Here is a summary and analysis regarding the recent statement from the Department of Homeland Security (DHS) addressing law enforcement’s ability to enter churches for purposes of detaining undocumented immigrants.
The Department of Homeland Security recently lifted policies put in place under the Biden administration which limited Immigration Customs Enforcement (ICE) and Customs and Border Protection in their ability to arrest people at or near “sensitive” locations such as churches or schools. The statement from the Department included the following:
“This action empowers the brave men and women in CBP and ICE to enforce our immigration laws and catch criminal aliens—including murders and rapists—who have illegally come into our country. Criminals will no longer be able to hide in America’s schools and churches to avoid arrest. The Trump Administration will not tie the hands of our brave law enforcement, and instead trusts them to use common sense”
This suggests that ICE and Customs and Border Protection may now use their own discretion to enter or make a presence outside of churches to apprehend and arrest undocumented immigrants. The statement appears to emphasize the fact that sensitive areas like churches have previously been used by undocumented immigrants who have committed heinous and violent crimes, and that these types of individuals would be the target of an entry or presence near a church for the purpose of making arrests. There is no specific statement or rule limiting entry to a church or onto church property to arrests of illegal immigrants who have committed murder or rape, but the statement by Department of Homeland Security seems to indicate that those types of criminals are the focus.
But the government is limited by the protection offered to the people by the Constitution. The Fourth Amendment sets forth the main way the government can obtain a warrant by demonstrating that its desired search and/or seizure act is reasonable, based on probable cause, and supported by oath or affirmation. Such warrants are then issued by a judicial officer. As a general rule, barring a specific exception to the paper warrant requirement, the law enforcement must obtain a warrant before intruding or acting in areas where there is a “reasonable expectation of privacy,” such as a person’s home.
The above discussion relates to searches and seizures (often arrests) relating to criminal actions. But there are also non-criminal warrants that are issued by government officials that are not judges. For example, in the context of the work that ICE performs, removal of an undocumented person may be justified only on the basis that the person is not legally present in the United States, rather than on an underlying criminal basis. In this case, only a “removal warrant” is required, which may be signed and issued by an ICE official rather than a federal judge.
A key characteristic of a removal warrant issued by ICE is that such a warrant does not permit ICE to enter places where there is a reasonable expectation of privacy. What is unclear from the recent statement by the Department of Homeland Security is that, while churches are now no longer considered “protected” places, there is ambiguity as to whether churches are places where there is a “reasonable expectation of privacy.” Our hunch is that they are considered public places and not a place where a person can have a reasonable expectation of privacy, like they would have in their home.
For anyone concerned about law enforcement entering their church to make arrests, bear in mind the following:
- ICE Agents who are in public spaces, which probably includes churches, or who are authorized to enter private spaces, can make arrests if they have an administrative warrant or probable cause;
- The statement by the DHS suggests that the only reason ICE might take this type of action is to arrest undocumented workers with underlying violent criminal records;
- There is no legal protection for engaging in illegal activity.
- Anyone approached by ICE Agents, whether in public or private, has the right to remain silent.
If ICE or other law enforcement enters or attempts to enter the church, the following actions should be taken:
- Asking to see a warrant for entry. If a warrant is produced, ask questions about the warrant, such as who issued it and what it allows the officers to do. Request a photocopy of the warrant, or to take a picture of it;
- Record the officers’ names and badge/ID numbers;
- Calmly state that you object to the entry, but DO NOT resist governmental agents or law enforcement who seek to enter the premises anyway.
- Comply with law enforcement.
Churches that are concerned about ICE or law enforcement entering their church to make arrests should seek and obtain an immigration attorney. If entry and arrests are made at church property, immediately provide the names and badge/ID numbers of the officers to the attorney, as well as a photocopy or picture of the warrant, if obtained, and any other information relevant to the situation.
Nathan Brecht
Associate Attorney
Law Offices of Myron S. Steeves
Church Law Center of California
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