Another Catholic Charities Issue

[marty.lederman at comcast.net]

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" <chlund1 at hotmail.com>
> 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 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 . . .”
> 
> 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).
> 
> 
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