Boston College Journal of Law & Social Justice, Vol. 32, No. 1 (2012)

Home , Knock and talk

BOSTON COLLEGE JOURNAL OF LAW & SOCIAL JUSTICE

Volume XXXII Winter 2012 Number 1

Preface to Volume 32: Introducing the Boston College Journal of Law & Social Justice

[pages i–vi]

ARTICLES

Islam in the Mind of American Courts: 1800 to 1960

Marie A. Failinger

[pages 1–30]

Abstract: While there are relatively few cases from the nineteenth and early twentieth centuries that mention Muslims or Islam, an analysis of these cases discloses three common themes. First, Islam was seen as a decidedly non-American religion. Second, Islam was often used to illustrate world- wide acceptance of a legal principle, reflecting on core common values between people of different faiths. Third, religious tolerance extended beyond traditional Christian ideologies to encompass Islam, at least in theory if not in practice. These three themes display how judges used often-faulty notions of Muslims and Islam to justify their conclusions, and highlight the genesis of many stereotypes and insensitivities still prevalent in the modern era.

Under the Circumstances: Padilla v. Kentucky Still Excuses Fundamental Fairness and Leaves Professional Responsibility Lost

Maurice Hew, Jr.

[pages 31–62]

Abstract: The Supreme Court’s decision in Padilla v. Kentucky includes within the Sixth Amendment’s right to the effective assistance of counsel advice on immigration, but still falls short of attaining fundamental fairness and legal professional responsibility. Where Padilla’s recognized representation standard only requires an attorney to advise when the immigration consequences of a guilty plea are “truly clear” —allowing the attorney to “do no more” when not clear—the guiding hand of an attorney remains fractured and will force a noncitizen client to proceed in plea bargaining without informed consent. Rather than giving a private practitioner an excuse to “do no more,” the private practitioner should simply study and provide the applicable immigration law under the circumstances. A public defender not knowledgeable in immigration law, however, should be allowed to do no more based on their uncontrollable caseload, provided an immigration lawyer is also appointed.

Separation, Deportation, Termination

Marcia Yablon-Zug

[pages 63–118]

Abstract: There is a growing practice of separating immigrant children from their deportable parents. Parental fitness is no longer the standard with regard to undocumented immigrant parents. Increasingly, fit undocumented parents must convince courts and welfare agencies that continuing or resuming parental custody is in their child’s best interest. This requirement is unique to immigrant parents and can have a disastrous impact on their ability to retain custody of their children. Best interest decisions are highly subjective and courts and agencies increasingly base their custody determinations on subjective criteria such as negative perceptions regarding undocumented immigrants and their countries of origin, and on extremely positive beliefs regarding the benefits of an American upbringing. For undocumented parents facing deportation, this is a disastrous combination. Courts and agencies frequently conclude that allowing a child to leave with a deported parent, return to a foreign country, and forgo childhood in the United States is not in the child’s best interest. Replacing the parental rights standard with a best interest of the child standard in the context of undocumented immigrant families is the latest example of the increasing power of the children’s rights movement. This, however, is a drastic change and one that must receive considerable attention and consideration before it is permitted to continue. NOTES

Wolf at the Door: Issues of Place and Race in the Use of the “Knock and Talk” Policing Technique

Andrew Eppich

[pages 119–150]

Abstract: The procedure known as “knock and talk” allows police to approach a dwelling, knock on the door, and ask questions of the inhabitant with the goal of obtaining entry into the dwelling. This is a popular policing technique because probable cause or a warrant is not required. This Note analyzes the effect of knock and talk on conceptions of privacy and space held by those most frequently targeted: low income and minority individuals. It argues that the curtilage doctrine, which protects the area surrounding the home, does not assist these individuals. In addition, this Note demonstrates that knock and talk can be abused in two ways: through im- properly obtained consent and police-created exigent circumstances. Fi- nally, this Note argues that the use of knock and talk undermines efforts at community policing and has the potential to harm the population it supposedly protects.

Twombly and Iqbal : Effects on Hostile Work Environment Claims

Michael O’Neil

[pages 151–184]

Abstract: The Supreme Court decided two landmark cases, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, that interpreted Federal Rule of Civil Procedure 8(b)’s pleading requirement. The Court shifted from a notice pleading standard to one that requires more factual substantiation of claims before allowing discovery. This has important ramifications in the area of employment discrimination, as courts dismiss these claims disproportionately. If the Supreme Court’s new pleading standard is read to allow more judicial subjectivity, it could bar employment discrimination plaintiffs from access to courts. Lower courts often misconstrue the legal standard for a hostile work environment, thereby resulting in the disposition of meritorious claims. This Note explores two different interpretations of the new pleading standards, one where judicial discretion is unbridled and the other where strong limitations on discretion still exist. For the welfare of hostile work environment discrimination victims, lower courts should apply the latter interpretation.

Insecure Communities: How an Immigration Enforcement Program Encourages Battered Women to Stay Silent

Radha Vishnuvajjala

[pages 185–213]

Abstract: Domestic violence is a pervasive problem in American society. Undocumented immigrant women suffer disproportionately from spousal abuse due to language and cultural barriers. Undocumented domestic violence victims often do not know how or where to seek help and fear deportation. That fear is not unfounded because Secure Communities, an immigration enforcement program run by Immigration and Customs En- forcement, requires participating local law enforcement agencies to cross- check fingerprints with a federal immigration database. Individuals that are matched and considered removable are subject to removal proceedings. Secure Communities makes undocumented immigrant women less likely to call for help because of the risk of being fingerprinted and then deported. This Note argues for a three-step process to provide protection for victims of domestic violence.

INTRODUCING THE BOSTON COLLEGE JOURNAL OF LAW & SOCIAL JUSTICE

With the publication of this volume 32, the Boston College Third World Law Journal changes its name to the Boston College Journal of Law & Social Justice. The staff and editors believe that the new name more accurately reflects our mission and scope. Historically, our purpose has been to publish scholarship affecting populations underserved by the legal academy—whether those populations exist in the developing or developed world, in the domestic or international spheres. The name Boston College Journal of Law & Social Justice better represents the issues we value and, at the same time, aligns us with the school’s commitment, as articulated in its mission statement, to social justice.

Our History An extremely important (and highly rewarding) aspect of the de- liberative process that preceded this decision required members of the Journal to explore the forces that led its founders to choose the name Third World Law Journal in the first place. We discovered that the TWLJ started as a happy accident. In 1976, members of the Black Law Student Association (BLSA), under the aegis of Professors Robert Berry and Ar- thur Berney, held an entertainment law symposium. Papers generated at that conference were slated for publication in the UCLA-based National Black Law Journal. The symposium was underwritten by funds provided both by our then-dean, Richard Huber, and the American Bar Associa- tion. Because some symposium participants failed to submit written papers, and mechanical problems made transcription of the oral presentations impossible, the symposium issue of the National Black Law Journal never materialized. The reserved funds, however, were escrowed for a related use. In the succeeding years, a group of BLSA students led by Maurice Hope-Thompson contemplated using those funds to begin a law review devoted to minority issues. Outreach to fellow affinity groups led to more widespread support. The new journal sought to “draw upon the talents of students of African-American, Hispanic, Asian and other African-descended heritage, and others interested in the concept.”1 Co- inciding with the nationwide ascent of Critical Legal Studies, the found-

1 Maurice Hope-Thompson et al., Introduction to the Anniversary Symposium for the Bos- ton College Third World Law Journal, 26 B.C. Third World L.J. 3, 4 (2006).

ing seemed to evoke certain utopian ideals that contrasted sharply with then-prevailing norms of scholarly journals. Affiliation was to be com- pletely voluntary and non-exclusionary. The purpose of membership was expressly to increase opportunities for minorities who were underrepresented on mainstream journals. The founders even envisioned the head editorial position rotating annually among representatives of the law school’s minority groups.2 In a series of meetings, the coalition of supporters endeavored to acquire the school’s imprimatur. The first such meeting took place on October 24, 1979. Thirteen students petitioned the publications committee for official recognition of a journal that could “serve as a forum for the discussion of Third World peoples locally, nationally, and trans- nationally, [the goal of which was to] foster intellectual toughness and aim for the development of excellence in scholarship, analysis, and writing.”3 By all accounts, the meeting was less than fruitful. Some committee members questioned whether such a journal would further isolate minority students; others wondered whether it would exclude white students; some even questioned the competence and commitment of its proponents. After extended but nonproductive debate, the committee tabled discussions in order to meet again two weeks later. At a Novem- ber 8th follow-up, although commending the students for seeking to provide a law review experience “for students not usually exposed to it,” the committee worried about the proposed journal’s “third world” perspective and whether such a journal was consistent with legal scholarship.4 In the end, the committee voted 7 to 1 against the new journal’s formation. Two weeks later, Maurice Hope-Thompson presented Dean Huber with a lengthy memorandum that reflected the students’ disap- pointment with the vote and their anger at the “patronizing tone in which many of the questions were cast.” A few weeks later, Professor Berney published an article in the law school’s student newspaper, expressing dismay over the “racism and/or elitism” that animated the publications committee vote.5 In response, and against the publication com-

2 Telephone Interview of Maurice Hope-Thompson, first editor in chief of the Third World Law Journal, by Stephen Spaulding, its twenty-ninth editor in chief (Apr. 15, 2009); Interview of Professor Emerita Ruth-Arlene Howe by Stephen Spaulding, Newton, Mass. (Apr. 6, 2009). These interviews were conducted as research for a paper for an American Legal Education class taught by Professor Daniel Coquillette. 3 Committee Continues Third World Journal Question, Seamless Web (student newspaper) Oct. 29, 1979, at 1. 4 Minutes, Publications Committee Meeting (Newton, Mass.) Nov. 8, 1979. 5 Arthur Berney, A View from Afar: The Third World Law Journal, Seamless Web (student newspaper) Dec. 3, 1979, at 1.

mittee’s express recommendation, Dean Huber circulated the Hope- Thompson memo and placed the matter on the agenda for the next faculty meeting—scheduled for December 19th. In a surprising turn- around, after a student presentation and general discussion, the faculty voted to provide provisional approval to the new Boston College Third World Law Journal. Staffed entirely by volunteers, the inaugural issue came out the following year.6 Within 5 years, the TWLJ was woven seam- lessly into the law school’s academic journals program: membership de- rived from the writing competition, students fulfilled the writing and editorial requirements imposed on the other journals, and staff members received the same credits granted to the school’s other journal members. Familiarizing ourselves with the TWLJ’s creation story reinforced how indebted the current students are to the founders’ ambition and determination. They overcame the apprehensions of a doubtful faculty skeptical of the journal’s significance. They identified a mission that advocated inclusion in contravention of a legal academy that tolerated (and perhaps promoted) exclusion. As a group, the current staff was amazed by the founders’ capacity to persist against enormous odds. The founders believed that third world studies would become (or continue to be) a recognized area of legal scholarship and that our journal would be part of it.

Our New Name Although, in 1979, the term third world was cutting edge, today it never appears in the submissions we receive. Changing the journal’s name is not an indication that we intend to deviate from the trajectory that began in 1979. On the contrary, a name change will ensure that we can get past the strained conversations about why a twenty-first century journal contains the outmoded term third world in its title. It will allow us to speak more to the journal’s rich history, its scholarship, and its mission. The Boston College Third World Law Journal was created to “give front-burner treatment to the problems of the third world,” to provide a forum giving “third world legal issues a place of centrality,” and to “fill a gap in the legal literature.”7 The inaugural members demonstrated a

6 See generally 1 B.C. Third World L.J. 1 (1980). The issue comprised an introduction, an outside author’s article on taxation in the People’s Republic of China, and a student note by Hope-Thompson on the law of the sea. 7 Maurice Hope-Thompson, From the Editors, 1 B.C. Third World L.J. 1, 1–2 (1980).

iii

concern for “the study of Third World legal issues” which, at the time, “represent[ed] a newly emerging field.”8 However admirable that impulse was, since 1978 the term “third world” has acquired a pejorative connotation. When used colloquially, the term now suggests backward, primitive, or inefficient peoples or nations.9 The early editors of the TWLJ recognized that the field of third world studies “was not without controversy” and that “the very concept ‘third world’ invites debate.”10 Regrettably, with the new connotation attached to the term third world, the journal’s name has invited controversy and debate unintended by its founders—controversy that detracts from, rather than adds to, the journal’s scholarly bona fides. In addition, the old title tended to obscure rather than clarify what type of scholarship we endeavor to publish, confusing even those for whom we expressly seek to provide a forum in the legal literature.11 In terms of scope, for example, nearly 70% of our content has concerned domestic issues, while 30% has been devoted to international matters. Topically, we have published on a wide range of subject matter, with race comprising the largest cohort, and issues affecting women, children, international policy, and immigration representing the next five most significant categories.12 These data demonstrate not only that we focus

8 From the Editors, 2 B.C. Third World L.J. iv, iv (1981). 9 A particularly offensive (but unfortunately typical) example of this colloquial use is found featured in a recent posting on Above the Law: “I hate crappy customer service as much as the next guy; I just hope UCLA law students from ‘third world s**tholes’ aren’t offended.” Elie Mystal, Non-Sequiturs: 03.29.11, Above the L., http://abovethelaw.com/ 2011/03/non-sequiturs-03-29-11 (last visited Jan. 17, 2012) (quoting FedEx Office Print Online SUCKS, ProfessorBainbridge.com, http://www.professorbainbridge.com/profes- sorbainbridgecom/2011/03/fedex-office-print-online-sucks.html (last visited Jan. 17, 2012) (“Then I call Federal Express customer service and get some moron with an impenetrable accent who, as near as I can tell, kept asking for the tracking number on my package! Where did they hire this guy? And what third world shithole do they have him penned up in?”)). Many of us were interested to learn that third world is a term that derives from Cold War era politics. It originally described economically underdeveloped countries linked by common characteristics such as poverty, high birth rates, and economic depend- ence on more developed nations. Another characteristic they shared was their nonalign- ment with the Communist bloc or Capitalist nations of the West. 10 Carlos M. Vega, From the Editor in Chief, 3 B.C. Third World L.J. iv, iv (1982). 11 This also raises significant questions about what articles are diverted from our pool of submissions because of a misunderstanding of the issues and subject matters we aspire to encompass. 12 As noted by our first Editor in Chief, “[C]hange benefits from and is often prompted by study, the examination of possibilities, scholarship, and robust discussion.” Hope-Thompson, supra note 3, at 1. In the spirit of informed decision-making, we have catalogued all of the articles, notes, book reviews, and symposia from the past twenty years. The actual breakdown is as follows. Scope: Domestic—69%; International—31%. Topics: Race—16%; Women—11%; Children—10%; International Politics/Policy—10%; Immi-

on domestic issues to a considerable extent, but that most of our articles fall outside the ambit of the traditional meaning of the term “third world.”

Our Hopes for the Future We believe that this clarifying name change will position us to become the country’s leading law journal devoted to social justice issues; not only will a less ambiguous name translate to a greater number of submissions, but our affiliation with a school known for its commitment to social justice will give us a greater claim to the best articles submitted each year. As we spent the past few years debating our name, the discussions centered not only on our desire to change it to something that more accurately reflects the scope and mission of the publication, but also to something that echoes and reinforces the mission of the law school. As indicated on the law school’s website, the Third World Law Journal provides “a progressive, alternative legal perspective on issues both within the United States and in the developing world.” Its scope “includes issues affecting underrepresented populations, human and civil rights, immigration, women’s and children’s issues, and issues of disproportionate economic impact.” The founders of the journal envisioned it as “a forum for discussing legal issues affecting people, cultures, and institutions that share a common history of colonialism, oppression, under-representation, and marginalization in the political and economic processes.” Many of us were struck by how closely this tracks the law school’s mission statement, a statement that articulates the school’s “commitment to social and economic justice,” which it strives to advance “both through its curricular offerings and in the extracurricu- lar projects that it supports.” The mission goes on: “We encourage our students to develop their own individual commitment to others and to explore those themes which are central to the Jesuit tradition: the dignity of the human person, the advancement of the common good and compassion for the poor.” Ultimately, our internal discussions forced us to focus on and scrutinize the core values that inform our own mission and we reached a consensus that there was real value in promoting a journal whose name reflects the values and mission that underlie and

gration—8%; Domestic Politics/Policy—7%; Human Rights—7%; Gender/Sexual Iden- tity—6%; Criminal Rights—6%; Poverty—5%; Other—15% (including Economic Devel- opment, Corporate Abuse, the Holocaust, Health, Native Americans, Religious Rights, Disability Rights & Public Housing).

give life both to the publication and the broader community of which it is a part. We want to assure our readers that the editors and staff of the journal remain committed to its original mission. Indeed, the record shows the journal’s remarkable success at publishing articles that discuss issues affecting underrepresented populations, human and civil rights, immigration, women’s and children’s issues, and issues of disproportionate economic impact.13 We believe that the name Boston Col- lege Journal of Law & Social Justice is consistent with the journal’s subject matter and, while honoring and respecting the TWLJ ’s past, more effectively furthers the founders’ mission. We also believe that including “social justice” in the title of the journal accurately reflects its scope and topical focus to outside authors, employers, and students who may not be familiar with the nuances of our history but who share our commitment to social justice. Robert Zoellick, the head of the World Bank, recently argued it was time to retire the term third world. “[T]he categorizations of First and Third Worlds, donor and supplicant, leader and led, no longer fit.”14 In that spirit, we merely change the nomenclature of our journal’s title. What will not change is our commitment to examining the forces that animate inequality in its various expressions. As the founders of this journal wisely recognized over thirty years ago, however long marginalized groups require a voice, publications like the Boston College Journal of Law & Social Justice will remain relevant. —The Editors of Volumes 31 and 32

13 According to the Washington & Lee School of Law rankings, the Boston College Third World Law Journal ranks highly in minority, race and ethnic issues; human rights; gender, women, and sexuality; and family law. See Law Journals: Submissions and Rankings, Washing- ton & Lee Sch. of L., http://lawlib.wlu.edu/lj/index.aspx (last visited Jan. 17, 2012). To see the rankings, select a desired topic, “Comb Rank 2010,” and the “Submit” button. 14 World Bank Head: Time to Retire Term “Third World,” (Apr. 14, 2010), http://www.fox news.com/world/2010/04/14/world-bank-head-time-retire-term-world.

v i ISLAM IN THE MIND OF AMERICAN COURTS: 1800 TO 1960

Marie A. Failinger*

Introduction Within the U.S. resident population, Muslims are estimated to make up only about three to eight million people, although their numbers are growing.1 Yet, due in part to the events of September 11, they have loomed larger in the American mind than their numbers suggest. Anxiety over Muslims as “the other” has spilled over into a substantial incidence of civil rights violations, including government sur- veillance, detention efforts, and immigration restrictions.2 In modern

© 2012, Marie A. Failinger. * Professor of Law, Hamline University School of Law; Editor-in-Chief, Journal of Law and Religion. This article was inspired in part by a project undertaken by Journal of Law and Relig- ion student assistant Taneeza Islam to document the American court cases in which Muslims are parties. A partial list of these cases is available at http://www.law.hamline.edu/jlr/index. html. 1 Richard Freeland, The Treatment of Muslims in American Courts, 12 Islam & Christian- Muslim Religion 449, 449 (2001) (noting that the number of mosques and Islamic centers in the United States is estimated at seven hundred to two thousand, with populations concentrated in California, New York, Chicago and other strong populations in Michigan, Texas, Indiana, and Ohio); Tom W. Smith, Religious Diversity in America: The Emergence of Muslims, Buddhists, Hindus, and Others, 41 J. for Sci. Study Religion 577, 577 (2002) (noting that the Muslim population is usually overestimated by three to four times its size and that artificial year-to-year gains have been posted by some statistical compilations). 2 See, e.g., Deborah J. Schildkraut, The More Things Change . . . American Identity and Mass and Elite Responses to 9/11, 23 Pol. Psychol. 511, 520 (2002) (describing proposed immi-

1 2 Boston College Journal of Law & Social Justice [Vol. 32:1 era American jurisprudence, Muslims are probably most visibly represented in federal cases on detention and prosecution of suspected ter- rorists at Guantanamo Bay, though there is an even larger number of cases involving the religious freedom rights of Muslim prisoners.3 This emerging interest in Muslims as subjects of American jurisprudence prompts an important question: how have Muslims and their religion been imagined by American judges? The courts can both reflect American social attitudes and shape them, countering mispercep- tions and stereotypes that result in social and legal harm to minorities. Part I of this Article provides an overview of the history of Muslims in America. Part II describes U.S. immigration policy and its effect on Muslim immigrants. Part III catalogues how Muslims and Islam are described in federal and state court cases during the nineteenth and early twentieth centuries. Finally, Part IV describes the three common themes that pervade these cases. Although most mentions of Islam in these cases are very brief, and in most cases gratuitous, together they shed light on the social attitudes of judges in this period toward Muslim immigrants and some aspects of Islamic jurisprudence. The survey ends before 1960, at which point some modern African-Americans began to embrace Islam as an authentic part of their tradition and caused a shift in how the courts encountered Islam.

I. Muslims in American History For the most part, with the exception of recent work, the early history of Muslims in the United States is difficult to ferret out from the standard texts not focused on American Muslim history. Many of the well-known American religious histories written through the middle of the twentieth century barely mention Muslims at all.4 If they are men- gration restrictions for student visas from Middle Eastern countries and Federal Bureau of Investigation interviews of Middle Eastern men); Ty S. Wahab Twibell, The Road to Intern- ment: Special Registration and Other Human Rights Violations of Arabs and Muslims in the United States, 29 Vt. L. Rev. 407, 537–38 (2005) (discussing special registration of Arab and Mus- lim immigrants and contingency plans for interning them before 9/11). See generally Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. Ann. Surv. Am. L. 295 (2002) (discussing the effects of the September 11 attacks on Muslim Americans). 3 See Freeland, supra note 1, at 455–56; Michael Greenberger, You Ain’t Seen Nothin’ Yet: The Inevitable Post-Hamdan Conflict Between the Supreme Court and the Political Branches, 66 Md. L. Rev. 805, 806–09 (2007). 4 See generally Robert Baird, Religion in America (1979) (neglecting to mention Muslims or Islam in tracing America’s religious roots); Edwin Scott Gaustad, A Reli- gious History of America (1st ed. 1966) (same); Edwin Scott Gaustad, Faith of our Fathers: Religion and the New Nation (1987) (same); William Lee Miller, The

2012] Islam in the Mind of American Courts: 1800–1960 3 tioned, it is generally in connection with the conquest of Spain or the rise of the Nation of Islam in the 1960s.5 Similarly, it is difficult to find an American legal history of note that discusses the role of Muslims in American law.6

A. Muslims in Early American History There are, however, a growing number of texts on both the historical experience of American Muslims and their contemporary concerns.7 Histories recording the experience of Muslims in America be-

First Liberty: Religion and the American Republic (1986) (same); William Warren Sweet, Religion in Colonial America (1st ed. 1942) (same); William Warren Sweet, The Story of Religion in America (3d ed. 1950) (same). 5 See, e.g., Mary Farrell Bednarowski, American Religion: A Cultural Perspec- tive 74–77, 147 (1984) (discussing the history of the Nation of Islam); Martin E. Marty, Pilgrims in their Own Land: 500 Years of Religion in America 12–14, 17–18, 444–47 (2d ed. 1984) (discussing the conquest of Spain in 711 A.D., the later expulsion of the “Moors,” and the rise of the Nation of Islam under Elijah Muhammad and his conflict with Malcolm X); R. Laurence Moore, Religious Outsiders and the Making of Americans 182, 192–94 (1986) (discussing Edward Blyden’s advocacy of Islam “as a religion better suited for free blacks than Christianity” and the growth of Islam among African-Americans in the 1950s and 1960s). 6 See, e.g., Stephen Botein, Early American Law and Society, at vii–viii, 138 (1980) (lacking index or table of contents headings on Muslims); Paul D. Carrington, Stew- ards of Democracy: Law as a Public Profession, at vii–viii, 304 (1999) (same); Law- rence M. Friedman, A History of American Law 7–8, 639–42 (1973) (same); Grant Gilmore, The Ages of American Law, at v, 152 (1977) (same); Kermit L. Hall et al., American Legal History: Cases and Materials, at xiii–xxiv (2d ed. 1996) (same); James Willard Hurst, The Growth of American Law: The Law Makers, at vi–xiii, 495 (1950) (same); Law in American History, at iii–iv (Donald Fleming & Bernard Bailyn eds., 1971) (same); Law in the American Revolution and the Revolution in the Law, at vii, 263 (Hendrik Hartog ed., 1981) (same); Jonathan Lurie, Law and the Na- tion: 1865–1910, at vii–ix, 178 (1st ed., 1983) (same); Roscoe Pound, The Formative Era of American Law, at xi, 183–84 (1938) (same); Bernard Schwartz, The Law in America: A History, at vii–x, 379 (1974) (same); The Life of the Law: Readings on the Growth of Legal Institutions, at ix–xiv, 580 ( John Honnold ed., 1964) (same); Two Centuries of Growth in American Law: 1701–1901, at viii, 533 (Yale Law Sch. Faculty eds., 1901) (same). See generally Select Essays in Anglo-American Legal His- tory (Ass’n of Am. Law Sch. eds., 1968) (same); Jamil S. Zainaldin, Law in Antebellum Society: Essays and Materials in Law and American Society (1980) (same). As with the religious history texts, there are occasional references to the conquest of Spain by the Moors. See Max Radin, Handbook of Anglo-American Legal History 6–7 (1936). Hall and Karsten also mention the Hamdan v. Rumsfeld and Hamdi v. Rumsfeld terrorism cases. See Kermit l. Hall & Peter Karsten, The Magic Mirror: Law in American History 353–54 (2009). 7 See generally Edward E. Curtis IV, Muslims in America: A Short History (2009) (describing the practice of Islam in America); Kambiz GhaneaBassiri, A History of Islam in America: From the New World to the New World Order (2010) (same);

4 Boston College Journal of Law & Social Justice [Vol. 32:1 fore the nineteenth century are sparse, and largely focus on individual Muslims whose exploits caught the eye of non-Muslim journalists and historians. Although philanthropist Amir Mohammed documents Mus- lim presence in the New World as early as 1312—when African Muslims arrived at the Gulf of Mexico on an exploratory mission—most histories suggests that the first significant Muslim presence in the New World was Esevanico Dorantes, who came in 1527 with a Portuguese explorer.8 According to Race Capet, Dorantes was a Morisco, or a birth- Muslim whom the Portuguese enslaved and converted to Christianity.9 Conversion, or at least secretive practice of Islam, was necessary in part because Spain restricted Muslims, Jews, and Gypsies from coming to the New World.10 Another noted early American of Muslim heritage was Anthony Jansen van Salee, the son of a Dutch privateer and Moroccan woman, who settled in New Netherland as part of the Dutch attempt to challenge Spain’s hegemony in the New World.11

B. Muslims and Slavery in America Beyond these early explorers and the occasional free Muslim mentioned in early histories, recent historians of Muslim America suggest that the most significant influx of Muslims before the late nineteenth and early twentieth centuries was slaves.12 Although authors of Ameri-

Amir Nashid Ali Muhammad, Muslims in America: Seven Centuries of History (1312–1998) (1st ed. 1998) (same). 8 GhaneaBassiri, supra note 7, at 10–11; Muhammad, supra note 7, at 3; Freeland, supra note 1, at 450; Race Capet, Created Equal: Slavery and America’s Muslim Heritage, Cross Currents, Dec. 2010, at 549, 549–50. Amir Nashid Ali Muhammad notes that Christopher Columbus had Muslim crew members with him and was influenced by Arab scholar Al- Idrissi’s work discussing “the discovery of a new continent by eight Muslim explorers.” Muhammad, supra note 7, at 3. Race Capet describes Dorantes’s travel to Florida in 1527, but Richard Freeland states that he arrived with Marcos de Niza in 1539. Freeland, supra note 1, at 450; Capet, supra, at 549. Kambiz GhaneaBassiri states that he accompanied his master on an expedition led by Pamfilo de Narváez to the Gulf Coast in 1527, wandered as captives of native tribes for about six years, and then traveled with Álvar Nuñez Cabeza de Vaca for eight years into western Mexico. GhaneaBassiri, supra note 7, at 11–12. Capet notes that he went from Florida to New Mexico and Arizona before being killed by the Zuni, while GhaneaBassiri describes him serving the Zuni as a medicine man and being killed at the Pueblo of Háwikuh. Id. at 12; Capet, supra, at 550. 9 Capet, supra note 8, at 549–50. 10 See GhaneaBassiri, supra note 7, at 28, 35, 85 (noting use of conversion by well- known slaves to boost favor with whites); Freeland, supra note 1, at 450 (noting the ways in which Muslims secretly retained their practices, such as writing work in Arabic); Capet, supra note 8, at 550–51. 11 See GhaneaBassiri, supra note 7, at 11–12. 12 Muhammad, supra note 7, at 9; Freeland, supra note 1, at 450. Muhammad notes that “Moors” from the Barbary Coast—captured by the Portuguese and enslaved—successfully

2012] Islam in the Mind of American Courts: 1800–1960 5 can history commonly acknowledge that Muslims were among the slaves imported into the United States, recent scholarship suggests that they were more numerous than previously thought, and that many practiced their faith or a syncretic version of Islam and Christianity well into the nineteenth century.13 Modern histories suggest that Muslim slaves were likely better educated and more often from elite backgrounds than other slaves.14 Many Muslim slaves may have acted out of self-interest, believing themselves superior to black slaves and attempted to gain “better treatment and possibly passage back to Africa.”15 Kambiz Ghanea- Bassiri argues that African Muslims were both “de-negrofied” and “de- Islamicized.”16 He claims that they were aware of the ways in which American slavery dehumanized people based on race and color, and often tried to disassociate themselves from other Africans by claiming that they were not black but Arabians or Moors.17 At the same time, American writers attempted to present well-known slaves as either Chris- tian converts or exceptions to the “licentiousness and despotism” that, in the popular mind, characterized the Ottoman Empire and its citizens.18 A small number of Muslim slaves gained notoriety in white culture; for example, Job Ben Solomon, son of a respected Islamic scholar,

petitioned South Carolina authorities for their freedom in 1753 and a 1786 appearance of two foreigners who sailed from Algeria to Virginia, where they were arrested. Muhammad, supra note 7, at 7–8. Muhammad also records the exploits of Yusef Benenhaly, who fought in the American Revolution and followed General Thomas Sumter to South Carolina, where his descendants were “known as the ‘Turks of Sumter County.’” Id. at 9. 13 See Curtis, supra note 7, at 20–21 (describing syncretic Islamic and hoodoo practices of slaves); GhaneaBassiri, supra note 7, at 63–64, 80–96 (describing Islamic-faith among slaves); Freeland, supra note 1, at 450–51. Freeland notes that not all Muslim slaves were black Africans; Malaysians and Turks were also enslaved because Christians could own “infidels” whereas “infidels” could not own Christian slaves. Freeland, supra note 1, at 450– 51. He traces how slavery became racialized as slaves became Christians. See id. at 451; see also Capet, supra note 8, at 551 (2010) (citing Allan Austin’s estimation that there may have been at least eighteen thousand Muslim slaves imported from 1771 to 1775). Among the cases witnessing to the existence of likely Muslim slaves are Hodge v. Montgomery, which discussed the gift of slaves, one of whom had the common Muslim name Fatima, and Bank of South Carolina v. Mitchell, which also discussed a slave named Fatima. See Hodge v. Mont- gomery, 17 S.C. Eq. (Speers Eq.) 268, 268, 271 (1843); Bank of S.C. v. Mitchell, 14 S.C. Eq. (Rice Eq.) 389, 390, 397 (1839). 14 Capet, supra note 8, at 552, 559. 15 See GhaneaBassiri, supra note 7, at 21–22. 16 Id. at 18, 27 (emphasis omitted). 17 Id. at 21–22. GhaneaBassiri notes that a Moorish identity may have captured the public imagination, the public having heard tales of white slavery coming out of the exotic and well-known Barbary Wars. Id. at 25. 18 Id. at 27–29; see Curtis, supra note 7, at 1–4. 6 Boston College Journal of Law & Social Justice [Vol. 32:1 emerged from slavery in a Kent Island, Maryland, tobacco shed to become the toast of the town in London and later gained his freedom in Gambia.19 Eight Muslim slaves successfully petitioned the South Caro- lina House of Representatives for their freedom in 1790, describing the perfidy of the English captain who promised to redeem them back to Morocco as captives of war but sold them as slaves in the New World instead.20 The white public also may have learned of Bilali Muham- mad—a head overseer of a Georgia plantation who orchestrated its defense against the British in the War of 1812—or Omar ibn Said, the earliest known Arabic scribe in America who penned an autobiography about life as a slave in 1831.21 Capet suggests that among the most fa- mous of Muslim slaves was Abdul Rahahman (Rahman), whose master granted his freedom at the request of Senator Henry Clay.22 Rahahman later went on a speaking tour in the Northeast to raise the funds to buy his children out of slavery and then settled in Liberia.23 Although much of the Muslim African slave culture seems to have died out in the early nineteenth century, African-American communities became interested in re-connecting with their Islamic roots as early as the late nineteenth century.24 Edward Wilmot Blyden, a Christian Liberian diplomat, promoted Islam on the U.S. lecture circuit in the 1870s and ’80s as an appropriate alternative for those of African heritage.25 In the early twentieth century, three movements attempted to put Muslim ideals into the American mind. First, in the early 1920s, Muhammad Sadiq’s Ahmadi movement stressed the evils of American racism, attracted significant support from African-Americans, and also figured prominently in Marcus Garvey’s Universal Negro Improvement Association. Second, Timothy Drew established the Moorish Science Temple in Chicago in 1925, claiming that African-Americans were of Moorish (Moroccan) and Asiatic descent, and that Islam was the original religion of his people. Finally, Wallace D. Fard established the Na-

19 See Curtis, supra note 7, at 1–4; Capet, supra note 8, at 552–56. 20 Capet, supra note 8, at 556. One of those eight Muslim slaves was named Fatima. Id. 21 See GhaneaBassiri, supra note 7, at 62, 67; Ghada Osman & Camille F. Forbes, Rep- resenting the West in the Arabic Language: The Slave Narrative of Omar ibn Said, 15 J. Islamic Stud. 331, 331–32 (2004). 22 Capet, supra note 8, at 557; see also GhaneaBassiri, supra note 7, at 26–27. 23 Capet, supra note 8, at 557. 24 See Freeland, supra note 1, at 451. 25 See id. 2012] Islam in the Mind of American Courts: 1800–1960 7

tion of Islam in 1930, recruiting Elijah Poole, later Elijah Muhammed, as his successor.26

C. Immigration of Muslims to the United States Between the Civil War and the twentieth century, the Muslim population in the United States grew primarily by conversion and immigration, according to Professor Richard Freeland.27 There were a small number of prominent Caucasian conversions to Islam around the turn of the twentieth century, such as Methodist minister Reverend Norman and the U.S. Manila consul Alexander Russell Webb in 1887.28 Webb was a Presbyterian-turned-Theosophist-turned-Muslim missionary, whose periodical The Muslim World and book Islam in America made Muslims visible to a larger public.29 Muslim and Muslim-offshoot missionaries like Indian religious leaders Inayat Khan and Muhammad Sadiq lec- tured throughout the United States, though many white Americans attended their presentations out of curiosity for the exotic rather than interest in the message.30 Muslim culture also greatly influenced Ameri- can author Ralph Waldo Emerson, particularly “Islamic social values such as hospitality, personal nobility, and regard for women.”31 In measuring the growth of Islam by immigration, historians had difficulty estimating the numbers of Muslim immigrants during the nineteenth century, in part because immigration officials before 1899 classified anyone from Ottoman territories as either from “‘Turkey in Asia’” (Syrians, Turks, Kurds, Armenians, and others from that same region) or from “‘Turkey in Europe’” (including Albanians, Bosnians,

26 Curtis, supra note 7, at 31–32, 34; GhaneaBassiri, supra note 7, at 223–24. The Na- tion of Islam was not orthodox Islam, although Fard also preached that Islam was the original religion of African-Americans. Curtis, supra note 7, at 36–37. Elijah Poole came to believe that Wallace Fard was not only the Messiah (or Mahdi) but God in the flesh, and that he was God’s messenger. Id. at 37. Fard disappeared in 1934; Poole endured a power struggle for succession and became leader of the Chicago Temple. Id. The federal government later prosecuted him as a draft dodger and traitor during World War II, another victim of J. Edgar Hoover’s fear of internal, subversive groups. Id. at 37–38. 27 Freeland, supra note 1, at 451. 28 Curtis, supra note 7, at 26–27; Freeland, supra note 1, at 451. 29 Curtis, supra note 7, at 25, 28. 30 See id. at 29–31. Unbeknownst to most Americans, Sadiq was not an orthodox Mus- lim; he believed that the founder of his sect, Ghulam Ahmad, was the Messiah who would bring in the Day of Judgment. Id. at 31. Khan was a Sufi Muslim who focused on the unity of Islam with other great religions, but his failure to convert American audiences led him to move to Europe, leaving behind one of the oldest operating Sufi organizations in the United States, the Sufi Order International. Id. at 29–30. 31 See Suzan Jameel Fakahani, Islamic Influences on Emerson’s Thought: The Fascination of a Nineteenth Century American Writer, 18 J. Muslim Minority Aff. 291, 291, 298 (1998). 8 Boston College Journal of Law & Social Justice [Vol. 32:1

Croats, Serbs, and Macedonians).32 This inability to identify Muslims stems partly from the Ottoman Empire’s refusal to allow Muslims to emigrate during this period, which encouraged immigrants to hide their religious identities.33 Moreover, immigration numbers are hard to estimate because many emigrants from countries with large Muslim populations spent significant time in other European countries before coming to the United States.34 Furthermore, Americans tended to welcome Christians from European countries and associated Muslims with negative stereotypes of the Ottoman Empire, which encouraged Mus- lims to downplay their faith.35 In the 1870s, Syrians—particularly those from Lebanon and Pales- tine—began a noticeable wave of immigration that has been attributed to the Ottoman regime’s oppression or their desire to take advantage of the economic opportunities offered by the United States.36 Then, at the turn of the twentieth century, Turks, Kurds, and Eastern European Muslims began to emigrate, either to look for work or simply to escape oppression.37 Among the best documented immigrants were the Alba- nians, arriving in small numbers in the 1880s and larger numbers after the outbreak of the Balkan Wars in 1912.38 Albanian immigrants largely downplayed their Muslim identity during this period.39 Some Muslims, however, created a community culture centered around Islam. Syrian Muslims settled in North Dakota, where they began homesteading in the early 1900s, and Muslims attracted by well- paying jobs in Henry Ford’s auto plant settled in Detroit.40 Muslim en- claves could also be found in major Midwestern cities such as Chicago, Milwaukee, Pittsburgh, Cleveland, and Akron, and major cities in the East such as New York, Philadelphia, Baltimore, and the Boston area.41

32 GhaneaBassiri, supra note 7, at 137–38. 33 Id. at 141. 34 Id. at 138. 35 Id. at 141–42. 36 Id. at 139–40; Freeland, supra note 1, at 451. GhaneaBassiri also notes that this immigration was furthered by prominent American missionaries to Syria, who helped create a private education system and facilitated Syrians’ interest in immigration. GhaneaBas- siri, supra note 7, at 139. Of Syrian immigrants, the majority were Christian, but approximately eight thousand of the two hundred thousand Syrians in the United States in 1924 were Muslim. Id. at 140. 37 GhaneaBassiri, supra note 7, at 144–45. 38 Id. at 146–47. 39 Id. at 146. 40 See Curtis, supra note 7, at 47–49, 53–54; GhaneaBassiri, supra note 7, at 140. 41 Ghaneabassiri, supra note 7, at 137. 2012] Islam in the Mind of American Courts: 1800–1960 9

II. Exclusionary Immigration Policies and the treatment of Muslims and People from Muslim-Dominated Countries in American Courts Perhaps the most significant factor preventing the large-scale immigration of Muslims to America was racialization.42 Immigration from East Asia all but halted due to the Chinese Exclusion Acts in 1882, the exclusion of Japanese immigrants in 1908, and the creation of an Asiatic Barred Zone in 1917.43 Thus, laws negatively affected immigration from many countries where Islam was prominent.44 The addition of literacy requirements in 1917 and the exclusion of “‘polygamists[] or persons who admit their belief in the practice of polygamy’” in the Immigration Act of 1891 acted as further barriers to Muslim immigration.45 Perhaps the most damaging to Muslim immigration was the Immigration Act of 1924, which reduced existing country immigration quotas and disfa- vored countries outside of northern and western Europe.46 All countries outside the Asiatic Barred Zone that had significant Muslim populations were given immigration quotas of one hundred per year.47 This restrictive immigration policy began to unravel with the McCarran-Walter Act of 1952 and further loosened with immigration reforms in 1965.48

42See id. at 150, 152. 43 Id. at 150–51; see Act of Feb. 5, 1917, ch. 29, 39 Stat. 874 (repealed by McCatran- Walter Act of 1952, ch. 477, 66 Stat. 163); see, e.g., Act of May 6, 1882, ch. 126, 22 Stat. 58 (repealed by Act of Dec. 17, 1943, ch. 344, 57 Stat. 600). The 1917 act excluded from admission any persons on the continent of Asia, unless they were natives of islands already possessed by the United States. Ghaneabassiri, supra note 7, at 150 n.58; accord § 3, 39 Stat. at 876. 44 See Ghaneabassiri, supra note 7, at 150–51. 45 Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084; Ghaneabassiri, supra note 7, at 150–51. 46 Immigration Act of 1924, ch. 190, 43 Stat. 153 (amended by McCarran-Walter Act of 1952, ch. 477, 66 Stat. 163); GhaneaBassiri, supra note 7, at 151; Freeland, supra note 1, at 451. The Acts reduced the country quotas to two percent of the existing U.S. population from that country and reduced the total immigration influx to one hundred and fifty thousand per annum. GhaneaBassiri, supra note 7, at 151. The Acts also barred from immigration any person ineligible for citizenship, meaning that Asians previously declared ineligible for citizenship could no longer immigrate. Id. 47 Ghaneabassiri, supra note 7, at 151. 48 Freeland, supra note 1, at 452. See generally McCarran-Walter Act of 1952, ch. 477, 66 Stat. 163 (codified as amended at 8 U.S.C. §§ 1101–1537). The McCarran-Walter Act eliminated racial restrictions on immigration but kept country quotas and imposed a preference for immigrants with special skills. §§ 201–203, 66 Stat. at 175–78; Matthew T. Hovey, Comment, Oh, I’m Sorry, Did That Identity Belong to You? How Ignorance, Ambiguity, and Iden- tity Theft Create Opportunity for Immigration Reform in the United States, 54 Vill. L. Rev. 369, 374 n.32 (2009). Freeland notes that Muslim immigrants arriving at that time were educated Palestinians (arriving after the Palestinian upheaval in 1948) and Iraqis (arriving

10 Boston College Journal of Law & Social Justice [Vol. 32:1

Along with immigration restrictions, federal naturalization law created a significant hardship for immigrants from predominantly Mus- lim countries who attempted to become citizens. “The Naturalization Act of 1790 granted citizenship only ‘to aliens being free white persons,’” though Congress amended it in 1870 to permit “citizenship ‘to aliens of African nativity and to persons of African descent.’”49 In many of the cases in the early 1900s, the position of the U.S. government was that the 1790 Naturalization Act—permitting only “free white persons” to become citizens—applied only to persons living in Europe at the founding of the United States and their descendants.50 Consequently, those who could not claim European descent, most prominently Syrians and Indians, fought significant court battles beginning in 1909 to establish that they were “white.”51 These cases are a painful reminder of the ways in which American racism both co-opted and stigmatized immigrants of other nationalities. For example, Judge Smith of the South Carolina District Court pronounced Syrians “nonwhite” but later granted a re-hearing, noting that “[d]eep feeling has been manifested on the part of the Syrian immigrants because of what has been termed by them the humiliation inflicted upon, and mortifi- cation suffered by, Syrians in America . . . .”52 He reasoned that Syrians should be no more humiliated by denial of citizenship than the “educated and cultivated” Chinese, Japanese, Mongolians, or Native Ameri- cans also excluded from citizenship.53 On the other hand, he pointed out that the 1870 amendments “admit to citizenship the very race [of African-Americans the Syrians] term inferior.”54 On the other hand, an beginning in 1958), followed by Iranians and Pakistanis in the 1980s. Freeland, supra note 1, at 452. 49 Act of Jul. 14, 1870, ch. 254, 16 Stat. 254 (amended by Pub. L. No. 59-338, 34 Stat. 596); Act of Mar. 26, 1790, ch. 3, 1 Stat. 103 (repealed by Act of Jan. 29, 1795, ch. 20, 1 Stat. 414); GhaneaBassiri, supra note 7, at 152. 50 See, e.g., United States v. Balsara, 180 F. 694, 695 (2d Cir. 1910); In re Ellis, 179 F. 1002, 1003 (D. Or. 1910); In re Halladjian, 174 F. 834, 837 (D. Mass. 1909). At least one court noted the 1870 addition to the naturalization statute of “‘aliens of African nativity and . . . persons of African descent.’” See Ex parte Shahid, 205 F. 812, 813 (E.D.S.C. 1913) (quoting Act of Jul. 14, 1870, ch. 254, 16 Stat. 254). 51 See Ghaneabassiri, supra note 7, at 152–53. One example of an Indian immigration appeal is United States v. Balsara, in which a Parsi, a descendant of immigrants from Persia into India in the eighth century, was found to be “white” because he came from a settle- ment of Parsis “by themselves of intelligent and well-to-do-persons, principally engaged in commerce, [who] are as distinct from the Hindus as are the English who dwell in India.” 180 F. at 695. 52 In re Dow, 213 F. 355, 356 (E.D.S.C. 1914). 53 Id. 54 Id. 2012] Islam in the Mind of American Courts: 1800–1960 11 undertone of mistrust pervades some cases involving Syrians.55 Com- menting on the “evasive and insincere” witnesses in a bankruptcy trial, the court seemingly explained: “[t]hey are all Syrians.”56 In keeping with the popular stigmatization of Muslims and those who come from predominantly Muslim countries, some courts took great pains to identify claimants as Christians, implying that this is a favorable factor in determining immigration status.57 They also went into great detail about what standard of “whiteness” should be used, some of them determining that Syrians were white and others that they were not.58 Thus, while the Oregon District Court found a Syrian to be “white” based on the popular usage of the term, the South Carolina Dis- trict Court adopted the government’s proffered “European” meaning of “white,” pronouncing the need for a clear dividing line in a history shaped by intermarriage of races.59 The South Carolina District Court thus determined that Albanians, Spanish, and Portuguese “Moors” are white, while “all inhabitants of Asia, Australia, the South Seas, the Malay- sian Islands and territories, and of South America” are not unless they can show European descent.60 Noting that Syrians can be “of pure or almost pure Jewish, Turkish, or Greek blood” due to “another Semitic conquest in the shape of the Arabian Mahometan eruption, then again

55 See Abdo v. Townshend, 282 F. 476, 480 (4th Cir. 1922); see also In re Hatem, 161 F. 895, 896 (E.D.N.C. 1908). 56 Abdo, 282 F. at 478, 480 (noting, however, that they are intelligent and good busi- nessmen); see also In re Hatem, 161 F. at 896 (noting that the bankrupt and his witnesses might be exposed to prejudice because they were Syrians, but suggesting that they were liars nonetheless). 57 See, e.g., Ex parte Shahid, 205 F. at 812 (noting that the claimant was a Christian); In re Ellis, 179 F. at 1002 (noting that the claimant was a Palestinian and a Maronite); In re Hal- ladjian, 174 F. at 841 (discussing the Christian history of the Armenians, which was the claimants’ ancestry). 58 See, e.g., Ex parte Shahid, 205 F. at 816–17; In re Ellis, 179 F. at 1003–04. 59 Ex parte Shahid, 205 F. at 814–15; In re Ellis, 179 F. at 1004. But in Balsara, where the court rejected the government’s argument that “white” referred to those persons immi- grating to the United States in 1790, namely northern and western Europeans, because it would exclude Russians, Poles, Italians, Greeks, and “Hebrews,” which the court found absurd. See 180 F. at 695–96. The Court concluded that Congress must have meant to distinguish the white race from “black, red, yellow, or brown races, which differ in so many respects from it.” Id. at 696. The court, however, also rejected the argument of amici curiae that the term “white” was meant only to exclude African-Americans and later-excluded groups like the Chinese. Id. at 696–97. Noting that the immigration form requires applicants to state their color and complexion, the court implied that the law continues to be concerned with the race of immigration applicants. Id. 60 Ex parte Shahid, 205 F. at 814–16. 12 Boston College Journal of Law & Social Justice [Vol. 32:1 overlaid by the Mongolian and Turkish conquests,” the court held that a “Syrian of Asiatic birth and descent” cannot be naturalized.61 In a third case, Judge Lowell of the District of Massachusetts, after noting that the Christian Armenian claimants’ “complexion was lighter than that of many south Italians and Portuguese,” did an extensive analysis of possible meanings of “race.”62 He rejected the government’s position that “‘the average man in the street . . . would find no difficulty in assigning to the yellow race a Turk or Syrian with as much ease as he would bestow that designation on a Chinaman or a Korean.’”63 Focus- ing at length on centuries of “racial” intermingling, the District of Mas- sachusetts ultimately read “white” expansively to include all persons not otherwise classified as “Negro,” American Indian, Chinese, or Japa- nese.64 In these cases, the characterization of ostensibly not Christian Turks is not only harsh but not always clearly related to the immigration issue under discussion.65 Although Judge Lowell at one point— perhaps in jest—described the Armenian turn to Christianity “without reproach to the followers of Mohammed or of Zoroaster,” he made several references to Turkish domination through violence and Armenian resistance to the Turks.66 Judge Lowell noted that Turks “both socially and sexually, commingled with Europeans to an unusual degree,” utiliz- ing Europeans as sexual partners, architects, and generals, and offering conquered Christian peoples conversion as an alternative to extermina-

61 Id. at 816. 62 In re Halladjian, 174 F. at 835. 63 Id. at 838; see also United States v. Cartozian, 6 F.2d 919, 920–21 (D. Or. 1925) (relying on a number of race classification experts to declare Armenians white). In In re Najour, the court utilized a text by Dr. A.H. Keane dividing the world into four races: “Negro or black . . . ; Mongol or yellow . . . ; Amerinds (red and brown) . . . ; and Caucasians” (including those from North Africa, Europe, Iran, India, Western Asian and Polynesia, and Syri- ans). 174 F. 735, 735–36 (N.D. Ga. 1909). 64 In re Halladjian, 174 F. at 843, 845. 65 See Ex parte Shahid, 205 F. at 812–13; In re Ellis, 179 F. at 1002–03; In re Halladjian, 174 F. at 838. By contrast, one pertinent but odd immigration case involved a birth citizen of Chinese and English extraction who married a Chinese-East Indian medical student in Hong Kong. See Ex parte Hing, 22 F.2d 554, 555–56 (W.D. Wash. 1927). The Court’s co- nundrum was to determine whether she had forfeited her citizenship by marrying someone who was not eligible for naturalization. See id. The Court noted the Islamic marriage ceremony performed in China “may be very primitive,” and would not be legally valid if it was not in accord with Chinese law, regardless of whether she had converted to Islam or lived in a common law marriage. See id. at 556. Thus, the court granted the returnee’s habeas petition. Id. 66 In re Halladjian, 174 F. at 841. 2012] Islam in the Mind of American Courts: 1800–1960 13

tion.67 Indeed, Judge Lowell repeated the charge circulating in popular culture that Turks stole the most promising European boys to raise them as “Mohammedans” and he commented, seemingly approvingly, on the resistance of the Armenians “‘[a]gainst black pagans, Turks and Saracens.’”68 In other cases, Armenians and Syrians were permitted to immigrate because of Turkish oppression—Yerwand Karamian, an Ar- menian Persian, received habeas corpus from the federal court because he was “‘burned from the hip to the knee with a hot steel rod’” to force him to convert to Islam.69 Ossana Soghanalian, a Christian Turk, received a literacy exemption because, according to her testimony, all of the Christians from her home town had been killed or deported by Turkish Muslims and she was kept in a harem for over three years.70

III. Islam in the American Courts: Conflicting Themes Suzan Jameel Fakahani argues that American intellectuals in the late nineteenth century were largely dependent on British secondary sources for their knowledge of Islam, such as George Sale’s Koran, a translation that “purposely manipulated information in such a way as to present the Qur’anic message as trite and untrustworthy” and “greatly lacked in dignity and depth of the original.”71 Unfortunately, to the extent American courts cited Islamic texts, they were often from Sales’ Koran, perhaps the only English version available to most judges.72 Oth- erwise, American judges’ references to Islam simply display little evidence of familiarity with Islamic law or the Muslim faith. In general, American courts’ portrayal of Islam veered between two extremes: some courts treated Islam as an exotic and occasionally primitive religion that no average American would be likely to believe, while others described its believers as sincere and to be as equally respected as persons of other traditions. The courts occasionally attempted a brief discussion of substantive Islamic law, on the one hand citing favorably its stance on usury and on the other disparaging its stance on polygamy. Perhaps most interestingly, there are quite a number of church-state

67 Id. at 839. 68 Id. at 839, 841. 69 United States ex rel Karamian v. Curran, 16 F.2d 958, 959, 962 (2d Cir. 1927). Though the court granted the habeas petition, it also decided that the petitioner should be deported. Id. 70 Johnson v. Tertzag, 2 F.2d 40, 40–41 (1st Cir. 1924). 71 Fakahani, supra note 31, at 300. 72 See Van Veghten v. Van Veghten, 4 Johns. Ch. 501, 503 (N.Y. Ch. 1820); Wightman v. Wightman, 4 Johns. Ch. 343, 349 (N.Y. Ch. 1820). 14 Boston College Journal of Law & Social Justice [Vol. 32:1 cases involving matters such as oath-taking by atheists and subsidization of public religious education where the courts suggest that Muslims are treated or should be treated equally with Christians.

A. Schizophrenia: Islam as Hyperbole vs. Islam as Respected As suggested, American courts in the nineteenth and early twentieth centuries often reflected popular attitudes that Islam is among the exotic religions of the world not expected to be embraced by Ameri- cans, while occasionally demonstrating respect for those who practice the religion. An example of such exoticism is evidenced in a Kentucky decision about interminable religious controversies among believers, such as the “race of Indians who . . . fought about the virtues of a monkey’s tooth, or those of the Mahometans about the mode of ablution . . . .”73 Along this vein, a number of American courts in this period used an Islamic reference as an exaggerated analogy to make their argument airtight, even though the case involved no Muslims or issues related to Islam.74 Perhaps the most blatant Muslim stereotype uttered by a twentieth century American court involved a mortgage foreclosure by an agricultural coop on a loan to farmers for crop production.75 In dissenting on behalf of the farmers, Washington State Justice Millard castigated federal government coercion in agricultural programs of the time. He suggested that an argument appealing to force or prejudice rather than reason has no place in judicial decisions.76 Unfortunately, his analogy was to the Spanish conquest: In the year 711 A.D., the Moslem hordes overran Europe, first defeating the Visigoths in Spain. Those followers of Mahomet entered Europe with the Koran in one hand and a scimitar in the other. You had the option of giving at least lip service to the religion of those invaders or being liquidated. The offer of the federal official on behalf of the domestic enemy paral-

73 Fisher v. Higgins, 21 Ky. (5 T.B. Mon.) 140, 144–45 (1827). 74 See Peters v. United States, 94 F. 127, 134 (9th Cir. 1899) (quoting Engleman v. State, 2 Ind. 91, 93–94 (1850)). Indeed, these hard-to-classify cases referred to Islam gratuitously. For example, in Engleman v. State, a defendant objected to an indictment because it omitted the words “of our Lord” from the date “in the year of eighteen hundred and forty-six.” 2 Ind. at 93. The court noted that neither the legislature nor judges felt the need to use this phrasing because “no mention is made of the Jewish, Mahometan, or other system of reckoning time, and all understand the Christian calender [sic] to be used.” Id. at 94. 75 Sw. Wash. Prod. Credit Ass’n of Chehalis v. Fender, 150 P.2d 983, 984 (Wash. 1944). 76 See id. at 994. 2012] Islam in the Mind of American Courts: 1800–1960 15

lels the right of choice tendered the Europeans by their foreign enemy.77 In the cases where Islam was used as an exaggerated analogy, the Qur’an (generally spelled “Koran”) sometimes served as an example of an exotic, difficult text for the courts.78 In Nubby v. Scott, for example, the court managed to insult two minorities at the same time in a contest over whether a “full-blood” daughter of the Native American Choc- taw tribe, Scott, had the competence to convey her interest in part of her father’s estate to her mother, Nubby.79 Holding that Scott was incompetent, the court noted that she “was a housewife” who “could not speak, read or write English,” and had the mind of a four-year-old.80 The court further emphasized how unlikely it was that she would understand the deed, stating: “[t]he mere fact that this deed was read to her . . . imparted no more information to her, weak-minded and ignorant as she was, than would reading of the Koran to a Kangaroo.”81 Similarly, a Texas appellate judge adjudicating a dispute between the fire and police commissioners of San Antonio and its mayor and city council wished to point out the difficulty of discharging the commissioners under the city charter.82 He noted that, absent removal using the due process required in the charter, “no order of the mayor, though it were written, as the Koran, with a quill from a wing of the an- gel Gabriel, can remove him from office.”83 Yet another court, in adjudicating a ship accident case, suggested that blaming God for placing the rock that the ship’s captain struck would be “a mahometan exten- sion” of the phrase “act of God.”84 Occasionally, American judges commented on the fanciful or use- less nature of the Qur’anic text.85 In United States v. Wong Chung, a federal judge objected to the flimsiness of hearsay used by an immigration

77 Id. 78 See, e.g., Nubby v. Scott, 190 So. 911, 913 (Miss. 1939). 79 Id. at 912–13. 80 Id. at 913. 81 Id.; see also Finley v. Aiken, 1 Grant 83, 97 (Pa. 1854) (rejecting an analogy to English law on the basis that the statute being interpreted “has no more reference to the English law, or to the law of any other foreign state, than it has to the Mahometan religion”). 82 Callaghan v. McGown, 90 S.W. 319, 320 (Tex. Civ. App. 1905). 83 Id. at 327. 84 Fergusson v. Brent, 12 Md. 9, 23 (1857). 85 See United States v. Wong Chung, 92 F. 141, 143 (N.D.N.Y. 1899); Steel Clad Bath Co. v. Mayor, 77 F. 736, 738 (S.D.N.Y. 1896), rev’d sub nom. Steel-Clad Bath Co. v. Davison, 80 F. 904 (1897). 16 Boston College Journal of Law & Social Justice [Vol. 32:1 collector to deny a Chinese student entrance into the United States and complained that the hearsay was “such stuff as dreams are made on,” and the collector could have justified his course as well by asserting that it was dictated by a communication from the spirit world, or that it was supported by the revelations of the Koran. No man whose brain is in a normal condition would regulate the most trivial affairs of life upon such information.86 Likewise, in a bathtub patent infringement suit, Judge Coxe of the Southern District of New York pointed out that patent law would become ridiculous if an infringer’s slight design modifications could ne- gate patent protection.87 He noted that “[t]o inform an inventor that he has a valid patent and so construe it afterwards that it is of no more practical use than a page of the Koran, is neither a logical nor an equi- table position for the court to assume.”88 Courts also cited the Qur’an when demonstrating a clear non se- quitur. Judge Masterson of the Supreme Court of Texas upheld a plaintiff’s right to sue on a debt payable in stock and stated that to cite to one particular case involving bribery “would be as logical and as appropriate to read a chapter from the Koran.”89 Similarly, the Ohio Su- preme Court decided that a Kentucky statute printed on a warehouse receipt had nothing to do with the legal status of the receipt and exaggerated that, “except to facilitate deception, that act had no more to do with the receipt than a chapter from the Koran.”90 In New York, a plaintiff’s lawyer illustrated that the clerk of court could decide an answer’s validity by noting that “[i]f a writing, denying the existence of the Ko- ran, or stating any other absurd or irrelevant matter, but sworn to . . . and called an answer, had been served,” then the clerk could rule that the defendant had not answered.91 The Qur’an played into reductio ad absurdum arguments in cases involving church and other property disputes.92 In the South Carolina case of Harmon v. Dreher, church congregational partners disagreed on

86 92 F. at 142–43; see also McDonough v. First Nat’l Bank of Houston, 34 Tex. 310, 318 (1871). 87 Steel Clad Bath Co., 77 F. at 738. 88 Id. 89 McDonough, 34 Tex. at 318. 90 Ensel v. Levy, 19 N.E. 597, 600 (Ohio 1889). 91 Philips v. Prescott, 9 How. Pr. 430, 431 (N.Y. Sup. Ct. 1854). 92 See Hale v. Everett, 53 N.H. 9, 30 (1868); Harmon v. Dreher, 17 S.C. Eq. (Speers Eq.) 87, 124 (1843). 2012] Islam in the Mind of American Courts: 1800–1960 17

the sect to which the church belonged.93 The court attempted to show the absurdity of allowing a majority of the congregation to change the doctrinal stance of the congregation in contravention of its founding theology. The court posited: Suppose a majority should next year spring up in favor of the Roman Catholic or Mohammedan Religion, and introduce auricular confession and indulgences, or the Koran, into this congregation, would not these defendants, however small a minority they might form, see and feel that their liberties were trampled on, by so gross a violation of the contract of association contained in their charter?94 Similarly, a New Hampshire court suggested how silly it would be if a court could not enjoin a dissenting congregation from turning its meeting house into a “Mohammadan mosque,” synagogue, or even a place of public amusement.95 And a South Carolina court suggested how “per- verted” a charter might be “from its original design” if a “Jewish synagogue . . . were to be converted into a Turkish mosque.”96 Among other examples, Wilson v. Presbyterian Church of St. John’s Island and Wadmalaw involved a trust to pay a “minister of the Gospel” who adhered to the “Westminster confession of faith.”97 The court gave an example of when a judge might appropriately find that a pastor failed to adhere to “right doctrine.”98 It would be an easy inquiry, the court suggested, “if the pastor had openly declared his disbelief in the Westminster confession of faith, and avowed his belief in the doctrines of the Koran and preached them to his congregation.”99 So too, in considering the extent of Congress’ limited power to lay taxes, a Kansas Court of Appeals cited Justice Joseph Story’s Commentaries on the Consti- tution of the United States in noting that a tax for objects “wholly extrane-

93 See 17 S.C. Eq. at 91, 96–98. 94 Harmon, 17 S.C. Eq. at 124; see also Klix v. Polish Roman Catholic St. Stanislaus Par- ish, 118 S.W. 1171, 1176 (Mo. Ct. App. 1909) (quoting the passage from Harmon); Trustees of the Organ Meeting House v. Seaford, 16 N.C. (1 Dev. Eq.) 457, 459–60 (1830) (holding that, in a congregational schism case, the original congregation keeps the land, but noting that, “[w]hether the grantor would have any claim to it, in case the church were to become Mahometan or Pagan, or profess their belief in the heathen mythology, I am not now, nor shall I ever be called upon to give an opinion”). 95 Hale, 53 N.H. at 30. 96 State ex rel Ottolengui v. Ancker, 31 S.C.L. (2 Rich.) 245, 268–69 (1846). 97 19 S.C. Eq. (2 Rich. Eq.) 192, 192–93 (1846). 98 Id. at 215. 99 Id. at 217–18. 18 Boston College Journal of Law & Social Justice [Vol. 32:1 ous, (as, for instance, for propagating Mahometanism among the Turks . . .)” is beyond the taxing power of Congress.100 The Mississippi Supreme Court further pressed the notion that Islam strays far from Christian or Jewish religions by illustrating when a diversion of a bequest—in this case, to a Greek school—would violate a testator’s intent.101 The Court described two examples that would go too far: a bequest by a Jew for “an assembly for reading the Jewish laws” would violate the testator’s intent if used to support a Christian preacher and chapel, or “a Moslem school for the instruction of Turk- ish girls in the principles of the Koran.”102 Though the gift was arguably within the cy pres construction of the will, “no one could for a moment pretend that that was what the testator meant.”103 Occasionally, courts attempted to suggest a gulf between Qur’anic and common legal and religious principles. Perhaps the highest profile example is Justice Frankfurter’s U.S. Supreme Court citation of John Quincy Adams’s address celebrating the fiftieth anniversary of Wash- ington’s inauguration to explain the founding fathers’ views on international relations with non-Christian nations.104 President Adams contrasted the Christian view of the state of nature as “‘a state of peace’” with the “‘Mahometan law of nations, which considered the state of nature as a state of war—an Asiatic law of nations, which excluded all foreigners from admission within the territories of the state . . . .’”105 In Dainese v. United States, one of a number of cases involving the rights of “Christians residing or traveling in Mohammedan countries,” the court

100 Kan. Gas & Elec. Co. v. City of Independence, 79 F.2d 32, 39 (10th Cir. 1935) (quoting 2 Joseph Story, Commentaries on the Constitution of the United States 382 (1st ed. 1833)). 101 Nat’l Bank of Greece v. Savarika, 148 So. 649,650, 654 (Miss. 1933). 102 Id. 103 Id.; see also Denson v. Beazley, 34 Tex. 191, 202–03 (1871). As another odd example, see Pelton v. Ward, where the Supreme Court of New York noted that it would not be slan- derous to call someone a “Mahometan, or a jacobin.” 3 Cai. 73, 79–80 (N.Y. Sup. Ct. 1805) (Livingston, J., dissenting). In In re Taylor’s Estate, the court decided that the American Bible Society (ABS) is not an institution incorporated only for purposes of public charity simply because it distributes sectarian King James Bibles. See 40 N.E.2d 936, 937–38 (Ohio 1942). The Court attempted to illustrate the absurdity of the ABS’s view that it is a public charity by suggesting that, if the distribution were of the Koran or the teachings of Buddha or Confucius, the non-existence of a public charity would be obvious notwithstanding the relationship between religion, morality, and knowledge, values that are necessary for good government. See id. at 938. But see Executors of Joseph Burr v. Smith, 7 Vt. 241, 283 (1835) (noting the right of denominations, including Mahometans, to associate and be equally protected in building their houses of worship). 104 See Reid v. Covert, 354 U.S. 1, 58 n.8 (1957) (Frankfurter, J., concurring). 105 Id. 2012] Islam in the Mind of American Courts: 1800–1960 19

noted the “radical distinction between Mohammedanism” and Western legal systems grounded in “Roman law and Christian civilization.”106 One New York Court of Appeals judge, dissenting in Marshall v. Moseley, attempted to explain why the history of English law on the respective rent rights of a life tenant and a remainderman was not binding on American courts. The judge opined that English property law is as in- compatible with American social and political values “as many of the maxims of the Koran are with the genius of Christianity.”107 A New Jer- sey chancellor similarly suggested that the religious difference between “the pagan, the mahometan, the christian, and the Jew, is radical and irreconcilable.”108 On the other hand, a few courts attempted to show respect for Muslims and Islam, although sometimes they did so almost backhand- edly. As one consistent theme of respect, courts noted the sincere and steadfast adherence of Muslims to the Qur’an as the binding principle of their lives. For example, in Dainese, the court acknowledged the Is- lamic view that “the Koran [is] the only source of human legislation and the only law for the government of human affairs . . . .”109 Similarly, the Kentucky Court of Appeals suggested that an attack on a state political convention decision would be “as if the Mohammedan should doubt the Koran . . . .”110 Other courts used the Qur’an as a metaphor for the common law when noting an English judge’s reliance on Black- stone’s Commentaries, which were “believed to be as unchanged and unchangeable as the Koran.”111 Perhaps the most backhanded attempt to praise the Qur’an occurred in Ellis v. Newbrough, where a fallen-away “Faithist” attempted to sue his religious community for luring him in and taking his property.112 In finding that the convert was not deceived, the court compared the sacred writings of this cult to the Qur’an and the Pilgrim’s Progress, which “deal[] largely in figures and tropes and

106 15 Ct. Cl. 64, 71 (1879). 107 Marshall v. Moseley, 21 N.Y. 280, 281–92 (1860) (Clerke, J., dissenting). 108 Hendrickson v. Shotwell, 1 N.J. Eq. 577, 674 (1832). The Court went on to note that the Christian and Jew “worship the same God; but one approaches him through a Mediator, whom the other regards as an imposter; and hence, there can be no commun- ion or fellowship between them.” Id. 109 15 Ct. Cl. at 71. 110 Cain v. Page, 42 S.W. 336, 337 (Ky. Ct. App. 1897); see also Twombly v. Smith, 55 P. 254, 259 (Colo. 1898) (quoting Cain, 42 S.W. at 337). 111 Merrick v. Giddings, 11 D.C. (MacArth. & M.) 55, 64 (1879). This passage is quoted in Berlet v. Weary. 93 N.W. 238, 240 (Neb. 1903). 112 27 P. 490, 490 (N.M. 1891). 20 Boston College Journal of Law & Social Justice [Vol. 32:1 allegories. But, read in the light of modern sciences, they are beautiful in their very simplicity.”113 In terms of how the courts believed that Islam was viewed in American social life in this period, one of the most painful cases— reminiscent of the argument made in Palmore v. Sidoti—is also one of the most recent. 114 In In re Wing, a mother who converted to Islam applied to change both her daughter’s name and her own to Islamic names so that her child could fit in with other Muslims with whom she attended religious school.115 In rejecting the request for the child’s name to be changed using the best interest of the child standard, the court noted: [S]uch change may have an adverse effect. This child has other family ties. She attends public school. She was born in this country and is a citizen thereof. While the mother may choose a religion and a name to suit her own purposes, she should not be permitted to adopt, with the court’s approval, a name for her infant daughter that will set her apart and seem strange and foreign to her schoolmates and others with whom she will come in contact as she grows up.116

B. What Courts Knew (or Thought They Did) About Islamic Law Most commonly, when American courts in this period attempted to describe substantive Islamic law, they focused on usury and domestic relations. There were, however, isolated discussions on a few other issues such as the prohibition of alcohol and the responsibility for ablution (washing) before prayer.117 As might be expected, courts cited the Is- lamic laws on usury and temperance favorably, while considering Islamic

113 Id. at 493. 114 See 466 U.S. 429, 433 (1984). In Palmore, the Supreme Court decided that a change of custody could not be based on the social stigma a child might suffer when her white mother married an African-American man. See id. 115 157 N.Y.S.2d 333, 334–35 (City Ct. 1956). 116 Id. at 335–36. The Court gave the mother leave to renew her petition when the child was sixteen and old enough to decide for herself what name she wanted. See id. at 336. But see Pelton, 3 Cai. at 79–80 (Livingston, J., dissenting) (noting that it would not be libelous to call someone a “Mahometan, or a jacobin”). 117 See Harmon v. Dothan Nat’l Bank, 64 So. 621, 624 (Ala. 1914); infra notes 128–129 and accompanying text. The court likened a mortgage foreclosure to Muslim worship, noting “the mortgagee need not, before approaching the auction block, cleanse his heart of all covetousness, as the pious Mussulman cleanses his body before entering a mosque.” Id. 2012] Islam in the Mind of American Courts: 1800–1960 21 law on polygamous marriage, like the similar Mormon views, scandal- ous. There are a fair number of cases that referred to Islamic law in discussing usury, though courts were not clear about the nature of the prohibition. Traditionally, Islamic law prohibited the lending of money with unjustified increase (riba), ambiguity (gharar), or risk.118 The American courts of this period were not sure whether Islamic law prohibited any interest or only excessive interest but, in any case, cited Is- lamic law as a ground for upholding public policy against usury, even when there was no prohibitory statute. A later example where the court cited Corpus Juris is State ex rel Embry v. Bynum, in which Alabama attempted to shut down a loan shark business: It seems that the taking of interest for the loan of money, or at least taking excessive interest, has been regarded with abhor- rence from the earliest times. We are told that such usury was prohibited by the early laws of the Chinese and Hindus, and by the Koran. The Mosaic law prohibited the Jews from exact- ing interest on loans to their brethren, but permitted interest to be taken from Gentiles.119 A New Hampshire court mentioned the Qur’an along with the Old Tes- tament, Aristotle, “and the Ancient Fathers” in condemning inflexible or oppressive rates of interest.120 For some courts, these similarities were surprising—a dissenting judge in a Kentucky prosecution felt com- pelled to note that it is “‘a little singular’” that the Roman and Euro- pean laws against usury “‘have been raised in the laws of China, in the Hindu Institutes of Menu, [and] the Koran of Mahomet . . . .’”121

118 See Ali Adnan Ibrahim, The Rise of Customary Businesses in International Financial Mar- kets: An Introduction to Islamic Finance and the Challenges of International Integration, 23 Am. U. Int’l L. Rev. 661, 664 (2008). 119 9 So. 2d 134, 139 (Ala. 1942) (quoting 66 C.J. Usury § 5 (1934)) (noting that the policy is also supported by divine authority, namely Exodus 22, as well as Athenian, Roman, European, and English law); see also Sherwood v. Roundtree, 32 F. 113, 124 (S.D. Ga. 1887) (citing the Qur’anic rule against usury along with Chinese, Hindu, and “the laws of all nations that we know of”); Willis v. Buchman, 199 So. 892, 896 (Ala. 1940); Dunham v. Gould, 16 Johns. 367, 376–77 (N.Y. 1819) (citing the Qur’anic rule against usury along with Chinese, Hindu and “the laws of all nations that we know of” except for the Athenian Republic); Win- stel v. American Loan Co., 30 Ohio N.P. 537, 539 (1933); Wessel v. Timberlake, 116 N.E. 43, 46 (Ohio 1916) (citing similar laws as well as Abraham Lincoln); Wheeler v. Remedial Loan Co. of Phila., 25 Pa. D. 793, 796 (1916). 120 See Houghton v. Page, 2 N.H. 42, 45 (1819). 121 Commonwealth v. Donoghue, 63 S.W.2d 3, 6–7 (Ky. Ct. App. 1933) (quoting Dunham, 16 Johns. at 376). 22 Boston College Journal of Law & Social Justice [Vol. 32:1

By contrast, when courts discussed women’s issues, they sorted into those that understood Muslim women’s marital situation to be tyranni- cal and backward, and those that favorably compared women’s rights in Islam, albeit with insulting language.122 On one hand, the New York Chancery Court rejected a consensual divorce by noting that, to find legal authority for a “dangerous relaxation of the marriage tie” not “tolerated among the Christian nations,” one must “go, in search of such loose notions of the obligation, to the half-civilized people of Asia, where polygamy prevails” and there is “an almost unlimited freedom of divorce.”123 And Chief Justice Merrick of the Louisiana Supreme Court, dissented in a choice-of-law case about the inheritance rights of an out- of-wedlock child by noting that “[t]he child of the fourth wife of the Mohamedan, and the child perhaps of the thirtieth wife of the Mor- mon, have the status of legitimacy in their own countries” but not in the United States. 124 On the other hand, a couple of courts remarked on the relatively enlightened Islamic view of women’s rights in inheritance. In Young v. Newsom, the court compared the common law’s unjust assumption that men owned their wives’ property, making wives their “chattel,” with a relatively more enlightened view protecting even “those [women] living in semicivilized countries under the domination of the Koran.”125 Less insultingly, at least to Muslims, the New Hampshire Superior Court noted that marriage is a civil and not religious institution, as recognized by “every religion, whether pagan, mahometan, jewish, or christian.”126

122 See Van Veghten v. Van Veghten, 4 Johns. Ch. 501, 503 (N.Y. Ch. 1820); Young v. Newsom, 104 S.E. 660, 661 (N.C. 1920) (Clark, J., concurring). 123 Van Veghten, 4 Johns. Ch. at 502–03 (citing Sale’s Koran and other English translations of foreign laws); see also In re Estate of Nakuapa, 3 Haw. 342, 352 (1872) (Hartwell, J., dissenting) (remarking on the more common adoption of heirs “in eastern countries where plural- ity of wives is allowed, [and] where a laxity in the marriage tie exists”). 124 Scott v. Key, 11 La. Ann. 232, 241 (1856) (Merrick, C.J., dissenting); see also Royal v. Cudahy Packing Co., 190 N.W. 427, 427–28 (Iowa 1922) (granting a worker’s compensation award to a citizen of the Ottoman Empire, even though she was married “according to Mohammedan law,” because her marriage was not polygamous—but noting that Muslims were permitted to have up to four wives). 125 104 S.E. at 661 (Clark, J., concurring); see also Crowell v. Crowell, 105 S.E. 206, 210 (N.C. 1920). 126 Town of Londonderry v. Town of Chester, 2 N.H. 268, 278 (1820); see also State v. Fry, 4 Mo. 120, 142 (1835) (noting that unlike the Romans and Turks, the Jews, the pagans, Greeks, and “Mahometans” permitted only one kind of divorce). Another interesting case involving interreligious prejudice is Kupau v. Richards, in which an elder of the Church of Latter Day Saints who was denied a tax exemption for Christian clergymen admitted that his church believed in the New Testament and polygamy but denied that he was “a Mohammedan” or “accept[ed] the Koran.” See 6 Haw. 245, 245–46 (1879). 2012] Islam in the Mind of American Courts: 1800–1960 23

The court, however, did go on to disparage the opposing Catholic view of marriage as a sacrament, describing it as “one of the corruptions of popery.”127 One can also find singular references to courts’ views of other Is- lamic legal rules. The Indiana Supreme Court, holding that a law prohibiting alcohol was unconstitutional, noted that “Mahomet” was the first to prohibit alcohol as “part of his religious creed” while Jewish and Christian communities forbade only excessive drinking.128 Since this “law of Mahomet” was not “adopted by civilized nations” until recent times, the Indiana court considered it inapposite to the law’s constitutionality.129 In the area of real property, the courts opined on Islamic law in ways that reflect both respect and prejudicial ignorance. As an example of the former, in justifying the Fifth Amendment’s rule against deprivation of private property for public use, three different state courts nar- rated the story of the Sultan Mustapha.130 According to the story, Mustapha complied with his Mufti’s pronouncement that he could not simply take the property of a Jew to build a mosque and must pay him full rent, because the Prophet held that private property was sacred.131 The Maryland Court of Appeals resolved an inheritance matter—in which family members died together in a flood—by referring to Roman and French law, as well as “the Mahometan law of India” which pre- sumes that all relatives who die together die “at the same moment.”132 On the other hand, Justice Campbell referred to Islamic waqf (or “va- kuf,” as he spelled it) law that he claimed leaves three quarters of all property under dead-hand control and fails to contribute to public welfare.133 This is because property owned by mosques and charities is not alienable except on behalf of the “Uelmas [who] are both priests and

127 Town of Londonder r y, 2 N.H. at 278. 128 Herman v. State, 8 Ind. 545, 550, 556–57 (1855). 129 Id. An appellant in a U.S. Supreme Court similarly referred to the Islamic prohibition against alcohol in upholding state liquor restrictions under the Commerce Clause. Fletcher v. Rhode Island, 46 U.S. 504, 542, 546 (1847). 130 See Newby v. Platte County, 25 Mo. 258, 261–62 (1857); Lindsay v. Commissioners, 2 S.C.L. (2 Bay) 38, 60 (1796) (Waties, J., concurring); Whidbea White v. Nashville & Nw. R.R. Co., 54 Tenn. 518, 537 (1872). 131 Newby, 25 Mo. at 261–62. 132 Cowman v. Rogers, 21 A. 64, 65 (Md. 1891); see also In re Estate of Nakuapa, 3 Haw. at 353 (noting that the English permitted “Mohamedan, Hindoo and Gentoo” inheritance law to be retained alongside English law in India) (Hartwell, J., dissenting). 133 Dodge v. Woolsey, 59 U.S. 331, 370 (1855) (Campbell, J., dissenting); Matheny v. Golden, 5 Ohio St. 361, 399–400 (1856) (Bartley, C.J., dissenting) (quoting Dodge, 59 U.S. at 370). 24 Boston College Journal of Law & Social Justice [Vol. 32:1 lawyers,” not unlike the oppressive corporations in Ohio.134 Islam also entered the discussion of validity of a slavery contract when a Massachu- setts appellate court remarked that both “Mahometans” and Christians have held “that the whole race of infidels might rightfully be reduced, by fire and sword,” to slavery, “to the disgrace of human nature.”135

C. Religious Equality for Islam in America By far the most common references to Islam occurred in church and state cases, in which courts adjudicated claims that state law pre- ferred the Protestant or Christian religion over others. As a general rule in these cases, courts stressed the equality of the Muslim faith before the law, even in those cases where they ultimately decided that a preference for the Protestant religion is constitutional. For example, in Perry v. Commonwealth, the General Court of Virginia pronounced the ringing protections of the Virginia Bill of Rights: Declaring to the Christian and the Mahometan, the Jew and the Gentile, the Epicurean and the Platonist, (if any such there be amongst us,) that so long as they keep within its pale, all are equally objects of its protection; securing safety to the people, safety to the government, safety to religion; and (leaving reason free to combat error) securing purity of faith and practice far more effectually than by clothing the ministers of religion with exclusive temporal privileges . . . .136 Perhaps the oddest attempt to declare the equality of all religions is found in Herold v. Parish Board of School Directors.137 In surveying the various versions of the Bible—such as the King James, Douai, and Luther Bibles—the court also added “the Rabbinical Bible” and “the Koran, often called the Mohammedan Bible.”138 Although recognizing variations among these “bibles,” the court determined that it was not within its province to describe the differences but that they were immaterial to the controversy.139 The most frequent declaration of the equality of Muslims during these years came in oath cases, in which atheists challenged refusals to admit their testimony in court. In these cases, the courts generally

134 Dodge, 59 U.S. at 370. 135 Greenwood v. Curtis, 6 Mass. (5 Tyng) 358, 365–66 (1810). 136 44 Va. (3 Gratt.) 632, 642 (1846). 137 68 So. 116, 117 (La. 1915). 138 Id. 139 See id. 2012] Islam in the Mind of American Courts: 1800–1960 25 ruled, in accordance with English law, that “infidels who do not believe in a God, or if they do, do not think that he will either reward or punish them in the world to come, cannot be witnesses . . . because an oath cannot possibly be any tie or obligation upon them.”140 Unlike atheists, however, “Mahometans” believe in rewards and punishments in the after- life, and therefore, “may be sworn on the Koran,” just as Jews may be sworn on the Pentateuch and other religions with concepts of the after- life may be sworn according to their customs.141 The most ringing yet still derogatory defense of the rights of Mus- lims and other non-Christians comes in cases adjudicating blasphemy.142 In State v. Chandler—a case that rings familiar in the modern era regarding controversy about riots provoked by insults to the Prophet Mohammad—the court considered whether a defendant may be convicted for saying that the virgin Mary was a whore and Jesus Christ a bastard.143 In a lengthy historical discursus distinguishing the right of the individual not to be punished for blasphemy because of honest views and the right of the state to punish someone whose malicious blasphemy causes potential civil unrest, Chief Justice Clayton of the Dela- ware General Sessions Court posed an extended hypothetical involving both Muslims and Jews.144 What if, the court suggested, the majority of Delaware citizens should adopt the Jewish or Mahometan religion? What if the Christian should proclaim “the religion of Mahomet, or the impostures of Joe

140 Tuttle v. Gridley, 18 Johns. 98, 103 (N.Y. Sup. Ct. 1820) (emphasis omitted); see also Atwood v. Welton, 7 Conn. 66, 69 (1828); Perry, 44 Va. at 638. 141 Tuttle, 18 Johns. at 103; see also United States v. Miller, 236 F. 798, 799–800 (W.D. Wash. 1916) (noting that a Gentoo is sworn by touching his hand to the foot of a Gentoo priest, and a Chinese person by breaking a china saucer); Atwood, 7 Conn. at 69, 85 (noting that Mahometan and Jewish “ideas of a future state are . . . very indistinct and loose” and that a person’s reputation for truth is a more reliable test for a witness than his faith, because a Christian will not have any confidence “in the testimony of a Mahometan, who believes that paradise is his inevitable portion”); Cent. Military Tract R.R. Co. v. Rockafel- low, 17 Ill. 541, 553–54 (1856); Gill v. Caldwell, 1 Ill. 53, 53–54 (1822); People ex rel Bryant v. Zimmerman, 150 N.E 497, 499 (N.Y. 1926) (quoting Webster’s dictionary for the definition of a promissory oath as “‘a solemn appeal to God, or, in a wider sense, to some superior sanction or a sacred or revered person (as . . . the Koran . . .) in witness of the inviola- bility of a promise or undertaking’”); Thurston v. Whitney, 56 Mass. 104, 109–10 (1848) (suggesting that the belief in the obligation of an oath is the correct test for witness competency, rather than a witness’s religion); Commonwealth v. Kipnis, 26 Pa. D. 927, 932 (1917); Arnold v. Estate of Arnold, 13 Vt. 362, 367–68 (1841) (noting that a mahometan may feel his oath “as binding upon his conscience, as the most devout Christian”). 142 See State v. Chandler, 2 Del. (2 Harr.) 553, 568 (1837). 143 See id. at 553; Robert A. Kahn, Flemming Rose, The Danish Cartoon Controversy, and the New European Freedom of Speech, 40 Cal. W. Int’l L.J. 253, 260–63 (2010). 144 See Chandler, 2 Del. (2 Harr.) at 566–72. 26 Boston College Journal of Law & Social Justice [Vol. 32:1

Smith, . . . . forsak[ing] the faith of their forefathers for such miserable delusions”?145 While the right of the individual to change religion is preserved by the Constitution, the court asked whether anyone could doubt that a statute punishing those who maliciously and loudly revile or ridicule the Prophet in public, calling him a bastard and his mother a whore, would be constitutional.146 Would the people have to suffer the insult of a man who would “gibbet[] the image of the prophet in view of the public, or burn . . . the koran by the hands of the common hangman?”147 The court concluded not, suggesting that the state may either punish all blasphemers, including those who insult the faith of minority Muslims, or none at all.148 Sometimes courts invoked the legal equality of Muslims when determining the constitutionality of statutes allegedly establishing Chris- tian or Protestant religions, although these opinions rarely found an establishment or equality violation.149 For example, in Caldwell v. State, a defendant brought a habeas corpus action after his conviction for working on Sunday in violation of Nebraska’s blue laws.150 His lawyer unsuccessfully claimed that the law discriminated against minority religions, particularly Muslims who have to observe both Friday and Sunday as their days of rest, while Jews and Seventh Day Adventists were given an

145 See id. at 571. 146 See id. at 568. 147 See id. at 569. 148 See id. at 579. People v. Ruggles is another blasphemy case, in which the defendant’s lawyer claimed that the Constitution requires toleration of all religious opinions and permits only punishment of licentious conduct. See 8 Johns. 290, 291–92 (N.Y. Sup. Ct. 1811). Chief Justice Kent, responding to the argument, noted that such profane scoffing, like obscenity, injures the morals of children and violates decency and good order. Id. at 294– 95. Also note Commonwealth v. Kneeland, where the court rejected the defendant’s argument that the Constitution permits Muslims to ridicule the Christian religion and vice- versa, and held that the defendant may be punished for impairing the veneration due to God with an injurious intent. See 37 Mass. (20 Pick.) 206, 210, 225 (1838). The dissent noted that the state Bill of Rights protects the right of “all who believe in the existence of God, as well Jews, Mahometans and Deists, as Christians of every denomination. But clearly does not include atheists.” Id. at 233 (Morton, J., dissenting). 149 See Caldwell v. State, 118 N.W. 133, 135 (Neb. 1908). Two outlier cases involve Christian congregations that sued their neighbors for not ceding land to them for church extensions. See Parish v. Municipality No. 2, 8 La. Ann. 145, 145–47 (1853); Hills v. Miller, 3 Paige Ch. 254, 254–55 (N.Y. Ch. 1832). The courts noted that displaying a preference for churches over property owners “would render it equally proper for the Court to disregard [property owners’ rights] if the object of the defendants was to erect a ‘Hall of Science,’ or a Turkish Mosque.” See Parish, 8 La. Ann. at 157 (quoting Hills, 3 Paige Ch. at 258–59). 150 See 118 N.W. at 134. 2012] Islam in the Mind of American Courts: 1800–1960 27 exemption, permitting them to work Sunday if they take off Satur- day.151 Making an assumption-of-risk argument, the court noted: We doubt very much whether there were any disciples of Ma- homet in Nebraska in 1873, and those who have emigrated to Nebraska since that day came here with full knowledge of the Sunday statute, and their appearance in our commonwealth will hardly render unconstitutional and void an act of the Leg- islature that theretofore was valid.152 The Massachusetts Supreme Judicial Court, on similar reasoning, distinguished between the constitutional freedom of religious worship and opinion—granted to all including Muslims—and the teaching of Protes- tant Christianity which can be supported by the state.153 Similarly, in a few cases where taxpayers challenged the reading of scriptures in public schools, courts dismissed the notion that this reading impermissibly favored the Christian religion.154 A Michigan court spoke for others in arguing that the use of the Bible as a reading text does not violate religious belief any more than if a “chapter of the Ko- ran might be read,” which “would not be an affirmation of the truth of Mohammedanism, or an interference with religious faith.”155

151 See id. at 135. 152 Id. The Court also notes that Muslims can choose between Saturday and Sunday to work, just like everyone else. Id.; see also City Council of Charleston v. Benjamin, 33 S.C.L. (2 Strob.) 508, 525 (1846) (noting that while the state constitution abolished religious disabilities, so that “the Christian, Israelite, Mahometan, Pagan and Infidel, all stand alike,” the decisions of non-Christians to take a day other than Sunday off for work was not caused by the Sunday closing law but their own religion, and they must obey the law if they want to enjoy its benefits). 153 Barnes v. Inhabitants of the First Parish in Falmouth, 6 Mass. 400, 407 (1810). 154 See Pfeiffer v. Bd. of Educ., 77 N.W. 250, 252–53 (Mich. 1898); see also Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 593 (1940) (recognizing that individual convictions and the “[p]ropagation of belief . . . [are] protected, whether in church or chapel, mosque or synagogue, tabernacle or meeting-house”). An interesting historical note—in one of the landmark Bible reading cases, Schempp v. School District of Abington Township, the district court noted that Ellory Schempp, the complaining student, displayed his objection to his school’s Bible reading and Lord’s Prayer rituals by silently reading a copy of the Koran. See 177 F. Supp. 398, 400–01 (E.D. Pa. 1959); see also Oliver v. Saint Germain Found., 41 F. Supp. 296, 296, 299 (S.D. Cal. 1941) (deciding a copyright infringement suit against a defendant who argued that the text was given to him from spiritual entities, like the Book of Mormon, the Qur’an, and the Bible); Trs. of Columbia Univ. v. Jacobsen, 148 A.2d 63, 66 (N.J. Super. Ct. App. Div. 1959) (discussing a deceit counterclaim by a university student sued for tuition based on failure of Columbia University to teach him wisdom as promised, where the student quoted from the Koran and other ancient texts to define wisdom). 155 See Pfeiffer, 77 N.W. at 253; accord Donahoe v. Richards, 38 Me. 379, 399 (1854); State ex rel Freeman v. Scheve, 93 N.W. 169, 171 (Neb. 1903); see also Evans v. Selma Union High Sch. Dist., 222 P. 801, 803 (Cal. 1924) (permitting the King James version of the Bi-

28 Boston College Journal of Law & Social Justice [Vol. 32:1

Finally, Muslims were mentioned as equal citizens occasionally in challenges to taxes or tax-exempt status. In Executors of Joseph Burr v. Smith, the court noted the right of denominations, including “Maho- metans,” to associate and be equally protected in building their houses of worship.156 Similarly, in Turpin v. Locket, which determined the constitutionality of a public takeover of formerly established church lands, the court noted that religious freedom would not stop the legislature from permitting the majority of persons in a parish to choose their sect, even if they chose the “mahometan” religion.157

Conclusion Although cases from the nineteenth and early twentieth centuries give only tantalizing hints of the views of U.S. judges about Muslims and Islam at the time, three common themes do emerge. First, Islam is seen as a “non-American” religion, one that most judges cannot contemplate any American adhering or converting to, unless he is already a Muslim immigrant. Indeed, some American judges seem to take a peculiar de- light at poking fun at “Mohammadans” and their exotic views, often times with gratuitous comments. Second, some courts find that Islamic or Ottoman law presents a valuable comparative perspective when they are attempting to show that a legal principle enjoys world-wide approval, such as the protection of private property or the moral odiousness of usury. That respect, however, does not extend to what some judges understood to be the Islamic law of marriage, although others did recognize that Islamic law protects women better than English common law in some property matters. Third, despite their portrayal of the Islamic religion as “other” than American, the courts felt it necessary to repeat the principle that Mus- lims are entitled to and receive religious liberty just like Jews, Christians, and all others. Indeed, they affirmed the principle even when justifying ble to be purchased for the school library over an objection that it was sectarian, and noting that the library may already have copies of the Koran, as well as the Talmud, the Douia Bible, or Confucius’s teachings). 156 See 7 Vt. at 242. Two curious cases are In re McReynolds and In re Scottish Rite Building Co., in which the courts adjudicated appeals relating to tax-exempt status sought by Ma- sons. See In re McReynolds, 1 B.T.A. 815, 820 (1925); In re Scottish Rite Bldg. Co., 182 N.W. 574, 577 (Neb. 1921), overruled by Ancient & Accepted Scottish Rite of Freemasonry v. Bd. of Cnty. Comm’rs, 241 N.W. 93 (Neb. 1932). The courts distinguished ethical teachings from those of belief in a particular religion, referring to a “Mohammedan’s” required belief in the Koran. See In re Scottish Rite Bldg. Co., 182 N.W. at 577; accord In re McReynolds, 1 B.T.A. at 820. 157 See Turpin v. Locket, 10 Va. 113, 113–14, 151–52 (1804). 2012] Islam in the Mind of American Courts: 1800–1960 29 practices such as giving state tax dollars to Christian institutions, Chris- tian prayer and Bible reading in schools, and Sunday blue laws. The views expressed by the courts about Muslims and Islamic law during the nineteenth and early twentieth centuries thus track common American stereotypes during this period, albeit they are somewhat less virulent and occasionally more respectful than the average Ameri- can’s expressed views. It would be valuable to discover whether judicial views influenced social decisions, including Christian Americans’ decisions about how to interact with Muslims, or Muslims’ views about the extent to which they had to conceal their religious identities.

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UNDER THE CIRCUMSTANCES: PADILLA v. KENTUCKY STILL EXCUSES FUNDAMENTAL FAIRNESS AND LEAVES PROFESSIONAL RESPONSIBILITY LOST

Maurice Hew, Jr.*

Courts are almost universally in agreement that an assertion of ineffective assistance of counsel will prevail only where the trial representation was so inadequate as to amount to no counsel at all and the trial was reduced to a sham and a mockery of justice. —State v. Cathey1

© 2012, Maurice Hew, Jr. * Associate Professor, Thurgood Marshall School of Law, Texas Southern University; J.D., B.A., Loyola University of New Orleans; Board Certified Immigration and Nationality Law, Texas Board of Legal Specialization. This article was made possible through my Thurgood Marshall School of Law Summer 2009 Faculty research stipend. I would like to thank the Thurgood Marshall School of law and Ms. Haley M. Reynolds, my research assistant, for their support for my pre-tenured faculty scholarship. I would also like to thank the Southeastern Association of Law Schools (SEALS), which accepted this article for presentation at their 2011 annual meeting, and Professor Heather Baxter for serving as my SEALS mentor. I would also like to thank the Boston College Journal of Law & Social Justice and the countless others who provided me with guidance on this article. A special word of thanks to my wife, Beth, and our children, Joshua and Sarah, for their patience from someone who tried theirs on vacation. This article is also dedicated to FYK who precipitated this research. 1 145 N.W.2d 100, 103 (Wis. 1966).

31 32 Boston College Journal of Law & Social Justice [Vol. 32:31

Introduction In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires lawyers to inform their clients of pertinent and potential immigration consequences regarding criminal convictions.2 As a result, the Court raised the constitutional attorney performance standards to meet the prevailing norms of attorney practice that, since the mid-1990s, requires criminal defense attorneys to advise clients of deportation risks.3 The scope of Padilla’s attorney performance mandate, however, is limited to situations where pertinent immigration consequences are “truly clear.”4 Where immigration laws are not truly clear, counsel must, at a minimum, “do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”5 While the Padilla decision is a step forward for immigration rights advocates, its “vague half-way test” still allows for unsatisfactory performance by attorneys unfamiliar with—or perhaps unwilling to learn— immigration law.6a Padill is a mere application of Strickland v. Washington, which holds attorneys to an objective standard of reasonableness, and

2 130 S. Ct. 1473, 1486 (2010). Justice Stevens delivered the opinion of the Court in which Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined. The Sixth Amendment reads in full: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. U.S. Const. amend. VI. 3 Padilla, 130 S. Ct. at. 1485–86 (“For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea.”); see Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699 (2002) (over thirty states and eleven circuit court decisions had all held that there was no constitutional duty to inform of collateral consequences); see also Strickland v. Washington, 466 U.S. 668, 688–89 (1984) (“Any such set of rules [regarding counsel’s conduct] would interfere with the constitutionally protected independence of counsel . . . .”). 4 Padilla, 130 S. Ct. at 1483. 5 Id. (emphasis added). 6 See id. at 1487 (Alito, J., concurring); Strickland, 466 U.S. at 669–70. Justice Alito’s concurring opinion, in which Chief Justice Roberts joined, refers to the majority’s truly- clear test as a “vague, half-way test.” Padilla, 130 S. Ct. at 1487. It is important to note that this article considers the “stricter rules of practice” substantially similar to the rules of professional responsibility, including but not limited to the American Bar Association’s (ABA) Model Rules of Professional Conduct. 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 33 not an adoption of the American Bar Association’s (ABA) more compelling Rules of Professional Responsibility.7 As such, Padilla’s disjointed attorney performance standard may leave uncertainties for noncitizen clients making the crucial decision of whether to plead guilty.8 Padilla’s truly-clear test for reasonable attorney performance will likely foster further immigration misadvice or incomplete advice by public defenders who are not necessarily familiar with immigration law but are expected by courts to advise clients on the immigration-related consequences of a conviction.9 There is also a continuing danger of private or appointed attorneys decidedly doing no more—or opting out of competence—because the effects of certain immigration laws are not truly clear.10 When private attorneys are unwilling to effectively inform clients of potential immigration-related consequences of a criminal conviction—and public defenders do not have the resources to appropriately do so—Padilla disadvantages clients, still erroneously excuses fundamental fairness, and leaves professional responsibility lost.11 Using Padilla as a backdrop, this Article critically analyzes competent representation of aliens in criminal proceedings.12 In Part I, this Article presents the Padilla decision and a brief case history, including the Supreme Court’s interpretation of the Sixth Amendment’s attorney

7 See Padilla, 130 S. Ct. at 1476; Strickland, 466 U.S. at 669. 8 See Padilla, 130 S. Ct. at 1483 (explaining that when the law is not truly clear, “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences”). 9 Private and court appointed attorneys are distinguished from public defenders, as the latter are precluded from the private practice of law pursuant to 18 U.S.C. § 3006A(g)(2)(A) (2006). See Flores v. State, 57 So. 3d 218, 219, 221 (Fla. Dist. Ct. App. 2010) (holding that, even though an attorney erroneously advised his client to plead to the reduced charge of possession of drug paraphernalia as opposed to the possession of marijuana, the defendant’s guilty plea “assumed the risk of deportation”); Immigration & Nationality Act (INA) 8 U.S.C. § 1227(a)(2)(B)(i) (2006) (making deportable any noncitizen convicted under any law related to a controlled substance with the exception of a single offense of possession of thirty grams or less of marijuana); see also Maureen A. Sweeney, Where Do We Go from Padilla v. Ken- tucky? Thoughts on Implementation and Future Directions, 45 New Eng. L. Rev. 353, 357 (2011) (“Given the previously unrecognized constitutional duty of criminal defense counsel to advise about immigration consequences and the fact that most criminal defense attorneys are not familiar with immigration law, it is clear that there is a very large educational task ahead as a result of Padilla.”). 10 See Padilla, 130 S. Ct. at 1483. 11 See id. 12 Model Rules of Prof’l Conduct R. 1.1 (2011) (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”). Though the term alien is derogatory, it is defined in the INA as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). 34 Boston College Journal of Law & Social Justice [Vol. 32:31 performance standards as established in Strickland. Part II moves from the constitutional standards of attorney performance to the prevailing professional norms of practice, insofar as they are articulated by the ABA Rules of Professional Responsibility. This part uses the facts from Padilla to establish the level of advice for immigration removal and relief that should be expected of competent criminal counsel under the ABA Model Rules of Professional Conduct. This analysis demonstrates that the potential for deportation in Padilla’s case was not “truly clear” because one needs to do more than read the text of the immigration statute to establish whether a guilty plea would result in removal. Finally, Part III addresses the Padilla majority’s truly-clear standard with criticism and suggests an alternative, bifurcated attorney performance test in an effort to provide a workable solution that preserves fundamental fairness for clients and encourages professional responsibility for lawyers. This part argues that the Supreme Court should have bifurcated its analysis, separating the standards of professional conduct expected of public defenders from those of private or appointed attorneys.

I. Strickland Applies to Padilla’s Claim In Padilla v. Kentucky, the Supreme Court applied the Strickland v. Washington attorney performance test.13 The Padilla Court held that immigration advice is not collaterally or categorically excluded from the ambit of the Sixth Amendment’s guarantee of effective assistance of counsel.14 In Strickland, the Supreme Court clarified that counsel is ineffective if two requirements are met: (1) performance deficiency and (2) prejudice.15 In its decision, the Padilla Court clarified the three competing approaches used to determine whether the Sixth Amend- ment right to effective assistance of counsel applied to an attorney’s advice concerning immigration consequences of a criminal conviction, rejecting them and implementing the truly-clear standard.16

13 Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010); see Strickland v. Washington, 466 U.S. 668, 687 (1984). 14 See Padilla, 130 S. Ct. at 1486; Strickland, 466 U.S. at 687; Commonwealth v. Padilla, 253 S.W.3d 482, 485 (Ky. 2008), reversed and remanded sub nom. Padilla v. Kentucky, 130 S. Ct. 1473 (2010). 15 Strickland, 466 U.S. at 687. 16 See Padilla, 130 S. Ct. at 1482–84; Brief of the American Bar Association as Amicus Curiae in Support of Petitioner at 5–7, Padilla v. Kentucky, 130 S. Ct. 1473 (No. 08-651); Darryl K. Brown, Why Padilla Doesn’t Matter (Much), 58 UCLA L. Rev. 1393, 1397 (2011); Peter L. Markowitz, Deportation Is Different, 13 U. Pa. J. Const. L. 1299, 1303–04 (2011); infra notes 41–50 and accompanying text. 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 35

A. Background: Padilla v. Kentucky Jose Padilla was born in Honduras and was a legal permanent resident alien of the United States for over forty years before his arrest.17 He arrived in the United States in the 1960s and later honorably served the U.S. military in Vietnam.18 Prior to his arrest, Padilla lived in La Puente, California with his family.19 He worked as a commercial truck driver under a Nevada commercial driver’s license.20 In 2001, law enforcement officers at a Kentucky weigh station stopped Padilla for not having a weight and distance number on his truck.21 He consented to a search of the truck and officers found approximately one thousand pounds of marijuana.22 In October of 2001, a Hardin County, Kentucky grand jury indicted Padilla for misdemeanor possession of marijuana, misdemeanor possession of drug paraphernalia, felony trafficking in marijuana, and failing to have a weight and distance tax number on his truck.23 He subse-

17 Padilla, 130 S. Ct. at 1477; see 8 U.S.C. § 1101(a)(20) (2006) (defining the term “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United Sates as an immigrant in accordance with the immigration laws, such status not having changed”). Also, it should be noted that the Jose Padilla involved in this case is not the same as the enemy combatant in the 2004 Supreme Court decision of Rumsfeld v. Padilla. 542 U.S. 426 (2004). 18See Padilla, 130 S. Ct. at 1477. 19 Joint Appendix at 77, Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651). 20 Id. at 79. 21 Brief for the United States as Amicus Curiae Supporting Affirmance at 2, Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651). 22 Brown, supra note 16, at 1400. 23 Joint Appendix, supra note 19, at 48–49; Ky. Rev. Stat. Ann. § 218A.1421–218A.1422 (LexisNexis 2002) (“A person is guilty of possession of marijuana when he or she knowingly and unlawfully possesses marijuana . . . . Possession of marijuana is a Class A misdemeanor.”). The Kentucky statute for possession of drug paraphernalia reads in part: (2) It is unlawful for any person to use, or to possess with the intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter ...... (5) Any person who violates any provision of this section shall be guilty of a Class A misdemeanor. Ky. Rev. Stat. Ann. § 218A.500. The Kentucky statute regarding operating without a weight and distance tax number reads: With respect to KRS 138.655 to 138.725, it is unlawful for any person to: (1) Fail to pay the tax imposed;

36 Boston College Journal of Law & Social Justice [Vol. 32:31 quently pled guilty to felony trafficking, relying on the advice of his attorney that he would not be deported from the United States because “he had been in the country so long.”24 While serving his sentence for marijuana trafficking, officials placed Padilla in removal proceedings based on his criminal conviction, which is categorized as an aggravated felony under the amendments to the Immigration and Nationality Act (INA).25 In turn, Padilla filed a petition for post-conviction relief in Ken- tucky state court, alleging a violation of his Sixth Amendment right to effective assistance of counsel because his attorney misadvised him of the potential immigration consequences of his guilty plea.26 He further alleged that, had he known the certainty of his deportation after the guilty plea, he would have insisted on going to trial.27 On appeal, the Supreme Court of Kentucky held that immigration consequences of a conviction are collateral in nature, such that advice concerning deportation does not fall within the ambit of the Sixth Amendment right to effective assistance of counsel.28 On certiorari, the Supreme Court reversed, holding that immigration advice was neither collateral nor categorically excluded from the ambit of the Sixth Amend- ment.29

B. The Strickland v. Washington Test for Attorney Performance In Padilla, the Court used the familiar attorney performance test established in Strickland.30 In Strickland, the Supreme Court clarified

(2) Fail, neglect, or refuse to file any return in the manner or within the time required; (3) Make any false statement or conceal any material fact in any record, return, or affidavit; (4) Conduct any activities requiring a license without such license or after such license has been surrendered, canceled or revoked; (5) Assign or attempt to assign a license; or (6) Violate any other provisions. Ky. Rev. Stat. Ann. § 138.720. 24 Joint Appendix, supra note 19, at 80 (quoting a pro se petition by Padilla written during his imprisonment). Padilla, in addition to pleading to felony trafficking, pled guilty to possession of marijuana and possession of drug paraphernalia. Id. at 54. 25 See 8 U.S.C. § 1227(a)(2)(A)(iii) (2006); Joint Appendix, supra note 19, at 54, 80. Among other punishments, Padilla was sentenced to serve ten years in jail with five years probation. See Joint Appendix, supra note 19, at 54. 26 Brief of Petitioner at 11, Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651). 27 Id. 28 See Padilla, 253 S.W.3d at 485. 29 Padilla, 130 S. Ct. at 1478, 1482, 1486; see U.S. Const. amend. VI. 30 Padilla, 130 S. Ct. at 1482; Strickland, 466 U.S. at 687. 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 37 that counsel is ineffective if two requirements are met: (1) performance deficiency and (2) prejudice.31 The Court stated: In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant’s cause. More- over, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial. Judicial scrutiny of counsel’s performance must be highly deferential.32 Thus, the Strickland constitutional standard for professional responsibility is simply what is reasonable under the circumstances, and not strict adherence to the ABA guidelines.33 In Bobby v. Van Hook, the Supreme Court affirmed the reasonable- under-the-circumstances test, holding it inappropriate to rely on the ABA guidelines “as inexorable commands with which all capital defense counsel must fully comply.”34 The Court stated that, “‘[w]hile states are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal

31 Strickland, 466 U.S. at 687. 32 Id. at 688–89 (internal citations omitted). 33 See id.; Santos-Sanchez v. United States, 548 F.3d 327, 332 (5th Cir. 2008), vacated 130 S. Ct. 2340 (2010) (citing United States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994)) (“We determine whether counsel’s performance was deficient by measuring it against an ‘objective standard of reasonableness under prevailing professional norms.’”). 34 130 S. Ct. 13, 17 (2009) (internal quotations omitted). 38 Boston College Journal of Law & Social Justice [Vol. 32:31

Constitution imposes one general requirement: that counsel make objectively reasonable choices.’”35 Expanding on Strickland in Hill v. Lock- hart, the Supreme Court held that the Strickland performance test also applies to advice provided during plea agreements.36 The Padilla majority applied Strickland, addressing its performance prong and holding Padilla’s representation constitutionally deficient for his attorney’s misadvice as to the immigration consequences of pleading guilty to trafficking marijuana.37 The Court specifically enunciated that the weight of professional norms supports the view that counsel must advise clients of the risks of deportation when such a consequence is truly clear after examining the relevant immigration statute.38 When the consequences are not truly clear and the potential for deportation is not easily gleaned from the statute, however, “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”39

C. Pre-Padilla Standards Rejected Prior to Padilla, courts had developed three general approaches for determining whether the Sixth Amendment right to effective assistance of counsel applied to an attorney’s advice concerning the immigration consequences of a criminal conviction.40 The first approach is that of the Kentucky Supreme Court and echoed by Justice Scalia in his dissent in Padilla.41 The Kentucky Supreme Court explained that the Sixth

35 Id. (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000)). 36 474 U.S. 52, 57 (1985); see Chin & Holmes, supra note 3, at 697 (“Because over ninety percent of criminal convictions result from guilty pleas, perhaps the most important service criminal defense lawyers perform is advising their clients whether to plead guilty and on what terms.”). 37 Padilla, 130 S. Ct. at 1483 (“Accepting his allegations as true, Padilla has sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland.”). In Padilla, the Supreme Court remanded the case back to the Kentucky Supreme Court to determine if Padilla could establish the second Strickland prong of prejudice. Id. at 1483–84. See generally Jenny Roberts, Proving Prejudice, Post-Padilla, 54 How. L.J. 693 (2011) (discussing proving prejudice under the second prong of Strickland after Padilla). 38 Padilla, 130 S. Ct. at 1483. 39 Id. 40 Id. at 1484; Brief of the American Bar Association as Amicus Curiae in Support of Pe- titioner, supra note 16, at 6; see Padilla, 130 S. Ct. at 1494–95 (Scalia, J., dissenting); Brown, supra note 16, at 1397; Markowitz, supra note 16, at 1331. 41 Padilla, 130 S. Ct. at 1494–95 (Scalia, J., dissenting). Justice Scalia stated: I dissent from the Court’s conclusion that the Sixth Amendment requires counsel to provide accurate advice concerning the potential removal consequences of a guilty plea. For the same reasons, but unlike the concurrence, I do not believe that affirmative misadvice about those consequences renders

2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 39

Amendment right to effective assistance of counsel extends only to advice concerning direct consequences of a criminal conviction and not collateral consequences.42 Prior to Padilla, most courts considered immigration consequences to be collateral and wholly outside the scope of the Sixth Amendment.43 Justice Stevens and the Padilla majority dismissed this view, however, holding that “immigration advice has not been categorically removed from the scope of the Sixth Amendment.”44 The second approach, advocated by the ABA in its amicus brief, removes the distinction between direct and collateral consequences and asserts that Strickland’s standard applies to all consequences of a conviction.45 In this sense, the second approach follows the stricter guidelines of attorney performance proffered by the ABA. 46 The

an attorney’s assistance in defending against the prosecution constitutionally inadequate; or that the Sixth Amendment requires counsel to warn immigrant defendants that a conviction may render them removable. Id. Similarly, the Kentucky Supreme Court stated: We conclude that our unequivocal holding in Fuartado leaves Appellee without a remedy . . . . As collateral consequences are outside the scope of the guarantee of the Sixth Amendment right to counsel, it follows that counsel’s failure to advise Appellee of such collateral issue or his act of advising Appel- lee incorrectly provides no basis for relief. In neither instance is the matter required to be addressed by counsel, and so an attorney’s failure in that regard cannot constitute ineffectiveness entitling a criminal defendant to relief under Strickland v. Washington. 253 S.W.3d at 485. 42 Id. 43 See Santos-Sanchez, 548 F.3d at 334 (citing United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993)) (“Defense counsel has done all he must under the Constitution when he advises his client of the direct consequences of a guilty plea.”); Chin & Holmes, supra note 3, at 706–08 (stating that the collateral consequences rule has been accepted by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh and District of Co- lumbia Federal Circuit Courts of Appeals, as well as courts in 35 states); John J. Francis, Failure to Advise Non-Citizens of Immigration Consequences of Criminal Convictions: Should This Be Grounds to Withdraw a Guilty Plea?, 36 U. Mich. J.L. Reform 691, 710 (2003) (quoting King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994)). 44 Padilla, 130 S. Ct. at 1482. 45 See Brief of the American Bar Association as Amicus Curiae in Support of Petitioner, supra note 16, at 4. 46 Id. The ABA states in its amicus brief: As elaborated in the ABA Standards for Criminal Justice, the duties of competence and communication oblige a criminal defense lawyer to be fully informed of the facts and the law, and to advise the accused with complete can- dor concerning all aspects of the case, including a candid estimate of the probable outcome. Id. 40 Boston College Journal of Law & Social Justice [Vol. 32:31

Padilla majority, however, implicitly rejected this approach by reiterat- ing that “prevailing norms of practice as reflected in the American Bar Association’s standards and the like . . . are guides to determining what is reasonable [but] . . . . are only guides . . . .”47 The Kentucky Appeals Court adopted the third approach, which maintains the distinction between direct and collateral consequences, and held that Strickland does not generally apply to collateral consequences but that it does apply to affirmative misrepresentations regarding those consequences.48 This approach leads to an exception where “an affirmative act of gross misadvice relating to collateral matters can justify post conviction relief.”49 Justice Stevens and the Padilla majority, however, also dismissed this line of thinking. 50

II. Living Up to the ABA’s Rules of Professional Responsibility The Supreme Court has consistently reaffirmed its opposition to a concrete set of rules, such as the ABA’s Model Rules of Professional Conduct, to serve as the constitutional standards of attorney performance.51 In part, the Court’s position is that attorneys need to be free from strict guidelines or limitations that might “restrict the wide latitude counsel must have in making tactical decisions.”52 Indeed, “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.”53 Yet, when an attorney makes the purposeful decision to undertake a “cr-immigration” representation—a criminal case

47 Padilla, 130 S. Ct. at 1482 (internal citations and quotations omitted). 48 See Padilla, 253 S.W.3d at 483–84. 49 Id. (internal quotations omitted); see also Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988). In Padilla, both the concurring opinion and dissenting opinion agreed with the majority that an attorney should not be permitted to provide misadvice regarding immigration consequences. See Padilla, 130 S. Ct. at 1487 (Alito, J., concurring) (“I concur in the judgment because a criminal defense attorney fails to provide effective assistance within the meaning of Strickland . . . if the attorney misleads a noncitizen client regarding the removal consequences of a conviction. In my view, such an attorney must . . . refrain from unreasonably providing incorrect advice . . . .”); Id. at 1494 (Scalia, J., dissenting) (“In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised.”). 50 Padilla, 130 S. Ct. at 1484 (majority opinion). 51See Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009); Strickland v. Washington, 466 U.S. 668, 688–89 (1984). 52 Strickland, 466 U.S. at 688–89 (citing United States v. Decoster, 624 F.2d 196, 208 (D.C. Cir. 1979)). 53 Id. at 688–89. 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 41

with immigration consequences—counsel’s subsequent decision not to become familiar with the state of immigration law or failure to advise a noncitizen client of possible immigration consequences should not be considered tactical in nature.54 Rather, such unsatisfactory attorney behavior should be considered constitutionally deficient under the Sixth Amendment’s guarantee of effective assistance of counsel. Model Rule of Professional Conduct 1.16(a) requires that a criminal defense attorney not undertake representation of a client when that representation creates a violation of the Model Rules or any other law.55 The drafters of the Models Rules of Professional Conduct intentionally made the first rule require competent representation, including the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 56 To fulfill the ABA competency requirement, lawyers need not be familiar with every field of law pertinent to their client at the outset of a case, but must reasonably believe that they can acquire familiarity in a timely manner.57

A. Immigration Status and Criminal History of Clients In the realm of cr-immigration matters, the ABA Rules of Profes- sional Responsibility require competent representation such that criminal defense counsel should minimally determine: (1) the immigration status and criminal history of the client; (2) immigration ramifications of a proposed plea; (3) the client’s wishes and plans for the near future; and (4) a criminal trial strategy to meet the client’s needs.58 In satisfying

54 See Padilla v. Kentucky, 130 S. Ct. 1473, 1484 (2010); Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 381 (2006); see also Car- los Moctezuma García & César Cuauhtémoc García Hernández, CrImmigration: Prac. Analysis Key Cases About Immigr. Consequences Crim. Violations, http://www. crImmigration.com (last visited Nov. 10, 2011) (using the term “crImmigration” to denote the intersection of criminal and immigration law). In effect, when considering the ade- quacy of trial counsel’s investigation, courts do look to ABA standards to determine whether the Sixth Amendment has been satisfied. See John H. Blume & Stacey D. Neu- mann, “It’s Like Déjà Vu All Over Again”: Williams v. Taylor, Wiggins v. Smith, Rompilla v. Beard and a (Partial) Return to the Guidelines Approach to the Effective Assistance of Counsel, 34 Am. J. Crim. L. 127, 129 (2007). 55 Model Rules of Prof’l Conduct R. 1.16(a) (2011) (“Except as stated in para- graph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in a violation of the Rules of Professional Conduct or other law . . . .”). 56 Model Rules of Prof’l Conduct R. 1.1. 57 Ronald D. Rotunda & John S. Dzienkowski, Professional Responsibility: A Student’s Guide 87 (2010). 58 See Model Rules of Prof’l Conduct R. 1.0(e), 1.1, 1.2, 1.3; People v. Pozo, 746 P.2d 523, 529 (Colo. 1987) (“[A]ttorneys must inform themselves of material legal princi-

42 Boston College Journal of Law & Social Justice [Vol. 32:31 the first factor of determining immigration status and criminal history, a criminal attorney should not be quick to accept as true a client’s statement as to his or her alien status.59 Immigrants may not be certain of which status they hold or may otherwise be falsely informed.60 Determining whether one is a United States citizen can be compli- cated.61 Citizenship corresponds with a unique area of immigration law, distinct from naturalization, commonly referred to as “nationality law” and is not necessarily based upon where one was born.62 Under nationality law, these “naturally-born” individuals might unknowingly and automatically become United States citizens by operation of law though simply meeting certain criteria upon or after birth.63 These criteria are

ples that may significantly impact the particular circumstances of their clients.”). This Arti- cle does not delve into how to investigate the criminal history of clients. If a client has a past criminal history, it may have immigration ramifications that need to be taken into consideration before entering a guilty plea. For example, one is subject to removal and inadmissibility for multiple criminal convictions. 8 U.S.C. § 1227(a)(2)(A)(ii) (2006). 59 See 8 U.S.C. § 1101(a)(20); 8 C.F.R. § 1001.1(p) (2010).The Code of Federal Regu- lations states: The term lawfully admitted for permanent residence means the status of having been lawfully accorded the privilege of residing permanently in the United Sates as an immigrant in accordance with the immigration laws, such status not having changed. Such status terminates upon entry of a final administrative order of exclusion, deportation, removal, or rescission. 8 C.F.R. § 1001.1(p). 60 See Vicky J. Salinas, Comment, You Can Be Whatever You Want to Be When You Grow Up, Unless Your Parents Brought You to This Country Illegally: The Struggle to Grant In-State Tuition to Undocumented Immigrant Students, 43 Hous. L. Rev. 847, 861–62 (2006) (“Many children of illegal immigrants do not learn of their undocumented status until they attempt to pursue higher education.”). 61 See Antonia Hernandez, Essay, American Citizenship Post 9-11, 1 Stan. J. C.R. & C. L. 289, 290–91 (2005). 62 See 8 U.S.C. § 1401. The citizenship clause of the 14th Amendment, codified at 8 U.S.C. § 1401(a), requires not only birth in the United States but being subject to jurisdiction as well. U.S. Const. amend. XIV; 8 U.S.C. § 1401 (“The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof . . . .”); see James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 367, 368–69 (2006). 63 See 8 U.S.C. § 1401(c) (stating that “a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person,” is a citizen of the United States). By virtue of the statute, a person born in a foreign country that practices ius soli citizenship—or of the soil—and who is issued the nationality of that county would also simultaneously acquire United States nationality having been born outside of the United States through the principle of ius sanguinis, or by descent. See id. §§ 1401(a), 1431(a); Hernandez, supra note 16, at 290– 91. Section 1431(a) of the U.S. Code, chapter eight, states:

2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 43 largely based on actions of one’s parents or grandparents.64 Natural-born clients might create confusion for unfamiliar criminal defense attorneys, as the client will probably have a birth certificate or other documentation from a foreign country but not a United States birth certificate. In Padilla’s case, he advised his attorney that he was a lawful permanent resident alien, but to confirm the factual accuracy of his assertion, counsel should have obtained a copy of his alien registration card.65 Lawful permanent resident aliens are permitted to reside and work in the United States for the duration of their status.66 Neverthe-

A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence. 8 U.S.C. § 1431(a). 64 See 8 U.S.C. § 1431(a) (2006). In the United States, parents must naturalize before the child is eighteen and the child does not necessarily have to perform any actions in order to become a United States Citizen. See id. § 1433. Some examples include: Case 1: Padilla might be a citizen of the United States if he was born abroad to US citizen parents or if he is a lawful permanent resident Alien born to parents who naturalized prior to his eighteenth birthday. See id. § 1431(a). Case 2: If one of Padilla’s parents’ naturalized before his eighteenth birthday, he might also be a citizen depending on the year in which he was born. See id. § 1433. Case 3: If Padilla was also born out of wedlock, and considered illegitimate, to a United States Citizen mother, he might be a United States Citizen. See id. § 1409. Case 4: If Padilla’s grandparents were United States Citizens, they might be able to transmit their physical presence for purposes of conferring United States Citizenship upon Padilla. See id. § 1433. 65 See 8 U.S.C. § 1101(a)(20); Padilla, 130 S. Ct. at 1483; Green Card (Permanent Resi- dence), U.S. Citizenship & Immigr. Services (May 13, 2011), http://www.uscis.gov/green card. The 2008 presidential election revealed that presidential candidate and Senator John McCain was not born in the United States but in the country of Panama. See Carl Hulse, McCain’s Canal Zone Birth Prompts Queries About Whether That Rules Him Out, N.Y. Times, Feb. 28, 2008, at A21. Theoretically, he should have a Panamanian birth certificate and should not be in possession of a birth certificate issued by any U.S. state. See 8 U.S.C. § 1403. Were McCain involved in any criminal court proceedings, his defense counsel should take note of his Panamanian birth certificate and investigate nationality laws. See id. 66 See 8 U.S.C. § 1101(a)(20); 8 C.F.R. § 274a.12(a)(1) (2010). “The term ‘United States’, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Is- lands.” 8 U.S.C. § 1101(a)(38) (Supp. 2010). 44 Boston College Journal of Law & Social Justice [Vol. 32:31 less, they are still subject to deportation and inadmissibility, regardless of how long they have resided in the United States.67

B. Immigration Impact of the Proposed Plea Under the immigration laws of the United States, an alien placed in removal proceedings may be charged with any applicable ground of inadmissibility under section 212(a) or any applicable ground of deportability under section 237(a) of the INA.68 Had Padilla fit within any of the enumerated statutory provisions, he should have been advised of the immigration consequences beyond removal.69 Moreover, Padilla should have been advised of potential forms of relief to overcome any of the grounds of removal, all prior to his plea of guilt.

1. Removal After an alien client advises an attorney of an arrest, the attorney will need to review the grand jury indictment or bill of information to determine the precise charges and compare the state or federal statutes with immigration statutes for a categorical match to a ground of inadmissibility, removal, or both.70 a. Removal for Controlled Substances In Padilla’s situation, the relevant immigration removal provisions are those concerning (1) controlled substances and (2) aggravated felonies. The removal statute for controlled substances provides: Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section

67 See 8 U.S.C. § 1227(a)(1)(D) (2006). Padilla was misadvised by his criminal attorney that he was not subject to deportation because he had been in the country for a long time. See Padilla, 130 S. Ct. at 1478. 68 INA §§ 212(a), 237(a), 8 U.S.C. §§ 1182(a), 1227(a). 69 See id.; Padilla, 130 S. Ct. at 1483. 70 See INA §§ 212, 237(a), 8 U.S.C. §§ 1182, 1227(a); Leocal v. Ashcroft, 543 U.S. 1, 4– 5 (2004); Arguelles-Olivares v. Mukasey, 526 F.3d 171, 180 (5th Cir. 2008) (Dennis, J., dissenting) (discussing “the Supreme Court’s Taylor-Shepard ‘modified categorical approach’” used in removal cases). The Supreme Court, in an effort to determine removal, has accepted the categorical approach of looking to the elements and the nature of the offense of conviction rather than particular facts relating to the petitioner’s crime in an effort to determine removal. See Leocal, 543 U.S. at 4–5. 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 45

802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.71 Therefore, to be subject to removal, one must be: (1) an alien; (2) admitted; (3) convicted in a State, the United States, or a foreign country; and (4) convicted on charges relating to a controlled substance other than a single offense involving possession for one’s own personal use of thirty grams or less of marijuana.72 The term “conviction,” as used in the INA, has an independent meaning from that used in state law.73 For example, in Massachusetts, a continuation of a defendant’s case without a finding of guilt is a conviction for immigration purposes and, in Texas, a deferred adjudication would also count as a conviction, regardless of the state’s intentions.74

71 8 U.S.C. § 1227(a)(2)(B)(i). 72 See 8 U.S.C. § 1227(a). “Admitted” is a term of art that is specifically defined by statute. See id. § 1101(a)(13). While the administrative immigration courts have traditionally categorized the term adjustment as an admission, the United States Courts of Appeal for the Fifth and Eleventh Circuits have distinguished the two terms. See Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1366–67 (11th Cir. 2011); Bianco v. Holder, 624 F.3d 265, 267 (5th Cir. 2010); Martinez v. Mukasey, 519 F.3d 532, 542–43 (5th Cir. 2008). This distinction is significant. See Martinez, 519 F.3d at 542–43. Arguably, where an alien has adjusted status and is subsequently convicted of a controlled substance offense, the alien could fall outside of this removal statute, as the alien was never admitted. See 8 U.S.C. § 1227(a); Lanier, 631 F.3d at 1366; Martinez, 519 F.3d at 542–43. 73 See 8 U.S.C. § 1101(a)(48)(A) (2006); see, e.g., De Vega v. Gonzales, 503 F.3d 45, 49 (1st Cir. 2007) (finding that a continuation of a defendant’s case without a finding of guilt is a conviction for immigration purposes); Moosa v. INS, 171 F.3d 994, 1006 (5th Cir. 1999) (finding that a deferred adjudication is a conviction, regardless of the state’s intentions). The statute defining the term “conviction” reads: The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. 8 U.S.C. § 1101(a)(48)(A). 74 De Vega, 503 F.3d at 49; Moosa, 171 F.3d at 1006. One should also tread carefully when interpreting the phrase “relating to.” Here, the statute mandates that the conviction be relating to a controlled substance, as defined under federal law. See Ruiz-Vidal v. Gonza- les, 473 F.3d 1072, 1076 (9th Cir. 2007) (quoting Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989)) (“The government must prove by ‘clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true.’”). Courts have defined “relating to” broadly, such that a conviction for possession of drug paraphernalia in itself equates to the controlled substance conviction needed for removal under several

46 Boston College Journal of Law & Social Justice [Vol. 32:31 b. Removal for Aggravated Felonies While an alien may fall into a class subject to removal for a controlled substance conviction, that alien might also be subject to other statutory grounds for removal.75 Under the INA, “an alien convicted of an aggravated felony at any time after admission is deportable.”76 “Ag- gravated felony,” a term of art used in the INA, is defined in part as “illicit trafficking in a controlled substance . . . , including a drug trafficking crime . . . .”77 In Garcia-Echaverria v. United States, the Sixth Circuit held that a Kentucky conviction for the offense of trafficking marijuana weighing between eight ounces and five pounds was an aggravated felony within the meaning of the INA.78 Likewise, Padilla’s Kentucky indictment reveals that officers arrested him for trafficking marijuana, a Class C felony, in excess of five pounds. Therefore, because Padilla’s trafficking charges involved more marijuana than in Garcia-Echaverria, prosecutors would likely charge him with an aggravated felony, too. Additionally, the Act narrowly interprets the term “illicit trafficking.”79 Thus, where a state statute broadly defines that term, an individual’s state conviction for illicit trafficking may not qualify him or her as an aggravated felon under the INA.80 courts’ interpretations of this statute. See Hussein v. Att’y Gen. of the U.S., 413 F. App’x 431, 432–33 (3d Cir. 2010); Bermudez v. Holder, 586 F.3d 1167, 1168–69 (9th Cir. 2009); Barraza v. Mukasey, 519 F.3d 388, 392 (7th Cir. 2008). In the instant matter, Padilla’s drug paraphernalia offense more than likely related to a controlled substance because the grand jury named marijuana, a controlled substance under federal law, in its indictment. See Padilla, 130 S. Ct. at 1483; Joint Appendix, supra note 19, at 48. Under the removal statute for controlled substances, however, a conviction for personal use of thirty grams or less of marijuana does not fall within the statute. See 8 U.S.C. § 1227(a)(2)(B)(i). 75 See 8 U.S.C. § 1227. 76 Id. § 1227(a)(2)(A)(iii). 77 Id. § 1101(a)(43)(B). 78 Garcia-Echaverria v. United States, 376 F.3d 507, 513 (6th Cir. 2004). 79 See 8 U.S.C. § 1101(a)(43)(B) (2006); United States v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007). 80See 8 U.S.C. § 1101(a)(43)(B); see, e.g., Gonzales, 484 F.3d at 716. In United States v. Gonzales, the Fifth Circuit held that a Texas conviction for delivery of a controlled substance did not meet the definition of a drug trafficking crime for criminal sentence enhancement purposes. 484 F.3d at 716. The Texas statute for delivery of a controlled substance included the term “offering to sell,” which was not an element of the federal drug trafficking offense. Id. at 714–15. As such, the court deemed the state statute broader than the federal statute and it did not consider the petitioner an aggravated felon for the mere offer to sell. See id. While Padilla should have tried to avoid a plea to distribution of marijuana, likely making him an aggravated felon for immigration purposes, the law is not always as clear as Justice Stevens and the majority interprets it. See Padilla, 130 S. Ct. at 1486; Gonzales, 484 F.3d at 715; Garcia-Echaverria, 376 F.3d at 512. 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 47

2. Inadmissibility While a conviction for a controlled substance may lead to removal from the United States, it might also lead to future inadmissibility.81 In comparing the INA’s inadmissibility provision with its removal provision, one should notice that a conviction is not needed to render one inadmissible to the United States.82 Rather, a mere admission of the essential elements of a controlled substances conviction is enough to trigger inadmissibility.83 One should also notice that, unlike the re-

81 See Xi v. INS, 298 F.3d 832, 838 (9th Cir. 2002). As part of the broad structural changes to the Illegal Immigration Reform and Immigrant Responsibility Act, Congress “dropped the concept of ‘excludability’ and now uses the defined term of ‘inadmissibility.’” Id. One inadmissibility controlled substance provision provides: Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in the [Controlled Substances Act]), is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i). 82 Compare 8 U.S.C. § 1182(a)(2)(C) (not requiring conviction for inadmissibility), with Id. § 1227(a)(2)(B)(i) (including aliens convicted of a controlled substance violation in list of deportable classes). 83 See Id. § 1182(a)(2)(C). The statutory provision directly references inadmissibility of controlled substance traffickers: Any alien who the consular officer or the Attorney General knows or has reason to believe— (i) is or has been an illicit trafficker in any controlled substance or in any listed chemical(as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or (ii) is the spouse, son, or daughter of an alien inadmissible under clause(i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible. Id; cf. Id. § 1227(a)(2)(B)(ii). Under the removal statute, aliens that are drug abusers or addicts are also subject to removal on those grounds. 8 U.S.C. § 1227(a)(2)(B)(ii). The Board of Immigration Appeals (BIA) has developed a three part test to determine whether an admission has occurred: (1) “the admitted conduct must constitute the essential elements of a crime . . . . ;” (2) “the applicant for admission must have been provided with the definition and essential elements of the crime prior to his admission . . . . ;” and (3) “[the] admission must have been voluntary.” See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1215–16 (9th Cir. 2002). It should be noted that this admission is different from the term used in the INA. See 8 U.S.C. § 1101(a)(13)(A); Pazcoguin, 292 F.3d at 1215–16. Further-

48 Boston College Journal of Law & Social Justice [Vol. 32:31 moval provision, there is no exception to the inadmissibility provision for possessing thirty grams or less of marijuana for personal use, but one may potentially qualify for a “212(h) waiver.”84 As such, Padilla’s guilty plea to counts 1 through 3 of his indictment would render him subject to removal and inadmissible to the United States in the future.85

C. The Client’s Wishes and Plans for the Near Future Under the stricter rules of competence, a criminal defense attorney should determine the client’s wishes and plans for the near future regarding United States residency.86 For example, while the criminal defense attorney might believe that the client’s objective is to avoid incarceration, sometimes removal from or inadmissibility into the United States is actually the client’s paramount concern.87 Therefore, an alien might prefer incarceration if that option could salvage his or her immigration status.88 If the client wishes to remain in the United States, however, the criminal defense attorney must explain the immigration consequences of a plea—other than just the certainty of removal— including but not limited to: (1) mandatory detention, (2) travel restrictions, and (3) naturalization.89 Alternatively, criminal defense attorneys may also need to consider the possibility that the client would prefer removal over incarceration.90

more, this provision would arguably trigger the Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966). 84 See 8 U.S.C. §§ 1182(a)(2)(A), 1182(h), 1227(a)(2)(B). The term “212(h) waiver” corresponds to its INA provision and is codified at 8 U.S.C. § 1182(h). 85 See Joint Appendix, supra note 19, at 47; see also 8 U.S.C. §§ 1182(a)(2)(A), 1227(a)(2)(B) (2006). 86 See Model Rules of Prof’l Conduct R. 1.1 (2011). 87 See Padilla, 130 S. Ct. at 1480. 88 See id. 89 See 8 U.S.C. § 1226(c)(1) (detailing situations when the Attorney General shall take into custody inadmissible or deportable aliens); Id. § 1101(a)(13)(C)(v) (allowing a lawful permanent resident alien to be regarded as seeking admissions to the United States if they are inadmissible to the United States for having committed an offense under section 1182(a)(2)); Id. § 1101(a)(23) (defining naturalization as “the conferring of nationality of a state upon a person after birth, by any means whatsoever”). 90 See Padilla, 130 S. Ct. at 1480. The lawyer should be careful and inquire into the reasons for the alien wanting to leave the United States because the client might be planning to return without documentation after having been deported. See 8 U.S.C. § 1326. This is a federal crime. Id. The attorney needs also to advise the client of the criminal and immigration ramifications of returning after having been deported. See Padilla, 130 S. Ct. at 1480; Model Rules of Prof’l Conduct R. 2.1. Additionally, the client might want to be removed or self-deport in an effort to avoid criminal liability. Of course, the attorney cannot encourage the client to evade the law. See Model Rules of Prof’l Conduct R. 8.4(c). 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 49

1. Mandatory Detention Mandatory detention is a significant immigration consequence that must be taken into consideration with any proposed plea of criminal guilt.91 While the Padilla majority noted that defense counsel must notify the defendant of deportation when its threat is truly clear, the Court should have specifically identified potential mandatory detention as another area worthy of notice.92 In pertinent part, the INA provides that: The attorney general shall take into custody any alien who— (A) is inadmissible by reason of having committed any offense covered in section 1182 (a)(2) of this title [(inadmissibility for controlled substances)], [or] (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii) [(multiple criminal convictions)], (A)(iii) [(aggravated felony)], (B) [(controlled substances)], (C) [(certain firearm offenses)], or (D) [(miscellaneous crimes)] of this title . . . .93 If Padilla were to fall within this statute, he would be detained without bond eligibility pursuant to the INA.94 This period of custody would last for the pendency of the immigration removal proceeding, which usually begins after any criminal sentence is served.95 Further, if Padilla had decided to present an immigration defense, he should also have been advised that he would likely remain in an immigration jail without bond until the trial’s completion.96 Alternatively, if he acqui-

91 See 8 U.S.C. § 1226(c)(1) (2006). 92 See id.; Padilla, 130 S. Ct. at 1483. 93 8 U.S.C. § 1226(c)(1). 94 See id. §§ 1226(c)(1), 1231(a)(2); Joint Appendix, supra note 19, at 48. 95 8 U.S.C. § 1226(c)(1). “[W]hen an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’).” Id. § 1231(a)(1)(A). The mandatory detention period referenced here is the time prior to an order signed by an immigration judge. See id. § 1226(a). During the pendency of the removal proceedings the attorney general arguably does not have jurisdiction to issue a bond. Some studies report that the average wait time in the United States for an immigration case to be brought to trial is almost five hundred days. See Immigration Court Backlog Tool: Pending Cases and Length of Wait in Immigration Courts, TRAC Immigr. ( July 26, 2011), http://trac.syr.edu/phptools/immigration/court_ backlog. Immigration removal proceedings are generally referred to as Section 240 proceedings. See INA § 240, 8 U.S.C. § 1229a. However, the Service can choose to remove an Alien prior to the completion of the criminal sentence under limited situations. Id. § 1231(a)(4)(B). 96 See 8 U.S.C. §§ 1226(c)(1), 1231(a)(2); Joint Appendix, supra note 19, at 48. 50 Boston College Journal of Law & Social Justice [Vol. 32:31 esced to deportation, the time of incarceration in an immigration jail would be reduced, but he would be subsequently inadmissible to the United States.97

2. Travel Restrictions While a single conviction for possession of less than thirty grams of marijuana would not result in removal, such a conviction could result in future inadmissibility should an alien leave and then attempt to return to the United States.98 As such, if Padilla fell within the marijuana provision of the INA and, by virtue of possessing less than thirty grams, fell outside of the removal statute, his criminal defense counsel would have needed to advise him about his future inadmissibility. 99

3. Naturalization To qualify for United States naturalization, an applicant must possess good moral character for the applicable statutory period.100 The INA does not define “good moral character” and instead provides a categorical list of circumstances where an individual would show a lack of good moral character.101 For instance, if an alien is inadmissible to the United States due to a conviction relating to a controlled substance, has been incarcerated for 180 days or more, or was convicted of an aggravated felony, that person would lack good moral character and be incapable of naturalization.102

97 See 8 U.S.C. § 1231(a)(4)(B) (2006). 98 See id. §§ 1182(a)(2)(A)(1), 1227(A)(2)(B)(ii). A lawful permanent resident alien can be regarded as inadmissible to the United States for having committed an offense under INA section 212. See id. §§ 1101(a)(3), 1101(a)(20), 1182(a)(2). 99 See id. §§ 1101(a)(3), 1101(a)(20), 1182(a)(2). For example, in People v. Garcia, the Department of Homeland Security arrested a permanent resident alien after he returned from a trip abroad for having a previous controlled substance conviction. 907 N.Y.S.2d 398, 400–401 (Sup. Ct. 2010). He, however, had not been deported prior to leaving the country. See id. at 399–400. The court found Padilla retroactive and reopened the conviction despite the attorney’s immigration warning and the court’s admonishments. Id. at 404. 100 8 U.S.C. § 1427(a); see also 8 U.S.C. § 1101(a)(23) (defining naturalization as “the conferring of nationality of a state upon a person after birth, by any means whatsoever”). The statutory period differs depending on the statute used to seek naturalization. Compare id. § 1427(a) (“No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant . . . has resided continuously . . . within the United States for at least five years . . . .”), with id. § 1430(a) (requiring only three years of residence for a person whose spouse is a citizen or who is a spouse or child of a citizen who battered him or her). 101 See 8 U.S.C. §§ 1101(f), 1427(a). 102 See id. § 1101(f)(3), (7), (8). 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 51

For naturalization purposes, the INA indicates that if Padilla had pled guilty to an aggravated felony, he would be permanently ineligible for naturalization.103 If, however, he had pled guilty to a lesser offense not classified as an aggravated felony, he would merely lack the requisite good moral character for the duration of the statutory period, after which he could be eligible for naturalization.104

D. Criminal Trial Strategy An alien charged with a crime involving controlled substances will likely consider the immigration consequences of a conviction in deciding whether or not to plead guilty or proceed to trial.105 While an alien might be legally subject to removal, that person might also be eligible to apply for protection from removal upon meeting the applicable statutory relief requirements and meriting a favorable exercise of discretion.106 The circumstances surrounding Padilla’s case present the following potential avenues of immigration relief: (1) adjustment of status; (2) waivers of inadmissibility; and (3) invoking the Convention Against Torture.107

1. Adjustment of Status In general, adjustment of status is a procedural vehicle whereby the Attorney General may, at his or her discretion, adjust the status of an approved Violence Against Women Act (VAWA) self-petitioner or of an alien who was inspected and admitted or paroled into the United States.108 Adjustment of status is generally not available to one with a

103 See 8 U.S.C. § 1101(f)(8) (2006). This only applies where the conviction was entered on or after November 29, 1990. Immigration Act of 1990, Pub. L. No. 101-649, § 509, 104 Stat. 4978 (codified as amended at 8 U.S.C. § 1101); Reyes, 20 I. & N. Dec. 789, 790 (Bd. of Immigration Appeals Apr. 28, 1994). 104 See 8 U.S.C. § 1101(f)(3), (7). 105 See Magana-Pizano v. INS, 200 F.3d 603, 612 (9th Cir. 1999); Attila Bogdan, Guilty Pleas by Non-Citizens in Illinois: Immigration Consequences Reconsidered, 53 DePaul L. Rev. 19, 19 n.4; see also Padilla, 130 S. Ct. at 1478, 1480. 106 See 8 U.S.C. § 1229a(c)(4)(A). 107 See id. §§ 1255(a), 1182(h), 1229b(a); Padilla, 130 S. Ct. at 1477–78; 8 C.F.R. § 1208.17(a) (2010). 108 See 8 U.S.C. § 1255(a); see also 8 U.S.C. § 1101(a)(51) (defining “VAWA self- petitioner”). The statute provides: The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney Gen- eral, in his discretion and under such regulations as he may prescribe, to that

52 Boston College Journal of Law & Social Justice [Vol. 32:31 controlled substance conviction because that person is inadmissible to the United States.109 A waiver, however, could be available to cure the ground of inadmissibility where the alien is convicted of possession of less than thirty grams of marijuana.110 Individuals in nonimmigrant visa classifications S, T, and U could possibly adjust their status regardless of their criminal convictions. 111

2. Certain Waivers Individuals subject to deportation or who are inadmissible to the United States may nevertheless be eligible for certain waivers, thereby curing that status.112 While a discussion of all possible waivers is beyond the scope of this Article, at least two types of waivers should be considered: (1) The INA § 212(h) waiver and (2) the INA § 240A waiver, which is the modern day version of the INA § 212(c) cancellation of removal.113

of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. 8 U.S.C. § 1255(a). 109 See 8 U.S.C. §§ 1182(a)(2)(A)(i), 1255(a)(2). A conviction for a crime classified as an aggravated felony, standing alone, does not render one ineligible for adjustment because an aggravated felony is a ground of removal and not a ground of inadmissibility. See Torres-Varela, 23 I. & N. Dec. 78, 80, 87 (Bd. of Immigration Appeals May 9, 2001). 110See 8 U.S.C. § 1182(h) (2006); Barraza, 519 F.3d at 393. 111 See 8 U.S.C. § 1255(j), (l)–(m); see also 8 U.S.C. § 1101(a)(15)(S), (T), (U). Indi- viduals granted S visas can adjust their status without regard to their criminal convictions. See 8 U.S.C. §§ 1101(a)(15)(S), 1255(j). 112 See id. §§ 1182(h), 1229b(a). 113 See id. §§ 1182(h), 1229b(a). On the matter of cancellation of removal, the INA states: The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien— (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. 8 U.S.C. § 1229b(a). 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 53 a. The INA § 212(h) Waiver Aliens inadmissible to the United States for crimes involving moral turpitude, for having multiple criminal convictions, or for controlled substance convictions insofar as they relate to a single offense of simple possession of thirty grams or less of marijuana may be eligible for an inadmissibility waiver. 114 The INA § 212(h) waiver is relevant to

114 See id. § 1182(h). The BIA defines a crime involving moral turpitude as “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality . . . .” Franklin, 20 I. & N. Dec. 867, 868 (Bd. of Immigration Appeals Sept. 13, 1994). The INA § 212(h) Waiver reads: The Attorney General may, in his discretion, waive the application of sub- paragraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) of this section and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if— (1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that— (i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status, (ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and (iii) the alien has been rehabilitated; or (B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or (C) the alien is a VAWA self-petitioner; and (2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status. No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the At- torney General to grant or deny a waiver under this subsection.

54 Boston College Journal of Law & Social Justice [Vol. 32:31

Padilla’s predicament because it is one possible strategy to cure inadmissibility following his conviction for possession of less than thirty grams of marijuana—count 1 of his indictment—or for possessing drug paraphernalia—count 2 of his indictment.115 The INA § 212(h) waiver, however, will not necessarily cure Padilla’s aggravated felony controlled substance conviction for trafficking in marijuana.116 b. The INA § 212(c) Waiver and Cancellation of Removal The INA § 212(c) waiver had its beginnings in the “Seventh Pro- viso” of the 1917 INA.117 The waiver is important because it can possibly cure grounds of removal for aliens who are considered aggravated fel- ons.118 In 1996, however, the Antiterrorism and Effective Death Penalty Act severely curtailed INA § 212(c) by precluding relief for aliens with convictions for controlled substances.119 On April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act repealed INA § 212(c) and replaced it with an entirely different form of relief, which is commonly referred to as cancellation of removal.120 Despite its repeal, the waiver continues to be available to those aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for

8 U.S.C. § 1182(h). An alien with two or more convictions who has served an aggregate of five or more years in confinement as a result thereof is inadmissible. Id. § 1182(a)(2)(B). The pertinent statute reads: Any alien convicted of 2 or more offenses (other than purely political offenses) regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible. Id. 115 See 8 U.S.C. § 1182(h); Joint Appendix, supra note 19, at 48. 116 See 8 U.S.C. § 1182(h) (2006) (“No waiver shall be granted under this subsection in the case of an alien [who] has been convicted of an aggravated felony . . . .”); Joint Ap- pendix, supra note 19, at 48. 117 See INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed Sept. 30, 1996); Immigra- tion Act of 1917, ch. 29, 39 Stat. 874, 878 (“That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Secretary of Labor, and under such conditions as he may prescribe . . . .”). 118 See 8 U.S.C. § 1182(c) (repealed Sept. 30, 1996). 119 See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996); 8 U.S.C. § 1182(c) (repealed Sept. 30, 1996). 120 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-587, 3009-594 (codified as amended at 8 U.S.C. § 1229b(a) (2006)). 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 55

INA § 212(c) relief at the time of their plea under the laws then in effect.121 Unfortunately for Padilla, the law in effect at the time of his conviction did not allow for the INA § 212(c) waiver or cancellation of removal for aliens convicted of aggravated felonies.122

3. The Convention Against Torture Pursuant to the CAT, applicants must prove that it is more likely than not that they will be subject to torture upon returning to a native country and that such torture will be instigated by “or with the consent or acquiescence of a public official or other person acting in an official capacity.”123 Under CAT, one’s criminal history or convictions for aggravated felonies or controlled substances would not preclude relief from removal.124

4. Sanitize the Record The INA places a burden on the government to establish by clear and convincing evidence that, in the case of an alien admitted to the United States, the alien is deportable.125 Therefore, a possible immigration defense strategy might be to sanitize the criminal court record and make the prosecutor unable to carry the burden of proof.126 Count 1 of Padilla’s indictment alleged that, at the time of arrest, he possessed an unknown amount of marijuana.127 As such, a possible strategy would be to plead guilty to Count 1 only for possession of marijuana and to document in the court record or plea colloquy that Padilla was said to have possessed less than thirty grams of marijuana, thereby avoiding aggra-

121 See INS v. St. Cyr, 533 U.S. 289, 325, n.55 (2001). 122 See 8 U.S.C. § 1182(c) (1994) (repealed Sept. 30, 1996); Joint Appendix, supra note 19, at 49. 123 8 C.F.R. §§ 1208.17(a), 1208.18(a)(1) (2010). 124 See id. § 1208.16(d)(2). Mandatory denials under the Convention Against Torture are described in the Code of Federal Regulations. Id. See 8 C.F.R. § 1208.16(d)(3) for exceptions to the mandatory denials. If the alien has committed a particularly serious crime or an aggravated felony for which the term of imprisonment is at least five years, only deferral—not withholding—of removal is authorized. Id. §§ 1208.16(d)(3), 1208.17(a). 125 8 U.S.C. § 1229a(c)(3)(A) (2006). 126 See Jorge L. Barón & Alix Walmsley, A Brief Guide to Representing Nonciti- zen Criminal Defendants in Connecticut 9 (2005), available at http://www.immigrant defenseproject.org/docs/fileU.pdf. 127 Joint Appendix, supra note 19, at 48. Count 4 of the grand jury indictment, however, discloses that officers caught Padilla trafficking in 1033 pounds of marijuana and, therefore, this strategy’s ultimate success depends on the prosecution’s willingness to drop the trafficking charges. 56 Boston College Journal of Law & Social Justice [Vol. 32:31 vated felon classification and preventing removal. 128 Then, Padilla would only need to stay in the United States while establishing good moral character to avoid triggering the INA’s inadmissibility provision.129

III. The Author’s Criticism of the Padilla Majority and Proposed Resolution The Padilla majority correctly held that deportation is intimately related to the criminal process and that advice about immigration consequences of a criminal conviction fall within the scope of the Sixth Amendment right to effective assistance of counsel.130 While the entire Court recognized that immigration is complex and, to a certain extent, that attorney misadvice is always inappropriate, the Padilla majority determined that it was constitutionally acceptable to expect the criminal defense attorney to have a duty to advise only when the deportation consequences to a conviction were truly clear.131 The Supreme Court’s reasoning, however, is circular in that a criminal attorney must often study to determine what is truly clear in the first instance. Further, the do-no-more directive arguably fosters a lower standard of professional

128 See 8 U.S.C. § 1101(f)(3) (establishing possession of thirty grams or less of marijuana as an exception to the inadmissibility provision of § 1182(a)(2)(C)); Padilla, 130 S. Ct. at 1477–78; Barón & Walmsley, supra note 126, at 9. 129 See 8 U.S.C. §§ 1101(f), 1182(a)(2)(C). 130 See Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010) (noting that the Court has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland,” and that the “law has enmeshed criminal convictions and the penalty of deportation for nearly a century”). 131 Id. at 1483; see also id. at 1488 (Alito, J., concurring) (“The Court’s new approach is particularly problematic because providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex.”). Both the concurring opinion and dissenting opinion agreed with the majority that an attorney should not be permitted to provide misadvice regarding immigration consequences. See id. at 1482–83 (majority opinion); id. at 1487 (Alito, J., concurring) (“I concur in judgment because a criminal defense attorney fails to provide effective assistance within the meaning of Strick- land v. Washington . . . if the attorney misleads a noncitizen client . . . .”); id. at 1494 (Scalia, J., dissenting) (“In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised.”); see also Nina Totenberg, High Court: Lawyers Must Give Immigration Advice, NPR (Mar. 31, 2010), http://www.npr.org/templates/story/story. php?storyId=125420249 (“In clear cases, a lawyer must advise his or her client that the guilty plea triggers automatic deportation. In less clear cases, the lawyer must still advise that an immigrant’s status could be in jeopardy.”). 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 57

responsibility, in turn violating the alien client’s Sixth Amendment right to effective assistance of counsel.132 In Padilla, Justice Stevens found the defendant’s potential immigration consequences clear, stating that “Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute . . . . ”133 The statute cited by the majority, in relevant part, states: Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.134 As this Article demonstrates, however, the above controlled substance statute is not as clear as Justice Stevens describes it.135 Before even turning to the statute, criminal counsel would first need to determine Padilla’s immigration status and United States citizenship prior to discerning whether the Kentucky state statutes—under which prosecutors charged Padilla—fit within the federal controlled substances immigration statute for removal.136 Padilla’s counsel would also need to determine whether he had been at any point: (1) admitted to the United States, (2) convicted in the United States or a foreign country, and (3) convicted in relation to a controlled substance other than a single offense involving possession of thirty grams or less of marijuana.137 Moreover, counsel would need to investigate Padilla’s wishes and future goals, such as staying in the United States or avoiding incarceration, to develop a strategy geared toward those priorities.138 In his concurrence in Padilla, Justice Alito, joined by Chief Justice Roberts, agreed with the majority that Strickland applies.139 Justice Alito argued, however, that a client’s attorney, even where the immigration consequences to a guilty plea may be truly clear, may simply tell the client to hire an immigration attorney if the client wants to know any im-

132 See Padilla, 130 S. Ct. at 1483 (majority opinion). 133 See id. 134 8 U.S.C. § 1227(a)(2)(B)(i) (2006). 135 See id.; Padilla, 130 S. Ct. at 1483. 136 See Barón & Walmsley, supra note 126, at 8. 137 See id. at 10–14. 138 See id. at 8–9. 139 Padilla, 130 S. Ct. at 1487 (Alito, J., concurring). 58 Boston College Journal of Law & Social Justice [Vol. 32:31 migration consequences.140 The concurring opinion is reasonable— though, not ideal—where a privately retained attorney is involved at the outset of the representation.141 The concurring opinion, however, is not constitutionally reasonable where the client does not give informed consent at the outset of representation to hire an additional immigration attorney; this is also the case for aliens represented by public defenders.142 When a defendant must financially qualify for a public defender or an appointed attorney, he or she will likely not be able to secure an immigration attorney.143

A. Requiring Study for Private and Appointed Defenders A private or appointed attorney should be forced to study the law without limitation to determine what is “truly clear” because the clients expect this service. While study may afford the attorney opportunity to give incorrect or incomplete advice, private and appointed attorneys should not accept clients if they are unfamiliar with cr-immigration law or will not become competent shortly thereafter. 144 This rationale,

140 Id. at 1487. 141 See id. The Court, in its truly-clear reasoning, should not have quoted from the controlled substance statute, but instead, to the aggravated felony statute which states: “The term ‘aggravated felony’ means . . . (B) illicit trafficking in a controlled substance . . . , including a drug trafficking crime . . . .”8 U.S.C. § 1101(a)(43) (2006); see Padilla, 130 S. Ct. at 1483 (majority opinion) (“The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.”). While the Court was correct because Padilla could likely be removed from the United States under the controlled substances statute, the illicit trafficking statute would have constituted an aggravated felony and could have led to a much quicker decision on deportation. This would have led to a precedential decision from the Sixth Circuit, which had motivation to equate the Kentucky marijuana trafficking statute with the INA’s aggravated felony statute for illicit trafficking. See Garcia- Echaverria v. U.S., 376 F.3d 507, 511 (6th Cir. 2004). 142 See Model Rules of Prof’l Conduct R. 1.1, 1.4 (2011). 143 See 18 U.S.C. § 3006A(d)(1), (g)(2) (2006). The term “appointed attorney” is distinguished from the term “public defender” in that the appointed attorney is a private attorney who is part of a panel of attorneys paid an hourly rate to represent the accused by the government pursuant to 18 U.S.C. § 3006A. This is different from a federal public defender or an assistant federal public defender, who cannot engage in the private practice of law by statute. See id. § 3006A(b), (d)(1), (g)(2). 144 See Padilla, 130 S. Ct. at 1483; Model Rules of Prof’l Conduct R. 1.1, 1.3, 2.1. For example, an attorney might study and advise an alien client that deportation is certain but may not give complete advice because, unbeknownst to the attorney, immigration relief is available. The result, therefore, may be an unnecessary criminal trial when a simple guilty plea and subsequent immigration relief—such as cancellation of removal—would have been sufficient. See Padilla, 130 S. Ct. at 1483; Model Rules of Prof’l Conduct R. 1.1, 1.3, 2.1. 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 59

based on the ABA Model Rules of Professional Conduct, serves as a guide to what is constitutionally reasonable.145 The truly-clear standard allows private practitioners to opt out of fulfilling the duties they owe to their clients, and therefore, should be against public policy.146 Basic contract law allows an attorney and an alien defendant to enter into a contract for legal services but voids the contract where it is against public policy.147 Therefore, when an attorney signs a contract for what the client believes to be all-inclusive legal services but does not actually need to perform to the client’s expectations, the contract should be void. The attorney should only be able to limit the scope of representation when reasonable under the circumstances and if the client gives informed consent.148 In Padilla, however, allowing a private attorney to represent Padilla for criminal matters but not the associated immigration matters was not reasonable under the circumstances. Simply put, it is unreasonable to presume that any client would consent to an attorney keeping a fee without providing a service.

B. Lowering the Study Standard for Public Defenders The Padilla majority references the differing duties of attorneys by stating that “[t]he duty of the private practitioner in such cases is more limited.”149 The Court, however, erred in its statement and should have distinguished between private, appointed, and public defenders. Thus, the private and appointed defenders must not limit their duties, but the public defenders should do no more than advise of potential immigration effects.150 Although private and appointed attorneys may control their caseloads, public defenders cannot, and therefore, they should be ex-

145 See Model Rules of Prof’l Conduct R. 1.1, 1.3, 2.1. 146 See Padilla, 130 S. Ct. at 1483; Restatement (Third) of the Law Governing Law- yers § 54(2) (2000) (“An agreement prospectively limiting a lawyer’s liability to a client for malpractice is unenforceable.”). 147 See Richard A. Lord, Illegal Agreements and Agreements Against Public Policy, Willis- ton on Contracts § 12:1 (4th ed. 2009); Friedman v. Hartmann, 787 F. Supp. 411, 421 (S.D.N.Y. 1992) (deciding an alleged agreement to indemnify for intentional misconduct, the court said: “Under the law of Connecticut, as elsewhere, contracts contrary to public policy are void and unenforceable . . . . It is well established that contracts providing for indemnity for losses incurred as a result of intentional misconduct are void and unenforceable as against public policy.”). 148 Model Rules of Prof’l Conduct R. 1.2(c). 149 Padilla, 130 S. Ct. at 1483. 150 But see id. 60 Boston College Journal of Law & Social Justice [Vol. 32:31 empt from the constitutional duty of determining what is truly clear.151 Under the existing standard, public defenders must diligently study immigration law for each client and may not be able to effectively serve everyone.152 Adhering to this rule overworks them because having too many cases is not a recognized excuse for violating ethical obligations.153 The public defender should not, however, be permitted to limit the representation—thereby avoiding the practice of immigration law—under all circumstances.154 Strickland v. Washington simply requires that the attorney perform reasonably under the circumstances.155 It is not reasonable under the circumstances to expect public defenders— who cannot control their dockets—to study immigration law and determine what is “truly clear.” There is a high likelihood that immigration law studies would interfere with the public defender’s duties to existing criminal clients that do not also have immigration issues. Public defenders are already burdened by their immense duties, such that also learning immigration law should be unnecessary. For example, in State v. Peart, the court found that one public defender had, over a seven month period, represented 418 clients—including 130 guilty pleas at arraignment— “had at least one serious case set for trial for every available trial date during that period,” received minimal investigative support, and had no funds for expert witnesses.156 Therefore, the public defender “was not able to provide his clients with reasonably effective assistance of counsel because of the conditions affecting his work, primarily the large number of cases assigned to him.”157 Instead of further burdening public defenders, courts should appoint immigration experts who are better suited to resolve these issues.158 But, when a client privately retains an attorney, the court would not need to appoint an immigration expert because the private attorney

151 See Padilla, 130 S. Ct. at 1483; State v. Peart, 621 So.2d 780, 790 (La. 1993). One of the first such cases is State v. Peart, in which the Louisiana Supreme Court held that, due to excessive caseloads and insufficient support, indigent clients of a New Orleans public defender were not generally provided with effective assistance of counsel. 621 So.2d at 790. 152 See Padilla, 130 S. Ct. 1483; Peart, 621 So.2d at 790; Model Rules of Prof’l Con- duct R. 1.3. 153 See Padilla, 130 S. Ct. 1483; Peart, 621 So.2d at 790; Model Rules of Prof’l Con- duct R. 1.3. 154 See Restatement (Third) of the Law Governing Lawyers § 54(2) (2000). 155 Strickland v. Washington, 466 U.S. 668, 688 (1984). 156 Peart, 621 So. 2d at 784; see Peter A. Joy, Ensuring the Ethical Representation of Clients in the Face of Excessive Caseloads, 75 Mo. L. Rev. 771, 776–77 (2010). 157 Peart, 621 So. 2d at 784. 158 See id. at 784–85. 2012] Padilla v. Kentucky Still Excuses Fundamental Fairness 61

should either study or associate with a private immigration expert.159 Likewise, appointed attorneys may hire immigration specialists and pay them up to eight hundred dollars without permission of the court.160

C. The Fifth Amendment Direct-Collateral Distinction No person shall “be deprived of life, liberty, or property, without due process of law . . . .”161 Accordingly, Federal Rule of Criminal Pro- cedure 11 requires federal judges to determine whether a defendant’s guilty plea is entered knowingly, voluntarily, and intelligently. 162 In Boykin v. Alabama, the Court’s ruling enshrined the Rule 11 protections as constitutional rights applicable to state criminal proceedings.163 The Supreme Court laid the foundation for a direct-collateral dichotomy in Brady v. United States, which required criminal tribunals to accept guilty pleas only from defendants who are “‘fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel . . . .’”164 Thus, the Court did not require a defendant’s awareness of all consequences of a guilty plea nor did it define the term “direct consequences.”165 The Padilla majority ruled that the direct-collateral dichotomy has no place in the Sixth Amendment but did not proscribe it from the Fifth Amendment.166 “‘It is clear that guilty pleas entered pursuant to bargaining must be entirely voluntary and that it is a violation of due process where such a plea is obtained by coercion or by deception or by a trick.’”167

159 See Model Rules of Prof’l Conduct R. 1.3. 160 18 U.S.C. § 3006A (2006); Judicial Council of the Fifth Circuit, Plan for Representa- tion on Appeal under the Criminal Justice Act, Fifth Circuit Ct. appeals (Apr. 2009), http:// www.ce5.uscourts.gov/cja/cjaDocs/cja.pdf. 161 U.S. Const. amend. V. 162 See Fed. R. Crim. P. 11; Walker v. Johnston, 312 U.S. 275, 286 (1941); Kercheval v. United States, 274 U.S. 220, 223 (1927). 163 See Fed. R. Crim. P. 11; 395 U.S. 238, 242 (1969). 164 397 U.S. 742, 755 (1970) (quoting Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957). 165 See id.; Evelyn H. Cruz, Competent Voices: Noncitizen Defendants and the Right to Know the Immigration Consequences of Plea Agreements, 13 Harv. Latino L. Rev. 47, 52 (2010). 166 See Padilla, 130 S. Ct. at 1481 n.8; See also Stephanos Bibas, Regulating the Plea- Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev. 1117 (2011) (providing a good scholarly analysis of the direct-collateral dichotomy). 167 Commonwealth v. Siers, 464 A.2d 1307, 1310 (Pa. Super. Ct. 1983) (quoting Wanda Ellen Wakefield, Annotation, Judge’s Participation in Plea Bargaining Negotiations as Rendering Accused’s Guilty Plea Involuntary, 10 A.L.R. 4th 689, 692 (1981)). 62 Boston College Journal of Law & Social Justice [Vol. 32:31

Conclusion In 1951, the Supreme Court recognized that deportation from the United States was the equivalent of banishment or exile. Fifty years later, in 2001, the Supreme Court acknowledged that aliens would want to know what immigration consequences they faced before pleading guilty. The landmark decision of Padilla v. Kentucky, coming nearly a decade later, finally shows that the Supreme Court recognizes that deportation is an integral part—indeed sometimes the most important part—of the penalty that might be imposed on noncitizen defendants who plead guilty to specified crimes. The Padilla Court, however, misunderstood the intricacies of the boundaries between criminal and immigration laws, thereby setting the professional expectations of private cr-immigration attorneys at an unnecessarily low level. The Court only imposed a duty on the criminal defense attorney to advise when the immigration consequences of a conviction or plea are “truly clear.” Defense attorneys, however, need do no more when those consequences are not truly clear. Therefore, Padilla leaves defendants pleading without knowing the likely consequences of their actions. Furthermore, the decision acts to overburden public defenders while allowing private and appointed attorneys to opt out of duties to their clients. Under the circumstances, Padilla v. Kentucky erroneously excuses fundamental fairness and leaves professional responsibility lost. SEPARATION, DEPORTATION, TERMINATION

Marcia Yablon-Zug*

Introduction On a Tuesday afternoon in late September of 2009, Maria Gurrolla was caring for her newborn son.1 She had just returned home from running errands when a black police style sedan pulled up in front of

© 2012, Marcia Yablon-Zug. * Assistant Professor of Law, University of South Carolina School of Law. I would like to thank Professors Annette Appell, Washington University School of Law; Elizabeth Bartholet, Harvard Law School; Danielle Holley-Walker, University of South Carolina School of Law; Solangel Maldonado, Seton Hall University School of Law; Isabel Median, Loyola University New Orleans College of Law; Hiroshi Motomura, UCLA School of Law; Angela Onwuachi- Willig, University of Iowa College of Law; David Thronson, Michigan State University College of Law; Rose Cuison Villazor, Hofstra University School of Law; and Charles Yablon, Benja- min N. Cardozo School of Law for their invaluable assistance with this Article. 1 See Gabriel Falcon, Update: Amber Alert for Abducted Newborn, Anderson Cooper 360° CNN Blog, (Sept. 30, 2009, 10:37 AM), http://ac360.blogs.cnn.com/2009/09/30/update- amber-alert-for-abducted-newborn.

63 64 Boston College Journal of Law & Social Justice [Vol. 32:63 her house. A blonde woman exited the car and knocked on Gurrolla’s door. The woman falsely identified herself as an immigration official and then demanded Gurrolla’s baby. When Gurrolla refused, the woman stabbed her eight times and abducted her child.2 Gurrolla survived, and shortly after the abduction police located the woman and returned the baby.3 Just moments after being reunited with his mother, however, the state took the baby and his siblings into custody based on allegations that a family member had attempted to sell the child.4 The allegations were unfounded, and eventually, the family reunited.5 Maria Gurrolla’s son was taken twice, first by a kidnapper and then by the state.6 Perhaps more than anything else, it is the combination of

2 See id.; Kristin M. Hall & Desiree Hunter, Kidnapped Baby Found: State Reunites Mother and Child, Then Takes Custody ff Kids, HUFFINGTON POST (Oct. 4, 2009, 2:58 AM), http:// www.huffingtonpost.com/2009/10/04/kidnapped-baby-found-stat_n_308936.html. 3 Baby Snatch Victim Loses Kids to State Custody, FOX NEWS, (Oct. 4, 2009), http://www. foxnews.com/us/2009/10/04/baby-snatch-victim-loses-kids-state-custody. 4 Chris Echegaray & Kate Howard, Reunited: Baby Is Home; Parents Are in the Clear, TEN- NESSEAN, Oct. 7, 2009, at 1A. The public perception of Hispanic—and particularly undocumented Hispanic—immigrants as bad parents is an issue discussed in Part V below. See infra notes 329-349. 5 Echegaray & Howard, supra note 4. State officials, however, were so inclined to believe the allegations that they were willing to order state placement over placement with relatives, adding to the trauma experienced by these children. See Travis Loller, Relatives Question Why Officials Took Tenn. Baby, SEATTLE TIMES (Oct. 8, 2009), http://seattletimes.nw source.com/html/nationworld/2010025222_apustennbabysnatched.html. Maria’s three- year old daughter, who had witnessed her mother’s stabbing, found this separation especially traumatic; her trauma resulted in an illness that required hospitalization. Id. In addition, even after reunification, the investigation of the child trafficking allegations continued as police interviewed other family members. See Echegaray & Howard, supra note 4. 6 See Loller, supra note 5. Gurrolla’s case is not unique. According to Cathy Nahirny, a senior analyst with the National Center for Missing & Exploited Children, “there have been at least two other recent cases where an abductor used a ploy similar to the one used in this case.” Hall & Hunter, supra note 2; see also E-Mail from Monzer Mansour, Attorney at Law, to author (Aug. 5, 2009, 11:37 AM) (on file with author) (“I litigated a case almost two years ago where my client, here illegally, was defrauded and intimidated by a childless couple into consenting to a permanent guardianship of my client’s infant with no contact permitted between the child and the natural mother. The invidious goal was to eventually adopt the baby. After a one day trial, the judge thankfully decided in favor of my client and ordered the return of her baby after about a year or more of separation.”); Rich Phillips, Florida Parents Reunited with Baby Taken for 6 Months, CNN Just. (Feb. 3, 2010), http:// articles.cnn.com/2010-02-03/justice/florida.baby.returned_1_parents-child-florida-couple? _s=PM:CRIME (describing the abduction of an undocumented immigrant couple’s child by a woman who “‘used threats and intimidation against the parents to have control and access to the child. She threatened to deport them and report them to DCF (the Florida Department of Children and Families) to try and control them . . . .’”). “‘We need to get the word out to our immigrant communities,’ Nahirny said . . . . [I]mmigrant families have

2012] Separation, Deportation, Termination 65 these events that demonstrate the unique vulnerabilities of undocumented immigrant families like Gurrolla’s. If the issue were sympathies, it would be hard to find a more sympathetic mother than Gurrolla; she nearly lost her life attempting to protect her son.7 Nevertheless, when the state received information regarding the potential, although unlikely and unsupported, threat of harm to Gurrolla’s child, her sacri- fices for her son were irrelevant and the harm that such removal could cause Gurrolla was immaterial.8 The state needed only a single accusation to question Gurrolla’s parental fitness and order the removal of her children.9 Gurrolla’s case raises two serious concerns. The first is the state’s decision to focus on what it perceived to be her children’s best interests rather than Gurrolla’s parental rights. The second is that Gurrolla’s undocumented status appears to have increased the likelihood of having her parental fitness called into question. The Gurrolla case is troubling and, even if it were an isolated incident, the concerns it raises would still be worthy of discussion. The Gurrolla case, however, is not unique.10 More than two dozen similar incidents have occurred across the United States, revealing that certain modes of reasoning and argument can ef- been targets of child abductions because of the assumption they will not tell police.” Hall & Hunter, supra note 2. 7 See Echegaray & Howard, supra note 4. 8 See Loller, supra note 5. 9 See Echegaray & Howard, supra note 4; Loller, supra note 5. 10 See Ginger Thompson, After Losing Freedom, Some Immigrants Face Loss of Custody of Their Children, N.Y. Times, Apr. 23, 2009, at A15 (addressing the story of Encarnación Bail Romero and her son Carlos, stating that “lawyers and advocates for immigrants say that cases like his are popping up across the country as crackdowns against illegal immigrants thrust local courts into transnational custody battles and leave thousands of children in limbo”); Tele- phone Interview with Chris Huck, lawyer for Bail Romero and Maria Luis, DLA Piper (Aug. 13, 2009) (stating that he knew of maybe 12 cases from Nebraska alone, but noting that such cases are “rarely appealed”); see also Nina Rabin, Disappearing Parents: Immigration Enforcement and the Child Welfare System, 44 Conn. L. Rev. 99, 115 (2011) (describing the results of 52 surveys and 20 interviews, which revealed that the majority of the lawyers, case workers, and judges in the immigrant family separation cases surveyed had encountered “cases in which one or more family members were in detention facilities . . . at least one to five times in the past five years, and many reported encounters with such cases significantly more than five times in the past five years”); Andrew Becker & Anna Gorman, Nonviolent Crimes and Deporta- tion, L.A. Times, Apr. 15, 2009, at A20 (“The Human Rights Watch report estimates the deportations have caused the separation of more than 1 million family members.”); Julie Gil- bert Rosicky & Felicity Sackville Northcott, Expanding the Meaning of Interjurisdictional: International Issues in Child Welfare, Int’l Soc. Service: U.S. Branch, Inc., http://www.iss- usa.org/uploads/file/Expanding%20the%20Meaning%20of%20Interjurisdictional.pdf (noting that one of the ways children become separated from their families is when “[p]arent(s) are sent to their home country through immigration enforcement—the child is a US citizen and is taken in to social service custody”). 66 Boston College Journal of Law & Social Justice [Vol. 32:63 fectively facilitate the removal of children from their undocumented immigrant parents and justify the termination of parental rights.11 Parents have a constitutional right to the care and control of their children and, under established case law, courts may not terminate the rights of fit parents.12 The Tennessee Department of Children’s Ser- vices returned Gurrolla’s children but, in many similar cases, the parental rights of undocumented immigrants are ignored and replaced with a best interest of the child standard. This best interest standard is then used to justify terminating the undocumented parent’s rights.13 The movement to replace the parental rights standard with a best interest of the child standard has been growing over the 1990s and through the new millennium but, in the context of immigrant children best interest considerations, are poised to supplant all other considerations when determining the care and custody of immigrant children.14 This Article explores the issue of immigrant family separations and parental rights terminations and analyzes the legal, social, and bureau- cratic frameworks in which these decisions occur. Part I of this Article shows that removing immigrant children from parental care conflicts with both established constitutional principles regarding family integrity and assumptions undergirding traditional immigration law. Part II demonstrates that, despite this conflict, removals are in strong accord with the changing focus of family law and policy. Specifically, the removal of children from undocumented parents is the result of the success and substantial influence of the Children’s Rights Movement and its emphasis on best interest considerations. Part III discusses cases involving the

11 See Posting of Norman Pflanz, [email protected], to help-immigemplrights @yahoogrups.com ( Jul. 30, 2009) (on file with author) (describing a study by Nebraska Appleseed that revealed: “1. The Nebraska Department of Health and Human Services removes children of non-citizens from their parents at higher rates than children of citizens. 2. Immigrant families are more likely not to be provided a case plan in their native language nor informed about local resources available to them. 3. Once in the system, these families face language, cultural, and oftentimes, geographic barriers to receiving services necessary for reunification. 4. Based on these factors, immigrant families are more likely to be broken apart than families in which all members are U.S. citizens”). 12 See Elizabeth Bartholet, Taking Adoption Seriously: Radical Revolution or Modest Revision- ism?, 28 Cap. U. L. Rev. 77, 85–86 (1999); infra notes 49–60 and accompanying text. 13 See, e.g., In re Angelica L., 767 N.W.2d 74, 94 (Neb. 2009); Anita C. v. Superior Court, No. B213283, 2009 WL 2859068, at *9 (Cal. Ct. App. Sept. 8, 2009); infra notes 270–309 and accompanying text. 14 See, e.g., Elizabeth Bartholet, The Racial Disproportionality Movement in Child Welfare: False Facts and Dangerous Directions, 51 Ariz. L. Rev.871, 897 (2009) (discussing the rise of the children’s rights movement and the increasing focus on best interest analyses); infra notes 54–65 and accompanying text. In fact, the reach and importance of the best interest analysis has been steadily increasing since the 1990s. 2012] Separation, Deportation, Termination 67

termination of parental rights of undocumented parents. These cases demonstrate the power and persuasiveness of best interest arguments and the receptiveness of courts and agencies to those arguments. Part IV discusses the lack of court and state agency consideration for immigrant parents’ post-deportation circumstances in best interest analyses. Part V summarizes the arguments that states and agencies use to persuade courts that permanently removing children from the care of fit but undocumented parents is in the child’s best interest. Finally, Part VI discusses the problems with relying on a best interest standard, looking to American history for comparisons and also examines whether these removals have gone too far and exceeded public support for elevating children’s rights over parental rights. The broader normative question of whether such removals are justifiable on moral or policy grounds, and whether the law can and should be changed to permit them, are explored in a companion article.15

I. Overview of the Termination of Parental Rights For decades, the law has struggled with the tension between children’s rights and parental rights. Although not inevitable, the recognition of one has often meant the diminishment of the other. U.S. case law has long favored parental rights over children’s rights and, absent a clear showing of serious, perhaps detrimental harm, courts did not question parental decisions concerning children.16 As long as a parental decision was not gravely injurious, the fact that it might not be in the child’s best interest was irrelevant.17 Cases covering a wide range of issues—from minors’ marriages, abortions, discipline, and speech—all demonstrate the deference given to parental decisions concerning their children, even when such deference comes at the expense of a child’s best interest.18

15 See generally Marcia Zug, Should I Stay or Should I Go: Why Immigrant Reunification Deci- sions Should Be Based on the Best Interest of the Child, 2011 BYU L. Rev. 1139 (discussing the moral and policy justifications of removal and suggesting a shifting standard for when to use a parental rights or best interest analysis). 16 See, e.g., Troxel v. Granville, 530 U.S. 57, 65–66 (2000); Wisconsin v. Yoder, 406 U.S. 205, 229–30 (1972); Willis v. State, 888 N.E.2d 177, 180 (Ind. 2008). 17 See Troxel, 530 U.S. at 65–66; Santosky v. Kramer, 455 U.S. 745, 753 (1981); Stanley v. Illinois, 405 U.S. 645, 651(1972). 18 See, e.g., Troxel, 530 U.S. at 75 (noting that a state law that allowed any third party to petition for child visitation rights over parental objections violated the fundamental right of parents to raise their children); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 899–900 (1992) (holding that the state may require that an unemancipated woman under the age of eighteen obtain informed parental consent, even if this requires an in-person

68 Boston College Journal of Law & Social Justice [Vol. 32:63

A. The Parental Rights Doctrine Every day, hundreds, perhaps thousands of parents lose custody of their children.19 The standard for initial removal is often low.20 Chil- dren are typically removed due to allegations of abuse and neglect and, in a handful of states, children can even be removed when courts simply determine that removal is in their “best interest.”21 Unlike removal, however, the standard for termination is rigorous and is not solely based on a child’s best interest.22 When considering termination of parental rights, a best interest analysis is an appropriate consideration only after a finding of unfitness.23 Parents have a constitutional right to the care and custody of their children and only unfit parents lose this right.24 visit by the parent to the facility and the imposition of a twenty-four-hour waiting period); Yoder, 406 U.S. at 234 (holding that the state cannot compel school attendance past eighth grade, as this requirement would violate the fundamental right to direct the religious upbringing of children); Willis, 888 N.E.2d at 184 (setting aside the conviction of a parent who used physical force to discipline her child on the basis of parental privilege). 19 See The AFCARS Report, U.S. Department Health & Human Services, Admin. for Child. & Fam. (Oct. 2009), http://www.acf.hhs.gov/programs/cb/stats_research/afcars/ tar/report16.htm (finding that 273,000 children entered foster care in 2008). 20 See Theo Liebmann, What’s Missing from Foster Care Reform? The Need for Comprehensive, Realistic, and Compassionate Removal Standards, 28 Hamline J. Pub. L. & Pol’y 141, 145 (2006) (describing the standard as having a “remarkably narrow and short-sighted perspective”). 21 See, e.g., Colo. Rev. Stat. § 19-1-115 (2011) (allowing a court to remove a child from his or her home according to the child’s best interest); Mass. Gen. Laws ch. 119, § 29C (2010) (allowing removal when continuation the in home is contrary to the child’s best interest); Or. Rev. Stat. § 419B.150(2)(b) (2009) (allowing protective custody when it is in best interests of child). The majority of states require “that the risk of harm in the child’s home be analyzed, and if that risk meets a certain level—usually ‘imminent,’ ‘serious’ or some combination thereof—then a removal is deemed warranted.” See Liebmann, supra note 20, at 145–46; see, e.g., Conn. Gen. Stat. § 46b-129(B)(1) (2011) (allowing removal when the child is in immediate danger and it is necessary to ensure the child’s safety); Haw. Rev. Stat. § 587A–8 (2011) (allowing removal when continued placement with the parents presents a risk of imminent harm); 705 Ill. Comp. Stat. 405/2-10 (1999) (allowing removal when there is an immediate and urgent necessity for the safety and protection of the child); Ind. Code § 31-34-2-3(a)(1) (2011) (allowing removal when a child’s physical or mental condition will be seriously impaired or endangered if not immediately taken into custody); Md. Code Ann., Fam. Law § 5-709(a)(2) (LexisNexis 2011) (allowing removal for a child in serious, immediate danger); Mo. Rev. Stat. § 210.125.2 (2011) (allowing removal for a child in imminent danger of serious physical harm or upon a threat to his or her life). 22 See, e.g., In re D.T., 818 N.E.2d 1214, 1227 (Ill. 2004); In re Terrance G., 731 N.Y.S.2d 832, 847 (Fam. Ct. 2001). 23 See, e.g., In re D.T., 818 N.E.2d at 1227 (explaining that once a parent is found unfit, then all considerations must yield to the best interest of the child); In re P.L., 778 N.W. 2d 33, 36 (Iowa 2010) (noting that in the 1970s “scholars began questioning the best interest standard used by the courts to terminate parental rights” and that this standard was ultimately rejected because a best interests test “provided little or no guidance for the court in deciding when to terminate a parent’s parental rights”); In re Terrance G., 731 N.Y.S.2d at

2012] Separation, Deportation, Termination 69

In the 1972 case of Stanley v. Illinois, the Supreme Court struck down an Illinois state law automatically depriving unmarried fathers of custody of their biological children upon the death of the mother.25 The statute in Stanley reflected the state’s assumption that being raised by a single father is not in a child’s best interest.26 The Supreme Court found this consideration irrelevant.27 The Stanley Court held that, unless a parent is shown to be unfit, the parent has the constitutional right to the care and upbringing of his or her children.28 Therefore, the Court found it unconstitutional to require the father to prove that he had a right to raise his children.29 Ten years later, the Court decided Santosky v. Kramer.30 The Santosky Court declared unconstitutional a New York statute permitting determinations of “permanent neglect” to be based on a “fair preponder- ance of the evidence.”31 The Court explained that the parental right to the care and custody of children is a fundamental liberty interest and concluded that, before a state may terminate parental rights, it must support its allegations by at least “clear and convincing evidence.”32 Then, in June of 2000, the Supreme Court decided Troxel v. Gran- ville, reaffirming the importance of parental rights and the inapplicabil-

847 (“‘In many cases the State may, and under some legal systems undoubtedly does, find “better” parents for a child even though the natural parents may be willing and able to provide proper care.’ But it is fundamental to our legal and social system, that it is in the best interest of a child to be raised by his parents, unless the parents are unfit . . . .”) (internal citation omitted) (quoting In re Sanjivini K., 391 N.E.2d 1316, 1321 (N.Y. 1971)); Developments in the Law: The Law of Marriage and Family, 116 Harv. L. Rev. 1996, 2119 (2003) (arguing that the state’s role must be “restricted to the goal of ensuring parental fitness, not extended to protect the relative and potentially imprecise ‘best interest’ of the child”); Michael S. Wald, State Intervention on Behalf of “Neglected” Children: Standards for Re- moval of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termina- tion of Parental Rights, 28 Stan. L. Rev. 623, 637 (1976). 24 See, e.g., Santosky, 455 U.S. at 753 (describing this right as “a fundamental liberty interest”). 25 Stanley, 405 U.S. at 658. 26 See id. at 648. 27 See id. at 654–55, 658. 28 See id. at 658. 29 See id.; see also Santosky, 455 U.S. at 767 (explaining that a child may only be removed and placed in another home “‘when it is clear that the natural parent cannot or will not provide a normal family home for the child’”) (quoting N.Y. Soc. Serv. Law § 384-b.1(a)(iv) (McKinney 2011). 30 Santosky, 455 U.S. at 770. 31 See id. at 748, 768. 32 Id. at 769; see also Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 846–47 (1977) (refusing to grant constitutional protections to foster parents that would infringe on the constitutional right of parents to the care and custody of their children). 70 Boston College Journal of Law & Social Justice [Vol. 32:63 ity of a best interest standard. 33 The Troxel Court described the “interest of parents in the care, custody, and control of their children [a]s perhaps the oldest of the fundamental liberty interests recognized by [the] Court” and held that so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.34 These Supreme Court cases illustrate what is often referred to as the parental rights doctrine.35 This doctrine holds that children should remain with their birth parents “and that the state should play an extremely limited role in overseeing the conditions of their lives . . . .”36 These cases reflect the strong constitutional protections afforded parental rights and the limited role the government is expected to play in su- pervising what occurs within the family.37 Put simply, this means that parents must exercise a minimum degree of care and, unless they are found to be unfit for falling below this low standard of care, the state may not interfere with the custody and care of their children.38 Conse-

33 See Troxel, 530 U.S. at 72–73. 34 Id. at 65, 68–69; see also id. at 96 (Kennedy, J., dissenting) (“For that reason, ‘[s]hort of preventing harm to the child,’ the court considered the best interests of the child to be ‘insufficient to serve as a compelling state interest overruling a parent’s fundamental rights.’”) (quoting In re Smith, 969 P.2d 21, 30 (Wash. 1998)); Martin Guggenheim, What’s Wrong with Children’s Rights 38–39 (2005) (“The parental rights doctrine protects parents from having to defend their right to their children’s custody on grounds that parental custody would further the children’s best interests. A best interests inquiry is not a neutral investigation that leads to an obvious result. It is an intensely value-laden inquiry. And it cannot be otherwise.”). 35 See Troxel, 530 U.S. at 72–75; Santosky, 455 U.S. at 767; Stanley, 405 U.S. at 648; see also Annette Ruth Appell, Virtual Mothers and the Meaning of Parenthood, 34 U. Mich. J. L. Re- form 683, 688–89 (2001) (“‘Parental rights doctrine’ refers to the . . . doctrine that defines parents and limits intervention into the family.”). 36 Guggenheim, supra note 34, at 36. 37 See Troxel, 530 U.S. at 72–75; Santosky, 455 U.S. at 767; Stanley, 405 U.S. at 648; see also Guggenheim, supra note 34, at 36 (stating that, under this doctrine, the government’s role is limited to defining the “outer limits of what is acceptable parenting”). “Government bureaucracies (‘impersonal political institutions’ in the language of the Supreme Court) have been criticized for being inept at many functions.” Guggenheim, supra note 34, at 38. Therefore, because government bureaucracies are likely inept in making best interest analyses, they should limit—rather than encourage—their own involvement in such decisions. See id. This doctrine thus prevents “state officials, who will never know children better than the adults who have directly nurtured them, from making childrearing decisions.” Id. 38 See Troxel, 530 U.S. at 72–75; Santosky, 455 U.S. at 767; Stanley, 405 U.S. at 648; Gug- genheim, supra note 34, at 36. 2012] Separation, Deportation, Termination 71 quently, the current state of the law regarding parental rights can be described as a fitness standard.39 It is not a best interest of the child standard.40

B. Immigrant Parents’ Rights The constitutional rights of parents are not confined to citizens.41 Immigrant parents also have the right to the care and custody of their children, and U.S. immigration law assumes that immigrant parents will retain custody of their children regardless of immigration status.42 In fact, immigration decisions are often based on the assumption that children and parents will be reunited in the parents’ country of origin after deportation.43 For example, the Board of Immigration Appeals (BIA) specifically held that, when an alien-parent’s child “is below the age of discretion, . . . it is his parents’ decision whether to take him along to leave him in this country when and if they are deported.”44 Many courts have repeatedly affirmed this conclusion.45 In fact, immigration authorities are so skeptical of parents’ claims that deportation will result in separation

39 See Troxel, 530 U.S. at 72–75; Santosky, 455 U.S. at 767; Stanley, 405 U.S. at 648; Gug- genheim, supra note 34, at 36–37. 40 See Troxel, 530 U.S. at 72–75; Santosky, 455 U.S. at 767; Stanley, 405 U.S. at 648; Gug- genheim, supra note 34, at 36–37. 41 See Troxel, 530 U.S. at 65; Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). The Su- preme Court has held that constitutional protections of the “Fourteenth Amendment . . . [are] not confined to the protection of citizens . . . . [The] provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality . . . .” Yick Wo, 118 U.S. at 369; see also Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.”). That Congress’s power over immigration is considered plenary means two things: “[f]irst, Congress’s authority to regulate immigration derives not from any constitutionally enumerated power, but rather is ‘inherent’ in the United States’ ‘sovereignty’ as an independent nation. Second, in its exercise of that authority, Congress—and, by delegation, the Executive—is buffered against judicially enforceable constitutional constraints.” Matthew J. Lindsay, Immigration as Invasion: Sover- eignty, Security, and the Origins of the Federal Immigration Power, 45 Harv. C.R.-C.L. L. Rev. 1, 3 (2010). 42 See Newton v. INS, 736 F.2d 336, 343 (6th Cir. 1984); Ayala-Flores v. INS, 662 F.2d 444, 446 (6th Cir. 1981); In re B & J, 756 N.W.2d 234, 239–40 (Mich. Ct. App. 2008) (citing Liu v. U.S. Dep’t of Justice, 13 F.3d 1175, 1177 (8th Cir. 1994)). 43 See Newton, 736 F.2d at 343; Ayala-Flores, 662 F.2d at 446; In re B & J, 756 N.W.2d at 239–40. 44 Liu, 13 F.3d at 1177; see also Newton, 736 F.2d at 343; Ayala-Flores, 662 F.2d at 446; In re B & J, 756 N.W.2d at 240 n.5 (citing Liu, 13 F.3d at 1177). 45 See Marcia Zug, Deporting Grandma: Why Grandparent Deportation May Be the Next Big Immigration Crisis and How to Solve It, 43 U.C. Davis L. Rev. 193, 218–19 (2009) (providing examples of many similar immigration decisions). 72 Boston College Journal of Law & Social Justice [Vol. 32:63 from their children that parents must present significant proof that they will not take the children with them upon deportation.46 Even then, the BIA has held that “absent proof of extreme hardship to a child if he returns to his parents’ native country with them, [it] will generally consider the decision to leave the child in the United States to be a matter of personal choice.”47 Consequently, regardless of status, immigrants have the same legal right to the care and custody of their children as all other American parents.48

II. The Controversial Rise of the Children’s Rights Movement Parents have a constitutional right to the care and custody of their children.49 Moreover, the constitutional rights of parents are not confined to citizens, as immigrant parents also have the right to the care and custody of their children.50 Since the mid-1990s, however, the traditional deference accorded to parental rights has weakened.51 Increas- ingly, critics are calling for best interest considerations to trump paren-

46 See id. at 219. Parents claiming that deportation will result in separation, thereby creating extreme hardship, must present the government with proof of intention to separate; immigration courts repeatedly reject such claims based on a lack of proof. See id.; see also In re Ige, 20 I. & N. Dec. 880, 885 (B.I.A. 1994) (stating that “[t]he claim that the child will remain in the United States can easily be made for purposes of litigation, but most parents would not carry out such an alleged plan in reality”). 47 In re Ige, 20 I. & N. Dec. at 886. 48 See id.; Zug, supra note 45, at 218–19. Many challenges to deportation claim that the re- sultant family separation violates the constitutional rights of the U.S. citizen children. See Zug, supra note 45, at 219–20. Those challenges, however, normally fail because courts assume that separation is a choice. See id. When separation cannot be considered a choice, then the possibility of a successful constitutional challenge increases greatly. See, e.g., id.; More Than 100 Kids Sue Over Parents’ Deportations, USA Today ( June 17, 2009), http://www.usatoday.com/ news/nation/2009-06-17-deportation_N.htm (describing a constitutional challenge brought by 150 U.S. citizen children protesting their parents’ deportations). 49 See Bartholet, supra note 12, at 85–86; Zug, supra note 45, at 218–20. 50 See Newton v. INS, 736 F.2d 336, 343 (6th Cir. 1984); In re Ige, 20 I. & N. Dec. 880, 886 (B.I.A. 1994); Zug, supra note 45, at 218–20. 51 Compare Solangel Maldonado, When Father (or Mother) Doesn’t Know Best: Quasi-Parents and Parental Deference After Troxel v. Granville, 88 Iowa L. Rev. 865, 871 (2003) (arguing against the idea that parental rights are justified based on the parents’ greater likelihood of acting in their child’s best interest), with Emily Buss, Essay, “Parental” Rights, 88 Va. L. Rev. 635, 647 (2002) (“Parents’ strong emotional attachment to their children and considerable knowledge of their particular needs make parents the child-specific experts most qualified to assess and pursue their children’s best interests in most circumstances. In contrast, the state’s knowledge of and commitment to any particular child is relatively thin.”). This weakness is shown by the prevalence of best interest arguments in courtrooms, child welfare administrations, and the legislature. See Maldonado, supra, at 871–72. 2012] Separation, Deportation, Termination 73 tal rights.52 This change, combined with the vulnerable position occupied by minorities and undocumented immigrants, may explain the otherwise surprising receptivity with which a number of courts have received best interest arguments in undocumented immigrant parent termination cases.53

A. The Child Welfare System The importance of parental rights continues, but has begun to weaken, and this is particularly true in the context of the child welfare system.54 Traditionally, the emphasis on parental rights meant that family preservation was the clear goal of the child welfare system.55 Conse- quently, removing children to facilitate adoption was not considered a desirable option.56 Beginning in the 1990s, however, leading scholars—such as Eliza- beth Bartholet, Richard Banks, and Richard Barth—began to voice their strong opposition to the traditional approach of the child welfare system.57 They argued that a child welfare system that ultimately aims to protect the rights of parents is one that neglects the rights and perhaps endangers the lives of children.58 Their work criticized the traditional

52 See In re D.T., 818 N.E.2d 1214, 1220 (Ill. 2004); In re B & J, 756 N.W.2d 234, 240–41 (Mich. Ct. App. 2008); Bartholet, supra note 12, at 89–90. 53 See In re D.T., 818 N.E.2d at 1220; In re B & J, 756 N.W.2d at 240–41; see, e.g., Bar- tholet, supra note 12, at 89–90; Maldonado, supra note 51, at 871–72. 54 See In re D.T., 818 N.E.2d at 1220; In re B & J, 756 N.W.2d at 240–41; see, e.g., Bar- tholet, supra note 12, at 89–90; Maldonado, supra note 51, at 871–72. 55 Bartholet, supra note 12, at 85–86 (“Family preservation has always been the dominant modus operandi in the child welfare system.”). 56 See id. at 86. Adoption was considered a last resort for exceptional situations, and was not perceived “as a normal and appropriate way to arrange for the care of children whose birth parents cannot or will not provide care.” See id. 57 See id. at 84–86; Raymond C. O’Brien, An Analysis of Realistic Due Process Rights of Chil- dren Versus Parents, 26 Conn. L. Rev. 1209, 1211–13, 1234–35, 1251–52 (1994). See generally Elizabeth Bartholet, Nobody’s Children: Abuse and Neglect, Foster Drift, and the Adoption Alternative (1999) (discussing the history of the child welfare system and how it does not take into account the best interest of the child); R. Richard Banks, The Color of Desire: Fulfilling Adoptive Parents’ Racial Preferences Through Discriminatory State Action, 107 Yale L.J. 875 (1998) (stating that race preferences in adoption are harmful because they limit the likelihood of adoption and arguing for a strict non-accommodation policy that would prevent adoption agencies from facilitating these racial preferences); Richard P. Barth, Abusive and Neglecting Parents and the Care of Their Children, in All Our Families: New Policies for a New Century 217 (Mary Ann Mason et al. eds., 1998) (arguing for less emphasis on family preservation and more on children’s developmental needs, permanency, and adoption to meet those needs). 58 See Bartholet, supra note 12, at 84–86; O’Brien, supra note 57, at 1211–13, 1251–52. 74 Boston College Journal of Law & Social Justice [Vol. 32:63 emphasis on family preservation and parental rights.59 Instead, they sought increased attention to the child’s best interest, which they frequently argued was the permanency and stability that could only be achieved through adoption.60 This emerging Children’s Rights Movement succeeded in placing best interest considerations in the mind of the public.61 The final years of the twentieth century witnessed a dramatic reversal in attitudes regarding family preservation, adoption, and children’s rights.62 Adop- tion, traditionally reserved for only the most exceptional circumstances, was increasingly viewed as the ultimate goal.63 This policy shift is exemplified in two significant Congressional acts—the Adoption and Safe Families Act (ASFA) and the Multiethnic Placement Act (MEPA)—a model law on adoption known as the Uniform Adoption Act (UAA), and a special immigration status for children called Special Immigra- tion Juvenile (SIJ).64 All of these changes dramatically aided efforts to focus the child welfare system’s attention on the best interest of the child rather than family preservation.65

B. The ASFA, MEPA, UAA, SIJ Status and the Triumph of Children’s Rights Congress enacted the ASFA in response to the Adoption Assistance and Child Welfare Act (AACWA) and it represented a drastic shift in policy.66 Congress had previously passed the Adoption Assistance and

59 See Bartholet, supra note 12, at 84–86; O’Brien, supra note 57, at 1211–13, 1251–52. 60 See Bartholet, supra note 12, at 84–87. Consequently, Bartholet has argued that, because of this lack of willingness to consider adoption, “[f]amily preservation has been regularly promoted and defended on the basis of a claim that the only alternative for children is foster and institutional care.” Id. at 86. 61 See Bartholet, supra note 12, at 84–85; Bartholet, supra note 14, at 897. 62 See Bartholet, supra note 12, at 84–85; Bartholet, supra note 14, at 897. For example, new research in the 1990s called into doubt the benefit of Intensive Family Preservation Services (IFPS), programs that were popular in the 1970s and 1980s. See Bartholet, supra note 12, at 84. During the 1980s, many jurisdictions adopted the IFPS model of “family preservation.” See Bartholet, supra note 14, at 896. “The basic idea was to prevent children described as ‘at risk of placement’ from being removed from their parents and placed in foster care. Child abuse and neglect was conceived of as occurring because of a crisis in the family, which could be resolved by intensive but short-term supportive services.” Id. 63 See Bartholet, supra note 12, at 84–85 (describing perceptions of adoption). 64 8 C.F.R. § 204.11 (2010); Unif. Adoption Act (amended 1994), 9 U.L.A. 11 (2011). 65 See Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified in scattered sections of 42. U.S.C. (2006)); Howard Metzenbaum Multiethnic Place- ment Act of 1994, Pub. L. No. 103-382, 108 Stat. 3518, 4056 (repealed); 8 C.F.R. § 204.11; Unif. Adoption Act, 9 U.L.A. 11; infra notes 72–113 and accompanying text. 66 See 111 Stat. at 2115; Robert Mnookin & D. Kelly Weisberg, Child, Family, and State: Problems and Materials on Children and the Law 353 (6th ed. 2009). 2012] Separation, Deportation, Termination 75

Child Welfare Act in 1980.67 The primary objective of the AACWA was to help find permanent homes for children.68 The AACWA’s method for achieving this goal, however, was firmly rooted in the traditional ideas of family preservation.69 The AACWA sought to achieve permanency by addressing the problems that could lead to removal and by aiding in the return of children to their families after they had been removed.70 By the 1990s, however, the benefits of family preservation were increasingly being questioned and the AACWA became subject to mounting criticism.71 The ASFA came as a response to these growing criticisms and one of its major reforms clarified the AACWA’s “reasonable efforts” standard.72 Under the AACWA, states were required to make reasonable efforts to prevent the removal of children from their homes and to reunify them with their families following removal.73 Although the AACWA did not specify the meaning of reasonable efforts, the ASFA expressed a clear statement that reunification is not possible or desirable in all cases.74 Another change was the ASFA’s strong approval of adoption.75 The ASFA promotes adoption by reducing the amount of

67 Adoption Assistance and Child Welfare Act, Pub. L. No. 96-272, 944 Stat. 500 (codified as amended in scattered sections of 42 U.S.C.). The Community Partnership Move- ment, another family preservation movement, also gained popularity during this period. Like IFPS, the goal of this movement was “to keep more children identified as at risk for maltreatment with their parents, and the idea again is that, with more supportive services for those parents, the children can be kept safe.” Bartholet, supra note 14, at 897. 68 42 U.S.C. § 670; Bartholet, supra note 57, at 25. 69 42 U.S.C. § 670; Bartholet, supra note 57, at 25–26. 70 Mnookin & Weisberg, supra note 66, at 353. Congress facilitated this goal by providing states with federal matching funds for foster care and adoption services if states adopted certain standards. Id.; see 42 U.S.C. § 670. Specifically, the Act requires that (1) [S]tates must formulate case plans (“permanency planning”) that are designed to achieve placement in the least possible restrictive setting, (2) states must conduct periodic case reviews, and (3) states must make “reasonable efforts” to prevent removal of children from the home and to reunify the family following removal . . . . Through these provisions Congress attempted to shift resources from temporary out-of-home care and to focus on channeling resources either to a child’s natural family or to other permanent care alternatives. Mnookin & Weisberg, supra note 66, at 353. 71 See Bartholet, supra note 57, at 26; Bartholet, supra note 12, at 84–86. 72 Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified in scattered sections of 42 U.S.C.); Mnookin & Weisberg, supra note 66, at 353. 73 See Adoption and Safe Families Act § 101(a)(15)(D), 42 U.S.C. § 671(a)(15)(D) (2006). 74 Id. § 101(a)(15)(A); see Bartholet, supra note 12, at 85. 75 See Adoption and Safe Families Act § 101(a)(15)(C), 42 U.S.C. § 671(a)(15)(C); Bartholet, supra note 12, at 85. 76 Boston College Journal of Law & Social Justice [Vol. 32:63 time a child spends in foster care while waiting to reunite with his or her parents.76 Under the ASFA, permanency hearings are now required no later than twelve months after a child enters foster care. Further- more, states must seek termination of parental rights when children are in foster care for fifteen out of twenty-two consecutive months.77 Such changes demonstrated a shift away from parental rights and toward a greater emphasis on children’s rights.78 These changes highlighted the increasing importance of children’s rights and emphasized the position that a parent’s right to reunification should not come at the expense of a child’s right to stability and permanence.79 A second piece of legislation Congress passed during this period is the MEPA.80 Prior to the MEPA, many states had laws and policies discouraging interracial adoptions and instead promoting same-race adoptions.81 State legislatures passed these laws after the National Asso- ciation of Black Social Workers (NABSW) expressed strong opposition to the increasing incidence of white families adopting black children in the 1960s and ’70s.82 The NABSW described such adoptions as “a form of race and cultural genocide.”83 Transracial adoptions dramatically decreased as a result of this condemnation.84 After the NABSW’s condemnation, many states enacted race- matching laws that required the consideration of a child’s race in adoption placements and gave preference to families with the same racial or ethnic make-up.85 States without specific race-matching statutes often

76 See Adoption and Safe Families Act § 101(a)(15)(C), 42 U.S.C. § 671(a)(15)(C). 77 42 U.S.C. § 675(5)(E). 78 Bartholet, supra note 14, at 928 (describing the ASFA as a “good law because it shifts the balance in child welfare law and policy somewhat in the direction of valuing children’s rights more, and parents’ rights less”). 79 See Bartholet, supra note 14, at 928. 80 Howard Metzenbaum Multiethnic Placement Act of 1994, Pub. L. No. 103-382, 108 Stat. 3518, 4056 (repealed). 81 See Solangel Maldonado, Discouraging Racial Preferences in Adoptions, 39 U.C. Davis L. Rev. 1415, 1455 n.197 (2006) (noting that “Arizona, Nevada, and Missouri had race matching policies that required that a child be available for adoption for a certain period of time . . . before he or she could be adopted by a family of a different race”). 82 Maldonado, supra note 81, at 1454–55. 83 Id. at 1455 (internal quotation marks omitted). 84 Id. (“Although most African Americans disagreed with the NABSW’s views, transracial adoptions decreased dramatically after its statement.”) (internal citations omitted). 85 See id. at 1455 (citing David S. Rosettenstein, Trans-Racial Adoption and the Statutory Preference Schemes: Before the “Best Interests” and After the “Melting Pot,” 68 St. John’s L. Rev. 137, 140 n.9 (noting that such informal policies in favor of race matching became part of department practice manuals)). 2012] Separation, Deportation, Termination 77

adopted informal race-matching policies.86 By the 1990s, however, children’s rights advocates were increasingly concerned that, because the majority of adoptive parents were white while the majority of children awaiting adoption were not, many children in foster care were not being adopted as a result of their race.87 Congress passed MEPA in 1994 to reverse these race-matching policies.88 Like the ASFA, MEPA expressed Congress‘s clear approval of adoption and its desire to increase the number of adoptions of foster children.89 The goal of MEPA was to increase adoptions by ensuring that race would not be a controlling factor in adoption decisions.90 Congress passed the law to make sure that children would not remain in foster care when there were families, regardless of race, willing to adopt them.91 Initially, MEPA did not meet much success because it permitted race to continue as a factor in placement decisions.92 State race-matching continued after MEPA’s enactment and, as a result, Con- gress amended MEPA.93 The MEPA amendments prohibit federally funded agencies from “deny[ing] to any individual the opportunity to become an adoptive or a foster parent, on the basis of race, color, or national origin of the individual, or of the child, involved . . . .”94 After its amendment, MEPA expressly prohibited race-matching or any other consideration of race in placement decisions.95 Since the amendments’ passage, federal enforcement has become vigorous.96 The U.S. Department of Health and

86 See Maldonado, supra note 81, at 1455. 87 See id. at 1455–56. 88 Howard Metzenbaum Multiethnic Placement Act of 1994, Pub. L. No. 103-382, 108 Stat. 3518, 4056 (repealed) (codified at 42 U.S.C.A § 5115a (West 1995)); See Bartholet, supra note 12, at 85 (stating that “[g]iven that the near-universal policy and practice throughout the nation had been for child welfare agencies to place children with same-race families if at all possible, this law was truly revolutionary in concept”). 89 108 Stat. at 4056; see Maldonado, supra, note 81, at 1456. See generally Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C. (2006)). 90 See 108 Stat. at 4056; Maldonado, supra, note 81, at 1456. 91 See 108 Stat. at 4056; Maldonado, supra note 81, at 1455 (“Some African American children remained in foster care indefinitely, even though there were white families willing to adopt them.”). 92 See Maldonado, supra note 81, at 1455–56. 93 Small Business Job Protection Act of 1996 § 1808(c), Pub. L. No. 104-188, 110 Stat. 1755, 1904 (codified as amended at 42 U.S.C. § 1996(b)(1)(A)); see Maldonado, supra note 81, at 1456–57. 94 42 U.S.C. § 1996b(1)(A). 95 42 U.S.C. § 1996b(1)(A) (2006); see Maldonado, supra note 81, at 1456–57. 96 See Bartholet, supra note 14, at 928. 78 Boston College Journal of Law & Social Justice [Vol. 32:63

Human Services (DHHS) has imposed significant financial penalties upon a number of states for MEPA violations and has forced many more to modify placement practices.97 The DHHS has thus demonstrated its strong commitment to enforcing MEPA.98 Its hope is that vigorous enforcement will finally achieve the goals of MEPA and increase the adoptions of foster children.99 At the same time Congress was enacting MEPA and the ASFA, the National Conference of Commissioners on Uniform State Laws proposed the UAA.100 The UAA is a model act that pertains to custody determinations after failed or thwarted adoptions.101 Under the UAA, after an adoption has failed, a court may conduct a hearing to consider whether to allow non-parents to obtain custody rather than return the child to his or her biological parents.102 Consequently, when an adoption fails to occur—often because there is no finding of unfitness or because the parent does not consent—the biological parent is not automatically entitled to regain custody of his or her child.103 Instead, the court considers the best interest of the child and makes a determination regarding with whom the child should be placed.104 In these cases,

97 Elizabeth Bartholet, Commentary, Cultural Stereotypes Can and Do Die: It’s Time to Move on with Transracial Adoption, 34 J. Am. Acad. Psychiatry & L. 315, 317–18 (2006). In 2003, Ohio was issued a penalty letter imposing a $1.8 million fine. Id. In 2005, South Carolina received a penalty of $107,481. Id. at 317–19. 98 See Child Welfare Policy Manual, U.S. Department Health & Hum. Services Admin. for Child. & Fam. ( Jul. 14, 2010), http://www.acf.hhs.gov/cwpm/programs/cb/laws_poli- cies/laws/cwpm/policy_dsp.jsp?citID=171; Information Memorandum Im-03-01, U.S. Depart- ment Health & Hum. Services Admin. for Child. & Fam. (Mar. 25, 2003), http://www. acf.hhs.gov/programs/cb/laws_policies/policy/im/2003/im0301.htm. 99 See Maldonado, supra note 81, at 1458. In addition, the MEPA’s enactment has also influenced private agencies, which are increasingly willing to place children trans-racially. See id. (noting that “the majority of public agencies currently place children trans-racially, and most private agencies, although not bound by MEPA, frequently place African American children with white families”). 100 Unif. Adoption Act (amended 1994), 9 U.L.A. 11 (2011). 101 See id. 102 Id. Only Vermont has adopted the UAA. Vt. Stat. Ann. tit. 15A, §§ 1-101–8-101 (2011). A number of states, however, have also enacted similar statutes. See, e.g., 750 Ill. Comp. Stat. 50/20 (1999) (requiring a court to “promptly conduct a hearing as to the temporary and permanent custody of the minor child who is the subject of the proceedings” after an adoption petition has been denied or vacated). 103 See Unif. Adoption Act § 2-408 cmt. at 62 (amended 1994), 9 U.L.A. 60 (2011) (stating that a court’s conclusion that a parent is not unfit or does not consent to the child’s adoption “is not tantamount to a determination that the child must be placed in that parent’s custody”). 104 Appell, supra note 35, at 728 n.191 (explaining that the UAA provides for a “determination whether return to the mother would be detrimental to the child when the

2012] Separation, Deportation, Termination 79

courts redefine the term parent to include thwarted adoptive parents, and thus, analyze these cases as a custody dispute.105 As a result, courts are able to avoid the parental rights doctrine and apply the best interest of the child standard.106 Like the ASFA and the MEPA, the UAA evinces a strong preference for adoption and a disinclination for reunification and parental rights.107 Under the UAA, once a child is removed, he or she is potentially adoptable, regardless of parental consent or fitness.108 The effect of such acts, particularly MEPA and the ASFA, cannot be understated.109 Although the majority of children (approximately 57%) still exit foster care through reunification, the rates of reunification have declined dramatically.110 Children who entered the foster care system in 1997, the year the ASFA was passed, “had a 13% slower rate to reunification than those who entered in 1990.”111 In addition, during this period, the number of children adopted from foster care increased substantially.112 Since the enactment of the ASFA, the majority of states have doubled the number of children adopted out of foster care and, in some states, that number has tripled.113

C. Children’s Rights and Immigration Law The increasing focus on children’s rights also had an influence on immigration law.114 In 1990, Congress changed immigration law to create the SIJ nonimmigrant legal status category.115 Congress created the SIJ status to ensure that undocumented children who were victims of

mother revokes her adoption consent after a failed attempt to have the father’s rights terminated and an adoption decree entered”). 105 Naomi R. Cahn, Reframing Child Custody Decisionmaking, 58 Ohio St. L.J. 1, 21–22 (1997) (noting that in these situations, courts transform a “potential adoption case between the biological parent and third parties into a custody case where the dispute is between the parents”). 106 See id. 107 See Appell, supra note 35, at 728–29. 108 See id. 109 See Bartholet, supra note 12, at 83–90. But see Bartholet, supra note 14, at 871 (arguing that the disproportionality movement, which seeks to reduce the disproportionate number of African-American children in foster care, may indicate the beginnings of a swing back in the direction of family preservation). 110 Mnookin & Weisberg, supra note 66, at 332. 111 Id. at 333. 112 Id. 113 Id. 114 See 8 U.S.C. § 1101(a)(27)( J) (2006); 8 C.F.R. § 204.11 (2010); My Xuan T. Mai, Note, Children Under the Radar: The Unique Plight of Immigrant Juveniles, 12 Barry L. Rev. 241, 244 (2009). 115 See 8 U.S.C. § 1101(a)(27)( J); 8 C.F.R. § 204.11. 80 Boston College Journal of Law & Social Justice [Vol. 32:63 abuse and neglect would be permitted to remain and receive care in the United States.116 Congress’s goal was to protect the best interests of these vulnerable children.117 Under the SIJ provision, once a child is removed from parental care, declared dependent on a juvenile court, and eligible for foster care, the child becomes eligible for legal status adjustment as a SIJ.118 These children may then take steps to become lawful permanent residents.119 State regulations encourage caseworkers to identify these children and assist them in petitioning for lawful permanent resident status, which may eventually lead to citizenship.120 The ASFA, MEPA, UAA, and SIJ status provisions were a clear response to the growing influence of the Children’s Rights Movement in

116 See 8 U.S.C. § 1101(a)(27)( J); 8 C.F.R. § 204.11; see also Mai, supra note 114, at 244. SIJ status functions as such: SIJ status involves a finding by the Family Court in the jurisdiction where the child lives that the child is dependent upon the family court, usually made in guardianship or foster care proceedings, and then an application to U.S. Citi- zenship and Immigration Services . . . or made in open court where the child is in removal proceedings. If granted, SIJ status results in adjustment to Law- ful Permanent Resident status. Jennifer L. Coyler et al., The Representational and Counseling Needs of the Immigrant Poor, 78 Fordham L. Rev. 461, 470 n.34 (2009). 117 See Mai, supra note 114, at 244. Part of the impetus for creating this category was the concern that undocumented children were not being removed from abusive and neglectful homes out of fear that removal would lead to deportation. See id. (“Similar to the Violence Against Women Act . . . , which provides aid to victims of domestic abuse, the SIJ statute was Congress’ answer to a moral crisis involving undocumented children suffering neglect, abuse, or abandonment at the hands of those closest to them—their family.”) (internal citations omitted). One of the problems with the original act, however, was its lack of clarity on whether it applied to children who had entered the country illegally. See Gao v. Jenifer, 185 F.3d 548, 552 (6th Cir. 1999). The technical amendments to section 245 of the Immigration and Nationality Act rectified these problems. See Miscellaneous and Technical Immigration Naturalization Amendments of 1991, Pub. L. No. 102–232, 105 Stat. 1733, 1744 (codified as amended at 8 U.S.C. § 1255); 8 C.F.R. § 204.11. Subsection 245(h) of the Act permits adjustment of status regardless of the minor’s original mode of entry into the United States. 8 U.S.C. § 1255(h). 118 See 8 U.S.C. § 1101(a)(27)( J); 8 C.F.R. § 204.11. 119 See Memorandum from Erwin McEwen, Director of the Department of Children and Family Services, to DCFS and POS Child Welfare Staff Rules and Procedures Bookholders (May 16, 2008), available at http://www.f2f.ca.gov/res/pdf/PolicyGuideImmigration.pdf. 120 See, e.g., id. (describing the requirement of DCFS workers to determine a child’s citizenship “status and explain[] the benefits and services that may be unavailable to a child who does not become a legal permanent resident of the United States”); see also Ce- cilia Saco, An Overview of Immigration Issues and Child Welfare from a Social Worker’s Perspective, Department of Child. & Fam. Services (L.A. County) (Dec. 12, 2007), http://www. f2f.ca.gov/res/pdf/BeyondTheBench.pdf (describing the work of the Special Immigrant Status Unit, which files the SIJ status applications for undocumented children; and noting that since 2006, the Unit had filed over 2400 applications for green cards). 2012] Separation, Deportation, Termination 81

that they all place the needs and rights of children above those of parents.121 In short, they reflect the Children’s Rights Movement’s belief that the child’s best interest is of paramount importance.122 In addition, the influence of the Children’s Rights Movement continues to grow and is clearly reflected in undocumented immigrant parent termination cases.123 The Children’s Rights Movement paved the way for the use and acceptance of arguments favoring a child’s best interest.124 And such arguments are now being used to justify the removal of children from fit, undocumented immigrant parents.125 The following undocumented immigrant cases reveal that courts and social workers are willing to ignore parental rights and consider the best interest of the child above all else.

III. Immigrant Termination Cases Immigrant termination cases lie at the intersection of changing law and policy. Although the law traditionally protected parental rights and sought to ensure family integrity, children’s rights have gained increasing importance along with the belief that such rights include the right to be with good, and not simply fit, parents.126 These changing beliefs are exemplified in undocumented immigrant parent termination cases, where such arguments are often accepted. In these termination cases, courts commonly acknowledge the traditional rule that a parent must be deemed unfit before termination is appropriate, but

121 See Mai, supra note 114, at 246; supra notes 66–113 and accompanying text. 122 See Mai, supra note 114, at 246; supra notes 66–113 and accompanying text. These acts have garnered significant academic support. See, e.g., Signithia Fordham, Racelessness as a Factor in Black Students’ School Success: Pragmatic Strategy or Pyrrhic Victory?, 58 Harv. Educ. Rev. 54, 79–80 (1988) (discussing empirical research concluding that trans-racial adoption yields academic advantages for black children); Kim Forde-Mazrui, Note, Black Identity and Child Placement: The Best Interests of Black and Biracial Children, 92 Mich. L. Rev. 925, 954 (1994) (“[A] white parent’s denial of Black inferiority may be more believable because it is less self-serving.”). 123 See, e.g., Anita C. v. Superior Court, No. B213283, 2009 WL 2859068, at *9 (Cal. Ct. App. Sept. 8, 2009); In re B & J, 756 N.W.2d at 240. 124 See, e.g., Anita C., 2009 WL 2859068, at *9; In re B & J, 756 N.W.2d at 240. 125 See, e.g., In re M.M., 587 S.E.2d 825, 832–33 (Ga. Ct. App. 2003); In re B & J, 756 N.W.2d at 240. 126 See Troxel v. Granville, 530 U.S. 57, 72–75 (2000); Willis v. State, 888 N.E.2d 177, 184 (Ind. 2008) (implicitly refuting the position that parents who use corporal punishment are unfit); Annette R. Appell, “Bad” Mothers and Spanish-Speaking Caregivers, 7 Nev. L.J. 759, 761 (2007); Teresa W. Julian et al., Cultural Variations in Parenting: Perceptions of Caucasian, African- American, Hispanic, and Asian-American Parents, 43 Fam. Rel. 30, 32 (1994). 82 Boston College Journal of Law & Social Justice [Vol. 32:63 then terminate parental rights based on a finding that termination is in the child’s best interest, irrespective of parental fitness.127

A. Fitness and Initial Removal In undocumented immigrant termination cases, courts and welfare agencies frequently conclude that a parent’s undocumented status alone demonstrates unfitness.128 These conclusions reveal a primary concern with best interest considerations, as opposed to parental rights, and an assumption that living with undocumented parents is not in a child’s best interest.129 In these cases, the presumption of unfitness is often apparent from the first removal decisions.130 Many of these cases begin with questionable charges of abuse and neglect.131 Accusations by third parties, often those who want the child for themselves, are routinely given significant consideration.132 Most tellingly, perhaps, is that lower courts in a handful of cases considered a parent’s lack of English proficiency a sufficient reason to remove a child.133

127 See, e.g., In re B & J, 756 N.W.2d 234, 239–40 (Mich. Ct. App. 2008) (reversing a Michigan family court’s termination of parental rights for erroneously construing the children’s best interests and holding them as a paramount concern). 128 See In re M.M., 587 S.E.2d 825, 832 (Ga. Ct. App 2003) (commenting on a juvenile court’s termination of parental rights based on immigrant status). In other cases, courts simply ignore the requirement that they make a fitness inquiry and move immediately to considerations of the child’s best interest. See, e.g., Anita C. v. Superior Court, No. B213283, 2009 WL 2859068, at * 5(Cal. Ct. App. Sept. 8, 2009) (finding unfitness irrelevant because “return of [the child] to [the] mother would be detrimental to him”). 129 See Anita C., 2009 WL 2859068 at *5; In re M.M., 587 S.E.2d at 832. 130 See, e.g., In re M.M., 587 S.E.2d at 832. 131 See, e.g., In re M.M., 587 S.E.2d at 827. 132 See Vivi Abrams, Fuller Says DHR Workers Removed Baby, Birmingham News, Oct. 25, 2003, at 13A (reporting that undocumented immigrant Marta Alonzo’s son was placed in state care by two “community volunteers” who literally took the child from his family); Shaila Dewan, Two Families, Two Cultures and the Girl Between Them, N.Y. Times, May 12, 2005, at A16 (noting that the child’s teacher accused the immigrant mother of being unfit and then received custody of the child); Omar Riojas, DLA Piper, Counsel for Encarnación Bail Romero, Address at The Impact of Immigration Policy on Children (Nov. 5, 2009) (describing how an undocumented mother lost custody of her child after a local teacher’s aide offered babysit- ting services and then refused to return the child) (remarks on file with author). 133 See Tim Padgett & Dolly Mascareñas, Can a Mother Lose Her Child Because She Doesn’t Speak English?, TIME (Aug. 27, 2009), available at http://www.time.com/time/nation/ article/0,8599,1918941,00.html. English proficiency is not a requirement for custody. See Zuniga v. Ponce, No. 1 CA-CV 08-0615, 2009 WL 4251630, at *4 (Ariz. Ct. App. Nov. 27, 2009) (“There is no requirement for a parent to speak English in order to have custody of his or her child.”). Consequently, it should comes as no surprise that the majority of these decisions have been overturned on appeal. See, e.g., In re B & J, 756 N.W.2d at 237; In re Angelica L., 767 N.W.2d 74, 80 (Neb. 2009); infra notes 255–266 and accompanying text. However, the likelihood of appeal in undocumented immigrant termination cases is low. 2012] Separation, Deportation, Termination 83

For example, the Mississippi Department of Human Services investigated an undocumented immigrant mother, Cirila Baltazar Cruz, after she gave birth to her daughter.134 The Department immediately removed the child, finding that Cruz’s lack of English proficiency “placed her unborn child in danger and will place the baby in danger in the future.”135 In a similar instance in Tennessee, the teacher of an immigrant mother’s child accused the mother of neglect and urged officials to remove the child.136 On review, a Tennessee court agreed, basing its decision on the mother’s lack of English proficiency.137 The court then prohibited contact with the daughter until the mother demonstrated her “commitment to her daughter” by learning to speak English.138 Finally, in South Carolina, state authorities removed a child from her undocumented parents because the police mistook their indigenous dialect for slurred Spanish and charged them with public intoxication.139

B. Judicial Unfitness Determinations at the Juvenile Court Level Undocumented immigrant parental rights termination decisions mirror the presumptions underlying the initial removals.140 These decisions are often based on nothing more than a parent’s immigration status and again reveal a primary concern for the best interest of the child rather than parental rights.141 For example, in In re Angelica L., the state of Nebraska removed an undocumented immigrant mother’s children after receiving allegations of neglect.142 The mother, a native of Guatemala named Maria Luis, entered the United States without proper

134 See Padgett & Mascareñas, supra note 133. 135 Id. 136 Dewan, supra note 132. 137 Id. 138 Id. In fact, the court made no accommodations for the mother’s lack of English proficiency. The mother, Felipa, spoke only an indigenous dialect called Mixtecan, but no Mix- tecan translators were provided during the initial custody hearing. Id. Consequently, the mother could not defend herself against the charges of neglect. See id. When later asked how learning English would make Filipa a better mother, the judge replied, “It’s common sense.” Id. Though this case did not involve an undocumented immigrant, it nonetheless demonstrates that the acceptability of these biases is growing. 139 Interview with Patricia Ravenhorst, Exec. Dir., S.C. Immigrant Victim’s Network (Oct. 22, 2009). The child’s babysitter, a woman who openly acknowledged her desire to gain custody of Martin and Lucia’s daughter, provided the initial information regarding the parents’ intoxication to the police. Id. Immediately after the couple’s child entered into state custody, the babysitter requested custody of the child. Id. 140 See In re V.S., 548 S.E.2d 490, 492–93 (Ga. Ct. App. 2001); In re Angelica L., 767 N.W.2d at 80. 141 See In re V.S., 548 S.E.2d at 492–93; In re Angelica L., 767 N.W.2d at 80. 142 In re Angelica L., 767 N.W.2d at 81–82. 84 Boston College Journal of Law & Social Justice [Vol. 32:63 documentation in 1997.143 Her son Daniel was born in 1998 and her daughter Angelica was born in 2004.144 Angelica was born prematurely and, when she was one month old, her mother took her to the hospital where she was diagnosed as “suffering from dehydration, malnutrition, a urinary tract infection, and a left pulmonary branch stenosis.”145 After Angelica’s illness, Luis recognized she needed guidance and sought the assistance of Healthy Starts, a federal and state funded social services program that provides parents with child care information and assistance.146 After Luis became involved in the Healthy Starts program, they sent reports to Nebraska DHHS expressing concern for the well being of Daniel and Angelica.147 The department investigated the reports and determined them unfounded.148 When Angelica next became ill, an employee from Healthy Starts once again contacted DHHS alleging abuse.149 DHHS again determined the claim to be unfounded, but the report nevertheless triggered an investigation and, as a result of this investigation, DHHS determined Luis to be unfit.150 The juvenile court held that the state had proved her unfitness based on the fact that she “either A) embarked on an unauthorized trip to the United States with a newborn premature infant or B) gave birth to a premature infant in the United States” after entering the country illegally.151 Without deciding between the two, the trial court held that either scenario demonstrated “that [Luis] did not provide the basic level of prenatal and postnatal care.”152 According to the trial court,

143 Id. at 80. 144 Id. 145 Id. at 80–81. At the hospital, the doctor became aware of Maria’s immigration status and threatened to recommend deportation if Maria did not follow her instructions or follow up on Angelica’s medical care. Id. at 81. 146 Id. at 81. 147 In re Angelica L., 767 N.W.2d at 81. 148 Id. 149 Id. 150 See id. at 81–82 (noting that these “allegations [of abuse] were never substantiated and were deemed to be unfounded”). Although the allegations were unfounded, the Nebraska DHHS removed the children after police arrested Maria for obstructing a government investigation. Id. at 82. They charged Maria with misidentifying herself as the children’s babysitter—rather than their mother—when the child welfare workers came to investigate the allegations of abuse. Id. at 81–82. After her obstruction arrest, Immigration and Customs Enforcement (ICE) officials took Maria into custody and scheduled her for deportation. Id. at 82. 151 Id. at 87–88 (internal quotation marks omitted). 152 In re Angelica L., 767 N.W.2d at 88 (internal quotation marks omitted). 2012] Separation, Deportation, Termination 85

good mothers do not illegally cross the border if they are pregnant or have just given birth.153 Other courts use similar immigration violations to justify findings of unfitness.154 In In re V.S., the Georgia Department of Family and Children Services (DFCS) removed the daughter of an undocumented father shortly after birth when both she and her mother tested positive for cocaine.155 The mother was addicted to drugs but the undocumented father never used drugs and had attempted to prevent the mother’s drug use during pregnancy.156 After the Georgia DFCS took custody of V.S., the father tried to visit but DFCS employees claimed that he needed an appointment and turned him away.157 He had called repeatedly to set up appointments and, though DFCS had his name and contact information, the Department did not contact him or return his calls.158 Only months later did DFCS permit him to see his daughter for one hour every fifteen days.159 He kept each of his appointments, showed affection, and “seemed to genuinely love V.S.”160 Nevertheless, the juvenile court deemed him unfit, in part because he “is an illegal alien and is subject to deportation.”161 Other cases are comparable.162 In In re M.M., a Georgia juvenile court found a father unfit and terminated his parental rights essentially due to his status as an undocumented immigrant and its concern about the “possibility that the father could someday be deported.”163 In addition, the juvenile court terminated the mother’s rights based in part on her relationship with a man “who was an illegal alien.”164 Finally, in In re

153 See id. at 87–88. 154 See In re V.S., 548 S.E.2d at 492–93. 155 Id. at 492. He asked to pay child support but was told he would not be allowed to do so until a court hearing. Id. Georgia DFCS never created a reunification plan for the father. Id. When V.S. was 7 months old, the state petitioned to terminate both the mother and father’s parental rights. Id. at 493. 156 Id. at 492. The relationship began as one for money but turned into a romantic relationship. Id. The father and mother moved in together and the mother became pregnant. Id. The father gave her money for prenatal care and asked her to marry him. Id. She refused. Id. The father eventually moved out. Id. 157 Id. 158 Id. 159 In re V.S., 548 S.E.2d at 492. 160 Id. 161 Id. at 493. 162 See In re M.M., 587 S.E.2d at 829, 831–32; In re B & J, 756 N.W.2d at 238. 163 In re M.M., 587 S.E.2d at 832. In this case, the father was an undocumented immigrant but not in deportation proceedings. See id. at 831. Nevertheless, the court clearly had a “problem with [the father’s] INS situation.” Id. 164 Id. at 829. 86 Boston College Journal of Law & Social Justice [Vol. 32:63

B & J, a Michigan family court found two parents unfit, stating that they had been deported and thus “were unable to provide proper care and custody for the children.”165 Under the law, a parent’s undocumented status, by itself, is not enough to support an unfitness determination.166 The above cases, however, demonstrate that such terminations occur nonetheless.167 These decisions indicate that in undocumented immigrant parental rights terminations cases, trial courts are discarding the parental rights standard and employing a best interest of the child standard instead.

IV. Immigrant Parents’ Post-Deportation Circumstances Given the state of the law, which maintains that parents must be found unfit before termination is appropriate, a finding of unfitness based on immigration status alone is inappropriate.168 Nevertheless, some courts based their fitness determinations of immigrant status on what they believe is the best interest of the child.169 The choice to ele- vate best interest considerations over parental rights explains the lack of sympathy courts and agencies demonstrate for the parents’ post- deportation circumstances. It also helps explain why courts and agencies believe that even outright interference with these parents’ attempts at achieving reunification is justified.

A. No Consideration of Deportee’s Post-Deportation Circumstances Courts are tremendously unwilling to consider difficulties that an undocumented or deported parent might experience when trying to comply with the requirements of a reunification plan.170 For example, Anita C. v. Superior Court—where a mother unsuccessfully attempted to take parenting classes after being deported to Guatemala—demonstrates one court’s lack of sympathy for the difficulties that undocumented immigrant parents encounter when trying to comply with re-

165 In re B & J, 756 N.W.2d at 238. 166 See In re V.S., 548 S.E.2d at 493–94. 167 See In re M.M., 587 S.E.2d at 829, 831–32; In re B & J, 756 N.W.2d at 238. Although some of these terminations are reversed on appeal, most such cases never get appealed. See, e.g., In re B & J, 756 N.W.2d at 237; In re Angelica L., 767 N.W.2d at 80; infra notes 251– 266 and accompanying text. 168 See In re V.S., 548 S.E.2d 490, 493–94 (Ga. Ct. App. 2001). 169 See Anita C. v. Superior Court, No. B213283, 2009 WL 2859068, at *8–9 (Cal. Ct. App. Sept. 8, 2009). 170 See id. 2012] Separation, Deportation, Termination 87

unification plans in a foreign country.171 This lack of sympathy shows that the primary concern of the court is achieving what it perceives as the child’s best interest.172 Similarly, in In re Angelica L., a Nebraska juvenile court held that the mother’s “fear of deportation serves as no excuse for her failure to provide the minimum level of health care to her children.”173 It similarly found that her undocumented status did not excuse her failure to remedy the conditions that led to the initial finding of unfitness.174 Ac- cording to the court, “[b]eing in the status of an undocumented immigrant is, no doubt, fraught with peril and this [inability to satisfy the reunification plan] would appear to be an example of that fact.”175 In Anita C. v. Superior Court, the court held that the lack of resources available to the deported mother in her home country did not excuse her inability to comply with her reunification plan, which required her to take specific parenting classes.176 The California Court of Appeal dismissed the mother’s explanation that the required classes were not taught in Guatemala.177 It affirmed the juvenile court’s recognition that the mother’s ability to comply with the reunification plan was limited by the resources available to her but blamed her for this situation, stating that “we may also consider that mother [through deportation] placed herself out of reach of many of the services . . . [the state] could have provided.”178 Consequently, the Court of Appeal held that “due to [these] circumstances, mother could not adequately address the issues that led to her losing custody of the children,” and

171 See id. 172 See id. at *9. 173 In re Angelica L., 767 N.W.2d. 74, 88 (Neb. 2009) (internal quotation marks omitted). 174 See id. 175 Id. (internal quotation marks omitted). 176 See Anita C., 2009 WL 2859068, at *2, *8. In Anita C., child welfare officials removed the child, J.A., from his home after Anita left him unattended while at work. Id. at * 1. The state later charged her with, and she pled guilty to, child endangerment. Id. ICE officials then deported her. Id. The case initially concerned three older half siblings, but the court terminated jurisdiction over their cases when they returned to their father’s custody. Id. at *2 n.5. 177 Id. at *8. 178 Id. at *7. The court also blamed the mother for the failure of the international home study to be completed. Id. During the time the home study was to have been conducted the mother attempted to illegally re-enter the United States, presumably in a desperate attempt to reunify with her child. See id. at *4. 88 Boston College Journal of Law & Social Justice [Vol. 32:63 agreed with the juvenile court, that this is simply “a sad consequence of illegal immigration.”179

B. Deportation as Abandonment In other cases, the courts’ lack of sympathy for the difficulties faced by undocumented immigrant parents manifests as a willingness to treat their deportation as abandonment.180 Perez-Velasquez v. Culpeper County Department of Social Services involved an undocumented immigrant mother and father with three young, U.S. citizen children.181 The state took custody of the children after a social worker visited the home and found the mother had left them unsupervised when she went for a job interview.182 The father was incarcerated at the time his children were taken into custody and he was deported immediately after his release from prison.183 Shortly thereafter, a Virginia court terminated both parents’ parental rights and the children became eligible for adoption.184 With regard to the father, the court found him unfit because he had, “without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the [children] for a period of six months after the child’s placement in foster care . . . .”185 The father challenged the decision, arguing that his failure to maintain contact with his children was because of his incarceration and deportation, and consequently, was not willful.186 The court found this explanation irrelevant, however, stating that it was the “father’s own actions

179 Id. at *5, *8; see also E-mail from Hilda Lopez, Attorney, to author (Apr. 5, 2010) (on file with author) (describing an unpublished case from Massachusetts in which a juvenile court held that, because the deported mother could not come to the United States to regain custody, the state Department of Children and Family Services had no responsibility to make reasonable efforts at reunification). 180 See Perez-Velasquez v. Culpeper Cnty. Dep’t of Soc. Servs., No. 0360-09-4, 2009 WL 1851017, at *2 (Va. Ct. App. June 30, 2009). 181 Id. at *1. See also In re M.A.P.A., No. 98-1218, 1999 WL 711447, at *2 (Iowa Ct. App. July 23, 1999) (finding termination of an undocumented immigrant father’s parental rights justified based on the fact that he was in prison and, once released, would be likely be deported and not “have sufficient time to develop a relationship with” his son). 182 Perez-Velasquez, 2009 WL 1851017, at *1. 183 Id. 184 Id. at *1, *3. 185 Id. at *2 n.1, *3. The father admitted he had no contact with his children during this period but argued that child welfare services never told him where the children were and that such contact would have been difficult because the children spoke English and he spoke primarily Mam and Spanish. Id. at *2. 186 Id. 2012] Separation, Deportation, Termination 89

[that] led to this situation.”187 In addition, the court was horrified by the father’s reunification plan, which was to return to the United States illegally and take the children back with him.188 Similarly, in the case of Encarnación Bail Romero, a Missouri circuit court found that Bail Romero, an undocumented immigrant mother incarcerated after providing false identification papers during an Immigration and Customs Enforcement (ICE) workplace raid, had abandoned her son.189 Although Bail Romero’s separation from her son was involuntary, the trial court still held that her actions constituted abandonment.190 Finally, in In re V.S., a Georgia juvenile court used the difficulties the undocumented father encountered when trying to visit his daughter as grounds for abandonment.191 The court held that the father “has failed for more than one year to develop and maintain a parental bond with the child; he has not provided any financial support to the child [and] he only began visiting the child when she was nine months old.”192 These statements, however, directly contradict the facts

187 See Perez-Velasquez, 2009 WL 1851017, at *2. Although the court noted that incarceration by itself does not justify termination of parental rights, the court held that termination is permissible when incarceration is “combined with other evidence concerning the parent/child relationship.” Id. Other evidence included the father’s immigration status. See id. As noted by the trial court and upheld on appeal, the father’s deportation eliminated any chance that he could maintain contact with the children and be involved in the foster care plan during the time period after the children’s placement in foster care, or that he could participate in remedying, within a reasonable time, the conditions resulting in the placement and continuation of the children in foster care. Id. 188 See id. As a convicted felon, any return to the United States would have been illegal; thus, the court found “[t]his plan was not viable, and it was not in the best interests of the children.” See id. 189 In re C.M.B.R., 332 S.W.3d 793, 801–02, 804 (Mo. 2011) (en banc). Although officials released other parents, Bail Romero was ineligible for release because she had used false identification. Thompson, supra note 10. “Such charges were part of a crackdown by the Bush administration, which punished illegal immigrants by forcing them to serve out sentences before being deported.” Id. After Bail Romero’s conviction, the Supreme Court in Flores-Figueroa v. United States, struck down a conviction under a law criminalizing aggravated identity theft. See 129 S. Ct. 1886, 1894 (2009). According to the Supreme Court, there must be intent and, consequently, this means that Bail Romero’s separation from her child was unnecessary and unjustified. See id.; In re C.M.B.R., 332 S.W.3d at 804. 190 In re C.M.B.R., 332 S.W.3d at 816–18. 191 See In re V.S., 548 S.E.2d at 493. 192 Id. The juvenile court also provided additional reasons such as he failed to contact DFCS and went to Mexico without notifying anyone con- nected with this proceeding; he failed to respond to a certified letter from DFCS; he got the child’s mother pregnant knowing she had a drug problem;

90 Boston College Journal of Law & Social Justice [Vol. 32:63 of the case, which demonstrate that he had bonded with his child, attempted to pay child support, and actively sought visitation since her birth.193

C. Immigration Law A court’s ability to ignore an immigrant parent’s post-deportation circumstances or view deportation as abandonment is reinforced by the harsh immigration laws on illegal reentry.194 In 1996, Congress sought to reduce the incidence of illegal immigration and passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).195 One of the consequences of IIRIRA was increased penalties for illegal reentry after deportation.196 In the context of immigrant parent terminations, this means that once a parent is deported, he or she is barred from returning to contest termination.197 An undocumented parent who attempts illegal reentry risks arrest and his or her reasons for reentry receive no consideration.198 As a result, deported parents can rarely

he did nothing to stop the mother from abusing drugs; he has failed to obtain permanent employment with benefits; he has failed to obtain basic child care items, such as a car seat; and he does not have his own place to live. Id. 193 See id. at 492–93 (“In this case, the evidence shows that the father made numerous attempts to contact DFCS in order to visit his daughter, asked if he could pay child support, gave the child’s mother money for prenatal care, arranged for and kept his visitation appointments for the five-month period preceding the hearing, showed love and affection toward V.S. during visitation, and made arrangements for caring for the child should he be given custody.”). 194 See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 § 334, Pub. L. No. 104-208, 110 Stat. 3009-548, 3009-635 (1996). 195 110 Stat. at 3009-635; see Perez-Velasquez, 2009 WL 1851017, at *3; Statement on Sign- ing the Omnibus Consolidated Appropriations Act, 1997, 2 Pub. Papers 1729, 1731 (Sept. 30, 1996) (“[The bill] also includes landmark immigration reform legislation that builds on our progress of the last 3 years. It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system— without punishing those living in the United States legally.”). 196 See 8 U.S.C. § 1326(a) (2006); 110 Stat. at 3009-635. 197 See United States v. Hernandez-Baide, 392 F.3d 1153, 1158 (10th Cir. 2004), rev’d on other grounds, 544 U.S. 1015 (2005). 198 8 U.S.C. § 1326(a), (b)(2) (making reentry by a deported felon illegal); see Hernan- dez-Baide, 392 F.3d at 1158. Obviously not all deported parents have felony convictions, but after the new, stricter immigration controls, more undocumented immigrants are facing criminal charges and incarceration before deportation. See, e.g., United States v. Saucedo- Patino, 358 F.3d 790, 791 (11th Cir. 2004); United States v. Dyck, 334 F.3d 736, 737 (8th Cir. 2003); United States v. Carrasco, 313 F.3d 750, 753 (2d Cir. 2002). 2012] Separation, Deportation, Termination 91 return, thereby increasing the ability of courts to treat deportation as abandonment.199 The case of United States v. Hernandez-Baide is illustrative.200 Officials arrested Arlette Hernadez-Baide, a deported immigrant mother, for criminal reentry when she returned to the United States to contest the termination of her parental rights and the subsequent adoption of her daughter.201 A district court judge sentenced her “to twenty-four months imprisonment followed by three years [of] supervised release.”202 She challenged the sentence, arguing that the court should have applied a downward departure—a sentence below the statutory minimum—based on mitigating circumstances concerning a lesser harm.203 Specifically, on appeal to the Tenth Circuit, she argued that the district court should have considered the fact that she returned to the United States only to prevent termination of her parental rights and the adoption of her daughter.204 The district court, however, denied her request for a downward departure and the Tenth Circuit affirmed.205 The appeals court explained that Congress intended to make reentry a strict liability crime, and thus, a deported alien who makes an unauthorized reentry is “‘strictly liable’ for such criminal conduct, regardless of the underlying motivation for such illegal entry.”206 This conclusion has been consistently upheld.207 A parent attempting illegal reentry to contest termination of parental rights is entitled to

199 See, e.g., Saucedo-Patino, 358 F.3d at 794–95; Dyck, 334 F.3d at 741–42; Carrasco, 313 F.3d at 755–56; Anita C., 2009 WL 2859068, at *8 (deported mother attempted illegal reentry to contest termination of her parental rights and adoption of her child). 200 392 F.3d at 1155, 1158; see also Saucedo-Patino, 358 F.3d at 794–95; Dyck, 334 F.3d at 741–42; Carrasco, 313 F.3d at 755–56; Anita C., 2009 WL 2859068, at *4, *8. 201 Hernandez-Baide, 392 F.3d at 1154–55. 202 Id. at 1155. 203 Id.; see infra note 207 and accompanying text (discussing the impact of United States v. Booker). 204 Id. 205 Id. at 1156. On appeal, the government argued that a lesser harm departure was not appropriate because “no connection exists between the crime of illegal reentry and the perceived harm, which in this case involved severance of her parental rights.” Id. Al- though the court did not use this as the basis for its decision, this argument reveals the government’s belief that deportation does not affect a parent’s ability to reunite with his or her child. 206 Id. at 1158 (explaining that the statute “‘is designed to deter deported aliens from illegally reentering for any reason,’ thereby making ‘a deported alien’s unauthorized presence in the United States a crime in itself’”) (quoting Carrasco, 313 F.3d at 755). 207 See, e.g., Saucedo-Patino, 358 F.3d at 794–95; Dyck, 334 F.3d at 741–42; Carrasco, 313 F.3d at 755–56. The Tenth Circuit decided Hernadez-Baide before the Supreme Court’s decision in United States v. Booker, where the Court held that sentencing guidelines must be construed as advisory rather than mandatory. United States v. Booker, 543 U.S. 220, 245

92 Boston College Journal of Law & Social Justice [Vol. 32:63 no leniency.208 The penalties for illegal reentry are significant and the immigrant’s motivations are irrelevant.209 Consequently, once parents are deported, it is very unlikely they will be able to return to contest the termination of their parental rights.210

(2005). As a result, the Court remanded the case but the Tenth Circuit subsequently rein- stated its conviction. United States v. Hernadez-Baide, 146 F. App’x 302, 304 (10th Cir. 2005); see also United States v. Mendez-Magana, 102 F. App’x 590, 591 (9th Cir. 2004) (demonstrating that, even post-Booker, downward departures for family circumstances are still not permissible). 208 See Hernandez-Baide, 392 F.3d at 1154–55. 209 See, e.g., United States v. Portillo-Alvarez, 223 F. App’x 821, 823 n.2 (10th Cir. 2007) (holding that “this court has specifically held that § 5K2.11 departures are not allowed in illegal reentry cases because the crime of illegal reentry is not a specific intent crime”); United States v. Prado-Jimenez, 223 F. App’x 818, 820 n.4 (10th Cir. 2007) (stating in dicta that “based on the analysis of departures in Hernandez-Baide . . . it would be likewise improper for a district court to vary from the advisory guidelines range based solely on the defendant’s motivation for reentering the United States”); United States v. Barajas-Garcia, 229 F. App’x 737, 741 (10th Cir. 2007) (stating “the criminal conduct of illegal reentry under which Mr. Barajas-Garcia was convicted, requires no specific motive or intent,” and thus the father’s purpose for reentry—to protect his infant son from his drug addicted mother—could not be considered); United States v. Herrera-Gonzalez, No. CR 07-1602 JB, 2008 WL 2371564, at *9 (D.N.M. Feb. 6, 2008); United States v. Marinaro, No. CR-03-80-B- W, 2005 WL 851334, at *10 (D. Me. April 13, 2005) (holding illegal reentry is a crime without a mens rea element). 210 See Hernandez-Baide, 392 F.3d at 1154–55. Although immigrants often seek visas, such visas are commonly denied. See, e.g., Adegbuji v. Middlesex Cnty., 347 F. App’x 877, 879–80, 882 (3d Cir. 2009) (holding that a district court did not abuse its discretion when finding that multiple denials for a visa to reenter the country to attend trial did not warrant continuance); Ordoñez v. Tacuri, No. 09-CV-1571 (FB), 2009 WL 2928903, at *1 n.1 (E.D.N.Y. Sept. 10, 2009) (noting that immigration officials denied a temporary visa to a mother that wished to attend a hearing in which she sought the return of her abducted son). One solution to this dilemma would be to make reentry for such purposes easier to obtain. The concerns posed by these cases, however, make this result unlikely. See Portillo- Alvarez, 223 F. App’x at 823 n.2; Prado-Jimenez, 223 F. App’x at 820 n.4; Barajas-Garcia, 229 F. App’x at 741; Herrera-Gonzalez, 2008 WL 2371564, at *9; Marinaro, 2005 WL 851334, at *10. After a person has entered the country illegally, and particularly when he or she has committed a crime after unauthorized entry, the assumption is that the person is untrustworthy and the risk that they will overstay their visas is too great. See Portillo-Alvarez, 223 F. App’x at 823 n.2; Prado-Jimenez, 223 F. App’x at 820 n.4; Barajas-Garcia, 229 F. App’x at 741; Herrera-Gonzalez, 2008 WL 2371564, at *9; Marinaro, 2005 WL 851334, at *10. The likelihood of permanent separation is also increased by the fact that many children are placed in English-speaking homes and lose the ability to communicate with their parents. Appell, supra note 126, at 771. Moreover, “federal law does not specifically require that children be placed in foster homes where their native or their parents’ native language is spoken,” which shows that maintenance of language skills and ability to speak with natural parents are viewed as unimportant. See id. (noting that “72% of children in immigrant families speak a language other than English at home, and in 26% of these homes, nobody fourteen or older has a strong command of the English language”). 2012] Separation, Deportation, Termination 93

D. State Actions In cases like In re Angelica L. and Anita C., courts demonstrate the belief that the primary consideration in parental rights termination cases should be the best interest of the immigrant child. Courts, however, did not reach this conclusion alone. In many instances, the actions of state child welfare agencies were instrumental in achieving termination.211 In numerous cases, state child welfare agencies did not simply remove children, they also created the grounds for termination.212 It is not uncommon for state child welfare agencies to withhold assistance, tell lies, and even contact immigration authorities if they believe such actions will ensure the termination of an immigrant parent’s rights.213 For example, agencies are often highly resistant to providing reunification assistance to undocumented parents.214 Even when reunification is the stated goal and courts order reunification services, the effort expended by assigned caseworkers is frequently minimal or non- existent.215 Again, In re Angelica L. is illustrative.216 First, the Spanish speaking mother received a non-Spanish speaking case worker.217 Then, the caseworker gave her no contact information for her children and neglected to provide her with a physical copy of her case plan.218 Finally, when the mother requested help complying with her case plan, the caseworker told her she would “‘have to take initiative for that’ herself.”219 Similarly, in In re B & J, the caseworker’s assistance in finding services for the parents consisted of a single phone call and an internet search.220 In addition, the caseworker made no effort to contact the parents after losing touch with them and refused to ask the child how to reach the parents because she “had not wanted to upset him.”221

211 See, e.g., In re B & J, 756 N.W.2d 234, 240 (Mich. Ct. App. 2008); Angelica L., 767 N.W.2d at 95. 212 See, e.g., In re B & J, 756 N.W.2d at 237. 213 See, e.g., id. at 240; Angelica L., 767 N.W.2d at 95. 214 See, e.g., In re B & J, 756 N.W.2d at 240; Angelica L., 767 N.W.2d at 95. 215 See Angelica L., 767 N.W.2d at 83, 95. 216 See id. 217 Id. at 83. 218 Id. at 83–84. 219 Id. at 84. 220 In re B & J, 756 N.W.2d at 238. 221 Id.; see also Fairfax Cnty. Dep’t of Family Servs. v. Ibrahim, No. 0821-00-4, 2000 WL 1847638, at *1 (Va. Ct. App. Dec. 19, 2000) (noting that the state argued that “rendering little or no service to the father amounted to rendering reasonable services because it could not offer services during [the father’s] incarceration . . . .” and, according to the agency, “it had no way to provide services in Ghana”) Specifically,

94 Boston College Journal of Law & Social Justice [Vol. 32:63

In other cases, agency employees actually lied to achieve the termination of an undocumented immigrant’s parental rights.222 For example, the Commissioner of the Alabama Department of Human Re- sources lied in numerous public statements about the danger that continued custody by Marta Alonzo, an undocumented immigrant teenage mother, posed to her son, Javier.223 According to the Commis- sioner, the child had scabies and removal “saved his life.”224 He openly stated that “[t]here’s no question but that he was in imminent danger.”225 These statements were untrue.226 In fact, the child’s doctor publicly disputed this testimony, stating that Alonzo was a fit parent who sought medical treatment and never placed her child in danger.227 Likewise, in In re Angelica L., a foreign home-study was conducted, which concluded that Luis was “able to provide a very stable life to her family . . . . [and] has a reputation in town as being an excellent mother.”228 However, because this was not the conclusion the state wanted, Nebraska DHHS requested a second report that “was a little more neutral.”229

the department failed to maintain contact with the father or to provide him with any services. It did not keep the father abreast of [his child’s] condition or residence, nor did it advise him of the children’s new foster care caseworker . . . . The children’s guardian ad litem did not send him an introduc- tory letter, and the children’s therapist never addressed reunification with their father . . . . [T]he department never evaluated him, assisted in his transi- tion from incarceration, or investigated the possibility of coordinating efforts with an agency in Africa . . . . [T]he department’s expectation that the father contact the department [was] unreasonable because he did not know who was working with the children. Id. at *3. 222 See Abrams, supra note 132. 223 Id. Much about Javier’s removal is suspicious. When the Alabama Department of Human Resources became involved, rather than return the child and express shock at the women’s actions, the Department supported the removal and said that returning to the home was a health hazard. See id.; Rosemary Pennington, Fighting for Javier, WBHM Bir- mingham (Feb. 6, 2004), http://www.wbhm.org/News/2004/Fighting_for_Javier.html. 224 Abrams, supra note 132. 225 Id. (adding that the baby was “in such bad shape from neglect” that after removal he needed to be admitted to the hospital). 226 Id. 227 See id. 228 In re Angelica L., 767 N.W.2d at 87 (internal quotation marks omitted). 229 Id. (internal quotation marks omitted); see also In re M.M., 587 S.E.2d 825, 832 (Ga. Ct. App. 2003) (noting that, contrary to the state’s assertion that the father “never completed the anger management course[,] . . . . not only did the father attend a majority of the sessions of an anger management course, it appears that he has maintained a lifestyle free of domestic violence” and also exposing other conflicting statements by the state about the father’s parental bond, housekeeping, and permanent residence); E-mail from

2012] Separation, Deportation, Termination 95

The above examples are telling, but the most shocking illustration of how state child welfare agencies have interfered and influenced termination decisions are cases in which welfare workers alerted ICE officials to a parent’s undocumented status to make termination easier.230 Agencies are well aware that, after a child is removed, a parent’s subsequent deportation makes future reunification unlikely and termination almost inevitable.231 Consequently, parental deportation after removal is one of the most effective means of achieving termination of an immigrant parent’s rights and state agencies have taken advantage of this fact. The deportation of Karen Arriaga is illuminating on this point.232 Arriaga was an undocumented teenage mother of two whose children were removed by the Florida Department of Children and Families (DCF) based on questionable charges of neglect.233 After Arriaga’s children were taken into protective custody, members of Family Preser- vation, a welfare group under contract with the Florida DCF told Ar- riaga that she should go to their office for a supervised visit with her children.234 When she arrived at the facility, ICE officers were waiting to take her into custody.235 A week later, Arriaga’s parents received a similar call.236 They, too, reported to the Family Preservation office to visit

Hilda Lopez, supra note 179 (describing how the Massachusetts Department of Family Services “would not contact the Dominican Republic consulate or complete an international home study,” and that “after a home study was completed by the appropriate protective agency in the Dominican Republic pursuant to a request by Mother and Mother’s counsel, the Juvenile Court Judge failed to recognize it”). 230 See In re B & J, 756 N.W.2d at 237–38; Aisling Swift, Bonita Mom Gets Probation in Ne- glect Case, Naples Daily News (Aug. 18, 2009), http://www.naplesnews.com/news/2009/ aug/18/bonita-mom-gets-probation-neglect-case. 231 See, e.g., Anita C., 2009 WL 2859068 at *8 (showing that reunification after deportation is all but impossible because the mother would never be able to demonstrate her ability to provide proper care); In re B & J, 756 N.W.2d at 242 (describing deportation as a “de facto termination of parental rights”); In re Angelica L., 767 N.W.2d at 82–83 (noting that the lower court refused immediate reunification “because Maria had been deported to Guatemala”); Swift, supra note 230 (noting that deportation will prevent the mother from completing her probation and, with no means of completing her probation, reunification is unlikely). 232 Swift, supra note 230. 233 See id. The neglect charge stemmed from her inability to afford the medical care for her premature infant and her lack of transportation to get the child to her medical appointments. Id. 234 See id. 235 Id. 236 Id. 96 Boston College Journal of Law & Social Justice [Vol. 32:63 with their grandchildren.237 As Arriaga’s mother held her grandchildren, ICE officers arrived.238 State actors arranged the deportation of the parents in In re B & J in a similar manner.239 There, a judge ordered the state Department of Human Services (DHS) to provide reunification services to the undocumented immigrant family.240 DHS objected to reunification and requested termination.241 After the family court denied this request, DHS reported the parents to ICE officials, who then deported the parents.242 After the parents were deported, DHS renewed its petition to terminate their parental rights and, because the court found deportation made reunification unlikely, it granted the termination.243 In assessing the above actions, it is important to recognize that caseworkers and child welfare agencies have no obligation to report the immigration status of the families they visit, and mandating such reporting is likely unconstitutional.244 Nevertheless, although such re-

237 Swift, supra note 230. 238 Id. 239 See In re B & J, 756 N.W.2d at 237. 240 Id. 241 Id. at 238 (“The caseworker confirmed that she believed that it had been [DHS’s] intention all along to have respondents deported.”). During this period, the services provided by DHS were meager and intended to subvert reunification. See id. In particular, DHS repeatedly prevented the children from attending scheduled visits with their parents. Id. 242 Id. at 237. 243 Id. at 238. The family court found DHS’s actions “morally repugnant.” Id. (internal quotation marks omitted). Nevertheless, the family court agreed that the children’s best interests required the termination of their parents’ rights. Id. Although the department had taken no efforts to find any services for the parents in Guatemala and had made no efforts to contact the respondents, the family court granted the termination petition merely because the children were in the United States. See id. The caseworker testified that she “had performed an internet search for possible services in Guatemala” but had “been unable to find any services” for them. Id. 244 See United States v. Arizona, 703 F. Supp. 2d 980, 987 (D. Ariz. 2010); League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 786–87 (C.D. Cal. 1995). For example, in the 2010 immigration case U.S. v. Arizona, Arizona had passed a law requiring its police officers to check immigration status under certain circumstances and make warrantless arrests if there was probable cause to believe a person removable from the United States. 703 F. Supp. 2d at 985. The court struck down the law, holding that it was preempted by federal immigration law; thus, only Congress had the power to pass law regarding immigration. Id. at 996. In League of United Latin American Citizens v. Wilson, the federal district court ruled that most of Proposition 187 was unconstitutional because it constituted state regulation of immigration. 908 F. Supp. at 786–87. Proposition 187, passed by California voters, was intended to “provide for cooperation between [the] agencies of state and local government with the federal government, and to establish a system of required notification by and between such agencies to prevent illegal aliens in the United States

2012] Separation, Deportation, Termination 97 porting is not required, it can be effective.245 Reporting a parent’s undocumented status increases the likelihood of eventual termination, thus allowing immigrant children to remain in the United States with the possibility of being raised as part of an American family.246 For welfare workers who believe such a result is in a child’s best interest, this is a strong incentive to report undocumented parents to ICE.247

from receiving benefits or public services in the State of California.” Id. at 763 (internal quotation marks omitted). The provision would have required any law enforcement, social services, health care and public education personnel to (i) verify the immigration status of persons with whom they come in contact; (ii) notify certain defined persons of their immigration status; (iii) report those persons to state and federal officials; and (iv) deny those persons social services, health care, and education. Id. The court struck down Proposition 187 as unconstitutional because it required state officers to determine immigration status, which amounted to unconstitutional state immigration regulation. Id. at 769. According to the Court, state agencies could check the immigration status of persons to potentially deny state benefits but they could not “‘cooperate’ with [federal immigration authorities], solely for the purpose of ensuring that such persons leave the country.” Id. at 771. Clearly, in both Arriaga’s story and the case of B & J, the state’s cooperation is for just such a purpose. See In re B & J, 756 N.W.2d at 237; Swift, supra note 230. But see Fonseca v. Fong, 84 Cal. Rptr. 3d 567, 579 (Ct. App. 2008) (a different California district court held that notification provisions were constitutional because, unlike Proposition 187, the state did not have to make an independent determination). The above cases concern the constitutionality of statutes requiring notification, but the courts have also held that denials of benefits are unconstitutional. See Plyler v. Doe, 457 U.S. 202, 230 (1982). Specifically, in Plyler v. Doe, the Supreme Court held it unconstitutional to deny education to the children of undocumented immigrants. Id. The lower court in B & J and the child welfare agency in Arriaga’s story both denied undocumented families state assistance toward reunification—benefits just as important as the educational benefits at issue in Plyler. See id. at 202; In re B & J, 756 N.W.2d at 237; Swift, supra note 230. 245 Rabin, supra note 10, at 140 (“One judge commented that attorneys often report to him that they have been unable to locate a client in immigration detention. He described, ‘[t]here is a certain sense of, “well, it’s inevitable what’s going to happen.” I think that there’s a mentality out there with some of [the attorneys]: “What, is he going to reunify?”’”) (quoting Interview by Nina Rabin with J6, Judge, in Pima County, Ariz.). 246 See Susan Redden, Carthage Board Conducts Hearing for Teacher, Joplin Globe (Aug. 14, 2009), http://www.joplinglobe.com/carthage_jasper_county/x1896309960/Carthage- board-conducts-hearing-for-teacher; Riojas, supra, note 132. Many of these cases contain legally questionable actions committed by non-state actors. See Redden, supra. For example, Bail Romero’s son was taken by a local teacher’s aide who decided that it was in the son’s best interest to be adopted by a local couple and pressured Bail Romero in jail to sign the consent for adoption. See Riojas, supra note 132. In June of 2009, the school board accused the aide of immoral conduct for her part in arranging the adoption of Bail Ro- mero’s son and recommended her termination. See Redden, supra. 247 See, e.g., In re B & J, 756 N.W.2d at 237. In addition, such views are not limited to child welfare workers. See, e.g., Rabin, supra note 10, at 138 (describing “‘a judge who believed it was his obligation to ask everyone their legal status and then to report’”) (quoting Interview by Nina Rabin with J1, Judge, in Pima County, Ariz.). 98 Boston College Journal of Law & Social Justice [Vol. 32:63

E. Appellate Unfitness Decisions Given the questionable practices and reasoning employed by lower courts and agencies in these immigrant parent termination cases, it is not surprising that, when such decisions have reached appellate courts, they have almost unanimously been overturned.248 It should also be noted, however, that appeals in undocumented immigrant parental rights termination cases are unlikely.249 When poor immigrant parents with no proficiency in English or even Spanish are deported to their home countries, their ability to pursue appeals is severely curtailed. Most cases that have been appealed involve parents lucky enough to have acquired exceptional legal assistance prior to deportation.250 One such example is In re Angelica L., where the lower court’s unfitness determination was reversed by the Nebraska Supreme Court which held that this conclusion was unsupported and therefore improper. The Nebraska Supreme Court explained that the mother must be found unfit before any other considerations could be taken into account.251 The court made clear that Maria did not “forfeit her parental rights because she was deported” and further added that “[r]egardless of the length of time a child is placed outside the home, it is always the State’s burden to prove by clear and convincing evidence that the parent is unfit.”252 In addition, unlike the lower court, the Nebraska Su-

248 See, e.g., In re B & J, 756 N.W.2d at 237; In re Angelica L., 767 N.W.2d at 80. 249 Telephone interview with Chris Huck, supra note 10. It is difficult to gauge how many cases exist that are not appealed because, as termination cases involve children, they are typically sealed, leaving no record. 250 Id. Two of the most high profile cases, those of Maria Luis and Encarnación Bail Romero, received significant attention because the mothers had the good fortune to become the pro bono clients of DLA Piper, one of the largest legal service providers in the world. See Riojas, supra, note 132. Similarly, the cases of Cerila Balthazar Cruz and Felipa Berrera were taken up by the Southern Poverty Law Center, a nationally recognized civil rights organization. See Cirila Baltazar Cruz, et al. v. Mississippi Department of Hum. Services, et al., S. Poverty L. Center, http://www.splcenter.org/get-informed/case-docket/cruz (last visited Nov. 20, 2011); Immigrant Child Returns to Her Mixteco Family, S. Poverty L. Center, ( June 10, 2005), http://www.splcenter.org/get-informed/news/immigrant-child-returns- to-her-mixteco-family. 251 In re Angelica L., 767 N.W.2d at 92 (“[T]he interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. Accordingly, before the State attempts to force a breakup of a natural family, over the objections of the parents and their children, the State must prove parental unfitness.”). 252 Id. at 92, 94. While the court recognized that deportation can result in a parent’s separation from his or her child, it held that separation does not by itself “demonstrate parental unfitness.” Id. at 92. The court held that separation from one’s child for 15 of the past 22 months (the guideline established under the ASFA) does not demonstrate unfitness. Id. “Instead, the placement of a child outside the home for 15 or more of the most

2012] Separation, Deportation, Termination 99 preme Court considered the difficulties facing undocumented immigrants like Maria; and was willing to consider the possibility that crossing the border with a newborn “in the belief that they would have a better life here” might actually demonstrate considerable care and concern for one’s child.253 Consequently, because the court found that “nothing in the record establishes that Maria is an unfit parent,” the court held that the termination of Maria’s parental rights was erroneous.254 Other appellate reversals reveal similar concerns.255 In In re V.S., The Court of Appeals of Georgia reversed the juvenile court’s unfitness determination, finding it improper to base a termination decision on the fact that the father “is an illegal alien and is subject to deportation.”256 Similarly, in In re B & J, the Supreme Court of Michigan reversed the family court’s unfitness decision and refused to allow the parents’ deportation to “constitute[] an improper, de facto termination of respondents’ parental rights.”257 The court explained that, “to comply with the guarantees of substantive due process, the state must prove parental unfitness by ‘at least clear and convincing evidence’ before terminating a respondent’s parental rights.”258 The court then found

recent 22 months under § 43–292(7) merely provides a guideline for what would be a reasonable time for parents to rehabilitate themselves to a minimum level of fitness.” Id. In addition, the court noted that “this circumstance would not exist had the State allowed Maria to take the children with her to Guatemala.” Id. at 94. The opinion also notes the lack of assistance Luis received from the state that made her compliance with the reunification plan nearly impossible. In re Angelica L., 767 N.W.2d at 94–96. The case plan included requirements such as obtaining employment and suitable housing but also requirements such as attending parenting classes and completing a psychological evaluation. Id. at 83. Luis never received a copy of the plan, DHHS told her that arranging classes internationally was too difficult for DHHS, and she would have to take the initiative herself. Id. at 84, 95. Furthermore, because of the difficulties posed by her location, DHHS left it up to Maria to prove compliance with the plan. Id. at 84. Hannah, the social worker assigned to the case, admitted it was her responsibility to monitor Luis’s progress but admitted “that she could not do so because of Maria’s location.” Id. at 84. She later determined that Maria had failed to comply with the case plan. Id. 253 Id. at 93. In addition, the court was also prepared to consider how the fear of deportation might have influenced Luis’s actions and to find that it excused some of her parental mistakes. See id. 254 Id. 255 See In re V.S., 548 S.E.2d at 494; In re B & J, 756 N.W.2d at 242. 256 See In re V.S., 548 S.E.2d at 493. 257 In re B & J, 756 N.W.2d at 241–42. The court recognized that once the parents were deported, it was “all but certain that respondents would be permanently separated from their children and that respondents would become unable to provide proper care and custody.” Id. at 242. 258 Id. at 241 (quoting Santosky v. Kramer, 455 U.S. 745, 748 (1982)). 100 Boston College Journal of Law & Social Justice [Vol. 32:63 that the family court erred in attributing such a showing to the Michi- gan DHS.259 Even at the appellate level, however, not all cases are reversed.260 When such decisions are affirmed, the appellate courts do so in the same manner as the lower courts: they ignore the fitness requirement and focus entirely on the question of the child’s best interest.261 For example, in Perez-Velasquez v. Culpeper County Department of Social Services, the Virginia Court of Appeals affirmed the trial court’s holding that the deported father had, “without good cause, failed to maintain continuing contact with and to provide or substantially plan for the future of the child[ren].”262 The court further held that it “‘is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming his [or her] responsibilities.’”263 Similarly, in Anita C., the appellate court agreed that the child’s best interest was the only relevant consideration and that the mother’s fitness was irrelevant.264 These above cases demonstrate the extreme lengths to which some courts and agencies will go to terminate parental rights in favor of what they perceive to be the best interest of the child.265 Despite the obvious intention to do what is good for the child, however, employing a best interest standard does not guarantee that termination decisions will be made according to the child’s actual best interest.266

259 Id. at 242. 260 See, e.g., Anita C., 2009 WL 2859068, at *11; Perez-Velasquez, 2009 WL 1851017, at *4. 261 See Anita C., 2009 WL 2859068, at *9–10; Perez-Velasquez, 2009 WL 1851017, at *2. 262 2009 WL 1851017, at *2 n.1 (quoting Va. Code Ann. § 16.1-283 (2011)). 263 Id. at *2 n.1, *3 (quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 394 S.E.2d 492, 495 (Va. Ct. App. 1990)). 264 See Anita C., 2009 WL 2859068 *8–9. Other scholars have noted the assumptions regarding the unfitness of African-American families. See, e.g., Dorothy E. Roberts, Is There Justice in Children’s Rights?: The Critique of Federal Family Preservation Policy, 2 U. Pa. J. Const. L. 112, 131 (1999) (“Poor black mothers are stereotyped as deviant and uncaring; they are blamed for transferring a degenerate lifestyle of welfare dependency and crime to their children. Black fathers are simply thought to be absent.”) (internal citations omitted). In this sense, undocumented parents are treated similarly to other poor, non-white parents. See, e.g., In re V.S., 548 S.E.2d at 493; Roberts, supra, at 131. Yet, as these cases show, immigration status makes such actions more likely and harder to combat. See In re V.S., 548 S.E.2d at 493; In re B & J, 756 N.W.2d at 242. 265 See Anita C., 2009 WL 2859068, at *9–10; Perez-Velasquez, 2009 WL 1851017, at *2. 266 See Anita C., 2009 WL 2859068, at *9–10; Perez-Velasquez, 2009 WL 1851017, at *2. As discussed below, this question has been explored in the context of African-American removals and terminations, and it was in the context of the removal of African-American children that best interest considerations and the Children’s Rights Movement evolved. Although African-American terminations demonstrate a similar elevation of best interests

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V. Best Interests and Better Parents The United States has a long history of removal decisions that are, in hindsight, unwise or even harmful.267 Best interest standards are subjective and are susceptible to bias.268 Consequently, even if choosing children’s rights over parental rights will benefit children in theory, this does not mean they will result in better outcomes in practice.269

A. Parental Rights vs. Children’s Rights The primary purpose of the parental rights doctrine and the fitness standard is to ensure parental autonomy in raising children.270 The strong protection afforded to parental rights is justified by the belief that this protection also benefits children and the state.271 The doctrine contains the following presumptions: (1) children benefit because the biological parents have strong incentives to take care of their children, and (2) the state benefits because parental independence from the state enables them to raise children to be independent citizens equipped with the ability to make independent personal and political choices. 272 In addition, the parental rights doctrine also incorporates the belief that independence from state interference guarantees a meaningful right to privacy by ensuring that many of the most intimate aspects of a persons’ over parental rights, the removals and terminations in the immigrant context are quite different. 267 See Stephen O’Connor, Orphan Trains: The Story of Charles Loring Brace and the Children He Saved and Failed 202 (2001); Marcia Zug, Dangerous Gamble: Child Support, Casino Dividends, and the Fate of the Indian Family, 36 Wm. Mitchell L. Rev. 738, 771–74 (2010). 268 See, e.g., In re V.S., 548 S.E.2d 490, 494 (Ga. Ct. App. 2001); In re B & J, 756 N.W.2d 234, 242 (Mich. Ct. App. 2008). 269 See, e.g., In re V.S., 548 S.E.2d at 494; In re B & J, 756 N.W.2d at 242. 270 See Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also Bruce A. Boyer & Steven Lubet, The Kidnapping of Edgardo Mortara: Contemporary Lessons in the Child Welfare Wars, 45 Vill. L. Rev. 245, 253 (2000) (stating that “[c]entral to the Court’s decision in Santosky is its view that any effort to sever the parent-child relationship . . . , must begin with an inquiry that is parent-focused”). 271 See Katherine K. Baker, Bionormativity and the Construction of Parenthood, 42 Ga. L. Rev. 649, 712 (2008) (discussing the assumptions that children “benefit from strong parental rights and . . . are hurt when a Big Brother state starts dictating parenting practices”). 272 Parham v. J.R., 442 U.S. 584, 602–03 (1979) (“[P]ages of human experience . . . teach that parents generally do act in the child’s best interests.”); Appell, supra note 35, at 709 (explaining that “it is the parent’s role to raise and nurture children to become ma- ture adults who are able to exercise political choice . . . . [and] this role requires a measure of independence from the state”); see also Mary L. Shanley, Unwed Fathers’ Rights, Adoption, and Sex Equality: Gender-Neutrality and the Perpetuation of Patriarchy, 95 Colum. L. Rev. 60, 85 (1995). 102 Boston College Journal of Law & Social Justice [Vol. 32:63 life remain private.273 However, the assumption that parents will always act in their children’s best interests is problematic. Parental rights can conflict with children’s rights and, in those circumstances, the choice to protect parental rights may not be in a child’s best interest.274 The above termination cases exemplify this dilemma. In these cases, the courts refused to uphold the parents’ rights to the care and custody of their child, finding that such a decision would not be in that child’s best interest.275 Instead, each court viewed termination as preferable.276 The justifications given in these cases for why termination is in a child’s best interest can be broken down into three distinct but related categories. First, it is not in a child’s best interest to move to a foreign country he or she may never have visited, where the child may not speak the language, and where the child may have much more limited opportunities.277 Second, it is in a child’s best interest to remain in America because it is home, the standard of living is higher, and the opportunities are better.278 Third, it is in a child’s best interest to remain in the United States because the child may have become attached to his or her current caregiver, the caregiver may wish to adopt the child, and adoption is in the child’s best interest because it will enable the child to become part of an American family.279 These justifications

273 See, e.g., Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (extending the zone of privacy to cover same sex sexual relationships); Roe v. Wade, 410 U.S. 113, 165–66 (1973) (recognizing a right to abortion); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (extending this right to unmarried couples); Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965) (recognizing the right to privacy in the context of intimate marital relations); Appell, supra note 35, at 708 (noting this right is based on the idea that “family relationships and issues are protected because families are intimate associations created and controlled by autonomous adults”). Justice Brandeis famously defined the right to privacy as the “right to be let alone.” Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890). 274 See Anita C. v. Superior Court, No. B213283, 2009 WL 2859068, at *9–10 (Cal. Ct. App. Sept. 8, 2009); Perez-Velasquez v. Culpeper Cnty. Dep’t of Soc. Servs., No. 0360-09-4, 2009 WL 1851017, at *3 (Va. Ct. App. June 30, 2009). For a further discussion of this conflict between parental rights and children’s and state interests, see Zug, supra note 15, at 1180–82. 275 See Anita C., 2009 WL 2859068, at *9–10; Perez-Velasquez, 2009 WL 1851017, at *3. 276 See Anita C., 2009 WL 2859068, at *9–10; Perez-Velasquez, 2009 WL 1851017, at *3. 277 See Rabin, supra note 10, at 139 (“[The lawyer] went on to describe a case in which a child would need ongoing medical treatment and the parents were in Agua Prieta. The judge was very reluctant to return the child to her parents because of concerns about the availability of care. The attorney recalled, ‘[w]e were saying that she can get treatment in Mexico, it’s not like medieval Europe. [And the] judge said, “Well, I don’t know about that.”’”) (quoting Interview by Nina Rabin with A6, Attorney, in Pima County, Ariz.). 278 See Anita C., 2009 WL 2859068, at *9. 279 Shani King, Challenging Monohumanism: An Argument for Changing the Way We Think About Intercountry Adoption, 30 Mich. J. Int’l L. 413, 439–40 (2009) (describing this as the “Improved Life Chances Narrative,” which “describe[s] the opportunities for adoptive

2012] Separation, Deportation, Termination 103 frequently overlap, and many termination decisions rely on a combination of the three.280 For example, in In re Angelica L., the state presented evidence to demonstrate that “living in Guatemala would put [the children] at a disadvantage compared to living in the United States.”281 The state called a clinical psychologist to testify that, “if the children were sent to Guatemala, they would ‘experience culture shock, disorientation, fear- fulness, sadness and anger.’”282 He also “testified that the standard of living in Guatemala is lower than the standard in the United States, the people are poorer, and there are less economic opportunities.”283 The purpose of this testimony was to contrast the life the children would have in Guatemala with the life the children would have with their foster family in the United States.284 After hearing this evidence, the trial court decided that the children should not return to Guatemala and terminated the mother’s parental rights.285 The court held that because “neither Angelica nor Daniel [were] familiar with Guatemala,” and because they “were thriving in the only locality they have ever known with the only parental figures they have ever known,” termination was in their best interests.286

children as improved in the United States, and in doing so, implying the superiority of upper- and middle-class parents to poor birth parents”); see also Rashmi Goel, From Tainted to Sainted: The View of Interracial Relations as Cultural Evangelism, 2007 Wis. L. Rev. 489, 526 (describing the case of Anna Mae He, and explaining that her foster parents, the “Bakers, were determined to keep Anna Mae, not just because they loved her, but because they believed that returning her to her biological parents would force her to be Chinese, when she had the opportunity to be American”). 280 See Goel, supra note 279, at 522 (discussing how notions of “foreignness and exoticism” can influence custody decisions and describing the competing interests in these cases as between “family unity and the desire consistent with the Missionary-Heathen paradigm, to save children of color”). 281 In re Angelica L., 767 N.W.2d 74, 94 (Neb. 2009). Similarly, in Fairfax County De- partment of Family Services v. Ibrahim, the state argued for termination based on the believed inferiority of the home and services that the father could provide to his children in Ghana. See No. 0821-00-4, 2000 WL 1847638, at *3 (Va. Ct. App. Dec. 19, 2000). The state made this argument without offering any “information about the situation in Ghana” and without making any “efforts to determine the conditions there.” Id. The state’s argument was simply based on assumptions regarding the inferiority of life in Ghana. See id. 282 In re Angelica L., 767 N.W.2d at 84. 283 Id. at 85. He was, however, unable to answer questions when asked about the educational and athletic opportunities available in Guatemala. See id. 284 See id. 285 See id. at 87–88. 286 See id. at 88. On appeal the court rejected such considerations, holding that “whether living in Guatemala or the United States is more comfortable for the children is not determinative of the children’s best interests . . . . [T]he ‘best interests’ of the child

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In Anita C. v. Superior Court, the Los Angeles County Superior Court found it was in the child’s best interest to remain with foster parents because the foster parents wished to adopt him and could better provide for him.287 Specifically, the court held that “[t]heir home is virtually the only one he has ever known and, not surprisingly, he has become extremely bonded with them.”288 Similarly, at Bail Romero’s termination hearing, the Missouri Court of Appeals contrasted the immigrant mother with the potential adoptive mother.289 The court described Bail Romero as having little to offer her son Carlos, stating that “[t]he only certainties in [Mother’s] future is that she will remain incarcerated until next year, and that she will be deported thereafter.”290 The court contrasted this bleak future with that of the prospective adoptive parents, who made a “comfortable living, had rearranged their lives and work schedules to provide Carlos a stable home, and had support from their extended family.”291 Consequently, the court held it was in Carlos’s best interest to be placed with the adoptive family and terminated Bail Ro- mero’s parental rights.292 standard does not require simply that a determination be made that one environment or set of circumstances is superior to another.” Id. at 94. The court then explained that unless Maria is found to be unfit, the fact that the state considers certain adoptive parents, in this case the foster parents, better, or this environment better, does not overcome the commanding presumption that reuniting the children with Maria is in their best interests—no matter what country she lives in. As we have stated, this court has never deprived a parent of the custody of a child merely because on financial or other grounds a stranger might better provide. Id. (internal quotation marks omitted). 287 See Anita C., 2009 WL 2859068, at *9–10. 288 Id. at *9. 289 See In re C.M.B.R., No. SD 30342, 2010 WL 2841486, at *4 (Mo. Ct. App. July 21, 2010), rev’d 332 S.W.3d 793 (Mo. 2011). 290 Id. 291 Thompson, supra note 10. 292 See In re C.M.B.R., 2010 WL 2841486, at *4. The story of Marta Alonzo is also similar. See Pennington, supra note 223. There, the mother’s alleged unfitness was simply a ruse to separate Alonzo from her child, deport her back to Guatemala, and allow her son to be adopted by a white, middle class, American family. See id. Before the mother had any chance to remedy the alleged grounds that led to a finding of unfitness, the child welfare agency had the adoption paperwork ready. See id.; see also In re M.M., 587 S.E.2d 825, 832 (Ga. Ct. App. 2003) (“The court terminated the father’s parental rights[,] . . . determining that the father had done nothing to legalize his residency in the United States, that even if he later attempted to do so, he would face deportation, that the child could then be returned to protective custody or taken with her father to ‘an unknown future in Mexico,’ and that it was unwilling to subject [him] to those possibilities.”); In re B & J, 756 N.W.2d at 241 (revealing the state’s argument that termination was in “the children’s best interests because the children will have a better and more prosperous life in the United States than

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These cases exemplify the belief that remaining in the United States and growing up with a “typical” American family is in the best interests of immigrant children.293 However, just because these beliefs are strongly held does not mean they are correct. There is a long history of prejudice towards immigrant and minority families and the belief in the inferiority of their caregiving.294 This history has demonstrated that a best interest standard is easily susceptible to cultural and racial conceptions of what is in a child’s best interest.295 The separation of immigrant families may simply be the most recent iteration of this phenomenon.296

B. Best Interest Considerations and Indian Children The history of separating Indian children from their parents provides a compelling example of how biases may influence perceptions and decisions regarding a child’s best interest. The nineteenth century witnessed many attempts to solve the “Indian problem,” typically described as the Indian people’s failure to accept Anglo-American “civilization.”297 By the end of the century, reformers agreed that the best in Guatemala”); Interview with Linda Brandmiller, Dir. of Immigration Servs., Catholic Charities Archdiocese of San Antonio (Aug. 13, 2009) (describing a Texas case where the court refused to return a special needs child to fit parents because the medical services available in Mexico were considered inadequate and he was doing well with his foster parents). 293 See In re C.M.B.R., 2010 WL 2841486, at *4; Julian et al., supra note 126, at 31. In fact, this message is so strong it may be influencing immigrant family cases where deportation is not even an issue. See Appell, supra note 126, at 778. An immigrant, Spanish speaking grandmother—raising a large family and wanting to provide for her newborn grand- daughter—lost custody in favor of the Whiter, more middle class family—the English-speaking family with a higher socioeconomic status—in whose care N.S. would become Whiter than she might with her LEP, working poor, single grandmother supporting seven children. The assimilationist force of the child welfare system thus drove the case in the agency and lower court, despite Nevada’s clear policy to place children with kin. Id. 294 See Appell, supra note 126, at 765; Julian et al., supra note 126, at 31. 295 See Appell, supra note 128, at 765; Julian et al., supra note 126, at 31. 296 Rabin, supra note 10, at 137–38 (“[N]early all of the twenty-six CPS workers who responded [to a survey] thought the undocumented parents would be more likely to have problems with domestic violence, and roughly one quarter thought they would be more likely to have problems with child neglect, abandonment, substance abuse, and mental health. These figures suggest that a significant number of caseworkers assume negative characteristics of immigrant families in the absence of any individualized basis for the assumption.”). 297 Appell, supra note 126, at 762. This same criticism is often directed at immigrant families. See id. at 762–63. 106 Boston College Journal of Law & Social Justice [Vol. 32:63 method for saving the Indian people was to separate children from their parents and tribes.298 These reformers considered separation to be in a child’s best interest because it would protect them from the damaging influences of their parents and provide them with the so- called benefits of civilization.299 They believed that once removed from the harmful influences of their families, Indian children would be able to avoid the poverty and other negative consequences that increasingly characterized tribal life.300 The initial separations of Indian children from their families typically involved placement in boarding schools.301 By the 1950s, the federal government finally acknowledged that removal to these schools harmed Indian children.302 Nevertheless, the belief that removal was in the best interests of Indian children continued.303 The Indian Adop- tion Project, a joint effort between the Bureau of Indian Affairs and the Child Welfare League, replaced the boarding schools.304 The purpose of this program was to facilitate the adoption of Indian children by non-Indian families, something both organizations advocated as in the children’s best interests.305 Congress finally curtailed the practice of separating Indian children from their families in 1978 with the passage of the Indian Child Welfare Act.306 The Act recognized the devastation that such removals were having on the tribes and also recognized the legitimacy and value of Indian families and their care-giving practices.307 Scholars and other

298 See id. at 762. 299See Zug, supra note 267, at 774. Such reformers believed that as long as Indian children were “‘associating all their highest ideals of manhood and womanhood with fathers who are degraded and mothers who are debased,’” they would never become healthy, pro- ductive members of society. Id. (quoting Linda J. Lacey, The White Man’s Law and the Ameri- can Indian Family in the Assimilation Era, 40 Ark. L. Rev. 327, 360 (1986)). 300 See Zug, supra note 267, at 774–76. For example, Nineteenth century Indian families met public condemnation for allowing women to work, for sharing parenting duties among extended family members, and for their resistance to corporal punishment. See id. at 770–74. 301 Id. at 775. 302 See id. at 776–77. 303 See id. at 777. 304 See id. at 777 n.221. 305 See Zug, supra note 267, at 777. The project was also strongly supported by child welfare workers who, during the 1960s and ’70s, “removed 25% to 35% of Indian children from their homes to foster and adoptive homes . . . .” Appell, supra note 126, at 762. 306 See generally Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069 (codified at 25 U.S.C. §§ 1901–1963 (2006)). 307 See id. § 2, 25 U.S.C. § 1901. For example, Congress recognized that the value of In- dian kinship care arrangements is common in Indian families which social workers had previously viewed as neglectful. See Indian Child Welfare Act of 1978: Hearings Before the Subcomm. on

2012] Separation, Deportation, Termination 107 child advocates in modern times are sharply critical of these former Indian policies.308 What was once considered a bad parent is now acknowledged to simply be a different parent.309

C. Best Interests and Nineteenth Century Immigrant Children A second historic example is even more reminiscent of the removal practices modern courts and child welfare agencies are employing with respect to immigrant children. In the nineteenth century, thousands of children were placed on “orphan trains” and sent to the homes of families in the West and Midwest.310 Despite the label orphan, many of these children were not orphans.311 “They were, instead, mostly children of Catholic recent immigrants, sent away by wealthy, Protestant ‘child savers.’”312 These reformers considered the existence of the children’s parents irrelevant because, according to the child savers, the parents were undesirable.313 The child savers believed their actions were in the children’s best interests.314 At the time, their actions seemed acts “of nearly unassailable wisdom and compassion.”315 Over time, however, these “savers” have come to be regarded as “cruelly indifferent to the very children [they] had been designed to help.”316

Indian Affairs and Public Lands of the H. Comm. on Interior and Insular Affairs, 95th Cong. 96–42, at 69 (1978) (statement of LeRoy Wilder, Associate Attorney); H.R. Rep. No. 95-1386, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7531. 308 See, e.g., Barbara Atwood, The Voice of the Indian Child: Strengthening the Indian Child Welfare Act Through Children’s Participation, 50 Ariz. L. Rev. 127, 133 (2008) (describing policies from boarding schools to the Indian Adoption Project as “misguided paternalism, ethnocentrism and outright racism”). 309 See Zug, supra note 267, at 770. 310 See O’Connor, supra note 267, at 202. By 1929 when the last orphan train departed, approximately 250,000 children had been sent west. Id. at xvii. 311 Id. at 98–99 (“Victorian families used orphanages as places to park their children during family crises. A substantial portion of children in orphanages were there only for a year or two . . . .”); see also id. at 107 (describing how children were placed on orphan trains without inquiry into the claims of orphanhood). 312 Guggenheim, supra note 34, at 182; see Appell, supra note 126, at 763 (stating that these “‘saved’ children were primarily from immigrant, Catholic working class and poor families headed by single mothers”). 313 See Linda Gordon, The Great Arizona Orphan Abduction 10–11 (1999). “Chil- dren who appeared to child savers as uncared-for strays were often contributing to their families’ incomes by begging, peddling, gathering castoffs for use or resale, selling their services, or stealing.” Id. The Catholic Charities did not make such severe moral judgments and instead tried to help the families rather than blaming single mothers or treating them as “fallen.” See id. at 15. 314 See Appell, supra note 126, at 763–64. 315 O’Connor, supra note 267, at xix. 316 Id. 108 Boston College Journal of Law & Social Justice [Vol. 32:63

D. The Disproportionality Movement As the above examples demonstrate, the removal of minority children from their homes is not unprecedented. It has happened in the past and is continuing in the present. A modern movement, termed the disproportionality movement, has raised concerns of bias in the context of African-American parent termination cases.317 The disproportionality movement arose as a reaction to the growing emphasis on children’s rights.318 It posits that one of the consequences of the “systemic biases in child welfare system decision-making” is that children are being removed from their families unnecessarily.319 In particular, the movement focuses on the disproportionate number of African-American children in foster care as compared to their percentage of the general population.320 The movement’s proponents argue that this “disproportionality” demonstrates a bias in removal decisions.321 Many studies have demonstrated how bias can and does affect decision-making.322 Child welfare decisions by their nature are highly subjective and therefore can provide an easy avenue for expressing bias.323

317 See Bartholet, supra note 14, at 871. Professor Bartholet appears to have been the first to refer to disproportionality arguments as representing a movement. Id. 318 See Guggenheim, supra note 34, at 5–6; Bartholet, supra note 14, at 871. Professor Guggenheim argues it is not coincidental that the call for the permanent banishment of birth parents reached its zenith when the foster care population reached an unprecedented high of being nonwhite. As a result of this major policy change [seeking to terminate parents], an official goal of U.S. policy today is to socially engineer the makeup of the families raising poor, nonwhite children. Id. at 205. Guggenheim notes that “of the 42,000 children in [New York City] foster care in December 1997, only 3.1 percent were categorized as ‘non-Hispanic white.’” Id. This “means that, somehow or other, New York City has found a way to maintain a child welfare system for its white population that treats placement in foster care as an extremely rare event.” Id. 319 See Bartholet, supra note 14, at 873, 878–79. 320 Id. at 871. 321 Jessica Dixon, The African-American Child Welfare Act: A Legal Redress for African- American Disproportionality in Child Protection Cases, 10 Berkeley J. Afr.-Am. L. & Pol’y 109, 112 (2008). The purpose of the disproportionality movement is to focus attention on the problem of racism in the child welfare system. See id. But see Bartholet, supra note 14, at 905 (arguing that such bias may be less likely in the child welfare system because of the high number of black and other minority social workers). 322 See, e.g., Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 Cal. L. Rev. 969, 975 n.31 (2006) (noting “[t]he legal literature on implicit bias is by now enormous”); Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1512–14 (2005) (describing studies revealing implicit bias); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 322–23 (1987). 323 See Gordon, supra note 313, at 10–11; Appel, supra note 126, at 764–65. 2012] Separation, Deportation, Termination 109

Consequently, the movement’s adherents argue that biased beliefs regarding the inferiority of African-American families and their caregiving cause child welfare workers to disproportionally and unnecessarily remove African-American children from their parents.324 Welfare workers perceive these removals to be in the children’s best interests because they believe they are removing children from “bad” parents and making them available for adoption by “good” parents.325 Scholars such as Michelle Goodwin have noted, however, that adoption—at least in the African-American context—is not the panacea imagined.326 In- stead, many of these children will spend the remainder of their child- hoods in foster care, the negative effects of which are numerous and well documented.327 Therefore, although the increase in removals was

324 Bartholet, supra note 14, at 873. In the context of African-American families, such biases frequently pertain to beliefs that African-American parents are more likely to take drugs and physically abuse their children than their white counterparts. See, e.g., Peggy C. Davis & Richard G. Dudley, Jr., The Black Family in Modern Slavery, 4 Harvard Blackletter J. 9, 10– 15 (1987); Dixon, supra note 321, at 117–18 (discussing studies demonstrating that African- American children were more likely to have skeletal surveys done to check for fractures and more likely to be tested for drugs); Annette R. Appell, Disposable Mothers, Deployable Children, 9 Mich. J. Race & L. 421, 442 (2004) (reviewing Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption (2003)) (noting “empirical evidence indicates that child welfare professionals view Black families as less viable, less resourceful, and, consequently, in need of coercive state intervention”). See generally Dorothy Roberts, Shattered Bonds: The Color of Child Welfare 7–10 (2002) (describing the disproportionate number of African-American children in the child welfare system). 325 See Appel, supra note 126, at 765. As scholars such as Professor Martin Guggenheim have noted, a court’s use of the best interest test is often influenced by its own value judgments. See, e.g., Painter v. Bannister, 140 N.W.2d 152, 156 (Iowa 1966) (denying custody to fit father based on “unstable, unconventional, arty, Bohemian” lifestyle); Guggenheim, supra note 34, at 39–40. 326 See Michele Goodwin, Relational Markets in Intimate Goods, 44 Tulsa L. Rev. 803, 821 (2009). For a discussion of the illusory nature of adoption, see id. at 821 n.133 (“As a contemporary model, the disproportionately low adoption rate for black children in foster care gives some indication of the continued illusory nature of adoption as a specialized child-focused welfare service model.”) (citing Richard P. Barth, Effects of Age and Race on the Odds of Adoption Versus Remaining in Long-Term Out-of-Home Care, 76 Child Welfare 285, 288 (1997) (noting the adoption rates of white children in the Michigan foster care system are three times greater than black children)); Jane C. Murphy, Protecting Children by Preserv- ing Parenthood, 14 Wm. & Mary Bill Rts. J. 969, 982 (2006) (noting that “children left behind in permanent foster care status are disproportionately African American and, as they age, are practically unadoptable”); see also Caring for Children: Who Will Adopt the Foster Care Children Left Behind?, Urb. Inst., ( June, 2003), http://www.urban.org/UploadedPDF/ 310809_caring_for_children_2.pdf (“Compared with children still in foster care, those who are adopted are younger and more likely to be female, Caucasian, and Hispanic . . . . [T]hose awaiting adoption tend to be . . . older, male, and black . . . .”). 327 See Murphy, supra note 326, at 982. 110 Boston College Journal of Law & Social Justice [Vol. 32:63 spurred by the desire to help children, these removals may be working against their best interests.328

E. Good Parents vs. Immigrant Parents The separation of immigrant parents from their children seems to be based on similar assumptions regarding good parents and the belief that children have the right to be raised by good parents.329 Obviously the definition of a good parent is subjective.330 Typically, a good parent is defined in relation to dominant cultural norms.331 According to Pro- fessor Annette Appell, this means “married; White; Christian (prefera- bly Protestant); Anglo; and relatedly, English-speaking; and middle class.”332 Defining a good parent in relation to these norms can be particularly problematic for immigrant parents because these norms may differ significantly from the norms present in their country of origin.333 For example, American norms hold that families should be independent and not too reliant on extended family or community members.334 As Professor Naomi Cahn has noted, this means that parents, and particularly mothers, are expected “to be primarily responsible for their children.”335 Consequently, although sharing child care responsibilities among extended family is common throughout much of the world, parents living in the United States who delegate that responsibility to others, such as a grandparent or an older child may be considered bad parents.336

328 Id. 329See Goel, supra note 279, at 526–527. 330 See id. at 526 (describing how, “[b]ecause of their own bias against the culture and way of life in China, the [foster parents] felt the need to rescue Anna Mae from a life there”). 331 See id. 332 Appell, supra note 126, at 765; see also Elizabeth M. Iglesias, Rape, Race, and Represen- tation: The Power of Discourse, Discourses of Power, and the Reconstruction of Heterosexuality, 49 Vand. L. Rev. 869, 904–05 (1996) (describing how the image of motherhood in black and Hispanic cultures is different from the dominant norm and, as a result, these families are viewed “as failed versions of the white, male-headed nuclear family”). 333 See Appell, supra note 126, at 765. 334 See id. This is especially problematic for immigrant parents who often come from so- cieties where it is common for children to be raised by grandparents and where older siblings are frequently made responsible for their younger siblings’ care. See Solangel Maldonado, The Role of Race, Ethnicity and Culture in Custody Disputes 14 (unpublished manuscript) (on file with the author) (noting that “in Asia and Latin-America, older children are routinely given significant responsibilities for their younger siblings’ care”). 335 See Naomi Cahn, Policing Women: Moral Arguments and the Dilemmas of Criminalization, 49 DePaul L. Rev. 817, 822 (2000). 336 See Maldonado, supra note 334, at 14. 2012] Separation, Deportation, Termination 111

Similarly, living arrangements that are common throughout the world, such as two families sharing a home or three people sharing a bedroom, can be viewed with suspicion when practiced in the United States.337 Accommodations that do not afford children the level of privacy typical in American families are treated with concern by American courts and child welfare agencies.338 In addition, educational deficien- cies or medical conditions that are often left untreated in countries with more limited resources will be viewed with serious concern by U.S. courts and agencies.339 What was a rational decision in a parent’s home country may be considered unjustified by American institutions.340 These examples illustrate how courts and welfare agencies that evaluate immigrant parents in relation to white, middle class, English-speaking norms may be more likely to judge parents unfit.341 Although divergence from these norms creates difficulties for many minority parents, it is particularly problematic for immigrant parents.342 In most cases, explicit bias against minority groups is con-

337 Id. at 14 (citing Rico v. Rodriguez, 120 P.3d 812 (Nev. 2005)). 338 Id. at 14–15. 339 Id. at 15. 340 See Goel, supra note 279, at 527 (noting that the guardian ad litem’s best interest determination was influenced by the fact that “she had read a book about Chinese girls being placed in orphanages and consequently was concerned that the parents wanted to return to China . . . .”). 341 See Appell, supra note 126, at 770. The perceived unfitness of parents who do not speak English is demonstrated by the lack of child welfare officials that speak other languages. See id. The result is that only English-speaking parents are able to receive meaningful assistance. See id. (describing the child welfare system in Las Vegas and noting the “rar- ity of Spanish-speaking (and other foreign language speaking) case workers, a dearth of translators on staff in child welfare offices, and perhaps an absence of Spanish-speaking teams of social workers in the child welfare system despite [its] geographical concentra- tions of Latino communities”); see also Julian et al., supra note 126, at 31 (observing that the “parenting styles of Caucasian, middle-class parents are then used as the benchmark against which other groups are compared, with an assumption of Caucasian superiority”). It should be noted that these assumptions are not only relevant in termination cases but are frequently applied in custody disputes between biological parents. See, e.g., Rico, 120 P.3d at 818–19 (giving custody preference to the permanent resident father over the undocumented immigrant mother); Ramirez v. Ramirez, Nos. 2005-CA-002554-ME, 2006-CA- 000010-ME, 2007 WL 1192587, at *3 (Ky. Ct. App. Apr. 13, 2007) (finding that the determination of a father’s immigration status was appropriate in a custody hearing). 342 See Appell, supra note 126, at 765. Bias against undocumented immigrants tends to focus on Hispanic immigrants because they comprise the majority of the undocumented immigrant population. See id. at 768; Julian et al., supra note 126, at 31. According to the Urban Institute, “Mexicans make up over half of undocumented immigrants—57 percent of the total, or about 5.3 million. Another 2.2 million (23 percent) are from other Latin American countries. About 10 percent are from Asia, 5 percent from Europe and Canada, and 5 percent from the rest of the world.” Jeffrey S. Passel et al., Undocumented Immigrants: Facts and

112 Boston College Journal of Law & Social Justice [Vol. 32:63 demned.343 Bias against immigrants and undocumented immigrants in particular, however, is widely viewed as acceptable.344 Such discrimination is not only tolerated, it is frequently encouraged.345 Politicians are

Figures, Urban Institute Immigration Studies Program ( Jan. 12, 2004), http://www. urban.org/UploadedPDF/1000587_undoc_immigrants_facts.pdf. 343 See Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1054 (2009). Even individuals who harbor personal feelings of bias toward minorities recognize society’s disapproval of such feelings and are increasingly unwilling to acknowledge that their actions are the result of biased beliefs and assumptions. See id. (noting that the “invocation of unconscious bias levels neither accusation nor blame, so much as it identifies a quasi-medical ailment that distorts thinking and behavior”). As Professors Banks and Ford note, “[p]eople may be willing to acknowledge the possibility of unconscious bias within themselves, even as they would vigorously deny harboring conscious bias.” Id. 344 See David B. Thronson, Of Borders and Best Interests: Examining the Experiences of Un- documented Immigrants in U.S. Family Courts, 11 Tex. Hisp. J.L. & Pol’y 45, 54–55 (2005) (noting the “pervasive societal narrative that constructs an expanding notion of unworthi- ness and ‘illegality’ regarding undocumented immigrants and a diminished popular sense regarding the availability of protection from prejudice and discrimination”); see also Shell Games: The “Minutemen” and Vigilante Anti-Immigrant Politics, Building Democracy Initia- tive: Center for New Community (Oct. 2005), http://www.buildingdemocracy.org/ shellgames.pdf [hereinafter The Minutemen] (noting that with regard to immigrants, the gains of the civil rights movement “are under attack”). “[A]nti-immigrant sentiment is sweeping the country like wildfire. Stoked by political successes in and out of the Beltway and fanned by anti-immigrant organizations, nativism has moved from the margins to the mainstream.” The Minutemen, supra. 345 See Thronson, supra note 344, at 55. Even the terminology used to describe undocumented persons is loaded with implications. Throughout this article, I have used the term undocumented immigrant rather than illegal alien. As Dean Kevin Johnson has noted the word “alien” has incredible power: [It] immediately brings forth rich imagery. One thinks of space invaders seen on television and in movies, such as the blockbuster movie Independence Day. Popular culture reinforces the idea that aliens may be killed with impunity and, if not, “they” will destroy the world as we know it. Synonyms for alien have included “stranger, intruder, interloper, . . . outsider, [and] barbarian,” all terms that suggest the need for harsh treatment and self-preservation. In effect, the term alien serves to dehumanize persons. We have few, if any, legal obligations to alien outsiders to the community, though we have obligations to persons. Persons have rights while aliens do not. Kevin R. Johnson, “Aliens” and the U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. Miami Inter-Am. L. Rev. 263, 272 (1997) (internal citations omitted). “[Eighty-seven] members of the House of Representatives and one member of the Senate received an ‘A’ grade in the 110th Congress from the hard-line anti-immigrant organization Federation for American Immigration Reform . . . , labeled a hate group by the Southern Poverty Law Center.” Press Release, Am. Voice, Anti-Immigrant Members of Congress Hypo- critical on Worker Prot. Issues (Dec 10, 2009), available at http://americasvoiceonline.org/ press_releases/entry/anti-immigrant_members_of_congress_hypocritical_on_worker_pro- tection_issues; see, e.g., Jeannie Kever, Toy Drives Insist They Reject No One: Pair of Houston Chari- ties Require Registrants to Show Immigration Status, Houston Chron., Dec. 2, 2009, at B1. (de-

2012] Separation, Deportation, Termination 113 elected because of their anti-immigrant rhetoric, pro-immigrant businesses are boycotted, and anti-immigrant vigilantes are treated as he- roes.346 Consequently, the difficulty for undocumented immigrant parents facing a fitness determination is not only that they often lack many of the culturally biased attributes of good parents, but that they may also be subject to the proliferating negative views of undocumented immigrants.347 Additionally, because the language, culture, and values associated with undocumented immigrants are openly considered undesirable, many may believe that preventing parents from passing these attributes to their children are in the children’s best interests.348 Courts and child welfare agencies routinely express concerns regarding the

scribing a Toys for Tots program’s requirement of a valid social security number to receive toys). 346See, e.g. Suzy Khimm, Run For The Border, Steve King’s Coming!, Mother Jones, (Nov. 10, 2010, 3:00 AM PST), http://motherjones.com/politics/2010/11/steve-king-immigration-committee (describing two of the most anti-immigrant congressmen); Working to Stop Illegal Immigration, Nat’l Illegal Immigr. Boycott Coalition, http://www.illegal immigrationboycott.com/ (last visited Nov. 20, 2011). For example, The National Illegal Immigrant Boycott Coalition is a political action group created solely for the purpose of boycotting “corporations that support illegal immigration.” See Americans Working to Stop Illegal Immigration, supra; see also The Minutemen, supra note 344 (describing the “Minute- men Project” which consists of “armed anti-immigrant vigilantes conducting their own ‘patrols’”) The report notes: After their highly publicized “maneuvers” in April in Arizona, the Minutemen Project has spawned at least forty new groups in more than a dozen states. In October, Minutemen groups are preparing events in several new states. At- tracting volunteers and well-wishers from all over the country, the Minutemen are the latest and largest in a string of vigilante efforts to “secure” the border against the entry of undocumented immigrants. See The Minutemen, supra note 344. 347 See Appell, supra note 126, at 759; Johnson, supra note 345, at 272. “[W]e have in this country a long and continuing history of constructing the ideal of ‘mother’ according to skin color, religion, culture, national origin, language, ethnicity, class and marital status.” Appell, supra note 126, at 759. Mothers who do not meet these norms are most likely to lose their motherhood. See id. 348 See Appell, supra note 126, at 760 (“Women who are compliant, English-speaking, not ethnically diverse, White, and middle class are most successful in the child welfare system; those who diverge from these norms are [the] most likely to lose their motherhood. When mothers lose their children, they lose their chance to pass on their language, culture, and values [to] their children.”); see also Santosky 455 U.S. at 763 (noting that “parents subject to termination proceedings are often poor, uneducated, or members of minority groups, such proceedings are often vulnerable to judgments based on cultural or class bias”) (internal citations omitted); David B. Thronson, Choiceless Choices: Deportation and the Parent-Child Relationship, 6 Nev. L.J. 1165, 1204 (2000) (noting that “family courts can be remarkably parochial and uninformed regarding issues of, and related to, immigration status and life in other countries”). 114 Boston College Journal of Law & Social Justice [Vol. 32:63 language, values, and lifestyle of undocumented immigrants in immigrant parent termination cases.349 Given the dangers of best interest analyses, any reliance on them to remove immigrant children from parents should raise concerns.350 Before a best interest standard, and its attendant weaknesses, is permitted to replace the fitness standard, there must be a clear statement that this is an intended and desired change.351 Replacing parental rights with a best interest test is an important reversal that must not occur unnoticed and unconsidered.

VI. Public Sentiment History has demonstrated that determining a child’s best interest is subjective and can be susceptible to bias.352 Thus, even if the decision to place a child’s best interest above parental rights is good in theory, its actual implications are unclear. What is clear, however, is that until there is widespread recognition of the fact that a best interest analysis is being used to justify removals and terminations within undocumented families, there can be no meaningful evaluation of the benefits or det- riments of continuing such actions. Support for these terminations cannot be assumed. The public reaction to some of the more publicized terminations creates doubt as to whether they are publicly supported.353 For example, when Bathezar-

349 See Santosky, 455 U.S. at 763. 350 See id. at 760; see also Zug, supra note 15, at 1181–82. 351 See Zug, supra note 15, at 1181–82. For example, the removal of immigrant children may result in long-term foster care rather than adoption. See, e.g., Tracy Vericker et al., Latino Children of Immigrants in the Texas Child Welfare System, 22 Protecting Child., 20, no. 2, 2007 at 29–31 (finding that Latino Immigrant Children were more likely to be placed in group homes and institutes and have case goals such as long term family foster care and independent living). But see Maldonado, supra note 81, at 1423 (noting that while most Americans “prefer to adopt white children, many are willing to accept Asian or Latin American children if they cannot adopt a white child or the wait is too long”). In fact, “81% of all foreign-born adoptees in the United States[] come from Asia or Latin America . . . .” Id. at 1432. Foreign adoptions, however, are difficult: in some instances, “Americans have completed an adoption in the foreign country only to learn that the child will not be allowed entry into the United States because he or she does not satisfy the definition of an ‘orphan’ under our immigration laws.” Id. at 1445–46. The adoption of Hispanic immigrant children therefore has two “advantages” that may make them more desirable as potential adoptees. See id. at 1425, 1442. First, they are not black, and second, there is little likelihood of the parent reappearing in the child’s life at a later date. See id. 352 See Appell, supra note 126, at 759. 353 See Shelia Byrd, Mexican Immigrant Gets Baby Back from State, Native Am. Times (Feb. 22, 2010), available at http://www.nativetimes.com/news/international/3134-mexican-immigrant- gets-baby-back-from-state. 2012] Separation, Deportation, Termination 115

Cruz lost custody of her daughter due to her lack of English proficiency, the public loudly disapproved of the state’s actions.354 This reaction led not only to the return of Bathezar-Cruz’s daughter, it also resulted in a potentially significant policy change.355 After the baby’s return, Mexico and the State of Mississippi entered into a Memoran- dum of Understanding.356 Under the agreement, any time the Missis- sippi Child Welfare Services takes a Mexican minor into custody, it agrees to notify the Mexican consulate, consider relative placement— including placement in Mexico, request foreign home studies, and “assist Mexican nationals with obtaining permission to cross the border for court hearings and related re-unification activities.”357 On the other hand, in the case of Anna Mae He, which concerned a young girl caught in a custody battle between her American foster parents and Chinese biological parents, there was significant public support for the judge’s decision to keep her with her foster family.358 Although some objected to the decision, others commended the judge for standing up to “‘the liberals’ to ensure the best interests of the child.”359 Also telling is proposed national legislation, such as The Humane Enforcement and Legal Protections for Separated Children Act (“the HELP Act”) and The Immigration and Oversight Fairness Act of 2009.360 Congress proposed the HELP Act to enable detained, deportable parents to maintain contact with their children in the United States.361 The HELP Act would provide nationwide protocols to help

354 See Goel, supra note 279, at 528; Byrd, supra note 353. 355 See Byrd, supra note 353. 356 See id. 357 See Byrd, supra note 358; Dep’t of Human Servs. Div. of Family & Children’s Servs., State of Miss., Annual Progress and Services Report 49 (2011), available at http://www.mdhs.state.ms.us/pdfs/fcs-apsr2010.pdf. Other states have entered into similar agreements. See, e.g., Memorandum from Erwin McEwen, to Rules & Procedures Book- holders & Child Protective & Child Welfare Staff (May 16, 2008), available at http://www. state.il.us/DCFS/docs/policyGuides/Policy_Guide_2008.02.pdf. 358 See Goel, supra note 279, at 528 (discussing the public reaction to the He decision). 359 Id. 360 See Press Release, First Focus Campaign for Children, Senate Legislation Protects Children and Families Impacted by Immigration Enforcement ( June 22, 2010), available at http://www.ffcampaignforchildren.org/news/press-releases/senate-legislation-protects-children-and-families-impacted-by-immigration-enforc (hereinafter Press Release, Campaign for Children); Press Release, First Focus, Woolsey, Roybal-Allard Discuss Legislation to Mitigate the Impact of Immigration Policy on Children (Nov. 5, 2009), available at http:// www.firstfocus.net/news/press_release/woolsey-roybal-allard-discuss-legislation-mitigate-impact-immigration-policy-chil (hereinafter Press Release, Woolsey). 361 See Press Release, Campaign for Children, supra note 360. 116 Boston College Journal of Law & Social Justice [Vol. 32:63 keep children with their parents while the parents’ cases are pending.362 It recognizes the difficulties faced by detained and deported parents. Furthermore, it would ensure regular communication between parents and their children, and help detained individuals live with their families while their cases are pending.363 Similarly, the proposed Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 would permit immigration judges to prevent the deportation of a parent of a U.S. citizen child if removal is not in the child’s best interest.364 These pieces of legislation demonstrate support for immigrant family reunification.365 The proposed bills encourage immigrant family reunification and appear to be at odds with the trend toward increasing the separation of immigrant families.366 At the same time, the lack of traction of these measures in Congress casts doubt on the public’s commitment to stopping immigrant family separations.367 It is impossible to discern a clear policy or even attempt to accurately gauge public sentiment on the issue of immigrant family separations.368 It might be that the majority of Americans would object to such parental termination cases. Without more attention given to this issue or a clear policy statement against such removals, however, it is likely that the removal of children from their undocumented parents will continue to take place.

362 See id. 363 Press Release, Woolsey, supra note 360. 364 See H.R. 4321, 111th Cong. §§ 1, 187 (2009); Comprehensive Immigration Reform ASAP, NYS Immigrant Action Fund, http://nysiaf.org/legislation/comprehensive-immigraiont- reform-asap (last visited Nov. 21, 2011). 365 See Press Release, Campaign for Children, supra note 360; Press Release, Woolsey, supra note 360; Comprehensive Immigrant Reform ASAP, supra note 364. 366 See Press Release, Campaign for Children, supra note 360; Press Release, Woolsey, supra note 360; Comprehensive Immigrant Reform ASAP, supra note 364. A similar piece of proposed legislation is the Immigration and Oversight Fairness Act of 2009, which would provide better treatment to detainees. See Press Release, Congresswoman Lucille Roybal-Allard, Con- gresswoman Roybal-Allard (CA-34) Introduces Legislation to Ensure the Humane Treatment of Immigration Detainees (Feb. 26, 2009), available at http://roybal-allard.house.gov/News/ DocumentSingle.aspx?DocumentID=126158. This bill would establish legally enforceable detention standards but also increase the use of alternatives to detention for individuals such as pregnant women, asylum seekers and families with children. See id. These individuals would be placed in programs of supervised release rather than detention. See id. For families with children, this would prevent initial separation in many cases as well as create the possibility of reunification in situations where the children have been removed. See id. 367 See, e.g., HELP Separated Children Act, H.R. 2607, 112th Cong. (2011); H.R. 4321. 368 See Tara Bahrampour, More Laws are Enacted to Help, Not Restrict, Illegal Immigrants, Wash. Post, May 11, 2010. This is perhaps not surprising given that U.S. Immigration policy in general is mixed. See id. The Arizona immigration laws demonstrate one extreme; a study by the Woodrow Wilson International Center for Scholars, however, reveals that more laws are passed nationwide that expand immigrant rights than contract them. See id. 2012] Separation, Deportation, Termination 117

Conclusion The decades-long struggle between children’s and parents’ rights is continuing. The ascendancy of children’s rights has had far reaching effects and the termination of undocumented immigrant parents’ rights is one of the most recent but least noticed. Best interest considerations may justify these terminations. Permitting such considerations to support the termination of fit parents’ rights, however, represents a substantial law and policy change. This change must be recognized and its implications considered before it is permitted to continue.

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WOLF AT THE DOOR: ISSUES OF PLACE AND RACE IN THE USE OF THE “KNOCK AND TALK” POLICING TECHNIQUE

Andrew Eppich*

Introduction On October 13, 2005, police officers in Lexington, Kentucky executed a “controlled buy” drug operation near an apartment complex where an informant had purchased crack cocaine from a drug dealer.1 Upon completion of the sale, an undercover police officer signaled nearby officers to make an arrest.2 Officers advanced toward a breezeway in the apartment complex and heard an apartment door slam shut.3 The officers detected a strong odor of marijuana emanating

* Articles Editor, Boston College Journal of Law & Social Justice (2011–2012). 1 Kentucky v. King, 131 S. Ct. 1849, 1854 (2011). 2 Id. 3 Id. The Kentucky Supreme Court discarded the argument that “hot pursuit” justified the warrantless entry into the apartment by noting that “[a]n important element of the hot pursuit exception is the suspect’s knowledge that he is, in fact, being pursued.” King v. Commonwealth, 302 S.W.3d 649, 653–54 (Ky. 2010). The Kentucky Supreme Court stated that there was no evidence that the suspect knew he was being pursued. Id. at 653. The United States Supreme Court declined to answer the question of hot pursuit in this case. See King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010), cert. granted, 131 S. Ct. 61 (Sept. 28, 2010) (No. 09–1272); Petition for Writ of Certiorari, 131 S. Ct. 61 (No. 09–1272).

119 120 Boston College Journal of Law & Social Justice [Vol. 32:119 from the apartment located in the back-left of the breezeway.4 Because of the strength and location of the odor, police reasoned that the back- left apartment door had recently been opened.5 One officer knocked loudly on it and announced his presence.6 The officers heard movement from inside the apartment, which led them to believe that the suspect was about to destroy evidence.7 Instead of waiting to obtain a warrant, the officers forced entry into the apartment.8 Inside, the police discovered Hollis King and two other individuals smoking marijuana, and a search revealed crack and powder cocaine in the apartment.9 The officers, however, did not locate the suspected drug dealer they were chasing, as that suspect had hidden in the back-right breezeway apartment.10 Despite entry into the wrong apartment, the officers arrested King and, subsequently, the pre- siding judge would not suppress the evidence from the warrantless entry and search.11 King pled guilty to various drug offenses.12 * * * On September 26, 1994, police officers in Wisconsin were patrolling and broadly looking for what they believed to be vehicles used for drug trafficking.13 They noticed a Honda Prelude with Florida license plates in the parking lot of a motel and decided to investigate the identity of the driver.14 By running the license plates through a police com- puter system, the officers determined that the car belonged to a Mr. Solis, who had a criminal record and a suspended license.15

4 King, 131 S. Ct. at 1854. 5 Id. 6 Id. 7 Id. 8 Id. The officers kicked the door open and executed a protective sweep upon entry. Id. The protective sweep doctrine allows police officers to engage in a cursory search of the premises—thereby protecting the officers’ safety—when they possess reasonable suspicion that the scene of arrest poses a danger. See Maryland v. Buie, 494 U.S. 325, 327 (1990). 9 King, 131 S. Ct. at 1854. 10 Id. at 1855. 11 Id. 12 Id. King entered a conditional guilty plea for the charges of drug trafficking in a controlled substance, possession of marijuana, and persistent felony offender (second degree), and received an eleven year prison sentence. King, 302 S.W.3d at 652. 13 United States v. Jerez, 108 F.3d 684, 686 (7th Cir. 1997). Specifically, the officers were looking for “target vehicles,” which are vans or two-door vehicles that have license plates from California, Texas, Florida, or Arizona. Id. The police consider these states to be “source states” for drug trafficking. Id. 14 Id. 15 Id. Solis was previously arrested for smuggling contraband into a jail. Id. 2012] Issues of Place and Race in “Knock and Talk” Policing 121

The officers returned that evening with the hope of getting Solis to consent to a search of his motel room.16 At approximately 11 P.M., and proceeding without a warrant, the officers took turns knocking on the door but heard no noise from inside the room.17 One of the officers stated “Police. Open up the door. We’d like to talk to you.”18 An- other officer knocked on the room’s window while the first continued knocking on the door.19 Only after one-and-a-half to two minutes did the officers hear sound from within the room.20 The officer at the window used his flashlight to shine light between the drapes, where he saw an individual move underneath the covers of the bed.21 Solis eventually opened the drapes and saw the officer at the window, who stated “Sheriff’s Department. Can we talk to you? Would you open up the door?”22 Solis shook his head in agreement and opened the door for the officers.23 They displayed their police badges and asked if they could enter the room to talk to Solis.24 Upon entry into the room, the officers noticed a marijuana cigarette and then asked if they could search the motel room.25 Solis subsequently ges- tured that he would allow a search and the officers discovered large amounts of cocaine.26 The district court denied Solis’s motion to suppress and he pled guilty, reserving his right to appeal.27 * * * The police officers in these two cases, Kentucky v. King and United States v. Jerez, used the tactic of knocking on dwelling doors to gain entry.28 While a police officer’s knock on the door may not seem troubling on its face, this “knock and talk” technique is powerful and fre-

16 Id. at 686–87. 17 Id. at 687. 18 Jerez, 108 F.3d at 687. 19 Id. 20 Id. 21 Id. 22 Id. 23 Jerez, 108 F.3d at 687. 24 Id. 25 Id. at 688. 26 Id. 27 Id. at 687. Solis had a counterpart staying with him at the hotel that also pled guilty. Id. 28 See King, 131 S. Ct. at 1854; Jerez, 108 F.3d at 686–87. Even though the defendants in Jerez were in a motel room and not a home, the Supreme Court has held that the lawful occupant of a hotel room is protected from unreasonable searches and seizures, much like “a tenant of a house, or the occupant of a room in a boarding house . . . .” Stoner v. Cali- fornia, 376 U.S. 483, 490 (1964). 122 Boston College Journal of Law & Social Justice [Vol. 32:119 quently utilized.29 As King and Jerez demonstrate, officers may search a dwelling without a warrant simply by knocking on the door and asking for permission.30 The ease and effectiveness with which police officers can use knock and talk to conduct warrantless searches is making the technique more prevalent.31 King and Jerez have something else in common: the officers engaged in questionable policing to stop drug trafficking.32 Both arrests occurred in areas associated with high levels of drug activity.33 Appeals courts in both cases overturned the convictions due to the officers’ Fourth Amendment right violations.34 While these cases show the limits of knock and talk, they also demonstrate the methods police will employ to gain warrantless entry into a dwelling.35 Normally, when consent is given or when police believe—using their own judgment— evidence is being destroyed, courts validate the dwelling’s search without prior judicial review.36 This Note discusses two different uses for the knock and talk technique.37 First, police can use knock and talk to search a dwelling be-

29 See Craig M. Bradley, “Knock and Talk” and the Fourth Amendment, 84 Ind. L.J. 1099, 1099, 1104 (2009) (noting that, especially when combined with other police techniques such as plain view and search incident to arrest, “‘knock and talk’ is a powerful investigative technique.”). For example, the Orlando Weekly reports that the Central Florida Orange County Sheriff’s Office “alone performs an estimated 300 such [knock and talk] encounters each month on unsuspecting residents.” William Dean Hinton, Knock and Talk, Orlando Wkly., Jan. 9, 2003, http://www2.orlandoweekly.com/features/story.asp?id=2940. There is an entire squad within the sheriff’s office dedicated to carrying out knock and talks. Id. 30 See King, 131 S. Ct. at 1854; Jerez, 108 F.3d at 687–88; Bradley, supra note 29, at 1099. 31 See Bryan M. Abramoske, Note, It Doesn’t Matter What They Intended: The Need for Objec- tive Permissibility Review of Police-Created Exigencies in “Knock and Talk” Investigations, 41 Suf- folk U. L. Rev. 561, 564–65 (2008) (stating that “[i]n many cases, the person answering the door consents to a police search, which makes the procedure highly effective. Police have noted this effectiveness, leading to expanded use of the procedure.”) (footnote omitted). 32 See King, 131 S. Ct. at 1854; Jerez, 108 F.3d at 686–87; Bradley, supra note 29, at 1104. 33 See King, 131 S. Ct. at 1854; Jerez, 108 F.3d at 686. 34 See King, 131 S. Ct. at 1855; Jerez, 108 F.3d at 695–96. 35 See King, 131 S. Ct. at 1854; Jerez, 108 F.3d at 686–87; Bradley, supra note 29, at 1104 (stating that, during knock and talks, “[o]nly when police have employed ‘overbearing tactics,’ such as ‘drawn weapons, raised voices, or coercive demands,’ have their actions been faulted”) (emphasis omitted) (quoting United States v. Thomas, 430 F.3d 274, 277–78 (6th Cir. 2005) (quoting Nash v. United States, 117 F. App’x 992, 993 (2004) (per curiam), vacated, 544 U.S. 995 (2005))). 36 See Bradley, supra note 29, at 1109–17; Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 212 (2001) (“Only if the police behave with some extreme degree of coercion beyond that inherent in the police-citizen confrontation will a court vitiate the consent.”). 37 See Bradley, supra note 29, at 1109–17. Professor Craig Bradley also discusses a third scenario, where police utilize knock and talk for the purpose of fulfilling an arrest warrant.

2012] Issues of Place and Race in “Knock and Talk” Policing 123 cause probable cause exists that a crime was, is, or will be committed.38 This case invokes exigent circumstances—a recognized exception to the warrant requirement—to enter a dwelling when police believe evidence is being destroyed within.39 Second, police may use knock and talk to convince a resident to consent to a search.40 Once an individual consents, the search is deemed constitutional and any evidence discovered is admissible at trial.41 This Note focuses on the uses and potential abuses of knock and talk, particularly as it applies to individuals living in low income or high crime areas. Courts are allowing knock and talk to compromise privacy from intrusive police activity, even though “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed . . . .”42 Specifically, this Note discusses the impact of pretext in law enforcement and how knock and talk can be easily used to target minorities without ex ante judicial review.43 Part I of this Note discusses the development of knock and talk by explaining the technique’s implementation and its legal framework as

Id. at 1117–22. While this Note focuses only on situations where police do not possess a warrant, issues of exigency and consent that can arise in Bradley’s third scenario are discussed in Part III. See id.; infra Part III.A–B. 38 See King, 131 S. Ct. at 1860 (discussing if and when police must halt an investigation to obtain a warrant in the face of sufficient probable cause); Bradley, supra note 29, at 1109; Geoffrey C. Sonntag, Note, Probable Cause, Reasonable Suspicion, or Mere Speculation?: Holding Police to a Higher Standard in Destruction of Evidence Exigency Cases, 42 Washburn L.J. 629, 651 (2003) (“Probable cause is . . . universally required in destruction of evidence exigency cases . . .”). 39 See Schmerber v. California, 384 U.S. 757, 770–71 (1966) (holding the determination of appellant’s intoxication level through blood testing constitutional when the delay necessary to obtain a warrant threatened the destruction of evidence). Schmerber was the first time the Supreme Court upheld “a warrantless search conducted to prevent the destruction of evidence.” Sonntag, supra note 38, at 632. The actual standard for implementation of the destruction of evidence exigency exception has led to inconsistency among the Circuit Courts. See Barbara C. Salken, Balancing Exigency and Privacy in Warrantless Searches to Prevent Destruction of Evidence: The Need for a Rule, 39 Hastings L.J. 283, 288 (1988) (noting that the Circuits “do not evaluate claims of exigency in the same manner”); Sonntag, supra note 38, at 630. 40 See Jerez, 108 F.3d at 686–87; H. Morley Swingle & Kevin M. Zoellner, “Knock and Talk” Consent Searches: If Called by a Panther, Don’t Anther, 55 J. Mo. B. 25, 25 (1999) (“The typical ‘knock and talk’ simply involves police officers marching up to someone’s front door, knocking, and requesting consent to search the home.”). 41 See Christo Lassiter, Consent to Search by Ignorant People, 39 Tex. Tech L. Rev. 1171, 1171 (2007) (“A consent search requires neither a warrant nor probable cause, and all evidence discovered may be seized pursuant to the plain view doctrine.”). 42 See United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972). 43 See Brian J. Foley, Policing from the Gut: Anti-Intellectualism in American Criminal Procedure, 69 Md. L. Rev. 261, 340 (2010) (arguing that “when police do not have to give reasons for discretionary searches or seizures, conscious and unconscious racism may prevail”). 124 Boston College Journal of Law & Social Justice [Vol. 32:119 developed by the Supreme Court. Part II analyzes the impact of knock and talk on race-based policing and demonstrates that it can be used to harass and target minorities and the poor. Part III examines two problematic scenarios that knock and talk creates: consent searches and searches based on the destruction of evidence. Finally, Part IV suggests that knock and talk shames and humiliates community members, particularly when they are innocent, and breeds mistrust in police. Thus, knock and talk undermines community policing and ultimately works against the community’s protection.

I. A Closer Look at Knock and Talk: How It Works and Why Police Find it Useful Knock and talk is an effective policing technique where an officer knocks on a dwelling door to speak to an inhabitant, thereby gleaning useful information or receiving permission to search the premises.44 While officers are not allowed to intrude into the home, the doctrine of curtilage allows police officers to approach a dwelling’s door to ask questions.45

A. How it Works: The Knock and Talk Technique Knock and talk is a technique where police officers, acting without a warrant and often without probable cause, knock on the door of a dwelling and ask for permission to search.46 Police also use knock and talk to obtain information from the inhabitant through personally questioning them.47 This technique can be used for any dwelling, from a rural single-family home to a crowded apartment complex in an inner city.48

44 See Bradley, supra note 29, at 1111; Carrie Leonetti, Open Fields in the Inner City: Appli- cation of the Curtilage Doctrine to Urban and Suburban Areas, 15 Geo. Mason U. C.R. L.J. 297, 311–12; Strauss, supra note 36, at 211 n.2; Marc L. Waite, Note, Reining in “Knock and Talk” Investigations: Using Missouri v. Seibert to Curtail an End-Run Around the Fourth Amendment, 41 Val. U. L. Rev. 1335, 1338–39 (2007). 45 See Oliver v. United States, 466 U.S. 170, 179 (1984); United States v. Cephas, 254 F.3d 488, 493–94 (4th Cir. 2001); United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991); United States v. Hersh, 464 F.2d 228, 230, 232 (9th Cir. 1972); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 474 (3rd ed. 2004). 46 See Bradley, supra note 29, at 1111; Leonetti, supra note 44, at 311–12; Waite, supra note 44, at 1338–39. 47 See Bradley, supra note 29, at 1104–05. 48 See Leonetti, supra note 44, at 302–03, 311–13 (2005) (discussing the curtilage doctrine with respect to knock and talk in an urban setting, as compared to rural and suburban neighborhoods). 2012] Issues of Place and Race in “Knock and Talk” Policing 125

Police use the knock and talk technique because it is a simple and effective way of obtaining information.49 A large number of individuals tend to agree to a search of their home.50 An added benefit of knock and talk is that police can seize evidence or arrest inhabitants if drugs or other evidence of crime are in the officer’s plain view.51 The officer need only look past the inhabitant or through open windows and may do so without consent for a search.52 Knock and talk is effective when police believe they do not have the time or sufficient probable cause necessary to obtain a warrant but suspect that those inside are involved in illegal activity.53 Therefore, officers find it an important tool in the arsenal of policing techniques.54

B. The Legal Framework Surrounding Knock and Talk The home is an area where protection from police intrusion is at its apogee, even though other protections from police encounters tend to ebb and flow over time.55 Courts repeatedly reinforce the notion that the home is a person’s “castle.”56 Thus, police intrusions into the

49 See Bradley, supra note 29, at 1104 (“It is certainly appropriate for police to canvass a neighborhood following a crime to ascertain whether anyone has knowledge about the crime.”). 50 See Strauss, supra note 36, at 211 n.2 (“In case after case, students read about suspects who supposedly told the police without hesitation to ‘go right ahead and search,’ when incriminating evidence was obviously going to be discovered.”). 51 See Bradley, supra note 29, at 1104. 52 See id. 53 See Kentucky v. King, 131 S. Ct. 1849, 1855 (2011) (noting that one officer’s testimony persuaded the circuit court judge that he had to enter an apartment without a warrant, where that officer had concluded the occupants were in the act of destroying drug evidence); Swingle & Zoellner, supra note 40, at 25–26 (noting that knock and talk allows searches without probable cause or a warrant). 54 See Hinton, supra note 29 (noting the usefulness of knock and talk for the Orange County Sheriff’s Office). 55 See Lewis v. United States, 385 U.S. 206, 211 (1966) (“Without question, the home is accorded the full range of Fourth Amendment protections.”); Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 349 (1974) (“For clarity and consistency, the law of the fourth amendment is not the Supreme Court’s most successful product.”). 56 See, e.g., Minnesota v. Carter, 525 U.S. 83, 94 (1998) (Scalia, J., concurring) (“The people’s protection against unreasonable search and seizure in their ‘houses’ was drawn from the English common-law maxim, ‘A man’s home is his castle.’”); Payton v. New York, 445 U.S. 573, 601 (1980) (acknowledging the Court’s “overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic”); Boyd v. United States, 116 U.S. 616, 624–28 (1886) (noting that, regarding the history of the Fourth Amendment, the use of exploratory searches of the home was one of the primary reasons for the American revolution against British rule). 126 Boston College Journal of Law & Social Justice [Vol. 32:119 home implicate the protections against unreasonable searches and seizures provided by the Fourth Amendment.57

1. The Rise of Knock and Talk While the phrase “knock and talk” did not appear in the lexicon before 1991, earlier cases indicate that its unrestricted use would not be permitted.58 The issue arose in Johnson v. United States, a case with facts similar to those in Kentucky v. King.59 In Johnson, a confidential informant told police officers that individuals were smoking opium in a hotel room.60 The officers approached the door to the hotel room and detected a strong odor of opium.61 After knocking on the door, a voice on the other side asked who was there and one of the officers identified himself as a lieutenant.62 Johnson eventually opened the door and the lieutenant said “I want to talk to you a little bit,” whereupon Johnson “stepped back acquiescently and admitted [them].”63 After Johnson denied that there was an opium smell in the room, the officers placed her under arrest.64 A subsequent search incident to arrest uncovered opium and drug paraphernalia—both pieces of evidence admitted against her at trial.65 The Supreme Court held Johnson’s Fourth Amendment rights violated and, in doing so, made two points relevant to current knock

57 See LaFave, supra note 45, at 474 (“[The home] is . . . quite clearly a place as to which there exists a justified expectation of privacy against unreasonable intrusion.”). 58 See Johnson v. United States, 333 U.S. 10, 12–13, 16 (1948); Swingle & Zoellner, supra note 40, at 25 (stating that the phrase “knock and talk” calls for “nothing more than the application of well-established Fourth Amendment principles pertaining to consent searches”). 59 See King, 131 S. Ct. at 1854; Johnson, 333 U.S. at 12. 60 Johnson, 333 U.S. at 12. 61 Id. The odor of illegal drugs created probable cause in both the King and Johnson cases. King, 131 S. Ct. at 1862; Johnson, 333 U.S. at 12–13. The Supreme Court has held that the odor of illegal drugs alone can create probable cause that a crime is being committed. Johnson, 333 U.S. at 13 (noting that a magistrate must find that the officer who smelled the drugs was “qualified to know the odor, and [the odor] is one sufficiently distinctive to identify a forbidden substance . . .”); Taylor v. United States, 286 U.S. 1, 6 (1932). Merely dissipating odors, however, do not create a destruction of evidence exigency because they “were not capable at any time of being reduced to possession for presentation to court.” Johnson, 333 U.S. at 15. 62 Johnson, 333 U.S. at 12. 63 Id. 64 Id. 65 Id. 2012] Issues of Place and Race in “Knock and Talk” Policing 127 and talk procedure.66 First, the Court stated that Johnson granted entry to the officers “in submission to authority rather than as an understanding and intentional waiver of a constitutional right.”67 Second, the Court held that despite the odor of opium wafting outside the hotel room, the circumstances were not such that the officers were justified in entering the room without a warrant.68 The Court stated that “[n]o reason is offered for not obtaining a search warrant except the incon- venience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate.”69 The Court continued, “[i]f the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required.”70

2. Shifting to a Reasonable Expectation of Privacy Standard Since Johnson’s unfavorable treatment of knock and talk in 1948, the Supreme Court’s conception of privacy began to shift from an emphasis on location to a personal right.71 The most important decision for understanding Fourth Amendment searches is the 1967 case of Katz v. United States.72 In Katz, FBI agents had investigated Katz for possible involvement in an illegal gambling operation.73 Without a warrant,

66 See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (“It is . . . well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”); Johnson, 333 U.S. at 16–17; Bradley, supra note 29, at 1103; David John Housholder, Note, Reconciling Consent Searches and Fourth Amendment Jurisprudence: Incorporating Privacy into the Test for Valid Consent Searches, 58 Vand. L. Rev. 1279, 1289, 1291–94 (2005) (discussing the voluntariness requirement in granting consent for officers to search). 67 Johnson, 333 U.S. at 13. 68 Id. at 12, 14–15. The court stated that such justifying circumstances might include the likelihood of flight and the destruction or removal of evidence. Id. at 15. The court also noted that the search was of a permanent location, and not a vehicle. Id. 69 Id. 70 Id. 71 See id. at 10–15; Bradley, supra note 29, at 1099 (“[W]hat was essentially a ‘knock and talk’ was considered and disapproved of in the often quoted, but no longer fully adhered to, 1948 case of Johnson v. United States.”); see, e.g., Katz v. United States, 389 U.S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places.”); Griswold v. Connecti- cut, 381 U.S. 479, 484 (1965) (“[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Vari- ous guarantees create zones of privacy.”) (citation omitted). 72 See 389 U.S. at 347; Amsterdam, supra note 55, at 383. Amsterdam acknowledged the “extraordinary character and implications” of Katz when he stated that “[t]he case is, of course, now generally recognized as seminal and has rapidly become the basis of a new formula of fourth amendment coverage.” See Amsterdam, supra note 55, at 383. 73 Katz, 389 U.S. at 348, 356–57. 128 Boston College Journal of Law & Social Justice [Vol. 32:119 agents placed an electronic listening device on the outside of a public phone booth to listen to Katz’s conversation within.74 The agents inter- cepted communications regarding violations of a federal gambling statute, evidence that ultimately led to Katz’s conviction.75 In overturning his conviction, the Supreme Court began to shift away from the common law test in Johnson that relied on physical trespass to determine whether a search occurred.76z The Kat majority held that a warrantless, non-physical intrusion of a listening device into a public phone booth violates the Fourth Amendment freedom from unreasonable searches and seizures.77 Justice Harlan’s concurring opinion dictates the modern test, which states that the “understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”78 Thus, the analysis is both subjective and objective: did the particular person actually have an expectation of privacy, and if so, will society recognize that expectation as reasonable?79

3. The Curtilage Doctrine The Katz mode of analysis continued to gain acceptance as the Su- preme Court clarified its Fourth Amendment jurisprudence in Oliver v. United States.80 Previously, the Court had held that “open fields” — property owned by an individual that is not the house—were not pro-

74 Id. at 348. 75 Id. 76 See id. at 353, 359; Housholder, supra note 66, at 1281–82 (discussing that courts prior to Katz focused on the presence or absence of physical entry onto property to determine Fourth Amendment violations). 77 See Katz, 389 U.S. at 348–49, 359. The majority also noted that the attempt to narrowly tailor the recording to capture only Katz’s conversation did not justify the warrantless search, despite the fact that a magistrate would have likely authorized it. Id. at 354, 356. 78 Katz, 389 U.S. at 361 (Harlan, J., concurring); see Housholder, supra note 66, at 1283. 79 See Katz, 389 U.S. at 361 (Harlan, J., concurring); Robert M. Bloom, Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution 46 (2003) (arguing that “‘reasonable’ has largely come to mean what a majority of Supreme Court Justices says is reasonable”); Christopher Slobogin & Joseph E. Schumacher, Reason- able Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at “Un- derstandings Recognized and Permitted By Society,” 42 Duke L.J. 727, 731 (1993) (empirically analyzing society’s understanding of reasonableness with respect to expectations of privacy). 80 466 U.S. at 173. 2012] Issues of Place and Race in “Knock and Talk” Policing 129 tected by the Fourth Amendment.81 The Court reaffirmed the open fields doctrine in Oliver, stating that the “expectation of privacy in open fields is not an expectation that ‘society recognizes as reasonable.’”82 They emphasized the difference between open fields and curtilage, which is the “land immediately surrounding and associated with the home.”83 People have a reasonable expectation of privacy in the curtilage surrounding their dwellings, and therefore, Fourth Amendment protection applies.84 Knock and talk often requires police officers to walk through the curtilage of a dwelling to knock on the door.85 Despite the Fourth Amendment protection for curtilage, the Circuit Courts of Appeals generally allow police to approach a dwelling, cross through the curtilage, and knock on the door without a warrant.86 For example, in Davis v. United States, the Ninth Circuit stated: Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s ‘castle’ with the honest intent of asking questions of the occupant thereof—whether the questioner be a pollster, a salesman, or an officer of the law.87

81 See Hester v. United States, 265 U.S. 57, 57, 59 (1924). The Court stated that “[t]he distinction between the [open fields] and the house is as old as the common law.” Id. at 59. 82 Oliver, 466 U.S. at 179. The Court defined the term “open fields” as “any unoccu- pied or undeveloped area outside of the curtilage.” Id. at 180 n.11. 83 Id. at 180. 84 Id. The Supreme Court clarified which portion of the property constitutes curtilage for Fourth Amendment purposes in United States v. Dunn, which applied the following four factors: the area’s proximity to the home, whether it is included within an enclosure surrounding the home, its nature of use, and the steps taken by the resident to protect the area from public observation. See 480 U.S. 294, 301 (1987); see also Bloom, supra note 79, at 49 (stating that “[i]n the area just outside the home, called the curtilage, there is at least some expectation of privacy and therefore some Fourth Amendment protection”). 85 See Vanessa Rownaghi, Note, Driving into Unreasonableness: The Driveway, the Curtilage, and Reasonable Expectations of Privacy, 11 Am. U. J. Gender Soc. Pol’y & L. 1165, 1166 (2003) (stating that “[w]idespread acceptance of the ‘knock and talk’ and plain view doctrines uniquely impacts a home occupant’s privacy right in the driveway.”); Swingle & Zo- ellner, supra note 40, at 25. 86 See Oliver, 466 U.S. at 179; Cephas, 254 F.3d at 493–94; Tobin, 923 F.2d at 1511; Hersh, 464 F.2d at 230, 232. 87 327 F.2d 301, 303 (1964); see Cephas, 254 F.3d at 493–94; Tobin, 923 F.2d at 1511; Hersh, 464 F.2d at 230. Though Davis came down before Katz, courts have continuously upheld as constitutional the act of crossing through curtilage and knocking on a door to

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Thus, police may constitutionally approach a house, knock on the door, and question the residents inside.88 Nevertheless, this doctrine does not grant officers free reign to practice all aspects of policing within the curtilage.89 Generally, when police leave a path of access and move toward a dwelling’s entrance, some observations into that dwelling may constitute a search.90 The curtilage therefore serves as a buffer where a reasonable expectation of privacy exists and police do not have free reign to engage in investigatory activities.91

II. Race, Place, and Income: How Poverty and Race Affect Conceptions of Privacy The curtilage doctrine may not be fair to minorities or those living in poverty because, though “on the face of it, the criminal law is color- blind and class-blind . . . , this only makes the problem worse.”92 Race and class are important factors in a Fourth Amendment analysis because courts often note when police officers operate in high-crime neighborhoods.93 Officers often use the neighborhood crime level as a major justification for reasonable suspicion when making stops or

question residents. See Katz, 389 U.S. at 347; Davis, 327 F.2d at 301; see, e.g., Cephas, 254 F.3d at 493–94 (citing Davis); Tobin, 923 F.2d at 1511 (citing Davis); Hersh, 464 F.2d at 230 (citing Davis). 88 See LaFave, supra note 45, at 482–84; Rownaghi, supra note 85, at 1173–74 (“The ‘knock and talk’ doctrine is founded on the view that it is never objectionable for an officer to enter private property, which is presumably open to public use.”). 89 See LaFave, supra note 45, at 485–87. 90 See Lorenzana v. Superior Court, 511 P.2d 33, 39–41 (Cal. 1973) (holding that observation into a dwelling was an unlawful search when police crossed a “six-foot-wide strip of property immediately adjacent to the window through which the observations were made . . .”); Olivera v. State, 315 So.2d 487, 488, 491 (Fla. Dist. Ct. App. 1975) (holding that observation of bedroom was a search when the police officer “left the sidewalk and walked across some grass.”). 91 See LaFave, supra note 45, at 485–87; Rownaghi, supra note 85, at 1165–66. 92 David Cole, No Equal Justice: Race and Class in the American Criminal Jus- tice System 8 (1999). 93 See, e.g., Illinois v. Wardlow, 528 U.S. 119, 121 (2000) (mentioning “an area known for heavy narcotics trafficking”); see also Andrew Guthrie Ferguson & Damien Bernache, The “High Crime Area” Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 Am. U. L. Rev. 1587, 1589 (2008) (“[T]he Su- preme Court of the United States has considered the character of the neighborhood to be one factor in finding ‘reasonable suspicion’ to stop someone.”) (footnote omitted). Fergu- son and Bernache argue that courts are inconsistent in defining what a “high crime area” is and that most jurisdictions simply rely on an officer’s statement that the area was indeed “high crime” without any empirical evidence. See Ferguson & Bernache, supra, at 1607–09. 2012] Issues of Place and Race in “Knock and Talk” Policing 131 searches.94 In fact, the Supreme Court held that the sole act of running away unprovoked from the police in a high crime neighborhood can justify a Ter r y stop.95 High crime neighborhoods may be poorer and less able to support jobs and infrastructure than the average community.96 They also have a greater racial disparity, as “African Americans and Hispanic Americans make up almost all of the population in most of the neighborhoods the police regard as high crime areas.”97 Officers often refer to the policing of high-crime neighborhoods as “Quality of Life Policing.”98

A. The Low Income, High-Crime Neighborhood: Difficulties with the Curtilage Doctrine The curtilage doctrine, as developed in Oliver v. United States and United States v. Dunn, is understood differently in the context of urban living.99 For example, inner cities—areas that are prone to becoming high crime neighborhoods—are often inhabited by poor individuals and members of racial minorities.100 Most of these individuals live in

94 See Terry v. Ohio, 392 U.S. 1, 30–31 (1968) (holding that a police officer can stop and frisk an individual to engage in a limited search for weapons based on reasonable suspicion); David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659, 660 (1994) (discussing location in a high crime area and movement away from police as the two most important factors in justifying a Ter r y stop). After the Ter r y decision, Amsterdam noted that “[u]nless one takes a very middle- class white view of life, here is a practice that cries out for some sort of fourth amendment regulation.” Amsterdam, supra note 55, at 405 (footnote omitted). 95 See Wardlow, 528 U.S. at 124–25. The Supreme Court intended Ter r y to allow a limited seizure and frisk for weapons “for the protection of [the officer] and others in the area . . . in an attempt to discover weapons which might be used to assault him.” See Terry, 392 U.S. at 30. 96 See Harris, supra note 94, at 677. 97 See id. at 677–78. 98 See Cole, supra note 92, at 44–46; see also David A. Harris, Profiles in Injustice: Why Racial Profiling Cannot Work 24–26, 48–49 (2002) (discussing the emergence of racial profiling from the “broken windows” theory of quality of life policing). Malcolm Gladwell discusses in detail the broken windows theory of crime, which proposes that “crime is the inevitable result of disorder.” Malcolm Gladwell, The Tipping Point: How Little Things Can Make a Big Difference 141 (2002). “If a window is broken and left unrepaired, people walking by will conclude that no one cares and no one is in charge.” Id. Gladwell argues that “crime is contagious—just as a fashion trend is contagious—that it can start with a broken window and spread to an entire community.” See id. Gladwell discusses New York City Police Commissioner William J. Bratton’s strategy to “crack down on quality-of-life crimes,” stating that “[m]inor, seemingly insignificant quality-of-life crimes . . . were Tipping Points for violent crime.” See id. at 146. 99 See United States v. Dunn, 480 U.S. 294, 301 (1987); Oliver v. United States, 466 U.S. 170, 177–78 (1984); Leonetti, supra note 44, at 311, 318–19. 100 See Harris, supra note 94, at 677–78. 132 Boston College Journal of Law & Social Justice [Vol. 32:119 multi-occupant dwellings, where living quarters are shared with other individuals or families.101 In addition, buildings are often located close to public or other private property, where the curtilage does not extend.102 The curtilage doctrine sometimes affords little protection to apartment dwellers because courts are split as to whether one has a reasonable expectation of privacy in an apartment building’s common spaces.103 Depending on the jurisdiction, an apartment dweller’s Fourth Amendment protection may only extend to the unit’s door and not beyond.104 The Supreme Court has recognized that apartment dwellers have a reasonable expectation of privacy within their units.105 A landlord or building owner cannot permit police to search an individual unit without the inhabitant’s consent.106 Thus, the curtilage doctrine seems to grant little protection to apartment dwellers because they cannot exclude others from common spaces outside of the unit.107 Carrie Leonetti aptly demonstrates the problem: two roommates sharing a unit in an apartment building may exclude each other from their respective bedrooms but not from shared common areas.108 The fact that the roommates share common areas, however, does not mean that a police officer can search the common areas without a warrant.109

101 See Leonetti, supra note 44, at 310, 318–19. 102 See LaFave, supra note 45, at 483–87 (discussing the various doctrinal problems of multi-unit dwellings and the expectation of privacy entitled therein). 103 See McDonald v. United States, 335 U.S. 451, 454 (1948); LaFave, supra note 45, at 488–89, 492 (“It is not a search for an officer to look into an apartment while in a common passageway or other common area of the apartment complex, or to listen from an adjoin- ing apartment.”); Leonetti, supra note 44, at 317–19. Compare United States v. Nohara, 3 F.3d 1239, 1240–41 (9th Cir. 1993) (finding no reasonable expectation of privacy in the hallway of an apartment building), with United States v. Carriger, 541 F.2d 545, 547 (6th Cir. 1976) (finding a reasonable expectation of privacy in the hallway of a locked apartment building). McDonald would probably have a different outcome if the landlady had legally admitted police into the common space of the house where the suspects had rented a room. See LaFave, supra note 45, at 492. 104 See Leonetti, supra note 44, at 310; Sean M. Lewis, Note, The Fourth Amendment in the Hallway: Do Tenants Have a Constitutionally Protected Privacy Interest in the Locked Common Areas of Their Apartment Buildings?, 101 Mich. L. Rev. 273, 274–75, 298–300 (2002) (noting that only the Sixth Circuit guarantees a privacy right to a tenant in the locked areas of an apartment building that are common to all residents of that building). 105 See Miller v. United States, 357 U.S. 301, 303, 313–14 (1958). 106 See Stoner v. California, 376 U.S. 483, 489 (1964); Chapman v. United States, 365 U.S. 610, 610–12, 618 (1961). 107 See LaFave, supra note 45, at 488–89. 108 See Leonetti, supra note 44, at 316. 109 See id. 2012] Issues of Place and Race in “Knock and Talk” Policing 133

There are two reasons why knock and talk is easier to implement in an apartment complex compared to a single family home.110 First, when police are legally in an apartment complex—investigating a different crime, for example—any unit within the building is subject to knock and talk.111 Second, a landlord may permit entry into otherwise protected common spaces.112 Neither of these circumstances exists for single-family homes.113

B. Power and Pretext: The Legacy of Whren v. United States In Whren v. United States, plainclothes police officers in an un- marked car were patrolling a “high drug area” of Washington D.C.114 They noticed a Nissan Pathfinder stopped at a stop sign for more than twenty seconds.115 When the officers performed a u-turn and drove toward the Pathfinder, the vehicle turned to the right without signaling and drove off at an “unreasonable” speed.116 The officers caught up with the Pathfinder and one officer approached on foot as it waited at a traffic light.117 The officer saw bags in plain view, filled with what he believed to be crack cocaine, and arrested the occupants.118 On appeal to the Supreme Court, the vehicle occupants argued that the police officers stopped them for the pretextual reason of race and not for a traffic violation.119 Writing for a unanimous Court, Justice Scalia rejected this argument, holding that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”120 The Court also stated that challenges to discriminatory police practices must be made using the Equal Protection Clause and not the Fourth

110 See id. at 310–11, 319–20. 111 See id. at 314. Such investigations may include the use of a drug sniffing dog near an adjacent apartment. See id. 112 See LaFave, supra note 45, at 778 (“[E]ven where the tenant has exclusive possession of a certain room or set of rooms, the landlord may nonetheless allow a search of other parts of the building, such as a common passageway . . . or a storage area shared by the several tenants or by the landlord and tenant.”). 113 See Kentucky v. King, 131 S. Ct. 1849, 1854 (2011); United States v. Kelly, 551 F.2d 760, 764 (8th Cir. 1977) (holding that an apartment manager could consent to the search of common areas in the apartment building); Lewis, supra note 104, at 298–300 (noting that residents of private homes enjoy greater protection than residents of multi-unit apartment buildings). 114 Whren v. United States, 517 U.S. 806, 808 (1996). 115 Id. 116 Id. 117 Id. 118 Id. at 808–09. 119 See Whren, 517 U.S. at 810–11. 120 Id. at 813. 134 Boston College Journal of Law & Social Justice [Vol. 32:119

Amendment.121 Before 1996, Police may have been knocking on the door of pretextual policing, but Whren kicked the door wide open.122 Whren makes challenges to knock and talk difficult when it is used to target low income and minority individuals.123 This is because its legacy has spread beyond the pretextual stop and “deems officers’ motivations constitutionally irrelevant in search and seizure decisions.”124 Therefore, implicit targeting of racial minorities and the poor through quality of life policing is considered constitutional.125 Whren creates difficulty for defendants looking to prove subjective discrimination because they must do so under the Equal Protection Clause.126 This is a difficult task in light of McCleskey v. Kemp, where the Supreme Court rejected a statistically objective Equal Protection challenge to the death penalty.127 In McCleskey, the Court rejected evidence demonstrating that the death penalty is disproportionately applied to African American convicts as merely a correlation between punishment and race.128 Thus, “only evidence of racial animus of the most direct nature in the defendant’s own case could prove an equal protection violation . . . .”129 Therefore, absent a direct admission of racial bias, Whren and McCleskey foreclose proof of an officer’s racial animus.130

121 See id. 122 See id.; see also Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214, 225–30 (1983) (discussing the police’s use of race in determining probable cause or reasonable suspicion). 123 See Whren, 517 U.S. at 813; David A. Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 553–54 (1997); Harris, supra note 94, at 677–78. 124 See Wayne A. Logan, Street Legal: The Court Affords Police Constitutional Carte Blanche, 77 Ind. L.J. 419, 465 (2002). 125 See Whren, 517 U.S. at 813; Cole, supra note 92, at 40 (the Whren standard “frees a police officer to target members of minority groups for selective enforcement”) (quoting United States v. Dotero-Ospina, 71 F.3d 783, 790 (10th Cir. 1995) (en banc) (Seymour, J., dissenting)); Harris, supra note 94, at 677–78. Professor David Cole also notes that “‘consent’ searches, pretextual traffic stops, and ‘quality of life’ policing are all disproportionately used against black citizens.” Cole, supra note 92, at 8; see also Peter A. Lyle, Note, Racial Profiling and the Fourth Amendment: Applying the Minority Victim Perspective to Ensure Equal Protection Under the Law, 21 B.C. Third World L.J. 243, 247 (2001) (discussing courts’ unresponsiveness to the concerns of African-Americans during searches and seizures by police, particularly allegations of discriminatory intent behind racial profiling techniques). 126 See Whren, 517 U.S. at 813; Harris, supra note 123, at 677–78. 127 See 481 U.S. 279, 319 (1987). 128 See id. at 286–87, 312. 129 See Harris, supra note 123, at 552. 130 See Whren, 517 U.S. at 813; Harris, supra note 123, at 550, 552. 2012] Issues of Place and Race in “Knock and Talk” Policing 135

III. Knock and Talk and the Diminishment of Privacy The standard for waiver of citizens’ rights to be “secure in their . . . houses . . . against unreasonable searches and seizures” is lower than that for waiver of other constitutionally protected rights.131 Courts maintain a low threshold for what constitutes voluntary consent to a search regardless of compelling circumstances, and instead look to police misconduct to determine voluntariness.132 Even though the Su- preme Court recognized the inherent coercive nature of custodial questioning and instituted the Miranda warning, no such warning is required in knock and talk practice.133 Instead, officers may conduct a knock and talk and even enter the dwelling without a warrant if exigent circumstances—like the impending destruction of evidence—exist.134 The very fact, however, that the police are at the front door will, in some situations, create the destruction of evidence exigency that allows the officers to enter.135 Furthermore, the Supreme Court held in Ken- tucky v. King that police are incapable of creating exigent circumstances when engaging in legal police activity.136

A. Knock and Talk and the Consent Search Law enforcement officers prefer to receive consent to search because “[i]t is certainly easier to obtain consent from an intimidated, ignorant citizen than to obtain the requisite level of individualized suspicion necessary to justify a search.”137 Once consent is granted, police can legally search without a warrant, reasonable suspicion, or probable cause.138 This Fourth Amendment right, however, is not always waived when an individual consents to a search.139

131 See U.S. Const. amend. IV; Lassiter, supra note 41, at 1174–77. 132 See Strauss, supra note 36, at 222–25. 133 See Miranda v. Arizona, 384 U.S. 436, 468–69 (1966); Bradley, supra note 29, at 1127. 134 See Sonntag, supra note 38, at 629. 135 See Bradley, supra note 29, at 1099 (“Under ‘knock and talk,’ police go to people’s residences, with or without probable cause, and knock on the door to obtain plain views of the interior of the house, to question the residents, to seek consent to search, and/or to arrest without a warrant, often based on what they discover during the ‘knock and talk.’”). 136 See Kentucky v. King, 131 S. Ct. 1849, 1862 (2011). 137 See Lassiter, supra note 41, at 1172. 138 See Bloom, supra note 79, at 113; LaFave, supra note 45, at 596, 599. 139 See Daniel L. Rotenberg, An Essay on Consent(less) Police Searches, 69 Wash. U.L.Q. 175, 176 (1991). 136 Boston College Journal of Law & Social Justice [Vol. 32:119

Normally, the standard for waiver of a constitutionally protected right is very high.140 The Supreme Court set the standard in Johnson v. Zerbst, defining waiver as “ordinarily an intentional relinquishment or abandonment of a known right or privilege.”141 In the seminal case of Schneckloth v. Bustamonte, however, this standard changed for consent searches.142 In Schneckloth, the police asked to search a vehicle, received consent, and discovered evidence used to convict the defendants.143 The district court denied a writ of habeas corpus, but the Ninth Circuit Court of Appeals reversed, requiring proof of (1) uncoerced consent, and (2) that the respondent knew consent could be “freely and effectively withheld.”144 The Supreme Court, however, reversed, stating that “the Court has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.”145 Therefore, an individual’s knowledge of the right to withhold consent is not dispositive of the voluntariness of the consent granted.146 Officers need not inform individuals of their right to refuse consent because it is impractical and hampers the effectiveness of investigations.147 Thus, the Supreme Court distinguished waiver of a Fourth Amendment right to be free from unreasonable searches and seizures from other rights afforded to defendants in criminal actions because of “the context of the safeguards of a fair criminal trial.”148

140 See id. at 1174–75 (comparing the higher standard for waiver with the lower standard for voluntariness). 141 304 U.S. 458, 464 (1938). This case, however, dealt with the question of waiver of a Sixth Amendment right. Id. at 459. 142 See 412 U.S. 218, 227–33 (1973); see also LaFave, supra note 45, at 608 (stating that Schneckloth is “the Supreme Court’s most detailed examination of the theoretical basis of the consent search concept . . .”). 143 See Schneckloth, 412 U.S. at 220–21. The California Court of Appeals for the First Appellate District affirmed the conviction and the Supreme Court of California denied review. See id. Even though the Court acknowledged the special protection of the home given by the Fourth Amendment, the Schneckloth doctrine allows for searches of the home with the same ease as for vehicles and other locations. See Bradley, supra note 29, at 1112– 13 (“The lower courts have generally approved the practice of avoiding warrant and/or probable cause requirements through ‘knock and talk’ consents.”). 144 Schneckloth, 412 U.S. at 221–22. 145 Id. at 226. Some of the other factors that the Court cited were “youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” Id. (citations omitted). 146 See id. at 227. 147 See id. at 231–32. 148 Id. at 235. 2012] Issues of Place and Race in “Knock and Talk” Policing 137

B. Criticism of the Schneckloth Doctrine: Lower Standards for Higher Stakes Scholars have criticized the Schneckloth doctrine for two reasons.149 First, the standard of waiver—not requiring informed consent—is lower for searches and seizures than for other constitutionally- protected rights.150 Second, the courts have rarely engaged in detailed analysis as to whether the government met its burden to prove the low- ered standard of waiver.151

1. A Lower Standard of Waiver Scholars question why the right “against unreasonable searches and seizures” has a lower standard of waiver than other constitutionally- protected rights, like the right to a jury trial or the privilege against self- incrimination.152 The higher standard applies when the accused already has an attorney’s advice, but the lower standard is used when consenting to searches without any legal guidance.153 Thus, the lower standard allows individuals to unwittingly or unknowingly waive their Fourth Amendment rights.154 Citizens will often waive their Fourth Amendment rights when confronted by an armed and authoritative representative of the State.155 Few legitimate reasons exist for a person engaged in illegal

149 See, e.g., Michael J. Friedman, Another Stab at Schneckloth: The Problem of Limited Con- sent Searches and Plain View Searches, 89 J. Crim. L. & Criminology 313, 346 (1998) (“The current law of limited consent searches and plain view seizures combines to create a wide avenue for police to gain entry by substituting deceit for probable cause.”); Lassiter, supra note 41, at 1180 (“Since Schneckloth v. Bustamonte, issues of racial profiling, recognition of inherent power imbalance, and concerns about erosion of Fourth Amendment protections have fueled a continuing analysis in evaluating the police-citizen confrontations.”); Strauss, supra note 36, at 235 (“In sum, the voluntariness standard in Schneckloth has led to confusion at best and inadequate protection for suspects’ Fourth Amendment rights at worst. It is poorly understood, and in practice, the subjective factors emphasized in Schneckloth are often ignored or minimized.”). 150 See U.S. Const. amend. IV; Lassiter, supra note 41, at 1174–77. 151 See Schneckloth, 412 U.S. at 230; Strauss, supra note 36, at 221–22. 152 U.S. Const. amend. IV; see Lassiter, supra note 41, at 1174–77 (explaining the reasons for a higher standard for rights necessary to guarantee a fair trial, but criticizing the test for consent). 153 See Halbert v. Michigan, 545 U.S. 605, 609–10 (2005) (holding that defendant could not waive his right to counsel for appeal when pleading nolo contendere); United States v. Jerez, 108 F.3d 684, 686–88 (7th Cir. 1997); Lassiter, supra note 41, at 1175. 154 See Lassiter, supra note 41, at 1175. 155 See id. at 1175–77, 1189. Christo Lassiter cited State v. Brown, a Supreme Court of Arkansas case in which the court stated that “[i]t is the intimidation effect of multiple police officers appearing at a home dweller’s doorstep, sometimes in uniform and armed, and requesting consent to search without advising the home dweller of his or her right to

138 Boston College Journal of Law & Social Justice [Vol. 32:119 activity to consent to being searched.156 Even innocent suspects have little reason to consent, aside from demonstrating that they have nothing to hide, especially in inner cities where residents may take a negative view toward the police.157

2. Lack of Consent and Police Misconduct Courts rarely engage in detailed analyses of whether the government meets its burden to prove a suspect’s consent.158 In a three-year study of courts deciding consent issues, there were “only a handful of cases—out of hundreds of decisions—in which the court analyzed the suspect’s particular subjective factors.”159 An even smaller fraction of the cases found that the suspect did not consent.160 Courts have found voluntary consent even in cases where the subjective factors would seem compelling, like low I.Q. or poor command of the English language.161 refuse consent that presents the constitutional problem.” Id. at 1189 (quoting State v. Brown, 156 S.W.3d 722, 726 (Ark. 2004)). Justice Marshall expressed concerns about this inherently coercive interaction in his dissenting opinion in Florida v. Bostick. See 501 U.S. 429,446 (1991) (Marshall, J., dissenting). In his dissent, Justice Marshall quoted a Florida court, that held “[t]he spectre of American citizens being asked, by badge-wielding police, for identification, travel papers—in short a raison d’etre—is foreign to any fair reading of the Constitution, and its guarantee of human liberties.” Id. at 443 (quoting Bostick v. State, 554 So. 2d 1153, 1158 (Fla. 1989) (quoting State v. Kerwick, 512 So. 2d 347, 348–49 (Fla. App. 1987) (quoting trial court order))). Bostick involved a suspicionless consent search on an interstate bus, where the officers wore bright green “raid” jackets and visibly displayed their badges—one officer even held a gun in a weapons pouch—while blocking the aisle that would have allowed Bostick to exit the bus. Id. at 444, 446. 156 See Lassiter, supra note 41, at 1177. Lassiter suggests some plausible reasons: (1) a desire to be exposed as a first step toward forgiveness and rehabilitation; (2) a desire to expose the wrongdoings of associates, relatives, and others in shared spaces; (3) a desire to avoid further suspicion and delay; and (4) perhaps, at some level, a forlorn sense of informal de facto plea bargaining with the law enforcement officer. Id.; see also Cole, supra note 92, at 19 (stating in its discussion of Bostick that “no ‘reasonable person’ would agree to a search of a bag that contained a pound of cocaine if he really believed he was free to say no without adverse consequences”); Strauss, supra note 36, at 239 (stating that when individuals consent to a search, they have “so much to lose personally by conceding to the officer.”). 157 See David T. McTaggart, Reciprocity on the Streets: Reflections on the Fourth Amendment and the Duty to Cooperate with the Police, 76 N.Y.U. L. Rev. 1233, 1234 (2001) (“Widespread abuse of police discretion has polarized the relationship between police and residents of urban communities, leaving each entity to regard the other with distrust and suspicion.”). 158 See Schneckloth, 412 U.S. at 230; Strauss, supra note 36, at 221–22. 159 See Strauss, supra note 36, at 222. 160 See id. 161 See id. at 222–24. Strauss discussed United States v. Hall, where the suspect’s I.Q. of 76 and psychological problems did not invalidate his ability to consent. See 969 F.2d 1102,

2012] Issues of Place and Race in “Knock and Talk” Policing 139

In the few cases where consent was not voluntary, courts eschewed subjective knowledge and focused instead on police misconduct.162

C. Two Fourth Amendments: Coercion versus Confidence The Schneckloth consent doctrine instituted a system where police may exploit a citizen’s ignorance of constitutional rights.163 This “creates two Fourth Amendments—one for people who are aware of their right to say no and confident enough to assert that right against a police officer, and another for those who do not know their rights or are afraid to assert them.”164 Even after consent is refused, police officers may be able to convince suspects to change their minds.165 There are two diverging perspectives regarding the nature of consent to search: some see the request as an honest appeal but others regard it as a demand where choice is illusory.166 The Supreme Court regards an officer and suspect’s interaction on equal terms: if the individual wishes to terminate the encounter, then the officer will oblige.167 Individuals met with requests for a search, however, often regard them as commands, where the individual’s ability to terminate the

1102, 1108 (D.C. Cir. 1992); Strauss, supra note 36, at 222–24. She also discussed Semelis v. State, where the suspect’s illiteracy and serious problems understanding English were not sufficient to overturn a finding of voluntary consent. See 493 S.E.2d 17, 20 (Ga. Ct. App. 1997); Strauss, supra note 36, at 222 n.37. 162 See Strauss, supra note 36, at 225. Police misconduct includes “threats to the suspect or his family, deprivation of necessities until the suspect consents, asserting an absolute right to search, and an unusual and extreme show of force.” Id. 163 See Lassiter, supra note 41, at 1177–80. Lassiter notes that “[p]olice officers are trained to exude confidence and command encounters lest they spiral out of control. Still, the most important factor in gaining consent is the cocksureness in asking for consent when no other option is apparent.” Id. at 1177. 164 Cole, supra note 92, at 31. 165 See Bradley, supra note 29, at 1112 (“Even if police are initially refused consent, they can often cajole the homeowner into giving it.”). 166 Compare Florida v. Royer, 460 U.S. 491, 497–98 (1983) (holding that a “person approached [by police] . . . need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way”), with Strauss, supra note 36, at 240– 41 (noting that most people interpret requests as demands, particularly when requests are made by authority figures). 167 See Housholder, supra note 66, at 1303–04 (discussing validation of the consent search as being grounded in notions of autonomy of the individual, and “even an ill- advised or foolish decision would have to be honored, in order to fully respect the individual.”); see, e.g., Royer, 460 U.S. at 497–98; Schneckloth 412 U.S. at 232 (“It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.”) (quoting Miranda, 384 U.S. at 477–78). 140 Boston College Journal of Law & Social Justice [Vol. 32:119 encounter is purely illusory.168 Courts have expressed a hesitance to recognize an encounter’s inherently coercive nature even in knock and talk insta nces in constitutionally protected dwellings.169 For many individuals, the mere presence of an armed and uni- formed police officer at their doorstep is coercive, particularly because many do not know the constitutional limits of law enforcement.170 Stud- ies show that “man’s innate tendency to obey authority can impair his decision making and, ultimately, dull the understanding with which he exercises his constitutional rights.”171 For example, Stanley Milgram’s Behavioral Study of Obedience demonstrated the willingness of individuals to obey instructions inconsistent with their own moral beliefs simply because they came, without physical threat, from an authority figure.172 Thus, requests to search homes are likely coercive because police officers have authority and, perhaps unintentionally, implicitly display means to enforce that authority.173 Psychological findings like Mil- gram’s “cast[] serious doubt [on the Supreme Court’s stance] . . . that

168 See Strauss, supra note 36, at 240–41. For example, Strauss states that “if a police officer came up to a person about to park his car and said, ‘Would you mind moving your car?’, most persons would do so, believing that they had to move their car.” See id. at 241; see also Tracey Maclin, “Black and Blue Encounters” —Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 249–50 (1991) (“Common sense teaches that most of us do not have the chutzpuh or stupidity to tell a police officer to ‘get lost’ after he has stopped us and asked for identification or questioned us about possible criminal conduct.”). 169 See United States v. Dickerson, 975 F.2d 1245, 1247, 1249 (7th Cir. 1992) (holding that consent to search home was voluntary when four police officers knocked loudly on its front door with their guns drawn and one officer stuck his foot in the door when an inhabitant of the dwelling opened it slightly); Adrian J. Barrio, Rethinking Schneckloth v. Bustamonte: Incorporating Obedience Theory into the Supreme Court’s Conception of Voluntary Consent, 1997 U. Ill. L. Rev. 215, 228 (discussing the presumption that non-custody of a suspect implies lack of coercion to necessitate a Miranda warning). 170 See Cole, supra note 92, at 34; Lassiter, supra note 41, at 1189–91. Cole also questions whether the ability to say no to a police request for consent is a choice at all for Afri- can-Americans and Hispanics, where fear of violent retaliation is a real concern. See Cole, supra note 92, at 33–34. In light of this, Tracey Maclin notes that “[a]n understandable and rational response . . . would be for black men to decline to cooperate and to question the officer’s right to conduct [a] stop.” Maclin, supra note 168, at 261–62. He recognizes, however, that “[t]he realities of the street . . . make challenging an officer’s authority out of the question for a black man.” Id. at 262. 171 Barrio, supra note 169, at 233. 172 See id. at 237. See generally Stanley Milgram, Behavioral Study of Obedience, 67 J. Ab- normal & Soc. Psychol. 371 (1963). 173 See Barrio, supra note 166, at 241–42. 2012] Issues of Place and Race in “Knock and Talk” Policing 141 custo dy is a necessary prerequisite for a finding of psychological coercion.”174 The Supreme Court created a Constitutional safeguard in Miranda v. Arizona by requiring warnings to dispel any coercion of those in custody.175 Police, however, need not give any similar warning to an individual during knock and talk.176 This design is intentional, argues Pro- fessor Tracey Maclin, because the Schneckloth Court was determined “not to create another Miranda.”177

D. Knock and Talk and the Creation of Exigent Circumstances The Supreme Court has permitted multiple exceptions—based on exigent circumstances—to the Fourth Amendment’s command that “no warrants shall issue, but upon probable cause.”178 One such exigent circumstance is the destruction of evidence, where police officers can enter private residences to seize evidence that they believe is being destroyed.179 Police must have probable cause of a crime before entering

174 Id. at 240; see also Strauss, supra note 36, at 239 (noting that the Milgram study does not analogize perfectly to the issue of consent searches, but points out that “people follow or obey a ‘request’ made by police officers in authority positions in situations where there is not only no ostensible benefit to do so, there is likely harm.”). 175 Miranda, 384 U.S. at 468–69. 176 See Bradley, supra note 29, at 1127. 177 Tracey Maclin, The Good and Bad News About Consent Searches in the Supreme Court, 39 McGeorge L. Rev. 27, 54 (2008). 178 U.S. Const. amend. IV; see Sonntag, supra note 38, at 629–30. 179 See Sonntag, supra note 38, at 629. Other exigent circumstances that allow for a warrantless entry include hot pursuit of a fleeing suspect and protection of the public or police. See John Mark Huff, Warrantless Entries and Searches Under Exigent Circumstances: Why Are They Justified and What Types of Circumstances Are Considered Exigent?, 87 U. Det. Mercy L. Rev. 373 (2010). In addition, the Court sanctioned the “search incident to arrest” doctrine, allowing for an officer to conduct a limited search for weapons upon arrest of a suspect to protect himself and the public. See Chimel v. California, 395 U.S. 752, 762–63 (1969). This search is limited only to the area within the suspect’s immediate control and cannot extend further than “the area from within which [the suspect] might gain possession of a weapon . . . .” Id. Also, the Supreme Court has sanctioned warrantless searches of automobiles upon probable cause since the 1920s. See Carroll v. United States, 267 U.S. 132, 153 (1925) (recognizing “a necessary difference between a search of a . . . dwelling house . . . and a search of a[n] . . . automobile, for contraband goods, where it is not prac- ticable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought”). This so-called automobile exception is, at its heart, a search based on exigent circumstances. See Chambers v. Maroney, 399 U.S. 42, 51 (1970) (“Carroll . . . holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.”). 142 Boston College Journal of Law & Social Justice [Vol. 32:119 to stop the destruction of evidence.180 In knock and talk situations, however, officers often obtain probable cause only after crossing through curtilage or approaching the front door.181 Even if police already have probable cause, they may choose to approach the door of a dwelling without a warrant and try knock and talk.182 The officer’s act of knocking on the door, however, sometimes forces suspects to destroy evidence that would otherwise be preserved, and thereby creates the very exigency that allows them to enter.183 The destruction of evidence exigency doctrine has its roots in Schmerber v. California.184 In Schmerber, police detained the suspect at a hospital after a car accident for drunken driving.185 Despite the suspect’s refusal, police instructed hospital workers to withdraw blood to test for intoxication.186 The Court upheld the search into the suspect’s body as lawful, stating that “[t]he officer in the present case . . . might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the ‘destruction of evidence.’”187 The Supreme Court reasoned that the suspect’s blood alcohol content would dissi-

180 See Vale v. Louisiana, 399 U.S. 30, 34 (1970) (“[O]nly in ‘a few specifically established and well-delineated’ situations may a warrantless search of a dwelling withstand constitutional scrutiny, even though the authorities have probable cause to conduct it.”) (citing Katz v. United States, 389 U.S. at 357). 181 See King, 131 S. Ct. at 1854; Bradley, supra note 29, at 1099, 1104. 182 See Bradley, supra note 29, at 1099 (“Under ‘knock and talk,’ police go to people’s residences, with or without probable cause, and knock on the door to obtain plain views of the interior of the house, to question the residents, to seek consent to search, and/or to arrest without a warrant, often based on what they discover during the ‘knock and talk.’”). 183 See id.; Swingle & Zoellner, supra note 40, at 28 (describing the facts of United States v. Scroger, 98 F.3d 1256 (10th Cir. 1996), by stating that “police officers responding to a call about a suspected methamphetamine laboratory who are met at the door by an overpower- ing chemical smell, together with a man whose hands are stained with red phosphorous and who is carrying a hot plate, who tries to slam the door in their faces, may pursue the man into the house”). 184 See Schmerber v. California, 384 U.S. 757, 770–71 (1966); Sonntag, supra note 38, at 632. 185 Schmerber, 384 U.S. at 758. 186 Id. at 758–59. 187 Id. at 770 (quoting Preston v. United States, 376 U.S. 364, 367 (1964)). Critics de- rided the Schmerber opinion for its lack of clarity on the underlying constitutional basis for the search, as the search could have been incident to arrest or necessitated by exigent circumstances. See Salken, supra note 39, at 293 (“[D]oes the word ‘incident’ suggest that the search was justified under the more traditional search-incident-to-arrest exception . . . ?”); Sonntag, supra note 38, at 633 (“[W]hether it was destruction of evidence, search incident to arrest, or a combination of the two that justified the warrantless search is not readily apparent.”). 2012] Issues of Place and Race in “Knock and Talk” Policing 143 pate while authorities got a warrant, thus destroying the evidence of intoxication.188 The Supreme Court declined to clarify the destruction of evidence exigency standard when it again arose in Vale v. Louisiana.189 In Vale, the Court held the destruction of evidence exigency not available when, upon entering the dwelling, officers found nobody within to destroy the evidence.190 The Court did not object to the initial entry into the dwelling, even though the search for evidence within the dwelling was illegal.191 Taken to its extreme, Vale’s nebulous standard permits police to enter virtually any dwelling with only a minimal or non-existent threat that evidence may be destroyed.192

E. Kentucky v. King and its Effect on Exigent Circumstances In King, the Supreme Court decided the extent of the destruction of evidence exigency requirement and resolved a circuit split over when police impermissibly create exigent circumstances.193 The Court, assuming the existence of exigent circumstances, held that the Fourth Amendment is not violated when officers “do not gain entry to premises by means of an actual or threatened violation . . . .”194 This, in turn, reduces the protection of individuals from warrantless policing tactics.195

188 See Schmerber, 384 U.S. at 770–71. The court also noted that this search involved an intrusion into the body, and distinguished the inquiry from the law of search and seizure in the property context. See id. at 767–68. Nevertheless, the Court cited to Schmerber in cases involving intrusions into non-bodily property. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 742–43, 750 (1984); Vasquez v. United States, 454 U.S. 975, 988 (1981) (Brennan, J., dissenting). 189 See Vale, 399 U.S. at 35; Salken, supra note 39, at 297 (“Vale can be cited in virtually every case in which one wishes to argue that threatened destruction of evidence justifies a warrantless entry, and its ambiguities frequently allow it to be cited by both sides.”). 190 See Vale, 399 U.S. at 34. 191 See id.; Salken, supra note 39, at 295 (“[T]he Court may have tacitly viewed the initial entry and limited search as justified in the circumstances.”). 192 See Salken, supra note 39, at 295–97 (stating that mere arrest of a suspect outside of a dwelling may be enough to fulfill the Vale standard and permit officers to search the dwelling for those inside who may destroy evidence). 193 King, 131 S. Ct. at 1862; see United States v. Coles, 437 F.3d 361, 370 (3rd Cir. 2006); United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004); United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990); United States v. Webster, 750 F.2d 307, 327 (5th Cir. 1984). 194 King, 131 S. Ct. at 1862. 195 See id.; Salken, supra note 39, at 288 (arguing that, without guidance from the Su- preme Court, circuit courts have been too expansive in their interpretation of the exigent circumstances exception). 144 Boston College Journal of Law & Social Justice [Vol. 32:119

Each of the split circuits’ proposed tests creates difficulties.196 For example, the Eighth Circuit takes the position that police tend to create exigent circumstances with any action they take.197 Therefore, the use of knock and talk is a means of seeking information or consent to search, and destruction of evidence is not a foreseeable result.198 Courts are also likely to rely on the officer’s judgment in determining whether the sounds heard from within the apartment were indeed the destruction of evidence.199 For example, the trial court in King permitted a warrantless entry into an apartment because the officers believed that “evidence was possibly being destroyed based on the sound

196 See Salken, supra note 39, at 324 (noting that, in discussing the importance of individual constitutional rights, “[m]ost of the circuits do not encourage police officers to seek warrants whenever possible”). The Second Circuit is the most deferential of the circuit courts in determining whether police can enter a dwelling based on destruction of evidence exigent circumstances. See King v. Commonwealth, 302 S.W.3d 649, 656 (Ky. 2010); United States v. MacDonald, 916 F.2d 766, 772 (2nd Cir. 1990) (“[T]he fact that the agent may be ‘interested’ in having the occupants react in a way that provides exigent circumstances and may ‘fully expect[]’ such a reaction does not invalidate action that is otherwise lawful.”) (quoting Horton v. California, 496 U.S. 128, 129 (1990)). As long as the police officers act in a lawful manner, they are incapable of impermissibly creating exigent circumstances. See MacDonald, 916 F.2d at 772. Bryan Abramoske notes that the Court in MacDonald does not provide a definition of lawfulness. See Abramoske, supra note 31, at 576. The Third, Fifth, and Eighth circuits have held that an officer’s bad faith is not always required to impermissibly create exigent circumstances, looking in part to the reasonableness of the officer’s actions. See Coles, 437 F.3d at 370; Gould, 364 F.3d at 590; Duchi, 906 F.2d at 1284. 197 See Duchi, 906 F.2d at 1284. 198 See Abramoske, supra note 31, at 579–80 (suggesting that courts should apply an objective test to determine whether police officers intentionally created exigent circumstances). Abramoske notes that “[i]t is often difficult . . . for courts to precisely determine what an officer intended to accomplish during an investigation.” Id. at 579. In addition, “[b]y the time a case reaches the court, police officers can think of justifications for why they used an investigative tactic, even if those reasons did not actually factor into their conduct.” Id. After spending a year in the company of New York City police officers, Co- lumbia Law Professor H. Richard Uviller noted: When cops lie, however, detection is apt to be difficult. In many cases, the cop steps up to the plate as the heavy hitter, badge shining, tone official, de- meanor cool. Without apparent strain or bravado, the cop on the stand may appear as a modest hero, a competent collector of evidence, a precise narra- tor of the critical events. The incidents the cop relates are usually known only to one or two other cops, who might coordinate their recollections. Even when possible to procure, contradiction of the cop’s version from other witnesses is often weak and flawed by bias. H. Richard Uviller, Tempered Zeal: A Columbia Law Professor’s Year on the Streets with the New York City Police 112 (1988). 199 See King, 131 S. Ct. at 1862; Salken, supra note 39, at 288 (outlining the three different approaches that courts use, all of which involve crediting police testimony to some extent). 2012] Issues of Place and Race in “Knock and Talk” Policing 145 of movement inside the apartment.”200 That standard could allow police to enter a dwelling on almost any sound of movement or even a toilet flush.201 Justice Sotomayor expressed this concern during King’s oral argument, stating that “any police officer will come in and say: In my experience, most drug dealers destroy the evidence when we knock.”202 The Supreme Court resolved the circuit split by stating that police cannot impermissibly create exigent circumstances unless they attempt to “gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.”203 In the closest the Court has come to directly discussing knock and talk, it noted that the inhabitants need not come to the door, speak with officers, or allow a search.204 gIn Kin , however, the Supreme Court held that no actual or threatened violation of the Fourth Amendment occurred, despite the officers’ threat to make a forced entry into the apartment.205 While the Court emphasized that they assumed exigency for the sake of argument, the King decision creates more difficulty for suspects looking to cast doubt upon claims of exigent circumstances.206 Police testimony is often very persuasive at trial and there is frequently little opportunity or ability to impeach an officer on the stand.207 Thus, juries or judges are likely to defer to an officer’s judgment that exigent circumstances existed when he or she entered the dwelling.208 Officers

200 King, 302 S.W.3d at 652. 201 See Salken, supra note 39, at 326 (“[C]ourts may find that destruction of evidence in narcotics cases is so prevalent that warrantless searches will be permitted whenever there is probable cause to believe narcotics are present.”). Geoffrey Sonntag argues that the Su- preme “Court should adopt a standard called the ‘probable cause-probable cause’ rule.” Sonntag, supra note 38, at 651. This rule would require that police not only have probable cause to believe that a crime is being committed within a dwelling, but in addition, probable cause to believe that evidence is actually being destroyed before engaging in a warrantless entry. See id. at 651–52. 202 Transcript of Oral Argument at 13, Kentucky v. King, 131 S. Ct. 61 (2010) (No. 09– 1272). 203 King, 131 S. Ct. at 1862. 204 See id. The Supreme Court, like the Kentucky Supreme Court, assumed for the sake of argument than an actual exigency existed. See id. 205 Id. at 1854, 1862. 206 See id. at 1862; Linda Greenhouse, Justice in Dreamland, N.Y. Times (May 18, 2011, 9:42 PM), http://opinionator.blogs.nytimes.com/2011/05/18/justice-in-dreamland/ (examining the exigent circumstances analysis in King). Linda Greenhouse discusses the disconnect between how the Supreme Court views citizen-police interactions and how citizens themselves view them, stating “I don’t know about other people, but I have never found an uninvited encounter with the police to be a source of comfort.” Id. 207 See Uviller, supra note 198, at 112. 208 See King, 131 S. Ct. at 1865 (Ginsburg, J., dissenting) (“How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing

146 Boston College Journal of Law & Social Justice [Vol. 32:119 may also take advantage of this deference and rely more on their own judgment to determine whether exigent circumstances exist, thereby circumventing the warrant process.209

IV. Storming the Castle: Knocking Down the Fourth Amendment in Inner Cities The Supreme Court seems unlikely to consider the realities and effects of knock and talk, regardless of whether its application is in a discriminatory manner.210 Simply because a particular policing technique is considered constitutional, however, does not necessarily mean it should be used.211 Knock and talk reduces the level of trust between citizens of the inner cities and the police that are supposed to protect them.212 It diminishes the sense of safety and security that those citizens have within their dwellings.213 The warrant requirement is important in policing the boundaries between law enforcement and the constitu-

sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”). 209 See Greenhouse, supra note 206 (“If instead of pounding on the door, the [Ken- tucky Supreme Court] noted, the police had quietly gone to a magistrate and obtained a search warrant, the people in the apartment would have had no reason to start scurrying around destroying their valuable contraband.”). 210 See Maclin, supra note 177, at 54 (arguing that the Court in Schneckloth v. Bustamonte was attempting to avoid the creation of another Miranda warning). See generally Kentucky v. King, 131 S. Ct. 1849 (2011) (omitting mention of the phrase “knock and talk” in its opinion). 211 See Cole, supra note 92, at 53 (arguing that the “Court’s removal of meaningful Fourth Amendment review allows the police to rely on unparticularized discretion, unsub- stantiated hunches, and nonindividualized suspicion. Racial prejudice and stereotypes linking racial minorities to crime rush to fill the void”). 212 See id. at 46 (discussing indiscriminate police stops and the hostility and mistrust that it fosters towards police); Bradley, supra note 29, at 1104–05; Maclin, supra note 168, at 255–57. 213 See Henry Pierson Curtis, Cops ‘Knock and Talk’ Tactic Draws Flak After Near-Fatal Shooting, Orlando Sentinel, Oct. 2, 2010, http://articles.orlandosentinel.com (follow the “Index by Date” hyperlink; then select “2010” in the “Year” field, “Oct” in the “Month” field, and “2” in the “Day” field; then follow “Cops’ ‘knock-and-talk’ tactic draws flak after near-fatal shooting” hyperlink). In one instance, a homeowner—fearful of recently es- caped convicts—answered an early-morning knock at his door armed with a shotgun; he did not know that the knock came from a police officer and, when the officer’s flashlight blinded him, he fired the shotgun but missed the officer. Id. In response, the officer quickly drew his gun and shot the homeowner through the chin. Id. The officer had stopped by the house in a routine knock and talk procedure. Id. Doug Ward, director of a police-leadership program at Johns Hopkins University said “[y]ou have to wonder if it’s a wise policy . . . . Going to the house at that time of the morning is inherently dangerous for the officers and the residents.” Id. 2012] Issues of Place and Race in “Knock and Talk” Policing 147 tionally protected rights of American citizens.214 When society allows police to circumvent the warrant requirement, it implicitly creates two Fourth Amendments: one for minorities and the poor—the likely targets of knock and talk—and one for everybody else.215 Knock and talk brings the tensions between police and inner city citizens to their front doors.216 The special protection of the home for minorities and the poor is significantly reduced when knock and talk is disproportionately applied.217 The curtilage doctrine, coupled with the lack of curtilage in most inner city dwellings, allows police to get closer to city dwellers than to suburban or rural residents.218 Frequent use of knock and talk in this environment can create the perception that one’ s home, considered by the Supreme Court to be one’s “castle,” is constantly under siege by the police.219 Discussing the legacy of Whren v. United States, David A. Harris stated that “[w]hatever else the Fourth Amendment does or used to do, it will no longer serve as a tool to prevent racially biased policing.”220 This applies to knock and talk, as its almost unquestioned acceptance by courts has arguably facilitated and encouraged racially-based policing.221 Whren prevents courts from looking at the actual motivation of

214 See Johnson v. United States, 333 U.S. 10, 13–14 (1948) (holding that “[t]he point of the Fourth Amendment, which is often not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of fettering out crime”). 215 See Cole, supra note 92, at 31, 44–45. 216 See Maclin, supra note 168, at 256–57 (“Black males learn at an early age that confrontations with the police should be avoided . . . .”); Swingle & Zoellner, supra note 40, at 25. 217 See Lewis v. United States, 385 U.S. 206, 211 (1966); Amsterdam, supra note 55, at 349; Bradley, supra note 29, at 1122 (arguing that “‘knock and talk’ repeatedly leads to serious intrusions into the privacy of the homeowner, and to regular avoidance by police of the arrest and search warrant requirements.”); Foley, supra note 43, at 339–41. 218 See Leonetti, supra note 44, at 310–11, 316–17 (“If privacy is confined only to areas that are exclusively occupied by a single tenant, then most Americans would be left with only a few hundred square feet in which to confine themselves from the increasing governmental intrusions of modern life.”). 219 See Minnesota v. Carter, 525 U.S. 83, 94 (1998); Cole, supra note 92, at 44; Leonetti, supra note 44, at 313–14 (noting the intimidation that occurs when multiple police officers descend upon a dwelling during the night). 220 David A. Harris, Addressing Racial Profiling in the States: A Case Study of the “New Feder- alism” in Constitutional Criminal Procedure, 3 U. Pa. J. Const. L. 367, 376 (2001). 221 See Cole, supra note 92, at 44–45; Bradley, supra note 29, at 1099 (noting the vast acceptance of knock and talk in both courts of appeal and state courts); Harris, supra note 94, at 677–78; Leonetti, supra note 44, at 311–12. 148 Boston College Journal of Law & Social Justice [Vol. 32:119 police officers, while McCleskey v. Kemp may prevent any disparate impact statistical challenges.222 Knock and talk, however, still has a negative effect when applied disproportionately to citizens of inner city neighborhoods.223 For example, targeting minority populations with techniques such as knock and talk can perpetuate negative stereotypes and distrust of authority within the community.224 Knock and talk relies heavily on the discretion of police officers, with no probable cause or warrant requirement to serve as a check on their actions.225 Therefore, police often rely on intuition or hunches in deciding on which doors to knock.226 Subtle and uncon-

222 See Whren v. United States, 517 U.S. 806, 813 (1996); McCleskey v. Kemp, 481 U.S. 279, 292–93 (1987). 223 See Cole, supra note 92, at 44–45 (noting that quality of life policing “relies heavily on inherently discretionary police judgments about which communities to target, which individuals to stop, and whether to use heavy-handed or light-handed treatment for routine infractions”). Cole questions the benefit of this approach, asking “do the reduced crime rates justify subjecting inner-city residents to more frequent and intrusive searches and seizures?” Id. at 45. Scholars have debated whether “quality of life” policing has been successful in reducing the levels of crime in areas with high levels of illegal activity. See id. at 44–45; Sarah Lyons & Nastassia Walsh, Justice Policy Institute, Money Well Spent: How Positive Social Investments Will Reduce Incarceration Rates, Im- prove Public Safety, and Promote the Well-Being of Communities 21 (2010). In Washington, D.C., for example, there has been an increase in spending on policing as compared to a decrease in spending on social services and programs. Lyons & Walsh, supra, at 9. Spending on corrections increased by 25.3% from 2005 to 2009, while spending on social programs such as the D.C. Public Schools, the Department of Mental Health, and the Department of Housing and Community Development decreased 17.86%, 19.48%, and 30.42%, respectively, from 2008 to 2010. Id. at 9–10. These spending changes occurred despite a decrease in crime rates, with 2009 marking one of the lowest homicide rates in the history of the city. Id. at 11. With respect to the increase in arrests, African- Americans are overrepresented in the criminal justice system, making up eighty-nine percent of those in custody, despite making up only fifty-four percent of the population. Id. at 11, 17. Sarah Lyons and Nastassia Walsh recommend that law enforcement efforts should focus “on the most serious offenses rather than quality of life offenses” and “[a]ddress racial and income disparities in arrest and incarceration practices.” Id. at 21. Even if quality of life policing sometimes successfully reduces crime in cities or neighborhoods, its effect on the targeted population should still be noted. See Harris, supra note 98, at 126– 28. Harris notes that, for community policing to be successful, trust is required between the community and the police officers who work in that community. See id. Policing methods that “create the perception of racial and other biases in law enforcement,” however, destroy that trust. Id. at 128. 224 See Bradley, supra note 29, at 1104–05; Foley, supra note 43, at 339. 225 See Bradley, supra note 29, at 1099, 1104–05. The Supreme Court has held that a hunch does not rise to the level of reasonable suspicion, but reasonable suspicion is not required to engage in a knock and talk. See David Louis Raybin, Who’s There? The Parameters of Police “Knock and Talk” Tactics , 43 Tenn. B.J. 12, 13 (2007). 226 See Bradley, supra note 29, at 1104–05 (arguing that knock and talk is a targeted technique used by police to enter the homes of individuals suspected of crimes, even during the investigatory stages). 2012] Issues of Place and Race in “Knock and Talk” Policing 149 scious biases of officers and society at large may perpetuate stereotypes that members of a certain race or community are subject to intrusive police action.227 Knock and talk is generally used to detect drug activity in inner cities, but “one wonders . . . if police would find similar law- breaking if they focused on affluent Caucasian neighborhoods.”228 When negative stereotypes are perpetuated, a sense of antagonism can develop between the police and the public they are supposed to protect.229 Maclin states that “[t]oday, when the pressure to ‘get tough’ on crime is mixed with biased, over-aggressive, and sometimes hostile police conduct, it is not surprising that tensions between the police and the local community explode in black neighborhoods.”230 Because of

227 See Terry v. Ohio, 392 U.S. 1, 21–22 (1968) (holding that an objective standard of the officer’s seizure of an individual is required because “[a]nything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.”); Foley, supra note 43, at 339–41 (stating that “when police do not have to give reasons for discretionary searches or seizures, conscious and unconscious racism may prevail.”). The Honorable Harold Baer, Jr., a federal judge of the Southern District of New York, criticized the discretion allowed to police for using “hunches” in targeting individuals suspected of crime. See Harold Baer, Jr., Got a Bad Feeling? Is That Enough? The Irrationality of Police Hunches, 4 J.L. Econ. & Pol’y 91, 100 (2007). Judge Baer argues that “[u]nlike the ordinary citizen, police officers face hostile and frightening situations daily and consequently fall easy victim to unconscious feelings of bias, prejudice, and the availability heuristic.” Id. Judge Baer states that “even the most well-intentioned police officer has unconscious biases, which adversely affect her ability to form accurate hunches.” Id. at 99. 228 Foley, supra note 43, at 341 (stating that police “would find cocaine, marijuana, pre- scription drugs—the whole apothecary. But these affluent whites just do not look like criminals to many people in our society, especially to the police”) (footnote omitted). Pro- fessor Albert Alschuler discusses five reasons why courts should not defer to police officer hunches: unreliability, racial bias, disparate racial burden, perjury of police officers, and lack of reviewability. See Albert W. Alschuler, The Upside and Downside of Police Hunches and Expertise, 4 J.L. Econ. & Pol’y 115, 119 (2007). With respect to disparate racial burden (or racial taxation), Alschuler notes that “[r]ational hunches that maximize the number of arrests and give taxpayers the most bang for the buck can subject innocent blacks to un- wanted encounters with the police at a far higher rate than innocent whites.” Id. at 127–28. 229 See Cole, supra note 92, at 170–71 (“Where a community views the criminal law as just, such cooperation can be assumed. But where a community views the law as unjust, enforcement is subverted.”). Polls affirm these perceptions, as a U.S. Justice Department Survey administered in 1995 found that thirty-one percent of blacks nationwide expressed “a great deal or quite a lot” of confidence in the police, compared to sixty-five percent of whites. Id. at 170–71. The Supreme Court glossed over this antagonism in King by stating that “[o]fficers are permitted—indeed, encouraged—to identify themselves to citizens, and ‘in many circumstances this is cause for assurance, not discomfort.’” See King, 131 S. Ct. at 1861 (quoting United States v. Drayton, 536 U.S. 194, 204 (2002)). The Court went on to state that “[c]itizens who are startled by an unexpected knock on the door or by the sight of unknown persons in plain clothes on their doorstep may be relieved to learn that these persons are police officers.” Id. 230 Maclin, supra note 168, at 243–44. 150 Boston College Journal of Law & Social Justice [Vol. 32:119 these tensions, individuals living in inner cities are more likely to see police as hostile, even if they are not doing anything illegal.231 When viewed in the context of the inner city, the justification for knock and talk as a consensual encounter between state and citizen is implausible.232 The minority citizen faces two choices when a police officer comes knocking on his door: consent to the officer despite an un- friendly and hostile presence, or reject and heighten suspicions.233 Ul- timately, knock and talk has few limitations, but that does not mean it should be a commonly employed policing technique.234

Conclusion Scholars have pontificated about pretextual stops of minorities on the roadways, but police also target minorities in other locations. Knock and talk is one tool in the arsenal of police techniques that can be an extremely powerful means to obtain information and evidence. Because of the settled case law, the Supreme Court seems unlikely to addr ess the problems inherent in knock and talk. Courts that reaffirm its constitutionality neglect to note its effects on communities. Furthermore the curtilage doctrine does not provide sufficient protection to high-density, multiple occupancy apartment buildings. Because warrant and probable cause requirements do not apply to knock and talk, there is no restriction on its targets or frequency of use. While knock and talk is successful in obtaining evidence of criminal behavior, society should question whether it is willing to sacrifice the sanctity of the home for the sake of uncovering criminality.

231 See Harris, supra note 98, at 11, 117; Harris, supra note 94, at 677–78; Maclin, supra note 168, at 255–57. Harris argues that “racial profiling and other racially biased methods of law enforcement corrode the basic legitimacy of the entire American system of justice, from policing to the courts to the law itself.” See Harris, supra note 98, at 117. He also discusses how high-discretion police tactics “allow police to detain, question, and search people who have exhibited no concrete evidence of wrongdoing . . . .” Id. at 11. 232 See Strauss, supra note 36, at 244. 233 See Harris, supra note 98, at 36–37 (describing how police obtain consent to search vehicles on the highway); Harris, supra note 94, at 677–78; Maclin, supra note 168, at 255– 57; Swingle & Zoellner, supra note 40, at 25. Harris states that, for many African-Americans, “[i]f you don’t give consent, the officer will push you. If you persist, the officer will imply that you have something to hide . . . .” Harris, supra note 98, at 36–37. 234 See Bradley, supra note 29, at 1104 (noting that officers are scrutinized when a police action includes severe coercion, such as yelling and drawn firearms). TWOMBLY AND IQBAL: EFFECTS ON HOSTILE WORK ENVIRONMENT CLAIMS

Michael O’Neil*

Introduction In 2002, the United States Supreme Court ended the controversy surrounding pleading requirements for employment discrimination plaintiffs.1 Less than one decade later, however, the Court handed down two decisions—Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal— that changed those standards and caused more confusion for aggrieved plaintiffs.2

* Managing Editor, Boston College Journal of Law & Social Justice (2011–2012) 1 See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 509–10 (2002); Elizabeth M. Schnei- der, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. Pa. L. Rev. 517, 527 (2010); A. Benjamin Spencer, Pleading Civil Rights Claims in the Post-Conley Era, 52 How. L.J. 99, 117 (2008). Starting in the 1960s, many courts began applying heightened pleading standards to civil rights claims. See Spencer, supra, at 111. Indeed, “[b]y the early 1990s, most circuits had embraced the rule that a heightened pleading standard—meaning a requirement to plead factual details in support of general allegations—applied to civil rights claims.” Id. at 113. In 2002, through its Swierkiewicz decision, the Court “unanimously rejected the particular- ized pleading requirement” that some circuits were imposing on such claims. Id. at 117. 2 See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57 (2007); see also Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests,

151 152 Boston College Journal of Law & Social Justice [Vol. 32:151

The Supreme Court enacted the Federal Rules of Civil Procedure in 1938 to create a receptive environment in the Federal Courts and to ensure equality of access among all potential litigants.3 Since its enactment, Rule 8 has spurred debate among circuit courts, the Supreme Court, and legal commentators alike as to what a plaintiff’s complaint must assert.4 A plaintiff’s initial hurdle is a motion to dismiss, filed by the defendant pursuant to Rule 12(b) of the Federal Rules.5 The debate continues as a result of the new standard that arguably creates stricter pleading requirements and results in dismissal of a higher percentage of claims.6 This standard disproportionately affects potential civil rights plaintiffs, more so than any other class of claimants.7 As a result, there is much scholarly debate surrounding the application of these new pleading standards to civil rights, and particularly to employment discrimina-

Destabilizing Systems, 95 Iowa L. Rev. 821, 823, 846 (2010); Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. Ill. L. Rev. 1011, 1059 (“The Supreme Court’s plausibility paradigm abrogated fifty years of pleading jurisprudence and left in its place a vague and undefined standard.”). 3 See Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 5, 10 (2010) (arguing that Twombly and Iqbal mark “a continued retreat from the principles of citizen access, private enforcement of public policies, and equality of litigant treatment in favor of corporate interests and concentrated wealth”); Jeffrey W. Stempel, Politics and Sociology in Federal Civil Rulemaking: Errors of Scope, 52 Ala. L. Rev. 529, 535 (2001) (“The 1938 Rules liberalized the rules of pleading[,] . . . making it easier for litigants, even those of modest means and limited expertise, to have their day in court.”). Professor Arthur Miller cites a case overturning the dismissal of a pro se immigrant’s complaint, written in broken English, as an illustration of the goals of the system under the new federal rules. See Miller, supra, at 6. 4 See Fed. R. Civ. P. 8(b); Swierkiewicz, 535 U.S. at 509–10. Compare Miller, supra note 3, at 14 (arguing that, “until Twombly in 2007[,] the Supreme Court stood firm on its commitment to the rulemaking process and to the principle of access”), with Spencer, supra note 1, at 123–24 (arguing that even before Twombly, courts applied a stricter standard at the pleading stage). Swierkiewicz is an example of the Supreme Court resolving a circuit split over the appropriate interpretation of Rule 8. See Swierkiewicz, 535 U.S. at 509–10. 5 Fed. R. Civ. P. 12(b)(6) (requiring the dismissal of complaints “for failure to state a claim upon which relief may be granted”). 6 See Miller, supra note 3, at 23–24 (arguing that Twombly and Iqbal advance a new standard that is precisely what the drafters of the Federal Rules sought to avoid); Schneider, supra note 1, at 532 (citing empirical studies that show that cases citing Twombly are more likely to dismiss a civil rights claim than those cases that do not). But see Victor E. Schwartz & Christo- pher E. Appel, Rational Pleading in the Modern World of Civil Litigation: The Lessons and Public Policy Benefits of Twombly and Iqbal, 33 Harv. J.L. & Pub. Pol’y 1107, 1126 (2010) (arguing that “the vision of providing ‘fair notice’ of a claim remains very much intact in the Federal Rules after Iqbal and Twombly”); Spencer, supra note 1, at 123–24 (arguing that many courts already required substantially factual pleadings even before Twombly). 7 See Schneider, supra note 1, at 520. 2012] Twombly & Iqbal and Hostile Work Environment Claims 153 tion claims.8 Critics argue that “given the often indirect and subtle nature of employment discrimination, heightened pleading requirements make it very difficult for plaintiffs to plead the factual specificity necessary to withstand a motion to dismiss.”9 Heightened pleading standards have a greater effect on these claims because the often dispositive issues of “motivation, state of mind, and insidious practices are hidden by agents and employees . . . .”10 Furthermore, the Twombly and Iqbal paradigm arguably introduced judicial subjectivity at the pleading stages, leaving lower courts unsure how to apply the standards.11 The result is that judges, some of whom look unfavorably upon employment litigation, may decide cases based on personal views before the plaintiff has an opportunity to investigate.12 Scholars and courts have two divergent interpretations of the new pleading standards: one allows judges to dismiss claims and therefore restricts access to federal courts, and the other is more flexible, particularly in the context of employment cases.13 This Note outlines these two approaches and argues that adopting the latter approach is a start to remedying the unjust results that plaintiffs may face in discrimination suits.14 Because of the prevailing judicial attitude toward employment

8 See Joseph A. Seiner, After Iqbal, 45 Wake Forest L. Rev. 179, 195–96 (2010) (proposing a pleading standard for Title VII claims in the wake of Iqbal ); Seiner, supra note 2, at 1026–27 (proposing a pleading standard for Title VII claims after Twombly). 9 Schwartz & Appel, supra note 6, at 1143. 10 Miller, supra note 3 at 45–46. 11 See Schwartz & Appel, supra note 6. at 1138; Adam N. Steinman, The Pleading Problem, 62 Stan. L. Rev. 1293, 1312–13 (2010). Professor Steinman notes that under one interpretation of the cases, a judge is merely to read the complaint and then “‘draw on judicial experience and common sense’ to determine whether a claim is sufficiently ‘plausible.’” Steinman, supra, at 1313 (quoting Iqbal, 129 S. Ct. at 1950). Such a reading could have discriminatory effects. See Schneider, supra note 1, at 542. 12 See Miller, supra note 3 at 16, 22; Schneider, supra note 1, at 519, 564; see also Lee Reeves, Pragmatism over Politics: Recent Trends in Lower Court Employment Discrimination Juris- prudence, 73 Mo. L. Rev. 481, 482–83 (2008). Professor Reeves notes that while many scholars argue that judicial aversion to such claims are ideological, a better indicator of judicial attitude toward employment claims is the overall workload of the judge’s district or circuit. See Reeves, supra, at 482–83. 13 See Seiner, supra note 2, at 1015; Spencer, supra note 1, at 126. Professor Spencer argues that two approaches stemmed from Twombly. See Spencer, supra note 1, at 126. The first approach was an adherence to the pre-Twombly notice pleading requirements, treating civil rights claims “with a wide degree of latitude.” Id. The second approach “takes its cues from Twombly’s strict language and abrogation of Conley as authorizing substantial threshold scrutiny, permitting insufficiently substantiated civil rights claims to be dismissed.” Id. 14 See Ramzi Kassem, Implausible Realities: Iqbal’s Entrenchment of Majority Group Skepticism Towards Discrimination Claims, 114 Penn. St. L. Rev. 1443, 1483 (2009); Seiner, supra note 8, at 228. 154 Boston College Journal of Law & Social Justice [Vol. 32:151 discrimination claims, treating Twombly and Iqbal as granting a license to dismiss would be particularly damaging to these plaintiffs.15 This Note looks at the possible pleading requirements of hostile work environment discrimination under the two interpretations.16 Read- ing judicial discretion into pleadings would negatively affect potential hostile work environment plaintiffs in numerous ways.17 First, judges are generally averse toward employment discrimination plaintiffs and their claims.18 Thus, hostile work environment claims, as a subset of employment discrimination claims, will receive this initial level of bias.19 Sec- ond, judges appear to be increasingly more likely to dispose of hostile work environment cases before they reach a jury, possibly because of bias toward women or the problematic nature of asserting these claims.20 Third, the hostile work environment doctrine already incorporates an element of “common sense” in its analysis.21 Allowing a further injection of “judicial experience and common sense” at the pleading stages could theoretically grant judges increased discretion.22 This increased discretion could result in dismissal of meritorious cases, but will almost certainly result in inconsistent application of the law.23 There-

15 See Schneider, supra note 1, at 519. Particularly in light of Iqbal ’s assertion that “judicial experience and common sense” play a part in the judge’s pleading analysis, pleading an objectively hostile work environment will be increasingly difficult given the literature that evidences judicial opposition to such claims. See Iqbal, 129 S. Ct. at 1949–50; M. Isabel Medina, Matter of Fact: Hostile Environments and Summary Judgments, 8 S. Cal. L. & Women’s Stud. 311, 312–13, 315 (1999); Reeves, supra, note 12, at 482. 16 See Stephen R. Brown, Reconstructing Pleading: Twombly, Iqbal, and the Limited Role of the Plausibility Inquiry, 43 Akron L. Rev. 1265, 1296 (2010); Kassem, supra note 14, at 1445– 46, 1481; infra notes 209–58. 17 See Elisabeth A. Keller & Judith B. Tracy, Hidden in Plain Sight: Achieving More Just Re- sults in Hostile Work Environment Sexual Harassment Cases by Re-Examining Supreme Court Prece- dent, 15 Duke J. Gender L. & Pol’y 247, 258 (2008); Schneider, supra note 1, at 542–43 (arguing that judicial discretion is a problem in areas where subtle issues of credibility and materiality of facts are frequently meshed with the law). Lower courts have had trouble determining how to evaluate the facts of hostile work environment cases. See Keller & Tracy, supra, at 258. Therefore, judicial discretion in this area is problematic. See Schneider, supra note 1, at 542–43. 18 See Schneider, supra note 1, at 532, 564. 19 See id. 20 See Medina, supra note 15, at 330; Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev. 705, 709–10 (2007). 21 See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998). 22 See Miller, supra note 3, at 22. 23 See Steinman, supra note 11, at 1330. Compare Langford v. Int’l Union of Operating Eng’rs, No. 10 Civ. 1644(RJH), 2011 WL 672414, at *21 (S.D.N.Y. Feb. 23, 2011) (denying an employer’s motion to dismiss a hostile work environment claim where the employee’s allegations that a supervisor used derogatory terms and forced her to clean a locker containing lewd pictures were sufficient to state a claim), with EEOC v. Tuscarora Yarns, Inc.,

2012] Twombly & Iqbal and Hostile Work Environment Claims 155

fore, courts must adopt and apply the more liberal reading, as the strict standard of pleading will lead to unjust results that more acutely affect victims of discrimination.24 Part I of this Note explains the history and doctrine of Rule 8 and its pleading requirements. Part II sets forth the elements of a hostile work environment claim and highlights how pleading standard changes could directly affect potential hostile work environment claims. Part III then examines two divergent scholarly interpretations of the current pleading doctrine and applies them to hostile work environment cases that faced motions to dismiss at the trial level. Such application pro- duces divergent results. Part IV argues for an interpretation of Twombly and Iqbal that confers less judicial discretion than many critics believe the Supreme Court granted. The lower courts’ adoption of this interpretation will protect hostile work environment plaintiffs and others from heightened pleading standards, maintaining the federal courts as an avenue for claims to be heard.

I. Pleading History and Doctrine The Supreme Court interpreted Rule 8(a) to prohibit dismissal for failure to state a claim unless the plaintiff fails to allege facts that would allow relief.25 The Court established a plausibility requirement for complaints, and lower courts have applied the ruling to employment discrimination cases despite arguments that Bell Atlantic Corp. v. Twombly only applies in antitrust claims.26 The requirement consists of a two- pronged approach, where incredible claims are ignored and the remainder is analyzed for plausibility.27 A.e Pr -Twombly and Iqbal Pleading The Federal Rules of Civil Procedure, adopted in 1938, created a system premised on an open access model of the federal courts to “‘promote the ends of justice.’”28 The pleading standards set forth in

No. 1:09-CV-217, 2010 WL 785376, at *1 (M.D.N.C. March 3, 2010) (applying Iqbal and Twombly to grant a motion to dismiss hostile work environment claims—where allegations included sexual assault—based on the complaint’s lack of factual specificity). 24 See Kassem, supra note 14, at 1446; Steinman, supra note 11, at 1295. 25 See Conley v. Gibson, 355 U.S. 41, 45–46 (1957). 26 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Seiner, supra note 2, at 1029; see also Twombly, 550 U.S. at 596 (Stevens, J., dissenting). 27 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950–51 (2009). 28 Miller, supra note 3, at 3, 5 (quoting 5 Charles Alan Wright, et al., Federal Practice and Procedure § 1029 (3d ed. 2002)); see Spencer, supra note 1, at 101. 156 Boston College Journal of Law & Social Justice [Vol. 32:151

Rule 8(a) are perhaps the most important part of this goal.29 Rule 8 requires only that the plaintiff set forth a “short and plain statement of the claim showing that the pleader is entitled to relief.”30 The drafters sought to rid the civil system of the burdensome writ-pleading regime, which had procedural and linguistic traps that kept plaintiffs out of federal court.31 The effort of the drafters resulted in a simplified pleading standard, dubbed notice pleading.32 Courts met the idea with some resistance, as many still required fact-specific pleadings to survive motions to dismiss.33 In 1957, the Supreme Court first articulated the notice pleading standard in Conley v. Gibson.34 Conley involved an employment action brought by African Ameri- can workers pursuant to the Railway Labor Act.35 A group of African American railway workers sued their union and alleged discriminatory practices by their employer in violation of the Act.36 The complaint included allegations that the collective bargaining agreement gave employees protection from discharge, and that the railroad violated it by replacing forty-five black workers with white workers.37 The plaintiffs alleged that the union failed to protect the black workers in the same manner as white workers, thus violating the Act’s guarantee of fair representation.38 The defendants argued that the complaint set forth gen- eralities and failed to provide specific facts.39 The Court answered: [T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.40 The Court further interpreted Rule 8(a) as prohibiting dismissal of complaints “for failure to state a claim unless it appears beyond a doubt

29 Spencer, supra note 1, at 101. 30 Fed. R. Civ. P. 8(a)(2). 31 See Miller, supra note 3, at 3–5; Spencer, supra note 1, at 104. 32 See Spencer, supra note 1, at 104–05. 33 See id. at 104. 34 See Conley, 355 U.S. at 47; Spencer, supra note 1, at 104. 35 Conley, 355 U.S. at 42. 36 Id. at 42–43. 37 Id. 38 Id. at 43. 39 Id. at 47. 40 Conley, 355 U.S. at 47 (quoting Fed. R. Civ. P. 8(a)(2)). 2012] Twombly & Iqbal and Hostile Work Environment Claims 157

that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”41 Many civil rights reforms soon followed the Court’s decision in Conley, as it “stood as a guarantor that civil rights (and other) claimants would at least be able to get into court . . . .”42 Conley, decided in 1957, pre-dated Title VII of the Civil Rights Act of 1964 (Title VII).43 The combination of Conley with Title VII opened the door to lawsuits by discrimination plaintiffs.44 As a result, many courts—particularly beginning in the 1960s and more persistently in the 1990s—began to impose higher burdens of pleading in civil rights cases, including employment discrimination.45 Some commentators suggest that the reason for this movement was individual judges’ views of these cases.46 The fact that the judiciary became more ideologically conservative during this time period is also a popular explanation.47 The Supreme Court finally addressed this movement in 1992, granting certiorari in Swierkiewicz v. Sorema N.A.48 In Swierkiewicz, a fifty- three year-old Hungarian employee filed suit after working for Sorema N.A., a re-insurance company in New York City.49 The company hired Swierkiewicz in 1989 as a senior vice president and chief underwriting officer.50 Six years later, Francois Chavel, Sorema’s CEO and a native of France, demoted Swierkiewicz and transferred his responsibilities to Nicholas Papadopoulo, a thirty-two year-old French national.51 Swierkiewicz had twenty-six years of experience compared to Papado-

41 Id. at 45–46. 42 Spencer, supra note 1, at 102, 105. Indeed, the ten years following Conley “happened to coincide with the core period of the American civil rights movement . . . .” Id. at 106. 43 See Seiner, supra note 2 at 1019. Significantly, along with Title VII, Conley pre-dated other landmark employment legislation such as the Age Discrimination in Employment Act of 1967. See id. 44 See id. at 1013; Spencer, supra note 1, at 102. 45 See Spencer, supra note 1, at 111, 113. While Professor Spencer focuses mostly on lower court decisions dismissing civil rights claims, the Supreme Court chose to address this issue with an employment discrimination claim, thereby indicating that the problem exists in both areas of the law. See id. at 119. 46 See Michael Selmi, Why Are Employment Discrimination Cases So Hard to Win?, 61 La. L. Rev. 555, 557 (2001) (describing the unusual difficulty of proving employment discrimination claims and arguing that it results largely from judicial bias). 47 See Reeves, supra note 12, at 482–83. 48 See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 509–10 (2002); Spencer, supra note 1, at 117. Swierkiewicz came out of the Second Circuit that, at the time, applied a heightened pleading standard to employment discrimination cases. Swierkiewicz, 534 U.S. at 509. The Supreme Court granted certiorari because some circuits had adopted the same approach but others had not. Id. at 509–10, 510 n.2. 49 Id. at 508. 50 Id. 51 Id. 158 Boston College Journal of Law & Social Justice [Vol. 32:151 poulos’ one.52 Chavel’s reason for the demotion was that he wanted to “energize” his underwriting department.53 Swierkiewicz sent a griev- ance to Chavel and requested a severance package; Chavel responded by giving Swierkiewicz two options: he could resign with no severance or be dismissed.54 He chose dismissal.55 Swierkiewicz alleged these facts in his complaint and also that he had been terminated because of his national origin in violation of Title VII, and because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA).56 The District Court dismissed the complaint and the Second Circuit affirmed because Swierkiewicz failed to plead facts establishing a prima facie case of discrimination under the framework of McDonnell Douglas Corp. v. Green.57 The issue in McDonnell Douglas, however, regarded allocation of proof in an employment discrimination case, and thus, established an evidentiary standard and not a pleading requirement.58 Therefore, the Supreme Court held that Rule 8(a)’s simplified pleading standard does not require one to establish a prima facie case of discrimination to survive a motion to dismiss.59 Notably, the unanimous decision did not quote Conley’s “no set of facts” language, and instead based the decision on its notice pleading function.60 The Court held that a complaint satisfies the pleading requirements when it gives “fair notice of the basis for petitioner’s claims.”61 The Court therefore ruled that the notice pleading standards apply to all civil actions, including employment discrimination claims and rejected the argument that Title VII complaints require greater particularity.62 Applying the established notice pleading standard to the facts of the case, the Swierkiewicz Court ruled that the “petitioner’s complaint easily

52 Id. 53 Swierkiewicz, 534 U.S. at 508. 54 Id. at 509. 55 Id. 56 Id. 57 Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). 58 Swierkiewicz, 534 U.S. at 510. 59 Id. at 515. 60 Id. at 514; Steinman, supra note 12, at 1322. 61 Swierkiewicz, 534 U.S. at 514. The Court does, however, use language similar to Conley’s “no set of facts” standard, noting that “‘[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’” Id. at 514 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Steinman, supra note 11, at 1322 (noting that Swierkiewicz did quote a case that paraphrased Conley’s language). 62 Swierkiewicz, 534 U.S. at 512–13. There are limited exceptions where this form of notice pleading does not apply, such as Rule 9(b) cases dealing with fraud. Id. 2012] Twombly & Iqbal and Hostile Work Environment Claims 159

satisfies the requirements of Rule 8(a).”63 The allegations of Title VII and ADEA violations, combined with a description of the termination, age difference, and actors’ nationalities gave “the respondent fair notice of what petitioner’s claims [are] and the grounds upon which they rest.”64 The defendants further argued that these pleading standards, applied to employment discrimination cases, would cause disgruntled employees to file meritless claims.65 The Court dismissed this argument as irrelevant, noting that “Rule 8(a) establishes a pleading standard without regard to whether a claim will succeed on the merits.”66

B. Twombly and Iqbal After Swierkiewicz, potential employment discrimination plaintiffs knew what they must allege to survive a motion to dismiss.67 The first explicit departure from the Conley “no set of facts” standard of Rule 8(a) pleadings, however, came in Twombly.68

1. Twombly Unlike Conley and Swierkiewicz, Twombly arose not from an employment discrimination dispute, but from a complex antitrust matter.69 When AT&T broke up in 1984, Incumbent Local Exchange Carriers (ILECs) gained singular control over the local telephone market but could not lawfully compete in the long-distance market.70 In 1996, Congress opened the market, taking away the ILEC’s monopoly over the local market and allowing them to compete in the long distance market.71 Congress required the ILECs to share their network with rival Competitive Local Exchange Carriers (CLECs).72 The Twombly plaintiffs comprised a class of consumers alleging that the ILECs failed to allow the CLECs to compete.73 Plaintiffs alleged violation of the

63 Id. at 514. 64 Id. 65 Id. 66 Id. at 515. 67 See Seiner, supra note 2, at 1021. 68 See Twombly, 550 U.S. at 562–63; Seiner, supra note 2, at 1023. 69 See Twombly, 550 U.S. at 548–49; Seiner, supra note 2, at 1021 (“It is somewhat peculiar that one of the Supreme Court’s most significant decisions for employment discrimination litigants would arise in a context having absolutely nothing to do with employment.”). 70 Twombly, 550 U.S. at 549. 71 Id. 72 Id. 73 Id. at 550. 160 Boston College Journal of Law & Social Justice [Vol. 32:151

Sherman Act—which prohibits agreements and conspiracies in restraint of trade—because the ILECs did not meaningfully compete and continued anticompetitive parallel conduct.74 This allegedly resulted in inflated prices for local telephone and internet services, and thus entitled plaintiffs to treble damages under relevant antitrust law.75 The district court dismissed the complaint for failure to state a claim, holding that the plaintiffs did not sufficiently allege that the ILECs agreed not to compete, and it downplayed the ILECs independent, self-interested conduct.76 The Second Circuit reversed, holding that the complaint should not be dismissed.77 The Second Circuit held that “a court would have to conclude that there is no set of facts that would permit a plaintiff to demonstrate” illegal behavior.78 The Supreme Court reversed and held that the plaintiffs’ allegations were insufficient to survive a Rule 12(b)(6) motion to dismiss.79 The Court held that “a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”80 The Court went on to establish a plausibility requirement to complaints, requiring “plausible grounds to infer an agreement.”81 The Court further articulated the plausibility rule in applying it to the facts, holding that the conspiracy and parallel conduct allegations, without “further factual enhancement,” fell short “of the line between possibility and plausibility” and thus stated no claim for relief.82 Furthermore the Court actually abrogated the language of Conley.83 Justice Souter, writing for the majority, asserted that the “no set of facts” standard from Conley has been “questioned, criticized, and explained away long enough” and therefore has “earned its retirement” and is “best forgotten as an incomplete, negative gloss on an accepted pleading standard.”84 Despite the majority’s view, at least one commentator argues that Conley and Swierkiewicz, “map[ped] out an easy course

74 Id. at 550–51; Seiner, supra note 2, at 1022–23. 75 Twombly, 550 U.S. at 550. 76 Id. at 552. 77 Twombly, 425 F.3d at 118–19. 78 Id. at 106, 114. 79 Twombly, 550 U.S. at 555–56, 564, 570. 80 Id. at 555 (internal quotations omitted). 81 Id. at 556. 82 Id. at 557. 83 Id. at 562–63; Spencer, supra note 1, at 126. 84 Twombly, 550 U.S. at 562–63. 2012] Twombly & Iqbal and Hostile Work Environment Claims 161 for employment discrimination” and the Twombly decision will be the one criticized and questioned.85 Notably, however, Twombly cites Swierkiewicz favorably throughout the opinion.86 Thus, while claiming to adhere to current pleading doctrine, the Court shocked the civil procedural system and made some commentators wonder if the pleading standard had been heightened.87 Twombly’s favorable treatment of Swierkiewicz elicited yet another inconsistency regarding the decision’s intended scope.88 Even though the Court appeared not to limit its application to the antitrust context— even citing an employment case in support—the question remained as to whether the new standard is ubiquitous.89 Lower courts, however, have applied the ruling to employment discrimination cases.90

2. Iqbal The Supreme Court quickly addressed these uncertainties, granting certiorari to hear Ashcroft v. Iqbal in 2008.91 There, U.S. officials arrested Javid Iqbal, a Pakistani Muslim, on criminal charges in the wake of the September 11, 2001 terrorist attacks.92 Authorities deemed Iqbal of “high interest” and held him under restrictive, isolated conditions in federal prison.93 Iqbal brought a Bivens action because of his treatment, claiming that his confinement was the result of invidious discrimination in contravention of the First and Fifth Amendments.94 The Court held

85 See Seiner, supra note 2, at 1021, 1024–26. In particular, “Twombly has created significant confusion over the proper pleading requirements in Title VII cases.” Id. at 1042. 86 See Twombly, 550 U.S. at 569–70 (noting that the analysis did not run counter to Swierkiewicz); Seiner, supra note 8, at 194. 87 See Seiner, supra note 8, at 194 (noting legitimate concern about the enduring validity of Swierkiewicz); Steinman, supra note 11, at 1355. In less than three years, Twombly had been cited nearly 24,000 times, a possible reflection of the perception that it raised the bar for federal pleading standards. Steinman, supra note 11, at 1355. Thus, though the Court claimed that it was not imposing a higher pleading standard, it seemed—at least ostensibly—to have that effect. See Twombly, 555 U.S. at 547 (noting the Court is not requiring heightened fact pleading); Steinman, supra note 11, at 1355. 88 See Seiner, supra note 2, at 1024–26. 89 See Twombly, 550 U.S. at 596 (Stevens, J., dissenting.); Seiner, supra note 2, at 1026–27. 90 See Twombly, 550 U.S. at 596 (Stevens, J., dissenting); Seiner, supra note 2, at 1029. 91 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945, 1949 (2009) (addressing the Rule 8 pleading requirements discussed in Twombly). 92 Id. at 1942. 93 Id. at 1943. 94 Id. at 1933–34; see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcot- ics, 403 U.S. 388, 396–97 (1971). Bivens created a private cause of action for damages against the federal government in the case of a constitutional violation. 403 U.S. at 397.

162 Boston College Journal of Law & Social Justice [Vol. 32:151 two allegations at issue in the complaint.95 First, the complaint alleged that defendants Attorney General John Ashcroft and FBI Director Robert Mueller “‘each knew of, condoned, and willfully and maliciously agreed to subject’ [Iqbal] to harsh conditions of confinement ‘as a matter of policy, solely on account of [his] religion, race, and/or national origin . . . .’”96 Second, Iqbal alleged that Ashcroft was the “‘principle architect’ of the policy” that resulted in his harsh confinement and that Mueller was instrumental in its “‘adoption, promulgation, and implementation.’”97 The petitioners moved to dismiss for failure to state a claim.98 Relying on Conley, the district court denied the motion to dismiss because a plausible set of facts existed on which Iqbal would be entitled to relief.99 Citing to the Twombly decision, the court of appeals affirmed the lower court, concluding that Twombly required only a flexible plausibility standard where substantiation is only necessary in some con- texts.100 The Supreme Court reversed, holding that the claims did not satisfy federal pleading standards.101 Iqbal had to “plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on the account of race, religion, or national origin.”102 The Court then applied a two-pronged approach to examine the sufficiency of Iqbal’s allegations.103 First, the Court ruled that it need not accept conclusory allegations in complaints as true.104 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” and Rule 8 requires “more than an unadorned the-

The Iqbal Court recognized the Bivens action as the federal analog to suits brought against state officials for constitutional violations under 42 U.S.C. § 1983. Iqbal, 129 S. Ct. at 1948. 95 See Steinman, supra note 11, at 1308–09. 96 Iqbal, 129 S. Ct. at 1944 (quoting First Amended Complaint at 172a–73a, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (No. 07-1015) (hereinafter Complaint)). 97 Id. (quoting Complaint at 157a) 98 Id. 99 Id. 100 Id. 101 Iqbal, 129 S. Ct. at 1945, 1950–51. 102 Id. “Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior . . . . Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government- official defendant, through the official’s own individual actions, has violated the Constitu- tion.” Id. at 1948 (internal citations omitted). 103 Id. at 1951. 104 Id. at 1949. 2012] Twombly & Iqbal and Hostile Work Environment Claims 163 defendant-unlawfully-harmed-me-accusation.”105 Applying that standard, the Court held conclusory the complaint’s allegations of conscious agreement between Ashcroft and Mueller to adopt a policy based on race, and thus disregarded it.106 The Court ruled the same with respect to the allegation that Ashcroft designed the scheme and Mueller implemented it.107 The assertions were too “conclusory” to receive a presumption of truth.108 Second, courts must examine what is left in the complaint and decide whether it states a plausible claim for which relief can be granted.109 This is to be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”110 Un- der this second prong, the Court held that Iqbal’s complaint did not sufficiently allege claims of invidious discrimination that crossed the line from conceivable to plausible.111 The government proferred that the arrests were permissible attempts to “detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts.”112 The Court held the policies nondiscriminatory and credited the government’s explanation as more likely than Iqbal’s assertions of discriminatory intent.113

105 Iqbal, 129 S. Ct. at 1949. 106 See id. at 1951; see also Steinman, supra note 11, at 1335–37. Professor Steinman argues, in part, that the Court dismissed the allegations as conclusory not because the complaint did not allege factual support for them, but because they were insufficient from a transactional standpoint. Steinman, supra note 11, at 1335–37. 107 Iqbal, 129 S. Ct. at 1951. 108 Id. 109 Id. at 1950. 110 Id. 111 Id. at 1950–51. 112 Iqbal, 129 S. Ct. at 1951. Professor Kassem argues that there are problems with this logic. Kassem, supra note 14, at 1456. 113 Iqbal, 129 S. Ct. at 1951–52. The problem with the asserted alternative explanation in Iqbal is two-fold. See Kassem, supra note 14, at 1455–56; Steinman, supra note 11, at 1311– 12. First, it asserts a “more plausible” explanation for the alleged discriminatory conduct from the viewpoint of the judges when, from the subjective viewpoint of the defendant, it is actually more plausible that the policy intentionally discriminated rather than having unintended discriminatory affects. See Kassem, supra note 14, at 1456. Indeed, for Muslim Americans, discrimination is a recurring reality. Id. Second, apart from these potential discriminatory effects, assuming that an agreement between Ashcroft and Mueller did in fact exist, there is no way the defendant could have pled specific facts to plausibly assert that allegation. See Steinman, supra note 11, at 1311–12. Without the benefit of discovery and the resulting access to hypothetical evidence proving such a discriminatory intent, it is impossible to plausibly establish that one existed. Id. 164 Boston College Journal of Law & Social Justice [Vol. 32:151

II. The Hostile Work Environment and its Application to Federal Pleading Standards The Supreme Court enunciated a totality test to determine if a hostile work environment claim merits recovery.114 Heightening pleading standards, however, could make federal judges more prone dismiss employment discrimination and civil rights claims.115 Even those claims that might not pass the summary judgment should move beyond the pleading stage, thereby allowing for a more developed factual record.116 Hostile work environment plaintiffs should not be categorically barred from discovery because employers typically have otherwise unobtainable information.117

A. Background: The Hostile Work Environment Sexual Harassment Claim Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .”118 In 1971, the Fifth Circuit recognized a cause of action based on the conditions of a work environment rather than a specific adverse action.119 In Rogers v. EEOC, the court validated a claimant’s allegation of segregationist practices as sufficient grounds to state a claim for relief under Title VII.120 In Meritor Savings Bank v. Vinson, the Supreme Court officially recognized a hostile work environment as an actionable claim under Title VII.121 More specifically, it recognized the claim based upon a sexual harassment-created hostile work environment.122 The Court stated, however, that “not all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within

114 Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). 115 See Schneider, supra note 1, at 564 (noting that many newer federal judges are “deeply skeptical of civil rights and employment cases”). 116 See id. at 549–50; Schneider, supra note 20, at 706. 117 See Miller, supra note 3, at 45–46. 118 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (2006). 119 See Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971). In Rogers, the court held that the phrase “‘terms, conditions or privileges of employment’ . . . sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.” Id. The court recognized that working environments can be so discriminatory as to destroy the “emotional and psychological stability” of workers. Id. 120 Id. at 236, 239–241. 121 477 U.S. 57, 65 (1986). 122 Id. at 66. 2012] Twombly & Iqbal and Hostile Work Environment Claims 165

the meaning of Title VII.”123 The Court then ruled that for “sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.”124 A trier of fact must examine the totality of circumstances in determining whether the conduct is sufficiently “severe or pervasive.”125 In Meritor, a supervisor’s request for sexual favors clearly created a hostile environment.126 The mere utterance of an offensive ethnic or racial epithet, however, will not affect the conditions of employment enough to violate Title VII.127 In Harris v. Forklift Systems, Inc., the Court further defined the standard announced in Meritor, specifically adding two elements to the ruling.128 First, the conduct need not cause psychological or physical injury to the victim.129 The Court instead took a “middle path” between making only harmful conduct actionable and making all “merely offensive” conduct actionable.130 Second, it held that the conduct must be hostile both objectively (to a reasonable person) and subjectively (to the victim) to show altered employment conditions.131 It then provided a list of facts that might enter into the totality test, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”132

123 Id. at 67. 124 Id. (internal quotations omitted). 125 See id. at 69. 126 Meritor, 477 U.S. at 67. Indeed, the Court noted that the conduct in the instant case included “not only pervasive harassment, but also criminal conduct of the most serious nature.” Id. The defendant—plaintiff’s supervisor—requested sexual favors repeatedly. Id. at 60. The plaintiff agreed out of “fear of losing her job,” and they had intercourse some forty or fifty times over a period of several years, often at the bank and during business hours. Id. Also, the complaint alleged that the defendant fondled the plaintiff in front of other employees, exposed himself to her, and “even forcibly raped her on several occa- sions.” Id. 127 Id. at 67 (citing Rogers, 454 F.2d at 238). 128 Harris, 510 U.S. at 21–22. The allegations in Harris centered around a manager’s derogatory remarks about a female employee and females in general. Id. at 19. The district court did not find the work environment abusive. Id. at 19–20. The Sixth Circuit affirmed and the Supreme Court reversed. Id. at 20, 23. 129 See id. at 22. 130 Id. at 21. 131 Id. at 21–22. 132 Harris, 510 U.S. at 23. The Court, while trying to resolve ambiguity, instead may have created it. See id. at 20; Keller & Tracy, supra note 17, at 258. The Court explicitly granted certiorari to resolve a split among the circuit courts. Harris, 510 U.S. at 20. Justice Scalia concurred in the judgment of Harris, but stated his worry that the Court did not

166 Boston College Journal of Law & Social Justice [Vol. 32:151

Finally, in Oncale v. Sundowner Offshore Services, Inc., the Court expanded on what could be considered severe, noting: The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing and roughhousing . . . and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.133 Thus, common sense and judicial attitude, imputed outside of jury proceedings, will factor into these lawsuits’ determinations.134 Furthermore, the Court warned against turning Title VII into a “general civility code.”135

B. Lower Court Applications: Why Pleading Standards Could Have a Large Effect on Hostile Work Environment Claims Federal judges generally view employment discrimination and civil rights claims with suspicion.136 Many courts hearing these claims have misapplied or ignored the Supreme Court’s enunciated standards.137 This standard, however, should be uniform, allowing hostile work environment claims to move beyond the pleading stage and fully develop a factual record.138 This is especially important for hostile work environment plaintiffs, as they must prove a different prima facie case than other typical Title VII disparate treatment plaintiffs.139 Therefore, these create a clear standard. See id. at 24 (Scalia, J., concurring). He noted that the list of factors provided by the majority “adds little certitude.” Id. In actuality, it might cause more confusion. See Keller & Tracy, supra note 17, at 258 (noting that the courts have often misapplied the factors and treated them as necessary and sufficient to establish a hostile work environment when the Supreme Court only meant to provide guidance). Furthermore, the factors themselves are tautological, using “severity” as a factor in determining whether the conduct is sufficiently severe. See Harris, 510 U.S. at 23; Keller & Tracy, supra note 17, at 259. 133 523 U.S. 75, 81–82 (1998). 134 See id. 135 Id. at 81. 136 See Schneider, supra note 1, at 564 (noting that many federal judges are “deeply skeptical of civil rights and employment cases”). 137 See Keller & Tracy, supra note 17, at 256–60. 138 See Schneider, supra note 1, at 566. 139 See Seiner, supra note 2, at 1051–52. 2012] Twombly & Iqbal and Hostile Work Environment Claims 167

plaintiffs should not be categorically barred from discovery because proving their specific burden often requires information possessed only by the employer.140

1. Judicial Aversion to Hostile Work Environment Claims In general, federal judges are prone to treat employment discrimination and civil rights claims with suspicion.141 Some argue that this is due to a conservative judicial bench.142 Others argue that greater case loads cause district and circuit court judges to dismiss employment claims in greater number, as evidenced by the strong correlation between a court’s workload and its dismissal rate.143 More specifically, there appears to be a correlation between the number of employment cases on a federal judge’s docket and the number of dismissals issued on such cases.144 Different explanations can be logically drawn from that data.145 First, because judges only have a certain amount of time, the busier circuits and districts may be less likely to fully consider employment discrimination cases.146 Second, judges may become jaded toward the burdensome system or employment discrimination claims altogether, and thus, doubt their validity.147 Third, discrimination may have become more covert or has simply declined.148 While this may have resulted in judges becoming “numb” to these claims, it is “doubtlessly quickened to the extent a judge questions the validity of discrimination

140 See Miller, supra note 3, at 45–46. 141 See Schneider, supra note 1, at 564. 142 See Jack M. Beermann, The Unhappy History of Civil Rights Legislation, Fifty Years Later, 34 Conn. L. Rev. 981, 1028–29 (“[O]verall[,] the Court continues to be more conservative than Congress on civil rights, and applies statutory construction as a tool for combating Congress’s civil rights agenda.”). 143 See Reeves, supra note 12, at 513. 144 Id. 145 See id. at 503, 518. 146 Id. at 503. 147 Id. at 519–20. 148 See Reeves, supra note 12, at 482, 518. A view that more employment claims are being filed coupled with a view that less actionable discrimination is occurring is likely to lead to a higher rate of dismissal. Id. at 518. 168 Boston College Journal of Law & Social Justice [Vol. 32:151 claims in general.”149 Finally, there just may always be an inherent skepticism regarding the validity of discrimination claims.150 Plaintiffs alleging to be victims of employment discrimination face a difficult battle in gaining relief through the justice system.151 Alleged victims of hostile work environment sexual harassment are no different.152 Lower courts have inconsistently applied—or consistently misapplied—this doctrine to hostile work environment sexual harassment claims since Meritor.153 As a result, lower courts have disposed of seemingly meritorious claims before allowing them to reach a jury.154 They have largely cabined these Supreme Court holdings to their facts, failed to differentiate between the subjective and objective tests, misapplied the Harris factors, and even ignored the Supreme Court altogether by making their own standards.155

2. Problems with Summary Judgment at the Motions to Dismiss Stage Some may argue that heightened pleading standards are not as damaging to individual plaintiffs in hostile work environment cases as they are in other Title VII cases.156 In the past, erroneous dismissals of meritorious claims have occurred at summary judgment.157 Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, however, moved claim disposal, including claims alleging a hostile work environment, up to the motion

149 Id. From this inference, one may argue that the Supreme Court, in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, effectively balanced the new standards’ rigorousness— thereby keeping claims out of court—with the openness of pleading standards. See Schwartz & Appel, supra note 6, at 1144. 150 See Schneider, supra note 1, at 564; Spencer, supra note 1, at 112 (noting that the enduring rationale among the lower courts prior to Conley v. Gibson was that civil rights claims are more likely to be frivolous and are too “expensive and vexatious”). 151 See Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. & Pol’y Rev. 103, 103 (2009). 152 See Keller & Tracy, supra note 17, at 256 (“The needless discomfort with how to evaluate conduct has also led to an unjustified number of summary dispositions for defendants and vacated jury determinations for plaintiffs.”). 153 See id. at 249. 154 See Theresa M. Beiner, Gender Myths v. Working Realities: Using Social Sci- ence to Reformulate Sexual Harassment Law 20 (2005). 155 See Keller & Tracy, supra note 17, at 256–60; see also Nicole Newman, Book Note, The Reasonable Woman: Has She Made a Difference?, 27 B.C. Third World L.J. 529, 555 (reviewing Ann Scales, Legal Feminism: Activism, Lawyering and Legal Theory (2006)). 156 See Miller, supra note 3, at 16, 46; Seiner, supra note 2, at 1051–52. 157 See Theresa M. Beiner, The Misuse of Summary Judgment in Hostile Environment Cases, 34 Wake Forest L. Rev. 71, 72–73 (1999). 2012] Twombly & Iqbal and Hostile Work Environment Claims 169 to dismiss stage.158 Due to the relevance of the plaintiff’s personal experience, discovery is not essential to hostile work environment claimants because they do not need access to a company’s hiring records.159 Some therefore argue that heightened pleading standards make no difference because, in any event, the claims would not advance past summary judgment.160 The employer is less likely to have dispositive information, or even information relevant to the plausibility or con- ceivability of the hostile work environment plaintiff’s claim.161 Beyond the access to discovery, however, there are other ways in which individual hostile work environment plaintiffs are harmed if their pleadings are dismissed at this early stage.162 Summary judgment decision-making at the district court level has regularly been problematic and controversial.163 Particularly, this trouble exists in hostile work environment summary judgment rulings.164 After Twombly and Iqbal, many of the cases decided on pleadings have raised the same problems that scholars identified with summary judgment decisions.165 One of these problems is that hostile work environment plaintiffs—and indeed female plaintiffs in general—are subjected to a higher claim disposal rate at summary judgment.166

158 See Medina, supra note 15, at 315; Schneider, supra note 1 at 530–31 (“[T]he new heightened pleading standard seems to render summary judgment irrelevant because district judges can now simply dismiss cases on Rule 12(b)(6) motions and not wait for summary judgment.”). 159 See Miller, supra note 3, at 46; Seiner, supra note 2, at 1051–52 (noting that, because the necessary facts should be well within the plaintiff’s knowledge, the standard should be relatively easy to satisfy in hostile work environment cases). 160 See Medina, supra note 15, at 313 (noting “the increased trend of courts to grant summary judgment to employers in sexual harassment cases”); Schneider, supra note 1 at 530–31. As Professor Medina argues, claim dismissal on summary judgment is common, so if the dismissal simply came earlier, the plaintiff would not appear to lose anything. See Medina, supra note 15, at 313; see also Schneider, supra note 1, at 530–31. 161 See Miller, supra note 3, at 16 (noting that the new pleading standards will keep out meritorious claims and “increase the burden on under-resourced plaintiffs who typically contest with industrial and governmental Goliaths in cases in which critical information is largely in the hands of defendants and is unobtainable without access to discovery”); Seiner, supra note 2, at 1051–52. 162 See Schneider, supra note 1, at 556. 163 See Beiner, supra note 157, at 73–74; Schneider, supra note 1, at 549–50. 164 See Beiner, supra note 157, at 74–75; Medina, supra note 15, at 315; Schneider, supra note 1, at 550. 165 Schneider, supra note 1, at 544 (“What is now shocking is the degree to which the Supreme Court’s decision in Iqbal has made the analytic problems that have been so deeply troubling in summary judgment jurisprudence explicit at the pleading stage.”). 166 See Schneider, supra note 20, at 709–10 (citing evidence that summary judgment is granted more frequently in cases with female plaintiffs). 170 Boston College Journal of Law & Social Justice [Vol. 32:151

Despite the likelihood that a complaint dismissed at the 12(b)(6) stage would not pass summary judgment, there are three important reasons to let a claim move beyond the pleading stage to a more developed factual record.167 First, “subtle issues of credibility, inferences, and close legal questions” are often involved, and “where issues concerning the ‘genuineness’ or ‘materiality’ of facts are frequently intertwined with the law,” a jury’s broader perspective may be preferable.168 Sec- ond, hostile work environment plaintiffs and female plaintiffs in general, are less successful at the summary judgment stage.169 Under Twombly and Iqbal, this discrepancy simply moves up to the pleading stage, where a judge’s subjective determination is based on a record even more sparse than that available at summary judgment.170 Finally, disposition often results in private adjudication, which then takes place on a sparsely developed factual record.171 As a result, courts issue fewer public decisions and do not create precedent.172 Thus, novel claims are less likely to enter the public sphere “with the attendant legitimization of claims and public knowledge of new harms . . . .”173

3. Problems Specific to Pleading Hostile Work Environment Claims Hostile work environment plaintiffs must prove a prima facie case different from that of other typical Title VII disparate treatment plaintiffs.174 The elements of a prima facie case for retaliatory discrimination, for example, are (1) protected opposition activity, (2) adverse employment action, and (3) a causal connection between the protected conduct and the adverse action.175 Plaintiffs face problems in proving causal connections because employers typically have the information needed to provide evidentiary support, thus requiring discovery.176 Proof of dis-

167 See id. at 706. 168 Schneider, supra note 1, at 542–43. 169 See Schneider, supra note 20, at 709–10. 170 See Schneider, supra note 1, at 544–45. 171 Id. at 544–45, 556. 172 Id. at 556. 173 Id. As a result of the phenomenon, many alleged victims of employment discrimination are increasingly forced into state courts to adjudicate their claims. Id. at 550–51. This counteracts the vision the drafters of the Federal Rules of Civil Procedure had for the Federal Courts. See Miller, supra note 3. at 101. Moreover, because some state judges (at least in some states) are traditionally exposed to more political pressure than federal judges, the chance for bias in the state judicial system is just as great as it is in the federal system. See Schneider, supra note 1, at 567–68. 174 See Seiner, supra note 2, at 1051–52. 175 See, e.g., Velez v. Janssen Ortho, LLC, 467 F.3d 802, 806 (1st Cir. 2006). 176 See Miller, supra note 3, at 45–46. 2012] Twombly & Iqbal and Hostile Work Environment Claims 171

criminatory intent prior to discovery has led to much scholarly debate regarding the plausibility standard announced in Twombly and Iqbal.177 In contrast, the typical elements of a hostile work environment claim under Title VII require: (1) a plaintiff’s membership in a protected class, (2) who is subject to unwelcome harassment, (3) based on the plaintiff’s membership in that protected class, and (4) because of the harassment’s severity or pervasiveness, the harassment created an abusive working environment by altering a term, condition, or privilege of the plaintiff’s employment.178 Because plaintiffs must demonstrate both objectively and subjectively hostile environments, complaints tend to simply allege the behavior that caused the environment.179 Unlike disparate treatment cases, hostile work environment claims do not require inquiry into employment practices; the discriminatory intent is evidenced by an actor’s behavior.180 While discovery may not prove as pivotal, heightened pleading standards still negatively affect hostile work environment plaintiffs.181 Unlike claimants in typical Title VII cases, there is no simple, single allegation that sums up the employer’s violation.182 For instance, employees that allege termination because of gender, may satisfy the adverse action prong by simply alleging gender bias.183 In a hostile work environment claim, however, there need not be a specific adverse employment action; the environment itself is the adverse action.184 This can lead to confusion as to the level of factual specificity required at the pleading stage.185 Therefore, if complaints are not construed liberally, and instead are dismissed for a lack of factual specificity, the result could bar a meritorious claim.186

177 See Schwartz & Appel, supra note 6, at 1134; Seiner, supra note 8, at 195. In Iqbal, as a result of the Court’s dismissal of the government’s alleged discriminatory intent, the Court held that the complaint failed to state a claim. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951–52 (2009). This has led scholars to argue that the heightened pleading requirements for discriminatory intent should not be applied in the employment context. See Seiner, supra note 8, at 195, 203. 178 See Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007). 179 See Seiner, supra note 2, at 1051. 180 See Medina, supra note 15, at 330; Seiner, supra note 2, at 1051. Since no tangible economic harm need be suffered, the employer’s hiring and firing practices are not essential to the hostile work environment claim. See Seiner, supra note 2, at 1051. 181 See Medina, supra note 15, at 330; Schneider, supra note 1, at 556; Seiner, supra note 2, at 1051. 182 See Seiner, supra note 2, at 1044, 1051. 183 See id. at 1045. 184 See id. at 1051. 185 See Schwartz & Appel, supra note 6, at 1143. 186 See Miller, supra note 3, at 16; Schwartz & Appel, supra note 6, at 1143. 172 Boston College Journal of Law & Social Justice [Vol. 32:151

Furthermore, the introduction and heightened use of judicial subjectivity at the pleading stage creates another problem for hostile work environment claimants.187 Common sense already has a substantial impact on the jurisprudence of hostile work environment sexual harassment cases.188 To ascribe too much weight to the “judicial subjectivity and common sense” methodology could further compound this problem.189 The effects could be disastrous for all potential minority and female plaintiffs, including victims of hostile work environment discrimination.190

III. Two Interpretations of Twombly and Iqbal Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have generated a substantial amount of scholarship regarding the federal pleading standards.191 There are at least two different readings of how lower courts may approach the inquiry into a plaintiff’s complaint at the motion to dismiss stage.192

187 See Miller, supra note 3, at 22 (arguing that bringing “judicial experience and common sense” into the judicial determination of the plausibility of claims at the pleading stages grants “virtually unbridled discretion to district court judges” and “has sparked a concern that some judges will allow their own views on various substantive matters to intrude on their decisionmaking and no longer will feel bound by the four corners of the complaint”); Schneider, supra note 1, at 564 (noting that many judges appear to be skeptical of employment cases). 188 See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998). Justice Scalia’s opinion in Oncale states that common sense will enable both courts and juries to distinguish between innocent and actionable conduct. Id. Judicial common sense, however, may differ from that of a jury, and often in the hostile work environment context, judges push to grant summary judgment in unjustified scenarios. See Beiner, supra note 157, at 74; Schneider, supra note 1, at 542–43 (noting juries have a more diverse perspective than judges). 189 See Schneider, supra note 1, at 542–43 (noting that summary judgment dispositions, as well as dismissals of complaints for failure to state a claim, necessarily involve “a tremen- dous amount of discretion, and discretion can be the locus of hidden discrimination”). 190 See Kassem, supra note 14, at 1445–46 (arguing Iqbal embraces subjective assessments under the guise of plausibility and common sense and, in doing so, raises concerns that a minority plaintiff’s claim is less likely to find agreement with a federal judiciary that “does not shine by its diversity”); Schneider, supra note 1, at 542–43. 191 See Steinman, supra note 11, at 1295–97. For an extensive list of scholarly pieces regarding Twombly and Iqbal, see id. at 1296 nn.10, 12. 192Compare Brown, supra note 16, at 1296 (arguing that while some judicial subjectivity has been introduced, it is limited and not as problematic as critics have suggested), with Kassem, supra note 14, at 1445–46, 1481 (arguing that Iqbal has encouraged subjective judicial assessments of claims in a way that allows them to dismiss claims they personally believe cannot be true). 2012] Twombly & Iqbal and Hostile Work Environment Claims 173

A. Case Examples In EEOC v. Tuscarora Yarns, Inc., an employee alleged that her plant manager sexually harassed her to such an extent that it caused a hostile work environment.193 The complaint alleged that the male plant manager propositioned the plaintiff for sex, made unwelcome sexual comments to her, inappropriately touched her, and sexually assaulted her.194 The complaint also alleged that the harassment was based on the plaintiff’s sex and that “it was sufficiently severe or pervasive to alter the conditions of her employment by creating a sexually hostile work environment,” and therefore violated Title VII.195 In deciding the defendant’s motion to dismiss, the district court cited Swierkiewicz v. Sorema N.A. to show that a Title VII plaintiff need not allege specific facts but still must plead facts relating to each claim element.196 The court held that the complaint was “virtually devoid of any facts underlying the alleged sexual harassment,” thereby dismissing it for failure to allege facts showing an objectively and subjectively severe or pervasive environment.197 Likewise, in Langford v. International Union of Operating Engineers, an African American female plaintiff filed an action asserting race and gender discrimination claims under Title VII.198 She worked as an ap- prentice in a program run by the International Union of Operating Engineers, Local 30.199 She alleged that her supervisor and other white employees berated her, verbally abused her, and refused to train her.200 She also alleged that they used racially offensive terms such as calling a black engineer a “monkey” or a “gorilla,” calling a black female a “black bitch,” and commenting that “Oprah Winfrey should have died in a plane crash.”201 Finally, she alleged that she received a number of un- enviable work tasks, such as cleaning up toxic chemicals, cleaning a

193 No. 1:09-CV-217, 2010 WL 785376 at *1 (M.D.N.C. March 3, 2010). 194 Id. 195 Id. 196 Id. at *2. 197 See Tuscarora, 2010 WL 785376, at *2–*3. The court seemed to rely mostly on the environment’s lack of severity or pervasiveness, stating that the complaint lacked sufficient “facts upon which to reach such a conclusion.” Id. at *3. 198 No. 10 Civ. 1644(RJH), 2011 WL 672414 at *1 (Feb. 23, 2011). 199 Id. 200 Id. 201 Id. 174 Boston College Journal of Law & Social Justice [Vol. 32:151 men’s bathroom containing sexually suggestive pictures, and walking across a dangerous catwalk.202 The defendants argued in a motion to dismiss that the allegations were conclusory and did not meet the time and filing requirements of Title VII.203 The court interpreted defendant’s argument as referring to the complaint’s lack of concrete dates.204 Denying the motion, the court held that Title VII complaints need not plead specific dates of discriminatory actions.205 Though focusing mainly on timing and vicarious liability aspects, the court did not dismiss any allegations as conclusory or engage in a plausibility analysis—instead holding that the plaintiff had adequately stated a claim on which relief could be granted. 206

B. The First Prong: When Are Allegations Conclusory? In Iqbal, the Supreme Court solidified its two-pronged approach to evaluating the sufficiency of complaints on 12(b)(6) motions to dismiss.207 In deciding that Iqbal had failed to push his claims over the line from conceivable to plausible, the Court began by identifying and disregarding conclusory allegations that were not entitled to a presumption of truth.208 There are at least two divergent readings of what constitutes a conclusory claim and what the lower courts must consider in analyzing complaints.209

202 Id. The male coworkers did not similarly have to clean the women’s bathroom, in which the male workers vomited and urinated. Id. Furthermore, one of the female employee’s coworkers told her later that she had no business traversing the catwalk because the task could have been performed safely from the control room. Id. 203 Langford, 2011 WL 672414, at *8. 204 Id. at *9. 205 Id. at *9, *21. 206 See id. at *9–*10, *14, *21. 207 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949–50 (2009). 208 Id. at 1950–51. The Iqbal Court first disregarded the allegation that defendants Ashcroft and Mueller agreed to subject Iqbal to the harsh conditions he faced “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Id. at 1951. The Court dismissed the allegations that Ashcroft was the principle architect of the policy and that Mueller was instrumental in adopting and execut- ing it. Id. 209 Compare A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark L. Rev. 185, 196 (2010) (arguing that conclusory allegations are factual statements unexpected by judges and thus not believable), with Steinman, supra note 11, at 1324–25 (arguing that conclusory allegations are allegations that fail to provide fair notice, and thus, this step is not drastically different from notice pleading). 2012] Twombly & Iqbal and Hostile Work Environment Claims 175

1. The Conclusory Allegation Requires More Evidence One of the main criticisms of Twombly and Iqbal, especially as applied to employment discrimination claims, is that they require plaintiffs to plead information not obtainable without discovery.210 One commentator calls this the Catch-22 effect.211 In hostile work environment claims, however, plaintiffs tend to have the necessary information to plead effectively and the Catch-22 effect does not necessarily apply.212 Hostile work environment claims, though, tend to suffer from a court’s definition of a conclusory allegation.213 A conclusory allegation is one that forgoes the factual underpinnings of the claim and instead states the legal conclusions that would presumably attach to those underlying facts.214 Iqbal alleged that Ashcroft and Mueller agreed on and carried out a discriminatory policy for discriminatory reasons.215 The Court held Iqbal’s allegation conclusory because the alleged facts lacked the n ecessary corroborating evidence elsewhere in the complaint.216 Therefore, a claim’s context becomes relevant at this first stage of determining which allegations receive a presumption of truth.217 The more an assertion is thought to be unrealistic, the more likely judges are to reject it as conclusory.218 Discrimination in the workplace, however, is much more believable than a high-level government conspiracy.219

210 See Miller, supra note 3, at 15–16. 211 David L. Noll, The Indeterminacy of Iqbal, 99 Geo. L.J. 117, 120 (2010). 212 See Seiner, supra note 2, at 1051. 213 See Beiner, supra note 157, at 74; Medina, supra note 15, at 315; Spencer, supra note 209, at 195–97; see e.g., Tuscarora, 2010 WL 785376 at *2–*3. 214 See Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. Pa. L. Rev. 473, 491(2010); Spencer, supra note 211, at 193. 215 See Iqbal, 129 S. Ct. at 1944. As Professor Spencer argues, this allegation does not forgo the facts required to state a claim—namely that Mueller and Ashcroft had intent— and the complaint was not conclusory under the traditional definition. See Spencer, supra note 209, at 194–95. Professor Spencer compares two claims in the complaint. Id. at 194. The first stated that Ashcroft and Mueller approved the policy of holding the detainees, but the Court held this non-conclusory. Id. The second stated that Ashcroft and Mueller approved the policy solely based on race, religion, and/or national origin, which the Court held conclusory and not entitled to the presumption of truth. Id. He then concluded from this observation that “the conclusory label cannot credibly be applied to Iqbal’s rejected allegations as a valid rationale for discarding them, [and] something else must be at play.” Id. at 194–95. 216 See Spencer, supra note 209, at 195. 217 Id. at 195–96. 218 See id. at 196. 219 See Seiner, supra note 8, at 196. 176 Boston College Journal of Law & Social Justice [Vol. 32:151

Under this reading, however, judicial subjectivity may control in the first prong of the pleading standard and can damage hostile work environment cases.220 In Tuscarora, as in Iqbal, the plaintiff’s claims were factual in nature and the United States District Court for the Middle District of North Carolina disregarded them as conclusory.221 If Twombly and Iqbal indeed allow judges to disbelieve allegations they deem implausible, then the Tuscarora court followed precedent.222 The judge may have been skeptical of the claim because the plaintiff did not recount the exact facts of the alleged assault, even though the complaint pled each claim element.223 In some ways, hostile work environment plaintiffs are more susceptible to this problem because they do not show physical injury, which may lead to judges lending them even less credibility.224 Thus, if the lower courts adopt this reading, hostile work environment plaintiffs will have more difficulty in passing the motion to dismiss stage.225

2. Inferences Welcome The second reading of the sufficiency analysis’s first prong dis- misses the idea that Iqbal allows judges to simply examine the credibility of allegations and reject them if found implausible.226 Professor Adam Steinman, for example, maintains that the cases “cannot legitimately be read as allowing judges to reject allegations just because they perceive them to be implausible.”227 Steinman argues that, in Iqbal, legitimate questions exist as to the allegation that Ashcroft and Mueller truly intended to discriminate.228 Iqbal had no personal knowledge of the al-

220 See Medina, supra note 15, at 315 (arguing that courts increasingly dispose of hostile work environment claims because of “judicial discomfort with the perceived lack of injury to the victim”); Spencer, supra note 209, at 197 (arguing that the skepticism of Iqbal gives voice to Justices’ “institutional biases”). 221 See Iqbal, 129 S. Ct. at 1944; Tuscarora, 2010 WL 785376, at *1, *3. Just as the Court in Iqbal, under Professor Spencer’s view, rejected the assertion as conclusory because it lacked corroboration, so too did the court in Tuscarora reject the plaintiff’s claims as lacking factual substantiation even while acknowledging that the hostile work environment might have existed. See Tuscarora, 2010 WL 785376, at *2–*3; Spencer, supra note 209, at 195. 222 See Tuscarora, 2010 WL 785376, at *2–*3; Spencer, supra note 209, at 195–96. 223 See Tuscarora, 2010 WL 785376, at *2–*3; Schneider, supra note 1, at 519, 564. 224 See Medina, supra note 15, at 315. 225 See Medina, supra note 15, at 315; Spencer, supra note 211, at 195–97; see e.g., Tus- carora, 2010 WL 785376 at *2–*3. 226 See Noll, supra note 211, at 127; Steinman, supra note 11, at 1340. 227 See Steinman, supra note 11, at 1340. 228 Id. at 1336–37. Professor Steinman argues that a complaint that establishes a “transactional narrative” could avoid this problem. See id. at 1334, 1337. Merely re-ordering the presentation of the allegations could have helped Iqbal’s case because he described all the

2012] Twombly & Iqbal and Hostile Work Environment Claims 177 leged discriminatory intent.229 The same is true in Twombly, where the plaintiff asked the Court to infer an agreement based on parallel conduct.230 Therefore, argues Professor Steinman, where a plaintiff has no personal knowledge of a claim’s essential element, the Court must look to the allegations to see if it may reasonably infer that element.231 Under this reading of the first prong, the lower courts are granted less subjective discretion over which allegations to disregard.232 Judicial discretion to dismiss allegations still exists, but only where the plaintiff lacks the personal knowledge of the events that give rise to the essential element.233 Interpreting the first prong in this manner, the Tuscarora court seems to have applied Twombly and Iqbal incorrectly.234 In Tus- carora, the court held that the allegations were conclusory not because the plaintiff lacked personal knowledge, but because they lacked sufficient facts.235 Indeed, the court acknowledged that the plaintiff may have reasonable grounds to make those allegations, but that the complaint was too “flush with innuendo . . . to reach such a conclusion.”236 If the court merely required personal knowledge instead of plausible, factually substantiated allegations, then the complaint in Tuscarora may well have survived.237 conditions of his confinement before alleging that Ashcroft and Mueller approved them with discriminatory intent. Id. at 1337. Moreover, there are too many different interpretations of this allegation for a judge to simply accept its truth. See id. 229 See Noll, supra note 211, at 130. Under this interpretation the Court did not reject Iqbal’s claim because of its believability, but because it concluded that he lacked “reasonable grounds” to make such an assertion. Id. The Court is not injecting its own bias into the conclusory analysis, but rather is policing the reasonableness of the inferences drawn from the plaintiff’s actual knowledge. Id. at 128. 230 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007); Steinman, supra note 11, at 1337 (“The Twombly complaint has similar problems.”). 231 See Iqbal, 129 S. Ct. at 1951; Steinman, supra note 11, at 1314. 232 See Steinman, supra note 11, at 1340. 233 See Noll, supra note 211, at 130 (arguing that those claims are conclusory only if they are not reasonable inferences from the plaintiff’s personal knowledge); Steinman, supra note 11, at 1298 (“[O]nly conclusoriness is a basis for refusing to accept the truth of an allegation; implausibility is not.”). 234 See Tuscarora, 2010 WL 785376, at *2–*3; Noll, supra note 213, at 130. 235 See Tuscarora, 2010 WL 785376, at *3. 236 Id. 237 See id. at *2–*3; Noll, supra note 211, at 130. The court relied on the complaint’s conclusory nature and not the objectively non-hostile work environment to dismiss the claim. See Tuscarora, 2010 WL 785376, at *2–*3. Professor Noll points out that in Swierkiewicz, the “allegations are somewhat sparse,” but the plaintiff cited a fact from his personal knowledge where one could reasonably infer that he was a victim of intentional discrimination. Noll, supra note 211, at 145. Likewise, the complaint in Tuscarora alleged instances of sexual assault and inappropriate touching, which must have been from the alleged victim’s personal knowledge. See Tuscarora, 2010 WL 785376, at *1. 178 Boston College Journal of Law & Social Justice [Vol. 32:151

C. The Second Prong: When Is the Claim Plausible? After the Court in Iqbal decided that it needed to disregard two of the plaintiff’s allegations, it considered what was left of the complaint to determine whether it plausibly “suggest[ed] entitlement to relief.”238 The Court noted that determining whether the complaint states a plausible claim for relief is a “context-specific task” and that the reviewing court must “draw on its judicial experience and common sense.”239 The majority went on to hold that although the plaintiff’s non-conclusory assertions may be consistent with Ashcroft and Mueller’s alleged discriminatory intent, they did not plausibly suggest it because a more likely explanation existed.240 Much like the first prong, scholars offer significantly divergent readings regarding this plausibility inquiry.241

1. A License to Dismiss Grants Unfettered Discretion Under the first reading of the sufficiency analysis’s second prong, Iqbal has given lower courts a “[l]icense to [d]ismiss” complaints for subjective and arbitrary reasons.242 Professor Miller, for example, argues that Iqbal and Twombly grant “unbridled” judicial discretion, and will allow them to import personal views on substantive matters into a complaint’s sufficiency determination.243 Given the documented aversion that judges have toward employment litigation cases, this prong could be a powerful case management tool—granting judges the authority dismiss cases outright at the pleadings stage.244 The courts in Tuscarora and Langford did not expressly address this prong of Iqbal and Twombly.245 If Iqbal and Twombly allow a judge’s views

238 Iqbal, 129 S. Ct. at 1951. 239 Id. at 1950. 240 Id. at 1951–52. 241 Compare Kassem, supra note 14, at 1450 (“By setting ‘common sense’ as a metric by which to determine plausibility, the Court specifically calls on judges to rely on views that will likely privilege mainstream over minority perspectives by virtue of their being ‘common.’”), with Steinman, supra note 11, at 1319 (arguing that the plausibility inquiry in Twombly and Iqbal should not allow courts to dismiss a complaint solely because the judge finds it implausible). 242 Robert L. Rothman, Twombly and Iqbal: A License to Dismiss, Litig., Spring 2009, at 1, 1; see Miller, supra note 3, at 22; Noll, supra note 211, at 121. 243 See Miller, supra note 3, at 21–22. 244 See Schneider, supra note 1, at 519; Rakesh N. Kilaru, Comment, The New Rule 12(b)(6): Twombly, Iqbal, and the Paradox of Pleading, 62 Stan. L. Rev. 905, 908 (2010). 245 See Langford, 2011 WL 672414, at *14 (holding that because the complaint was sufficient to alert the parties of a hostile work environment claim, it would not be dismissed); Tuscarora, 2010 WL 785376, at *1–*3 (basing its dismissal of the complaint on lack of factual substantiation). 2012] Twombly & Iqbal and Hostile Work Environment Claims 179 to influence substantive matters, the Tuscarora and Langford courts could have decided the motions to dismiss based on individual views of hostile work environment claims.246 The Tuscarora Court, even if it had not rejected the allegations as conclusory, could have simply held the work environment not severely or pervasively hostile enough for relief under Title VII.247 The same could be true even with the more specific factual allegations in Langford.248 Because the standards of “severity” and “pervasiveness” in hostile work environment claims are already nebulous, granting more subjectivity at the pleading stage could erect a higher barrier to workplace discrimination victims.249

2. Limiting Readings Alternative readings for this second prong attempt to place a limitation on the court’s discretion at the early stages of inquiry.250 They typically argue that the “judicial experience and common sense” with which a judge is to view the non-conclusory allegations is limited, at least by the substantive law from which the claim arises.251 Professor Robertson argues that courts are not to make subjective judgments about facts, but should use the law “to determine whether the complaint meets a minimal level of plausibility.”252 Professor Noll similarly

246 See Beiner, supra note 157, at 72 (noting that there is a “growing trend” of dismissing harassment cases where arguable issues of fact exist); Miller, supra note 3, at 22–23. 247 See Tuscarora, 2010 WL 785376, at *1–*3; Medina, supra note 15, at 313–14 (noting that courts disposing of cases on summary judgment are increasingly doing so by finding that the conduct “does not rise to the level of a hostile environment”). 248 See Langford, 2011 WL 672414, at *1, *14; Medina, supra note 15, at 313–14. In fact, the environment alleged in Langford is more benign than that alleged in Tuscarora because there the plaintiff did not allege touching or sexual assault. See Meritor Sav. Bank v. Vin- son, 477 U.S. 57, 67 (1986) (noting that where the conduct has risen to a level of criminality, it is certainly actionable under Title VII); Langford, 2011 WL 672414, at *1; Tuscarora, 2010 WL 785376, at *1. 249 See Keller & Tracy, supra note 17, at 256 (“[D]iscomfort with how to evaluate conduct has also led to an unjustified number of summary dispositions for defendants and vacated jury determinations for plaintiffs.”); Schneider, supra note 1, at 530–31, 550. The standard for hostile work environment plaintiffs is that of an objective, reasonable person, and courts have “push[ed] the envelope” in granting defendants’ motions on these claims. See Beiner, supra note 157, at 74–75. To the extent that Twombly and Iqbal are just creating a new summary judgment stage earlier in the litigation, this phenomenon will take place at the pleading stage. See Schneider, supra note 1, at 530–31. 250 See Noll, supra note 211, at 121–22 (questioning the judicial discretion argument and stating that “there are reasonable arguments that Iqbal did not enact as radical a change in federal practice as critics have assumed”). 251 See id. at 138–40; Daniel W. Robertson, In Defense of Probability: Ashcroft v. Iqbal and What the Plausibility Standard Really Means, 38 Pepp. L. Rev. 111, 150–51 (2010). 252 Robertson, supra note 251, at 150–51. 180 Boston College Journal of Law & Social Justice [Vol. 32:151 argues that, at most, the court may consider additional factors limited to “judgmental facts” arising from essentially legal sources.253 Indeed, Professor Steinman argues that the plausibility inquiry could potentially be more forgiving to plaintiffs.254 It allows courts to weigh a complaint that omits a claim element by examining surrounding allegations and determining if they plausibly suggest the existence of the omitted element.255 Applying such a reading to the Tuscarora and Langford cases, even if the complaints had not alleged an element of the claim, the plausibility inquiry could have saved them from dismissal.256

IV. Making a Choice: Arguing for Reading Twombly and Iqbal to Confer Less Judicial Discretion and More Substantive Right Given that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal leave open interpretive issues, one may argue that lower courts should not use the new pleading standards with unreviewable discretion.257 The approaches taken in Twombly and Iqbal were specific to fact and context, so one may infer that the level of discretion—even if granted in those cases—need not be read into other areas of the law.258 Though the federal rules apply equally throughout the civil litigation system, Twombly and Iqbal’s narrow interpretation would not radically depart from notice pleading or empower judges with unbridled discretion.259 There- fore, lower courts should not interpret the standard as giving them free reign to dismiss claims in all areas of the law, and particularly not in the area of employment discrimination.260

253 Noll, supra note 211, at 139. 254 Steinman, supra note 11, at 1319 (“Properly understood, the plausibility aspect of Twombly and Iqbal makes the pleading standard more forgiving, not less.”). 255 See id. at 1319–20. 256 See Langford, 2011 WL 672414, at *1, *8–*9; Tuscarora, 2010 WL 785376, at *1–*3; Steinman, supra note 11, at 19–20. 257 See Noll, supra note 211, at 121–22. 258 See id. at 132. 259 See Hartnett, supra note 214, at 481; Miller, supra note 3, at 40; Noll, supra note 211, at 121. Furthermore, Iqbal dashed the hope that this standard only applies to certain areas through its explicit holding that it applies to all civil actions. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). 260 See Iqbal 129 S. Ct at 1950 (“determining whether a complaint states a plausible claim for relief” should be a “context-specific task”); Noll, supra note 211, at 121; Seiner supra note 8, at 195–96 (arguing that it is more plausible to allege employment discrimination than either of the claims asserted in Twombly or Iqbal). 2012] Twombly & Iqbal and Hostile Work Environment Claims 181

A. The Court’s Analysis in Twombly and Iqbal Requires a Context-Specific Interpretation Lower courts should not interpret Twombly and Iqbal to allow unbridled discretion in evaluating motions to dismiss because the Su- preme Court applied the standard contextually.261 In Twombly, the Court held that a bare allegation of illegal conspiracy was not sufficient, “absent factual context suggesting agreement.”262 Iqbal affirmed the contextual nature of the inquiry, noting that determining plausibility is a “context-specific” task.263 Thus, lower courts should be mindful of a case’s legal and factual context before dismissing a complaint.264 Given employment discrimination’s prevalence, courts should view those complaints with more deference than ones alleging antitrust or governmental conspiracies.265 Even proponents of this reading, however, acknowledge that the new pleading standard does allow for some judicial discretion.266 Taking into account the context-specific nature of Twombly and Iqbal, however, judicial discretion should rely on the area of law giving rise to the complaint and not personal views.267 In Twombly, for example, the majority relied on commentators to decide that parallel conduct is not indicative of an unlawful agreement.268 The majority also noted that the Court previously hedged against false inferences from identical behavior.269 Similarly, the Iqbal majority relied on “essentially legal sources” in dismissing the claim as implausible.270 First, the Court relied on the sub-

261 See Miller, supra note 3, at 36–38. Professor Miller notes that it is a significant source of optimism that the concepts may be malleable enough to enable a judge to apply them in a manner “consistent with systemic values.” Id. at 36. Furthermore, “context may confine the [Court’s] seemingly unbridled grant of discretion.” Id. at 38. 262 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 548–49, (2007). 263 Iqbal, 129 S. Ct. at 1950. Iqbal, by its own language, was extraordinary and the Su- preme Court might have upended pleading standards in a way that would not apply to other cases. See id. at 1945 (quoting Judge Cabranes who noted that these defendants were charged with responding to “a national and international security emergency unprecedented in the history of the American Republic”); Steinman, supra note 12, at 1326–27; see also Miller, supra note 3, at 32 (acknowledging that Iqbal ’s sensitive nature may have had as much to do with the ruling than a desire to change the legal standards). 264 See Iqbal, 129 S. Ct. at 1948–49; Twombly 550 U.S. at 554 n. 4. 265 See Seiner, supra note 8, at 196. 266 See Hartnett, supra note 214, at 496, 499 (“Different judges with different life experiences can be expected to view plausibility differently because they have a different understanding of what is ordinary, commonplace, natural, or a matter of common sense.”). 267 See Noll, supra note 211, at 139–40; Robertson, supra note 251, at 150–51. 268 Twombly, 550 U.S. at 556 n.4. 269 Id. at 554. 270 See Noll, supra note 211, at 138–39. 182 Boston College Journal of Law & Social Justice [Vol. 32:151 stantive law of Bivens that requires purpose, and not merely knowledge, to establish a supervisor’s liability for a subordinate’s unconstitutional conduct.271 Second, the Court invoked the common law presumption that official activity is lawful.272 That presumption led the Court to start from a baseline that Ashcroft and Mueller likely acted legally.273 Under this reasoning, pleading standards in hostile work environment cases should incorporate hostile work environment doctrine in two ways.274 First, the allegations should not be rejected simply because the judge finds them unbelievable.275 Second, the complaints should not be rejected as implausible based on “judicial experience and common sense” without reference to the surrounding law.276 Thus, a judge’s subjective assessment should be limited to precedent and commentators within that particular area of law, just as in Twombly.277

B. Construing Twombly and Iqbal to Allow Such Discretion Would Overrule Established Law Lower courts should not interpret Twombly and Iqbal to grant unbridled discretion to dismiss cases because doing so would be inconsistent with the Federal Rules of Civil Procedure and Supreme Court precedent.278 The Supreme Court proclaimed that Twombly and Iqbal did not uproot the notice pleading standard, regardless of criticism to the contrary.279 The pre-Twombly regime is founded upon the Federal Rules of Civil Procedure and the Court has repeatedly stated that it may not amend the rules by judicial interpretation.280 For Twombly and Iqbal to establish a heightened pleading standard with respect to employment discrimination, they would have to be read

271 See id. at 138. 272 Id. at 138–39. 273 See id. 274 See Medina, supra note 15, at 315; Noll, supra note 211 at 139; Seiner, supra note 8, at 206. Professor Seiner argues that the unique role of summary judgment in all employment discrimination cases should play into a court’s analysis at the pleading stage. Seiner, supra note 8, at 206. 275 See Steinman, supra note 11, at 1340. 276 See Noll, supra note 211, at 140–41. 277 See Twombly, 550 U.S. at 556 n.4; Hartnett, supra note 214, at 496; Noll, supra note 211, at 139–40. There might be a problem with lower courts following established Su- preme Court doctrine on what constitutes a hostile work environment. See Keller & Tracy, supra note 17, at 249. Nevertheless, they should apply that doctrine before dismissal at the pleading stage. See Noll, supra note 211, at 139–41. 278 See Steinman, supra note 11, at 1299, 1340. 279 See id. at 1320–22. 280 See id. at 1320. 2012] Twombly & Iqbal and Hostile Work Environment Claims 183

as overruling Swierkiewicz v. Sorema N.A.281 The only element the Twombly and Iqbal decisions explicitly abrogated is the “no set of facts” language in Conley v. Gibson.282 Some argue that this abrogation effectively over- rules Swierkiewicz, but other commentators suggest that it remains good law.283 Therefore, lower courts should not disregard Swierkiewicz in the employment litigation context because it is still precedent, “even if later decisions undercut an earlier case’s reasoning.”284 More importantly, the complaint in Swierkiewicz probably suggests a claim to relief, even under Iqbal.285 Swierkiewicz’s complaint described the conditions surrounding his termination, including age, nationality, and subsequent replacement by a younger, less experienced employee from the same country as his supervisor.286 A court, however, may find any of those discriminatory intent allegations conclusory.287 Therefore, to find Swierkiewicz’s claim plausible, the Court would have to infer that element from the facts alleged.288 The very same inferences should apply to all employment claims, including hostile work environment claims.289

Conclusion If Twombly and Iqbal are read to limit unbridled judicial discretion, they will not operate to exclude hostile work environment plaintiffs from court. If alternative readings are adopted, however, these cases could have that very effect, thereby raising additional barriers to victims of discrimination and giving already skeptical courts another docket- clearing tool. This could result in the dismissal of meritorious claims,

281 See Noll, supra note 211, at 147 (arguing that Swierkiewicz still controls as a matter of law because it is a Supreme Court case and is clearly applicable to the evaluation of an employment discrimination complaint). 282See Steinman, supra note 11, at 1321. 283 See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009); Noll, supra note 211, at 145; Steinman, supra note 11, at 1322. 284 Noll, supra note 211, at 145; see Steinman, supra note 11, at 1323. 285 Noll, supra note 211, at 145. 286 See Swierkiewicz v. Sorema, 534 U.S. 506, 508–09 (2002). 287 See Iqbal, 129 S. Ct. at 1951–52; Noll, supra note 211, at 145 (“[L]ike many employment discrimination plaintiffs, Swierkiewicz could not point to a smoking gun showing he was the victim of unlawful discrimination prior to discovery.”). Iqbal held that the allegations were conclusory because there were no facts in the complaint showing that Ashcroft and Mueller adopted the policy not in spite of its discriminatory effects, but because of its discriminatory effects. Iqbal, 129 S. Ct. at 1951–52. The same could be said of Swierkiewicz’s allegation that he was fired because of his age. See Noll, supra note 211, at 145. 288 See Noll, supra note 211, at 145. 289 See id. at 145–46. 184 Boston College Journal of Law & Social Justice [Vol. 32:151 leaving aggrieved parties with no relief in the federal courts. It is therefore imperative, for the benefit of hostile work environment plaintiffs, and indeed for all plaintiffs in employment discrimination cases, that judicial discretion in motions to dismiss is not unbridled. INSECURE COMMUNITIES: HOW AN IMMIGRATION ENFORCEMENT PROGRAM ENCOURAGES BATTERED WOMEN TO STAY SILENT

Radha Vishnuvajjala*

Introduction When Maria Bolanos called the police during a fight with her partner, she never imagined that a call for help could lead to her own deportation.1 A police officer responded to the call from the twenty- eight-year-old Salvadoran undocumented immigrant, but ended up charging her with illegally selling a phone card to a neighbor.2 The police later dropped the charge, but not before fingerprinting Bolanos.3 Under the Secure Communities program, officers cross-referenced her fingerprints with a federal immigration database maintained by Immi-

* Articles Editor, Boston College Journal of Law & Social Justice (2011–2012). 1 Shankar Vedantam, Destined for Deportation? Salvadoran Woman Targeted by Program De- signed to Catch Undocumented Criminals, Wash. Post, Nov. 1, 2010, at B1. 2 Id.; Erin Pangilinan, Domestic Violence Victim Calls Out ICE Assistant Director on her Deporta- tion, Change.org (Nov. 29, 2010), http://news.change.org/stories/domestic-violence-victim- calls-out-ice-assistant-director-on-her-deportation. 3 Vedantam, supra note 1.

185 186 Boston College Journal of Law & Social Justice [Vol. 32:185 gration and Customs Enforcement (ICE).4 Because Bolanos had been previously fingerprinted after customs officials caught her illegally entering the United States, she was flagged for deportation.5 Secure Communities was designed to improve public safety by identifying and removing criminal aliens.6 ICE claims that Secure Communities “prioritiz[es] the removal of criminal aliens, those who pose a threat to public safety, and repeat immigration violators,” but Bolanos’ current predicament may prove otherwise.7 Even though police later dropped the phone card charge, Bolanos’ fingerprints were the first step toward deportation proceedings.8 Bolanos’ story demonstrates how Secure Communities not only removes dangerous criminals from communities, but also is used as a widespread immigration enforcement tool.9 Using Secured Communities as a broad enforcement mechanism undermines the relationship between undocumented immigrants and local law enforcement by making victims of crime hesitant to ask for help.10 In instances of domestic violence, the risk of contacting the police is further compounded by barriers of language, culture, and dependency on documented, abusive partners.11 Undocumented domes-

4 Id.; Erin Pangilinan, Mother Battles Secure Communities and Deportation, Change.org (Dec. 29, 2010),http://news.change.org/stories/mother-battles-secure-communities-and- deportation. 5 Vedantam, supra note 1. 6 See id.; Secure Communities, U.S. Immigr. & Customs Enforcement, http://www.ice. gov/secure_communities (last visited Nov. 1, 2011). 7 Secure Communities, supra note 6; see Vedantam, supra note 1. 8 Vedantam, supra note 1. 9 See id. 10 See Katerina Shaw, Note, Barriers to Freedom: Continued Failure of U.S. Immigration Laws to Offer Equal Protection to Immigrant Battered Women, 15 Cardozo J.L. & Gender 663, 678 (2009); Sarah M. Wood, Note, VAWA’s Unfinished Business: The Immigrant Women Who Fall Through the Cracks, 11 Duke J. Gender L. & Pol’y 141, 151–52 (2004); Vedantam, supra note 1. Strong relationships between police officers and the communities they are in charge of protecting are necessary for effective law enforcement. See Jason G. Idilbi, Local Enforcement of Federal Immigration Law: Should North Carolina Communities Implement 287(g) Authority?, 86 N.C. L. Rev. 1710, 1728–29 (2008). Not only does the community depend on the police for protection, but the police depend on the community to report crimes and serve as witnesses. Id. at 1728; see David Hench, Building Trust vs. Checking for Visas: Making Police Enforce Immigration Laws Could Actually Detract from Crime Fighting, Some Officials Say, Portland Press Herald, Mar. 29, 2004, at 1B. 11 See Lee J. Teran, Barriers to Protection at Home and Abroad: Mexican Victims of Domestic Violence and the Violence Against Women Act, 17 B.U. Int’l L.J. 1, 12 (1999). One study indicated that among immigrant Latina women in Washington, D.C., seventy-seven percent were victims of abuse. Id.; see H.R. Rep. No. 103-395, at 26–27 (1993). Immigrant women, and especially undocumented women, are at particular risk for violence because they already face language and cultural barriers to receiving social services. Teran, supra, at 12; see

2012] How Secure Communities Encourages Battered Women to Stay Silent 187 tic violence victims—mostly women—are less likely to report abuse than documented or non-immigrant victims because they fear being reported to immigration authorities.12 Undocumented women are especially vulnerable when their abusive partners are documented because a documented abuser has no fear of deportation and therefore has another element of power.13 Abusers may exert their control by threatening deportation or blocking their victims from obtaining lawful status.14 This Note argues that Secure Communities should only cross- check fingerprints of those accused of serious crimes, thereby preserving the relationship between police and undocumented victims of domestic violence.15 Part I describes the problem of domestic violence

Leslye E. Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 Fam. L.Q. 313, 316–17 (1995); Susan Girardo Roy, Note, Restoring Hope or Tolerat- ing Abuse? Responses to Domestic Violence Against Immigrant Women, 9 Geo. Immigr. L.J. 263, 267 (1995) (citing Christine Whalen & Martha King, Abuse in a New Land: Immigrant Wives Often Isolated, Vulnerable, Seattle Times, Aug. 8, 1994, at A1). Undocumented women are especially deterred from seeking help from law enforcement because they lack “the legal status or the employment authorization necessary to support themselves and their children.” Teran, supra, at 12; accord H. Rep. No. 103-395, at 26–27. Undocumented women also face threats of deportation from their partners and loss of child custody, making them less likely to seek help from law enforcement regarding an abusive partner. Teran, supra, at 12; see H.R. Rep. No. 103-395, supra, at 26–27. 12 Molly Dragiewicz & Yvonne Lindgren, The Gendered Nature of Domestic Violence: Statisti- cal Data for Lawyers Considering Equal Protection Analysis, 17 Am. U. J. Gender Soc. Pol’y & L. 229, 256 (2009); Mary Ann Dutton et al., Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas: Legal and Policy Implications, 7 Geo. J. on Pov- erty L. & Pol'y 245, 293 (2000); Nat Stern & Karen Oehme, Increasing Safety for Battered Women and Their Children: Creating a Privilege for Supervised Visitation Intake Records, 41 U. Rich. L. Rev. 499, 501 n.11 (2007); Teran, supra note 11, at 12; Shaw, supra note 10, at 678; Juliette Terzieff, More Services Reach Abused Immigrant Women, Women’s eNews, 1, 3 (Aug. 11, 2005), http://www.ncdsv.org/images/moreservicesreachabuseimmigrantwomen.pdf. In one study, sixty-five percent of battered immigrant women reported that their batterer had threatened them with deportation. Shaw, supra note 10, at 666; see Giselle Aguilar Hass et al., Battered Immigrants and U.S. Citizen Spouses, Legal Momentum, 1, 3 (Apr. 24, 2006), http://www.legalmomentum.org/assets/pdfs/wwwbatteredimmsanduscspouses.pdf. 13 See Teran, supra note 11, at 12. If the man is documented and the woman is not, she may perceive him to be less resistant to calling immigration authorities because he would have no fear of deportation himself. See Hass et al., supra note 12, at 3–4. 14 Idilbi, supra note 10, at 1732 n.125; Hass et al., supra note 12, at 3; see Gail Pendleton, Local Police Enforcement of Immigration Laws and Its Effects on Victims of Domestic Violence, A.B.A. Commission on Domestic Violence, 1, 1, http://www.nationalimmigrationproject.org/le- gal_archives/Archive_Local%20Enforcement%20and%20Domestic%20Violence-1.doc (last visited Sept. 26, 2011). 15 This Note focuses on domestic violence in heterosexual relationships, where women tend to be victims and men their abusers. This is not always the case, but studies show that women are at greater risk of violence from male partners than men are from their female partners. Dragiewicz & Lindgren, supra note 12, at 256; Stern & Oehme, supra note 12, at 501 n.11. There are relatively few cases involving men as victims with women as perpetrators and,

188 Boston College Journal of Law & Social Justice [Vol. 32:185 against undocumented immigrants, the importance of trust between law enforcement and the immigrant community, and language barriers that immigrants face in seeking assistance. Part II describes the Secure Communities program, including the history of collaboration between local and federal law enforcement and the impetus for the program. Finally, part III argues that ICE must decisively reform the Secure Communities program to protect those victims of domestic violence by using a proposed three-step process.

I. Domestic Violence, Undocumented Immigrants, and Local Law Enforcement Undocumented women face barriers in the form of society at large, the culture and customs of their native countries, and often times their inability to communicate effectively in the English language.16 These barriers can create a rift between law enforcement officials and the undocumented immigrant community that they serve.17 These factors, in combination with a fear of deportation, make undocumented women reluctant to ask for help.18

A. Domestic Violence Perpetrated Against Immigrant Women Immigrants, especially those perceived to be undocumented, are frequently victims of crime.19 Undocumented immigrants are easy prey

in those cases, “much of female violence is committed in self-defense and inflicts less injury than male violence.” Stern & Oehme, supra note 12, at 502 n.11; accord Dragiewicz & Lindgren, supra note 12, at 256. 16 See Karin Wang, Battered Asian American Women: Community Responses from the Battered Women’s Movement and the Asian American Community, 3 Asian L.J. 151, 162–63 (1996); Shaw, supra note 10, at 665; Wood, supra note 10, at 150–52; see Idilbi, supra note 10, at 1728–29. 17 See Wang, supra note 16, at 162–63. 18 See Dutton et al., supra note 12, at 293; Idilbi, supra note 10, at 1728–29. 19 Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 Iowa L. Rev. 1449, 1450–55 (2006); Christopher Carlberg, Note, Cooperative Noncooperation: A Proposal for an Effective Uniform Noncooperation Immigration Policy for Local Governments, 77 Geo. Wash. L. Rev. 740, 748 (2009); Wang, supra note 16, at 162–63; Shaw, supra note 10, at 665; Wood, supra note 10 at 150–52; see, e.g., Matt Hughes, Leaders: Learn from Hate, Times Leader, Jan. 29, 2011, at 1A (describing the 2008 beating that led to the death of an undocumented Mexican immigrant); Sarah Netter, Hating Hispanics: Has Arizona Ignited Firestorm After Decade of Simmering Tension?, ABC News ( July 19, 2010), http://abcnews. go.com/US/hating-hispanics-arizona-ignited-firestorm-decade-simmering-tension/story?id =11179708; Staten Island Teen to Serve Time for Attack on Mexican Immigrant, NY1 News, http://www.ny1.com/content/top_stories/134218/staten-island-teen-to-serve-time-for-attack- on-mexican-immigrant (last updated Feb. 18, 2011, 5:44PM). 2012] How Secure Communities Encourages Battered Women to Stay Silent 189 because they are reluctant to report crimes to police.20 Therefore, criminals perceive them as having no source of protection and they are likely to be repeatedly victimized.21 This police-averse mentality also enters the home, where domestic violence against undocumented immigrants often goes unreported and unresolved.22 Domestic violence is an increasingly pervasive problem in American society— “a woman is assaulted by her partner every fifteen seconds and each year 1500 women are killed as a result of domestic violence.”23 These numbers, however, only reflect reported domestic violence incidents.24 Domestic violence statistics show a stark divide when examined by immigration status.25 Immigrant women are the most vulnerable group among victims of domestic violence.26 Estimates show that nearly sixty percent of married immigrant women are in abusive relationships.27 They are also less likely to report abuse than documented or nonimmigrant women.28 While fifty-five percent of all domestic violence victims report their abuse to law enforcement officials, only thirty per-

20 Kittrie, supra note 19, at 1451–52; Carlberg, supra note 19, at 748. 21 See Carlberg, supra note 19, at 748–49. 22 See id.; see, e.g., Laura Jontz, Note, Eighth Circuit to Battered Kenyan: Take a Safari— Battered Immigrants Face New Barrier When Reporting Domestic Violence, 55 Drake L. Rev. 195, 196 (2006). 23 Jontz, supra note 22, at 196–97. 24 Id. According to one 2009 report, twenty-seven percent of domestic violence victims in the prior year did not report the incident to police. Ramsey Hanafi, Over One-Fourth of Domestic Violence Incidents Go Unreported, Legal Match (Apr. 22, 2009), http://lawblog. legalmatch.com/2009/04/22/over-one-fourth-of-domestic-violence-incidents-go-unreported. Accurate statistics, however, are difficult to obtain. See C. J. Newton, Domestic Violence Statis- tics: Prevalence and Trends, FindCounseling.com (Feb. 2001), http://www.findcounseling. com/journal/domestic-violence/domestic-violence-statistics.html. The precise incidence of domestic violence in America is difficult to determine for several reasons: it often goes unreported, even on surveys; there is no nationwide organization that gathers information from local police departments about the number of substantiated reports and calls; and there is disagreement about what should be included in the definition of domestic violence. “One study estimated that more than 3% (approximately 1.8 million) of women were severely assaulted by male partners or cohabitants over the course of a year, while other studies indicate the percentage of women experiencing dating violence . . . ranges as high as 65%. Id. (quoting Joy D. Osofsky, The Impact of Violence on Children, 9 Future of Child., Winter 1999, at 33, 34). 25 See Shaw, supra note 10, at 663. 26 Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 Minn. L. Rev. 1625, 1696 (2007); Shaw, supra note 10, at 663; see Hass et al., supra note 12, at 3. 27 Jontz, supra note 22, at 197. 28 Shaw, supra note 10, at 678. 190 Boston College Journal of Law & Social Justice [Vol. 32:185 cent of documented immigrants turn to law enforcement for help and the number drops to fourteen percent for undocumented women.29 Many undocumented victims indicate that fear of being reported to immigration authorities is one of their primary reasons for remaining in an abusive relationship.30

1. Social Barriers Abusive partners often tend to socially isolate their undocumented victims from society.31 An undocumented woman is especially vulnerable when her abusive partner is documented because her immigration status then becomes another form of leverage that abuser may use to isolate her.32 Abusers frequently exploit their partners’ immigration status to exert further control by threatening deportation or creating barriers during victims’ attempts to gain lawful status.33 Undocumented victims may then feel reliant on abusers, especially when American laws are difficult to comprehend and victims do not know of, understand, or trust legal aid programs.34 Abusers often prohibit contact with friends and family or forbid the victim to work or attend school.35 Isolation furthers domestic violence because the undocumented victim is cut off from potential sources of support and assistance.36 For example, a woman named Luisa came to the United States illegally from Mexico.37 She initially had the support of her friends and family, but this changed after she married her hus-

29 Id. 30 Dutton et al., supra note 12, at 293 (stating that 21.7% of the surveyed battered immigrant women listed fear of being reported to immigration officials as one of their primary reasons for remaining in the abusive relationship). 31 See Margot Mendelson, The Legal Production of Identities: A Narrative Analysis of Conver- sations with Battered Undocumented Women, 19 Berkeley Women’s L.J. 138, 163 (2004). 32 See Shaw, supra note 10, at 665. 33 Hass et al., supra note 12, at 3. 34 Mendelson, supra note 31, at 183. This lack of education tends to persist until a woman receives legal status because many undocumented women are too afraid to enroll in school and feel uncomfortable dealing with people outside their homes. Id. The legal system, and immigration law in particular, is very complex. Linda Kelly Hill, The Right to Be Heard: Voicing the Due Process Right to Counsel for Unaccompanied Alien Children, 31 B.C. Third World L.J. 41, 62 (2011). This complexity seriously undermines the ability of unrepre- sented individuals to navigate the system. Id. When litigants must rely on attorneys, immigrants who do not speak English are at an even greater disadvantage than other unrepre- sented persons. See id. 35 Leslye E. Orloff et al., Battered Immigrant Women’s Willingness to Call for Help and Police Response, 13 UCLA Women’s L.J. 43, 81 (2003); see Shaw, supra note 10, at 665. 36 Orloff et al., supra note 35, at 81. 37 Mendelson, supra note 31, at 163. 2012] How Secure Communities Encourages Battered Women to Stay Silent 191

band, who was a U.S. citizen.38 He became abusive and possessive, causing her to feel isolated from the community and unable to seek help.39 Although abuse initially causes the isolation, friends and family may worsen a situation by warning victims not to leave abusive partners because life would be too hard as a single, undocumented immigrant.40 For example, another undocumented and abused woman, Leticia, found herself in a social network comprised entirely of her husband’s friends and relatives with no support of her own.41 Her mother-in-law exacerbated the situation by threatening to call the police and have her deported if she complained about her husband’s violence.42 An undocumented immigrant from El Salvador was so desperate to leave her abusive boyfriend that she tried to jump out of a moving car.43 He then grabbed her and beat her in the street, but she never reported the incident because of her illegal status.44 One undocumented woman from Mexico married a U.S. citizen and spent five years in an abusive relationship with him.45 Her husband repeatedly raped her and even threatened to kill their two children, but she failed to report the abuse in fear of deportation.46 Without support outside of abusive relationships, many undocumented victims remain unaware that domestic violence is a crime in the United States or that there are services available.47

2. Cultural Barriers In addition to the social barriers that isolate undocumented domestic violence victims, there are also cultural barriers—norms and customs—that discourage women from standing up to domestic violence.48 In many Asian cultures, society is centered around groups.49 Fami- lies are the most important social units, and members of many Asian communities are expected to put the needs of the family above their

38 Id. 39 Id. 40 Id. at 164–65. 41 Id. at 164. 42 Mendelson, supra note 31, at 164. 43 Jontz, supra note 22, at 196. 44 Id. 45 Id. 46 Id. 47 See, e.g., Wang, supra note 16, at 162–63. 48 See id. at 168–72; Wood, supra note 10, at 151–52. 49 Wang, supra note 16, at 168. 192 Boston College Journal of Law & Social Justice [Vol. 32:185 own.50 Traditionally, many Asian cultures consider women secondary to men, as evidenced by marriage customs.51 Women would stay at home while men worked to support the family, thereby merging a woman’s identity with that of her family.52 When this subordinate role persists in modern times, women may be reluctant to break out of the traditional family unit in an effort to stop domestic violence.53 These norms make women feel that they must protect the family reputation at their own expense because one family member’s guilt or shame extends to the rest of the family.54 One example of this strong sense of family reputation is the story of Kim Seng, a Cambodian woman murdered by her abusive husband.55 Just one week before the murder, Seng’s family organized an intervention to ask her husband to stop his beatings and encourage them to stay together.56 Seng’s mother later admitted, “‘I didn’t sense the danger because I was so focused on the shame my daughter’s actions would bring in the Cambodian community’ . . . . ‘And I was thinking about my daughter’s children and the importance of their having a family.’”57 This same family-centric culture precludes the option of divorce because it would break up the family unit and bring shame to the family.58

50 Evelyn Lee, Overview: The Assessment and Treatment of Asian American Families, in Working with Asian Americans: A Guide for Clinicians 7 (Evelyn Lee ed., 1997); Tam B. Tran, Using DSM-IV to Diagnose Mental Illness in Asian Americans, 10 J. Contemp. Legal Issues 335, 342–43 (1999); Wang, supra note 16, at 168–69; see Carolyn Jin-Myung Oh, Questioning the Cultural and Gender-Based Assumptions of the Adversary System: Voices of Asian- American Law Students, 7 Berkeley Women’s L.J. 125, 167 (1992). 51 Wang, supra note 16, at 169. In many Asian cultures, marriages “were frequently pre- arranged [and] often involved an exchange of money from the groom’s family to the bride’s family,” much like in a sale, indicating that the wife would be subject to the will of the husband. Id.; see Christine K. Ho, An Analysis of Domestic Violence in Asian American Com- munities: A Multicultural Approach to Counseling, 9 Women & Therapy 129, 131 (1990). Al- though these traditions seem outdated, they still exist to some extent in modern times in the United States. See Ho, supra, at 136–37; Wang, supra note 16, at 169 n.105. “In a study in Seattle on domestic violence, Vietnamese men expressed a sense of ownership over their wives and Vietnamese, Laotian, and Khmer women all said that they could not refuse their husbands’ requests for sex without a good excuse.” Wang, supra note 16, at 169 n.105; see Ho, supra, at 141. 52 Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 Stan. L. Rev. 1311, 1318 (1991); Wang, supra note 16, at 169. 53 Wang, supra note 16, at 169–72. 54 Ho, supra note 51, at 134; Wang, supra note 16, at 169. 55 Geeta Anand, Mother’s Regret Raises Abuse Issue, Bos. Globe, May 8, 1994, at 29. 56 Id. 57 Id. 58 See Wang, supra note 16, at 170. 2012] How Secure Communities Encourages Battered Women to Stay Silent 193

Similarly powerful social norms about how a wife and mother should behave exist in the Latino immigrant community.59 This dy- namic can be illustrated by one commentator’s description: Within the Latino community, Latinas’ identities are defined on the basis of their roles as mothers and wives. By encouraging definitions of Latinas as interconnected with and dependent upon status within a family unit structure, the Latino patriarchy denies Latinas individuality on the basis of gender. For Latinas, cultural norms and myths of national origin in- tersect with these patriarchal notions of a woman’s role and identity. The result is an internal community-defined role, modified by external male-centered paradigms.60 These cultural norms, even without considering the possibility of deportation, can make women increasingly reluctant to report violence.61 In a survey of battered Latina immigrant women, 48.2% chose to stay with their abusers in fear of losing their children, 41.2% did not want to separate their children from their father, 18.8% cited the perception that a good wife and mother does not leave her family, and 18.8% would not leave for religious reasons.62 Each of these cultural norms about the role of a woman as a wife and mother create a barrier between battered women and the assistance they need.63

3. The Language Barrier Battered women may also be unable to seek help from abusive relationships when a language barrier hinders effective communication with law enforcement officers.64 When an officer cannot understand

59 Orloff et al., supra note 35, at 82; Jenny Rivera, Domestic Violence Against Latinas by La- tino Males: An Analysis of Race, National Origin, and Gender Differentials, 14 B.C. Third World L.J. 231, 240–41 (1994); Wood, supra note 10, at 151. 60 Rivera, supra note 59, at 241; accord Wood, supra note 10, at 151–52. 61 See Orloff et al., supra note 35, at 82; Wood, supra note 10, at 151–52. 62 Orloff et al., supra note 35, at 82 (citing Dutton et al., supra note 12, at 245 (discussing a study conducted from 1992 to 1995)). 63 Id. 64 Id. at 75; Wood, supra note 10, at 150. Foreign languages are often spoken at home, and one study on Asian-American immigrant communities indicates that over seventy-five percent speak their native language at home. Wang, supra note 16, at 164. A 1993 book, commissioned by the Social Science Research Council’s National Committee for Research on the 1980 Census, reports that 79.5% of Chinese immigrants, 63.8% of Filipino immigrants, 76.8% of Korean immigrants, 60.1% of Asian Indian immigrants, and 83.4% of Vietnamese immigrants speak their native language at home. Herbert R. Barringer et

194 Boston College Journal of Law & Social Justice [Vol. 32:185 the victim and either ignores or fails to resolve her underlying issue, she may be less likely to seek help in the future.65 A language barrier prevents police from effectively protecting the entire community.66 This creates a danger of marginalizing entire immigrant populations.67 For example, according to one study, seventy-two percent of foreign- born Latinos in the United States consider Spanish their dominant language, while only twenty-four percent consider themselves bilingual.68 Additionally, fifty-five percent of foreign-born Latinos have less than a high school education, thereby making communication of complex legal procedures even more difficult.69 Likewise, law enforcement agencies do not always have bilingual staff sufficient to serve those lacking proficiency in English—especially outside of large metropolitan areas.70 Therefore, when police cannot communicate with domestic violence victims, they may instead interview others at the scene.71 Without direct communication with the victim, however, officers will likely be confronted with the cultural barriers that cause witnesses to downplay or deny abuse.72 Law enforcement efficacy further deteriorates when only the abuser speaks English, as he is not likely to incriminate himself.73 Furthermore, if the police do not arrest the abuser, he may retaliate against the victim after the police leave.74 For example, one survey of Latino domestic violence victims reported that in nearly one third of domestic violence police responses, officers did not speak directly to the victim.75 Furthermore, eleven percent of respondents indicated that police only spoke to the abuser, and thirty-four percent said an officer spoke to them in Spanish.76 Overall, less than one quarter of respondents could communicate in English al., Asians and Pacific Islanders in the United States 187 (1995); Wang, supra note 16, at 164. 65 Orloff et al., supra note 35, at 75. 66 Id.; Carlberg, supra note 19, at 742; see, e.g., Mendelson, supra note 31, at 170; infra notes 87-110. 67 See Orloff et al., supra note 35, at 75. 68 Wood, supra note 10, at 150–51. 69 See id. at 151. 70 Id. 71 See Orloff et al., supra note 35, at 90–91. 72 See id. 73 See id. at 54 n.51. 74 See id. 75 Id. at 90–91. The survey was a large-scale research project conducted from 1992 to 1995 and participants were immigrant Latinas in the Washington, D.C. metropolitan area. Id. (citing Dutton et al., supra note 12, at 245 (discussing the study conducted from 1992 to 1995)). 76 Orloff et al., supra note 35, at 90–91. 2012] How Secure Communities Encourages Battered Women to Stay Silent 195 and over twenty-five percent stayed with their abusers because of their inability to speak English.77 These results are not unique to the Latino community and are likely attributable to the language barrier between victims and police officers, too few of whom are bilingual.78 This communication hindrance can lead to the police arresting the victim instead of the abuser.79 For example, an Asian immigrant named Ling called the police when her husband attacked her with a chair.80 She used a fish knife to defend herself and her husband cut himself on the knife while attacking her—when the police arrived, Ling’s husband accused her of attacking him.81 He spoke English well but she did not, and the language barrier ultimately resulted in the police arresting Ling instead of her attacker.82 In these situations, the language barrier is even more harmful to the victim because the police may be more likely to believe the party with more proficiency in the English language.83 Language barriers also negatively affect immigrant domestic violence victims when they seek social services or legal protection.84 Victim advocates may not be able to effectively convey concepts of confidenti- ality or even indicate what services are available to domestic violence victims.85 The resulting feeling of hopelessness, coupled with a fear of

77 Id. at 82–83. In the survey, 93.8% of the battered immigrant women requesting police assistance experienced “severe physical abuse.” Id. at 71. Additionally, all respondents reported injury at the time of the call and nearly sixty percent had visible injuries when police arrived. Id. Over half reported physical evidence of domestic violence present on the crime scene—property in disarray, torn clothing, and violence or threats of abuse in the presence of police. Id. 78 See id. at 74, 90–91 (“The need for bilingual police officers and/or interpreters working with police forces in communities with significant immigrant populations has long been recognized.”); Wang, supra note 16, at 164; supra note 64. 79 Wang, supra note 16, at 165. 80 Id. at 162. 81 Margaretta Wan Ling Lin & Cheng Imm Tan, Holding Up More Than Half the Heavens: Domestic Violence in Our Communities, A Call for Justice, in The State of Asian America: Ac- tivism and Resistance in the 1990s, at 321, 327 (Karin Aguilar-San Juan ed., 1994); Wang, supra note 16, at 162, 164–65. 82 Lin & Tan, supra note 81, at 327; Wang, supra note 16, at 162–63. 83 See Wang, supra note 16, at 164–65; see, e.g., Lin & Tan, supra note 81, at 323. 84 See Orloff et al., supra note 35, at 71. 85 See Wood, supra note 10, at 151. Furthermore, the myriad public and private agencies devoted to helping victims of domestic violence can be so daunting that a woman may decide to not bother contacting each organization because, by contacting multiple agencies for different services, she could potentially reveal her immigration status to multiple people. See Orloff et al., supra note 35, at 90–91. Examples of public and private domestic abuse victim advocacy agencies include medical facilities, counseling centers, shelters, and hotlines. Wang, supra note 16, at 165. 196 Boston College Journal of Law & Social Justice [Vol. 32:185 revealing illegal immigration status, creates an atmosphere where victims are unlikely to seek help.86

B. The Relationship Between Undocumented Immigrants and Law Enforcement These social, cultural, and language barriers make it especially important that immigrant victims of domestic violence have trust in local law enforcement.87 Cultural notions of authority and fear of deportation may weaken the relationship between law enforcement officers and the community they police.88 Conversely, certain law enforcement initiatives, such as community policing and noncooperation policies, may strengthen the relationship.89

1. A Weakened Relationship Between Police and the Community Some refugees and other recent immigrants may distrust U.S. law enforcement officers by equating them with the corruption, brutality, and insensitivity of police in their native countries.90 For example, Mex- ico, the former home of many U.S. immigrants, ranked 72nd out of 180 in the 2008 Corruption Perception Index.91 One survey shows that four out of five Mexicans believe police are generally corrupt and take ad-

86 Wang, supra note 16, at 165. 87 Orloff et al., supra note 35, at 46–47; Wang, supra note 16, at 172–73; see, e.g., Men- delson, supra note 31, at 170. 88 Orloff et al., supra note 35, at 46–47; Wang, supra note 16, at 172–73; see, e.g., Men- delson, supra note 31, at 170. 89 See Dan M. Kahan, Reciprocity, Collective Action, and Community Policing, 90 Calif. L. Rev. 1513, 1513 (2002); Orloff et al., supra note 35, at 85; Carlberg, supra note 19, at 742. 90 Ki-Taek Chung & Nadja Zalokar, U.S. Comm’n on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s 53 (1992), available at http://www.eric.ed. gov/PDFS/ED343979.pdf; Police Exec. Research Forum, Community Policing: The Past, Present, and Future 134 (Lorie Fridell & Mary Ann Wycoff, eds., 2004), available at http://www.policeforum.org/library/community-policing/CommunityPolicingReduced. pdf; Orloff et al., supra note 35, at 47. United States law enforcement officers, too, are not always trustworthy: in 1991, New York City traffic police severely beat a Chinese immigrant because he misunderstood a request for his registration and got out of his car. Chung & Zalokar, supra, at 53. Police insensitivity also took root in 1989 in a small California town through “a general pattern of harassment of Filipino” youth, where officers frequently searched their car trunks and asked them if they were members of gangs. Id. at 54. 91 Luz E. Nagle, Corruption of Politicians, Law Enforcement, and the Judiciary in Mexico and Complicity Across the Border, 21 Small Wars & Insurgencies 95, 97 (2010). Mexico was given a “weak” rating in 2007 by Global Integrity, a non-profit organization that tracks corruption trends. See Global Integrity Report: Mexico: 2007, Global Integrity, http://report. globalintegrity.org/Mexico/2007 (last visited Oct. 27, 2011). In 2009, Mexico’s Global Integrity rating rose to the level of “moderate.” Global Integrity Report: Mexico: 2009, Global Integrity, http://report.globalintegrity.org/Mexico/2009 (last visited Oct.. 27, 2011). 2012] How Secure Communities Encourages Battered Women to Stay Silent 197

vantage of citizens.92 Also, many Mexican parents teach their children not to trust the police, and television programs in Mexico portray police “as corrupt and incompetent oafs or sinister antagonists.”93 In cases where the victims are women and children, such as domestic violence, Mexicans generally believe authorities are more willing to protect perpetrators than victims.94 These perceptions of law enforcement may stay with immigrants as they enter the United States, especially the undocumented immigrants who may already be distrustful from fear of deportation.95 Those undocumented immigrants predisposed to alienation may further distrust law enforcement officers who openly collaborate with federal immigration enforcement agencies.96 Undocumented immigrants are unlikely to cooperate in criminal investigations or report crimes if they believe doing so would subject them to deportation.97 The end result may be to undermine community safety through the added difficulty in charging criminals or obtaining convictions.98 Therefore, communities are best served by encouraging communication between undocumented immigrants and local law enforcement officers.99

2. Strengthening Relationships Between Police and the Community Local governments have tried to increase communication and trust between immigrant communities and law enforcement by enacting noncooperation policies.100 These policies limit the local government’s relationship with federal law enforcement, usually by ensuring that local law enforcement agents do not inquire into immigration

92 See Nagel, supra note 91, at 99. 93 Id. 94 Id. at 100. 95 See, e.g., Idilbi, supra note 10, at 1731; Nagle, supra note 91, at 99; Wang, supra note 16, at 173. For example, one undocumented woman spent eight years living in fear of deportation and would not even leave her own house lest she be arrested and deported. Mendelson, supra note 31, at 170. For that reason, she did not call the police when her husband violently abused her. Mendelson, supra note 31, at 170. 96 See, e.g., Mendelson, supra note 31, at 170. 97 Carlberg, supra note 19, at 741, 749; see, e.g., Mendelson, supra note 31, at 170. 98 Carlberg, supra note 19, at 741–42; see, e.g., Mendelson, supra note 31, at 170. Do- mestic violence can increase in frequency and severity over time, making it especially important that law enforcement officials and courts respond forcefully after an initial incident. See Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System, 11 Yale J.L. & Feminism 3, 7 (1999); Julia Weber, Domestic Violence Courts: Components and Considerations, 2 J. Center for Families, Child. & Courts 23, 24 (2000). 99 Carlberg, supra note 19, at 741–42. 100 Id. at 742. 198 Boston College Journal of Law & Social Justice [Vol. 32:185 status or withholding immigration information from federal authorities.101 Some such policies, however, have been preempted by federal statute, making some cooperation with federal enforcement officials compulsory.102 Alternatively, community policing programs are an effective way to strengthen the relationship between law enforcement officers and the community.103 Community policing often relies on traditionally marginalized groups, such as the immigrant community, to report crimes and other problems.104 The public helps law enforcement by looking

101 Id. In 1989, the Mayor of New York City, Edward Koch, issued Executive Order No. 124, which prohibited any city employee from reporting the immigration status of any individual to federal authorities, unless: (1) it was required by law, (2) the individual authorizes the immigration information to be transmit- ted to federal authorities, or (3) the individual had been engaging in criminal behavior. Id. at 747; accord City of N.Y., Exec. Order No. 124 (Aug. 7, 1989), available at http:// courts.state.ny.us/library/queens/PDF_files/Orders/ord124.pdf; see also City of New York v. United States, 179 F.3d 29, 31–32 (2d Cir. 1999). Similarly, Maine passed a noncooperation law that provides for disclosure of immigration status to federal authorities only if: i. the individual to whom such information pertains is suspected . . . of engaging in illegal activity, other than mere status as an undocumented alien; or ii. the dissemination of such information is necessary to apprehend a person suspected of engaging in illegal activity, other than mere status as an undocumented alien; or iii. such disclosure is necessary in furtherance of an investigation of potential terrorist activity; or iv. such disclosure is required by law. John E. Baldacci, Governor of Maine, An Order Concerning Access to State Services By All Entitled Maine Residents (Apr. 9, 2004), available at http://www.maine.gov/portal/government/governor (select the “Policy Initiatives” hyperlink, then select the “Executive Orders” hyperlink, then select the “Executive Order Archive” hyperlink, then select “An Order Concerning Access to State Services By All Entitled Maine Residents” hyperlink); Carlberg, supra note 19, at 752. 102 City of New York, 179 F.3d at 36–37; Carlberg, supra note 19, at 746. In 1996, Con- gress enacted section 434 of the Personal Responsibility and Work Opportunity Reconcilia- tion Act and section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act, which were enacted to prevent localities from enacting their own noncooperation laws. Carlberg, supra note 19, at 746; see H.R. Rep. No. 104-725, at 383 (1996) (Conf. Rep.); Huyen Pham, The Constitutional Right Not to Cooperate?: Local Sovereignty and the Federal Immi- gration Power, 74 U. Cin. L. Rev. 1373, 1374–76 (2006). In City of New York v. United States, the Second Circuit explained that “the City [did] not dispute that Congress has plenary power to legislate on the subject of aliens.” 179 F.3d at 34. The City therefore challenged the statutes on both the Tenth Amendment and the Guarantee Clause of the U.S. Consti- tution. Id. at 34, 36. The court, however, found that the statutory interference with New York’s executive order was permissible and upheld the statutes. Id. at 37. 103 See Kahan, supra note 89, at 1513; Orloff et al., supra note 35, at 85. 104 See Kahan, supra note 89, at 1513–15. 2012] How Secure Communities Encourages Battered Women to Stay Silent 199

for suspicious behavior, being aware of empty homes, and learning how to handle different emergencies.105 Programs are tailored to the needs of each particular community, but the underlying goal is to create a relationship that helps identify and stop crime and disorder.106 Community policing occurs incrementally by increasing a community’s trust in law enforcement.107 Law enforcement officers build trust not only with victims, but also with their social peers so that friends and family members will encourage victims to seek help.108 Lo- cal police departments may also develop stronger relations with communities by meeting with various immigrant groups to discuss their needs and issues.109 Because leaders of immigrant community groups are predominantly male, law enforcement officials may also need to contact women’s or domestic violence victim’s organizations in an attempt to learn the needs of those communities.110

II. Cooperation Between Federal and State Law Enforcement The federal government controls immigration law in the United States.111 Section 287(g) of the Immigration and Nationality Act (INA), however, allows federal law enforcement to enter into agreements with local law enforcement to enforce federal immigration law.112 Such agreements have strained the relationship between undocumented immigrants and community police officers, especially since the implementation of the Secure Communities program.113

105 Understanding the Responsibilities of an Officer and the Rights of a Civilian, Community- Policing.org, http://www.communitypolicing.org/officers-and-civilians (last visited Oct. 27, 2011) [hereinafter Community Policing]. 106 Suzanne Meiners, Comment, A Tale of Political Alienation of Our Youth: An Examina- tion of the Potential Threats on Democracy Posed by Incomplete “Community Policing” Programs, 7 U.C. Davis J. Juv. L. & Pol'y 161, 170 (2003); Community Policing, supra note 105. 107 See Orloff et al., supra note 35, at 85. 108 Id. at 85–86. 109 Id. at 85. 110 See id. 111 Yule Kim, The Limits of State and Local Immigration Enforcement and Regulation, 3 Al- bany Gov’t L. Rev. 242, 244 (2010); see Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); Chy Lung v. Freeman, 92 U.S. 275, 280 (1875); Henderson v. Mayor of New York, 92 U.S. 259, 270 (1875). 112 Immigration and Nationality Act § 287(g), Public Law No. 82-414, 8 U.S.C. § 1357 (2006); Kim, supra note 111, at 251. 113 See Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the Adjudica- tion of Fourth and Fifth Amendment Rights, 59 Duke L.J. 1563, 1584–85; see, e.g., Morgan John- son, New Police Chief Named After Immigration Policy Dispute, Brown Daily Herald, Mar. 10, 2011, at 12 (quoting Providence, Rhode Island Public Safety Commissioner Steven Pare in discussing the implementation of the Secure Communities program in Providence). 200 Boston College Journal of Law & Social Justice [Vol. 32:185

A. History of Cooperation Between Federal and Local Law Enforcement Immigration in the United States is controlled by the federal government and, as the Supreme Court has recognized, regulation of immigration is “‘unquestionably exclusively a federal power.’”114 There- fore, states and localities are limited in their abilities to regulate immigration matters, though they may enforce criminal provisions of federal immigration laws.115 Congress may, however, authorize state officers to enforce immigration laws.116 Congress may not compel states or com- mandeer state officers to enforce such laws, but it can prevent states from refusing to share immigration information with federal authorities.117 Section 287(g) of INA expressly authorizes the Secretary of Home- land Security to enter into agreements with states and localities to enforce federal immigration law.118 These agreements must dictate the specific functions state or local officers are required or allowed to perform.119 Section 287(g) agreements are limited to investigation, arrest, and detention; they do not authorize removal.120 Between the enactment of section 287(g) in 1996 and December of 2009, ICE “signed sixty-three memoranda of agreement (MOAs) with state and local law enfo rcement agencies.”121 Many of these agreements are limited in scope and only allow jail officials to report immigration violators to ICE.122 Others are broader, allowing local law enforcement officers to directly enforce immigration laws after a specified training period.123 Allegations surfaced, however, claiming that law enforcement officers were arresting immigrants solely

114 Kim, supra note 111, at 244 (quoting DeCanas v. Bica, 424 U.S. 351, 354 (1976)); see Fong Yue Ting, 149 U.S. at 705; Chy Lung, 92 U.S. at 280; Henderson, 92 U.S. at 270. 115 See Gonzales v. City of Peoria, 722 F.2d 468, 474–75 (9th Cir. 1983); Kim, supra note 111, at 244–45, 247–48. 116 Kim, supra note 111, at 251. 117 City of New York v. United States, 179 F.3d 29, 32–33 (2d Cir. 1999); Gonzales, 722 F.2d at 474–75; H.R. Rep. No. 104-725, at 383. Local governments are also restricted by federal statute in their discretion to use information that their officers collect regarding an individual’s immigration status. City of New York, 179 F.3d at 32–33. 118 Kim, supra note 111, at 251; Immigration and Nationality Act § 287(g). 119 See Kim, supra note 111, at 252. 120 Id. 121 Chacón, supra note 113, at 1582. 122 Id. at 1583–84; see also Memorandum of Agreement, U.S. Immigr. & Customs En- forcement, at 21, http://www.ice.gov/doclib/detention-reform/pdf/287g_moa.pdf. 123 Chacón, supra note 113, at 1584; Memorandum of Agreement, supra note 122, at 4. The sample MOA on the ICE website includes a section on training for performance of immigration offi cer functions. Memorandum of Agreement, supra note 122, at 4, 17. 2012] How Secure Communities Encourages Battered Women to Stay Silent 201

to initiate investigations and removal proceedings.124 In 2009, Depart- ment of Homeland Security (DHS) Secretary Janet Napolitano responded to those allegations by announcing that law enforcement agencies acting pursuant to 287(g) agreements must pursue all criminal charges originally causing an immigrant’s arrest.125

B. Secure Communities Local enforcement of federal immigration laws has strained the relationship between undocumented immigrants and community police officers.126 Section 287(g) agreements are one cause of this tension, but the Secure Communities program has further exacerbated the problem since its implementation.127 Secure Communities is a formal program where state and local governments sign MOAs with ICE, agreeing to cross-check fingerprints against a federal database in an attempt to identify undocumented immigrants.128 Secure Com- munities began in 2008 under President George W. Bush, funded through DHS.129 Initially, the program focused on removable nonciti- zens in prisons and jails, charging state and local officials with identifying them by running fingerprint data against DHS’s immigration databases.130 Secure Communities soon expanded, “ma[king] the identification and removal of criminal aliens a top priority . . . .”131 Although intended to identify and remove dangerous criminals, participating agencies screen all arrested immigrants regardless of whether they are ultimately convicted.132 For example:

124 Id. 125 Chacón, supra note 113, at 1584–85. 126 See id.; Johnson, supra note 113. 127 See Chacón, supra note 113, at 1584–85. In a letter to ICE, the Providence, Rhode Is- land Public Safety Commissioner, Steven Pare, wrote, “The Secure Communities program will create fear and mistrust between the community and law enforcement—thus under- mining our community policing model and risking the public safety of our capital city.” Johnson, supra note 113. 128 Chacón, supra note 113, at 1595. 129 Id. 130 Id. 131 Testimony of David Venturella, Executive Director, Secure Communities, Immigration and Customs Enforcement, Before the House Appropriations Committee Subcommittee on Homeland Secu- rity, “Priorities Enforcing Immigration Law,” U.S. Department Homeland Security, http:// www.dhs.gov/ynews/testimony/testimony_1239800126329.shtm (last visited Oct. 30, 2011); see Chacón, supra note 113, at 1595–96. 132 Chacón, supra note 113, at 1595–96; More Questions Than Answers About the Secure Communities Program, Nat'l Immigr. L. Center 1, 1–2 (Mar. 2009), http://www.nilc.org/ immlawpolicy/LocalLaw/secure-communities-2009-03-23.pdf; Secure Communities: Get the

202 Boston College Journal of Law & Social Justice [Vol. 32:185

In December, Mesa police arrested Roberto Gonzalez- Corona, 42, a Mexican immigrant, on a disorderly-conduct charge. He was booked into the Mesa jail, where his fingerprints were run through the criminal and immigration databases. The checks showed that Gonzalez-Corona had been removed from the United States nine times. Gonzalez-Corona also had numerous misdemeanor and felony convictions in California on charges related to drug possession and grand- theft auto. After being verified by an ICE center in Vermont, which can take several hours, the information was sent electronically through a secure law-enforcement network to ICE's field office in Phoenix. By then, Mesa police had released Gonzalez- Corona after charging him with disorderly conduct. But ICE agents tracked him down with information received from Mesa police. ICE agents arrested him on Jan. 27. Gonzalez-Corona is now being held in federal custody facing felony charges of illegally re-entering the United States.133 The Secure Communities program is extensive and rapidly growing: by November 2009, ninety-five cities and counties in eleven states were participants.134 As of September 2011, 1595 jurisdictions in forty- four states and territories were participants.135 Nationally, “5.6 million people have been screened, resulting in the deportation of more than 21,500 immigrants convicted of major crimes, or about 26 percent of the 81,489 immigrants deported overall.”136 ICE plans to require every jurisdiction in the country to participate in the program by 2013.137 Several local governments have questioned the Secure Communi- ties program’s negative impact on community relations.138 Localities are concerned that Secure Communities will put an extra burden on

Facts, U.S. Immigr. & Customs Enforcement, www.ice.gov/secure_communities/get-the- facts.htm (last visited Oct. 30, 2011). 133 Daniel González, ICE Project Mainly Nets Low-Level Criminals, Ariz. Republic, Mar. 9, 2011, at A1. 134 Chacón, supra note 113, at 1596. 135 Activated Jurisdictions, ICE Secure Communities, http://www.ice.gov/doclib/secure- communities/pdf/sc-activated.pdf (last visited Oct. 30, 2011). 136 González, supra note 133. 137 Julia Preston & Kirk Semple, U.S. Hardens Its Stance on an Immigrant Policy, N.Y. Times, Feb. 18, 2011, at A20; see Activated Jurisdictions, supra note 135. 138 See Shankar Vedantam, Reversals by Immigration Officials Are Sowing Mistrust, Wash. Post, Nov. 22, 2010, at A4. 2012] How Secure Communities Encourages Battered Women to Stay Silent 203 local police departments that are already working with limited funds.139 Local government officials have also questioned the program because it may target both legal and undocumented immigrants.140 Secure Com- munities may negatively impact the number of immigrants reporting crimes or seeking medical attention, thereby endangering public safety.141 The association between local law enforcement and immigration officials can discourage community cooperation and undermine cooperative community policing programs.142 Immigrant advocacy groups have also criticized Secure Communi- ties because it fails to prioritize Level 1 offenders—those convicted of serious drug offenses or violent crimes.143 Data supports this concern, as most of the immigrants who have been removed through Secure Communities are low-level offenders.144 Of all Secure Communities jurisdictions, Maricopa County, Arizona has the highest number of immigrants both arrested and deported.145 Sixty-six percent of Mari- copa County deportees, however, are either low-level criminals or have no criminal history at all.146 Nationally, sixty percent of Secure Com- munities deportees are low-level criminals or have no criminal history.147

139 Ken Green, Denver Mayor Candidate Mejia Joins Linkhart in Opposing ‘Secure Communi- ties,’ Examiner.com, Feb. 17, 2011, http://www.examiner.com/top-news-in-denver/denver- mayor-candidate-mejia-joins-linkhart-opposing-secure-communities. 140 Gloria Pazmiño & Debralee Santos, Opposition Grows Against Secure Communities Im- migration Program, Manhattan Times, Nov. 23, 2010, http://www.manhattantimesnews. com/2010/ opposition-grows-against-secure-communities-immigration-program.html. 141 Id. 142 See Pazmiño & Santos, supra note 140; Carlberg, supra note 19, at 741–42. 143 Pazmiño & Santos, supra note 140; Preston & Semple, supra note 137; Michele Waslin, The Secure Communities Program: Unanswered Questions and Continuing Concerns, Im- migr. Pol’y Center, Nov. 2009, at 3–4, available at http://www.immigrationpolicy.org/ sites/default/files/docs/Secure_Communities_112309.pdf. Level 1 offenders are “[i]ndiv du- als who have been convicted of major drug offenses and violent offenses such as murder, manslaughter, rape, robbery, and kidnapping.” Waslin, supra, at 3. Level 2 offenders are “[i]ndividuals who have been convicted of minor drug offenses and property offenses such as burglary, larceny, fraud, and money laundering.” Id. Level 3 offenders are “[i]ndividuals who have been convicted of other offenses.” Id. 144 See Preston & Semple, supra note 137. From the time of the program’s inception until November 2009, Secure Communities had identified over 111,000 criminal aliens in local custody. Waslin, supra note 143, at 4. Of those, “more than 11,000 were charged with or convicted of Level 1 crimes, while more than 100,000 had been convicted of Level 2 and 3 crimes.” Id. 145 Gonzalez, supra note 133. 146 Id. 147 Id. 204 Boston College Journal of Law & Social Justice [Vol. 32:185

Secure Communities has broadened far beyond its mission of identifying and deporting dangerous criminals.148 It may empower law enforcement officers to act as deportation agents by making pre-textual arrests just to obtain fingerprints.149 This was the case for Maria Bolanos, who police arrested but never prosecuted for illegally selling a phone card to a neighbor.150 Despite these criticisms, DHS Secretary Janet Napolitano announced in 2010 that communities would not be able to opt-out of the program.151 This, however, is a departure from Napolitano’s previous statements that participation is optional.152 ICE planned to achieve uniform participation by isolating and pressuring communities that objected to the program.153 ICE initially advertised the program as “voluntary,” but actually only intended for one narrow provision of the program to be voluntary.154 In April of 2010, the National Day Labor

148 Id.; Secure Communities: Get the Facts, supra note 132. 149 Waslin, supra note 143, at 4. “[T]h e pro gram has come under increasing criticism from immigrant advocates who say it also encourages police to engage in unconstitutional racial profiling and discriminatory arrests so they can run fingerprints through the immigration databases as part of Secure Communities.” González, supra note 133. 150 Vedantam, supra note 1; see Wa slin, supra note 1 43, at 4. 151 Vedantam, supra note 138; see Suzanne Gamboa, ‘Voluntary’ Immigration Program Not so Voluntary, MSNBC (Feb. 16, 2011 1:50:56 PM), http://www.msnbc.msn.com/id/ 41625585/ns/us_news-security; Preston & Semple, supra note 137. 152 Vedantam, supra note 138; see Gamboa, supra note 151; Preston & Semple, supra note 137. In September of 2010, United States Secretary of Homeland Security Janet Na- politano sent a letter to Zoe Lofgren, Chairwoman of the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law of the House Judiciary Committee, stating that “[a] local law enforcement agency that does not wish to participate in the Secure Communities deployment plan must formally notify the Assistant Direc- tor for the Secure Communities program” and that “[i]f a local law enforcement agency chooses not to be activated in the Secure Communities deployment plan, it will be the responsibility of that agency to notify its local ICE field office of suspected criminal aliens.” Letter from Janet Napolitano, Sec’ y, U.S. Dep’t of Homeland Sec., to The Honorable Zoe Lofgren, Chairwoman, Subcomm. on Immigration, Citizenship, Refugees, Border Sec., & Int’l Law (Sept. 7, 2010), available at http://www.nilc.org/immlawpolicy/LocalLaw/s- comm-o pt -out-ltrs-USDOJ-DHS-2010-09-08.pdf; accord Vedantam, supra note 138. 153 Preston & Semple, supra note 137. One such method of pressure involves creating a ring around the resistant jurisdiction by bringing all nearby communities into the program. Id. 154 Preliminary Briefing Guide: Newly Released Documents Chronicle Agency’s Deception About Opting-Out of “Secure Communities” Program, Center for Constitutional Rights, http:// ccrjustice.org/files/foiabrief.pdf [hereinafter Preliminary Briefing Guide]; see Secure Commu- nities: Get the Facts, supra note 132. A jurisdiction may choose not to receive the identifications that result from processing the fingerprints through DHS's biometric system that are provided to the local ICE field office. In the past, this option has been mischaracterized as a mechanism for a jurisdiction to opt out of the program. In fact, a jurisdic-

2012] How Secure Communities Encourages Battered Women to Stay Silent 205

Organizing Network, the Center for Constitutional Rights, and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law filed a complaint for the release of ICE documents to clarify the scope and enforceability of Secure Communities.155 Then, in the fall of 2010, ICE clarified its compliance requirements, thereby dispelling community perceptions that they could opt-out of sharing fingerprints.156 The 2010 clarification came after several months of vague and contradictory statements from ICE about the program.157 For example, in July 2010, a regional coordinator for the Secure Communities program sent an e-mail to the New York State Division of Criminal Justice Services (“the Division”) that said “‘[n]o jurisdiction will be activated if they oppose [Secure Communities] . . .’” and that ICE would “‘do eve- rything [it] can to work with a N.Y. law enforcement agency to satisfy its concerns but at the end of the day, if they are opposed, [it] won’t go forward.’”158 A spokesman for the Division stated several days later that he learned it was “‘the position of the federal government that it can require participation.’”159

tion's decision not to receive this information directly does not affect whether the local ICE field office in that jurisdiction will or will not take enforcement action based on those results. Secure Communities: Get the Facts, supra note 132. 155 Complaint for Declaratory and Injunctive Relief at 1, 25, Nat’l Day Laborer Org. Network v. Immigration & Customs Enforcement, (S.D.N.Y. filed Apr. 27, 2010) (No. 10 Civ. 3488), available at http://ccrjustice.org/files/SC_Complaint_REAL_FINAL.pdf. 156 Preston & Semple, supra note 137; Kirk Semple, Program to Have Police Spot Illegal Immigrants Is Mired in Confusion, N.Y. Times, Nov. 10, 2010, at A26; Preliminary Briefing Guide, supra note 154. 157 Vedantam, supra note 138; Semple, supra note 156. 158 Semple, supra note 156. 159 Id. Several organizations sought documents pursuant to a Freedom of Information Act (FOIA) request that highlight the internal confusion and deception regarding the availability of an opt-out option for states and localities. Press Release, Ctr. for Constitu- tional Rights, Newly Released Secure Cmtys. Documents Signal Opening for Local Opt- Out (Feb. 16, 2011), available at http://ccrjustice.org/newsroom/press-releases/newly- released-secure-communities-documents-signal-opening-local-opt-out; Preliminary Briefing Guide, supra note 154. This confusion was ongoing in the aftermath of the release of information pursuant to the FOIA request. See Letter from Chris Newman, Legal Director, National Day Laborer Organizing Network, to Deval Patrick, Governor, Commonwealth of Massachusetts (Mar. 21, 2011), available at http://ndlon.org/pdf/patrickletter.pdf. In March 2011, legal advocates from the National Day Laborer Organizing Network, the Cen- ter for Constitutional Rights, and the Cardozo Immigrant Justice Clinic advised Massachu- setts Governor Deval Patrick that he could prevent statewide participation in Secure Communities. Id. 206 Boston College Journal of Law & Social Justice [Vol. 32:185

ICE then publicly announced in June 2011 that Secure Communi- ties would be mandatory and universally implemented by 2013.160 ICE also acknowledged that “some of [its] past public statements led to confusion about whether state and local jurisdictions can opt out of the program.”161 This change began through the abolition of state MOAs— the agreements setting forth the bounds of Secure Communities in each locality.162 Communities therefore lost the little bargaining power afforded by MOAs that allowed them to tailor Secure Communities to their needs.163

III. A Proposed Solution for ICE Secure Communities undermines protections for domestic violence victims by encouraging silence through fear of deportation.164 Because domestic violence perpetrators often use their partners’ undocumented status as a means of control, victims will be less likely to call for help if they know that police will share their biometric data with imm igration enforcement.165 Undocumented women are further deterred from calling for help because any arrest, regardless of whether the charge is later dropped, may allow local law enforcement to obtain their fingerprints.166 ICE should therefore modify Secure Communities to allow for adequate protections of domestic violence victims in three distinct steps.167 First, the program should mandate delayed reporting until af-

160 Preliminary Briefing Guide, supra note 154. 161 Secure Communities: Get the Facts, supra note 132. 162 Leslie Berestein Rojas, The Letter from ICE Terminating ‘All Existing’ S-Comm Agree- ments, Multi-American, Aug. 5, 2011, http://multiamerican.scpr.org/2011/08/the-letter- from-ice-terminating-all-existing-secure-communities-moas. 163 Id. “In order to clarify that a memorandum of agreement between ICE and a state is not required to operate Secure Communities for any jurisdiction, today, ICE Director John Morton sent a letter to Governors terminating all existing Secure Communities MOAs to avoid further confusion.” Leslie Berestein Rojas, ICE Rescinds Secure Communities MOAs, Program Continues, Multi-American, Aug. 5, 2011, http://multiamerican.scpr.org/2011/ 08/ice-rescinds-secure-communities-moas-allowing-controversial-program-to-continue (quoting statement of Nicole Navas, ICE spokeswoman) (emphasis omitted). 164 See Vedantam, supra note 1; Fact Sheet: Intersection of Domestic Violence & The Secure Com- munities Program, Colo. Coalition Against Domestic Violence, http://www.leg.state. co. us/ CLICS/CLICS2011A/commsumm.nsf/b4a3962433b52fa787256e5f00670a71/b95c4f7f94 5 b961c8725783700727d81/%24FILE/0214HseLocalAttachH.pdf (last visited Oct. 30, 2011) [hereinafter Fact Sheet]. 165 Fact Sheet, supra note 164. 166 See Vedantam, supra note 1; Waslin, supra note 143; Fact Sheet, supra note 164. 167 See Orloff et al., supra note 35, at 84 (discussing the importance of communicating the availability of battered women’s services to immigrant populations); Tim Hoover, May OK

2012] How Secure Communities Encourages Battered Women to Stay Silent 207 ter those arrested during domestic violence incidents are convicted.168 Second, ICE should limit the program to sharing only those fingerprints obtained through felony charges and misdemeanor convictions.169 Finally, ICE should encourage local officials to communicate these changes to the public.170 The benefits to these changes are two-fold: protecting vulnerable women from violence and preserving the relationship between undocumented immigrants and local police.171 The Bolanos incident, like others, underscores how the program has departed from its alleged original intent of removing dangerous criminals from communities.172 ICE and the states should narrowly tailor Secure Communities to protect victims of domestic violence while still removing dangerous criminals.173

A. ICE’s Attempt to Acknowledge the Problem ICE changed Secure Communities in the summer of 2011.174 John Morton, the Director of ICE, sent a memorandum to Field Office Di- rectors, Special Agents in Charge, and Chief Counsel to outline the re-

Illegal-Immigrant Checks, Denver Post, Jan. 4, 2011, at 3B; States Without “Secure Communities” Already Face Problems with Police-ICE Collaboration, Deportation Nation, Dec. 7, 2010, http:// www.deportationnation.org/2010/12/states-without-secure-communities-already-face-problems-with-police-ice-collaboration [hereinafter States Without “Secure Communities”]; Updated: Colorado May Limit Immigrants Targeted by “Secure Communities,” Deportation Nation, Jan. 4, 2011, http://www.deportationnation.org/2011/01/colorado-may-limit-immigrants-targeted- by-secure-communities [hereinafter Updated: Colorado] (giving suggestions for an MOA that would be sensitive to domestic violence issues). 168 See Colo. Rev. Stat. Ann. § 29-29-103 (West 2011); Updated: Colorado, supra note 167. 169 See Hoover, supra note 167; Letter from Damian J. Arguello, President, Colo. Hispanic Bar Ass’n, to Honorable Bill Ritter, Jr., Governor, State of Colo., (Aug. 4, 2010), available at https://crocodoc.com/yuGJ2i [hereinafter CHBA letter]. 170 See Orloff et al., supra note 35, at 84 (discussing the importance of communicating the availability of battered women’s services to immigrant populations). 171 See Kittrie, supra note 19, at 1482–83; Carlberg, supra note 19, at 741–42. 172 Secure Communities: Get the Facts, supra note 132; see, e.g., Vedantam, supra note 1. In addition to Bolanos, Prince George’s County Police officers arrested Florinda Faviola Lorenzo-Desimilian for the same crime, namely selling phone cards without a license. Pangilinan, supra note 4. Lorenzo-Desimilian entered the country legally, but then over- stayed her work visa. Id. 173 See Carlberg, supra note 19, at 742; Secure Communities: Get the Facts, supra note 132; see, e.g., Hoover, supra note 167. 174 Memorandum from John Morton, Dir., ICE, to All Field Office Dirs., All Special Agents in Charge, & All Chief Counsel, ICE ( June 17, 2011), available at http://www.ice. gov/doclib/secure-communities/pdf/domestic-violence.pdf [hereinafter Morton Memo- randum]; Elise Foley, Secure Communities Agreements Canceled, Participation Still Required, Huffington Post (Aug. 5, 2011), http://www.huffingtonpost.com/2011/08/05/secure- communities-update-department-of-homeland-security_n_919651.html . 208 Boston College Journal of Law & Social Justice [Vol. 32:185 vised policy on prosecutorial discretion.175 In his memorandum, Mor- ton sets forth a new policy regarding prosecutorial discretion in “cases involving the victims and witnesses of crime, including domestic violence . . . .”176 Morton claims: The vast majority of state and local law enforcement agencies do not generally arrest victims or witnesses of crime as part of an investigation. However, ICE regularly hears concerns that in some instances a state or local law enforcement officer may arrest and book multiple people at the scene of alleged domestic violence. In these cases, an arrested victim or witness of domestic violence may be booked and fingerprinted and, through the operation of the Secure Communities program or another ICE enforcement program, may come to the attention of ICE.177 Morton then advises officers, agents, and attorneys “to exercise all ap- prop riate discretion on a case-by-case basis when making detention and enforcement decisions in the cases of victims of crime . . . .”178 While attempting to recognize the domestic violence issue, this aspirational memorandum does not ensure that immigrant victims of domestic violence will not be subjected to racial profiling or subsequent removal proceedings.179 ICE justifies Secure Communities by noting that the lack of discretion protects the community from racial profiling.180 Because police lack discretion, many consider Secure Communi- ties a better alternative to an Arizona-like law that allows police to choose whom to ask for proof of citizenship.181 Because Secure Com-

175 See generally Morton Memorandum, supra note 174. 176 Id. 177 Id. 178 Id. 179 See CHBA letter, supra note 169, at 1; Morton Memorandum, supra note 174. 180 See Morton Memorandum, supra note 174; Secure Communities: Get the Facts, supra note 132. 181 Jefferson Dodge, Crackdown: ‘Dragnet’ May Fend Off Arizona-Style Immigration Law, Boul- der Wkly., Jan. 27, 2011, http://www.boulderweekly.com/article-4298-i-support-the-states-participation-of-secure-comm.html; Secure Communities: Benefitting Law Enforcement Throughout the United States, U.S. Immigr. & Customs Enforcement, http://www.ice.gov/doclib/secure- communities/pdf/lea-benefits.pdf (last visited Oct. 30, 2011) (justifying the Secure Com- munities program because it gives police less discretion, thereby reducing the possibility of racial profiling). Arizona’s immigration program, S.B. 1070, became law in 2010. David A. Selden et al., Placing S.B. 1070 And Racial Profiling into Context, and What S.B. 1070 Reveals About the Legislative Process in Arizona, 43 Ariz. St. L.J. 523, 526 (2011). The law requires police officers who have a reasonable suspicion that someone is in the country illegally to

2012] How Secure Communities Encourages Battered Women to Stay Silent 209 munities applies to all fingerprints, the police do not have to decide who might be an undocumented immigrant and unfair implementation is a non-issue.182 ICE’s memorandum, however, contradicts its attempt to be fair, instead using prosecutorial discretion as protection from racial profiling and pretextual arrests.183 ICE should therefore establish clear guidance to fully protect victims of domestic violence because, without it, “prosecutorial discretion” may further enable pretextual arrests.184

B. A Three-Step Process to Protecting Victims of Domestic Violence and Increasing Community Safety Discretion alone will likely not solve the problem of pretextual arrests that prevent abused women from calling for help.185 Instead, ICE should implement three specific changes to protect victims of domestic violence.186 First, ICE should modify Secure Communities to specify that reporting of arrestees pursuant to domestic violence incidents is not required until conviction.187 Second, ICE should limit the program to felony charges and misdemeanor convictions.188 Third, ICE should work with states and localities to implement a public relations cam-

stop, detain, or arrest that person to check immigration status. Id. at 525; see Ariz. Rev. Stat. Ann. § 11-1051 (2010), invalidated by United States v. Arizona, 641 F.3d 339, 354 (2011). 182 Dodge, supra note 181, at 14; Secure Communities: Benefitting Law Enforcement Throughout the United States, supra note 181; Secure Communities: Get the Facts, supra note 132. 183 See Morton Memorandum, supra note 174; Dodge, supra note 181, at 14; Secure Communities: Benefitting Law Enforcement Throughout the United States, supra note 181; Secure Communities: Get the Facts, supra note 132. 184 See Dodge, supra note 181, at 14; CHBA Letter, supra note 169; Morton Memoran- dum, supra note 174; Secure Communities: Benefitting Law Enforcement Throughout the United States, supra note 181; Secure Communities: Get the Facts, supra note 132. 185 Compare Dodge, supra note 181, at 14 (noting that reducing police discretion may reduce racial profiling), with Morton Memorandum, supra note 174, (advocating for discretion as a means to protect victims). See also Secure Communities: Benefitting Law Enforcement Throughout the United States, supra note 181 (claiming that Secure Communities “reduces the possibility for allegations of racial or ethnic profiling because the fingerprints of every individual arrested . . . are checked against immigration records”); Secure Communities: Get the Facts, supra note 132 (“Under Secure Communities, the fingerprints of every single individual arrested and booked into custody, including U.S. citizens and legal permanent residents, are checked against immigration records—reducing the risk of discrimination or racial profiling.”). 186 See Orloff et al., supra note 35, at 84; Hoover, supra note 167; States Without “Secure Communities,” supra note 167; Updated: Colorado, supra note 167. 187 See Colo. Rev. Stat. Ann. § 29-29-103 (West 2011); Hoover, supra note 167; Up- dated: Colorado, supra note 167. 188 See Hoover, supra note 167; CHBA letter, supra note 169. 210 Boston College Journal of Law & Social Justice [Vol. 32:185 paign that communicates these changes.189 This final step would ensure that all residents—documented and undocumented—understand the program’s scope and that they can contact law enforcement without fear of deportation.190 Colorado’s former MOA had already implemented a framework similar to this first step, specifying that reporting is not required until conviction for those arrested as a result of a domestic violence incident.191 It did this by specifically referencing Colorado statutory language that mirrored this first step.192 Furthermore, Colorado’s MOA stated that “ICE offers protection and assistance to victims of trafficking and violence, regardless of their immigration status. This protection or assistance applies to those who might have been arrested for a crime and subsequently determined to be a victim, not a perpetrator.”193 ICE should implement this first step because, as it already ac- knowledges, police sometimes arrest both domestic violence victims and perpetrators.194 Because Secure Communities requires local police to send all fingerprint data to ICE before conviction, those victims who are arrested but not charged or prosecuted still face the risk of deporta-

189 See Kahan, supra note 89, at 1525 (explaining that trust in law enforcement depends on the public’s perception of the fairness and legitimacy of police procedures); Orloff et al., supra note 35, at 84–85; Carlberg, supra note 19, at 755; see, e.g., Vedantam, supra note 1 (publicizing the ill effects of Secure Communities on domestic violence victims). 190 See Kahan, supra note 89, at 1525; Orloff et al., supra note 35, at 84–85; Carlberg, supra note 19, at 755; see, e.g., Vedantam, supra note 1. 191 See Memorandum of Agreement between U.S. Dep’t of Homeland Sec. Immigration & Customs Enforcement and Colo. Dep’t of Public Safety 3 ( Jan. 6, 2011), available at http://www.ice.gov/doclib/foia/secure_communities-moa/colorado-sc-moa.pdf [hereinafter Colorado MOA]; Updated: Colorado, supra note 167. 192 Colo. Rev. Stat. Ann. §§ 18-6-800.3, 29-29-103; Colorado MOA, supra note 191, at 3. The following is Colorado’s statute regarding reporting when the arrestee is charged with a domestic violence offense: (I) A peace officer who has probable cause that an arrestee for a criminal offense is not legally present in the United States shall report such arrestee to the United States immigration and customs enforcement office if the arrestee is not held at a detention facility. If the arrestee is held at a detention facility and the county sheriff reasonably believes that the arrestee is not legally present in the United States, the sheriff shall report such arrestee to the federal immigration and customs enforcement office. (II) This subsection (2) shall not apply to arrestees who are arrested for a suspected act of domestic violence as defined by section 18-6-800.3, C.R.S., until such time as the arrestee is convicted of a domestic violence offense. Colo. Rev. Stat. Ann. § 29-29-103(2)(a). 193 Colorado MOA, supra note 191, at 3. 194 See CHBA Letter, supra note 169; Morton Memorandum, supra note 174. 2012] How Secure Communities Encourages Battered Women to Stay Silent 211

tion.195 A decisive policy against reporting fingerprint data before conviction, however, may protect domestic violence victims.196 Then, ICE should implement the second step of limiting the program to felony charges and misdemeanor convictions.197 This step would prevent situations like that of Maria Bolanos—charged but never tried for selling phone cards without a license.198 Doing this would act to return Secure Communities to its original purpose while protecting und ocumented women who call for help from being charged pretextu- ally with a misdemeanor.199 The Colorado Hispanic Bar Association (CHBA) detailed its concerns about Secure Communities’s implementation in Colorado.200 Though targeted at Colorado, these concerns may be applicable to other communities, and addressing them may in turn help prioritize the targeting of dangerous criminals while protecting more victims.201 CHBA criticized the ability of law enforcement officials to make pretextual arrests solely to obtain fingerprints that are then checked against the federal immigration database.202 The Bolanos case arguably gives credibility to these concerns, as her arrest may have been pretextual.203 Restricting Secure Communities to felony charges and misdemeanor convictions may also help strengthen community policing programs.204 When immigrants no longer fear calling the police, they may be more willing to communicate with police about crimes to which they are witnesses.205 Modifying Secure Communities, however, may not be enough if victims do not know they can call the police without fear of that call leading to deportation.206 Therefore, ICE should implement the third

195 See, e.g., Vedantam, supra note 1; CHBA letter, supra note 169. 196 See Colo. Rev. Stat. § 29-29-103; Hoover, supra note 167; Updated: Colorado, supra note 167. 197 See Hoover, supra note 167; CHBA letter, supra note 169. 198 See Hoover, supra note 167; Vedantam, supra note 1; CHBA letter, supra note 169. 199 See Hoover, supra note 167; Pangilinan, supra note 2. 200 CHBA letter, supra note 169. 201 See Chacón, supra note 113, at 1596; Vedantam, supra note 1; CHBA letter, supra note 169. 202 CHBA letter, supra note 169. 203 See Pangilinan, supra note 2; Vedantam, supra note 1; CHBA letter, supra note 169. 204 See Kahan, supra note 89, at 1513; Orloff et al., supra note 35, at 85; Vedantam, supra note 1. 205 See Kahan, supra note 89, at 1513; Orloff et al., supra note 35, at 85; Vedantam, supra note 1 (quoting Maria Bolanos as saying, “You would have to be crazy to call the police . . . . I would never call the police again.”). 206 See Kahan, supra note 89, at 1525; Orloff et al., supra note 35, at 84–85; Carlberg, supra note 19, at 755. 212 Boston College Journal of Law & Social Justice [Vol. 32:185 step of working with state and local authorities to communicate these changes to the immigrant communities.207 Communication would help ensure that residents understand how the program is implemented and that they may contact law enforcement without fear of deportation.208 Without this, undocumented residents may continue to be cautious and hesitant to contact law enforcement.209 This phenomenon of hesitance already occurs in communities with unpublicized noncooperation agreements that limit communication with federal law enforcement.210 An effective communication campaign would ensure that victims can find resources in their native languages so as to mitigate the effect of language barriers.211 In addition to communicating these changes, police departments should educate the public that domestic violence is a crime.212 This may also help alleviate some of the social and cultural pressure women face and make them more comfortable with seeking help.213 Proponents of Secure Communities might argue that its scope is irrelevant and that undocumented immigrants should be deported regardless of their crime’s severity.214 A narrow scope for the program, however, gives it legitimacy and community support.215 Immigrants and non-immigrants alike do not wish to live among violent criminals and drug dealers.216 Limiting the scope of Secure Communities would likely

207 See Kahan, supra note 89, at 1525; Orloff et al., supra note 35, at 87; Carlberg, supra note 19, at 755. 208 See Kahan, supra note 89, at 1525; Orloff et al., supra note 35, at 87; Carlberg, supra note 19, at 755. 209Orloff et al., supra note 35, at 87; Carlberg, supra note 19, at 755. 210Kittrie, supra note 19, at 1483 (noting that “victimized unauthorized aliens who are confused as to how the policy in their jurisdiction operates are likely to play it safe and not report the crime”); Carlberg, supra note 19, at 755–56. 211 See Orloff et al., supra note 35, at 74; Wang, supra note 16, at 162–63. 212 See Orloff et al., supra note 35, at 84. 213 See id. at 84–85. 214 See Vedantam, supra note 1 (quoting ICE spokesman Brian Hale as saying that “ICE cannot and will not turn a blind eye to those who violate federal immigration law . . . . While ICE’s enforcement efforts prioritize convicted criminal aliens, ICE maintains the discretion to take action on any alien it encounters.”). 215 See Secure Communities: Benefitting Law Enforcement Throughout the United States, supra note 181. 216 See Chacón, supra note 113, at 1596; Secure Communities: A Modernized Approach to Identifying and Removing Criminal Aliens, U.S. Immigr. & Customs Enforcement, available at http://www.ice.gov/doclib/secure-communities/pdf/sc-brochure.pdf (last visited Oct. 30, 2011). 2012] How Secure Communities Encourages Battered Women to Stay Silent 213

sharpen its focus and effectiveness, thereby removing those criminals that no community wants in its midst.217

Conclusion Domestic violence perpetrated against undocumented women is a pervasive problem. Many undocumented victims of domestic violence indicate that fear of immigration authorities is their primary reason for remaining in abusive relationships. Language and cultural barriers only compound these difficulties by preventing women from seeking assis- tanc e outside the home. Trust in local law enforcement facilitates solv- ing the problem of domestic violence against undocumented immigrants. These severe problems illustrate a need for change in the way ICE operates the Secure Communities program. There have been many documented instances of abuse of Secure Communities, especially as it affects victims of domestic violence. Therefore, ICE should implement a three-step reform: requiring delay of reporting until conviction for domestic violence arrestees; limiting the program to felony charges and misdemeanor convictions; and working with states and localities to notify immigrant communities of these changes.

217 See Chacón, supra note 113, at 1596; Secure Communities: A Modernized Approach to Identifying and Removing Criminal Aliens, supra note 216. But see CHBA Letter, supra note 169.