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The Sanctuary Defense: New Policy and Possible Pitfalls

Posted By admin 2017-04-18 20:26:14

The Trump presidential administration has publicly announced on numerous occasions that they intend to intensify their efforts to identify and to deport illegal aliens currently living within the United States, even those who have committed no violations of the law other than living in the US without legal authority. In March of 2017, Attorney General Jeff Sessions unveiled plans to expedite the deportation of illegal immigrants who have been convicted of crimes and are being housed in federal correctional facilities.

In response to this assault on undocumented immigrants, many communities have openly labeled themselves as “sanctuaries,” meaning they offer some measure of protection to illegal aliens by limiting their cooperation with federal authorities. Under the anti-commandeering doctrine announced by the U.S. Supreme Court in 1997, states and localities are not obligated to aid the federal government in enforcing a federal scheme like national immigration proceedings. Nevertheless, in January of 2017 president Trump issued an executive order threatening to withhold federal funds from so-called “sanctuary cities.” The legality of Trump’s order is tenuous at best, but it is another clear signal that his administration will use any method they can to attack illegal immigration, even if that means going after persons with legal status who merely protect illegal aliens from federal detection.

According to federal criminal law, specifically 8 U.S. Code § 1324, Bringing in and harboring certain aliens, any person who, “…knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation,” is guilty of a serious federal crime. The penalty for this felony can be up to five or ten years in prison depending on the facts. And while prosecution of these federal felonies used to be somewhat uncommon, it seems that under the leadership of Attorney General Jeff Sessions, U.S. Attorneys Offices across the country may receive new guidance and directives which advise them to take a closer look at these type of federal felonies.

Under the same statute anyone who simply conspires to hide illegal aliens from federal authorities or aids or abets in the process of hiding illegal aliens from federal authorities is also breaking the law. The same steep penalty of potential federal prison also applies. This provokes an important question: can religious organizations be prosecuted for offering “sanctuary” to undocumented immigrants?

Historically, places of religious worship have been a safe haven for vulnerable populations, such as illegal immigrants. Still today many churches, temples, synagogues etc. offer food, water, comfort, and shelter to desperate people, a vital service for any civilized society. Generally speaking law enforcement officials have afforded a certain level of respect to religious organizations that provide such unconditional kindness to any and all who seek their refuge. Many undocumented persons have sought the aid of religious organizations especially when they fear detainment and deportation by federal authorities. In 2011 the Department of Homeland Security (DHS) issued a policy document referred to as the “Sensitive Locations Memo.” In it, DHS describes how and to what extent Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) can execute their enforcement actions in so-called “sensitive locations” such as places of worship. The general policy is that ICE and CBP should not disturb religious places of worship, and any enforcement actions in these locations requires prior approval from the appropriate supervisory official. The memo does allow for certain necessary actions in sensitive locations under emergency situations referred to as “exigent circumstances.” Moreover, the new presidential administration may soon amend or completely rescind the Sensitive Locations Memo. Further, this memo is already being violated in sanctuary cities across the country, such as Los Angeles, where ICE agents are appearing in courthouses to detain undocumented aliens, who have court proceedings, and who have done nothing wrong aside from being undocumented in the first place.

In keeping with the historical respect of places of worship, there is a special legal exception to the laws against harboring illegal aliens that is afforded only to religious organizations and its members; the sanctuary defense. The special immunity of the sanctuary defense is only applicable to very specific religious members under strictly limited conditions. According to subsection (C) of the Bringing in and harboring certain aliens statue, It is not a violation of the law, “for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officers of such denomination or organization, to encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year.”

According to the explicit language of the statute, the sanctuary defense only applies to the harboring and transportation of illegal aliens who are working within the religious organization as a minister or missionary. Therefore, actively hiding undocumented immigrants from federal authorities, who are simply members, not ministers, is not a protected behavior under the sanctuary defense. Moreover, a “bona fide nonprofit religious organization” is defined as an organization exempt from taxation as described in the Internal Revenue Code of 1986. Therefore, if your organization is not a recognized 501(C)(3) you should not expect to be covered under the sanctuary defense. Further, the undocumented persons must be volunteers, not paid staff of the religious organization. Although the illegal alien missionary may be provided basic living necessities such as shelter, food, and medical treatment, they cannot be provided an additional wage or salary.

Note that the law does not require that the religious organization or its members to publicly proclaim themselves to be a “sanctuary” group. In fact, announcing intentions to potentially use the sanctuary defense may be counterproductive as it may alert federal authorities to the location of illegal aliens and also were the sanctuary defense to fail, such an announcement helps prove one of the requisite intent elements of the criminal statute, under 8 U.S.C. §1324, by showing authorities that the organization or people involved “knowingly” harbored undocumented aliens. Unfortunately, places of worship who publicly declare themselves to be “sanctuary” organizations are not afforded any additional protection from prosecution under the law.

The laws surrounding sanctuary and the potential use of the sanctuary defense are extremely nuanced and complex. Any organization seeking to potentially act as a sanctuary should consult with an experienced attorney to make sure they understand all the potential risks, including the increasingly real risk of criminal prosecution.


Karen L. Goldstein is a Los Angeles criminal defense lawyer who has been dedicating her time to learning how to provide pro-bono legal services involving sanctuary defense.  (888) 445-6313.