someone with a criminal record or who was previously ordered deported. No matter what your circumstances are, You need to be aware of your rights if ICE agents come to your home.
If you have a criminal record, it’s important to know if your record makes you deportable. Even if you are, you may still be able to get a green card based on your marriage. However, you may have to apply for a waiver (an application for permission to become a resident even though you have a criminal history) to get your green card. You also could be arrested by ICE during your application process, or if you apply, submit a waiver, and the waiver is not approved. If you are taken into ICE custody and you have a criminal history, you may not be eligible for a bond. So the bottom line is that if you have a criminal record, you could be arrested, you may not be eligible for a bond, and you may still be able to get a green card even if you are arrested and you do not get a bond.
What Can I Do If I’m Worried About Being Arrested After I File My Marriage-Based Case?
Being detained is a huge emotional and financial strain on you, your spouse, and other family. If detention is a risk, be sure you speak to a specialized immigration lawyer about your case so you and your family can understand the possibilities and be prepared.
Also understand that’s it’s possible for you to be arrested even if you do not file a marriage based case. As long as Texas SB4 is in effect, Texans who are undocumented or out of status are at risk of being detained during traffic stops and criminal investigations even if they don’t have a criminal record.
Before you file your marriage-based case, talk to an experienced immigration lawyer about whether you can be arrested if you file for a green card based on marriage.