AuthorD'Agostini, Gabriella M.

In the last few years, Immigration and Customs Enforcement (ICE) has begun to target religious institutions--specifically churches--as a means to find and arrest undocumented immigrants. This technique is in legal tension with the First Amendment rights of free exercise of religion and free association. It is unclear, however, how these legal rights protect those most affected by this targeting tactic: undocumented immigrants. Undocumented immigrants may lack standing to challenge ICE's tactics on their own and may require the help of related parties to protect their interests.

This Note explores a potential solution to the ambiguity surrounding undocumented immigrants' protection under the First Amendment. Specifically, this Note argues that while undocumented immigrants may be barred from filing suits challenging the constitutionality of ICE raids on religious institutions, U.S. citizens who worship alongside these immigrants can and should bring such suits and demand injunctions to end the practice. These citizens not only have the undisputed legal rights to bring such potential claims but also may use those rights to provide a legal and practical shield for undocumented immigrants who seek to attend church without government intrusion.

INTRODUCTION I. TARGETED ORIGINS: FACTUAL AND LEGAL BACKGROUND A. ICE and Its Targeting of Churches B. Free Exercise Doctrine C. Freedom of Association Doctrine II. THE WHO: LEGAL AND PRACTICAL OBSTACLES TO BRINGING A FIRST AMENDMENT CLAIM A. Legal Considerations 1. Uncertain Protection Under the First Amendment 2. Problems with Remedy B. Practical Considerations III. STANDING AND ALTERNATIVE CLAIMANTS FOR FIRST AMENDMENT CLAIMS A. Standing 1. Injury in Fact 2. Traceability 3. Redressability B. Constitutional Merits: Winning the Balancing Test CONCLUSION INTRODUCTION

On a brisk February day in Alexandria, Virginia, several Hispanic men were crossing the street--leaving Rising Hope Methodist Church to go to a nearby shopping center--when they were ambushed by Immigration and Customs Enforcement (ICE) agents. (1) Emerging from unmarked cars along the street, the agents bombarded the men, pinning them up against nearby walls. (2) Without explanation or warning, ICE agents shackled the men with handcuffs and interrogated them about their immigration status. (3) After roughly half an hour of questioning, the agents shoved the majority of the men into a van and headed toward an immigration detention facility. (4)

The location of the raid was no accident. For over fifteen years, Rising Hope Methodist Church had served as a spiritual sanctuary and shelter for the needy and homeless, many of whom were Hispanic immigrants. (5) But for the witnesses amassed outside the church, the spectacle brought on feelings of shock, terror, and confusion. (6) Rising Hope pastor REV. Keary Kincannon described what happened in succinct terms: "[The ICE agents] were waiting until the Hispanic men came out of the church. And they rounded them all up. They didn't question the blacks. They didn't question the whites. They were clearly going after folks that were Latino." (7) Although the Rising Hope raid gained significant media attention, (8) it is only one example of a larger pattern of recent ICE enforcement actions that purposefully target churches connected to immigrant communities. (9)

ICE's practice of targeting particular religious institutions based on their racial or ethnic makeup violates the First Amendment rights to free exercise of religion and free association. (10) Undocumented immigrants' protection under the First Amendment, however, remains unclear, (11) meaning that undocumented immigrants may have no legal recourse against ICE's escalating encroachment on practices traditionally protected under the Constitution. (12) The impact of ICE's policy extends beyond the undocumented immigrants targeted by the raids. For church staff and fellow parishioners, ICE's tactics present unannounced and uninvited intrusions into their places of worship. (13) While undocumented immigrants themselves may not be able to find refuge under the Constitution, there may nevertheless be creative ways to find legal relief.

Scholarship and litigation have primarily focused on the constitutionality of ICE raids in the context of Fourth Amendment protections against unlawful searches and seizures. (14) Because ICE's church raids are a relatively recent phenomenon, (15) the First Amendment implications of such actions have not yet been rigorously explored. While the First Amendment may provide a new avenue for relief, undocumented immigrants still face potential standing problems. (16) To overcome this barrier, this Note articulates a novel strategy for using alternative claimants to challenge the constitutionality of ICE raids at churches under the First Amendment.

Specifically, this Note argues that U.S. citizen parishioners, (17) bearing undisputed constitutional rights, have standing to bring First Amendment challenges to ICE's racially and religiously targeted incursions on their places of worship. Such lawsuits could impede government invasions of religious institutions and simultaneously provide a legal and practical shield for undocumented immigrants who seek to peacefully practice their religious beliefs. Part I explores the history of ICE's practice of targeted raids at churches as well as aspects of First Amendment doctrine that serve as the basis for potential claims against ICE. Part II discusses current doctrinal and practical obstacles that undocumented immigrants may face in bringing these claims themselves. Part III explains how U.S. citizen-driven litigation may be the most effective means for overcoming roadblocks inherent to claims brought by undocumented immigrants.


    Before delving into the First Amendment issues raised by ICE's unconventional approach to immigration enforcement, it is important to contextualize ICE's growing practice within the agency's historical and legal background. This background situates ICE's role as an immigration enforcement agency as well as its intersection with the First Amendment. Understanding ICE's history is important because it reveals a trajectory of increasingly aggressive and brazen tactics to detain undocumented immigrants, with the recent incursions into places of worship as the culmination of that approach. This Part briefly explores ICE's history and actions as an agency, examines the evolution of the free exercise and freedom of association doctrines, and discusses how ICE's targeted raids at churches give rise to claims under these two doctrines.

    1. ICE and Its Targeting of Churches

      Following the September 11 terrorist attacks, Congress formed ICE by passing the Homeland Security Act of 2002. (18) The Act authorized ICE with identifying, apprehending, and removing noncitizens from the United States when they violate U.S. immigration law. To carry out its responsibilities, ICE has increasingly turned to immigration raids, also known as immigration sweeps, to apprehend large groups of undocumented immigrants at certain locations. (19)

      A change in administration led to new immigration priorities. (20) By early 2017, ICE had implemented a large-scale practice of conducting immigration raids at Christian churches. (21) For example, ICE's Rising Hope raid in February 2017 occurred after the church had been providing food and shelter to undocumented immigrants in the area. (22) The incident at Rising Hope Church is not an isolated event. (23) This type of racial and religious targeting has occurred across the country. (24) In May 2017, ICE agents waited in the parking lot of a Sacramento church, in what they later described as a "targeted enforcement action," to apprehend undocumented parishioners after the service. (25) Similarly, in December 2017, upon hearing a rumor of "a large Hispanic celebration going on," ICE agents attempted to enter a Lutheran Church in New York City during services. (26) When a senior pastor confronted the ICE agents and asked whether they were looking for a specific person or had a warrant, the ICE agents simply answered, "no." (27) ICE agents have also surveilled churches through more clandestine methods, including attending church services in plain clothes or standing outside the church doors when services let out to ask congregants "where they were from." (28)

      ICE internal policy states that officers should avoid apprehending undocumented immigrants at "sensitive locations," such as schools, hospitals, places of worship, or places of civil ceremonies. (29) But no statute or regulation explicitly prevents ICE officers from doing so. (30) Regardless, ICE's intrusive enforcement at churches raises serious questions about the constitutional legitimacy of their tactics. (31)

    2. Free Exercise Doctrine

      ICE's practice of targeting churches implicates the First Amendment's Free Exercise Clause because it interferes with the constitutionally protected right to freely exercise one's religious beliefs without governmental intrusion. (32) The Free Exercise Clause provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (33) Since the inception of the First Amendment, the Court has developed a complex free exercise jurisprudence. (34)

      Three features of the doctrine are most relevant to assessing the constitutionality of ICE's raids. First, the Free Exercise Clause protects religious beliefs and often religious practices, but it does not provide protections for practices that violate the law. (35) For example, the Court upheld a federal prohibition of polygamy even though it interfered with a Mormon plaintiff s ability to practice. (36) The Court reasoned that while the Free Exercise Clause protects religious beliefs and often religious practices, it does not necessarily provide protections for religious...

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