US facilitating forced marriage of children: Immigration loophole invoked hundreds of times each year

US facilitating forced marriage of children: Immigration loophole invoked hundreds of times each year
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The AHA Foundation informed the Senate Homeland Security and Government Affairs Committee a year ago about a loophole in immigration law that recognizes the marriages of children as young as 14 years old for immigration purposes.

These marriages are arranged to provide the alien spouses with a basis for obtaining visas they can use to enter the United States as lawful permanent residents, leaving young girls trapped in marriages that have been described as a form of slavery.

When the Committee asked U.S. Citizenship and Immigration Services (USCIS) about this, USCIS Director L. Francis Cissna confirmed in a letter dated October 4, 2018, that there are no statutory age requirements associated with a visa petition for a spouse or fiancé.

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USCIS, however, will not approve the petition if the beneficiary or the petitioner was not old enough to marry under the laws of the place where the marriage was performed, or a marriage at that age violates the public policy of the American state in which the couple intends to reside.

Most states do not have a minimum age for marriage if the child has parental or judicial consent, but USCIS admitted at a Committee staff briefing that visa petitioners do not have to prove parental or judicial consent.  However, the instructions for a fiancé petition require evidence that the couple met in-person within the last two years, unless doing so violates religious customs or social practices.

Delaware and New Jersey are the only states that prohibit marriage for anyone under the age of 18 with no exceptions.

The United Nations Population Fund says that child marriage is a human rights violation.  It threatens girls’ lives and health, and it limits their future prospects. Girls who marry while they are still children often become pregnant while still adolescents, which increases the risk of complications in pregnancy and childbirth. This is the leading cause of death for older adolescent girls.

U.S. policy on child marriages

Section 1207(a) of the Violence Against Women Reauthorization Act of 2013 amended the Trafficking Victims Protection Act of 2000 to require the Secretary of State to establish and implement a strategy to prevent child marriages.

The State Department designs and implements interventions to prevent child marriages and to address the needs of married children in regions and situations where the practice is most prevalent.

This includes the establishment of an Office of Global Women's Issues that fights child marriage and other gender-based discrimination across the globe.

Other reasons to oppose child marriages

The Supreme Court’s decision in Esquivel-Quintana v. Sessions indicates that forced marriage with a child under the age of 16 which includes sexual intercourse, may constitute “sexual abuse of a minor” for immigration purposes.  Children that young are below the age of consent.  The Court left open the question of whether circumstances could warrant the same conclusion when the child is over the age of 16.

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The sham marriage provision in section 204(c) of the INA prohibits the granting of a visa petition that is based on a marriage entered into for the purpose of evading the immigration laws, which is likely to be the case when the child is very young and her spouse is much older.

Section 275(c) of the INA provides that, “An individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.”

According to the Anti-slavery organization, child marriage is slavery if the child did not give free and informed consent to the marriage; is forced to engage in non-consensual sexual relations; or is unable to leave or end the marriage.

UNICEF, says that child marriage is in decline around the world, but approximately 650 million girls and women alive in July 2018, were married before their 18th birthday.

Committee’s report

On January 11, 2019, the Committee released a majority staff report titled, “How the U.S. Immigration System Encourages Child Marriages,” which includes the following findings:

  • USCIS approved immigration petitions for 8,686 spouses and fiancé in marriages involving minors from fiscal 2007 to fiscal 2017.  This included relationships with significant age differences, such as a 71-year-old citizen’s petition for a 17-year-old spouse from Guatemala, and a 14-year-old’s petition for a 48-year-old spouse from Jamaica;
  • USCIS approved 149 petitions involving a minor with an adult spouse or fiancé who was more than 40 years old; and
  • USCIS awarded green cards to a total of 4,749 minors on the basis of spousal or fiancé visas between fiscal 2007 and fiscal 2017. 

The decision on whether to issue a visa, however, is made by the State Department.  USCIS does not know how many of the 8,686 petitions it approved resulted in the issuance of a visa, but only 2.6 percent of the petitions were returned for further consideration.

The only effective way to end this despicable exploitation of young girls to obtain an American visa is to prohibit adults from obtaining immigration benefits on the basis of a child marriage. 

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.