A change of administrations in Washington means policy changes, and only one month into the second Trump Administration we have seen policies changing at a startling pace. As President Trump promised on the campaign trail, his administration is focusing on tackling the illegal immigration crisis, both by bolstering border security and by increasing deportations of immigrants who entered the United States illegally and who have committed crimes. With the southern border largely secured just two months into President Trump’s second term, the new administration is focusing on deportations. Though, deportations are not a new phenomenon, the Trump Administration is swiftly changing the scale and tenor of how it conducts deportations.
For their part, the media have paid significant attention to the administration’s rollback of the “sensitive locations” policy, originally articulated in the Obama Administration’s 2011 Sensitive Locations Memorandum and expanded in the Biden Administration’s 2021 Protected Areas Memorandum. Under the former policy, Immigrations and Customs Enforcement (“ICE”) would not conduct operations in “sensitive locations” like churches, schools, and hospitals. So, with the sensitive locations policy revoked, does that mean churches will see ICE agents interrupting Sunday services to detain individuals on church property? It seems unlikely, or at least very rare. As one federal judge observed, the worry about the Trump administration’s new policy seems largely overblown.
Although the rollback of the sensitive locations policy has created waves in the media, at this point, we do not have a good sense of how the administration will proceed with immigration enforcement vis-à-vis churches going forward. Though the administration has revoked the 2011 and 2021 memoranda, it has not yet issued extensive guidance explaining its own enforcement policy. Instead, the Trump Administration stated publicly that it “will not tie the hands of our brave law enforcement, and instead trusts them to use common sense.” This statement may be intentionally ambiguous, but the comment about “common sense” suggests that ICE will likely leave houses of worship alone if there is not a major reason to disturb them (e.g., sheltering wanted criminals and drug or human traffickers or engaging in public-facing activities that defy federal law).
Still, the change in federal policy has upset some religious communities. A law clinic at Georgetown University Law Center recently filed suit against the administration in federal court on behalf of 27 churches and religious organizations, arguing that the recission of the sensitive locations policy violates their rights, including their free exercise rights. Some religious groups have won temporary injunctions protecting them from enforcement of the new policy. Yet not all churches will be actively resisting the change in immigration policy. Recently, a Catholic parish in Northern Virginia suffered a string of robberies where a man stole the “poor boxes,” the small donation lockboxes intended to collect alms for the needy, off the church’s walls. When the parish ultimately identified the suspect and called the local police to press charges, they learned that the suspect, wanted for other crimes, had already been arrested and deported by ICE.
However churches feel about the change in policy, it provides a good opportunity for churches and religious institutions to recall certain well-established legal principles. First, under Employment Division v. Smith, a religion-neutral law of general applicability does not offend the First Amendment if it incidentally burdens religious exercise. In other words, from a constitutional perspective, the government can treat churches the same as other entities when enforcing the immigration laws, even if the government enforcement offends or burdens a church’s sincerely held religious beliefs. However, under the Religious Freedom Restoration Act (or “RFRA”), federal law enforcement action that significantly burdens a church’s religious exercise would face “strict scrutiny” if challenged in court. Said differently, if a church brought a legal challenge against federal immigration enforcement activities that affected its religious exercise, the government would have to establish that it conducted its enforcement action in furtherance of a compelling interest (here enforcing the nation’s immigration laws) by the means least restrictive to religious exercise.
Second, though the federal government and its officers will enforce the country’s immigration laws, not all states and municipalities will cooperate with the administration’s deportation efforts. Some jurisdictions have passed laws aimed at creating “sanctuary” cities or states, where immigrants who are in the United States illegally can live free from interference by local or state law enforcement. For example, in California, local police and state law enforcement will not participate in these efforts due to the “California Values Act.” That California law specifically prohibits state and local law enforcement from using personnel or financial resources to detect, investigate, interrogate, detain, or arrest persons for immigration enforcement purposes. But such laws only limit state and local government law enforcement’s participation in immigration enforcement, and the Trump Administration has announced that it will sue jurisdictions that actively interfere with its immigration enforcement efforts. The first such lawsuit was recently filed against the City of Chicago and the State of Illinois.
Third, church property is generally private property. Should ICE officers attempt to carry out an enforcement on a church’s property, they would have to comply with the ordinary constitutional protections for reasonable searches and seizures and self-incrimination. In other words, a church does not have to allow ICE officers onto the church’s property without a proper warrant issued by a judge. Similarly, church officials can decline to answer questions from law enforcement and instead invoke their constitutional rights.
Of course, churches, religious institutions, and their leaders are free to cooperate with the federal government and provide information that may help them locate and detain individuals with criminal records, but they need not volunteer information to the government if they do not wish to do so. Similarly, if churches and religious institutions do not want the federal government to enforce immigration laws on their church’s property, they should decline access to the property unless a judge or magistrate issues a warrant.
