The International Marriage Broker Regulation Act (IMBRA)

---Legally Flawed “Anti-Couple” Legislation Labels U.S. Men Abusers and Hurts Foreign Women Who Seek American Courtship---

Opinion-Editorial by Gary Bala, USA Immigration Attorney

Date: January 16, 2006
----------------------------------------------------
NOTE: Mr. Bala, a member of the American Immigration Lawyers Assn. (AILA) with 24+ years of legal experience, has completed hundreds of family cases, fiancée visas, spousal petitions and consultations. His office is in Pennsylvania. Contact him via E-Mail at: gb@garybala.com
Website: USA Immigration Attorney.com
----------------------------------------------------

After hours on the Saturday before Christmas Weekend 2005, the U.S. House rushed through the final version of a law, H.R. 3402, which will, as a practical matter, effectively shoot down Cupid’s Arrow for many American men (and women) seeking romance and love with a foreign partner.

The International Marriage Broker Regulation Act of 2005 (IMBRA), Public Law No. 109-162, Title VIII, Subtitle D, was passed on a simple but undemocratic “voice vote”, by the Senate on Friday, Dec. 16 and the House on Saturday, Dec. 17, in time to allow lawmakers to return home for the holidays, without any hearings, witness testimony or even review of relevant statistical or empirical evidence, in true "backdoor" fashion.

Many legislators who agreed on the voice vote after a House-Senate Conference probably did not even read the law as it was cleverly attached, by its feminist proponents notably Sen. Maria Cantwell (D-WA), to the back-end of the universally applauded “Violence Against Women and Department of Justice Reauthorization Act of 2005”, signed by the President on January 05, 2006. Most of the law's provisions go into effect in early March 2006.

Let’s be crystal clear that NO ONE is against protection of women and children from deadly and vicious attacks at the hand of spouses who may be violent offenders. Yes, we all agree and should indeed work hard and imaginatively to combat this wicked evil in our society.

Keeping the picture in perspective

First off, let’s keep the topic which is the subject of this law - abuse protection for immigrant women entering the U.S. on K Visas – in true perspective.

Almost 50,000 people are killed every year in motor vehicle accidents in the U.S., per National Highway Traffic Safety Administration, Fatality Analysis Reporting System (FARS). There are over 1 million violent crimes in the U.S. each year, per FBI: Violent Crime in the U.S. Over 5 million incidents of “Intimate Partner Violence” are reported annually in the U.S., according to the CDC, National Center for Injury Prevention and Control. Yet, contrasted with these massive numbers, what can be said to be the actual number of reported deaths and serious injury to immigrant women in inter-cultural marriages to warrant special new legislation in this area vs. others?

The burden is on the proponents of any new law purporting to address this issue of immigrant women deaths and serious injuries to come forward with a statistic and number, from a documented source, to justify any special new regulation and enforcement. This, they have not done. In fact, CBS News (July 05, 2003) reports that "no firm statistics exist on the extent of abuse suffered by mail-order brides..."

Thus, under the present state of the record, it cannot be concluded that any new federal law was even necessary, above existing protections. What we do know for sure is that, in fact, the genesis of this law can be traced to media reports of but two (2) cases, though very serious, from Washington State: 1. Anastasia King from one of the Russian states, and 2. Susanna Blackwell from the Philippines, who were both murdered by their husbands who petitioned for their K Visas. This is compared with what the legacy INS in 1999 estimated is between 4000 and 6000 marriages each year between inter-cultural couples from international matchmaking organizations, in their "Mail Order Bride Report".

Moreover, among such inter-cultural couples, informal tentative studies suggest that, on average, marriage longevity rates are significantly higher and divorce rates significantly lower than for domestic marriages. See Our Internal Office Study (March 2005): "Marriage Longevity Rates 2000-2005 for
Latina-American 'International Romance' Marriages".

The law’s laudable purpose, yet dubious and even destructive practical consequences

Preventing and limiting potential for domestic violence abuse is indeed a laudable goal.

This law tries to further that purpose by requiring the disclosure of certain mandatory information from a U.S. citizen (mostly men), primarily about their criminal and domestic violence history, who want to file for a K Visa, or pursue romance options through a romance company, so that the foreign client (mostly women) can make an informed choice to pursue the relationship or not.

In fact, the provisions of this law requiring U.S. citizen petitioners for K Visas to submit criminal and domestic violence history information and records to the U.S. government is probably a good thing. As are the provisions which require the U.S. Consulates to conduct intensive background checks of the petitioners and share that information in the K Visa applicant’s primary language, together with domestic violence help information, at time of the Consular visa interview.

Law enforcement and consular databases in the electronic age probably make Uncle Sam best suited for this investigative task anyway. And the distributing of this information to the K Visa applicants BY THE U.S. GOVERNMENT and BEFORE the applicant receives the visa, will ensure that that information has maximum relevant impact from the most credible actor, if it is in fact needed. (Most K Visa applicants are foreign fiancees who under current regulation are allowed to join their American citizen gentleman to finalize and conclude a marriage here in the U.S.)

The real problem of this law is found in the provisions in Section 833(d) pertaining to the requirements imposed on “International Marriage Brokers”, private companies which range from correspondence only to full-blown matchmakers for U.S. clients (usually gentlemen) and foreign clients (usually women).

These provisions mandate private brokers to secure from U.S. clients the same extensive criminal and domestic violence background information as the Consulates, AND THEN to translate and provide the information to a potential foreign client, AND THEN to obtain from her a signed, written consent BEFORE allowing her personal contact information to be released to the U.S. client. In other words, this information release and paperwork is a condition for the couple to even begin to communicate or even just say “Hi.”

Take a look at the extensive nature of some of the information at issue:

— Any arrest or conviction for crimes ranging from "homicide" to "child neglect", NOT making any distinctions between any arrest or those arrests not resulting in conviction or differentiating between recent and old arrests or convictions;

— Any arrest or conviction related to controlled substances, alcohol or prostitution, again making no distinction on arrests not leading to conviction or on the age of arrests or convictions;

— Any arrest or conviction for "similar activity in violation of Federal, State or local criminal law" without specifying what "similar" means;

— Any family court orders, including temporary restraining orders, which are often not difficult to procure in many states;
— Every state and country of the U.S. client’s residence since the age of 18;

— Current or previous marriages, and how and when they were terminated;

— Ages of children under age 18;

Most romance agencies and companies are realistically dealing with hundreds and thousands of U.S. clients, and hundreds and thousands of foreign clients as well.

It is obvious that it will be commercially prohibitive and physically impossible for most agencies and companies to begin to comply with these onerous and punitive requirements as a condition of doing business. They will be forced from business or driven overseas or offshore. U.S. clients will have fewer customer choices and options for overseas romance. And foreign clients abroad will have fewer choices and options to communicate with U.S. clients.

In short, “international romance” is the real casualty, and the couples pursuing it, are the true losers.

The “anti-male” and “anti-couple” bias of this law

The feminist advocates of this law, including reportedly Bo Cooper, former INS General Counsel who sits on the feminist Tahirih Justice Center, successfully pushed this law by showcasing and vilifying the practices of seedy and distasteful “bad guy” international agencies: a very few unethical and criminal companies who are operating as fronts for human trafficking, the sex tourism trade and child prostitution. To help address some of these illicit activities, President Bush this month signed "The Trafficking Victims Protection Reauthorization Act of 2005", with stiff new penalties for trafficking offenses.

This new IMBRA law however misses the mark. It basically punishes all men regardless of their background (good, bad and indifferent) by “branding” them all abusers, as Wendy McElroy put it in her recent "iFeminist" Op-Ed piece at Fox News:

See: Mail Order Bride Law Brands All American Men Abusers

It forces U.S. client men to prove that they are NOT abusers to just say “Hi” to a woman abroad in a romance agency. Under the guise of protecting foreign women against men with possible domestic violence records, it inhibits and prevents any real romance communication before it can even begin, thus punishing men for being men, and killing a potential couple’s romantic courtship before it even can start.

In layperson’s language, how will this new law affect me as a U.S. gentleman seeking love abroad?

Some of the things which this new law means for you are:

*You must submit a world of personal and confidential information to a private agency if you wish to communicate with a foreign woman for possible friendship and romance, including criminal and domestic violence background (even if you have no such record);

*You must wait until the information is translated to her primary language and is provided to her and she signs a written consent for you to receive her “personal contact information”;

*You must supply the same personal information if you file for a K Visa (fiancée or spousal visa);

*You are effectively limited to three (3) fiancée or spousal visas, unless you can get a special “waiver”;

*You will likely pay more as a customer and have fewer options in foreign romance, since there will likely be less agencies willing and able to remain in business because of the onerous and even punitive documentary requirements.

In lawyer’s language, what are some of the legal and constitutional flaws?

Here’s a summary of some of this law’s flaws, in legal language:

*Undemocratic stealth nature of the law's passage: No opportunity to be heard, no hearings held, no witness testimony, no statistical evidence considered comparing or evaluating domestic vs. foreign marriages, divorces, or domestic violence incidents;

*"Chilling" of First Amendment free speech and free association rights of U.S. citizen gentlemen who only wish to simply communicate with women abroad; "Prior restraint" of free speech; "Chilling" of the "unrestricted right to marry" found in the U.N. Human Rights Declaration; the law is also probably “constitutionally overbroad” under the First Amendment since it restricts the rights of U.S. citizens with no criminal or domestic violence records and lumps them with those who do have such a record;

*Infringement of privacy rights of U.S. citizens compelled to disclose mandatory personal data to strangers in order to communicate with women abroad;

*Equal protection of the laws violations (similarly situated U.S. citizens treated unjustifiably differently): For example, the law requires mandatory disclosure of criminal and other data for communication and dating with women abroad, but not for communication and dating with domestic women; Also, the law requires mandatory disclosure of background info. and background check for filing a K Visa for a foreign woman and Consular interview, but not for local marriage license with a domestic woman;

*Equal protection of the laws of U.S. citizens pursuing K Visa petition process for fiancées and spouses are violated by the law’s requirements for mandatory information disclosure and extended background check, when this law fails to require the same for U.S. citizens pursuing CR-1 residency visa process for spouse;

*Unenforceable and impractical provisions rendering law void - For example there is a provision requiring a Consular Officer interview and documents delivered to the foreign national client in her "primary language", which is probably not realistically possible in certain locations such as the Philippines where many local dialects are spoken;

*Constitutional presumption in criminal cases of "innocent until proven guilty" is reversed in this law by mandatory criminal background disclosure as a condition of communication, thus imposing a presumption of guilt before innocence for gentlemen who simply wish to communicate with a foreign woman;

*Unfairly onerous, punitive and commercially impossible restrictions are imposed on "commercial free speech" rights of companies and businesses to engage in interstate commerce; Also, the "Limitation of Disclosure of Information" on an International Marriage Broker (IMB) preventing release of a woman's personal contact information to person or entity other than a United States client, even if a company wants to comply with the law requirements, unfairly restricts "commercial free speech" of companies and businesses.

*Unfair discriminatory treatment of businesses under the law: For example, the mandatory document collection requirements are imposed on an "International Marriage Broker (IMB)" for the supposed purpose of abuse protection of immigrant women, but certain exceptions are made for non-profit brokers and brokers who do not do international matchmaking, when the potential for abuse is the same. Similarly, these mandatory document collection requirements are imposed on services providing international matchmaking, but no such requirements are imposed on domestic matchmaking services.

Where do we go from here?

Contact your Congressman, Congresslady and Senator and make them own up to the fact that they voted for this flawed law. Many of them do not even know that they voted for it through a “voice vote”, or exactly what they voted for. We can embarrass them into re-considering this bad law.

Tell your friends and neighbors and tell anyone in the media who will listen. Visit Websites and Discussion Forums and sign electronic petitions which are coming online to repeal this pernicious law. There are bound to be legal challenges to this new law, but we don’t need to wait for the courts to rule on this unfair law to make our voices heard.

PLEASE VISIT THIS LINK TO OUR ELECTRONIC
ONLINE PETITION, AND SIGN IT:
Repeal International Marriage Broker Law Petition

FOR MORE ON CONTACTING THE CONGRESS,
CLICK THE BUTTON BELOW: "READ MORE"

» Read More