Ye Took Me In

Perhaps the most puzzling and troubling part of the church’s recent directive to church leaders on undocumented immigrants is the instruction that if church leaders believe a member is “not authorized to work, they should avoid potential conflicts with federal law by avoiding or limiting housing assistance.”

It’s puzzling and troubling for a number of reasons. It flies in the face of long-standing church policy. Under the church’s Handbook, “Church assistance might include help with short-term needs such as food, clothing, housing, or other basics.” While it indicates that such assistance should be short-term, the handbook doesn’t differentiate based on a recipient’s immigration status.

And, in fact, the new policy encourages a type of pastoral profiling. After all, the limitation on providing housing aid is based on a church leader’s belief that an individual lacks legal status. I’ll come back to this in a minute, but it’s important to note that it is impossible, looking at somebody, to know whether they were born in the U.S., whether they came in legally, whether they overstayed a visa, or whether they crossed a border illegally. I have no idea what a church leader’s belief would be founded on.

This denial of hospitality and aid for undocumented immigrants also flies directly in the face of our obligation to help the stranger and make them comfortable in our land. It’s not just the Parable of the Sheep and the Goats, though there, Jesus makes very clear the stakes. Those who do not invite the stranger in are on His left hand, to be cast out from Him, while those who do invite the stranger in are welcomed into His kingdom.

The church’s reasoning for the policy change seems to be to protect local leaders from potential criminal charges. It doesn’t say what those criminal charges are, but as best as I can determine, it’s referring to 8 U.S.C. 1324(a)(1)(A)(iii).[fn1] The provision imposes criminal penalties on 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.”

Now, I’m not an expert in federal criminal law, but I know my way around a statute and around case law. And largely, the provision of housing turns on what it means to harbor an undocumented immigrant.

Congress did not define the term when it enacted the law, leaving it to courts to determine what it means. And among the courts, there is kind of a circuit split on the question. (Kind of.) In my mind, the better (and more common) reading is that definition of harboring includes concealment. That is, you only violate the harboring statute if, in providing the housing, you’re also hiding the immigrant from law enforcement. (2d Cir., 3d Cir., 5th Cir., 6th Cir., 7th Cir., 11th Cir.)

The 9th Circuit doesn’t require concealment; it does, however, require a specific intent to violate the law, which can be shown, according to the court, by, inter alia, concealing undocumented immigrants or publicizing the fact that one is harboring undocumented immigrants in violation of an unjust law. (I believe that several other Circuits share this specific intent requirement, but honestly, I’ve spent a ton of my free time researching this already.)

There’s also the knowledge requirement. You’ve only violated the law if you know that a person you’re harboring is present illegally or you recklessly disregard the possibility. And in nearly every case I’ve looked at, that reckless disregard is done by an employer, or someone else with a legal duty to ask for evidence that someone is authorized to work and who chooses not to ask. (Also, I didn’t see a single case where someone was charged for paying somebody’s rent—where the question was rent, it was always the landlord who was charged, and usually the landlord really had to be turning a blind eye to the fact that they were renting to undocumented individuals. I have yet to find a case where a charge was brought against a payor.)

Here’s the thing: bishops are under no obligation to learn congregants’ immigration status. If the church wants to avoid potential legal liability for bishops, even in the Circuits that don’t require concealment as an element of the crime, it could quite simply direct bishops not to inquire about immigration status. There’s nothing in the church that requires us to know the immigration status of people around us, and no reason that choosing not to know would represent reckless disregard.[fn2]

And that’s leaving aside the strong likelihood that criminalizing a bishop providing housing aid to a congregant would be a RFRA violation. A couple years ago, an Arizona district court held that laws criminalizing the provision of food and water along immigration routes violated the religious rights of members of No More Deaths/No Más Muertes. (The organization is affiliated with the Unitarian Universalist Church.)

So is my legal analysis a sure thing? No, though I find it difficult to imagine a world where the government could successfully prosecute a bishop following his church’s direction to provide housing aid to whomever requested it. And the church has the resources (both financial and legal) to defend any bishop that the government tried to prosecute.

But let’s say the church doesn’t want to do so for whatever reason. It can still provide two sets of instructions, one for congregations in the Circuits that include a concealment requirement and another for congregations in other Circuits. That’s not ideal, of course, but the church does operate in jurisdictions with different laws and complies with the jurisdiction-specific laws. (So, for instance, it discloses its finances in countries that require the public disclosure of nonprofit finances. And it requires background checks for certain callings in the UK, in accordance with UK law.) Again, not ideal, but not out of the realm of possibility.

There is another option, of course: the church could stop providing housing assistance for anybody. This would be a terrible choice, but at least it wouldn’t represent a differential policy toward undocumented immigrants and legal residence (although again, this would seem to fly in the face of literally everything in scripture).