In a decision that supporters predicted will drive the sanctuary movement further underground, a federal appeals court Thursday upheld the convictions of eight Arizona church workers for helping Central Americans enter the United States illegally
Holding that sanctuary workers are not shielded from criminal prosecution by their religious beliefs, the U.S. 9th Circuit Court of Appeals said such protections “cannot escape the government’s overriding interest in policing its borders.”
The 3-0 decision, reached in the nation’s most highly publicized sanctuary case, also held that sanctuary workers have no right to present evidence of their belief that immigrants are entitled to legal refugee status because of persecution in their homelands--a scenario the court said would “essentially put Reagan Administration foreign policy on trial.”
Activists in the movement predicted that the ruling will pave the way for more criminal prosecutions of sanctuary workers.
Immigration and Naturalization Service Regional Commissioner Harold W. Ezell said it “vindicates the government’s position that no one is above the law.”
“This decision reinforces the government’s position that illegal activity (smuggling) will be and should be prosecuted,” he said.
Peter Schey, a spokesman for the National Center for Immigrants Rights in Los Angeles, said the decision is likely to encourage more prosecutions of sanctuary workers throughout the country and thus is likely to drive the movement further underground.
“I think it makes the activities of all sanctuary workers riskier and more dangerous . . . (but) I don’t believe it will slow down the sanctuary workers,” Schey said. “Their commitment is far too deep, in my judgment, to be affected by this decision.”
The case involves the May, 1986, convictions of eight Tucson activists--including five members of the clergy--for operating a “modern-day underground railroad” that smuggled natives of strife-torn Central American nations across the Mexican border, sheltered them in churches and dispatched them on to other parts of the country.
INS officials have contended that immigrants should apply through regular channels for asylum in the United States, rather than enter the country illegally.
Sanctuary leaders said the government’s routine disapproval of asylum applicants from such countries as El Salvador and Guatemala prevented them from following normal immigration procedures. They sought to present evidence at trial, which was eventually barred by the judge, that the immigrants’ tales of torture and political persecution justified their belief that they qualified for asylum under U.S. law, even without formal INS documentation.
“It is not a bright day for constitutional law in this country,” said the Rev. John M. Fife of Tucson’s Southside Presbyterian Church, one of the clergymen convicted in the case. “It means that people who try to aid refugees in the United States now cannot present as a matter of their own defense as criminals the fact that these people were tortured, and their lives threatened. It’s incredible.”
Breaking step somewhat from a decision two weeks ago by another panel of the appeals court, the three-member panel that issued Thursday’s ruling upheld the government’s right to use undercover agents and secret tape recordings to penetrate sanctuary churches.
The ruling, authored by conservative Judge Cynthia Holcomb Hall, also sanctioned the government’s right to use undercover agents and secret tape recordings to penetrate sanctuary churches.
The holding countered in some ways an opinion from a more liberal panel of the court two weeks ago, which held that sanctuary churches can file civil lawsuits to protect their congregations from being spied on by government agents.
In the latest ruling, the court said the government has a long-recognized right to use information gathered from informants, with whom criminal defendants have had consensual associations--even in the setting of a church.
“While privacy, trustworthiness and confidentiality are undoubtedly at the very heart of many instances of free association and religious expression and communication, the court has recognized that legitimate law enforcement interests require persons to take the risk that those with whom they associate may be government agents,” Hall wrote in the opinion joined by Judges Charles Wiggins and David R. Thompson.
Dennis Riordan, an attorney for the sanctuary defendants, said the provision was one of the opinion’s most “pernicious and dangerous” holdings.
“The panel decided for the first time in American history that government agents are free to walk into any church service in America and surreptitiously record it without making any prior showing of a legitimate reason to do so,” he said.
“What they’ve said is if we have somebody taping Catholic services to see if priests are lecturing against abortion, don’t ask the Constitution to give you privacy or confidentiality for that discussion.”
Attorneys for the defendants said they would seek a rehearing before a full, 11-member en banc panel of the court. None of the defendants was sentenced to jail terms after their convictions.
Times staff writer David Reyes contributed to this article.