5782.2

5782.2

The Synagogue and Undocumented Immigrants

Sh’elah

What Jewish sources can be brought to address the issue of a synagogue providing “sanctuary” to undocumented immigrants? What do our sources and sages have to say about a synagogue possibly breaking state/federal laws to protect undocumented immigrants? What are a congregation’s religious obligations in this situation? (Rabbi Carla Freedman, Sun City, Florida)

T’shuvah

I. Speaking as Jews and as U.S. citizens

Like many sh’elot we receive, this question involves a seeming conflict in two Jewish values: the powerful prescription to care for the stranger among us against the agreement we have made to abide by the laws of the nation in which we live. This conflict is at the heart of this t’shuvah and its recommendations.[1] U.S. law generally forbids sanctuary assistance to immigrants who are in this country illegally and are not in the process of having the government assess their asylum claims. The courts have generally upheld the government’s overriding and compelling interest in upholding its laws in sanctuary-related lawsuits.[2] Nevertheless, some churches continue to proclaim their determination to provide sanctuary to immigrants regardless of their status and in the face of possible legal consequences, regarding it as a matter of religious principle. For example, the Presbyterian Church USA pledges itself to four principles of the Sanctuary Movement, one of which is: “Pledge our highest allegiance to the mandates of our faith and not to the laws of the land.”[3] Many Jews also share that perspective, and want to know, therefore, to what extent the idea of the synagogue as “sanctuary” has roots in our tradition.

The Jewish concern for the stranger living among us goes back to the Torah. In both narrative and law, the Torah concerns itself with the formation, structure, needs, and ethical foundations of the Israelite nation, which necessarily include instructions for how Israelites/Jews interact with others around them and in their midst. The earliest generations of the Israelites are depicted as a wandering people whose own experiences as a “stranger” among others were often fraught with danger; therefore, the Torah stresses, Jews are under moral obligation to ensure that non-Jews among them do not suffer the same fate.^[4]

In numerous places, the Torah depicts God as commanding the Israelites to have one set of laws that apply to citizen and stranger alike. This directive applies to a variety of offenses including blasphemy (Lev. 24:14–22); sexual crimes (Lev. 18:26); unintentional killings (Num. 35:15); unintentional sin in general (Num. 15:28–29); and perversion of justice (Deut. 24:17–18, Deut. 27:19, Deut. 1:16–18).^[5] The ethical-legal foundation on which Judaism is based, therefore, includes concern for the particular vulnerability of non-Jews who sojourn and dwell among Jews and requires Jews to provide for their safety and legal protection.

All American Jews are immigrants, or descendants of immigrants, who came to the United States fleeing persecution, seeking economic opportunity, and desiring to raise their children with the promise of freedom. When we look at migrants from around the world who seek safety and security in the U.S. for many of the same reasons, we cannot but see ourselves in them.^[6] For this reason, assistance to newcomers, both Jewish and non-Jewish—helping them adjust to life and language, job searches, and education—has been a significant element of the work of Jewish communal agencies since the days of the settlement houses of the nineteenth century. Today that work is carried out on a national level by the Hebrew Immigrant Aid Society and, on a local level, by Jewish federations and individual congregations that help settle refugees who enter the U.S. legally.

This outreach, however, which seems so natural and morally compelling to many congregations and communities, becomes politically and legally complicated when the immigrants are “undocumented,” because undocumented status is a violation of U.S. law. The Pew Research Center reliably estimates that in 2017, some 10.5 million people, 23 percent of all immigrants in the U.S. at the time, were undocumented.^[7] In the last decade immigration has become an increasingly polarizing political issue in the U.S.; political paralysis on immigration reform has contributed, in turn, to a chaotic situation on the country’s southern border that has generated an ongoing humanitarian crisis.

We received this sh’elah against the backdrop of a surge of migrants, mostly from the “northern triangle” of Guatemala, Honduras, and El Salvador, that led the Trump Administration (2017–2021) to declare a crisis at the southern border with Mexico in an effort to stem and discourage migration.^[8] The scenes that subsequently unfolded on television news programs of immigrant children living in awful conditions in federally funded private detention facilities, as well as the forced separation of parents from children, horrified many Americans and led to massive protests nationwide. Many other Americans, however, cheered what they saw as a proper and timely crackdown on illegal immigration— though even before the COVID-19 lockdowns that began in 2020, the southern border also had been all but closed to asylum-seekers attempting to enter the U.S. legally.^[9]

Although the Administration has changed, a 2021 surge of migrants,^[10] questions regarding ICE treatment of migrants, and the still-uncertain legal status of DACA recipients^[11] have rekindled the relevance of questions regarding congregational sanctuary for those who are in this country without legal right. And although Europe has, as of this writing, borne the brunt of the enormous wave of millions of Ukrainians fleeing their country, the U.S. may well accept large numbers of Ukrainians on an emergency basis, without the extended investigative mechanism that would normally be required for admittance.

What guidance, therefore, can we offer synagogues whose members may be moved by the plight of individual refugees to attempt to shelter them from deportation, regardless of U.S. law?

A. The Concept of “Sanctuary”

Organized religion (usually churches, given the reality of U.S. society) as a voice of conscience calling out —or actively resisting—an unjust government is a common phenomenon in U.S. history. Sometimes this resistance meant that the church structure itself was a “sanctuary,” i.e., a place where the moral objector could find safe refuge from an unjust government. For example, in the years before the Civil War, some churches became way stations on the Underground Railroad in explicit defiance of the Fugitive Slave Law of 1850.^[12] In the 1960s, “sanctuary” was invoked by civil rights workers in the South who defied Jim Crow laws and by Vietnam War draft resisters.  It is easy to see, therefore, that in a U.S. culture still permeated with Christianity, people might think that using a synagogue to provide “sanctuary” would be for Jews a religiously permitted, or even a mandated, action.

Contrary to widely held popular notions, the idea of a house of worship as a legal place of “sanctuary” has very limited roots in Judaism. While the Torah mandates the establishment in the Land of Israel of “cities of refuge” (arei miklat), these were not broadly defined “safe spaces.” They were holy districts overseen by Levites, specifically designated only as places where a person who killed without premeditation could find protection from blood avengers.[13]

Two biblical narratives do show that an individual could claim limited safety by entering the sacred precincts of a shrine and grasping the horns of the altar. In I Kings 1:51–53, David’s rebellious son Adonijah, who had attempted to seize his elderly father’s throne, fled into the Tent of Meeting and grasped the horns of the altar to claim protection from his rival Solomon, whom David had already anointed as his successor. Solomon had him removed from the altar and offered him safety in return for loyalty, at which point Adonijah acknowledged Solomon’s kingship by bowing before him. In I Kings 2:28, however, David’s former military commander Joab, also fleeing Solomon’s wrath, raced to the Tabernacle and grasped the horns of the altar to claim sanctuary. But since he had intentionally committed murder, Solomon had him removed and executed. Significantly, the biblical narrative includes no condemnation of this limitation of the right of sanctuary. Furthermore, both of those stories date from before the Jerusalem Temple was constructed. We have no evidence that this practice of sanctuary was continued in either the First or Second Temples. And there is no precedent for a synagogue claiming status as a “sanctuary” for fugitives of any kind.

The popular American understanding of sanctuary is actually rooted in Christian tradition, which in turn adopted pre-Christian concepts and practices common among the existing cultures of the Mediterranean. It was commonly understood in the Hellenistic world that altars consecrated to the gods afforded legal valid haven for individuals accused of unpremeditated crimes.[14] Roman law resembled the Hellenistic model, with some modifications to limit its use.^[15] Even after the Roman Emperor Constantine (r. 306–337) recognized Christianity as the empire’s religion, the old legal right of sanctuary did not automatically extend to Christian churches until Emperor Theodosius I (r. 379–395) explicitly wrote it into imperial law. Subsequent emperors expanded the physical boundaries of sanctuary to include church precincts. This right of sanctuary was reaffirmed for all of Christendom by Pope Boniface V around the year 620. The practice persisted through the late Middle Ages, but thereafter, all but disappeared as the evolution of the modern state put an end to the special legal privileges of the Church. Even for Christian churches, therefore, for the last several centuries “sanctuary” has been a moral claim, not a legal right. Indeed, as one legal scholar has observed, one could say that the concept of sanctuary essentially became civil disobedience on the part of a religious institution: “Any early legal connection to the original nature of the medieval sanctuary privilege seemed to be lost. In fact, when the concept of sanctuary subsequently reemerged in the 1980s, it was as an explicitly political act.”^[16]

B. The U.S. Sanctuary Movement and Reform Judaism

The modern Sanctuary Movement[17] grew out of what was originally a successful drive to protect and welcome at-risk asylum seekers. The U.S. Refugee Act of 1980, incorporating language used by the UNHCR (United Nations Human Rights Council), granted asylum to those who could demonstrate “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”^[18]  Originally designed to accommodate tens of thousands of Vietnamese fleeing their homeland following the Vietnam War, the law significantly raised the annual ceiling of refugee admissions to the U.S., and also formalized and streamlined U.S. refugee policy and procedures.^[19]

However, within a few years questions and objections were raised about the statute’s application to refugees fleeing persecution in Central America, including the “Northern Triangle” of El Salvador, Guatemala, and Honduras (the same areas in turmoil today). Immigration advocates contended that the Reagan Administration was violating the rights of many asylum seekers by applying different standards depending on whether the country from which they fled was then a friend or foe in the Cold War political arena. A refugee fleeing a U.S. ally such as El Salvador or Guatemala, they contended, would be more likely to be denied asylum than a refugee from an ally of the Soviet Union or China.^[20] In 1989, for example, the NGO Helsinki Watch declared that “U.S. asylum and refugee practices and policies have continued to be politicized and ideologically motivated.”^[21]

It was this perceived unfairness (and thus alleged illegality) in the application of U.S. asylum law that drew the attention of religious groups, including Jewish organizations. In 1985, the Union of American Hebrew Congregations (now the Union for Reform Judaism) took up the cause with its “Refugees and Sanctuary” resolution, a nearly identical version of which was passed the same year by the Central Conference of American Rabbis. Citing the biblical command, the stranger who sojourns with you shall be to you as the native among you, and you shall love them as yourself (Lev. 19:33), and emphasizing the Jewish moral imperative to use our collective history in slavery as the inspiration to provide “havens for the persecuted,” the resolutions called on the U.S. government to uphold the law and fairly apply the Refugee Act of 1980, “without regard to the political relationship between the country fled and the United States.” They also called for legislation that would “temporarily suspend deportations of those fleeing El Salvador, Guatemala, and oppressive regimes until such a time as refugees can safely return to their countries of origin.”[22]

Significantly, the resolutions also declared that a moral response was required on the part of the Reform Movement and therefore urged “our congregations and their members to provide sanctuary in one or more of its forms to Central Americans and other refugees who request safe haven out of fear of persecution upon return to their homelands.” As we will discuss below in more detail, both the UAHC and the CCAR acknowledged in these resolutions the serious legal implications of harboring and supporting refugees facing deportation.

In 2017, with yet another immigration crisis looming at the southern border with Mexico, and with then-President Donald Trump using his power under the 1980 law to limit annual immigration to 18,000,^[23] the URJ and CCAR each passed a revised version of this resolution.[24] The resolutions did not focus on the refugees seeking to enter the United States, but rather on the estimated 11 million immigrants already living in the U.S. and facing deportation because they either entered illegally or remained past the end of their legal stay. Both resolutions demanded that the U.S. government pass comprehensive immigration reform, including resolving the status of DACA recipients. Further, both resolutions also focused on a call-to-action to congregations and rabbis to provide sanctuary, legal assistance, and financial assistance to these immigrants, commending congregations that already had done so. Again, as in 1985, both resolutions urged congregations to work with legal counsel.^[25]

II. Halachah and synagogues as “sanctuaries:” Does the Torah obligate us to violate U.S. law?

A. Dina d‘malchuta dina (“The law of the land is the law”)

As we noted above, the Bible bears witness to the practice of fugitives seeking safety at the altar. However, whether or not this was later practiced in the Jerusalem Temple, the inherent sanctity of the Temple did not transfer to the synagogue. We therefore do not have a halachic precedent for declaring the synagogue an actual or symbolic legal refuge. Nor do we have a political theory in which the halachah exists as an equally powerful, complementary authority to that of the state; the synagogue is not an analogy of a church, and our tradition does not conceptualize our relationship to the state in the same way. In the Diaspora, the presumption is that we are a minority group living under the laws of a non-Jewish government authority and, at the same time, we live under the laws of Torah.  Our guiding principle is dina d’malchuta dina, the halachic acknowledgement that “the law of the land is the law.” This was made clear already in the UAHC’s 1987 booklet on sanctuary, where HUC-JIR Professor Michael Chernick summarized the generally accepted parameters of this halachic principle. The law of the state is binding on Jews if the law:

• is non-discriminatory and applies equally to all inhabitants of the land;
• is equivalent to Jewish law conceptually;
• has full government backing;
• does not tax the citizenry endlessly;
• and does not impinge negatively on Jewish communal activity.

Rabbi Chernick’s conclusion was that “for the most part, the civil law in this case does not conflict with these halakhic parameters,” and that therefore Jewish law does not justify harboring undocumented immigrants in contravention of American law. As an exception to this rule, he offered the hypothetical case of a high-profile Jew fleeing physical danger in his home country, when turning him over to the civil government would be forbidden.[26]

Rabbi David Saperstein, then director of the Reform Movement’s Religious Action Center, took exception to Rabbi Chernick’s conclusion. He pointed to the allegation among Jewish and other “sanctuary”-minded groups (as noted above) that the 1980 law was being politicized and therefore was not being applied equally to all inhabitants of the country. “Thus, if in fact it is true that INS asylum procedures discriminate against Salvadorans and Guatemalans in comparison to Poles, Afghans, Iranians, and Nicaraguans, Jews would not be required to observe the law of the land and would be justified in violating the law, at least insofar as the discriminatory law was concerned, in pursuit of the other goals of Jewish law discussed in both Rabbi Chernick’s responsum and this comment.”[27]

Since, in the current situation, there has not been such an accusation of inequality in the application of U.S. immigration law, Rabbi Chernick’s conclusion would seem to be the relevant one. However, in a recent article on halachah and immigration, Rabbi Mark Washofsky, Solomon B. Freehof Professor Emeritus of Jewish Law and Practice at HUC-JIR, emphasized that for Jews, the limits of dina d’malchuta dina do generally revolve around equal justice and the application of equal standards:

Obviously, in real political life governments do not uniformly observe the demand that every law should apply in equal fashion and measure to every individual . . . this does not contradict the demand for equality and equal treatment that we find among the poskim; it means, rather, that any statute or other government act that treats individuals or groups differently must be justified by appeal to some higher purpose or some compelling social need.^[28]

Should there be concern about the fair and consistent application of U.S. law for those who have entered the U.S. illegally—taking into account the fact that the poskim, as Rabbi Washofsky noted, “recognize that the state may legitimately impose rules on particular communities and commercial groups within their borders,”^[29]—it would be incumbent upon Jews to consider this issue.

Yet dina d’malchuta dina is not the only halachic concept that applies to our sh’elah. There are additional considerations that could lead us to construe an obligation to aid undocumented immigrants.

B. Factors that affect our obligations under dina d’malchuta dina

In weighing whether dina d‘malchuta dina applies in any given situation, to determine whether it is Jewishly permissible, or required, to act in opposition to U.S. law, there are several other factors to consider.

1. Mesirah: The halachah states categorically that mesirah, betraying or handing over a fellow Jew to state authorities, is forbidden. “One is forbidden to hand a Jew to a non-Jew, be it his person or his money, even if the Jew is evil—a transgressor—and even if the Jew is harassing him.”[30] Indeed, Maimonides considered the transgression of delivering a fellow Jew to the state authorities so vile, and so dangerous to Jewish communities, that he declared it a religious obligation for Jews to kill the moser (informant) themselves, even before he has had a chance to inform.[31] Does this mean that we are forbidden to hand over a Jewish undocumented immigrant? Perhaps. On the other hand, Jewish law recognizes a Jew’s obligation to testify before a non-Jewish court if they have knowledge of a crime.[32]

Furthermore, the modern reader should bear in mind that until the eighteenth century, no state had an idea of equality under the law for all citizens. In all Christian and Muslim states, “Jew” was itself a legal category subject to particular disabilities, and the reality was that Jews could not expect equal justice from non-Jewish rulers and courts. That is currently not the case in the U.S.[33] The applicability of mesirah in our case is unclear. Would it mean today that we are only forbidden to hand over to the government Jews whom we are certain will not receive fair treatment by the justice system? What about non-Jews? A few halachic authorities suggest that at least some non-Jews would deserve the same protection from the Jewish community.[34]

2. Mipnei darchei shalom: This phrase refers to actions and behaviors whose goal is to promote harmony in the community. In the Talmud, the sages list examples of such enactments. They begin with rules within the Jewish community, such as consistency of Torah honors in the synagogue and in placement of the eruv around the neighborhood, but continue on to the mitzvot of leaving gleanings for the poor, which are meant for impoverished Jews but might be taken by others: “We do not protest if poor gentiles come to take gleanings, forgotten sheaves and the produce in the corner of the field, which is [meant to be given to the Jewish] poor, so as to foster harmony.”[35] Maimonides emphasizes the benefits of further extending certain obligations of Jewish law to non-Jews living among us:

And our Sages have commanded us to visit their sick and bury their dead along with Jewish dead, and sustain their poor along with the poor of Israel, for the sake of peace (mipnei darchei shalom), since Scripture teaches: God is good to all, and God’s mercies extend upon all his works (Psalms 145:9). And Scripture further teaches: her ways are ways of pleasantness, and all her paths are peace (Proverbs 3:17).[36]

If we treat non-Jews as we do Jews in this way, it could be argued that legal protections accorded to Jews under mesirah also would apply to them. On the other hand, given that we are ourselves a minority, it could also be argued that a synagogue that shelters undocumented immigrants in the face of strong public opposition to such protection is undermining the security and well-being of the Jewish community.

Midat chasidut: This is voluntary and praiseworthy behavior performed by an individual as an act of supererogation that goes beyond even lif’nim mishurat hadin, acting beyond what the letter of the law requires.  Midat chasidut is saintly behavior that stems from thoroughly altruistic motives and that one believes is rooted in a religious (moral and/or halakhic) requirement. In our case, it might mean some kind of civil disobedience based on sincerely held religious beliefs, by providing sanctuary for an undocumented immigrant. If this immigrant is being sought by federal authorities and is in danger of deportation, the individual providing assistance would be choosing to go beyond what has previously been described as legally permitted support and would comprehend the possible consequences.

Lo taamod: We are admonished in the Torah: “Do not stand idly by the blood of your neighbor.”[37] And we have its halachic corollary, pikuach nefesh, the requirement to save human life in situations of acute threat, which outweighs almost all other mitzvot.^[38] An authoritative survey of the halachah of the bystander offers this conclusion: “An innocent bystander is required to go to great personal effort, even to suffer hardships and incur serious financial loss, in order to save the life of his fellow. On the other hand, he is not duty-bound to give his own life or limb to save his fellow.”^[39] This would appear to confirm that we have an obligation to do our utmost, short of our own life and bodily well-being, to assist someone who can prove that they are likely to be killed should they be returned to their home country.

Thus we see that, while dina d’malchuta dina generally applies to the conduct of Jews in the

U.S., its authority may be overridden when other factors enter the equation: the improper and unfair application of a given law; the intent of some poskim to extend the protections provided to Jews to non-Jews as well in certain circumstances; and the overriding command of pikuach nefesh and its applicability in a case in which death is certain for a migrant returned to their home country.

III. Halachic considerations of the civil consequences of assisting individuals in the U.S. illegally

Under the Immigration Reform and Control Act of 1986, some types of assistance do not violate U.S. law. Congregations may provide direct legal assistance to refugee families; raise funds to pay legal costs for asylum applications; and help an undocumented refugee who qualified for temporary resident status complete the paperwork for an asylum application.^[40] However, an individual or organization is violating U.S. law when they provide assistance to undocumented individuals, i.e., those who have not applied for asylum and/or do not have permission to stay in the United States. The 1986 Immigration Act makes it a crime to “willfully conceal, harbor, or shield from detection any undocumented refugee in the United States” or shelter them if aware of their illegal status; and to hire an undocumented individual.[41] Referring to the 1986 law, the UAHC’s 1987 booklet noted that it is illegal to “smuggle undocumented refugees into the United States” or to directly or indirectly encourage them to do so; to “transport undocumented refugees within the U.S.” under most circumstances; to “willfully conceal, harbor, or shield from detection any undocumented refugee in the United States” or shelter them if aware of their illegal status; and to hire an undocumented refugee. It further noted: “Other assistance to illegal persons which may be prosecuted as ‘harboring’ includes help in finding jobs, filling out applications, transportation to work, and apartment rental.”[42]

“Harboring” undocumented immigrants in contravention of the law could lead to the revocation of a congregation’s tax-exempt 501(C)(3) status, since IRS Revenue Ruling 75–384 states that no organization with that status may have an illegal purpose.^[43] While the IRS has generally not targeted houses of worship for non-violent or non-pervasive violations of the rules of tax-exempt status, the risk is always present.

For congregations contemplating participation in the sanctuary movement, the body of case law is instructive and important, particularly in those cases in which sanctuary workers have claimed protections under the Free Exercise Clause of the First Amendment—essentially contending that their actions were constitutionally protected because they were rooted in sincerely held religious beliefs. A 1983 legal opinion by Theodore B. Olson, then Assistant Attorney General for the United States, rejected this contention, concluding:

Courts are unlikely to recognize church sanctuary as legally justified under the Free Exercise Clause of the First Amendment, because disagreement with the government’s treatment of aliens is not a religious belief that is burdened by enforcement of the immigration laws, and the government has a compelling countervailing interest in uniform law enforcement.^[44]

This has, in fact, been the case. “In the sanctuary trials [in American courts], offering sanctuary as religious free expression protected by the First Amendment also has failed to persuade courts which have preferred to uphold an overriding state right to determine and enforce immigration and refugee policies.”^[45] Thus it is clear that a synagogue that chooses to offer sanctuary to undocumented immigrants is violating U.S. law and thereby potentially jeopardizing its institutional financial well-being.

It is possible, of course, that all the members of a congregation could decide unanimously that they are willing to take that risk; but in congregations, where the majority vote governs conduct but unanimity is rare, the determination of the majority to engage in conduct they know to be illegal and potentially devastating financially would impact every member, including those who dissent. The halachah categorically forbids causing another financial harm, and requires the one who caused harm to compensate the loss completely.[46]

Rabbi Chernick concluded his essay “Sanctuary and Halachah” by emphasizing the pre-eminence of dina d’malchuta dina and the conclusion that, while midat chasidut might compel an individual to act for another beyond the strictures of Jewish law, “no one could make this a general rule of Jewish behavior for the entire Jewish community.”[47]

This halachic standard leads us to conclude that, while situations may arise that compel us morally and permit us halachically to act on behalf of a migrants and undocumented immigrants—such as when an immigrant or asylum seeker’s life is at risk, or when federal law is clearly being applied unfairly— most cases will not. Therefore, we generally concur with Rabbi Chernick’s conclusion.

Throughout Jewish history, the mitzvot of protection and care of non-Jews residing among us have inspired and required us to treat the needs and vulnerabilities of others as we would treat fellow Jews. For many American Jews today, this includes finding ways to protect immigrants who are among the most exposed and fearful people in our country, whether they are in this country legally or not. And yet we must not forget that our tradition also compels us to honor and obey the laws of the lands in which we live, for as Rabbi Washofsky noted, we citizens all have agreed (hiskimu, in the language he cites of the Rambam) that we will do so.^[48] And this includes obeying civil laws involving immigration and refugees.

Conclusions

1. Jewish tradition does not in any way apply to the synagogue the notion of “sanctuary” at the Temple altar. Regardless of how courts read the First Amendment, therefore, we have no basis for arguing that using the synagogue to offer sanctuary is a Jewish religious practice.

2. We are bound by the principle of dina d’malchuta dina to obey a law that is applied fairly among all inhabitants of the country, whether we agree with it or not, while recognizing that individuals may well want to act out of midat chasidut to do what they deem ethically right, regardless of what the law says.

3. Individual Jews may not act in a manner that places the entire community at risk, unless every individual potentially affected agrees to the act. A congregation could, therefore, choose to violate the law of the land to shelter or otherwise assist undocumented persons, if it could be shown that every member of the community consented to the risk of potential consequences.

 

CCAR Responsa Committee
Joan S. Friedman, Chair
Audrey Korotkin, primary author

[1] In the 1980s both the Union of American Hebrew Congregations (now the Union for Reform Judaism) and the Central Conference of American Rabbis adopted resolutions articulating support for migrants, particularly those from Central America seeking asylum.  (See https://www.ccarnet.org/ccar-resolutions/central-america-see-also-sanctuary-1985/ and https://urj.org/what-we-believe/resolutions/refugees-and-sanctuary.)  The UAHC (now the URJ) Commission on Social Action also published a guide for congregations wanting to provide “sanctuary” (Commission on Social Action of Reform Judaism, Providing Sanctuary: The Jewish Role. A Practical Guide for Congregations and Individuals [NY: Union of American Hebrew Congregations, 1987]), including policy and program outlines, Jewish perspectives, and legal recommendations.  This guide was not based on halachic concepts and principles and included only limited references to Jewish law.

[2] Theodore B. Olson, “Church Sanctuary for Illegal Aliens,” Memorandum Opinion for the Deputy Attorney General 1983 OLC LEXIS 96; 7 Op. O.L.C. 168 (October 31, 1983), https://www.justice.gov/file/23546/download, accessed July 19, 2022; M.H. Ogilvie, “Sanctuary, Common Law and Common Sense,” Canadian Bar Review, Vol. 83, no. 1, (2004): 242.   The URJ Religious Action Center website notes this concern. (https://www.rac.org/

sites/default/files/Center%20for%20Human%20Rights%20and%20Constitututional%20Law%20Sanctuary%20Toolkit.pdf).

 

[3] Sanctuary: A Discernment Guide for Congregations (Office of Public Witness, Presbyterian Church [USA], 2017), 4. https://www.pcusa.org/site_media/media/uploads/oga/pdf/pc(usa)_opw_sanctuary_

final_6.21_edit.pdf. Accessed March 28, 2022.

[4] For example: You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt (Ex. 22:20); You shall not oppress a stranger, for you know the feelings of a stranger, having yourselves been strangers in the land of Egypt (Ex. 23:9); When a stranger sojourns with you in your land, you shall do him no wrong.  The stranger who sojourns with you shall be to you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt (Lev. 19:33).

[5] Rabbi Saul J. Berman, “Immigration: A Perspective from Biblical Narrative and Law,” Gleanings: Reflections on Ruth, ed. Stuart Halpern (Yeshiva University Press, 2019), pp. 176–178.

[6] According to a 2020 Pew Foundation study, in 2015, 45 percent of immigrants in this country were naturalized U.S. citizens. The same study reported that “Mexico is the top origin country of the U.S. immigrant population. In 2018, roughly 11.2 million immigrants living in the U.S. were from there, accounting for 25% of all U.S. immigrants. The next largest origin groups were those from China (6%), India (6%), the Philippines (4%) and El Salvador (3%).”   See https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/, accessed July 28, 2021.

[7] Ibid.

[8] We recognize that many immigrant advocates trace today’s challenges back several decades through administrations of both political parties, including those promulgated under President Bill Clinton in the 1990s, President George Bush after the 9/11 attacks, and President Barack Obama, who was derided as the “deporter in chief.” Subsequent administration may make more or less use of policies promulgated by previous administrations. We also recognize that the specific circumstances in which these policies are advanced change rapidly. We deal here most specifically with the circumstances in which the questioner addressed the committee.

[9] “Asylum seekers, a legal term meaning people whose request to find sanctuary in another place has not been processed, come to the United States, often passing through other countries on the way. In September 2019, the Supreme Court upheld a government decision that any asylum seeker who entered the United States after July 16, 2019, would automatically be denied asylum if they had not tried to seek refuge in a country they had traveled through on their way to the border. Although most migrants are from Central America, this rule also impacted Cubans, Indians, Africans, and Venezuelans who may travel through several countries before reaching the U.S.-Mexico border.” https://disasterphilanthropy.org/disaster/southern-border-humanitarian-crisis/, accessed July 28, 2021.

[10]    “Border Patrol agents have made more than 381,000 arrests along the border during the fiscal year that began in October, about 82% of which were single adults. That is more than double the 161,000 arrests during the year-earlier period, roughly 68% of which were adults.

“The number of families and unaccompanied children crossing the border—most surrender to the first border agent they can find—also has soared in the last couple of months. The number of families arrested has more than quadrupled since December, while the figure for unaccompanied children has risen by more than 90%. Border agents have been apprehending at least 500 children a day in March, and border officials expect to have taken at least 16,000 children into custody by the end of the month.” Wall Street Journal, May 12, 2021, https://www.wsj.com/articles/surge-of-migrants-at-u-s-southern-border-bidens-plan-and-what-you-need-to-know-11616788003, accessed July 28, 2021.

[11] “A federal judge in Texas on Friday ruled that Deferred Action for Childhood Arrivals, the Obama-era program shielding certain undocumented immigrants from deportation, is illegal and blocked new applicants. The ruling from Judge Andrew Hanen would bar future applications. It does not immediately cancel current permits for hundreds of thousands of people—though it once again leaves them in devastating legal limbo and is a reminder of the uncertainty they face.”  CNN, July 17, 2021, https://www.cnn.com/2021/07/16/politics/daca-ruling-hanen/index.html, accessed July 28, 2021.

Following the judge’s order, Democrats on Capitol Hill attempted to insert provisions in a sprawling $3.5 trillion budget bill, which they hoped would put DACA recipients on the road to U.S. citizenship; however, the Senate parliamentarian ruled against inclusion. Following this ruling, the Biden Administration proposed federal rules that, according to the New York Times, “would protect some 700,000 undocumented people brought to the United States as children from being deported or losing their work permits, even if Congress does not pass comprehensive immigration reform.” https://www.nytimes.com/2021/09/27/us/politics/daca-biden.html, accessed November 3, 2021.

[12] https://www.history.com/topics/black-history/fugitive-slave-acts#section_4, accessed November 3, 2021.

[13] The concept of “cities of refuge” is introduced in Exodus 21:12-13 and the cities themselves are named in Numbers 35:6–15.

[14] Pamela Begaj, “An Analysis of Historical and Legal Sanctuary and a Cohesive Approach to the Current Movement,” The John Marshall Law Review, Vol. 42, no. 1 (2008): 142, n. 38.  The Greek historian Herodotus (5^th c. BCE) described one such sanctified sanctuary space in Egypt: “Now there was (and still is) on the coast a temple of Heracles; if a servant of any man takes refuge there and is branded with certain sacred marks, delivering himself to the god, he may not be touched. This law continues today the same as it has always been from the first.” Herodotus, Histories, trans. A. D. Godley (Cambridge, MA: Harvard University Press, 1920), 2.113.

[15] Roman law changed accepted practice, “restricting the privilege to only a temporary immunity from prosecution and requiring the sanctuary seeker to present his legal defense before being admitted to the sanctuary.” Steven Pope, “Sanctuary: The Legal Institution in England,” Seattle University Law Review, (Vol. 10, 1987): 680, n. 11. Pope also notes here that the concept of sanctuary was introduced into English civil law by King Ine, ruler of the West Saxons. It was subsequently codified by a number of kings in England through the Anglo-Saxon period (410–1066) and was in use throughout Christendom through the late Middle Ages. In England, the practice finally was reined in by Henry VIII, who as the self-proclaimed head of the Church of England sought to limit the ability of Catholics to seek refuge “from the mandatory Anglicization of their churches” and was abolished altogether by James I. See also M.H. Ogilvie, “Sanctuary, Common Law and Common Sense,” Canadian Bar Review, Vol. 83, no. 1, (2004): 230-244, and “Sanctuary.” In Late Antiquity: A Guide to the Postclassical World, ed. G. W. Bowersock, Peter Robert Lamont Brown, and Oleg Grabar (Cambridge, MA: Harvard University Press, 1999).

[16]Ogilvie, “Sanctuary:” 242.  Ogilvie further notes on page 240 that even the Reverend William Sloane Coffin, Jr., a leader of the draft resister movement of the 1960s, acknowledged in a sermon that there was no legal basis for asserting the status of a church as a sanctuary.

[17] For a quick but generally reliable overview of the origins of the Sanctuary Movement, see the Wikipedia article “Sanctuary Movement” (https://en.wikipedia.org/wiki/Sanctuary_movement), which offers extensive documentation.

[18] https://ballotpedia.org/Refugee Act_of_1980, accessed November 3, 2021.

[19] According to the website of the Hebrew Immigrant Aid Society: “Both Democratic and Republican presidents utilized the Act’s powers to deal with international refugee crises…. [I]n 1981, under President Reagan, the United States admitted 159,252 refugees, and in 1992, President George H. W. Bush’s administration admitted 131,000 refugees.”  https://www.hias.org/blog/40th-anniversary-refugee-act-1980, accessed November 3, 2021.

[20] Begaj, “Analysis:” 142–143, nn.38 and 45.

[21] Karin König, Detained, Denied, Deported: Asylum Seekers in the United States (Helsinki Watch, 1989), 4, https://www.google.com/books/edition/Detained_Denied_Deported/7KUOLGJkQ2wC?hl=en&gbpv=1&dq=detained+denied+deported&printsec=frontcover, accessed November 3, 2021.

[22]  “Refugees and Sanctuary,” UAHC Resolution, 1985, https://urj.org/what-we-believe/resolutions/refugees-and-sanctuary; “Sanctuary,” CCAR Resolution, 1985, https://www.ccarnet.org/ccar-resolutions/sanctuary-1985/, accessed March 30, 2022.

[23] Hebrew Immigrant Aid Society, “On the 40^th Anniversary of the Refugee Act of 1980,” blog post on https://www.hias.org/ by Naomi Steinberg, Vice President for Policy and Advocacy, published March 16, 2020.

[24] “Protecting Individuals at Risk of Deportation from the United States,” CCAR Resolution, 2017, https://www.ccarnet.org/ccar-resolutions/ccar-resolution-protecting-individuals-risk-deport/, accessed March 30, 2022.

[25] As noted previously, the perceived anti-immigration nature of the Trump Administration (2017–2021), including a ban all immigration from Muslim-minority countries; efforts to stem or stop refugees from crossing the southern border with a large-scale wall; ending the so-called “catch and release” policies that allowed migrants to stay in the U.S. while their status was being adjudicated; and significantly limiting access to asylum provide the backdrop to this responsum.

[26] The reference here is to ShA ḤM 388:2, 9–10, which concern highway robbery. The presumption is that the government is targeting this Jew unjustly because he is known to have wealth.

[27] RAC, “Providing Sanctuary,” 38.

[28] Mark Washofsky, “Thinking Halakhically about Immigration and Refugees,” The Stranger: Immigrant, Migrant, Refugee and Jewish Law, ed. Walter Jacob (Pittsburgh: Rodef Shalom Press and Solomon B. Freehof Institute of Progressive Halakhah, 2019), 57.

[29] Ibid., 57.

[30] ShA ḤM 388:9.

[31] MT H. Ḥovel u-Mezik 8:9–10.

[32] See CARR #6, “Informing on Others in Criminal Activities,” https://www.ccarnet.org/ccar-responsa/carr-8-9/, accessed May 5, 2022.

[33] The overturning of Roe v. Wade may lead us to reconsider this statement.  States are enacting laws rooted in Christian religious beliefs that ban or severely restrict abortions, it is quite possible that Jewish women’s lives will be endangered because of state enforcement of Christian beliefs.

[34] In comments to Tur HM 249:2, the Bet Yosef holds that this guarantee does not extend to Christians and Muslims, while the Bayit Hadash holds that it does. Me’irat Einayim to ShA HM 249:2 holds that any gentile who is an observer of the seven Noahide commandments is a ger toshav “entitled to sustenance and life-saving protection as outlined in Maimonides’ additions to Sefer Hamizvot, positive commandment #16.  Most of the Rishonim and Aharonim… however, do not accept that contemporary gerei toshav have a claim to being sustained by the Jewish community.”  Michael Chernick, in Providing Sanctuary: The Jewish Role, 37, n. 8.

[35] B. Gittin 59a.

[36] MT H. Melakhim U-milḥamot 10:12.

[37] Lev. 19:16.

[38] Leviticus 18:5: You shall keep My laws and My rules, by the pursuit of which human beings shall live: I am Adonai. Ezekiel 20:11: I gave them My laws and taught them My rules, by the pursuit of which a person shall live. In the Talmud (BT 85b), Shmuel interprets “live by them” to mean “and not die by them” and his interpretation is accepted as the basis for Jewish law.

[39] Aaron Kirschenbaum, “The Bystander’s Duty to Rescue in Jewish Law,” The Journal of Religious Ethics, Vol. 8, no. 2 (Fall 1980): 204–226.

[40] The Immigration Reform and Control Act (IRCA) of 1986 “introduced civil and criminal penalties to employers who knowingly hired undocumented immigrants or individuals unauthorized to work in the U.S. However, the act also offered legalization, which led to lawful permanent residence (LPR) and prospective naturalization to undocumented migrants, who entered the country prior to 1982.” Library of Congress, https://guides.loc.gov/latinx-civil-rights/irca, accessed November 4, 2021.

[41] Providing Sanctuary, 1987, 82.  See https.rac.org for more information, including links to other immigration-related websites.

[42] Ibid., 82.

[43] Ellen P. Aprill, “Religious Organizations, Refuge for Undocumented Immigrants, and Tax Exemption” (August 29, 2017). Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-28, available at SSRN: https://ssrn.com/abstract=3028869 or http://dx.doi.org/10.2139/ssrn.3028869.

[44] Olson, “Church Sanctuary for Illegal Aliens.”

[45] Ogilvie, “Sanctuary:” 242.

[46] ShA HM 377:1.

[47] Providing Sanctuary, 36.

[48] Washofsky, “Immigration and Refugees,” 61.