Judge Posner wrote a majority opinion in a 2012 case that helpfully narrows the "harboring" issue a little bit. I include the case in my statutory interpretation casebook. US v Costello, 666 F.3d 1040 (7th Cir. 2012). I'm not sure it would help a church or other religious person/entity, but it may be worth taking a look at if the issue arises. The case involved a woman who opened her house to her undocumented boyfriend, knowing that he was unlawfully in the US. The majority held that this did not constitute harboring.
On Tue, Mar 28, 2017 at 8:28 AM, Christopher Lund <l...@wayne.edu> wrote: > On the harboring issue, I wrote a listserv post 10 years ago part of which > may be relevant now. In short, the harboring statute is broad; any shelter > you give to an alien unlawfully present is harboring, even if you don’t > intend to facilitate their unlawful presence. Churches have harbored, and > they have been prosecuted for harboring. OLC in fact had an opinion back > during the Reagan Administration addressing the issue, confirming that > churches that house illegal aliens violate the harboring statute, and > claiming that that they have no constitutional right of exemption. > > > > My analysis is below and my original listserv post is here: > http://lists.ucla.edu/pipermail/religionlaw/2006-March/021588.html. > > > > Best, > > Chris > > ___________________________ > > Christopher C. Lund > > Associate Professor of Law > > Wayne State University Law School > > 471 West Palmer St. > > Detroit, MI 48202 > > l...@wayne.edu > > (313) 577-4046 (phone) > > Website—http://law.wayne.edu/profile/christopher.lund/ > > Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=36340 > > > > > > . . . I was curious about this too, so I took a look at 8 U.S.C. § 1324, > which is > > the current statute. Under Section 1324(a)(1)(A)(iii), anyone who > > “conceals, harbors, or shields [an illegal alien] from detection,” commits > a > > felony punishable by up to five years in prison. I looked at some of the > > cases, and I was astonished at the breadth this statute has been given. > The > > general rule is that “merely providing shelter to an alien” is enough to > > constitute harboring under the statute. United States v. Lopez, 521 F.2d > > 437, 439 (2d Cir. 1975); see also United States v. Acosta, 531 F.2d 428, > 430 > > (9th Cir. 1976) (rejecting the idea that the statute’s requirement of > > harboring requires “clandestine sheltering,” and instead construing > “‘harbor > > to mean ‘afford shelter to’”). The logic of these cases is simple: > “Because > > affording shelter to an illegal alien is conduct which by its nature tends > > to substantially facilitate the alien’s remaining in the United States > > illegally, providing shelter to illegal aliens constitutes harboring > illegal > > aliens under 8 U.S.C. § 1324(a)(1)(A)(iii).” United States v. Balderas, > 91 > > Fed. Appx. 354, 355, 2004 WL 605233, at *2 (5th Cir. Mar. 26, 2004). > > > > OLC has an opinion from 1983, “Church Sanctuary for Illegal Aliens.” 7 > U.S. > > Op. OLC 168, 1983 WL 160504. It concludes, “The housing of illegal aliens > > by churches would appear to be a violation of 8 U.S.C. § 1324(a)(3) > > [editor’s note: the statute has since been reorganized, which is why the > > numbers are slightly off], which forbids the harboring of illegal aliens. > > Although the churches alert the INS that they are offering the aliens > > shelter, the most recent case law rejects the notion that harboring must > > involve actually hiding the alien or otherwise ‘clandestine’ activity.” > > > > The breadth of the statute was initially tempered by the fact that the > > statute required actual knowledge – the putative violator had to actually > > know the recipient of assistance was an illegal alien for the statute to > > apply. But that was changed in 1986 – reckless disregard of an alien’s > > status is now enough. I imagine that most of the Catholic relief houses > > operating along the border are consciously aware of a substantial > > possibility that they are housing illegal aliens, so I think it’s clear > that > > – even as the statute exists today – they are violating it. > > > > As for the proposed changes – with the broad interpretations given the > > notion of “harboring” (which seems to be a far more easily constrained > > concept than “assisting”), I can only assume that the proposed statute > would > > be even more of a threat to religious and secular groups trying to provide > > for immigrant populations. > > > > By the way, Rep. King’s assertion that "no priest, nun, social worker, or > > volunteer has ever been arrested or will be arrested" seems incorrect. In > United States v. > > Aguilar, 883 F.2d 662 (9th Cir. 1989), for example, the Ninth Circuit > > affirmed the conviction of Father Anthony Clark and several other people > > from Sacred Heart Church that were involved in the sanctuary movement for > > violating 8 U.S.C. § 1324(a)(1)(A)(iii). You can find other examples in > > Gregory A. Loken & Lisa R. Babino, Harboring, Sanctuary, and the Crime of > > Charity Under Federal Immigration Law, 28 Harv. C.R.-C.L. L. Rev. 119 > > (1993). > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Saperstein, David > *Sent:* Tuesday, March 28, 2017 8:07 AM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: Religious objections to deportation policies > > > > I presume there would have to be actual government action against the > congregation first and then a RFRA defense would be appropriate..like the > wash D.C. case where it worked to maintain a feeding program. > > Sent from my iPhone > > > On Mar 28, 2017, at 7:54 AM, "jeremy.mall...@gmail.com" < > jeremy.mall...@gmail.com> wrote: > > I am in contact with a coalition of congregations in Cambridge, Mass., > that is planning to offer sanctuary in line with the third scenario. I am > unaware of any examples yet, but I will be sure to drop a note here in case > it does arise. > > > > Jeremy Mallory > > > > > On Mar 28, 2017 at 5:31 AM, <Marty Lederman > <martin.leder...@law.georgetown.edu>> wrote: > > Alan: The first two issues won't (yet) arise because, as far as I know, > the law does not require any private persons -- or cities, for that matter > -- to assist DHS with its removal proceedings. There are no "obligations > to disclose" information about immigration status, in particular. (All > that 8 USC 1373(a) does is to prohibit cities from prohibiting their own > employees from providing such info to the feds if they so choose.) > > > > I'm also not aware of any cases involving your third scenario, in which > (as I understand it) a church harbors a removable alien and refuses to > allow immigration officials to enter the facilities to arrest the > individual. > > > > On Mon, Mar 27, 2017 at 11:50 PM, Alan E Brownstein < > aebrownst...@ucdavis.edu> wrote: > > Has anyone written anything about (or given some thought to) the > possibility of RFRA being employed to challenge the federal government's > deportation policies. > > > > For example, might a professor or registrar at a private school be > permitted to assert RFRA as a defense to a federal law requiring her to > seek and disclose the immigration status of students? > > > > Could a "sanctuary city" assert that it is relieving any of its employees > from any obligation to disclose information about the immigration status of > persons within the jurisdiction to federal immigration authorities if it > would violate their religious beliefs to do so? Might the city argue that > such an order complies with federal law because it is mandated by RFRA? > > > > May a church provide sanctuary to an undocumented refugee at risk of > deportation and assert a RFRA claim to avoid prosecution for doing so? The > church would assert it is prohibited by its beliefs from denying sanctuary > in these circumstances. > > > > I recognize, of course, that successfully asserting a substantial burden > on religious exercise only shifts the burden to the government to justify > its actions under strict scrutiny. > > > > Alan Brownstein > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > <https://urldefense.proofpoint.com/v2/url?u=http-3A__lists.ucla.edu_cgi-2Dbin_mailman_listinfo_religionlaw&d=DwMFaQ&c=UT72XLgLSquXuWqngwXwRw&r=g1VX3BoZB_unYQxCiACrWJfXLfLiNC1KjpGKsGtdK5Y&m=btA3ZixBXmFw87yJGZ4JJ7E2B1BTbGAc_WV25xSRSp0&s=P-7-FYBIs1OPFHYgHSRYfU4WLqdNl1br771GvyfnWQQ&e=> > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > _______________________________________________ To post, send message to > Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or > get password, see http://lists.ucla.edu/cgi-bin/ > mailman/listinfo/religionlaw Please note that messages sent to this large > list cannot be viewed as private. Anyone can subscribe to the list and read > messages that are p > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > https://urldefense.proofpoint.com/v2/url?u=http-3A__lists. > ucla.edu_cgi-2Dbin_mailman_listinfo_religionlaw&d=DwICAg& > c=UT72XLgLSquXuWqngwXwRw&r=g1VX3BoZB_unYQxCiACrWJfXLfLiNC1KjpGKsGtdK5Y&m= > btA3ZixBXmFw87yJGZ4JJ7E2B1BTbGAc_WV25xSRSp0&s=P-7- > FYBIs1OPFHYgHSRYfU4WLqdNl1br771GvyfnWQQ&e= > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law Director, Georgia Law in Atlanta 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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