American Baptist Churches in the USA v. Meese

• Citation: 712 F. Supp. 756
• Decision Date: 24 March 1989
• Docket Number: No. C-85-3255 RFP.,C-85-3255 RFP.
• Parties: AMERICAN BAPTIST CHURCHES IN THE U.S.A., et al., Plaintiffs, v. Edwin MEESE III, in his official capacity as Attorney General of the United States, and Alan Nelson, in his official capacity as Commissioner of the Immigration and Naturalization Service, Defendants.
• Court: U.S. District Court — Northern District of California

712 F. Supp. 756

AMERICAN BAPTIST CHURCHES IN THE U.S.A., et al., Plaintiffs, v. Edwin MEESE III, in his official capacity as Attorney General of the United States, and Alan Nelson, in his official capacity as Commissioner of the Immigration and Naturalization Service, Defendants.

No. C-85-3255 RFP.

United States District Court, N.D. California.

March 24, 1989.

COPYRIGHT MATERIAL OMITTED

Morton Stavis, Frank E. Deale, Center for Constitutional Rights, New York City, Ellen Yaroshefsky, New York City, Marc Van Der Hout, Nat. Lawyers Guild, Ephraim Margolin, Sandra Coliver, James J. Garrett and Monique Van Yzerlooy, Morrison & Foerster, San Francisco, Cal., for plaintiffs.

Joseph P. Russoniello, U.S. Atty., and Andrew M. Wolfe, Asst. U.S. Atty., San Francisco, Cal., for defendants.

AMENDED MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

PECKHAM, District Judge.

INTRODUCTION

Defendants move for summary judgment on plaintiffs' claim under the Free Exercise clause of the first amendment, dismissal or a stay of plaintiffs' selective enforcement claim, dismissal of the claims of the plaintiff refugee organizations due to lack of associational standing, dismissal of the claims of individual plaintiffs Doe and Perez for failure to exhaust administrative remedies, and dismissal of the international law, equal protection and tort claims due to legal insufficiency.

Plaintiffs move to compel the production of documents and to reconsider the stay of the Kisor deposition.

BACKGROUND

Two distinct groups of plaintiffs bring this action, each asserting independent causes of action. The first group of plaintiffs is composed of various religious organizations. These organizations, which sue on their own behalf, allege that, "as a matter of religious faith and practice, they have determined to offer sanctuary to persons from El Salvador and Guatemala." First Amended Complaint ("FAC") ¶ 1. They contend that the defendants' prosecutions of religious sanctuary workers under 8 U.S.C. section 1324(a), the criminal harboring and transporting statute, interferes unconstitutionally with their first amendment right to freely exercise their religion. They also claim that these prosecutions constitute religious harassment proscribed by the first amendment. They seek preliminary and permanent injunctions barring defendants from continuing or commencing any prosecutions of persons affiliated with the religious movement of sanctuary, as well as a declaratory judgment that such individuals are entitled to provide assistance to aliens in this country who are seeking refuge from El Salvador and Guatemala. Plaintiffs limit their request for an exemption to those acts committed before November 6, 1986, the date that Congress amended the criminal harboring and transporting statute. See Immigration Reform and Control Act of 1986, S.Res. 1200, 99th Cong., 2d Sess. § 112, U.S.Code Cong. & Admin.News 1986 pp. 5649, 5716.

The second group of plaintiffs includes three Central American Refugee service organizations, which sue on behalf of their members, and two individual undocumented aliens, who sue on their own behalf. These plaintiffs contend that international treaties and customary international law confer upon Salvadoran and Guatemalan refugees the rights to temporary refuge in this country. They also argue that the defendants' discriminatory application of immigration laws violates the fifth amendment right of persons from El Salvador and Guatemala to the equal protection of the laws. Finally, they present a claim sounding in tort, alleging that defendants have recklessly endangered the lives of refugees by knowingly and willfully sending them to countries where they are subject to wrongful death, assault, battery and intentional infliction of emotional harm. The refugee organizations seek preliminary and injunctive relief "barring the defendants from arresting and deporting Salvadorans and Guatemalans to those countries until such time as war, persecution and the commission of human rights violations in those countries have ceased," as well as "a declaratory judgment that persons fleeing war, persecution and widespread human rights violations in Guatemala and El Salvador are entitled to temporary refuge within the United States until such time as those conditions no longer exist in those countries." FAC ¶ D.

Defendants have once before moved to dismiss. By order dated March 30, 1987, we denied this motion with respect to the plaintiff religious organizations' first amendment claim. American Baptist Churches in the U.S.A. v. Meese, 666 F.Supp. 1358, 1364-66 (N.D.Cal.1987). We also found that the plaintiff religious organizations lacked standing to assert the rights of Salvadorans and Guatemalans to temporary refuge, but granted leave to amend the complaint to establish associational standing. Id. at 1366-69.

Defendants now move for summary judgment as to plaintiffs' free exercise claim, or in the alternative, for a stay. Defendants also move to dismiss plaintiffs' religious harassment claim due to legal insufficiency. In addition, defendants move to dismiss the refugee organizations' claims for want of associational standing, for failure to exhaust administrative remedies, and for legal insufficiency. Finally, defendants move to dismiss the claims of the individual refugees for failure to exhaust administrative remedies and for legal insufficiency.

The court has stayed the Kisor deposition pending the disposition of these motions. Plaintiffs request that this stay be lifted and move to compel the production of documents.

DISCUSSION

I. PLAINTIFF RELIGIOUS ORGANIZATIONS' FIRST AMENDMENT CLAIMS

A. Free Exercise Claim

In its March 27, 1987 order, this court applied a three-prong test for evaluating facially neutral laws that incidentally restrict the free exercise of religious belief. Under this test, courts weigh the following factors:

(1) the magnitude of the statute's impact upon the exercise of the religious belief,

(2) the existence of a compelling state interest justifying the burden imposed upon the exercise of the religious belief, and

(3) the extent to which recognition of an exemption from the statute would impede the objectives sought to be advanced by the state.

E.E.O.C. v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1279 (9th Cir.1982) (quoting E.E.O.C. v. Mississippi College, 626 F.2d 477, 488 (5th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981)); see also Callahan v. Woods, 736 F.2d 1269, 1273 (9th Cir.1984). The court concluded that criminal prosecutions under 8 U.S.C. section 1324 bear a close "proximity and necessity" (Callahan v. Woods, supra, 736 F.2d at 1274) to a compelling state interest: congressional control of the borders. Nevertheless, the court denied defendants' motion to dismiss, holding that issues of fact remained with respect to the first and third prongs of the Pacific Press test.

In moving for summary judgment, defendants do not challenge (and therefore tacitly admit) the court's prior finding that enforcement of section 1324 has a substantial impact upon the plaintiffs' exercise of their religious beliefs. Thus, for purposes of this motion the court assumes that the plaintiffs have satisfied the first prong of the Pacific Press test.

The court thus turns to the third factor set forth in Pacific Press: the extent to which granting an exemption to plaintiffs would impede the government's concededly compelling aims. This "`least drastic means' inquiry ... is the critical aspect of free exercise analysis." Callahan, supra, 736 F.2d at 1272. "The state must show that uniform application of its rule is the least drastic means available for the regulation's enforcement." Paul v. Watchtower Bible & Tract Society of New York, Inc., 819 F.2d 875, 882 n. 6 (9th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). For example, in United States v. Thirty Eight (38) Golden Eagles, 649 F.Supp. 269, 277-78 (D.Nev.1986), aff'd, 829 F.2d 41 (9th Cir.1987) a forfeiture action under the Bald Eagle Protection Act, the court imposed civil penalties on a Native American who used eagle parts in religious ceremonies because exempting Native Americans from the Act's regulations would have threatened the eagle population. But see United States v. Abeyta, 632 F.Supp. 1301 (D.N.M.1986) (criminal prosecution of Native American under Bald Eagle Protection Act subject to free exercise challenge because less burdensome enforcement of Act was possible; district court in Tenth Circuit did not employ Ninth Circuit's Callahan test for free exercise claims; approach rejected by 38 Golden Eagles court). Similarly, the Ninth Circuit in Graham v. Commissioner of Internal Revenue, 822 F.2d 844 (9th Cir.1987), cert. granted, ___ U.S. ___, 108 S.Ct. 1994, 100 L.Ed.2d 226 (1988), rebuffed a free exercise challenge by Scientologists to an IRS decision to disallow certain tax deductions. The court found that the "government's interest in a neutral and enforceable taxation system is compelling," id. at 853, and that the cost of granting an exemption would be too great. Id.

Defendants argue that granting plaintiffs with a religious exemption to prosecution under section 1324 would dramatically impair the government's ability to effectively regulate its borders. Defendants contend that any such exemption would necessarily extend to the entire membership of the four religious denominations who are parties to this action, totalling over 14.0 million individuals. Even if but a few of these organizations' members are currently involved in the sanctuary movement, defendants argue, enjoining further prosecutions will likely result in much greater participation.

Plaintiffs meet defendants' argument by limiting their request for a religious exemption to prosecutions for activity engaged in on or before November 6, 1986, the date Congress amended the...