Become a Patron


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.

I. Perceptions of Asian Women as Prostitutes

The history of Asian immigration to the United States has shaped current views about Asian women. After Asian immigrants first arrived to the United States, they were quickly met by antagonism and anti-Asian sentiment. Opponents to Asian immigration capitalized on perceptions of cultural difference between Asians and Americans. Western ideas of morality, sexuality, and marriage were contrasted with perceived Oriental values. Legislators focused on Asian characteristics of despotism, hierarchy, polygamy, and unwillingness to assimilate to paint a picture of a people so different that they could never become U.S. citizens with American values of democratic government, freedom of contract, and Christian morality.

As part of this campaign, Chinese (and subsequently other Asian) women were portrayed as prostitutes and sexual slaves in contrast, and as a danger to, the American ideal of Christian monogamous marriage based on notions of love and consent. During the Victorian era, sexuality was carefully confined; it moved into the home and monogamous marriage was the only acceptable outlet for female sexuality. This early perception of Asian women as prostitutes, and subsequent fear of them as a dangerous corrupting force, continues to color current immigration and citizenship laws, which still aim to regulate sexuality, morality, and marriage.

This Part focuses on specific aspects of the early immigration of Asian women and how such immigration affected the American perception of Asian women. Due to the immense scholarly focus on Chinese and Japanese immigration to the United States, and the fact that these two groups arrived earlier in time than other groups of Asian immigrants, I will primarily discuss Chinese and Japanese women. The section also touches on women in Korea, the Philippines, and Vietnam as they relate to military prostitution, to show how notions of sexualized and submissive Asian bodies continued to shape images of Asian women into the late 1900s.

A. Before the Start of Immigration

Prior to the arrival of the first Chinese women in the United States, images of them circulated . . . through travel accounts. In 1830 Americans were given lurid accounts of bizarre Chinese customs [and] sexual aberrations. The reports portrayed the Chinese as heathen, crafty, dishonest, and marginal members of the human race.

The first recorded Chinese women came to the United States in the early nineteenth century and were portrayed as curious exotic objects. These women included Afong Moy, who traveled through the country in 1841 as part of a sideshow, and Pwan Yekoo, who traveled with Barnum's Chinese Museum. Yekoo was described in the New York Times in 1850 as prepared to exhibit her charming self, her curious retinue, and her fairy feet . . . to an admiring and novelty-loving public. The description indicates the American public's fascination with Asian women. Although descriptions of Chinese women focused on their physical distinction from American women, the descriptions did not focus on race or morality.

B. Immigration of Chinese Women

Recorded Asian immigration to the United States began in the mid-nineteenth century with Chinese men who first came to Hawaii and California. They arrived in the United States partly as a result of the Gold Rush in 1849 and the subsequent need for cheap labor. At the time of their arrival, entry to the United States was fairly easy, as national policies encouraged and promoted immigration. An estimated 370,000 Chinese entered the United States from 1840 to 1880. In 1868 the United States and China signed the Burlingame Treaty, a bilateral agreement that forbade restrictions on immigration between the two countries. The treaty was signed after the Civil War, when the United States was expanding its markets through international trade and encouraging the immigration of cheap labor.

As early as 1852, with the depletion of gold and influx of immigrants, the Chinese became targets of racial hostility and resentment. In fact, by the 1860s, California state politicians ran elections and won votes based on a platform of harsh anti-Chinese policies.

Racism against the Chinese was based on an American Orientalist ideology that . . . positioned and defined West and the East in diametrically opposite terms. In the view of Americans, Chinese laborers endangered the American standard of living through a willingness to accept lower wages and worse working conditions than American workers. Additionally, Congressional debates focused on the Chinese immigrants' inability to assimilate. For example, during a Congressional session Senator Cowan stated that it is very well ascertained that those people [the Asiatic population] have no appreciation of that form of government [republican government] ; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding or carrying it out. Such statements illustrate the concern that the Chinese endangered the American ideals of democracy and republican government due to their perceived inability to assimilate.

While at first Chinese men came alone, soon Chinese women and children immigrated to the United States as well. Around 1850, there were 4,018 Chinese men and seven Chinese women in San Francisco.

Through the 1850s, the representation of Chinese women in the press became increasingly negative, although there were only a small number of Chinese women in the United States. An article published in 1852 in the Daily Alta California described Chinese women in San Francisco as queer and diminutive specimens of the human family . . . walking through the streets with as much delicacy as a turkey treading on hot ashes. An 1858 article in Harper's Weekly described their supposedly grotesque hair styles, bound feet, and manner of dress. These early articles focused on the Chinese women's physical appearance, to differentiate them from white women. Such negative descriptions would soon reach a peak after all Chinese women in the United States were perceived as prostitutes and as such, a threat to the nation's physical and moral well-being. Soon, however, a shift occurred and the descriptions changed from the women's physical differences to their moral and cultural dissonance.

As the perceptions and descriptions of Chinese women became increasingly negative, a greater effort was made to prevent them from entering the United States. Anti-Chinese groups raised two arguments, based on gender and sexuality, to end the immigration of Chinese women. They contended that: (1) Chinese prostitutes were a threat to the institution of marriage and a danger to white males, and by association a threat to the nation; and (2) Chinese prostitutes were slaves and therefore antithetical to the post-Civil War nation, which was united by its condemnation of slavery. Since all Chinese women were assumed to be prostitutes, all Chinese women would eventually come to face tremendous challenges in immigration.

C. The Threat of Chinese Prostitution

While opponents to Chinese immigration emphasized the threat posed by Chinese prostitution, it is difficult for historians to say with certainty how many of the Chinese women who came to the United States actually engaged in prostitution. Early scholarship on Asian American women highlighted the large number of prostitutes in the initial waves of Chinese immigration. However, recent scholarly research has countered the idea that all early immigrant women were prostitutes. The discrepancy stems from the fact that data from the 1800s is scarce and unreliable. For example, census takers may have failed to distinguish that Chinese second wives and concubines were not prostitutes, and therefore incorrectly listed them as such.

Although there was a great focus on the evils of Chinese prostitution and slavery, the view that all Chinese women were prostitutes was not accurate. In the Chinese immigrant community, the distinction between wives and prostitutes was malleable; some Chinese women came to the United States as prostitutes and later married Chinese men, thereby changing their status. Furthermore, there existed a spectrum consisting of wives, second wives, concubines, and prostitutes; a woman's status depended on her sexual relationships with Chinese men. This differed from the clear-cut American distinction between wives and prostitutes. Other Chinese women lived together in groups, occasionally even adopting children together, but they, too, were sometimes wrongly categorized as prostitutes.

In 1852, only four Chinese women were recorded as being prostitutes. However, in 1870, 2,157 out of 3,536 Chinese women living in California were recorded as being prostitutes. By 1880, the total number of Chinese women had decreased to 3,171, and only 759 Chinese were listed as prostitutes.

Regardless of how many Chinese women actually worked as prostitutes, the majority of Chinese women were perceived as such; and therefore immigration laws aimed at targeting prostitutes affected all Chinese women. The widely held belief that all Chinese women were prostitutes was expressed in political debates and news articles.

Hostility toward Chinese women began in San Francisco, where a municipal committee reported in 1854 that most Chinese women in the city were prostitutes, and this then became the general conviction. In the same year, San Francisco passed Ordinance No. 546 To Suppress Houses of Ill-Fame Within the City Limits. The law was facially neutral, but the police enforced the Ordinance mostly against Chinese and Mexican brothels. However, prostitution itself remained a legal occupation. This proves that prostitution itself was not the problem, but there was a fear of non-white prostitutes, particularly working in houses of prostitution.

In 1866, California passed An Act for the Suppression of Chinese Houses of Ill-Fame. The Act specifically declared that Chinese prostitution was a public nuisance, invalidated leases of property to brothels, and made it a misdemeanor for landlords to let their properties be used as brothels.

In addition to the regulations and enforcement against Chinese prostitution, journalists and politicians expressed especially critical views of Chinese prostitution. In 1854, the New York Tribune accused the Chinese of being lustful and sensual in their dispositions; every female is a prostitute, and of the basest order. In April 1869, Overland Monthly published an article describing San Francisco's Chinatown:

Vice of every form reigned unchecked; and there were not wanting those who were ready to traffic in anything which might bring grain to their pockets; and amongst such were a few shrewd, but unprincipled Chinamen . . . bringing with them the first of those women whose numbers have since increased from year to year, and whose presence is an offence to all respectable people, and a blot on the character of their own nation.

The article asserted that, nearly all Chinese prostitutes in San Francisco are a disgrace to their nation. It also mentioned that Chinese custom was to sequester women at home, which led to the conclusion that all Chinese women who appeared in public were prostitutes.

Political discussions through the 1860s and 1870s also critiqued prostitution. One Senator described the Chinese as a race with whom polygamy is a practice and female chastity is not a virtue. Another Congressman stated that [t] he father sells his son into servitude and his daughter for prostitution . . . . Polygamy and concubinage are national institutions. Yet another Senator from California remarked that, [i] n morals and in every other respect they are obnoxious to our people. The women are prostitutes, and the men are petty thieves. Even President Ulysses S. Grant said about the Chinese that, [h] ardly a perceptible percentage of them perform any honorable labor, but they are brought for shameful purposes, to the great demoralization of the youth of these localities. These statements show that even in the highest echelons of government, policymakers regarded prostitution an inherent Chinese characteristic and perceived all Chinese women as prostitutes.

D. Prostitutes as a Corrupting Force

Chinese women came to symbolize the most fundamental differences between West and East; the Chinese prostitutes came to represent sexually overcharged bodies that threaten[ed] the moral and physiological health of American manhood, and by extension, the nation itself. The presence of Chinese women made miscegenation possible and caused fear of racial pollution. These women posed the threat of a second generation of Chinese children who would be American citizens or of interracial relationships that might result in mixed-race children that would cause the pollution of the white race. This was especially a threat after the ratification of the Fourteenth Amendment in 1868, which guaranteed citizenship to any person born in the United States. After a Supreme Court decision in 1898 extended birthright citizenship to Asians, children born to Chinese women would be American citizens, unlikely to leave the United States and return to China. The fear was that these Chinese children would create a generation of American citizens with a culture of hierarchy, despotism, and slavery, antithetical to American values of democracy and free choice.

The popular perception of Chinese women as prostitutes led to national policies aimed at excluding these women. Lawmakers and enforcers tried to keep out Chinese prostitutes, claiming they had virulent sexually transmitted diseases that were impossible to cure, encouraged the use of opium, and corrupted young white Christians. They were perceived as instruments for the debasement of white manhood, health, morality, and family life and as such, a threat to white civilization. Stemming from Victorian views about sexuality and condemnation of sex outside of marriage, prostitution was seen as a force that could destroy marital bonds and result in [i] nfected wives and children, dissipated husbands[,] and mental anguish and moral indignation. As prostitutes, Chinese women posed a threat to the national citizenry by endangering youthful white masculinity.

Even after Congress banned the immigration of Chinese prostitutes through the Page Law in 1875, medical experts, politicians, and anti-Chinese groups continued to point out the corruption and contamination caused by Chinese prostitutes. In 1875, the American Medical Association wrote a report characterizing Chinese prostitutes as a risk to national health. The report stated that ninety percent of sexually transmitted diseases in San Francisco came from Chinese prostitutes, making them the source of the most horrible pollution of the blood of the younger and rising generations.

In 1876, a Congressional Joint Special Committee to Investigate Chinese Immigration was sent to San Francisco. The investigation examined the effects of Chinese immigration on the nation by conducting interviews with government officials, health department officials, policemen, judges, merchants, bankers, manufacturers, farmers and others. Even though Chinese prostitutes were being excluded under the Page Law, the committee found that those interviewed were concerned that a decision had to be made about how to handle Chinese women attempting to immigrate. There was disagreement about a solution, as some people interviewed by the Committee believed that Chinese women immigrating to California were not proper wives, and therefore undesirable, while others insisted that more Chinese women should be present so that Chinese laborers could form families and produce a generation of Chinese children educated in the United States who would be a very much better class of people than the present race of Chinamen.

In 1907, Congress created the Dillingham Commission to survey the effects of recent immigration on economic conditions, charity, education, crime, vice, and insanity. In its report, the Commission concluded that offenses against chastity, especially those connected with prostitution had increased as a result of immigration. The Commission recommended changes in immigration law to deport prostitutes more easily and recommended criminalizing transportation of prostitutes across state lines.

As illustrated by the views expressed in the media, by doctors, and by politicians, there was a widespread perception that all Chinese women immigrants were prostitutes. The general view was that these prostitutes were a threat to the nation through their corruption of marriage, infection of white men, and the possibility of weakening the white race through mixed-race children. The enactment of numerous laws to prevent Chinese women from entering the United States demonstrates how pervasive and effective this negative perception of Chinese women truly was.

E. Prostitution as a Form of Slavery

Another perception of Chinese women was that they had been forced into prostitution against their will. This perception may have stemmed from the Victorian view that women would only voluntarily engage in sexual intercourse for love or to have children. In this sense, prostitution was seen as a form of slavery and Chinese men were portrayed as slave owners and traders. President Grant said of the Chinese, the great proportion of the Chinese immigrants who come to our shores do not come voluntarily . . . but come under contracts with headmen who own them almost absolutely. In worse form does this apply to Chinese women. Congress believed that the Chinese customs of polygamy and prostitution revealed an underlying slave-like mentality.

As part of the debate over the abolition of slavery, public attention focused on the evils of coerced labor, including prostitution. In the aftermath of the Civil War, Chinese prostitution, framed as a form of slavery, was unacceptable in the United States; it defied America's post-war commitment to freedom. Chinese slavery was portrayed as more evil than pre-war American slavery had ever been. In 1892, an article stated that there exists in this country, wherever the Chinese have obtained a foothold, a slavery so vile and debasing that all the horrors of [N] egro American slavery could not begin to compare with it.

Chinese prostitution, conceptualized as slavery, was portrayed as an inherent part of Chinese culture. The American public believed that the Chinese condoned this form of sexual slavery that was antithetical to American notions of marriage based on free choice and consent. Historian Nancy Cott described the dichotomy between prostitution and marriage: where marriage implied mutual love and consent, legality and formality, willing bonds for a good bargain, prostitution signified sordid monetary exchange and desperation or coercion . . . .

These fears of prostitution as a corrupting force and as a form of slavery led to the enactment of both state and federal laws to stop prostitutes from entering the United States. In 1870, California passed An Act to Prevent the Kidnapping and Importation of Mongolian, Chinese, and Japanese Females, for Criminal or Demoralizing Purposes. The law made it illegal to bring any Asian woman to the United States unless she could prove that she came voluntarily and was of correct habits and good character. To protect American citizens from the corrupting force of prostitution and to curb the slave trade, this California law created restrictions to prevent Asian women from immigrating. As with the California law, the federal government also sought to exclude prostitutes from entering the United States and therefore, spurred by California's legislation, enacted the Page Act in 1875, which prohibited the entry of Asian prostitutes.

The idea of prostitution as a danger to the United States influenced the use of moral character and lewdness as important criteria in U.S. immigration policy. Granting entry to the United States contingent on a person's good moral character became standard practice in federal immigration laws, as will be explored in Part III. Framing all Chinese women as prostitutes and slaves, and therefore a threat to the nation, allowed both state and federal legislatures to exclude large numbers of Chinese immigrants in ways that would not have otherwise been permissible given the obligations of the Burlingame Treaty. By using vague morals-based language, but applying the laws broadly against all Chinese women under the presumption that they were all prostitutes, the laws excluded virtually all Chinese women. These early laws ultimately paved the way to the renegotiation of the Burlingame Treaty and passage of the 1882 Chinese Exclusion Act, which broadly excluded groups of Chinese immigrants.

F. Immigration of Other Asian Groups

The immigration of other Asian groups and the ensuing reaction of the American public closely followed the pattern of Chinese immigration. Just as Americans treated Chinese immigrants with hostility, they also opposed and sought to exclude subsequent groups of Asian immigrants. Lawmakers continued to apply the framework of Chinese women as prostitutes to other Asian groups in order to halt their entry into the United States. The Japanese and Korean practice of importing picture brides further reinforced the perception that many Japanese and Korean women were prostitutes and had been forced into sexual slavery.

G. Japanese Immigration and Picture Brides

After the 1882 law restricting Chinese immigration was enacted, the national focus turned to the next largest group of Asian immigrants in the United States--the Japanese. Most Americans viewed Japanese and Chinese as interchangeable and categorized them together as Oriental. Resentment toward the Japanese, just like against the Chinese, grew as their numbers did.

The first immigrants from Japan arrived in San Francisco in May of 1869. Between 1869 and 1885, only about 600 Japanese immigrated to the United States. Because of their relatively small number, there was little open hostility directed at Japanese immigrants during this time.

However, the number of Japanese immigrants in the United States soon grew. Between 1885 and1890, after the Japanese government allowed laboring classes to emigrate, 2,270 Japanese immigrants came to the United States. By 1901, there were 12,000 Japanese immigrants living in the United States.

As with Chinese immigrants, at first Japanese men came alone. Between 1880 and 1890 only a small number of Japanese women came to the United States. However, within a few decades, many Japanese men began bringing wives with them. Japanese women continued to immigrate to the United States until the 1920s, when the Japanese government stopped their emigration. In 1900, there were 985 Japanese women in the United States. By 1910, the number of Japanese women increased to 9,087 and by 1920 there were 38,303 Japanese women in the United States.

Americans used the Japanese custom of importing picture brides to point out the differences between Japanese and dominant white culture. This custom also led to the mistaken belief that many of the women immigrating as picture brides were actually prostitutes. From 1910 to 1921, more than one-third of Japanese marriages were picture bride marriages, in which the prospective bride in Japan and groom in America exchanged photos before agreeing to marry. Picture brides grew out of traditionally family-arranged marriages prevalent in Japan, but the practice was adapted to the needs of the immigrant society. After the marriage was registered on the husband's family record in Japan, brides were given passports to join their husbands in the United States. In 1921, Japan stopped this practice because the United States government raised concerns over this method of immigration.

Just as with Chinese immigrants, growing opposition to Japanese immigration focused on the problem of Japanese prostitution in the United States, and the practice of picture brides further fueled anti-Japanese sentiment. The anti-Japanese movement viewed picture brides as an immoral custom in opposition to American Christian ideals. This mirrored the earlier rhetoric linking Chinese prostitution to corruption and slavery, and thus a threat to American values of monogamous marriage based on consent and ideals of democracy and freedom.

H. Korean Picture Brides

As was the custom for Japanese immigrants, picture brides were also a component of the Korean community that immigrated to Hawaii between 1903 and 1924. Korean immigrants immigrated to the United States to work in Hawaiian sugar plantations in the early 1900s. As had been true for the Chinese and Japanese immigrants before them, men first came alone. However, the sugar plantation managers considered the Korean bachelors a problem. Hoping that the men would settle down and work more steadily if they were married, the Korean government approved the emigration of young women who would agree to marry after exchanging pictures with potential husbands. As a result, almost 1,000 women came to Hawaii as picture brides between 1910 and 1924.

During the early period of Asian immigration to the United States, Asians were seen as a threat to American society and were subsequently excluded through regulation. This greatly affected Asian women, who were generally viewed as prostitutes, and therefore a corrupting force. The notion of Asian women as prostitutes originated with Chinese immigration, but was reinforced during subsequent waves of Japanese and Korean immigration. Many women who were not prostitutes, such as second wives, concubines, and picture brides, were nonetheless perceived as prostitutes because they did not fit in the American framework of marriage, as defined by consent, free choice, and monogamy. The virulent attacks levied by lawmakers, journalists, doctors, and the American public against the evils of prostitution ultimately paved the way for state and federal laws that precluded the immigration of prostitutes. Since all Asian immigrant women were suspected of prostitution unless they could prove otherwise, regulation to exclude prostitutes ultimately affected all Asian women and prevented a large number of them from immigrating.

The view of Asian women as prostitutes and sexual slaves was drilled into the national consciousness and ultimately fed into the perception of Asian women as inherently sexual and subservient. This perception contributed to, and was bolstered by, the connection between prostitution and American military occupation in Asian countries.

I. Military Prostitution

The stereotypes and conceptions around which early American immigration laws were formed were based on the perception of Chinese women as prostitutes who posed a moral and physical threat to the nation. While the early assumptions that all Chinese, and subsequently other Asian, women were prostitutes have lingered in the American consciousness until today, it is primarily the attention given to prostitution in U.S. military bases in Asia that created a further association between Asian female bodies and sex work.

Asian women have been the most visible icons of U.S. military-prostitution. During their time in American-occupied territory in Asia, American soldiers often developed strong perceptions of Asian women as prostitutes, bargirls, and geishas. These perceptions perpetrated the stereotype of Asian women as servicing and serving men. Many Hollywood films and television shows about the wars in Asia portray Asian women as prostitutes or bar girls. For example, The World of Suzie Wong portrays Suzie Wong, a prostitute working in a bar filled with U.S. sailors and local Hong Kong women. Other movies that portray Asian prostitutes and American soldiers include The Teahouse of the August Moon, which is about U.S. forces on Japanese Okinawa Island in the late 1940s and Cry for Happy, which portrays American soldiers living in a Geisha house in Japan. The portrayals of Asian women as prostitutes serving American troops have influenced the way in which Americans currently think of Asian women.

The military involvement in the Philippines, Korea, and Vietnam encouraged the development of a local sex industry to serve American troops. Until 1991, the United States maintained two significant military bases in Philippines. The sex industry constituted the most significant economic activity near the bases. A survey in the 1990s estimated that 55,000 prostitutes worked in Angeles and Olongapo, two cities near military bases. Olongapo had 330 bars, massage parlors, and entertainment establishments where hospitality girls worked.

The existence of the sex industry on military bases was also present in Korea and Vietnam. During the Korean War, about 300 Korean women were confined to a warehouse in Seoul and used at will by American forces. Trucks would come onto American bases, transporting a few hundred women who would stay the night. Even after the end of the Korean War, prostitution remained rampant around U.S. military bases. In the 1990s, there were approximately 18,000 registered women working in bars near U.S. bases, as well as about 9,000 unregistered prostitutes. The large numbers show the effect that the military activity in Korea had on the boom of prostitution as an industry.

As it had during the Korean War, the sex industry flourished during the Vietnam War. Throughout the War, Thailand was officially designated as a rest and recreation . . . site for American troops, and prostitution thrived. As a result, Thailand gained a reputation as a destination for sexual recreation, and after the war ended the sex services industry reoriented itself toward civilian clients. This contributed to a robust international sex industry focused on bringing American and European men to countries in Asia.

After the end of military activities in Asian countries, the military sex industry shifted to a sex tourism industry. In this international sex industry, foreign women are often represented as a contrast to the women in the men's home country. Asian women are promoted as exotic, sexually available, and subservient. In advertisements, the sex tourism industry emphasized the exotic and compliant nature of Asian women and their racial and sexual differences from women in the consumers' home countries. To promote its services, one organization's advertisement emphasized that, Asian women are without desire for emancipation, but full of warm sensuality and the softness of velvet. In stressing the difference between Asian women and women at home, the advertisement solidifies the perception of Asian women as sexual and docile. These images are consistent with earlier images of Asian women promulgated as a means of highlighting their difference from American women and threat to the American nation. Now, the same images of Asian women as sexualized and submissive are being used to make them attractive to consumers of sexual services.

Thus, nineteenth century views about Asian female immigrants as prostitutes and sexual slaves were reinforced during the twentieth century military occupations and wars in Asia as a result of the flourishing sex industry that serviced American troops. Perceptions of Asian women as sexual and docile were further promulgated through the representation of Asian women in film and television, portraying Asian women serving and servicing American troops in Japan, Korea, Vietnam, and the Philippines. These notions about Asian women, once used to exclude them from immigrating to the United States, are now being promoted by the international sex industry and mail order bride industry to attract customers.

I. Exclusion Based on Race and Morality

The perception of Asian women as prostitutes, and thereby a physical and moral threat to the nation, has impacted American immigration law since the 1800s. American society, including journalists, religious leaders, politicians, and the medical profession, all worried about the corrupting effects that Chinese immigration, especially the immigration of Chinese women, would have on the nation. Due to this strong concern, lawmakers and courts zealously attempted to curb the immigration of Chinese women. Such efforts focused on both moral and racial arguments to exclude the Chinese from America.

Early immigration cases demonstrate how lawmakers and courts tried to exclude Asian women as prostitutes or public charges. Other cases, barring Asians from naturalization, pitted Asians in opposition to white American citizens, showcasing the different cultural values of each group. An unfortunate legacy of these cases rests in the moral, gendered, and race-based judgments used to exclude immigrants. These moral and gender-based frameworks, grounded originally in the attempt to exclude Chinese immigrants and based on the perception of Asian female immigrants as prostitutes, are still used today to regulate immigration and citizenship. This section will focus on the moral and racial arguments used to limit immigration, beginning in the late 1800s.

A. Act to Prevent Kidnapping and Importation of Mongolian, Chinese, and Japanese Females

The early focus on exclusion came from California, where the majority of Asian immigrants had settled. As a result of the fear of the destructiveness of Asian prostitution and sexual slavery, in 1870 California passed an Act to Prevent Kidnapping and Importation of Mongolian, Chinese, and Japanese Females for Criminal or Demoralizing Purposes. As part of the Act, any Asian woman immigrating to California needed to obtain a license confirming her voluntary desire to migrate and validating that she possessed correct habits and good character. The law presumed guilt and it was the responsibility of the individual woman to prove she was not a prostitute. By targeting women and classifying them as prostitutes or otherwise debauched, California found a way to exclude a large number of Chinese immigrants. This Act was amended in 1874 to apply generally to immigrants, requiring a five-hundred-dollar bond for any immigrant who was a lewd or debauched woman.

The 1874 Act was put to use in August 1874, when a steamship from Hong Kong with 89 Chinese women docked in San Francisco. The State Commissioner of Immigration questioned the women on board and concluded that 22 of the women had immigrated for immoral purposes, so they were detained at the port on grounds of prostitution. The Commissioner determined that the women were prostitutes based on their demeanor, manner of dress, and responses about their marital status. A former missionary to China observed that the style of dress these women wore was similar to the style of dress that courtesans wore in China. Several other missionaries, Chinese merchants, and male passengers gave contradictory opinions about whether it was possible to identify Chinese prostitutes by inspecting their looks and clothing. The women were jailed, but the Ninth Circuit reversed the detention basing its decision on the Burlingame Treaty, the Fourteenth Amendment, and federal preemption of state laws regulating immigration. This case shows how much discretion immigration officials had to determine a woman's good character and truthfulness based on her demeanor, look, and clothing. It stands as an early example of the power given to the commissioner to perceive and judge the acceptability of immigrant subjects regardless of the way in which the immigrants presented themselves. Immigrant women were always under suspicion of being prostitutes, unless they proved otherwise, and their moral character was judged by Western standards and perceptions.

B. The Page Law

Up until this point, immigration exclusion was handled on a state level, with California leading the charge against Chinese immigration. This changed in 1875 when the federal government passed the first restrictive federal immigration statute: An Act Supplementary to the Acts in Relation to Immigration, also known as the Page Law. This law prohibited entry for Chinese, Japanese, and Mongolian workers, prostitutes, and felons. Its goal was to end immigration of cheap Chinese labor and immoral Chinese women. The law required U.S. consular officials to examine all Asian immigrants at their port of departure to assess whether any immigrant had entered into a contract for lewd and immoral purposes. The focus on prostitution may have been essentially a smoke screen, using the rhetoric of morality as a way to avoid legal and political scrutiny. Through a ban on prostitution, the law aimed to prevent all Chinese women from immigrating to the United States. By using language about protecting marriage and sexual purity, the Page Law was able to achieve the otherwise prohibited exclusion of Chinese women.

Due to the widespread suspicion that all Chinese women were engaged in prostitution, the immigration of Chinese women became much more limited after the Page Law was enacted. From 1876 to 1882, the number of Chinese women entering the United States decreased 68 percent as compared to the previous seven years. Even the U.S. Consul to Hong Kong admitted that all women would ultimately be excluded based on a fear that they were prostitutes, remarking, [i] t is a useless and superfluous task for me to undertake to investigate the character of female emigrants and to grant them passports which are treated as nullities in San Francisco on the mere presumption that every Chinese woman is a prostitute. Here, the government itself admitted that it treated all Chinese women as prostitutes, presuming they were inadmissible unless they could prove otherwise. This meant that even though the laws were facially narrowly tailored to exclude only prostitutes, they were applied in an overly broad manner in such a way that all Chinese women were essentially inadmissible.

As a result of the perception that all Chinese women were prostitutes, even married women were suspect. Thus, entry to the United States was only possible after a subjective determination by a U.S. consular official or immigration officer that the female immigrant had not come for lewd or immoral purposes. Not even proof of a marriage was enough, in and of itself, to convince authorities that a Chinese woman was not a prostitute. This led to concerns that marriages between Chinese women and Chinese American men were used as a cover-up for prostitution. The questioning of the validity of marriages is still present in immigration law today, as evidenced by the Immigration Marriage Fraud Amendments.

After passage of the Page Law, anti-Chinese forces continued to advocate for an end to cheap Chinese labor. As discussed earlier, Congress set up the 1876 Joint Special Committee to investigate the effects of Chinese immigration. As a result of the committee's findings, President Hayes appointed a commission to renegotiate the 1868 Burlington Treaty, which called for open and unrestricted borders between the United States and China. A dramatic shift occurred in 1880, when the Burlingame Treaty was renegotiated to allow the United States to limit immigration of Chinese laborers whose entry would affect American interests or endanger the good order of the country. Even though the United States had already begun excluding Chinese immigrants with the passage of the Page Law in 1875, the renegotiation of the Burlingame Treaty shows that the anti-Chinese sentiment was so strong in the United States that the government felt the need to amend its international agreement with China.

C. The Chinese Exclusion Act

Building upon the changes to the Burlingame Treaty, the anti-Chinese sentiment in the United States culminated in the 1882 Chinese Exclusion Act. Unlike the earlier Page Law, the Exclusion Act restricted immigration based on a person's race and occupation, without regard to the morality of their conduct. The Act excluded all laborers arriving from China, except those that had resided in the United States since 1880. The Act made exceptions for merchants, students, teachers, and tourists. In addition, the Act barred any state or federal court from allowing a Chinese person to naturalize as a citizen of the United States. Ultimately, the Chinese Exclusion Act was successful in reducing Chinese immigration to the United States.

The Exclusion Act led to particular complications for Chinese immigrant women. Here again, their marriages came under scrutiny by government officials. Because women's exclusion under the Act was directly linked to their marital status, immigration officials and courts scrutinized the validity of Chinese women's marriages. Often, Western marriage norms based on notions of informed consent, free choice, monogamy, and love dictated the validity of these marriages. At least two Chinese marriages were concluded to be invalid based on these norms. In one marriage, there was a large age gap between husband and wife, which was considered improper by Western standards, and in another case the court considered whether a marriage between spouses who had never met could be valid, and ultimately decided such a marriage was invalid.

Under the Chinese Exclusion Act, Chinese women took on the same status as their husbands, regardless of their own occupation. Thus, the wife of a Chinese laborer took on laborer status, even though she herself was not a laborer, and therefore she was excluded from entry without the proper certificate. Officials were more likely to believe that a Chinese woman was a merchant's wife, and therefore not excluded by the Exclusion Act, if she possessed fine clothing, a respectable manner, and, especially bound feet. Just as with the earlier Page Law, women's conduct and appearance were used as proof of their status as wives of merchants, wives of laborers, or prostitutes.

The Exclusion Act made no mention of U.S.-born Chinese women who had left the country and attempted to re-enter. Therefore, immigration officers and courts had to determine how to approach their requests to enter the country. Treatment of such women was inconsistent and became increasingly less favorable. In one case, two U.S.-born Chinese women were denied re-entry to the United States by immigration officials, but were subsequently allowed entry into the country by courts. However, in later years, Chinese women who claimed U.S. birth did not fare as well. Many were detained and denied entry into the United States because of discrepancies between their testimonies and witness statements during hearings. Similarly, wives of U.S.-born Chinese men were allowed to enter the United States because they took on the same status as their husbands, and thus should have been treated as American citizens. However, many women claiming to be the wives of U.S.-born Chinese men were turned away at the port for discrepancy in their testimony or as a result of having a dangerous disease. Again, women's claim of marriage was not always enough to overcome the presumption of marriage fraud.

To further prevent the entry of Chinese immigrants, the Chinese Exclusion Act was strengthened in 1884 to exclude laborers of Chinese decent coming from any foreign country, not just from China. The Scott Act of 1888 went even further by prohibiting entry of all Chinese laborers, including U.S. residents who had left the country. This prevented Chinese men already residing in the United States from going to China to marry or to have children with their wives living in China. That same year, amendments to the Chinese Exclusion Act allowed only teachers, students, merchants, and travelers to enter the United States. The Exclusion Act was renewed several times and then extended indefinitely, but it was ultimately repealed in 1943. This proliferation of legislation in the late 1800s and early 1900s shows the furor with which the United States sought to exclude Chinese immigrants.

D. The Immigration Act

In addition to the Exclusion Act, the United States simultaneously enacted new immigration laws that sought to tighten borders and restrict the immigration of undesirable foreigners. Unlike the Chinese Exclusion Act, which excluded based on race and occupation, the immigration laws passed in 1891, 1903, and 1907 excluded based on the conduct of the intended immigrant, with a specific focus on excluding prostitutes and other morally questionable women.

First, the 1891 Immigration Act regulated the immigration of criminals, paupers, the insane, and those with contagious diseases. The 1891 Act also excluded women on moral grounds, including sexual misdeeds such as adultery, fornication, and illegitimate pregnancy. Later, the 1903 Immigration Act excluded all prostitutes from entering the United States. Furthermore, in 1907, prostitution became a ground for deporting women already in the United States. Specifically, the 1907 Immigration Act made female immigrants deportable if they were found an inmate of a house of prostitution or practicing prostitution, at any time within three years after she shall have entered the United States. This provision was used to deport women who had entered the United States legitimately and were later suspected of prostitution. The 1907 Act also criminalized transporting women for prostitution or any other immoral purpose. This provision was intended to address situations where it was unclear whether the women in question were either wives or prostitutes, such as concubines, mistresses, second wives, and women in arranged marriages.

The first case in which the 1907 law was applied involved Loue Shee, a Chinese woman, who came to the United States as a wife of a U.S.-born Chinese man. Loue Shee was deported for prostitution despite the fact that she was legitimately admitted as the wife of an American citizen. Under the same 1907 Immigration Act, Li A. Sim, a wife and mother of U.S. citizens, was deported in 1912 for being found in a house of prostitution. The court concluded that because she was involved in prostitution, she had lost the legal protections afforded to her by her marriage to an American citizen. Other women were also deported for prostitution although they claimed U.S. citizenship by birth or were married to U.S. citizens. The status of American citizenship and the legal protections of marriage were not enough to keep a suspected prostitute in the United States, even if she had entered the country legally. The shift from simply excluding prostitutes from entry to then deporting prostitutes even once they had entered the United States shows the extent of the government's attempt to exclude foreign prostitutes from the national polity.

The 1907 Immigration Act was not enforced exclusively against Asian women. In 1907, John Bitty, an American citizen, attempted to bring his mistress from England to the United States. Bitty was charged with violating the 1907 Act. In the case against him, the Supreme Court equated his mistress with a prostitute and concluded that, [t] he lives and example of such persons [prostitutes] are in hostility to the idea of the family as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony . . . Congress, no doubt, proceeded on the ground that contact with society on the part of alien women leading such lives would be hurtful to the cause of sound private and public morality and to the general well-being of the people. The Court noted that prostitutes, particularly alien prostitutes, were a threat to American moral values and even a physical threat to the American people. By extension, Chinese women who were all thought to be prostitutes, were all a threat to the nation. Again, the Western notion of marriage as a Christian monogamous union is used as a measure by which to judge the validity of other relationships. Thus, Bitty's relationship with his mistress was considered morally flawed and antithetical to American moral values.

To further curb prostitution, Congress passed the White Slave Traffic Act (Mann Act) in 1910. The Mann Act made it a crime to transport any woman across state lines for the purposes of prostitution or debauchery. The Mann Act also extended the length of time after entry to the United States during which an immigrant could subsequently be deported for violation of the Act.

Unlike the earlier Immigration Acts that focused solely on morality of conduct of immigrants, the 1917 Immigration Act not only further excluded foreigners based on morality of conduct, but also race. The Act created an Asiatic Barred Zone, excluding Asian immigrants from countries such as India, Burma, Siam, Malay, Arabia, Afghanistan, Russia, and Polynesia.

As a way to further exclude foreign women, the 1917 Immigration Act allowed immigration officials to deport women suspected of prostitution after nothing more than an executive hearing, leaving women without recourse to judicial hearings. The Act also expanded the reasons for which women could be deported (such as working at a place of amusement or resort habitually frequented by prostitutes). As a result of fear of fraudulent marriages between foreign prostitutes and American citizens, the 1917 Act did not allow a woman to naturalize if she married a citizen soon after the woman's arrest for prostitution.

Extending the Asiatic Barred Zone, the 1924 Immigration Act excluded almost all Asians from entering the United States. By excluding all aliens who were ineligible to citizenship, the 1924 Act essentially made all Asians ineligible to enter because Asians still could not naturalize.

However, in 1943, the government changed its official policy toward the Chinese, as a result of foreign policy concerns during the Second World War. The 1943 Magnuson Act repealed the Chinese Exclusion Act; it allowed Chinese to become naturalized citizens and established a quota of 100 Chinese immigrants per year. A 1946 amendment to the Magnuson Act exempted Chinese wives of U.S. citizens from the annual immigration quota and also allowed Filipinos and Indians to naturalize. An earlier law, the War Brides Act of 1945, which allowed some foreign wives and children of American servicemen to enter the United States, was amended in 1947 to include Asian women who married American servicemen.

E. Immigration and Nationality Act

A critical shift occurred in 1952, when Congress enacted the Immigration and Nationality Act (INA), which provided that [t] he right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married. The INA, which is still the law today, removed all racial barriers to naturalization. The law may have been a result of the United States' desire to portray itself as a leading democracy in the post-war period.

The next far-reaching change occurred in 1965, when Congress provided a more inclusive approach to immigration. The 1965 amendments abolished national origin quotas for immigration as well as immigration restrictions relating to Asians. Instead, the Act instituted a new immigration system, with categories based on family status and employment.

Since 1870, laws seeking to exclude immigrants have used race and morality as categories by which to judge immigrants. Even though current immigration laws no longer exclude immigrants based on their race, the laws still focus on morality and conduct, excluding individuals who have committed crimes of moral turpitude or who do not exhibit the requisite good moral character while also invalidating marriages that are not entered into in good faith.

III. Marriage in Immigration and Citizenship

As outlined above, the first immigration regulations distinguished people based on their race and morality of conduct (especially the morality of female immigrants). The laws excluded certain immigrants who were considered a threat to the nation because of their moral character and culture, which were at odds with American values. Women's ability to immigrate was especially based on judgments about their moral character, which was in large part affected by their marital status. In many cases, women were only eligible to immigrate based on their marriage to a man who was eligible to enter the United States. Unmarried women were often excluded as prostitutes, while married women were also oftentimes excluded if they could not prove the validity of the marriage that would have made them eligible to immigrate. Definitions and conceptions of marriage, as applied by immigration officials and courts, were therefore integral to the development of immigration policy.

Gender and marriage also played important roles in laws pertaining to citizenship. [C] itizenship is a distinctive form of social classification that colors personal standing in any community . . . and expresses belonging. Similarly, marriage is also a civil status . . . that has a powerful impact on personal identity. By regulating marriage and privileging certain relationships, a nation can create and control its demographics. For example, there is a long history in the United States of antimiscegenation laws, which invalidated or criminalized marriages that crossed racial boundaries.

Even today, marriage continues to be an important factor in immigration policy. Officials still evaluate the legitimacy of marriages through judgments about what constitutes a proper marriage. This policy privileges some types of marriages over others, thereby allowing certain people to immigrate or gain citizenship, while excluding others based solely on a Western conception of marriage. This is especially apparent in the context of IMBRA, where regulations are imposed based on a couple's decision to enter into a marriage through an international marriage broker.

A. History of Marriage and U.S. Citizenship

The emphasis on marriage in immigration, naturalization, and citizenship has generally had a greater impact on the status of women than that of men. In the nineteenth century, under the doctrine of coverture, a married woman's identity was merged with that of her husband. In such a relationship, the husband was the primary decision maker and possessor of rights. Following the doctrine of coverture, women's citizenship in the United States was ultimately determined by their husbands' citizenship.

At the founding of the American nation, women's nationality was not affected by their marriages. American women who married noncitizens did not lose their U.S. citizenship as a result of the marriage. A Supreme Court decision in 1830 confirmed that marriage to a foreigner did not negate an American woman's citizenship. Similarly, foreign women's citizenship was not affected by their marriages to American citizens. This changed in 1855 when Congress granted American citizenship to any alien woman who married a U.S. citizen male. The Congressional debates about the 1855 Act included a remark that, by the act of marriage itself the political character of the wife shall at once conform to the political character of the husband. A woman's marriage to an American became an act of political consent to the U.S. nation state. However, the privilege of citizenship through marriage was only granted to women who could naturalize under existing laws. The Naturalization Act of 1790 limited naturalization to free white persons. As a result of the Naturalization Act, until 1870 only free white women could attain citizenship when they married American citizens. Other foreign women, such as Chinese, could not attain citizenship through their marriage to American citizens.

While the 1855 Act defined which women could join the American nation, the 1907 Expatriation Act clearly delineated which women were not welcome as American citizens and it marked a shift in the relationship between American women's citizenship and marriage. The Expatriation Act provided that any female U.S. citizen who married a foreigner was stripped of her U.S. citizenship. This proved to be a significant problem for women who became stateless when their husband's country of citizenship did not automatically grant the woman citizenship as a result of her marriage, or when they married men who had lost their citizenship. The Expatriation Act especially affected U.S.-born Asian women who married noncitizens, because they lost their citizenship and could not regain American citizenship through naturalization even after their marriage ended because they became aliens ineligible to citizenship under the Naturalization Act. In some cases, this forced Asian women to choose between American citizenship and marriage.

The reasons given for the Expatriation Act included the danger posed by dual nationality and the goal of bringing American law in line with that of other countries. The U.S. Supreme Court opined that marriages between American women and foreigners might bring the government into embarrassments and, it may be, into controversies. However, the provision seems harshly punitive and specifically designed to punish American women by stripping them of their citizenship if they married foreigners. One member of Congress charged that women who married foreign dukes and counts . . . when there are enough Americans for them to select from had only themselves to blame for their loss of citizenship. Because the Expatriation Act punished American women who married foreign men, the Act can be compared to state antimiscegenation laws, which prevented individuals from marrying outside their own race. Through the Expatriation Act, Congress was effectively stating its disapproval of marriages between American women and foreign men.

An important change relating to women's citizenship came with the 1922 Cable Act, which partially repealed the Expatriation Act. The Cable Act made some women's citizenship independent of their husbands' status. No female citizen could lose her U.S. citizenship as a result of her marriage to an alien as long as her foreign husband was racially eligible to become a citizen. To correct the effects of the Expatriation Act, the Cable Act also provided that women who had lost their American citizenship as a result of their marriage to a noncitizen prior to 1922 could naturalize if their husbands were racially eligible for citizenship and if they themselves were eligible for citizenship. However, this only ended expatriation of white or black women married to white or black men.

While the Cable Act corrected some wrongs of the Expatriation Act, the Cable Act did not help any women married to aliens who were ineligible to citizenship. Any such woman would cease to be an American citizen upon marriage to an alien, and she could not regain her citizenship without renouncing her marriage. This provision mostly affected U.S.-born Asian women who married foreign-born Asian men, although some white women also married foreign-born Asian men and lost their U.S. citizenship. For example, a congressional delegate from Hawaii testified that about 80,000 Asian women would be unable to regain American citizenship after their expatriation as a result of their marriages to Asian men. In addition, it was presumed that women who lived abroad during their marriage had renounced their citizenship.

The Cable Act also affected foreign women's citizenship. As a result of the Act, no alien woman could automatically acquire citizenship simply by marriage to an American or by the naturalization of her husband. The Cable Act provided that the marriage gave these women the right to petition for naturalization, but even if they acquired U.S. citizenship by marriage, they lost their citizenship if they divorced or in the event that their husbands died. Alien women ineligible to citizenship still could not gain U.S. citizenship, even if they married a U.S. citizen. Thus, these foreign wives of American citizens were still subject to deportation and exclusion under immigration laws.

As a result of lobbying efforts by women's groups and Asian American organizations, the Cable Act was amended. The 1930 amendment simplified the naturalization process for women who were eligible to citizenship but had lost their citizenship as a result of their marriage under the earlier version of the Cable Act.

Another amendment to the Cable Act in 1931 allowed women who had lost their American citizenship as a result of their marriage to a foreigner ineligible for citizenship to regain it through naturalization. The 1931 amendment further provided that any woman who was born a U.S. citizen, but had lost citizenship because of her marriage, would not be disallowed to naturalize because of her race, even if she otherwise would be racially barred from naturalization. This was the first action by Congress since 1870 that repealed a racial barrier to citizenship. Racial barriers were further rescinded through the 1932 amendment to the Cable Act, which extended birthright citizenship to women born in Hawaii before 1900, regardless of their race.

Further allowing marriage to affect immigration and citizenship, the War Brides Act was enacted in 1945 to expedite the admission of alien spouses and minor children of U.S. Armed Forces into the United States by providing them nonquota immigrant status. At the outset, Asian women could not take advantage of the War Brides Act, because the 1924 Immigration Act categorized them as racially ineligible for both immigration and naturalization. A 1947 amendment to the War Brides Act allowed Asian wives of U.S. servicemen to immigrate. Many of the first women to take advantage of the 1947 amendment were Chinese women married to Chinese American servicemen. Japanese and Korean women also immigrated to the United States as a result of the military occupation of Japan and the Korean War, which resulted in many marriages to American servicemen.

These laws illustrate that since the mid-nineteenth century women's citizenship has been inextricably tied to marriage. For American women, the choice of whom to marry affected their citizenship status. Women were penalized for marrying foreign men through the loss of their birthright citizenship. For noncitizen women, marriage afforded them an opportunity to gain citizenship, although race-based restrictions still affected the ability of some women to naturalize. The same military occupations and wars that highlighted and reinforced the perception of the sexualized and submissive Asian woman also ultimately opened the channels for Asian wives of U.S. servicemen to immigrate and gain citizenship.

B. Modern Immigration and Naturalization: Privileging and Shaping Marriage

The regulation of sex, morality, marriage, and the family is at the root of much of U.S. immigration law. Starting with the 1875 Page Act, federal immigration law has defined and shaped marriages based on Western morals and values. Today, marriage continues to be an important factor in decisions concerning immigration and naturalization. Not only are certain marriages privileged, but couples shape their marriages in a way that comports with American notions of a valid marriage, even if that notion deviates from that couple's cultural norm. Judgments about a valid marriage inform IMBRA's regulations, which only affect marriages that are perceived to deviate from Western norms of marriage based on the notions of free choice and consent.

In 1965, with the enactment of the Immigration and Nationality Act (INA), marriage played an even more important role in immigration and naturalization as family-based visas became the principal means of immigration. In 2005, around 300,000 immigrants gained residence as spouses of U.S. citizens and legal permanent residents (LPR). The rationales for family-based visas include the notions that American citizens have an interest in forming families, both with citizens and noncitizens. American citizens also have the right to exercise their own citizenship by passing it along to others. Marriage indicates that a person is member of the American community because through marriage, the American citizen demonstrates their close ties to their spouse, whom they have chosen to include in the American community. Marriage, in this sense, is evidence of cultural assimilation, as the spouse of a U.S. citizen is perceived as likely to adopt American values.

Since 1965, marriage has become a significant way in which individuals can immigrate to the United States or gain American citizenship. Moreover, marriage to a citizen or LPR can help qualify the spouse for an exception or waiver if they are denied entry on certain grounds. As such, marriage has become more important for Congress to regulate. Immigration law, in essence, burdens American citizens wishing to marry aliens in a way they would not be burdened if they married a fellow American citizen. Immigration law is thus being used to regulate the marriages (and by extension, the family) of U.S. citizens. Today's regulations hark back to previous immigration laws that once stripped American women of their citizenship based on their decisions to marry noncitizen men.

One such regulatory burden requires U.S. citizens to fill out an affidavit of support demonstrating that they can support their noncitizen spouse at an annual income that is not less than 125% of the federal poverty line. Here, Congress regulates marriage by creating a permanent financial obligation to support a spouse, which does not apply to marriages between two American citizens.

Another burden imposed on American citizens and their foreign spouse is that in order for the noncitizen spouse to naturalize, the couple must prove that their marriage meets the standards for a valid marriage based on Western norms, regardless of what marriage means to that particular couple. Any decision about the validity of a marriage requires a judgment about what constitutes a proper marriage. Legal documentation of a marriage does not suffice. As outlined in the INS regulations that accompany the Immigration Marriage Fraud Amendments (IMFA) of 1986, a couple may demonstrate the legitimacy of their marriage through--among other factors-- joint ownership of property, comingling of finances, and children. These hallmarks of a good faith marriage by American standards do not comport with marriages in other countries, or even some marriages in America. For example, not all married couples share bank accounts, own property jointly, or choose to procreate. However, because of these benchmarks of a legitimate marriage under IMFA standards, immigrants are often pressured to self-police their marriages, crafting the types of marriages they think will pass immigration interviews. Immigration officials and courts continue to use cultural norms and stereotypes of marriage, privileging and promoting certain marriages over others.

Under the definition of a good faith marriage, the beneficiary spouse must enter the marriage with the intention of establishing a life together, and not for immigration benefits. The beneficiary spouse is under suspicion of immigration fraud until proven innocent. This is reminiscent of nineteenth century immigration policies, which presumed that all Asian females seeking to immigrate to the United States were prostitutes, unless they could prove their good moral character and voluntary immigration before being admitted to the United States.

In assessing the good faith of a marriage, the beneficiary's motives for entering the marriage are questioned, but not the sponsor's motives. While the absence of immigration-related motives on the beneficiary's part is enough to establish a good faith marriage, the sponsor may have married the beneficiary to get free domestic labor or a free sex partner. When the beneficiary is singled out for the good faith test, it suggests that motives based on gaining citizenship are deemed worse than the desire to acquire free labor or sex.

Marriage has been used since 1885 as a means of granting or denying American citizenship. Coupled with notions about race, laws surrounding marriage and citizenship were complex and changed often in the early 1900s. In 1965, marriage became an important means through which women could immigrate to the United States and naturalize as American citizens. Thus, assessing the validity of marriages became an extremely important issue for Congress, immigration officials, and courts. Especially after concerns were raised that many marriages were in fact fraudulent, Congress passed the IMFA, which judges marriage based on Western norms. Certain types of marriages between American citizens and foreigners still arouse suspicion, even though such marriages would not be regulated if both spouses were American citizens. Judgments about the legitimacy of certain marriages between American citizens and foreign spouses, along with concerns about potential for abuse in such relationships, ultimately led to the enactment of IMBRA.

IV. International Marriage Broker Regulation Act

A. Goals of IMBRA

The International Marriage Broker Regulation Act of 2005 was enacted to protect noncitizens who meet and marry U.S. citizens through marriage brokers and internet dating services. IMBRA provides noncitizens certain information about their U.S. citizen spouse, their rights, and resources for victims of violence. The purported reason for the Act was to prevent violence against women after two widely publicized stories involving citizen men who had murdered their foreign wives whom they met through IMBs.

In effect, though, IMBRA burdens American men who choose to meet women through IMBs, forces couples to conduct their courtship and marriage in ways determined by Congress, and yet does not regulate men who may use other dating services, even though they may be as likely to perpetrate violence. While attempting to protect foreign women, Congress is in fact making it more difficult for them to immigrate to the United States through the added burdens it is placing on the men who would sponsor them.

B. International Marriage Brokers

There are nearly 500 IMBs operating in the United States. According to a 1998 study commissioned by the Immigration and Naturalization Service (INS), the number of mail-order marriages range from 4,000 to 6,000 a year.

The IMB's websites contain the names, contact information, biographical information, and pictures of the prospective brides. Women undergo an initial screening process and then brokers select the women who will appear on the website. Men must purchase information from the IMB to contact any women whom they want to meet. IMBs may also offer customers guided tours to a foreign country to meet women.

The INS concluded that there was considerable potential for abuse in such marriages and that mail-order brides might become victims of international trafficking. Study results showed that immigrant women suffer more severe abuse, at rates that are about three times higher than in the general U.S. population. Tahirih Justice Center, an immigrant women's organization, claims that a foreign woman recruited by IMBs is more susceptive to abuse because she lacks the opportunity to get to know her potential spouse, she may speak limited English, and she may not know about rights in the United States or the resources available. Additional potential for abuse arises because men who use IMBs may have expectations of docile, subservient, or submissive women. While there is no national statistic reflecting prevalence of abuse in brokered marriages, one study showed that in 2005, convicted sex offenders filed 91 fiancée visa petitions. It was as a result of the potential for abuse in these marriages that Congress decided to regulate IMBs.

A counter-argument claims that no concrete data exists proving that such unions are more likely to result in domestic violence or homicide than other marriages. According to a 2003 study by the Centers for Disease Control, nearly 1,300 women die as a result of intimate partner violence each year in the United States. However, since 1993 there were only three reported cases of women married to American citizens through IMBs who died as a result of domestic violence. Those marriages arranged through IMBs each year account for only 0.004 percent of all marriages in the U.S. Some argue that because a very limited amount of data exists on domestic violence in IMB-arranged marriages, the requirements of IMBRA are unjustified and disproportionate to the actual problem of abuse.

C. Clients of IMBs

An INS survey found that most men who use IMBs are white, educated, economically successful, and politically conservative. The men are usually in their mid- to late thirties and primarily from metropolitan areas. Many seek younger, submissive wives with traditional values. According to Dr. Gladys Symons of the University of Calgary, men are searching for women who will be dependent on them and submissive.

It is estimated that over 200,000 women use IMBs to find husbands. These women are predominantly under the age of 26. Many are from countries where women are oppressed, where they have few educational or professional opportunities, and where violence against women is condoned. A majority of the women using IMBs are from Asian countries or from the former Soviet Union. According to a Senate hearing in 2004, the countries with the highest number of mail order brides to immigrate to the United States were Russia, Ukraine, China, the Philippines, Vietnam, Thailand, Brazil, Colombia and Costa Rica.

D. Depictions of Women

As discussed above, Orientalist ideology and fears about immigration led anti-Chinese forces to portray Asian women as sexualized and slave-like, and therefore a moral and physical threat to the nation. The statutory emphasis on the exclusion of Chinese prostitutes propagated the stereotype of Asian women as sexual objects and as slaves. These stereotypes persisted into the modern era as a result of U.S. military presence in Asia, which led to military-prostitution and further contributed to the objectification and sexualization of the Asian female body. This image of Asian women has been portrayed and perpetuated in film and other media. These stereotypes of Asian women promote the selling, buying, and possession of the Asian body.

IMBs perpetuate this stereotype by presenting Asian women as sexual and subservient. On the IMB websites, the foreign women are contrasted against American women, who are characterized as career-focused. For example, one IMB advertisement states, In the Philippines wives are very loyal house wives . . . [a] nd the Filipina believes that men must have regular sexual activity . . . . She is there, among other things, to be a provider of quality sex.

Another website touts its loving Asian girls. Yet another claims, women in Asia are brought up to be family-oriented. . . . perfectly happy to be a homemaker than to have a career. The Japanese American Citizens League expressed concerns that the advertising used by mail order bride companies reinforce[s] negative sexual and racial stereotypes of Asian women.

The IMB industry perpetuates and exploits the stereotype of Asian women as sexual and docile in an effort to entice Western men to meet and marry Asian women. The same characteristics that once made them unfit for immigration to the United States now make Asian women the ideal spouses for American men searching for a traditional relationship.

E. Misuse of IMBs

Some IMBs are connected to commercial sex trafficking operations, pornography, prostitution, or domestic servitude. This connection is one of the reasons that Congress feared for the abusive potential of relationships formed through IMBs and thus chose to regulate them through IMBRA.

Men sometimes spend thousands of dollars to obtain a wife through an IMB. Because the men use money and power to secure their brides, the image of . . . wife-as-prostitute is inevitable, especially when the men themselves declare, it was cheaper to get an Asian wife than to get an Australian prostitute. Sex tourism, prostitution, and IMBs are interconnected forms of sexual exploitation, where women are for purchase. Men's expectations of servitude are easily camouflaged as traditional family values which posit the wife as a mother, caregiver, and homemaker, without a career of her own. This poses a real problem for potential abuse and violence in the relationship, especially if the expectations of the male consumers are not met.

F. Regulations of IMBRA

Concerns over misuse of IMBs, along with the potential for abuse in marriages formed through IMBs, prompted Congress to regulate the industry. While the language of the Act is gender neutral, it is clear from the legislative history and the fact that IMBRA was enacted as part of VAWA that its main intent is to protect foreign women from U.S. men. IMBRA is based on the assumption that once provided with the necessary information, foreign women will be able to make more educated choices about marriage and will be less likely to end up with abusive husbands. IMBRA provides foreign women with information about the criminal history of the American male clients of IMBs, as well as about the rights and resources available to domestic violence victims in the United States.

To protect foreign women, the Act imposes regulations on IMBs and the men who use them. IMBRA regulates IMBs by prohibiting them from profiling women younger than 18 years of age. Furthermore, the Act requires IMBs to search federal and state public sex offender registries for information on each U.S. client. The IMB must also provide the foreign woman with additional criminal and marital background information that the IMB has collected from the U.S. client. Lastly, the IMB must advise the foreign woman in her language of rights and resources available to victims of domestic violence and obtain written consent to release her contact information to specific U.S. clients.

In order to advise women of their rights and resources, the Act requires the Department of Homeland Security to create pamphlets, to be distributed by IMBs to the female in her native language. The pamphlet must include information about the visa application process; the illegality of domestic violence and sexual assault; services for domestic violence survivors; the legal rights of immigrants subject to abuse; the obligations of parents to provide child support; the definition of marriage fraud and the penalties for such fraud; and a warning about potential abuse by the American spouse.

IMBRA imposes regulations not just on the IMBs, but also on the American clients of IMBs. The American client must provide documentation of criminal history, including arrests related to substances or alcohol; any court orders restricting physical contact with another person; any arrests or convictions of homicide, murder, manslaughter, assault, battery, domestic violence, rape, sexual assault, child abuse, and stalking; and any arrests or convictions for prostitution or attempting to procure prostitutes. The U.S. citizen must also provide a personal history including a record of any previous marriages, whether he has previously sponsored fiancé(e)s or spouses, the ages of all minor children, and a list of previous states of residence since the age of 18. IMBRA further restricts U.S. citizens from simultaneously seeking visas for multiple fiancé(e)s and provides a lifetime cap of two fiancé(e) visas per U.S. petitioner (subject to waiver), with no less than two years between the filing of petitions.

G. Exceptions to IMBRA

The regulations imposed by IMBRA do not apply to all dating services. There are two exceptions to IMBRA. The first exemption applies to dating services that do not provide international dating services between U.S. citizens and foreign nationals as their primary business. To qualify for the exemption, the dating service must charge comparable rates for men and women and offer comparable services to all individuals. The second exemption is for traditional cultural or religious matchmaking organizations that operate on a non-profit basis. While these two types of organizations are exempt from IMBRA's coverage, any foreign women who use these services and decide to marry an American citizen still receive criminal background information on U.S. citizen sponsors during the visa process and also receive information about their legal rights and resources in the United States.

Congress may have differentiated IMBs from other dating services because the IMBs' model, which establishes the male as a consumer and female as a commodity, places women at greater risk for abuse. However, upon closer examination, exempted organizations may put women at just as great a risk for abuse as IMBs.

Thus, these exemptions are problematic. For example, why might a South Asian man looking for a traditional South Asian wife be any less violent than a white American who wants the same thing? The exemption may exist because lawmakers and immigration officials may be more likely to suspect marriage fraud if members of a couple are racially or ethnically distinct from each other. Therefore, IMB marriages are perceived as more suspect than marriages arranged through cultural or religious services, because the spouses are usually of different races or ethnicity.

The exemption for cultural and religious organizations highlights that deference is given to unions of persons of the same cultural background, regardless of the motives of the sponsoring spouse. If two people meet through a cultural or religious service or through a service that caters domestically, they are less regulated than two people who meet through an IMB. This proves that couples are more suspect when they are from different racial or ethnic backgrounds, one is not a U.S. citizen, and they are not paying equally for the dating service. This suspicion is based on historical fears of foreign women as a corrupting and diseased force, the association of prostitution as coerced sexual slavery, the disdain for marriage to a noncitizen, and Western notions of marriage premised on free choice and consent.

H. Implementation of IMBRA

One problematic aspect of IMBRA's implementation is the government's failure to implement its provisions for at least two years after it was enacted. While the burdens on American citizens and IMBs were in place, the government agencies responsible for implementing IMBRA failed to ensure that information being collected from the IMBs and their American clients was being properly analyzed and distributed to foreign women in such a way as to protect them from potential abuse.

In a 2008 study, the Government Accountability Office found that agencies had only implemented some of the Act's requirements. The Department of State had failed to mail a copy of approved petitions to each beneficiary, increasing the chances that beneficiaries were deprived of relevant information about the American citizen. U.S. Citizenship and Immigration Services (USCIS) had not been checking all petitions to determine if an American petitioner had previously filed a fiancé(e) petition. USCIS had also not been notifying beneficiaries if the petitioner was filing a third petition within 10 years of the first petition. In addition, the government had not provided beneficiaries with pamphlets discussing the visa application process and the available resources for victims of domestic violence. The pamphlet had not been finalized, translated, or distributed. As a result, beneficiaries were left without all the information required by IMBRA and were therefore unable to protect themselves from potential abuse.

It is disheartening that after more than two years, the one component of the Act that would provide the most important protection for foreign women-- information about their rights and domestic violence resources in the United States--had not been implemented. If the government aimed to help women, rather than regulate men, it should have focused immediately on implementing these requirements.

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.


The International Marriage Broker Regulation Act marks a shift in the law by recognizing gender subordination and it is an important means of protecting women from abuse. However, IMBRA remains rooted in the larger scheme of immigration and citizenship laws that have determined the inclusion or exclusion of women from the national polity.

While regulating IMBs and American citizens to protect noncitizen women from abuse, the Act is influenced by a long history of immigration regulation based on moral judgments about race, gender, sexuality, and marriage. No reading of the laws regulating immigration is complete without taking into account broader historical, cultural, and political trends. The regulations have been influenced by historic notions of foreign women as prostitutes and morally suspect; laws that punished U.S. citizens who married noncitizens; and judgments about the legitimacy of certain types of marriage. The Act privileges relationships between people who are of the same cultural background, both American citizens, and who pay equally for dating services. Thus, the regulations privilege certain relationships, while discouraging others that do not comport with Western norms. Examining the unconscious of IMBRA allows us to situate the Act as part of a larger historical discourse and thus better understand the Act's means and method of regulation.

. J.D., Harvard Law School, 2010