Immigration Law's Looming RFRA Problem Can Be Solved by RFRA

By Inks, Stephanie Acosta | Brigham Young University Law Review, January 1, 2019 | Go to article overview

Immigration Law's Looming RFRA Problem Can Be Solved by RFRA


Inks, Stephanie Acosta, Brigham Young University Law Review


I. Introduction

Two primary objectives of President Trump's administration are expanded religious freedom and strict immigration enforcement. But many religiously motivated people are trying to help vulnerable undocumented people with necessities. Is that a crime?1 As executive officials continue to aggressively prosecute immigration laws2 and at the same time promote a robust understanding of religious freedom,3 a conflict is imminent between a broad interpretation of the Immigration and Nationality Act's (INA) 1324 prohibition against harboring undocumented people4 and the Religious Freedom Restoration Act (RFRA).5 As the Washington Post recently noted, the executive branch will be forced to decide "what it prioritizes more: its ability to deport immigrants in the country illegally-or the right of religious Americans to stand in their way."6 If executive officials decide to exercise their discretion for a strict interpretation of the INA's 1324, courts will be forced to address the conflict as well. This Article proposes resolving the conflict by applying RFRA as a tool of statutory construction, rather than on a case-by-case basis.

The standard tools of interpretation have failed to clarify the harboring provision in 1324 of the INA. Judges in the United states Courts of Appeals have attempted to use traditional tools to get clarity on the ambiguous provision, yet the ambiguity remains-not just between circuits, but within some of them. In some circuits, "harboring" under 1324 is interpreted broadly, including conduct that merely "substantially facilitates" or "makes it easier or less difficult" for an undocumented person to stay in the United States.7 In other circuits, the harboring provision is interpreted narrowly requiring a specific intent to conceal the undocumented person from authorities.8 Still others interpret the harboring provision to mean giving an undocumented person "a place to stay where it is unlikely that the authorities will be seeking him."9 This ambiguity creates a problem for the religiously motivated people who are helping undocumented immigrants all around the country by providing food, water, clothing, shelter, or sanctuary.10 If the executive branch enforces the harboring provision strictly, even against religiously motivated Americans, what conduct is covered?

Consider United States v. Warren.11 The government is criminally prosecuting Dr. Scott Daniel Warren, a professor at the University of Arizona, for violating the 1324 prohibition against harboring illegal aliens.12 His crime? He "took care"13 of two undocumented men who showed up at the door of No More Deaths,14 a religiously affiliated organization where he volunteers by offering them "food, water, beds, and clean clothes."15 In the government's view that is illegal-even though the government presented no evidence that Dr. Warren concealed the undocumented men from detection. In fact, it is arguable that by caring for them at a facility known to provide humanitarian relief for undocumented people, Warren helped the government locate the men.16 What motivated Warren was his religious beliefs. He said they "bound [me] to offer assistance to human beings in need of basic necessities."17

The last time the American legal system endured this significant of a conflict between religiously motivated charitable conduct and strict enforcement of immigration laws was in the 1980's, in what became known as the Sanctuary Trials.18 The court resolved that clash in a different religious freedom paradigm. The analysis would almost certainly be different today given the new religious freedom landscape that has taken shape because of RFRA and the Supreme Court's jurisprudence interpreting and applying RFRA in cases such as Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal19 and Burwell v. Hobby Lobby, Inc.20 The analysis in this new religious freedom landscape reveals a very strong RFRA-based claim or defense to a broad interpretation of harboring under 1324. …

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