Re: Another Catholic Charities Issue
Last week, we discussed the new immigration bill that will make it a felony to assist an alien to remain in the United States. Religious and secular humanitarian groups fear potential prosecution as a result of the changes. Stuart Buck asked: I dont know immigration law well enough to answer this: Is there any reason to believe that the law would actually have the feared result? As I read the bill, it wouldnt even be possible for Church workers to disobey the law unless they actively assist illegal aliens TO remain in the United States. I.e., by doing something that affirmatively assists illegal entry, not by the mere delivery of social services. By analogy, if a aiding-and-abetting statute prohibited assisting someone to commit a felony, this would obviously not apply to a soup kitchen that happened go give food to someone who later happened to commit a felony. Giving people food amounts to assisting people generally, not assisting any *particular* action that an individual commits or might have committed. For what its worth, the bills sponsors emphatically deny that the bill has any application to social services . . . 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 statutes 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 aliens 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) [editors 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 aliens 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 its 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. Kings 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). ___ 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.
Re: Another Catholic Charities Issue
That's very helpful, Chris. So, please allow me to repeat the question I asked last week, which did not prompt any responses then: If the new statute would, indeed, impinge on churches' religious missions as much as Chris's post suggests, then can/must/should Congress enact a religious exemption to the statute (or is such an exemption required by RFRA)? I'm particularly interested in responses from those who expressed the view that it was unlawful or grossly insensitive for Massachusetts not to include a religious exemption to the nondiscrimination provisions of its adoption-provider laws. -- Original message -- From: Christopher C. Lund [EMAIL PROTECTED] Last week, we discussed the new immigration bill that will make it a felony to assist an alien to remain in the United States. Religious and secular humanitarian groups fear potential prosecution as a result of the changes. Stuart Buck asked: I dont know immigration law well enough to answer this: Is there any reason to believe that the law would actually have the feared result? As I read the bill, it wouldnt even be possible for Church workers to disobey the law unless they actively assist illegal aliens TO remain in the United States. I.e., by doing something that affirmatively assists illegal entry, not by the mere delivery of social services. By analogy, if a aiding-and-abetting statute prohibited assisting someone to commit a felony, this would obviously not apply to a soup kitchen that happened go give food to someone who later happened to commit a felony. Giving people food amounts to assisting people generally, not assisting any *particular* action that an individual commits or might have committed. For what its worth, the bills sponsors emphatically deny that the bill has any application to social services . . . 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 statutes 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 aliens 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) [editors 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 aliens 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 its 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. Kings 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
RE: Another Catholic Charities Issue
Title: RE: Another Catholic Charities Issue Don Byrd at Blog From the Capital reports tonight that the Senate Judiciary Committee hasapproved an amendment to the immigration reform bill that would exempt charitable organizations and local churches providing humanitarian assistance to undocumented immigrants. http://www.bjconline.org/cgi-bin/ -- Howard Friedman From: [EMAIL PROTECTED] on behalf of Douglas LaycockSent: Mon 3/27/2006 8:26 PMTo: Law Religion issues for Law AcademicsSubject: RE: Another Catholic Charities Issue I have no informed view on what the bill means. Paul Krugmanthis morning said it will be a crime to give medical care to an illegalalien. If true, I think that would raise a serious question as appliedto a Catholic or Baptist hospital. More sensibly interpreted, I think this bill is very differentfrom the requirement that Catholic Charities give babies to gay adoptiveparents, and the resulting RFRA claims are also very different. WhenCatholic Charities refuses to place babies with gay parents, it hasno effect on all the other adoption agencies in the state. Gay personswho wish to adopt need only go to another agency. Catholic Charitieshonors its own faith commitments, and the effect on everyone else is deminimis. In the clearest case on immigration -- if religious charitieswere smuggling people across the border and hiding them here -- theeffect on others is very different. In effect, the religious charitieswould be replacing the legislative view of immigration policy with theirown view of immigration policy. Public policy would be -- for better orworse, and probably for worse -- that very few people could come in.But religious policy would be that many people could come in, and thereligious preference for many immigrants would be imposeod on everybody,the majority of whose representatives voted for very few immigrants.That is, there are inherently far more externalities in an exception tothis law than in an exception to the adoption law. The further we get from smuggling people in, the weaker thegovernment's claim gets. Hiding people known to be illegal aliens ishard to distinguish from smuggling them in. Providing food, medicalcare, or social services to the impoverished, knowing that somepercentage of the impoverished must be illegal aliens, is a lot easierto distinguish. Yes the religious charities could investigate, butrequiring them to investigate is requiring them to do the government'swork, which may raise establishment clause issues about delegation toreligious bodies as well as free exercise issues. I am not at all surewhere the line is. But I am sure that government has a compellinginterest in not letting religious organizations create their ownimmigration policy that supersedes the government's immigration policy.Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax)-Original Message-From: [EMAIL PROTECTED][mailto:[EMAIL PROTECTED]] On Behalf Of[EMAIL PROTECTED]Sent: Monday, March 27, 2006 5:20 PMTo: Law Religion issues for Law Academics; religionlaw@lists.ucla.eduSubject: Re: Another Catholic Charities IssueThat's very helpful, Chris. So, please allow me to repeat the questionI asked last week, which did not prompt any responses then: If the newstatute would, indeed, impinge on churches' religious missions as muchas Chris's post suggests, then can/must/should Congress enact areligious exemption to the statute (or is such an exemption required byRFRA)? I'm particularly interested in responses from those whoexpressed the view that it was unlawful or grossly insensitive forMassachusetts not to include a religious exemption to thenondiscrimination provisions of its adoption-provider laws.___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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.
RE: Another Catholic Charities Issue
I don't know immigration law well enough to answer this: Is there any reason to believe that the law would actually have the feared result? As I read the bill, it wouldn't even be possible for Church workers to disobey the law unless they actively assist illegal aliens TO remain in the United States. I.e., by doing something that affirmatively assists illegal entry, not by the mere delivery of social services. By analogy, if a aiding-and-abetting statute prohibited assisting someone to commit a felony, this would obviously not apply to a soup kitchen that happened go give food to someone who later happened to commit a felony. Giving people food amounts to assisting people generally, not assisting any *particular* action that an individual commits or might have committed. For what it's worth, the bill's sponsors emphatically deny that the bill has any application to social services: http://www.morleyinstitute.org/12all/index.php?f=archiveval=91nl=4opt=view Is Cardinal Mahoney right in saying that HR 4437 would criminalize Catholic social service assistance to undocumented immigrants? Rep. Peter King, a Catholic from New York, says, Absolutely not. King continues, Not a single priest or bishop has contacted me to talk about this bill. They are questioning my good faith and that of Rep. Sensenbrenner. We want to target gangs and smugglers. This law has always been on the books, and no priest, nun, social worker, or volunteer has ever been arrested or will be arrested. The disputed language of HR 4437 is found in Section #274 defining alien smuggling. The bill would prohibit activities by anyone who assists, encourages, directs, or induces a person to reside in or remain in the United States, or to attempt to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in or remain in the United States. Rep. Sensenbrenner explained on the OReilly Show (March 7) that the terms assists and directs were being added to existing law by this bill. At first glance, that language sounds like it could apply to anyone providing the basic needs food, housing, medical care, clothing helping undocumented immigrants reside in the United States. The word assists could be construed to include social services, without some qualifying explanation. The Window asked Rep. King why the word assists was added to the law. It is my understanding that we added the word assists at the request of the Justice Department so we could go after those who issue false ID cards. If those who are concerned about the language have better language to suggest, let them offer it and we will certainly consider it. King is clearly miffed by the torrent of criticism. Targeting churches and their humanitarian work was never part of the discussion. At no time during the debate of this bill has anyone ever mentioned churches or their social services. From: Marty Lederman [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Another Catholic Charities Issue Date: Wed, 22 Mar 2006 08:56:07 -0500 Interesting Op-Ed in today's Times by the Cardinal Arhcbishop of Los Angeles, who apparently plans to instruct the priests of his archdiocese to disobey a proposed law that would subject them, as well as other church and humanitarian workers, to criminal penalties for assisting undocumented immigrants to remain in the United States. http://www.nytimes.com/2006/03/22/opinion/22mahony.html?_r=1oref=slogin A couple of things to note: 1. Cardinal Mahoney argues that providing social services to illegal immigrants does not mean that the Catholic Church encourages or supports illegal immigration. This is, I submit, in at least a bit of tension with the commonly heard notions that failing to discriminate against gays (e.g., in facilitating adoptions) is an endorsement of same-sex marriage, or that renting apartments to unmarried couples is aiding and abetting sinful behavior. (I acknowledge, of course, that Mahoney does not speak for all Catholics.) 2. More importantly for purposes of this list, does anyone think that Congress (i) can, (ii) should, and/or (iii) must include a religious exemption? Does RFRA already establish such an exemption? Called by God to Help By ROGER MAHONY Los Angeles I'VE received a lot of criticism for stating last month that I would instruct the priests of my archdiocese to disobey a proposed law that would subject them, as well as other church and humanitarian workers, to criminal penalties. The proposed Border Protection, Antiterrorism and Illegal Immigration Control bill, which was approved by the House of Representatives in December and is expected to be taken up by the Senate next week, would among other
Re: Another Catholic Charities Issue
I hope my posts were not understood to be beating up on [the Catholic Church] thinking that homosexual conduct is sinful. Although I think that religious perspective is very unfortunate, I do not for a second question the sincerity or legitimacy of the Church's views (even if, on the question of adoption services, they are directly contrary to the unanimous views of the Catholic Charities Board), nor have I attacked the Church for taking such views. My focus has been on what the *state* does, not what the church does. I was simply wondering whether those persons on the list who were so strongly in favor of a constitutional or statutory religious exemption to the Massachusetts adoption law would think the same about an exemption to this proposed federal immigration statute -- assuming, of course, that the statute prohibited the conduct described by the Cardinal (which apparently is a contestable presumption). -- Original message -- From: Vance R. Koven [EMAIL PROTECTED] It strikes me that on the one hand what Cardinal Mahoney is doing is the opposite of what Catholic Charities did in Massachusetts--they are resisting a law that prevents Catholics from honoring their faith commitment, whereas in Massachusetts Catholic Charities in effect capitulated to the law that prevents their facilitating adoptions without a license (on terms they cannot accept). On the other hand, what Cardinal Mahoney is urging is consistent with what Catholic Charities did--urging Catholics not to cooperate with a law that would require Catholics to act contrary to their faith. I think the latter consideration is more relevant, since it goes to substance and not to form. What a lot of list members seem to be doing with CC is beating up on them for thinking that homosexual conduct is sinful; this is OK as a theological and policy point, but analytically in terms of the roles of government and relligion, shouldn't we be treating a church's theological position as a black box that should not be deconstructed or peered into in accordance with non-believers' ideologies? Vance On 3/22/06, Marty Lederman [EMAIL PROTECTED] wrote: Interesting Op-Ed in today's Times by the Cardinal Arhcbishop of Los Angeles, who apparently plans to instruct the priests of his archdiocese to disobey a proposed law that would subject them, as well as other church and humanitarian workers, to criminal penalties for assisting undocumented immigrants to remain in the United States. http://www.nytimes.com/2006/03/22/opinion/22mahony.html?_r=1oref=slogin A couple of things to note: 1. Cardinal Mahoney argues that providing social services to illegal immigrants does not mean that the Catholic Church encourages or supports illegal immigration. This is, I submit, in at least a bit of tension with the commonly heard notions that failing to discriminate against gays (e.g., in facilitating adoptions) is an endorsement of same-sex marriage, or that renting apartments to unmarried couples is aiding and abetting sinful behavior. (I acknowledge, of course, that Mahoney does not speak for all Catholics.) 2. More importantly for purposes of this list, does anyone think that Congress (i) can, (ii) should, and/or (iii) must include a religious exemption? Does RFRA already establish such an exemption? Called by God to Help By ROGER MAHONY Los Angeles I'VE received a lot of criticism for stating last month that I would instruct the priests of my archdiocese to disobey a proposed law that would subject them, as well as other church and humanitarian workers, to criminal penalties. The proposed Border Protection, Antiterrorism and Illegal Immigration Control bill, which was approved by the House of Representatives in December and is expected to be taken up by the Senate next week, would among other things subject to five years in prison anyone who assists an undocumented immigrant to remain in the United States. Some supporters of the bill have even accused the church of encouraging illegal immigration and meddling in politics. But I stand by my statement. Part of the mission of the Roman Catholic Church is to help people in need. It is our Gospel mandate, in which Christ instructs us to clothe the naked, feed the poor and welcome the stranger. Indeed, the Catholic Church, through Catholic Charities agencies around the country, is one of the largest nonprofit providers of social services in the nation, serving both citizens and immigrants. Providing humanitarian assistance to those in need should not be made a crime, as the House bill decrees. As written, the proposed law is so broad that it would criminalize even minor acts of mercy like offering a meal or administering first aid. Current law does not require social service agencies to obtain evidence of legal status before rendering aid, nor
