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An Illusory Sanctuary


By: Kayla Hoel, Volume 102 Staff Member

At two in the morning on October 24, 2017, an ambulance carrying a ten-year-old child to an emergency surgery in Corpus Christi, Texas, was stopped at an immigration checkpoint.[1] The child, Rosa Maria Hernandez, had cerebral palsy and was being transferred from Laredo, Texas, to Driscoll Children’s Hospital 150 miles away for gallbladder surgery.[2] In addition to needing surgery, Rosa Maria was an undocumented immigrant.[3] At the checkpoint, Border Patrol agents learned that Rosa Maria lacked residency status and followed the ambulance to the hospital where they waited outside of her recovery room.[4] Once Rosa Maria was discharged from the hospital, she was arrested and turned over to the Office of Refugee Resettlement as an unaccompanied child.[5] After public outcry and a lawsuit by the American Civil Liberties Union, Rosa Maria was released to her parents.[6]

This story is one of many where undocumented immigrants have been detained at locations which the public may consider “safe.” Romulo Avelica-Gonzalez was pulled over by Immigration and Customs Enforcement (ICE) officers while driving his daughters to school.[7] A woman was detained at a courthouse while filing a protective order against a boyfriend she accused of domestic abuse.[8] Others seek shelter in churches that have designated themselves as “sanctuary congregations” where, as of yet, federal agents have not entered to detain immigrants.[9] Against a backdrop of public outrage over immigration enforcement policies, it is important to understand the authority that allows federal government officials to carry out detentions in places the public may believe offer “sanctuary” from detention.

How did the federal government gain authority to expel individuals from the United States? The U.S. Constitution gives Congress the power “[t]o establish an uniform Rule of Naturalization”; thus, Congress can decide who can become a citizen of the United States.[10] However, the U.S. Constitution does not explicitly give the federal government the power to exclude or expel noncitizens.[11] Instead, this power comes from a series of Supreme Court cases. In the 1889 case Chae Chan Ping v. United States, the United States Supreme Court held that Congress had the ability to exclude noncitizens from entering the United States.[12] Four years later, in Fong Yue Ting v. United States, the United States Supreme Court went one step further and held that the power to expel individuals who were not citizens was vested in the legislative branch of government.[13] The plenary powers to exclude and expel thus became a fixture of immigration jurisprudence.[14]

Currently, the types of individuals who can be removed[15] from the United States by the federal government is codified in 8 U.S.C. § 1227.[16] However, the statute itself does not place limits on how government agencies carry out these removals. Instead, there are statutorily imposed criminal penalties for individuals who provide certain types of assistance to undocumented immigrants who remain in the United States in violation of the law.[17]

If our federal statutes do not provide for sanctuary (and, indeed, may criminalize it), why do federal agents generally avoid targeting certain places? In 2011, the ICE Director issued a memorandum that listed “sensitive locations” where ICE officers and agents should not take enforcement action—including placing undocumented immigrants in custody—unless specific circumstances apply.[18] The sensitive locations outlined in the memo were schools; hospitals; churches, synagogues, mosques, and other institutions of worship; the sites of funerals, weddings, or other religious ceremonies; and any site during the occurrence of a public demonstration.[19] Notably, courthouses were absent from this list.[20] Thus, in the stories cited above, ICE agents were following the letter of the policy—taking enforcement action at a checkpoint instead of a hospital, on the road instead of a school, and in a courthouse—while potentially violating the spirit of the policy—by actuating arrests in a hospital, in front of a child on her way to school, and of a victim of domestic abuse where “particular care should be exercised.”[21] Ultimately, given the exceptions to the sensitive location policy—i.e. that enforcement action can occur if “specific circumstances apply”—and the fact the policy is not law, ICE could detain undocumented immigrants anywhere in the United States.[22]

Furthermore, because the sensitive locations directive stems from a nonbinding policy memorandum, it could be rescinded or altered at any time.[23] Given this possibility, what can be done to protect undocumented immigrants? There are 11 million[24] undocumented individuals in our midst who support their basic needs by going to locations such as hospitals, schools, and churches. Because the power to exclude lies with the legislative branches, as described above, Congress should take action and pass meaningful immigration reform that reduces the number of people who are subject to immigration enforcement—in other words decrease the number of individuals who fall under the label “undocumented immigrant.” This could be done by providing amnesty for classes of people as was done in the 1980’s[25]—although this would be very controversial in the current political climate—or by providing a special type of status for these individuals, such as Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA). In addition, our immigration system must recognize and reflect the reality that as long as the United States is seen as a safe and prosperous country, immigrants will continue to cross our borders. Thus, meaningful immigration reform should both create more pathways for individuals to legally enter the United States and promote measures to assist these immigrants’ native countries in becoming safer and economically successful. While these sound like lofty measures, simply agreeing on baseline goals may help stimulate a bipartisan effort in today’s hyper-politicized atmosphere.

Second, and perhaps more controversially, Congress could codify the idea of sanctuary places. Recognizing that it is not a criminal offense to be in the country illegally, only a civil offense,[26] Congress could codify the sensitive location policy, thereby directing executive branch agencies as to where they should not take enforcement action. Congress could also include courthouses as a sensitive location to encourage all people in the United States to serve as witnesses in reporting and testifying against crime, and to protect their physical safety by requesting protective orders. Protecting sensitive places would allow all individuals to ensure they take care of fundamental needs—health, education, religion, and justice—while still providing immigration enforcement agencies with ample locations where enforcement actions could occur.

Regrettably, in a time of heightened partisan tension where the topic of immigration sparks heated debates, the likelihood of immigration reform protecting undocumented immigrants is low.[27] While the seeds of change planted now may be an option for future reform, current action is also needed. Concerned members of the public can petition their congressional representatives to pass meaningful immigration protections such those as mentioned above. They can also highlight stories that trigger a sense of moral injustice and rally support for those who are affected by immigration enforcement actions. Creating awareness around affected individuals in our own communities can build empathy, which in turn can be a catalyst for change.

Although the stories coming from and the rhetoric around the immigration debate are polarizing, now is the time to gather evidence regarding the impact harmful immigration enforcement actions are having on individuals’ lives. Rosa Maria, a disabled child, spent over a week outside of her parent’s care after undergoing emergency surgery. While she was spared the long-term, harmful psychological effects of forced separation due to long-term detention, the current law will not protect others to come facing similar hardship. Now is the time to plant the seeds of change and rally for future statutory protections.

  1. Amrit Cheng, We’re Suing the Government for Its Detention and Abuse of Rosa Maria, a 10-Year-Old Child with Cerebral Palsy, ACLU (Oct. 31, 2017, 5:15 PM),
  2. Id.
  3. Barbara Campbell, Girl Detained by Border Patrol After Emergency Surgery Released to Parents, NPR (Nov. 3, 2017, 8:06 PM),
  4. Id.
  5. Cheng, supra note 1.
  6. Texas Releases Disabled Migrant Girl Rosa Maria Hernandez, BBC (Nov. 4, 2017),
  7. Ray Sanchez, ICE Arrests Undocumented Father Taking Daughter to California School, CNN (Mar. 3, 2017, 8:42 PM),
  8. Katie Mettler, ‘This Is Really Unprecedented’: ICE Detains Woman Seeking Domestic Abuse Protection at Texas Courthouse, Wash. Post (Feb. 16, 2017),
  9. See, e.g., Laurie Goodstein, Immigrant Shielded from Deportation by Philadelphia Church Walks Free, N.Y. Times (Oct. 11, 2017),; Michael Levenson, Jamaica Plain Church Shelters Man Facing Deportation, Bos. Globe (Sept. 25, 2017),; Nereida Moreno, Mother of 6 Seeks Sanctuary in a Chicago Church to Avoid Deportation, Chi. Trib. (Aug. 23, 2017, 6:06 PM),; Donie O’Sullivan & Gisela Crespo, Undocumented Grandmother Finds Sanctuary in North Carolina Church, CNN (May 31, 2017, 12:53 PM),; Arturo Hernandez Detained by ICE After 9 Months’ Sanctuary in Colorado Church: Activists, NBC NEWS (Apr. 27, 2017, 4:51 AM),
  10. U.S. Const. art. I, § 8, cl. 4.
  11. See Harisiades v. Shaughnessy, 342 U.S. 580, 599 (1952) (Douglas & Black, JJ., dissenting) (“The power of Congress to exclude, admit, or deport aliens flows from sovereignty itself and from the power ‘To establish an uniform Rule of Naturalization.’ The power of deportation is therefore an implied one.”) (emphasis added) (citing U.S. Const. art. I, § 8, cl. 4).
  12. Chae Chan Ping v. United States, 130 U.S. 581, 603–04 (1889).
  13. Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893).
  14. See Janel Thamkul, The Plenary Power-Shaped Hole in the Core Constitutional Law Curriculum: Exclusion, Unequal Protection, and American National Identity, 96 Calif. L. Rev. 553, 555 (2008) (noting these two cases “are the roots of Congress’s plenary power over immigration” while arguing these cases should be taught in law school Constitutional Law classes to educate students about the historical racism involved in foundational immigration law).
  15. In the common vernacular, expelled, removed, and deported have the same meaning—an individual is being forced to leave the United States. However, in immigration law removed and deported have been used in different statutes over time. This Post does not address the nuanced differences of these terms.
  16. 8 U.S.C. §1227 (2012).
  17. 8 U.S.C. § 1324(a)(1)(A)(i)–(v) (2012) (declaring that anyone who brings or attempts to bring an alien into the United States in violation of the law, who transports an alien within the United States in furtherance of such violation of the law, who conceals, harbors, or shields from detection such alien, or who encourages an alien to come to, enter, or reside in the United States in violation of the law shall receive criminal punishment). Thus, governmental agencies have no statutory limits on where they carry out immigration enforcement, and the statute criminalizes the act of people preventing immigration enforcement. This caused tension in the 1980’s during what became known as the Sanctuary Movement, when members of congregations broke federal statutes prohibiting transporting and moving immigrants who were in the United States without status. See Natalie Lile, The Religious Freedom Restoration Act: Could It Have Helped the Sanctuary Movement?, 11 Geo. Immigr. L.J. 199, 201–02 (1996). While claiming these laws violated their free exercise of religion—that they had a moral duty to help people fleeing violence in their homeland—ultimately these defenses failed, and members of the Sanctuary Movement were found guilty. Id. at 204–10. Today, members of the New Sanctuary Movement are questioning whether congregations who openly declare they are housing undocumented immigrations will be charged with “harboring” an alien in violation of 8 U.S.C. 1324(a)(1)(A)(iii). See John Medeiros & Michele Garnett McKenzie, The Rise of the Sanctuary Congregation, Hennepin Law., May/June 2017, at 20, 21–22. There is also an open question as to whether the 1993 Religious Freedom Restoration Act and subsequent state-specific religious freedoms acts could serve as a defense for congregations who see housing immigrants facing deportation as a religious obligation. See Victoria J. Avalon, The Lazarus Effect: Could Florida’s Religious Freedom Restoration Act Resurrect Ecclesiastical Sanctuary?, 30 Stetson L. Rev. 663 (2000); Natalie Lile, The Religious Freedom Restoration Act: Could It Have Helped the Sanctuary Movement?, 11 Geo. Immigr. L.J. 199 (1996).
  18. John Morton, U.S. Immigr. and Customs Enf’t, Enforcement Actions at or Focused on Sensitive Locations (2011).
  19. Id.
  20. ICE maintains a website of frequently asked questions (FAQs) about this sensitive location policy, on which they explain courthouses are not included in the policy because it is safer for the community to have ICE detain individuals once they have been screened for weapons and because it is less resource intensive. FAQ on Sensitive Locations and Courthouse Arrests, U.S. Immigr. and Customs Enforcement (last visited Nov. 8, 2017), However, these FAQs do not address serious concerns that have been raised about the chilling effect these detentions will have on victims seeking help and justice, witness participation, and reports of crime by immigrant communities. See Maya Rhodan, Plainclothes Officers Arrested Immigrants at a Courthouse. Can They Do That?, Time (Sept. 18, 2017),; Mettler, supra note 8.
  21. Morton, supra note 18, at 2.
  22. This Post discusses places where an undocumented immigrant could be seen as having taken sanctuary due to policies set forth in the sensitive locations memorandum, not so-called “sanctuary cities” or “sanctuary jurisdictions.” Whether there is even a definition of “sanctuary cities” and “sanctuary jurisdictions” has been the subject of ongoing controversy. See, e.g., County of Santa Clara v. Trump, 250 F.Supp.3d 497, 509–10 (N.D. Cal. 2017); Alan Gomez, A Multimillion-Dollar Question: What’s a ‘Sanctuary City?’, USA Today, (last updated Apr. 27, 2017, 9:56 AM). For a discussion around options available to jurisdictions wishing to protect immigrants through local action, see Lena Graber & Nikki Marquez, Immigrant Legal Res. Ctr., Searching for Sanctuary: An Analysis of America’s Counties and Their Voluntary Assistance with Deportations 18–22 (2016).
  23. Medeiros & McKenzie, supra note 17, at 21.
  24. Jens Manuel Krogstad, Jeffrey S. Passel, & D’Vera Cohn, 5 Facts About Illegal Immigration in the U.S., Pew Res. Ctr. (Apr. 27, 2017),
  25. See Juan P. Osuna, Amnesty in the Immigration Reform and Control Act of 1986: Policy Rationale and Lessons from Canada, 3 Am. U. J. Int’l L. & Pol’y 145 (1988) for a discussion of the historical debate around amnesty in the United States and lessons that could be learned from Canadian amnesty programs.
  26. For a clear discussion around the nuanced point that being in the United States is a civil offense while entering the United States without authorization is a misdemeanor criminal offense, see Louis Jacobson, Is Being in the United States Unlawfully a ‘Crime’?, Politifact (Mar. 15, 2017, 4:17 PM),
  27. See Elaina Plott, Trump’s Immigration Plan Receives a Chilly Reception, Atlantic (Jan. 31, 2018), (explaining how the current immigration debate has angered politicians on both sides of the aisle); see also Danielle Kurtzleben, Chart: How Trump’s Immigration Proposal Compares with Other Plans, NPR (Feb. 5, 2018, 5:00AM), (comparing the current U.S. immigration system to three immigration reform proposals).