Tuesday, September 22, 2020


Article Index

I. Problems

There are a number of problems concerning who and how IMBRA regulates. The means and methods that Congress chose in order to presumably protect foreign women were influenced by over 100 years of immigration regulations premised on moral judgments about race, gender, and marriage in American society.

To begin, immigration law usually regulates the immigrant, not the U.S. sponsor. IMBRA reverses that structure by regulating the U.S. citizen, under the guise of immigration law. There may be more effective ways to protect women from domestic violence than using immigration law to regulate U.S. citizens and their marriages. The focus might be on better informing women of their rights and resources, as well as on enforcement to combat domestic violence and trafficking.

One argument presented in a paper by Erin Pleasant is that several requirements of IMBRA might infringe upon constitutional rights of U.S. citizen males as well as the rights of IMBs. Pleasant argues that IMBRA is underinclusive, disproportionate, and violates the Constitutional rights of American men and IMBs. In addition, IMBRA was challenged for infringing on protected speech of IMBs and the free speech rights of men seeking partners. However, this argument was ultimately struck down in court.

IMBRA's extensive regulation of the U.S. citizen acts as a punishment or disincentive to marrying foreign women, especially if they are found through an IMB. This appears to be an extension of punishments levied against American women who married foreign men in the late 1800s. Congress may still be holding on to the notion that U.S. citizens have only themselves to blame for the extensive regulation when there are enough Americans for them to select from and is still punishing those citizens who choose to look beyond the national borders for a spouse. If the aim is to protect, rather than punish, then all women, regardless of whether they are foreign, should receive the same information about their rights and available resources in the event that they experience domestic violence.

These marriages may be judged as being outside the norm due to suspicion of inter-cultural marriages. The issue might not be so much that one spouse is not a U.S. citizen, but rather that, for the most part, white men are looking to marry women of a different cultural and racial background. Considering the history of antimiscegenation laws in the United States, and the fear of Asian women corrupting white American society through interracial relationships and mixed-race children, it is possible that there remains some discomfort with inter-cultural marriages. This is evident because IMBRA carves out exemptions precisely for couples that meet through cultural and religious organizations.

IMBRA's presumption may be that certain men using IMBs seek domination and control over women. As expressed in the Congressional hearings, there is a fear that men using IMBs are buying women for domestic and sexual labor. The use of marriage as a cover for sex trafficking and violence is especially troubling because it undermines the institution of marriage. The law is creating a dichotomy: a relationship that resembles prostitution or slavery (men buying women) is more regulated than a relationship that looks like marriage (a couple is of same the culture, no money is exchanged, and the marriage is entered into in good faith). Early immigration laws drew the same distinction between prostitution and marriage. Chinese women were excluded from the United States as prostitutes, even when they were a second wife or concubine. So too certain noncitizens are excluded today because their marriage deviates from Western norms of marriages premised on free choice and consent.

IMBRA also judges the way in which U.S. citizens meet a foreign spouse. While marriages facilitated by cultural and religious organizations are legitimate (even though problems inherent with IMBs can also be found in these dating services), the use of an IMB is scrutinized and judged as inherently suspect.

The problem may not be where or how American men search for wives, but that the women who use IMBs are depicted as sexual commodities, making them look too much like prostitutes, and are therefore inadmissible aliens. The association of Asian women (who make up a large portion of women using IMBs) with prostitution is still deeply entrenched as a relic of the early perception of Asian immigrants and due to U.S. military involvement in Asia. The association of IMBs with prostitution makes the female clients an affront to the American system of immigration regulation. The frameworks of good moral character and good faith marriage exclude women engaging in prostitution or women selling themselves online simply to attain American citizenship. Thus, IMBRA may regulate the IMB industry because women who use IMBs are perceived as prostitutes, sexual slaves, or engaging in marriage fraud.

These concerns about the methods of IMBRA's regulation relate to the moral judgments about gender, sexuality, and marriage that have informed immigration and naturalization laws in the United States for years and ultimately influenced the legislators who enacted IMBRA.

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