Saturday, September 21, 2019

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Article Index

Noga Firstenberg

Excerpted from: Noga Firstenberg, Marriage and Morality: Examining the International Marriage Broker Regulation Act, 18 Asian American Law Journal 83 (2011) (346 footnotes Omitted) (Student Notes)

 

Congress enacted the International Marriage Broker Regulation Act (IMBRA) on January 5, 2006, as part of the reauthorization of the Violence Against Women Act (VAWA), in response to a few highly publicized murders of women by their husbands, whom they had met through IMBs. Two casualties of such murders were Anastasia King and Susanna Blackwell. King, murdered in 2000, was a twenty-year-old from Kyrgyzstan; Blackwell, murdered by her estranged husband in a courthouse in 1995, emigrated from the Philippines.

IMBRA, along with VAWA, can be seen as part of a shift in immigration law that recognizes gender subordination as a wrong that needs to be corrected, and therefore aims to protect foreign women from potentially abusive American spouses and reduce their dependency on abusive husbands for legal status. However, it can also be viewed as a law that unnecessarily burdens American citizens with additional regulation when they marry noncitizens. A closer study of U.S. immigration and citizenship laws suggests that IMBRA is perhaps the latest in a line of regulatory mechanisms fueled by American perceptions about race, gender, and marriage. This Article aims to reveal the unconsciousness of IMBRA's text, not by focusing solely on the language of the text itself, or the Congressional debate preceding its enactment, but by recognizing it as part of the broader regulation of immigration and citizenship.

By examining the historical precedents that influenced this legislation, this paper seeks to situate IMBRA within a larger scheme of immigration regulation, which has specifically focused on the inclusion and exclusion of women in the United States' national polity. It is important to recognize how historical precedents and notions still influence today's immigration laws. Doing so helps us understand why immigration law regulates particular people and relationships in specific ways. Understanding these connections is a critical step in developing future regulations that account for their own unconscious influences, thereby creating a more comprehensive and useful immigration policy.

Since the 1800s, laws pertaining to immigration and citizenship have been defined in relation to the institution of marriage as well as perceptions about race and gender. There are numerous ways in which IMBRA is influenced by historical notions about race, gender, and marriage. The particular ways in which IMBRA regulates American citizens and their noncitizen spouses can be attributed to the historical perception of Asian women, who make up a large portion of women advertised through IMBs, as sexualized and servile; the perception of prostitutes as a corrupting force and threat to monogamous Christian marriage; the historical discomfort with marriages to noncitizens; the move from seeing foreign women as a threat to American citizens to now viewing them as threatened by our country's citizens; the shift toward family-based immigration as a means of attaining citizenship; and Western notions of marriage based on free choice and consent. The particular relationships the legislature chose to regulate, and ways in which it chose to regulate them, speak volumes about the historical stereotypes and moral-based judgments that underlie the Act. IMBRA illustrates how perceptions of race, culture, and gender continue to play a critical part in dictating the moral validity of marriages between citizens and noncitizens, thereby determining who can immigrate and eventually attain citizenship in the United States.

Moral worthiness is a theme that runs constant in the regulation of immigration and citizenship. Moral arguments used by anti-Chinese groups in the 1800s led to the first exclusionary laws, and moral arguments still determine who can enter the country, as evidenced by the frameworks of moral turpitude, good faith marriages, and good moral character. Immigration and citizenship are approved for those who deserve them based on moral judgments about personal character and acceptable forms of relationships. These moral judgments are influenced by notions of race, gender, and marriage. IMBRA is one such example of the intersection of moral judgment and the law.

As a means of explaining early immigration laws, the Article tracks the formation of sexualized stereotypes about Asian women, which were then used to exclude them from the United States. Part I explores the formation of the idea that all Asian female immigrants were prostitutes and the further promulgation of this sexualized stereotype during the time of U.S. military occupation in Asia. Part II then examines the regulations used to exclude immigrants based on moral and racial concerns. Part III analyzes the fluidity of women's citizenship as defined by their marriages. This Part explores historical ideas about women, citizenship, and marriage, to show how these notions have informed U.S. immigration laws; it also explores the ways in which immigration laws give the federal government the right to regulate marriages, leading to norm-setting and moral judgments about acceptable types of relationships. Part IV examines IMBRA and shows that the Act is based on moral judgments about relationships and family formation, which are influenced by the historical conceptions of race and gender discussed in Parts I-III of the paper. This Part also explores questions arising from IMBRA's methods of regulation. The Act, through the particular relationships it regulates and the way it regulates them, raises questions about its own efficacy and the underlying assumptions on which it is based.

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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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