The recent surge of migrants in the southern border has thrust the issue of immigration to the forefront of public discourse. It is so much so that House Republican leader Kevin McCarthy and Republican members of Congress visited the border in March 2021 to highlight the crisis.[1] During the Trump Administration, it used to be the Democrats who visited the border to highlight the migrant crisis. To quote Yogi Berra, “its déjà vu all over again.” But I digress.
On February 18, 2016, Pope Francis, while on a trip from Mexico to Rome, was asked by reporters about the then-presidential candidate Donald Trump’s plan to build a wall along the U.S. Mexican border, if elected. The Pope responded, “A person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian. This is not the gospel."[2]
On January 27, 2017, President Trump signed an Executive Order[3] banning foreign nationals from seven predominantly Muslim countries from visiting the U.S. for 90 days. Additionally, the Order suspended entry to all Syrian refugees indefinitely and prohibited any other refugees from coming into the country for 120 days.[4] This Order became popularly known as the Muslim ban.[5] In an amicus brief supporting a lawsuit filed by Washington State Attorney General Bob Ferguson seeking to have key provisions of the Executive Order declared unconstitutional, the American Civil Liberties Union (W.A.) argued that the Order gave preference to the processing of Christian refugees over Muslim refugees.[6] The Supreme Court later upheld the Order in Trump v. Hawaii.[7]
In April 2018, the then-Attorney General Jefferson Sessions announced a zero-tolerance policy “for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien.”[8] This policy was in response to an increase in the number of immigrants crossing the southwest border. The hallmark of this policy was the family separation practice that caused public outrage and opposition from some members of Congress.[9] On June 14, 2018, in a speech to law enforcement officers in Fort Wayne, Indiana, Sessions defended the zero-tolerance policy by citing the Bible to justify immigrant family separations. He said, "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".[10] In a nutshell, Sessions was saying that “the practice of separating families is consistent with the teachings of the Bible because persons who violate the law of our nation are subject to prosecution.”[11]
Responding to Sessions’ use of the Bible to justify family separation, New York Cardinal Timothy Dolan said, “I appreciate the fact that Attorney General Sessions refers to the Bible. The quote that he used from St. Paul might not be the best. For one, St. Paul always says that we should obey the law of the government if that law is in conformity with the Lord's law. No pun intended, but God's law trumps man's law. I don't think we should obey a law that goes against what God intends that you would take a baby, a child, from his or her mom. I mean, that's just unjust. That's un-biblical. That’s un-American. There could be no biblical passage that would justify that."[12]
These examples show that religion and immigration are inextricably intertwined. But that is of little novelty. What is more telling is that the Immigration and Nationality Act (“The Act”) does not speak much on religion. Religion only appears in three sections of the Act, one as a ground for asylum, second as preferential treatment for special religious workers, and a third on naturalization requirements. Regarding asylum, the Act defines a refugee as “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.[13] The Act also allows an alien, who- has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States to enter the country and work as a minister for a religious denomination, in a religious vocation in a professional or nonprofessional capacity, or a religious occupation either in a professional or nonprofessional capacity.[14] Finally, to complete the naturalization process, a non-citizen is required to swear an oath of allegiance to the United States.[15] The oath ends with the words, “so help me God.”[16] A non-citizen is allowed to waive this part of the oath. Part of the rule provides that when a petitioner or applicant for naturalization, by reason of religious training and belief or for other reasons of good conscience, cannot take the oath with the words “on oath” and “so help me God” included, the words “and solemnly affirm” shall be substituted for the words “on oath,” the words “so help me God” shall be deleted, and the oath shall be taken in such modified form.[17]
So, despite the paucity of religious edicts in the statute, why resort to religion to explain the zero-tolerance policy? This could be partially explained by the fact that race, religion, and nationality matter in immigrant selection. They are still used in the contexts of admission and enforcement to serve different purposes, such as border security.[18] Even though the Establishment clause prohibits the government from favoring one religion over the other, immigration presents an area where the government can favor or disfavor a religious group. For example, in Trump v. Hawaii, even though the proclamation said nothing about religion, it overwhelmingly targeted Muslim nations.[19] The Majority found that even though five of the seven nations in the proclamation had Muslim-majority populations, that alone did not support an inference of religious hostility. Naturally, this leads to the question, does the Act allow for discrimination based on religion? Sadly, the answer is yes, if nationality is equated with religion.
[1]Mariam Khan & Ben Gitlleson, GOP Lawmakers Slam Biden After Visit to Migrant Detention Center at Border, ABC News (Mar. 15, 2021), https://abcnews.go.com/Politics/gop-lawmakers-slam-biden-visit-migrant-….
[2] Daniel Burke, Pope Suggests Trump ‘is Not a Christian’, CNN (Feb 18, 2016), https://www.cnn.com/2016/02/18/politics/pope-francis-trump-christian-wall/index.html.
[3] Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017).
[4] Timeline of the Muslim Ban, ACLU, https://www.aclu-wa.org/pages/timeline-muslim-ban (last visited Apr. 3, 2021).
[5] Id.
[6] Brief for the ACLU-WA as Amicus Curiae, Washington v. Trump, 858 F.3d 1168 (2017) (No. 2:17-cv-00141), file:///C:/Users/cpogolla1130/Downloads/026-1._aclu_amicus_brief%20(1).pdf.
[7] Trump v. Hawaii, 138 S. Ct. 2392 (2018).
[8] See Press Release, Jeff Sessions, Attorney General, DOJ, Announces Zero Tolerance Policy for Criminal Illegal Aliens (Apr. 6, 2018), https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry.
[9] See, e.g., The Trump Administration’s Zero Tolerance Immigration Enforcement Policy, Cong. Res. Serv. 1, 2 (Feb. 26, 2019) (noting that “The family separations have garnered extensive public attention.”).
[10] Richard Gonzalez, Sessions Cites the Bible to Justify Immigrant Family Separations, NPR (June 14, 2018), https://www.npr.org/2018/06/14/620181177/sessions-cites-the-bible-to-justify-immigrant-family-separations.
[11] Diocese of Savannah, Bishops Across U.S. Condemn Separation, Detention of Migrant Children, Southern Cross, June 21, 2018.
[12] Jennifer Hansler, Cardinal Dolan: There is No Bible Passage to Justify Family Separation, CNN (June 16, 2018), https://www.cnn.com/2018/06/16/politics/cardinal-dolan-family-separatio….
[13] INA § 101(a)(42).
[15] INA § 337.
[16] 8 CFR§ 337(a)(1).
[17] 8 CFR§ 337(b).
[18] Liav Orgad & Theodore Ruthizer, Race, Religion and Nationality in Immigration Selection: 120 Years After the Chinese Exclusion Case, 26 Const. Comment. 237, 261 (2010).
[19] Trump v. Hawaii, 138 S. Ct. 2392 (2018).
*Christopher Ogolla is an assistant professor of law, Barry University School of Law.
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