Hostname: page-component-848d4c4894-75dct Total loading time: 0 Render date: 2024-06-12T03:47:56.120Z Has data issue: false hasContentIssue false
  • English
  • Français

From a Spouse to a Citizen: The Gendered and Sexualized Path to Citizenship for Marriage Migrants in South Korea

Published online by Cambridge University Press:  01 January 2024

Nora Hui-Jung Kim  and
Hyemee Kim
Get access Rights & Permissions [Opens in a new window]

Abstract

Morality has been a key factor in naturalization. However, defining what constitutes good moral character has never been specified, leaving interpretation of the good moral character requirement to the discretion of immigration officials and judges. Based on an analysis of court cases filed by marriage migrants, this article expands our understanding of the legal interpretation of the “good morality” requirement in two significant ways. First, by examining the nature of the morality requirements applied to marriage migrants applying for citizenship, we identify that controlling sexual morality is one of the key mechanisms of gendering the path to legal citizenship. Second, our analysis questions the fairness of the judicial rulings and shows that judges are not reliable allies for immigrant spouses. South Korean judges tend to show great deference to the administrative branch and rarely rule against the decisions of the immigration officials. Further, the rulings tend to follow cultural and gendered, rather than legal, understanding of “good” wives and husbands. Ultimately, in the case of South Korea we show that that marriage migrant moral jurisprudence deviates from the developing jurisprudence that decriminalizes intimate choices and challenges the traditional gender roles within a family.

Type
Articles
Information
Law & Society Review , Volume 54 , Issue 2 , June 2020 , pp. 423 - 452
Copyright
© 2020 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

This research was supported by grants from Incheon National University (grant #2016-2184).

References

Abrams, Kerry. 2007. “Immigration Law and the Regulation of Marriage.” Minnesota Law Rev. 91: 1625–709.Google Scholar
Abrams, Kerry. 2012. “Marriage Fraud.” California Law Rev. 100: 1–67.Google Scholar
Abrams, Kerry and Brooks, Peter. 2009. “Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation.” Yale J. of Law and the Humanities 21: 1–35.Google Scholar
Aleinikoff, T. Alexander. 2002. Semblances of Sovereignty. The Constitution, the State, and American Citizenship. Cambridge, MA: Harvard Univ. Press.CrossRefGoogle Scholar
Augstine-Adamas, Kif. 2000. “Gendered States: A Comparative Construction of Citizenship and Nation.” Virginia J. of International Law 41: 94–139.Google Scholar
Bonjour, Saskia and de Hart, Betty. 2013. “A Proper Wife, a Proper Marriage: Constructions of ‘Us’ and ‘Them’ in Dutch Family Migration Policy.” European J. of Women's Studies 20: 61–76.CrossRefGoogle Scholar
Bredbenner, Candice. 1998. A Nationality of her Own: Women, Marriage, and the Law of Citizenship. Berkeley, CA: Univ. of California Press.Google Scholar
Charles, Patrick J. 2010. “The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: An Historical Perspective.” Texas Rev. of Law & Politics 15: 61–126.Google Scholar
Chin, Jennifer and Hassan, Zeenat. 2015. “As Respected as a Citizen of Old Rome: Assessing Good Moral Character in the Age of National Security.” Univ. of California Irvine Law Rev. 5: 945–72.Google Scholar
Cho, John (Song Pae). 2009. “The Wedding Banquet Revisited: ‘Contract Marriages’ between Korean Gays and Lesbians.” Anthropological Quarterly 82: 401–22.Google Scholar
Constable, Nicole. 2003. Romance on a Global Stage. Pen Pals, Virtual Ethnography, and “Mail Order” Marriages. Berkeley, CA: Univ. of California Press.CrossRefGoogle Scholar
Cott, Nancy. 1998. “Marriage and Women's Citizenship in the United States, 1830–1934.” The American Historical Rev. 103: 1440–74.CrossRefGoogle Scholar
Dubler, Ariela R. 2006. “Immoral Purposes: Marriage and the Genus of Illicit Sex.” The Yale Law J. 115: 756–812.CrossRefGoogle Scholar
Eggebø, Helga. 2013. “A Real Marriage? Applying for Marriage Migration to Norway.” J. of Ethnic and Migration Studies 39: 773–89.CrossRefGoogle Scholar
Firstenberg, Noga. 2011. “Marriage and Morality: Examining the International Marriage Broker Regulation Act.” Asian American Law J. 18: 83–130.Google Scholar
Foblets, Marie-Claire and Vanheule, Dirk. 2006. “Marriages of Convenience in Belgium: The Punitive Approach Gains Ground in Migration Law.” European J. of Migration and Law 8: 263–80.Google Scholar
Frank, David John, Bayliss, J. C., and Boutcher, Steven A. 2010. “Worldwide Trends in the Criminal Regulation of Sex, 1945 to 2005.” American Sociological Rev. 75: 867–93.CrossRefGoogle Scholar
Freeman, Caren. 2011. Making and Faking Kinship. Marriage and Labor Migration between China and South Korea. Ithaca, NY: Cornell Univ. Press.Google Scholar
Friedman, Sara L. 2015. Exceptional States. Chinese Immigrants and Taiwanese Sovereignty. Oakland, CA: Univ. of California Press.Google Scholar
Friedman, Sara L. 2010. “Determining ‘Truth’ at the Border: Immigration Interviews, Chinese Martial Migrants, and Taiwan's Sovereignty Dilemmas.” Citizenship Studies 14: 167–83.CrossRefGoogle Scholar
Gardner, Martha. 2005. The Qualities of a Citizen: Women, Immigration, and Citizenship, 1870–1965. Princeton, NJ: Princeton Univ. Press.CrossRefGoogle Scholar
Gedalof, Irene. 2007. “Unhomely Homes: Women, Family and Belonging in UK Discourses of Migration and Asylum.” J. of Ethnic and Migration Studies 33: 77–94.CrossRefGoogle Scholar
Giddens, Anthony. 1992. The Transformation of Intimacy. Sexuality, Love and Eroticism in Modern Societies. Stanford, CA: Stanford Univ. Press.Google Scholar
Gilboy, Janet A. 1991. “Deciding Who Gets in: Decisionmaking by Immigration Inspectors.” Law and Society Rev. 25: 571–600.CrossRefGoogle Scholar
Gordon, Susan M. 2007. “Integrating Immigrants: Morality and Loyalty in US Naturalization Practice.” Citizenship Studies 11: 367–82.CrossRefGoogle Scholar
He, Xin and Ng, Kwai. 2013. “Pragmatic Discourse and Gender Inequality in China.” Law and Society Rev. 47: 279–310.CrossRefGoogle Scholar
Heyman, Josiah Mc C. 1995. “Putting Power in the Anthropology of Bureaucracy: The Immigration and Naturalization Service at the Mexico-United States Border.” Current Anthropology 36: 261–87.Google Scholar
Hull, Kathleen E. 2006. Same-Sex Marriage. The Cultural Politics of Love and Law. New York, NY: Cambridge Univ. Press.CrossRefGoogle Scholar
Johnson, Kevin R. 1993. “Judicial Acquiescence to the Executive Branch's Pursuit of Foreign Policy and Domestic Agendas in Immigration Matters: The Case of the Haitian Asylum-Seekers.” Georgetown Immigration Law J. 7: 1–37.Google Scholar
Jones, James A. 1997. “The Immigration Marriage Fraud Amendments: Sham Marriages or Sham Legislation?” Florida State Univ. Law Rev. 24: 679–701.Google Scholar
Joppke, Christian. 1998. “Why Liberal States Accept Unwanted Immigration.” World Politics 50: 266–93.CrossRefGoogle Scholar
Joppke, Christian. 2010. Citizenship and Immigration. Cambridge, UK: Polity Press.Google Scholar
Kawar, Leila. 2011. “Legal Mobilization on the Terrain of the State: Creating a Field of Immigrant Rights Lawyering in France and the United States.” Law and Social Inquiry 36: 354–87.CrossRefGoogle Scholar
Kendall, Laurel. 1996. Getting Married in Korea. Of Gender, Morality, and Modernity. Berkeley, CA: Univ. of California Press.CrossRefGoogle Scholar
Kim, Andrew Eungi. 2009. “Global Migration and South Korea: Foreign Workers, Foreign Brides and the Making of a Multicultural Society.” Ethnic and Racial Studies 32: 70–92.CrossRefGoogle Scholar
Kim, Jaeun. 2011. “Establishing Identity: Documents, Performance, and Biometric Information in Immigration Proceedings.” Law and Social Inquiry 36: 760–86.CrossRefGoogle Scholar
Kim, Ji-Young. 2015. Equal Rights for Foreigners. Publication No. 2015-A-9. Seoul, South Korea: Constitutional Research Institute.Google Scholar
Kim, Minjeong. 2013. “Citizenship Projects for Marriage Migrants in South Korea: Intersecting Motherhood with Ethnicity and Class.” Social Politics 20: 455–81.CrossRefGoogle Scholar
Kim, Nora Hui-Jung. 2016. “The Janus-Face Court of Naturalization: Marriage and Kinship in Naturalization Litigation in South Korea.” J. of Ethnic and Migration Studies 42: 1536–57.CrossRefGoogle Scholar
Korea Immigration Service. Ministry of Justice. 2017. KIS Statistics 2016. Seoul, South Korea: Korea Immigration Service.Google Scholar
Lan, Pei Chan. 2008. “Migrant Women's Bodies as Boundary Markers: Reproductive Crisis and Sexual Control in the Ethnic Frontiers of Taiwan.” Signs 33: 833–61.CrossRefGoogle Scholar
Lapp, Kevin. 2012. “Reforming the Good Moral Character Requirement for U.S. Citizenship.” New York University Public Law and Legal Theory Working Papers. Paper 270, 1–67.Google Scholar
Lee, Catherine. 2010. “Where the Danger Lies: Race, Gender, and Chinese and Japanese Exclusion in the United States, 1870–1924.” Sociological Forum 25: 248–71.Google Scholar
Lee, Catherine. 2014. “Nationality Law: Global Trends and the Korean Situation Observed through the Citizenship Policy Index.” Korean J. of Law and Society 46: 425–68 (in Korean).Google Scholar
Lee, Chul Woo. 2003. “‘US’ and ‘Them’ in Korean law: the creation, accommodation and exclusion of outsiders in South Korea,” in Rosett, Arthur, Cheng, Lucie, & Woo, Margaret Y. K., eds., East Asian law: universal norms and local cultures. London and New York: Routledge Curzon.Google Scholar
Lee, Hye-Kyung. 2008. “International Marriage and the State in South Korea: Focusing on Governmental Policy.” Citizenship Studies 12: 107–23.CrossRefGoogle Scholar
Leinonen, Johanna and Pellander, Saara. 2014. “Court Decisions over Marriage Migration in Finland: A Problem with Transnational Family Ties.” J. of Ethnic and Migration Studies 40: 1488–506.CrossRefGoogle Scholar
Luibheid, Eithne. 1998. “‘Looking like a Lesbian’: The Organization of Sexual Monitoring at the United States-Mexican Border.” J. of the History of Sexuality 8: 477–506.Google Scholar
Martin, David A. 1983. “Due Process and the Treatment of Aliens.” Univ. of Pittsburgh Law Rev. 44: 165–235.Google Scholar
Minter, Shannon. 1993. “Sodomy and Public Morality Offense under U.S. Immigration Law: Penalizing Lesbian and Gay Identity.” Cornell International Law J. 26: 771–818.Google Scholar
Moyce, David. 1986. “Petitioning on Behalf of an Alien Spouse: Due Process under the Immigration Law.” California Law Rev. 74: 1747–76.CrossRefGoogle Scholar
Munday, Jennie. 2009. “Gendered Citizenship.” Sociology Compass 3: 249–66.CrossRefGoogle Scholar
Murray, Melissa. 2008. “Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life.” Iowa Law Rev. 94: 1253–313.Google Scholar
Myrdahl, Eileen Muller. 2010. “Legislating Love: Norwegian Family Reunification Law as a Racial Project.” Social & Cultural Geography 11: 103–16.Google Scholar
Narayan, Uma. 1995. “‘Male-Order’ Brides: Immigrant Women, Domestic Violence and Immigration Law.” Hypatia 10: 104–19.CrossRefGoogle Scholar
Näre, Lena. 2014. “Moral Encounters: Drawing Boundaries of Class, Sexuality and Migrancy in Paid Domestic Work.” Ethnic and Racial Studies 37: 363–80.CrossRefGoogle Scholar
Nicolosi, Ann Marie. 2001. “We Do Not Want our Girls to Marry Foreigners: Gender, Race, and American Citizenship.” NWSA J. 13: 1–21.Google Scholar
Palmer, John R.B., Yale-Loehr, Stephen W., and Cronin, Elizabeth. 2005. “Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review.” Cornell Law School Legal Studies Research Paper Series, Paper No. 05-022, 1–93.Google Scholar
Plischke, Elmer. 1939. “‘Good Moral Character’ in the Nationalization Law of the United States.” Marquette Law Rev. 23: 117–24.Google Scholar
Rhode, Debora L. 2017. “Virtue and the Law: The Good Moral Character Requirement in Occupational Licensing, Bar Regulation, and Immigration Proceedings.” Law and Social Inquiry 43: 1027–58.Google Scholar
Ruffer, Galya Benarieh. 2011. “Pushed beyond Recognition? The Liberality of Family Reunification Policies in the EU.” J. of Ethnic and Migration Studies 37: 935–51.CrossRefGoogle Scholar
Salcido, Olivia and Menjívar, Cecilia. 2012. “Gendered Paths to Legal Citizenship: The Case of Latin-American Immigrants in Phoenix, Arizona.” Law and Society Rev. 46: 335–68.CrossRefGoogle Scholar
Satzewich, Vic. 2014. “Visa Officers as Gatekeepers of a State's Borders: The Social Determinants of Discretion in Spousal Sponsorship Cases in Canada.” J. of Ethnic and Migration Studies 40: 1450–69.CrossRefGoogle Scholar
Schmidt, Garbi. 2011. “Law and Identity: Transnational Arranged Marriages and the Boundaries of Danishness.” J. of Ethnic and Migration Studies 37: 257–75.CrossRefGoogle Scholar
Schoenholtz, Andrew I., Ramji-Nogales, Jaya, and Schrag, Philip. 2007. “Refugee Roulette: Disparities in Asylum Adjudication.” Stanford Law Rev. 60: 295–411.Google Scholar
Schuck, Peter. 1984. “The Transformation of Immigration Law.” Columbia Law Rev. 84: 1–90.CrossRefGoogle Scholar
Schuck, Peter and Wang, Theodore Hsien. 1992. “Continuity and Change: Patterns of Immigration Litigation in the Courts, 1979–1990.” Stanford Law Rev. 45: 115–83.CrossRefGoogle Scholar
Soennecken, Dagmar. 2013. “Extending Hospitality? History, Courts, and the Executive.” In Special Issue: Who Belongs? Immigration, Citizenship, and the Constitution of Legality, edited by Sarat, Austin. Emerald Group Publishing.Google Scholar
Song, Jesook. 2010. “A Room of One's Own: The Meaning of Spatial Autonomy for Unmarried Women in Neoliberal South Korea.” Gender, Place & Culture 17: 131–49.CrossRefGoogle Scholar
Stevens, Jacqueline. 1997. “On the Marriage Question.” In Women Transforming Politics: An Alternative Reader, edited by Cohen, Cathy J., Jones, Kathleen B., and Tronto, Joan C. New York: New York Univ. Press.Google Scholar
Strange, Steven L. 1975. “Private Consensual Sexual Conduct and the Good Moral Character Requirement of the Immigration and Nationality Act.” Columbia J. of Transnational Law 14: 357–81.Google Scholar
West, Mark D. 2011. Lovesick Japan. Ithaca, NY: Cornell Univ. Press.Google Scholar
Wray, Helena. 2006. “An Ideal Husband? Marriages of Convenience, Moral Gate-Keeping and Immigration to the UK.” European J. of Migration and Law 8: 303–20.CrossRefGoogle Scholar
Yan, Yunxiang. 2003. Private Life under Socialism. Love, Intimacy, and Family Change in a Chinese Village, 1949–1999. Stanford, CA: Stanford Univ. Press.Google Scholar
Yeoh, Brenda S. A. and Huang, Shirlena. 2010. “Sexualised Politics of Proximities among Female Transnational Migrants in Singapore.” Population, Space and Place 16: 37–49.CrossRefGoogle Scholar