Anita Ortiz Maddali
Excerpted from: Anita Ortiz Maddali, The Immigrant "Other": Racialized Identity and the Devaluation of Immigrant Family Relations, 89 Indiana Law Journal 643 - 702 (Spring, 2014)(423 Footnotes)(Full Article)
Her lifestyle, that of smuggling herself into the country illegally and committing crimes in this country, is not a lifestyle that can provide stability for a child . . . . A child cannot be educated in this way, always in hiding or on the run.
The above quote comes from a juvenile court decision that terminated the parental rights of Encarnacion Maria Bail Romero, an undocumented immigrant from Guatemala. Immigration and Customs Enforcement (ICE) arrested Bail Romero in 2007 during a workplace raid of the poultry processing plant in Missouri that had employed her. She pled guilty to aggravated identity theft and received a mandatory two-year sentence. Her son, Carlos, was seven months old at the time. While incarcerated, a local couple offered to assist Bail Romero's relatives who had been caring for Carlos. Within a few months of this arrangement, this couple, without first contacting child welfare services, gave Carlos to another couple that was interested in adopting a Latino child. Two days later, the second couple moved to terminate Bail Romero's parental rights and adopt Carlos. The juvenile court eventually terminated Bail Romero's parental rights and approved the *645 adoption. Bail Romero appealed to the Missouri Supreme Court, which reversed the termination and adoption but remanded the case for a new trial before the juvenile court. In July 2012 the juvenile court once again terminated Bail Romero's parental rights and approved the adoption, and in October 2013 the Missouri Court of Appeals affirmed the juvenile court's decision.
Undocumented parents-like Bail Romero-are losing their parental rights. Cases involving improper terminations of undocumented parents' parental rights that are appealed are often reversed. While this is reassuring, the problem is that most undocumented parents do not have the resources to appeal, especially when the parent has already been deported. Even when the problem is corrected, families face prolonged separations, and if the child is later returned to the parent, the child must deal with a second separation from his or her adoptive or foster parents. Moreover, tracking these cases is difficult because juvenile court records are frequently sealed, and there often is no published opinion.
The federal government deported 46,000 parents of U.S.-citizen children in the first six months of 2011. To determine how these deportations have affected parents and their children, the Applied Research Center (ARC) conducted a *646 qualitative study on family separations involving undocumented parents in six states. In six other states, ARC relied upon media and advocacy reports to confirm the prevalence of these cases. Additionally, it interviewed attorneys, caseworkers, and officials from foreign consulates in ten other states. ARC's research confirmed that parents in detention or facing deportation risk permanent separation from their children. It conservatively estimates that there are 5100 children in foster care in the United States who have parents who were detained or deported and that should the rate of these types of separations continue, in the next five years there will likely be at least 15,000 children who might not be able to reunify with their parents.
This Article explores how current terminations of undocumented immigrants' parental rights are reminiscent of historical practices that removed early immigrant and Native American children from their parents in an attempt to cultivate an Anglo-American national identity. Today, children are separated from their families when courts terminate the rights of parents who have been, or who face, deportation. Often, biases toward undocumented parents affect determinations of parental fitness in a manner that, while different, reaps the same results as the removal of children from their families over a century ago. This Article examines cases in which courts terminated the parental rights of undocumented parents because of biases about the parents' immigration status, language, race, culture, and the belief that life in the United States is better for children than returning with a parent to a poorer country, such as Mexico or Guatemala. This Article suggests that these termination decisions are reflective of tensions around identity and how to cultivate a preferred American identity. Further, this Article explores how using *647 the law to cultivate a preferred identity can subvert the constitutional rights of undocumented parents and undermine their family relationships.
Both immigration and family law "broker boundaries" around belonging and identity. Immigration law sets the parameters around who may enter the United States and who may remain in the country. Historically, immigration and citizenship law have used race-however constructed at a particular time-to determine these parameters. Likewise, economic and political conditions within the United States have also influenced how immigrant groups are perceived and treated. Immigrants whose culture and values more closely aligned with Anglo-Protestants of Northern European heritage have historically been favored under immigration law and have integrated more easily into American society.
As sociologists Douglas Massey and Magaly Sanchez describe, when natives view a particular immigrant group with hostility, this can make assimilation and integration much more difficult for the immigrant. Irish, Chinese, Japanese, Italians, Poles, and Eastern European Jews were all viewed as a threat to American society at one point, making the process of assimilation more difficult for members of these groups. "[A]ssimilation is about the restructuring of group identities and the redefinition of social boundaries so that immigrants and their descendants are perceived and treated by natives as us' rather than them."' It is a process, and a *648 difficult one for natives and immigrants. Yet, according to Massey and Sanchez, those who have more resources and power "are prone to undertake boundary work to define one or more out-groups and then frame them as lacking basic human attributes of warmth and competence, thus justifying their ongoing exploitation and exclusion."
Today, there are close to twelve million undocumented immigrants who are present in the United States without permission and, thus, who do not belong. Simply stating that they do not belong, however, ignores important nuances. Immigration and economic policies and a labor market that has encouraged migration from the south have facilitated the growth of the undocumented immigrant population. The proliferation of the undocumented population was not simply the result of migrants deciding to cross the border unlawfully, but also involved complicated economic and political factors, as well as contradictory immigration policies, which have simultaneously encouraged and restricted migration.
As a practical matter, the existence of a large undocumented population means that there are approximately twelve million people who are both included and excluded within American society. They are included in the sense that they are actively participating in society-in the workforce, in schools, and in communities. At the same time, they are excluded. They cannot obtain drivers' *649 licenses, work without authorization, or access most public benefits. And, of course, they cannot join the political community.
Once here, however, their ties to the United States grow stronger. Most noticeably, if an undocumented immigrant has a child that is born in the United States, that child automatically becomes a U.S. citizen. As of 2008, there were 5.5 million children living in the United States with at least one undocumented parent. Of those children, seventy-three percent were U.S. citizens. This presents a difficult situation-while U.S.-citizen children who have undocumented parents are entitled to certain benefits because of their citizenship status, their parents, who make decisions on their behalf, do not have equal status and are not entitled to the same benefits.
The federal government has addressed unlawful migration by securing the border, increasing deportations, and developing harsh immigration laws and policies that transform traditionally civil immigration violations into criminal offenses. Additionally, States have attempted to enforce immigration laws through the passage of anti-immigrant legislation, some of which make immigration-related offenses criminal.
*650 The increased criminalization of immigrants fosters negative stereotypes about them-stereotypes that not only relate to their immigration status but also to their personhood. For instance, an undocumented immigrant is not simply perceived as having violated immigration laws, but is also, as legal scholar David Thronson suggests, part of a "societal narrative that constructs an expanding notion of unworthiness and illegality."' As expressed by one resident in Tulsa when explaining his frustrations with undocumented immigrants, "[y]ou come in illegally; everything you do from that point on is illegal." Because Latino immigrants constitute about half of the immigrants who have come to the United States since 1965 and comprise the largest group of undocumented immigrants, negative views about undocumented immigrants usually coexist with views about Latinos.
Tensions around identity also exist in the family law context. Because the family is where language, culture, and values are transmitted, it is, in essence, where *651 identity is cultivated. Since child raising norms are often viewed through the lens of one's class, race, and ethnic culture, tensions arise when members of a dominant group make childrearing assessments about parents who are members of a less powerful, subordinate group. Dominant groups may justify removal of children from parents whose identity is perceived as bad or harmful by arguing that it is in the child's best interests. Such actions, however, allow members of a dominant group to instill in children their preferred culture, language, class, and values. The effect of these actions cannot be minimized. As Professor Annette Appell argued, when parents lose the ability to transmit these social goods, it "can compromise individual, cultural, and even political identity."
Two historical child welfare practices support this assertion. "Child-saving" agencies in the 1880s sought to save poor children of Irish, Polish, and Italian *652 immigrants, who were classified as nonwhite on the East Coast, by sending them on orphan trains from the East Coast to be raised by families who could "raise him far above the class from which he sprang."
Similarly, in the 1800s-at a time when Native Americans were still denied American citizenship-Christian missionaries, and later the federal government, forcibly removed Native American children from their homes and placed them in boarding schools. "[T]he aim was the assimilation of Indian children into Anglo-American society." According to Tsianina Lomawaima, a professor specializing in American Indian Studies, the government's intention behind establishing these boarding schools was to "erase and replace" Native American culture. Native American language, dress, and cultural practices were not allowed in the boarding schools. Families were discouraged from visiting their children or even knowing their location. These practices not only resulted in family destruction but also caused children to become conflicted about their own racial and cultural identities.
Further, from 1958 to 1967, the Bureau of Indian Affairs, the U.S. Children's Bureau, and the Child Welfare League of America developed the "Indian Adoption Project," whereby Native American children from western states were taken from their biological parents and placed for adoption with non-Native American families in the East and Midwest. This project came about as the result of ignorance, cultural insensitivity, assimilationist goals, and racism.
Like these historical child welfare practices that forcibly assimilated children into the dominant culture, recent terminations of parental rights, as will be described more fully in Part III, suggest similar tensions around identity and struggles to cultivate a preferred "American" identity. If a U.S.-citizen child *653 follows her mother after her mother's deportation, she will be raised outside of the United States-likely in a poorer country compared to the United States-by a mother who is not an American citizen and who may not speak English. Her mother cannot instill in her American values, and some argue that the United States may view this as a threat to American democracy. Even if a child is not a U.S. citizen, a juvenile court may still feel compelled to terminate parental rights, believing that the child could be brought into "full citizenship" if raised in the United States by American parents.
Political scientist Samuel Huntington warned in his article, The Hispanic Challenge, that because Mexican Americans no longer see themselves as the minority that has to accommodate the dominant group and instead are committed to their own culture and identity, they pose a threat to American democracy. Huntington argued that "American identity" has been defined by culture and creed-a creed that derives from the Anglo-Protestant culture. Huntington further stated:
Key elements of that culture include the English language; Christianity; religious commitment; English concepts of the rule of law, including the responsibility of rulers and the rights of individuals; and dissenting Protestant values of individualism, the work ethic, and the belief that humans have the ability and the duty to try to create a heaven on earth, a city on a hill.'
According to Huntington, this national identity has been threatened by many factors, including, but not limited to, individual identities that are based on race, ethnicity, and gender. He claimed that the growth of the Latino population threatened the values and identity of Anglo-Protestants and the "cultural and political integrity" of the nation and that the burden to assimilate and adopt the culture and values of the United States rests solely on the immigrant, a burden he *654 claims Hispanics have not met. He concluded his piece by stating, "There is no Americano dream. There is only the American dream created by an Anglo-Protestant society. Mexican Americans will share in that dream and in that society only if they dream in English." His view is not simply an ivory tower one. In 2006 forty-eight percent of Americans believed that "newcomers from other countries threaten traditional American values and customs."
One way to maintain an Anglo-American identity is through children. Raising children-even if they are children of immigrants-in an English-speaking environment by Anglo parents preserves the Anglo-American identity. This assimilation of sorts is even more important when the children are U.S. citizens, but their birth parents are not.
The intersection of immigration and family law is sorely underexplored, and the literature addressing it has not examined the historical relationship between immigration law and early child welfare practices and the tensions around identity that have existed under both. Nor has the literature examined how each area can *655 be a forum for cultivating an American identity. This historical relationship is important because it illuminates how negative perceptions toward certain immigrant groups and Native Americans influenced Anglo assessments of their child-rearing practices. Essentially, members of the dominant Anglo culture sought to cultivate a preferred American identity by removing children from the care of their parents. In this way, these children became a blank slate on which to craft an identity, or through which to remove the threat of a competing, alternative identity-in a manner that completely disregarded the family's relationship and what would later be established as a constitutional right of the parents to care for their children and of the children to be cared for by their parents. This Article connects these historical practices to contemporary court decisions that terminate the parental rights of undocumented parents and suggests that these decisions may have more to do with tensions around identity than the protection and welfare of children. Moreover, as scholars such as Annette Appell and Dorothy Roberts have demonstrated, parents who are outside the dominant cultural norms-poor, racial minorities, outlaws-have consistently been more vulnerable to state intervention. Undocumented parents not only face deportation, but also, like other "out" or subordinate groups, the loss of their parental rights. When parents lose the right to raise their children, they also lose the ability to transmit their culture and values.
Part I illustrates how, historically, immigration and citizenship laws regulated American identity by determining which group of immigrants could immigrate and become citizens. It then explores how similar efforts to regulate identity were *656 present in the child welfare context. The purpose of this Part is to suggest that historical tensions around identity and exclusion present in both immigration and child welfare law often mirrored one another. In other words, hostility toward a particular immigrant group and rejection of its culture and values not only informed and influenced immigration policies but also affected the manner in which their families were treated.
Part II explores the ways in which harsh immigration policies and anti-immigrant sentiment contribute to public perceptions that associate Latino immigrants with criminality, cultural deviance, and overarching illegality. This background is important for understanding how anti-immigrant biases and hostile perceptions toward certain immigrant groups may creep into and undermine child welfare proceedings.
Part III details the constitutional rights that undocumented parents possess and illustrates how anti-immigrant animus can threaten the fundamental rights of undocumented parents in the family law context. It highlights cases in which the parental rights of undocumented Latino parents were terminated, and explores the subtle and not so subtle ways in which the identity of the parent was perceived by decision-makers to be inferior. Concerns about criminality, as well as a belief that Latino immigrants threaten the Anglo-American identity, can result in the loss of legal rights for undocumented immigrants: specifically, the right of a parent to raise her child and to develop the child's identity and culture.
Part IV responds to one scholar's proposal to change the standard used in termination proceedings when such proceedings involve undocumented parents of U.S.-citizen children. This Part argues against this approach because it would undermine the constitutional rights of undocumented parents and devalue their family relationships.
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Undocumented parents are losing their parental rights. Some of these cases are legitimately about abuse, abandonment, and/or neglect. But many of these cases represent tensions around identity and how to cultivate that identity. Early child welfare practices removed immigrant children from their parents so that they could be raised in a more wholesome American setting. Similarly, Native American children were taken from their families and shuttered off to boarding schools for the purpose of assimilation into the Anglo culture. Recent termination of parental rights may not be so far removed from this history. Biases toward undocumented Latino immigrants affect assessments concerning their fitness as parents and their children's best interests. To characterize these assessments as strictly legal inquiries ignores the underlying biases that taint such "objective" assessments. Ultimately, when the law is used to cultivate identity, the rights of those who are racially and/or culturally different from the dominant group are threatened.
Anita Ortiz Maddali is an Assistant Professor of Law & Director of Clinics at Northern Illinois University College of Law.