Can illegal aliens claim sanctuary in a church?

Question

This tweet (as quoted in a Washington Post article), seems to suggest that illegal aliens can claim sanctuary in a church:

#GuadalupeGarcia attorney says @ICEgov has lied to him and he will advise future clients to seek sanctuary in churches.

(For context, Guadalupe Garcia was living in the US without documentation and was deported during a regular check in with ICE.)

However, I did a search and only turned up articles saying this wasn't actually a law in the United States. Then I came across the case of Elvira Arellano, who sought refuge in a Methodist church for a year. I'm assuming the church didn't simply hide her whenever the police came around for a whole year, since she did interviews and such, but she was arrested when she left, so the authorities were clearly still actively looking to arrest her.

Are police legally required to recognize a claim of sanctuary in a church?

Answer 1

The case you identify is not unique. For example, the Unitarian church in Denver has done much the same thing.

There is not a legal right to sanctuary in a church. But, as a manner of law enforcement discretion and public relations and customary traditions of law enforcement respect for churches that long predate the formation of the USA, law enforcement routinely acts as if there was a right to sanctuary in churches (in the absence, for example, of an active shooter situation or a hostage crisis or a kidnapping with a missing victim). I am not aware of any case in which immigration officials have taken push to shove and breached a claim of sanctuary by a church protecting an illegal immigrant in a church.

In England, where there was an established church, the established Anglican Church historically did have a right to intervene in certain ways in the criminal justice process (e.g. the "privilege of clergy").

UPDATE (February 21, 2017): My original answer was not entirely correct so I am updating this post. It turns out that in 2011 that Immigrations and Customs Enforcement made what was previously a mere custom into an official policy, something I was not previously aware of.

The answer, it turns out, is policy and tradition. A 2011 Immigration and Customs Enforcement policy defines churches, schools and hospitals as "sensitive places" where enforcement actions should be limited. And the tradition of sheltering those who need it goes back to the Middle Ages, said David Poundstone with the Mountain View Friends Meeting.

The official policy is set forth here. The policy is in the public domain and given the interest this post has generated I post it in full below:

U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have made available Frequently Asked Questions (FAQs) to supplement existing guidance concerning enforcement actions at or focused on sensitive locations and clarify what types of locations are covered by these policies.

The ICE and CBP sensitive locations policies, which remain in effect, provide that enforcement actions at sensitive locations should generally be avoided, and require either prior approval from an appropriate supervisory official or exigent circumstances necessitating immediate action. DHS is committed to ensuring that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so without fear or hesitation.

Do the Department of Homeland Security's policies concerning enforcement actions at or focused on sensitive locations remain in effect?

U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have each issued and implemented policies concerning enforcement actions at or focused on sensitive locations. The ICE Sensitive Locations Policy and the CBP Sensitive Locations Policy remain in effect, and these FAQs are intended to clarify what types of locations are covered by those policies.

What do the Department of Homeland Security policies require for enforcement actions to be carried out at sensitive locations?

The policies provide that enforcement actions at or focused on sensitive locations such as schools, places of worship, and hospitals should generally be avoided, and that such actions may only take place when (a) prior approval is obtained from an appropriate supervisory official, or (b) there are exigent circumstances necessitating immediate action without supervisor approval. The policies are meant to ensure that ICE and CBP officers and agents exercise sound judgment when enforcing federal law at or focused on sensitive locations, to enhance the public understanding and trust, and to ensure that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so, without fear or hesitation.

What does the Department of Homeland Security mean by the term “sensitive location”?

Locations covered by these policies would include, but not be limited to:

Schools, such as known and licensed daycares, pre-schools and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events, and school bus stops that are marked and/or known to the officer, during periods when school children are present at the stop; Medical treatment and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities; Places of worship, such as churches, synagogues, mosques, and temples; Religious or civil ceremonies or observances, such as funerals and weddings; and During public demonstration, such as a march, rally, or parade.

What is an enforcement action?

An enforcement action covered by this policy is any action taken by ICE or CBP to apprehend, arrest, interview, or search an individual, or to surveil an individual for enforcement purposes.

Actions not covered by this policy include activities such as obtaining records, documents, and similar materials from officials or employees, providing notice to officials or employees, serving subpoenas, engaging in Student and Exchange Visitor Program (SEVP) compliance and certification visits, guarding or securing detainees, or participating in official functions or community meetings.

Will enforcement actions ever occur at sensitive locations?

Enforcement actions may occur at sensitive locations in limited circumstances, but will generally be avoided. ICE or CBP officers and agents may conduct an enforcement action at a sensitive location with prior approval from an appropriate supervisory official, or if the enforcement action involves exigent circumstances.

When may an enforcement action be carried out at a sensitive location without prior approval?

ICE and CBP officers may carry out an enforcement action at a sensitive location without prior approval from a supervisor in exigent circumstances related to national security, terrorism, or public safety, or where there is an imminent risk of destruction of evidence material to an ongoing criminal case.

When proceeding with an enforcement action under exigent circumstances, officers and agents must conduct themselves as discreetly as possible, consistent with officer and public safety, and make every effort to limit the time at or focused on the sensitive location.

Are sensitive locations located along the international border also protected?

The sensitive locations policy does not apply to operations that are conducted within the immediate vicinity of the international border, including the functional equivalent of the border. However, when situations arise that call for enforcement actions at or near a sensitive location within the immediate vicinity of the international border, including its functional equivalent, agents and officers are expected to exercise sound judgment and common sense while taking appropriate action, consistent with the goals of this policy.

Examples of operations within the immediate vicinity of the border are, but are not limited to, searches at ports of entry, activities undertaken where there is reasonable certainty that an individual just crossed the border, circumstances where DHS has maintained surveillance of a subject since crossing the border, and circumstances where DHS is operating in a location that is geographically further from the border but separated from the border by rugged and remote terrain.

Are courthouses sensitive locations?

Courthouses do not fall under ICE or CBP’s policies concerning enforcement actions at or focused on sensitive locations.

Where should I report a DHS enforcement action that I believe may be inconsistent with these policies?

There are a number of locations where an individual may lodge a complaint about a particular DHS enforcement action that may have taken place in violation of the sensitive locations policy. You may find information about these locations, and information about how to file a complaint, on the DHS, CBP, or ICE websites.

You may contact ICE Enforcement and Removal Operations (ERO) through the Detention Reporting and Information Line at (888)351-4024 or through the ERO information email address at [email protected], also available at https://www.ice.gov/webform/ero-contact-form. The Civil Liberties Division of the ICE Office of Diversity and Civil Rights may be contacted at (202) 732-0092 or [email protected].

You may contact the CBP Information Center to file a complaint or compliment via phone at 1 (877) 227-5511, or submit an email through the website at https://help.cbp.gov.

The policy is drafted in a manner that it doesn't actually prohibit enforcement in a sanctuary, even in the absence of exigent circumstances, but it does call for a process to be followed if this is done, and discourages doing so without prohibiting this action.

Answer 2

If a person is within a political unit X, they are in the jurisdiction of X, and unless them have specific immunity (e.g. Art. 1 Sect. 6 Cl. 1 of the Constitution, congressional immunity from arrest), they may be arrested. A foreign embassy would be the one place located within the borders of a nation which (per Vienna Convention on Diplomatic Relations Art. 22) is inviolable, and we speak of it as being "foreign soil". A church has no special status in the US whereby one can be granted immunity from arrest, and there could not be under the First Amendment, in that it would amount to an establishment of religion (granting a special privilege to a church).

Answer 3

There is no law in any jurisdiction I know of in the US that formalizes sanctuary in any house of worship (church or otherwise).

When a congregation and its clergy decide to grant sanctuary to somebody, it is a conspicuous act of civil disobedience. Usually a decision to grant sanctuary is accompanied by a commitment by the clergy and congregation to other techniques of nonviolent civil disobedience, such as 24 hour vigils and sit-in blockades. The people doing this need to be prepared to refuse entry to the house of worship, even to a police officer carrying a valid warrant.

If the civil authorities decide they aren't going to honor sanctuary, they can take the person by force. For example they can arrest all those standing vigil and charge them with obstruction of justice, or shut off power, or even break down the building's door.

But the civil authorities doing this will make the newspapers and the TV news. The power of sanctuary comes from the power of nonviolent civil disobedience.

It also comes from the historic reluctance of the judiciary to intrude on church matters. This is based in part on the Reformation-era (1500s) delineation of separate power for princes and bishops (state and church in modern language).