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Hastings Women’s Law Journal

Abstract

The Immigration and Nationality Act's requirement that proxy marriages be consummated in order to be valid is intrusive, inflexible, and outdated. The case of Hotaru Ferschke illustrates how the consummation requirement creates inequitable results. One month after she married United States Marine Sergeant Ferschke in a proxy wedding ceremony, United States Citizenship and Immigration Services summarily denied her application for legal permanent residency because she did not consummate her proxy marriage, even though she was pregnant when she got married. This Note argues the government has no reasonable interest in dictating whether and when a couple becomes intimate. The consummation requirement not only has anti-Japanese origins, but it contravenes fundamental rights of of marital and individual sexual privacy. Furthermore, provisions already in place to prevent marriage fraud are sufficient to avoid sham proxy marriages. Thus, Congress should repeal the consummation requirement to allow Mrs. Ferschke and other similarly situated spouses to prove to immigration officials that proxy marriages can be valid and bona fide.

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