FUSDEN Response to Harboring Memo

A FURTHER LOOK AT “HARBORING” LAWS

IN RESPONSE TO THE MEMORANDUM OF BISHOP GERALD R. BARNES, CHAIRMAN, USCCB COMMITTEE ON MIGRATION, REGARDING THE “NEW SANCTUARY MOVEMENT.”
(November 22,)

Questions: please email Peter Schey pschey@centerforhumanrights.org, Carlos Holguin crholguin@centerforhumanrights.org,
Emergencies: Peter Schey mobile 323 251-3223, Carlos Holguin mobile 661 309-2823, office 213 388-8693 ext. 302.

The Legal Toolkit of the New Sanctuary Movement distributed to all participating and interested groups sets forth in Section 5 a detailed discussion regarding the potential liability of churches for providing sanctuary under the Immigration Act and the Patriot Act.

On September 27, 2007, Bishop Gerald R. Barnes, Chairman, USCCB Committee on Migration, addressed a memorandum to all bishops regarding the “New Sanctuary Movement.” The memorandum was issued in response to several inquiries from dioceses and the press regarding this movement and the issue of “sanctuary,” which, under the new sanctuary movement, Bishop Barnes describes as “the act of providing protection during the removal process for migrants without legal status who may or may not obtain relief from removal.”

The USCCB does not take a formal position on the issue, which is left to the discretion of individual bishops as heads of their respective dioceses.

However, Bishop Barnes notes that “permitting parishes to provide sanctuary in violation of federal immigration law could invite prosecution and penalties upon conviction for priests and possibly bishops who aid and abet, or participate in, such practices.” For example, his memorandum recalls that some churches that participated in the sanctuary movement of the 1980s, which was a response to the low level of asylum protection offered by the United States government to refugees fleeing unrest and armed conflict in Central America, were successfully prosecuted.

Bishop Barnes is correct in that the summary of the law on liability for harboring that appears on the New Sanctuary Movement’s web site is not an adequate description of the law, and it has been or shortly will be modified in a manner consistent with the law as described and explained in Section 5 of the Legal Toolkit prepared by legal counsel for the New Sanctuary Movement. Bishop Barnes is also correct in stating that providing sanctuary “in violation of federal immigration law could invite prosecution …” However, as discussed below, sanctuary may and has been offered by congregations in the New Sanctuary Movement in a manner that does not violate federal law.

The few church leaders who faced prosecution during the 1980s for sanctuary work were engaged in transporting undocumented migrants from areas of the border to sanctuaries, providing them food and shelter, and then assisting them to reach their destinations in the U.S.

In the landmark case of United States v. Aguilar, 883 F. 2d 662 (9th Cir. 1986), defendant religious workers were convicted for both transporting and aiding and abetting in the transportation of undocumented migrants. Citing United States v. Moreno, 561 F.2d 1321 (9th Cir. 1977) (emphasizing that the act of transportation must be directly and substantially related to the furtherance of an undocumented alien’s presence), defendants argued that it was not illegal to transport a person who is known to be an undocumented immigrant out of purely humanitarian concern. Id. at 687. The Ninth Circuit, however, rejected this argument, instead holding that transporting migrants “throughout the country as part of [a] plan to shelter illegal aliens out of the INS’s grasp” was “hardly incidentally related to furthering the aliens’ illegal status.” Id. The defendants in this case received probation and were not sentenced to time in prison.

Congregations in the New Sanctuary Movement are not engaged in aiding the unlawful entry and transportation of undocumented migrants. While each congregation is free to decide how, and if, it wishes to provide sanctuary, in all of the current cases the federal authorities are fully informed regarding the temporary locations of the immigrants involved. The provision of food, shelter, and other hospitality is not hidden or clandestine. Simultaneously, these congregations are actively exploring with legal counsel ways in which affected immigrants may seek relief from deportation, or otherwise be entitled to remain lawfully in the United States.

Under these circumstances, while one can never rule out a prosecution by an over-zealous prosecutor, the likelihood of such prosecution remains extremely low, much less the probability of success of any prosecution.

While millions of families, friends, and others provide shelter to undocumented migrants known to be unlawfully present, we are aware of no more than a handful over many years criminally charged with harboring.

The only reported federal appellate court decision of such a case in the Western states dates back over 30 years ago. See United States v. Acosta de Evans, 531 F.2d 428 (9th Cir.), cert. denied, 429 U.S. 836 (1976) (the Ninth Circuit held that “harbor” in the context of § 274 means to “afford shelter to.”). This case remains good law but has rarely been relied upon by other courts. The Ninth Circuit revisited this issue in United States v. Aguilar, 883 F. 2d 662, 690 (9th Cir. 1986). In that case, the Court reaffirmed that definition of harboring but also made it clear that “beyond any doubt … the [accused]… intended to help the aliens in question to evade INS detection.”

The Aguilar holding is reinforced by United States v. You, 382 F.3d 958 (9th Cir. 2004). In that decision, the Ninth Circuit Court of Appeals stated that where a defendant is charged with illegal "harboring" under Section 1324, the jury must be instructed that it must find “that the defendants intended to violate the law.” Id. at 966. In that case, the defendants were charged with violating 8 U.S.C. § 1324(a)(1)(A)(iii) for harboring illegal aliens. Id. at 962. The Court further held that jury instructions requiring the jury, for purposes of conviction, to find that the defendant acted with “the purpose of avoiding [the aliens’] detection by immigration authorities,” were proper instructions. Id. at 966.

The Supreme Court has declined to hear any cases with regard to § 1324(a) and the definition of “harbor.” However, in 1909, the Court struck down a 1907 law that made it illegal to conceal or harbor any alien involved in prostitution “not lawfully entitled to enter or reside in the United States” where the defendant had “only furnished a place” to an alien prostitute. Keller v. United States, 213 U.S. 138 (1909).

Accordingly, a church that provides sanctuary and hospitality to undocumented migrants will likely not be prosecuted unless it attempts to conceal such immigrant from Immigration and Customs Enforcement detection. If the immigrant’s presence in the church is known to the federal authorities, particularly because such information has been shared with the authorities by the immigrant or the congregation, prosecution would not be proper. Recent case law indicates that the courts will require that the Government prove that the effort was to conceal the immigrant from detection by federal authorities. Currently, churches involved in the New Sanctuary Movement and offering sanctuary and hospitality to immigrants have not sought to conceal the immigrants; on the contrary the federal authorities know where they are and have decided not to arrest them solely out of deference to their presence in a church or because the federal authorities may be considering whether the immigrants are indeed subject to arrest and deportation.

A far more complete analysis is available in Section 5 of the New Sanctuary Movement Legal Toolkit, available at www.newsanctuarymovement.org

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