Denial of Student Visa For Religious Trainee Is Upheld

In Ashby v. United States Department of State, (MD NC, Sept. 17, 2019), a North Carolina federal district court dismissed a suit challenging the State Department's refusal to issue a student visa to Colombian resident Jhonier Herrera, a "friend/ religious partner" of plaintiff Shon Ashby.  Ashby wished "to train and educate ... Herrera in the areas of business [and] religious training." The court rejected plaintiff's argument that visa rules favor other religious institutions such as religiously affiliated colleges. and that they substantially burden his exercise of religion.  The court said in part:

While Ashby might have plausibly alleged a disparate impact in favor of religious institutions, he fails to plausibly allege that any law or regulation is religiously targeted....

While Ashby may have a sincere desire to train Herrera on religious topics, this desire does not itself make Herrera’s presence necessary to Ashby’s religious exercise. Because Plaintiffs lack standing and fail to plausibly allege a substantial burden that prevents or inhibits them from practicing their religion, the RFRA claim will be dismissed.

New Immigration Rules Impact Foreign Religious Workers

America: The Jesuit Review yesterday published an extensive analysis of how the Trump Administration's new immigration rules defining those who may become "public charges" will adversely impact foreign religious workers.  It explains in part:

Men and women in religious orders—like the Dominicans, Jesuits, Franciscans or Carmelites, or Buddhist monks and others whose lives are devoted to their vocation—take vows of poverty. Their religious communities provide for their simple needs. But unlike previous “public charge” criteria that considered the income of sponsors, the new rules shift attention to the income of individual applicants, which is negligible for most members of religious orders....

Health care coverage for religious orders does not necessarily come through traditional insurance plans and may not meet D.H.S. standards for proof of insurance. For example, one cloistered community of nuns ... has an agreement with a Catholic hospital system to provide health care for its members. This is not a traditional insurance plan, but they are not receiving care at the government’s expense....

The government has suggested that this problem can be managed under the Religious Freedom Restoration Act. However ... [t]he lengthy lawsuit process would make it impractical to use the R.F.R.A. as a way to help a foreign-born religious worker who is currently being denied entry due to the public charge rule.

11th Circuit: Board of Immigration Appeals Failed to Consider Evidence of Ahmadi Persecution In Pakistan

In Ali v. U.S. Attorney General, (11th Cir., Aug. 5, 2019), the U.S. 11th Circuit Court of Appeals vacated and remanded for further consideration a decision of the Board of Immigration Appeals (BIA) denying asylum, withholding of removal and Convention Against Torture claims by a Pakistani immigrant who practices Ahmadiyya Islam. The Appeals court concluded that the BIA ignored numerous de jure and de facto elements of harassment and abuse of Ahmadis that might lead to a conclusion of religious persecution.  The court said in part:

[T]he Board wields wide discretion on how to proceed on remand, and we today express no opinion on the merits. We simply hold that the Board’s decision, read alongside the record, considered alongside our religious persecution cases, is so puzzling that we cannot be sure the Board afforded Ali the consideration of his claims that the law requires. 

Gay Couple Sue Over Citizenship of Child Born Through Surrogacy Abroad

A same-sex married couple has filed suit in a Georgia federal district court challenging the State Department's refusal to recognize their daughter as a U.S. citizen.  The complaint (full text) in Mize v. Pompeo, (MD GA, filed 7/23/2019), alleges that the due process and equal protection rights of James Mize and Jonathan Gregg were violated when the U.S. Embassy in Britain refused to issue a Consular Report of Birth Abroad and passport to their daughter who was born through assisted reproductive technology in Britain. It also contends that the State Department has misinterpreted the Immigration and Nationality Act (INA). The couple used the sperm of Mr. Gregg, an anonymous egg donor, and a surrogate who lives in Britain. Both fathers are U.S. citizens.  Mr. Gregg is a U.S. citizen by reason of birth in Britain to a U.S. citizen. He has lived in the U.S. less than five years. Mize and Gregg are listed as the only parents on the child's birth certificate.

Under Sec. 301 of the INA, a person born outside the United States to two married U.S. citizens is a U.S. citizen if at least one of the parents has resided in the U.S. at any time. However the State Department applies this provision only if the child has a biological relationship with both married parents. Otherwise it applies Sections 309 and 301(g) of the INA that govern when a child born out of wedlock is a citizen. In that case, the father must have lived in the U.S. for 5 years for the child to be a citizen.

The complaint alleges:

On information and belief, State Department officials are highly unlikely to ask different-sex parents who are identified as legal parents (e.g., on a child’s birth certificate) if their child is, in fact, biologically related to both legal parents. In contrast, same-sex parents will always trigger an investigation, and consular officials routinely ask same-sex parents for specific evidence of a biological tie and/or about the use of assisted reproductive technology.

CNN reports on the lawsuit.

Pastor Claims Retaliation For Ministering To Migrants

Rev. Kaji Douša, senior pastor of New York City's Park Avenue Christian Church, has filed suit against the federal government claiming that she has been targeted for ministering to migrants at the southern border and in Mexico.  The complaint (full text) in Dousa v. U.S. Department of Homeland Security, (SD CA, filed 7/8/2019) alleges in part:

11. In New York, regional ICE officials tracked rallies and prayer vigils led by Pastor Dousa on a list that the officials compiled of so-called “Anti-Trump Protests.” These officials marked Pastor Dousa for surveillance because she prayed with and for immigrants, and because she generated publicity about the devastation that ICE’s enforcement activities rain on immigrants and their families.

12. Then, in January, Defendants detained Pastor Dousa as she attempted to re-enter this nation, her nation, after a day in Tijuana ministering to migrants and their advocates. Border agents interrogated Pastor Dousa about her pastoral work.... They revealed to Pastor Dousa that they had collected detailed information about her and her pastoral work. And they revoked the access she had previously been granted to expedited border crossing.

13. Pastor Dousa’s name is included in a secret government database of journalists, attorneys, immigrant-rights activists, and others targeted for their work with and for migrants....

Alleging violations of the First Amendment and RFRA, the complaint explains:

Defendants’ targeting of Pastor Dousa impedes her ministry, through and through. It burdens her ability to continue answering God’s call to minister to migrants and refugees, which cannot happen without confidence in  confidentiality.... Defendants’ targeting of Pastor Dousa has further forced her to take steps contrary to her faith and to forgo activities that her faith requires, including all but ending her ministry of pastoral care at the Southern Border....

Religion News Service reports on the lawsuit.

Hung Jury In Trial of Activist For Aiding Aliens

AP reports that a mistrial was declared Tuesday after an Arizona federal court jury was unable to reach a verdict in the prosecution of Scott Warren, a volunteer with the humanitarian group No More Deaths. Warren was charged with concealing and harboring aliens after he offered aid to two migrants near the U.S.-Mexico border. Warren's defenses included a claim that his actions were protected by the Religious Freedom Restoration Act. (See prior posting.) [Thanks to Stephanie Inks for the lead.]

District Court Says Challenge To Trump's Alleged Muslim Travel Ban May Proceed

In International Refugee Assistance Project v. Trump, (D MD, May 2, 2019), a Maryland federal district court, in a case on remand from the U.S. Supreme Court and the 4th Circuit, refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. The Supreme Court's remand was ordered in light of its rejection of an Establishment Clause challenge in a parallel case (Hawaii II). In its latest decision, the district court said, however:

Notably, at no point in Hawaii II did the Supreme Court state that its conclusion that the Proclamation would satisfy rational basis review, based on the record before it and in the context of a motion for a preliminary injunction, required dismissal of the Establishment Clause claim in either that case or the present case. Indeed, two Justices, including one in the majority, identified the possibility that constitutional claims would proceed.

Setting out it reasons for allowing the constitutional challenges to now move ahead, the district court said in part:

Plaintiffs have provided detailed allegations for why the Proclamation is not rationally related to its stated national security interests and is instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims.

First, the Complaints provide detailed allegations of statements by the President exhibiting religious animus toward Muslims and articulating a desire to ban Muslims from entering the United States, including his statement as a presidential candidate that he planned to institute "a total and complete shutdown of Muslims entering the United States" and numerous later statements reaffirming this position... 

Contrary to the Government's claim during the hearing on the Motion, Hawaii II does not instruct courts to disregard these statements or any public pronouncements of a President, nor does it hold that the subjective intent of the President and his advisors in formulating and issuing the Proclamation is irrelevant. Rather, the Supreme Court specifically stated that this evidence "may be considered," so long as the "authority of the Presidency itself' is given its due....

Court Orders Church To Allow Federal Surveyors On Its Property

A federal judge in the Southern District of Texas yesterday ordered attorneys for the Pharr Oratory of St. Philip Neri-- a congregation of priests that owns 26 acres near the U.S. Mexican border-- to allow government surveyors access to their land so surveys for a border wall could be conducted.  According to the Mission, Texas Progress Times, the Bishop of Brownsville had argued that using church property to build a border wall would limit the ability of the Church to carry out its mission. Federal Judge Randy Crane however rejected the Church's argument that allowing surveyors on the property would constitute a substantial burden of free exercise rights. The court ordered the parties to negotiate terms for reasonable access to the property.

Court Orders Release of Iraqi Chaldean Detainees

A Michigan federal district court yesterday, in the latest installment in a case filed last year, ordered the release from federal detention of hundreds of Iraqi deportees who have been issued final removal orders, but whom the government has been unable to repatriate. Most of the detainees, according to the court, "are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq." In Hamama v. Adducci, (ED MI, Nov. 20, 2018), the court said in part:

The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future. This principle emanates from our Constitution’s core value of rejecting arbitrary restraints on individual liberty.

The issue the Court now resolves is whether there is such a likelihood of repatriation for scores of Iraqi nationals whom the Government has detained for an extended period—many for well over a year—while it engages in a diplomatic dialogue with Iraq that has yet to produce any clear agreement on repatriation. In fact, the weight of the evidence actually uncovered during discovery shows that Iraq will not take back individuals who will not voluntarily agree to return. This means that the Iraqi detainees could remain locked up indefinitely—many in local jails.... [T]he Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.

As explained fully below, the Court will grant a preliminary injunction, as requested by Petitioners in this case, ordering that those detained more than six months be released under orders of supervision.

ACLU issued a press release announcing the decision.

Catholic Diocese Opposes Taking of Church Land For Border Fencing

The Catholic Diocese of Brownsville, Texas filed suit in federal district court on Nov. 6 seeking a temporary restraining order to prevent the federal government from exercising its eminent domain power to take church land to construct border fencing and security.  According to the Brownsville Herald, last month the Department of Homeland Security waived more than two dozen laws to facilitate construction of border fencing through Hidalgo County and filed a Declaration of Taking that includes the La Lomita Chapel and Juan Diego Academy in Mission, Texas. The Diocese argues that the taking violates its free exercise rights and that the DHS waivers exceeded the authority granted by Congress.

RFRA Defense To Harboring Aliens Rejected At Pre-Trial Stage

An Arizona federal district court this week refused to dismiss criminal charges against Scott Warren, a volunteer with the humanitarian group No More Deaths.(Background). Warren was charged with concealing and harboring aliens to avoid their detention by immigration authorities. The complaint alleges that Warren gave two men who crossed the border illegally food, water, beds and clean clothes for three days.  In United States v. Warren, (D AZ, Sept. 17, 2018), the court rejected at this stage of the case Warren's defense that his actions are protected under the Religious Freedom Restoration Act.  The court held that RFRA is an affirmative defense to the charges against Warren, and should be decided through a trial rather than through a pre-trial motion to dismiss. [Thanks to Stephanie Inks via Religionlaw for the lead.]

6th Circuit Refuses To Reopen Asylum Claim By Egyptian Coptic Christian

In Welson v. Sessions, (6th Cir, July 26, 2018), the U.S. 6th Circuit Court of Appeals refused to reopen a petition for refugee status filed by an Egyptian Coptic Christian.  The immigration judge had held that petitioner was not
credible and had not demonstrated a well-founded fear of persecution in Egypt. The 6th Circuit said in part:

In support of his motions to reopen, Welson chiefly relies on articles describing various recent acts of terrorism perpetrated by ISIL, including: the December 2016 bombing of a Coptic cathedral in Cairo; the April 2017 bombing of two Coptic churches, both in Northern Egypt, on Palm Sunday; and a May 2017 incident in Southern Egypt where gunmen fired on vehicles carrying Coptic Christians. However, as the BIA reasoned, these articles describe events which, while indisputably terrible and tragic, are nevertheless similar to those conditions considered by the IJ at Welson’s individual hearing. Moreover, none of the additional reports and articles disturbs a key portion of the IJ’s reasoning—namely, that Welson’s family continues to live in Sohag, Egypt, unharmed, and that the Egyptian government under the leadership of President elSisi has undertaken to improve conditions for Coptic Christians. These new articles accordingly do not show that if the case were reopened Welson would likely prevail on his asylum claim.

[Thanks to Tom Rutledge for the lead.] 

Asylum Seeking Indian Sikhs Have Turbans Taken Away In Federal Custody

A report this week in the India Tribune alleges mistreatment of 52 illegal immigrants from India held at the federal prison in Sheridan, Oregon.  Most of these are Punjabi speaking Sikhs.  The immigrants are seeking asylum on the grounds of feared religious and political persecution in India.  In addition to the general problem of prison conditions, the Sikh inmates have had their turbans taken away. Some of the immigrants have now hired lawyers, so their conditions are improving. Community members have furnished beanies as head coverings to some Sikhs.

Iowa Churches Diverge On Immigration Issues

The New York Times yesterday posted an article titled An ICE Raid Leaves an Iowa Town Divided Along Faith Lines. The investigative piece explores how an ICE raid at an Iowa concrete plant has generated different responses locally from members of different Christian denominations:

President Trump’s immigration crackdown has been promoted with biblical righteousness by senior members of his administration, including Attorney General Jeff Sessions. And in heartland communities where the president is popular, the crackdown is often debated — by supporters and critics alike — through the lens of Christian morality.

Supreme Court Issued Clean-Up Orders In Other Pregnancy Clinic and Travel Ban Cases

In light of Tuesday's Supreme Court decisions in the travel ban and the pro-life pregnancy center cases, yesterday the Supreme Court issued clean-up orders, remanding for consideration in light of those decisions several similar cases in which petitions for review were pending. (Order List (June 28, 2018)):

In Woman's Friend Clinic v. Becerra (Docket No. 16-1146); Livingwell Medical Clinic v. Becerra (Docket No. 16-1153); Mountain Right to Life v. Beccera  (Docket No. 17-211); the court granted certiorari, vacated 9th Circuit judgments below, and remanded for further consideration in light of National Institute of Family and Life  Advocates v. Becerra.

In International Refugee Assistance v. Trump (Docket No. 17-1194) and Trump v. International Refugee Assistance (Docket No. 17-1270), the Court granted certiorari, vacated 4th Circuit judgments below, and remanded for further consideration in light of Trump v. Hawaii.

Trump's Travel Ban Upheld By Supreme Court; Establishment Clause Challenge Rejected

This morning in Trump v. Hawaii, (US Sup. Ct., June 26, 2018), the U.S. Supreme Court upheld the latest version of President Trump's travel ban, rejecting Establishment Clause challenges to the ban. Chief Justice Roberts' majority opinion, joined by Justices Kennedy, Thomas, Alito and Gorsuch, said in part:

The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review....

Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen....

For our purposes today we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review.... As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds....

The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.

The majority also used its opinion to formally reject the long-discredited Korematsu case that in 1944 upheld the internment of Japanese Americans.

Justices Kennedy and Thomas each filed a separate concurring opinion. Justice Breyer filed a dissenting opinion joined by Justice Kagan. Justice Sotomayor filed a dissenting opinion, joined by Justice Ginsburg, saying in part:

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent. 

Judge Orders ICE To Stop Pressuring Iraqi Religious Minorities To Agree To Deportation

Last year, in exchange for Iraq being removed from President Trump's travel ban Executive Order, Iraq agreed to take back its nationals who are subject to deportation orders in the U.S.  Many of these are Chaldean Christians and members of other minority religious groups in Iraq who say they fear persecution or torture if they are returned. (See prior related posting.)  As reported by Bloomberg, a Michigan federal district court yesterday issued an order preventing ICE agents from pressuring these Iraqis to agree that they wish to be returned.  Iraq will take them back only if they sign such an agreement. Yesterday's Order (full text) in Hamama v. Adducci, (ED MI, June 20, 2018), also requires posting of notices in detention facilities holding these Iraqis informing them that they will not be penalized if they refuse to state they wish to be removed from the U.S.

Sessions Responds To Church Leaders' Criticism of Immigration Policy

As reported by NBC News, Attorney General Jeff Sessions yesterday in a speech to law enforcement officers in Ft. Wayne, Indiana (full text) responded to criticism from Christian evangelical groups of the Administration's policy of separating parents from children in arresting those crossing the border illegally.  Sessions said in part:

Let me take an aside to discuss concerns raised by our church friends about separating families. Many of the criticisms raised in recent days are not fair or logical and some are contrary to law.

First- illegal entry into the United States is a crime—as it should be. Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order....

Please note, Church friends, that if the adults go to one of our many ports of entry to claim asylum, they are not prosecuted and the family stays intact pending the legal process.

The problem is that it became well known that adults with children were not being prosecuted for unlawful entry and the numbers surged from 15,000 in 2013 to 75,000 four years later....

My request to these religious leaders who have criticized the carrying out of our laws to also speak up strongly to urge anyone who would come here to apply lawfully, to wait their turn, and not violate the law.

6th Circuit Hears Oral Arguments In Challenge To Deportation of Iraqi Chaldeans

Yesterday, the U.S. 6th Circuit Court of Appeals hear oral arguments (audio of full arguments) in Hamama v. Adducci. In the case, a Michigan federal district court issued a preliminary injunction preventing Iraqi nationals (many of whom are Chaldean Christians) subject to long-standing deportation orders from being removed from the United States while they attempt to convince immigration courts that their return will subject them to persecution, torture and possible death.  Subsequently the court also ordered bond hearings for those detained 6 months or longer. The appeals largely raise issues of whether federal district courts have jurisdiction to grant relief here, or whether plaintiffs should have pursued the matter through administrative immigration courts.  AP reports on the 6th Circuit oral arguments

Transcript and Audio of Arguments in Trump v. Hawaii Now Available

The full transcript and full audio recordings of today's oral arguments before the Supreme Court in Trump v. Hawaii are now available. At issue is the legality of the third version of President Trump's ban on travel to the U.S. by nationals of several countries.  Washington Post, reporting on the arguments, said that the conservative majority on the Court appeared to agree that the President has authority to issue the ban.