Brooklyn Law Review


U.S. immigration laws provide special protections, benefits, and forms of relief for children. They also provide certain marriage-based benefits and exclusions. However, the most common definitions of “child” in the Immigration and Nationality Act make the existence of a married child into a legal impossibility. In other words, married children are variously treated as either married adults or unmarried children. This article analyzes the treatment of married minors in the immigration system in three contexts: as beneficiaries of spousal petitions; as petitioners for spouses, parents, and siblings; and as beneficiaries of parent-sponsored petitions. The analysis reveals that married minors are typically treated indistinguishably from married adults; and when they are treated as children, it is often to their detriment. The article attempts to explain why this is so by exploring the assumptions about dependency, marriage, and the family that underlie the immigration laws’ constructions of children and women. These longstanding assumptions are based on stereotypes about women and foreign cultures that are considered offensive to modern sensibilities, and impose a double burden on married minors, most of whom are female. The current, haphazard treatment of married minors under our immigration laws suggests that lawmakers have not seriously considered this group of potential immigrants. Reforming the law’s treatment of married minor children in the family-based immigration system is a first step toward incorporating a critical child-centered perspective into the immigration laws. In an era of unprecedented child migration to the United States and an upward trend in the number of child marriages globally, immigration laws should reflect a contemporary understanding of childhood.