It has been widely publicized in the press that some churches provide a safe harbor to undocumented immigrants from deportation from the United States. With the growing concern about Federal immigration policies, some churches are wondering what should be their position on the matter. Your church could possibly find itself confronted with such a request.
This article examines the legal and governance issues of providing sanctuary for undocumented immigrants from expulsion from the United States. The purpose here is to encourage your church to develop a policy position on how it should address this situation should the occasion arises.
The question some clients have raised is what should they do in the event a member of their congregation asks for shelter from immigration officials. Before taking a position, a church should understand their obligations under the law. There is no legal authority afforded religious institutions to harbor undocumented immigrants or protect them from the government.
One may surmise that some churches seek to take advantage of public sentiment to pursue a policy objective. These churches see this act of civil disobedience as a moral matter. Where morality is concerned, the law makes no exceptions. The legal issue for your church is whether it should comply with the immigration rules subject to all citizens.
The Immigration and Nationality Act (INA) states that any person who conceals, harbors, or shields from detection an illegal alien violates the law. The religious community is not exempt from the INA. A church is explicitly forbidden from harboring illegal immigrants and may face serious prosecution and punishment for disobedience of the law. So, one might ask, how is it that some churches seem to be able to get away with sheltering illegal immigrants? For these organizations, the decision to act contrary to the law may be a calculated risk.
Courts have ruled that church officials and volunteers are not immune to criminal prosecution. The INA specifies punishments for persons who violates this law. Punishment ranges from fines to imprisonment. The variation in the punishment depends on whether in the act of harboring an undocumented immigrant, someone was injured, placed in jeopardy of injury or resulted in someone’s death. Prosecutions under the INA can apply to church officials and its members guilty of the conduct.
There are other consequences to consider. Civil liability could result for any church where church officials are found to be culpable of unlawful acts or violating their fiduciary duties. These consequences can also be applied to church officials themselves.
The directors and officers of a church have a fiduciary duty of care to the corporation. The duty of care stands for the principle that directors and officers of a corporation in making all decisions in their capacities as corporate fiduciaries, must act in the same manner as a reasonably prudent person in their position would.
One may conclude that a reasonable person in the position as a church official would obey the laws of the United States. Therefore, obedience to the duty of care carries with it the expectation of lawful conduct. If a church official acts in a manner that is contrary to the law, he/she is at risk of being held as violating his/her duty of care.
The consequences for the violation of one’s duty of care can carry a personal consequence. In North Carolina, officers of nonprofits organizations have statutory immunity from personal liability for their actions. In addition, courts often rely on a doctrine called the Business Judgment Rule. This doctrine means that courts will not normally interfere with the decisions of corporate officers. These protections for church officers may not apply when the officer is found to have violated a fiduciary duty. The result is civil liability may attach to the personal property of a church officer should a legal action prevail.
It is important that church officers understand the personal risks for decisions that disregard federal laws. The harboring of undocumented immigrants in the face of a statutory prohibition can lead to personal liability when fiduciary duties are violated.