Reconciling Policies on Sham Marriages and Same-Sex Marriage

Guest blogger: Samantha Tran, second-year law student, University of San Francisco

The Merriam Webster dictionary has no definition for a “sham marriage” so individually the words are defined as:

Sham: something that is not what it purports to be; a spurious imitation; fraud or hoax.

Marriage: (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage.

Not surprisingly, sham has a single definition while within one definition of marriage, there is a dual answer. The current turmoil surrounding the legal definition of marriage illustrated in a reference book’s attempt to provide a general answer. This two-part, seemingly apolitical answer, represents a similar problem in the confused and convoluted nature of visas given on a marriage basis today, especially in the case of “sham marriages.”

Under current immigration law, a sham marriage is a marriage “entered into for the primary purpose of circumventing the immigration laws…” While this seems to be a clear definition, words such as “primary” and “circumventing the immigration laws” seem to purport an idea that anyone whose first priority is to deceive and undermine the immigration system should not benefit from their subterfuge, several questions are still left unanswered. For example, the word “primary” suggests a numerical ranking, that the first purpose of marriage could not be to defraud the government for beneficial immigration results, but does that mean it could be a secondary purpose? If a couple who had lived together for several years decided that it was time to get married for the tax benefits and a fringe benefit would be a spouse would also gain a Green Card, would that satisfy the non-primary purpose of marriage?

I have two friends named Leonard and Penny. I met them through a mutual friend named Sheldon. They seemed like a typical couple; Leonard attends graduate school in the Bay Area while Penny works as a waitress in the South Bay. They both like to attend massive parties known as raves, and their long term goal was to open a shop that caters to other rave enthusiasts. They seemed happy with each other since their long-term goals matched up and no one predicted a break-up in their near future, so I was shocked when Sheldon tells me that Penny recently married someone other than Leonard.

I had seen Leonard and Penny the previous weekend and nothing seemed out of the ordinary so how did she manage to get married in the span of a week? Turns out, Penny married a Vietnamese immigrant named Howard because their families had known each other since they were children, and they wanted their son to continue living in the United States after his visa for education expired. Howard attended boarding school in the United States and then studied engineering in Texas. He never attended school in Vietnam because his parents believed that he would benefit from an American education.

Strangely, his parents also had no goals to eventually immigrate into the United States. They wanted to remain in Vietnam to maintain their businesses. I asked Howard, while Penny and Leonard made plans on how to get Penny and Howard through their immigration interviews, “Do you miss home?” and Howard replied, “I miss my family, but this is my home.” It was strange. While everyone else was having a good time, Leonard and Penny acting like the happy couple that they were, Howard stayed on his phone texting away frantically. I had thought he was texting a girlfriend he later planned to bring to the United States as well but he was texting his parents. He was too stressed out by the immigration process to attempt a relationship with someone else.

The immigration interview went well according to Penny. She claimed that while she waited in the hallway with Howard, she felt like there were people watching, trying to spy and see if they were in the midst of committing fraud so they overcompensated as a couple. Touching, laughing, making plans for the future, they also brought a box filled with letters, pictures, and other evidence. They went on a trip to Lake Tahoe together to mimic a wedding and honeymoon. The pictures clearly conveyed a message of a happy couple while in reality, Leonard was there as well and everyone slept in separate rooms.

Personally, while I understand that what they are doing is illegal, I cannot really see what is wrong with Howard wanting to immigrate here. He never went to school in Vietnam. He missed his family but his home was here. He did not know anything outside of the United States and if marriage is a means of expediting his ability to stay here then power to him. Marriage has lost most of its sanctimonious overtones. California has a divorce rate as high as 70% so I do not understand moral arguments against “sham marriages.”

I continued to try and understand this stigma against “sham marriages” while reading Adams v. Howerton. I nodded along to the seemingly logical reasoning that Congress has been given the most discretion in matters of immigration. I followed the reasoning when the court found that Congress has previously defined marriage to not include same-sex marriage. My personal politics and beliefs aside, Congress’ sentiments in these matters did not surprise me and are well-established in case law, but as I reached the last sentences of the decision, I took pause at these words. “In effect, Congress has determined that preferential status is not warranted for the spouses of homosexual marriages. Perhaps this is because homosexual marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional often prevailing societal mores.” Adams v. Howerton, 673 F.2d 1036 (1982). 

Marriage has been defined as a union between two people, opposite genders or not depending on the state, government or a person’s personal belief. I have yet to find a definition that requires the creation of children as requisite of marriage but in this case, the court voices the possibility that homosexual relationships’ inability to produce children is a reason for an invalidating a marriage. Under this logic, late in life marriages would be considered invalid, reproductively challenged couples would be considered invalid, even couples who simply choose to not have children could all be considered questionable in the validity of their marriage. These marriages do not fit under the definition of a “sham marriage” yet could be under threat of invalidation or are already invalidated through the reasoning of the case. I still do not understand how a marriage made in friendship can be considered a “sham” if their “primary” purpose is not immigration but one to help maintain someone’s home, or a marriage between

same-sex couples is invalid because they are unable to produce children. The lack of clarity or finality when it comes to the definition of words within immigration legislation that must be fixed in order for proper enforcement. Until it is fixed, the courts should be deciding in favor of the people who it affects rather than unevenly punishing them.

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