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

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Boston College Journal of Law & Social Justice, Vol. 32, No. 1 (2012) 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 be- tween people of different faiths. Third, religious tolerance extended be- yond 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 fair- ness and legal professional responsibility. Where Padilla’s recognized rep- resentation standard only requires an attorney to advise when the immi- gration consequences of a guilty plea are “truly clear” —allowing the attorney to “do no more” when not clear—the guiding hand of an attor- ney 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 cir- cumstances. 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 un- documented 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 disas- trous impact on their ability to retain custody of their children. Best in- terest decisions are highly subjective and courts and agencies increas- ingly 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 fre- quently 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 undocu- mented 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 be- fore 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 ap- proach 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 polic- ing 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 in- dividuals. It argues that the curtilage doctrine, which protects the area sur- rounding 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 sup- posedly 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 dispro- portionately. If the Supreme Court’s new pleading standard is read to al- low 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 disposi- tion of meritorious claims. This Note explores two different interpreta- tions of the new pleading standards, one where judicial discretion is un- bridled 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 vio- lence victims often do not know how or where to seek help and fear de- portation. 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 proceed- ings. 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 pa- pers, and mechanical problems made transcription of the oral presenta- tions 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). i 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
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