by Abigail Adu, Associate Member, University of Cincinnati Law Review Vol. 93
I. Introduction
Child marriage is defined as a marriage where at least one or both parties is under eighteen years of age when they enter the marriage.[1] To most people in modern society, the idea of child marriage seems barbaric at worst and antiquated at best. Despite this, as of 2021, only thirteen U.S. states have explicitly banned child marriage.[2] Because child marriage is legal in most states, approximately 300,000 minors were legally married in the United States between 2000 and 2018.[3]
This article will discuss how a loophole in U.S. immigration law allows for the human trafficking and exploitation of minors through child marriage. Part II provides background on family-based immigration law, U.S. Citizenship and Immigration Services, and human trafficking. Part III argues why the United States should recognize the transportation of minors into the U.S. based on a spousal visa as a form of human trafficking and suggests avenues for reform. Finally, Part IV concludes by reaffirming why the United States must hold itself accountable and eradicate child marriage.
II. Background
The structure of family-based immigration was established in 1952 by the Immigration and Nationality Act (“INA”).[4] Family-based immigration is structured around a hierarchy prioritizing spouses and minor children of U.S. citizens.[5] For example, spouses are classified as “immediate relatives” under the INA, meaning they can be admitted without restriction if their petition is approved.[6] If an issue arises during the visa process within family-based immigration, the Board of Immigration Appeals (“BIA”) is the superior administrative body that can interpret and resolve the INA.[7] The BIA has nationwide jurisdiction to hear immigration appeals.[8] A decision by the BIA is binding on all immigration judges unless a federal court or the Attorney General overrules its decision.[9]
A. Obtaining a Spousal Visa
Approval of a spousal visa is a two-step process.[10] First, a U.S. citizen must make a Form I-130 Petition to the U.S. Citizenship and Immigration Services (“USCIS”).[11] If the USCIS approves the petition, the petition is sent to the United States State Department.[12] If the State Department approves, a visa may be issued.[13]
The INA does not have an age requirement for spousal visas.[14] Because of this, minor U.S. citizens can petition for a spousal visa on behalf of an immigrant adult, or adult U.S. citizens can petition on behalf of a minor immigrant spouse.[15] The only situation where the USCIS considers the petitioner’s age at marriage is if the age (1) “violates the laws of the place of celebration” or (2) “violates the public policy of the U.S. state where the couple plans to reside.”[16] The place of celebration rule originates from English common law, and the BIA looks to the laws of the country where the petitioning couple marries if it is outside the U.S.[17] For example, if a minor U.S. citizen and an adult German citizen marry in Germany, and child marriage is legal in Germany, the marriage is valid in the United States.[18]
The BIA has used the public policy standard to deny petitioners for spousal visas involving polyamory, same-sex marriage, and interracial marriage before constitutional protections for the latter two were in place.[19] Despite this, the BIA has not recognized child marriage as a violation of public policy.[20] For example, in In re Agoudamous, the BIA recognized marriage between a fifteen-year-old U.S. citizen and a 21-year-old Greek citizen as valid even though the minimum age of marriage in the state the couple married was 16.[21] The BIA explained that because neither party had taken action to void the marriage, it was valid under immigration law.[22] So, the place of celebration rule is the only true standard the USCIS considers when approving a spousal visa with an underage party.[23]
The USCIS approved approximately 88% of the 8,032 petitions it received for spousal visas involving a minor between 2007 and 2017.[24] In 95% of these petitions, the minor in the marriage was a girl.[25] Most of the minors in the approved visas were seventeen, but some were as young as fourteen.[26] Most immigrants who came to the U.S. based on a spousal visa involving a minor were from the Middle East and South America.[27]
Once a petition is approved through the USCIS, it is sent to the State Department.[28] While the State Department does not have exact numbers for petitions they approve or reject, it rejects less than three percent of the spousal visa petitions approved by the USCIS.[29] The State Department bases its approval of spousal visas on if the parties have a “bona fide intention to marry.”[30] To show a bona fide intention to marry, the petitioner must provide documentation indicating an ongoing marital relationship.[31] Eligible documentation can include documentation indicating a common residence, proof of combined finances, birth certificates showing children of the marriages, or affidavits by third parties indicating their knowledge of the marriage.[32] This list is not exhaustive, meaning that human traffickers need only pass the low bar of providing “relevant documentation” of a marriage to prove a bona fide intention.[33]
Once a beneficiary moves to the U.S. through a spousal visa, they can obtain a green card.[34] The green card will either be a permanent ten-year card or a conditional two-year card.[35] Importantly, if the beneficiary and U.S. citizen divorce less than two years after the beneficiary arrives in the U.S., the beneficiary may be subject to deportation.[36]
B. U.S. Immigration Services Legalizes Human Trafficking through Child Marriages
The lack of a minimum age requirement in the INA creates a “federal loophole” that allows vulnerable children to be coerced into forced marriage through human trafficking.[37] Forced marriage is a marriage where at least one of the parties has not expressed free and informed consent.[38] Because of their age and inability to give informed consent, the U.N. considers all child marriages to be forced marriages.[39] There is a clear interplay between forced marriage and human trafficking, as 30% of those impacted by human trafficking are in forced marriages.[40]
The U.N.’s definition of human trafficking includes the “recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation.”[41] A child is defined as anyone under eighteen years of age.[42] Exploitation includes sexual exploitation and servitude or practices similar to slavery.[43]
1. Sexual Exploitation
Sexual exploitation is the “actual or attempted abuse of a position of vulnerability, power, or trust, for sexual purposes.”[44] Further, the World Health Organization defines any sexual relation with a child below eighteen as sexual exploitation.[45] Because statutory rape laws do not apply when the parties involved are married, child marriage allows for adults to sexually abuse minors.[46] Further, globally, the leading cause of death for girls between fifteen and nineteen is complications during pregnancy and childbirth.[47] Girls who marry under the age of fifteen are also five times as likely to die during pregnancy.[48] Therefore, the INA’s sanction on child marriage allows for the sexual abuse and exploitation of children without repercussions for the adult trafficker but with deadly repercussions for the minor.
2. Slavery or Practices like Slavery
Slavery is defined as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership exercised.”[49] Modern-day slavery involves people who lack autonomy, indicated by psychological, economic, and social dependence.[50]
Children in forced marriages who came to the U.S. through a spousal visa are in slavery-like conditions because they are unable to leave their partners. For example, if a child immigrates to the U.S. through a spousal visa, obtains a temporary green card, then turns eighteen and attempts to divorce their spouse before their green card is renewed, they could face deportation.[51] The threat of deportation may also be used by the oppressors in a child marriage to stop victims from leaving or reporting the abuse they are experiencing.[52]
Even if a child does manage to escape a forced marriage, they have limited legal rights to aid and protect them.[53] Domestic shelters in the U.S. do not always accept unaccompanied minors, and most children cannot file for divorce or seek protective orders on their own.[54] For these reasons, minors who come to the U.S. through spousal visas and are subject to child marriage are being trafficked because they cannot escape their situation.
In most child marriages, the child is forced to marry without their consent.[55] Even if the child does enter the marriage willingly, children lack the required autonomy or maturity to consent to marriage.[56] When girls are placed under male control at a young age, they are often unable to develop an independent sense of self and are conditioned to believe their thoughts and opinions do not matter.[57] Therefore, children forced to marry young can become psychologically dependent on their spouses, which indicates a practice of modern slavery.[58]
Child brides often come from impoverished, rural areas that cannot invest in girls’ educational or economic opportunities.[59] Because of this, child brides are typically undereducated and lack the skills to provide for themselves.[60] This forces victims of child marriage to depend on their spouses to survive, leaving them with no other economically viable options.[61]
Children in forced marriages have little bargaining power.[62] Typically, the minors in child marriage are confined to the house with little outside interaction.[63] Further, if the minor in a child marriage came to the U.S. through a spousal visa, they cannot petition for a visa for their family to immigrate to the U.S. until they are twenty-one years old.[64] This leaves the child socially isolated without any support until they reach twenty-one.[65]
U.S. immigration law sanctions child marriage because it does not have an age requirement within its spousal visa process. Because minors in child marriage are subject to sexual exploitation, are socially isolated, and often depend on their spouses economically and psychologically, they are trapped in the marriage without the resources to escape. Therefore, because these children are trapped within their marriages, the U.S. government has legalized a form of human trafficking.
III. Discussion
The U.S. government does not recognize forced marriages as human trafficking, but instead categorizes forced marriage to a minor as child abuse.[66] Because of this, the U.S. government and immigration system indirectly encourage child and forced marriages. To protect children and stop human trafficking through child marriage, the U.S. government must first take responsibility followed by reform in the INA and USCIS. Lastly, the U.S. should protect victims of child marriage and human trafficking and follow in the U.K.’s footsteps by criminalizing forced marriage.
A. Accountability
The first step in preventing human trafficking through child marriage is accountability. The U.N. recognized that forced marriage is human trafficking in The Protocol, which was adopted by the U.N. and signed by the U.S. in 2000.[67] As a member of the U.N. and bound by the Protocol, the United States should adopt the view of the U.N. that forced marriage is human trafficking because the movement of minors into the country based on a spousal visa subjects minors to exploitation, making them human trafficking victims.[68] By adopting the Protocol’s definition of human trafficking, the U.S. government can take accountability for its part in aiding human trafficking.
B. INA Reform
In addition to taking accountability, the U.S. government must reform the INA. The INA should be amended to raise the minimum age to petition for a spousal visa to eighteen. Raising the INA’s minimum age of marriage to eighteen is consistent with Congress’ other amendments to the INA, which offer broader protections to human trafficking victims.[69] For example, the Violence Against Women Act and the Victims of Trafficking and Violence Protection Act both amended the INA to give protection to women and children immigrants who were being abused by their sponsors. [70]
Raising the minimum age in the INA would also create a bright-line rule for the USCIS. Instead of interpreting spousal visas based on abstract notions of public policy, the USCIS would be obligated to deny petitions for spousal marriages if one of the parties is under eighteen.[71] Therefore, creating an age limit for spousal visas within the INA would be beneficial because it would be consistent with Congress’ prior amendments and hold the USCIS accountable.
C. USCIS Reform
Regardless of whether the minimum age to marry is raised in the INA, there must still be procedural reform within the USCIS process. Currently, the USCIS does not require any sort of in-person meeting or parental consent if a minor is involved in the spousal visa process.[72] This means that predators can easily apply for or benefit from spousal visas involving a minor. If the USCIS implemented a mandatory interview process for spousal visa petitioners, it could better identify predators attempting to traffic children through marriage.
Additionally, the USCIS is a paper-based system.[73] The paper-based system limits the USCIS’ ability to analyze data efficiently because it often requires a manual review of the petitioner and beneficiary’s ages.[74] As a result, the USCIS cannot accurately identify and prevent fraud or trafficking.[75] Therefore, if the government prioritizes updating the USCIS to an electronic system, the USCIS can better analyze and identify fraudulent trafficking schemes.
D. UK-based Reform
England and Wales have deemed forced marriage a crime carrying up to seven years in prison.[76] Additionally, some U.S. states currently recognize forced marriage as a crime.[77] However, while the U.S. government is opposed to forced marriage, there is no federal legislation to prohibit it.[78] The U.S. should follow in the UK’s footsteps by passing federal legislation against forced marriage. This legislation would hold the government accountable for preventing human trafficking in addition to serving as a deterrent against U.S. citizens who wish to traffic children through marriage.
IV. Conclusion
The INA is a federal loophole that allows vulnerable children to be coerced into forced marriage through human trafficking. When children are brought into the U.S. from a different country based on a spousal visa, they are subjected to human trafficking because they are sexually exploited and left without social or economic resources. To combat this issue, the United States must recognize forced marriage as human trafficking, reform its immigration system, and implement additional safeguards for victims. By making these crucial adjustments, the U.S. can take the integral first steps in protecting the fundamental human rights of children.
[1] Forced Marriage. Arranged Marriage. Child marriage., Unchained at last, https://www.unchainedatlast.org/forced-marriage-arranged-marriage-child-marriage/ (last visited Oct. 9, 2024).
[2] United States’ Child Marriage Problem, Unchained at last (Apr. 2021), https://www.unchainedatlast.org/united-states-child-marriage-problem-study-findings-april-2021/.
[3] Id.
[4] Medha D. Makhlouf, Theorizing the Immigrant Child: The Case of Married Minors, 82 Brook. L. Rev. 1603, 1612 (2017).
[5] Id.
[6] Id.
[7] Id. at 1617.
[8] Board of Immigration Appeals, U.S. Dep’t of Just. (Oct. 22, 2024), https://www.justice.gov/eoir/board-of-immigration-appeals.
[9] Id.
[10] Staff of S. Comm. on Homeland Sec. and Gov’t Affairs, 116th Cong., How the U.S. Immigration System Encourages child Marriages, at 2 (Jan. 11, 2019) [hereinafter Staff Report].
[11] Id.
[12] Id.
[13] Id.
[14] Id. at 6.
[15] Id. at 2.
[16] Id. at 6.
[17] Makhlouf, supra note 4, at 1617.
[18] Id.
[19] Id. at 1618-1619.
[20] Id. at 1619.
[21] Id.
[22] Id.
[23] Id. at 1617.
[24] Staff Report, supra note 10, at 11.
[25] Id. at 2.
[26] Id. at 13.
[27] Id. at 16.
[28] Id. at 2.
[29] Id. at 12-13.
[30] 8 U.S.C. § 1184(d)(1).
[31] Instructions for Form I-130 at 7, U.S. Dep’t of Homeland Sec. (Apr. 1, 2024), https://www.uscis.gov/sites/default/files/document/forms/i-130instr.pdf.
[32] Id.
[33] Id.
[34] Marriage Green Card and Divorce, Boundless, https://www.boundless.com/immigration-resources/marriage-green-card-divorce/ (last visited Oct. 9, 2024).
[35] Id.
[36] Id.
[37] Staff Report, supra note 10, at 7.
[38] Child and forced marriage, including in humanitarian settings, United Nations Human Rights Office of the High Commissioner, https://www.ohchr.org/en/women/child-and-forced-marriage-including-humanitarian-settings (last visited Oct. 9, 2024).
[39] Id.
[40] Nicholas Filip, Forced Marriage and Human Trafficking, The Exodus Road (May 26, 2022), https://theexodusroad.com/forced-marriage-and-human-trafficking/.
[41] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, art. 3, G.A. Res. 55/25, U.N. Doc. A/RES/55/25 (Jan. 8, 2001).
[42] Id.
[43] Id.
[44] Sexual Exploitation and Abuse, World Health Organization, https://www.who.int/docs/default-source/documents/ethics/sexual-exploitation-and-abuse-pamphlet-en.pdf?sfvrsn=409b4d89_2#:~:text=Sexual%20exploitation%3A%20Actual%20or%20attempted,the%20sexual%20exploitation%20of%20another (last visited Oct. 9, 2024).
[45] Id.
[46] Hayat Bearat, Caged by a Marriage: How Child Marriages in the United States are Enabled by our Immigration System, 71 Drake L. Rev. 1, 21 (2024).
[47] Marci A. Hamilton, 2020 Report on Child Marriage in the United States at 8, child usa, May 8, 2020 https://childusa.org/wp-content/uploads/2020/04/2020-Report-on-Child-Marriage-in-the-US.pdf.
[48] Id.
[49] What is Forced Labour?, International Labour Organization, https://www.ilo.org/topics/forced-labour-modern-slavery-and-trafficking-persons/what-forced-labour (last visited Oct. 9, 2024).
[50] Id.
[51] Marriage Green Card and Divorce, supra note 34.
[52] Jennifer Ludden, Thousands Of Young Women In U.S. Forced Into Marriage, NPR (Apr. 14, 2015), https://www.npr.org/sections/goatsandsoda/2015/04/14/399337562/thousands-of-young-women-in-u-s-forced-into-marriage.
[53] United States’ Child Marriage Problem, supra note 2.
[54] Id.
[55] Ajwang’ Warria, Forced child marriages as a form of child trafficking, 79 Child. and Youth Serv. Rev. 274, 276 (2017).
[56] Id. at 275.
[57] Id.
[58] Id.
[59] Id. at 276.
[60] Id. at 278.
[61] Id.
[62] Id. at 276.
[63] Id.
[64] Makhlouf, supra note 4, at 1627.
[65] Id.
[66] Filip, supra note 40.
[67] Id.
[68] United Nations Convention against Transnational Organized Crime, Nov. 15, 2000, S. Treaty Doc. No. 108-16, 2225 U.N.T.S. 209.
[69] Bearat, supra note 46, at 37.
[70] Id.
[71] Id. at 18.
[72] Staff Report, supra note 10, at 18.
[73] Id.
[74] Id.
[75] Id. at 19.
[76] Ludden, supra note 52.
[77] Forced Marriage, U.S. Citizenship and Immigration Services, (June 3, 2022), https://www.uscis.gov/humanitarian/forced-marriage#:~:text=In%20some%20U.S.%20states%2C%20forced,violence%2C%20stalking%2C%20or%20coercion
[78] United States’ Child Marriage Problem, supra note 2.
Cover Photo by Joey Kyber on Pexels.
