State (Sanctuary, Part 2)

Roman Mars:
This is 99% Invisible. I’m Roman Mars.

Roman Mars:
In the 1980s, the United States experienced a refugee crisis. Thousands of Central Americans were fleeing brutal civil wars in El Salvador and Guatemala. They were traveling north through Mexico and crossing the border into the U.S. We covered this history on the show last week. If you haven’t heard that episode yet, go listen now. This is part two.

Delaney Hall:
In response to this mass migration, a network of churches across the country declared themselves sanctuaries.

Roman Mars:
That’s producer Delaney Hall.

Delaney Hall:
In defiance of federal policy, some of these churches helped smuggle Central Americans across the border and offered shelter to people who were threatened with deportation, and most of the churches did this publicly without trying to hide what they were doing. By the mid-1980s, the sanctuary movement had become very visible and also very controversial. Here’s a report that aired on NBC around that time.

NBC Anchor:
“In the eyes of the congregation at St. Mary’s Church, they are heroes. In the eyes of the federal government, they are criminals who smuggle aliens into this country illegally.”

Roman Mars:
The government didn’t like that churches were openly defined immigration law and harboring undocumented immigrants. The Immigration and Naturalization Service, now known as Immigration and Customs Enforcement, or ICE, contended that many of these people didn’t have legitimate asylum claims. The agency’s stance was that many of these migrants had come to the U.S. to find jobs, not because they feared political persecution.

NBC Anchor:
“A refugee from El Salvador; the administration contends he and others like him have come here for economic reasons, but the young man listed other reasons for fleeing his homeland.”

Refugee (via translator):
Killings, repressions, misery, and hunger.

Delaney Hall:
The U.S. government found itself in a tough situation. They could allow the churches to continue openly disregarding the law, or they could launch an investigation into the movement and risk public disapproval by targeting sympathetic church workers.

Roman Mars:
In 1984, the government launched an investigation into the sanctuary movement. They called it Operation Sojourner, a biblical term for traveler or wanderer. The goal is to collect enough evidence to indict the leaders of the movement and to stop churches from sheltering migrants.

Delaney Hall:
The investigation would eventually raise big questions about the freedom of religion and the right of churches to declare themselves protected spaces free from government intrusion.

Roman Mars:
This is an issue that’s playing out in the news again today, as churches and other institutions anticipate large scale deportations under President Donald Trump.

Donald Trump:
“On day one, I’m going to begin swiftly removing criminal illegal immigrants from this country.”

News Report:
“Donald Trump’s pledge …”

News Report:
“Demonstrators outside the immigration office in Colorado supporting a mother of four from Mexico, Jeanette Vizguerra, who is scheduled…”

Delaney Hall:
Currently, in 2017, many churches are starting to shelter undocumented immigrants once again. In this episode, we’re going to look back at what happened in the 1980s, the last time a big confrontation happened between the federal government and sanctuary churches.

Roman Mars:
In 1984, shortly after the government launched its investigation, a couple of new volunteers approached members of the sanctuary movement asking if they could get involved. Their names were Jesus Cruz and Salomon Graham.

Reverend John Fife:
I thought they don’t fit the usual sanctuary volunteer profile, right? They look a little tough and a little too experienced on the border for the average volunteer we get.

Delaney Hall:
This is Reverend John Fife. Back in the 1980s, he was the pastor at Southside Presbyterian Church in Tucson, Arizona. He helped found the sanctuary movement, and Fife said that even though Cruz and Graham seemed a little different somehow, it was his policy to welcome all who said they wanted to help.

Reverend John Fife:
They had crucifixes around their necks, and they presented themselves as folks who’d heard about the sanctuary movement and wanted to be a part of it, so we welcomed them and included them in.

Delaney Hall:
Cruz and Graham began attending meetings and helping transport Central American migrants through the sanctuary network.

Reverend John Fife:
They would drive folks from Tucson to Phoenix, or from Phoenix to Albuquerque, or from Phoenix to LA, so they would drive links on the Underground Railroad.

Roman Mars:
But as it would turn out, Cruz and Graham were not ordinary volunteers. They were undercover informants. The government had hired them to infiltrate the movement and gather evidence.

Delaney Hall:
Cruz and Graham were both former smugglers. They’d worked on the border is guides, bringing people into the country illegally. Then they’d been caught by immigration.

Reverend John Fife:
They’d reached an agreement that if they would infiltrate us and inform the government about what we were doing, that that they would not only pay them but drop the charges against them.

Roman Mars:
The INS had decided to investigate the sanctuary movement using the same tactics they might use against any criminal smuggling enterprise. The agency wasn’t swayed by the religious motivations of people like Reverend Fife. Here’s Alan Nelson, the then commissioner of INS, speaking with ABC in 1985.

Alan Nelson:
“If you and I are meeting in a church building to plan to rob a bank and open with a prayer and close with a prayer, I don’t think many people would see this as a church service that should be protected.”

Ruth Anne Myers:
They have the right to think what they want. Anybody does. That doesn’t exclude them from obeying the laws of the United States.

Delaney Hall:
This is Ruth Anne Myers. She became the INS District Director for Arizona in 1984. She didn’t oversee the investigation into the sanctuary movement, but she was briefed on it when she arrived at the Phoenix office.

Ruth Anne Myers:
Yeah. I was totally surprised. In my experience, I had no knowledge before of a church breaking the law and harboring illegal aliens. Smuggling and harboring.

Roman Mars:
Myers says the case was pretty straightforward.

Ruth Anne Myers:
These people were breaking the law, the law of the United States. I’m in favor of legal immigration, but not illegal immigration. I think we have the right to have our laws and to enforce them and decide who comes into this country and who doesn’t.

Roman Mars:
Cruz and Graham along with a couple of other government agents spent ten months undercover gathering evidence against the sanctuary workers.

Delaney Hall:
Their methods would eventually come under public scrutiny because they hadn’t just infiltrated the sanctuary movement. They were also secretly recording meetings, conversations, and in some cases, church services.

Church Meeting:
“Today’s date is October 1st, 1984. Time is about 8:00 pm.”

Church Service:
“… for God will deliver the needy when they cry for help.”

Roman Mars:
These undercover methods struck some people as offensive and overreaching. Here’s Anthony Lewis, then a professor at Harvard Law School, speaking to ABC News in 1985.

Anthony Lewis:
“Well, it’s the methods that bother me. I think most of us Americans would believe that in America you are entitled to a sense of privacy when you go into a church, maybe privacy of a particular kind, you and your God.”

Church Service:
“The stranger who sojourned with you shall be familiar as…”

Roman Mars:
The state was infiltrating and secretly surveilling churches in a country where the separation of church and state is a deeply held ideal. We reached out to two agents who were involved with the case, and both declined to speak to us.

Delaney Hall:
The people overseeing the investigation at INS thought these methods were justified. They saw the movement as more political than religious.

Ruth Anne Myers:
Yes, there were many that thought it was under the guise of the church.

Delaney Hall:
Meaning the sanctuary workers were using religion as a cover to push a political agenda and undermine immigration laws.

Roman Mars:
And it’s true that some sanctuary volunteers were vocally critical of the American policy in Central America. Some expressed support for the left-wing movements developing there. In fact, there was a divide within the movement itself about whether their works should be motivated primarily by humanitarian concerns or political ones.

Reverend John Fife:
That debate got to the point where we decided to have a gathering and try to resolve it.

Roman Mars:
But two weeks before that was supposed to happen, the government indicted 16 of the sanctuary workers in Tucson, including Reverend Fife.

News Report:
“On January 14th, 1985, federal agents swept down, arresting 63 Guatemalan and Salvadoran refugees across the United States, and handing out indictments to 16 liters of the sanctuary movement.”

Delaney Hall:
That morning, Reverend Fife was sleeping when he heard someone banging on his front door.

Reverend John Fife:
So I got up and I went to the door, and there were two border patrol agents here.

Delaney Hall:
His immediate concern was for the refugees that were staying at Southside Presbyterian Church, right across the street from his house.

Reverend John Fife:
The only thought that occurred to me was I’ve got all these vulnerable people over in the church. I need to keep these guys occupied. So I invited him in, made coffee, stalled every way I could.

Delaney Hall:
He read through the entire indictment the officers had handed him, trying to buy some time.

Reverend John Fife:
My charges were pretty clear, and they were pretty typical of everyone. They were a number of counts of conspiracy to violate federal law, harboring illegal aliens, transporting illegal aliens, and aiding and abetting illegal aliens, and everyone had different counts under each of those categories.

Roman Mars:
Eventually, the border patrol agents went on their way and Reverend Fife, and the other leaders of the sanctuary movement were left with a daunting situation. They faced an impending high-profile trial in which they’d be facing off with the federal government, and the charges against them were serious. If convicted, they can spend years in prison.

Delaney Hall:
They got to work assembling a team of lawyers to defend them.

James Brosnahan:
So there’s two bases, as I see it, for sanctuary. It’s very simple, really.

Delaney Hall:
This is James Brosnahan, one of the defense lawyers.

James Brosnahan:
The first is religion, and many churches, many religions have as a distinct imperative that you are to assist people who are on the road and who are fleeing some form of violent oppression. It’s the teaching of Jesus.

Delaney Hall:
The defense thought there was an argument to be made that the sanctuary workers were just acting in accordance with their faith. Not only that, the lawyers believed the religious rights of the sanctuary workers had been violated by the government agents who’d infiltrated their churches and made secret recordings.

James Brosnahan:
And that’s intimidation of people who are pursuing their Bible studies in a church.

Roman Mars:
The second part of the defense’s argument had to do with asylum law.

James Brosnahan:
The law provides that when a person shows up at the border and they are fleeing certain specific kinds of oppression or violence, they have a right to come in. When that is true and that can be established in immigration court, that person is entitled to stay in the United States. That’s asylum.

Roman Mars:
As the defense team researched the laws, they started to believe that their clients hadn’t really violated the law at all. They thought the U.S. government had.

A. Bates Butler III:
I did research both how the United States government was handling asylum applications from people from Central America, and I also researched international law.

Delaney Hall:
This is A. Bates Butler III, another lawyer for the sanctuary volunteers.

A. Bates Butler III:
And I was appalled by what I discovered about how the United States government was systematically, it seemed, denying asylum applications from Central America.

Roman Mars:
This was all happening in the context of a major shift in U.S. refugee policy. Before 1980, the U.S. approach to taking in refugees had been expressly political. It gave preference to refugees fleeing communist countries and countries in the Middle East.

Delaney Hall:
In 1980, President Carter signed the Refugee Act into law. The law was supposed to create a fairer system by adopting a more humanitarian, non-ideological definition of a refugee. It used the criteria developed by the United Nations, which identified a refugee as anyone with a well-founded fear of persecution based on race, religion, nationality, social group, or political opinion.

Roman Mars:
Even though these new criteria were in place when Reagan came into office, the lawyers for the sanctuary workers believed the government was not following its own law. They thought INS was turning away large numbers of El Salvadorians and Guatemalans who should have qualified as political refugees.

Delaney Hall:
Butler had been skeptical of the sanctuary movement when he first learned about it, but his research had changed his mind.

A. Bates Butler III:
And so I moved from a position of, “Well, this is all fine and dandy and this is the religious thing to do, but it’s illegal.” I moved from that position to, “It’s lawful to help these people, and it’s the United States government that is violating the law.”

News Report:
“The defendants and their supporters marched to the federal building in Phoenix where the first round of arraignments this morning. The charges – transporting aliens illegally, harboring them and conspiracy. Inside the courtroom, the defendants pleaded not guilty. They were released without bail. Their trials were set for April 2nd. The sanctuary people say those trials will be a major test of religious freedoms in this country. This afternoon in Tucson, more arraignments in what sanctuary …”

Roman Mars:
After months of preparation, the defense team was feeling confident. They thought they had sympathetic clients, a good amount of public support and compelling legal arguments. Here’s Reverend Fife again.

Reverend John Fife:
Our position was, “Oh, we welcome the opportunity to make that case in court, and we think we’re going to win in a slam dunk.”

Delaney Hall:
But then very early on, the defense team faced a major setback. The lead prosecutor for the government was a lawyer named Donald Reno Jr., and one of his first moves was to file a series of motions asking the federal judge who was hearing the case to limit the arguments that the defense could make.

Reverend John Fife:
And then the federal judge who was hearing our case ruled that we couldn’t say anything in our defense during our trial about five subjects: United States refugee law, international refugee law, conditions in El Salvador, conditions in Guatemala or our religious faith. So that wiped out our entire legal position.

Delaney Hall:
I mean, what was left?

Reverend John Fife:
Nothing was left. The way my attorney explained it was, “Well, federal judges in criminal prosecutions have enormous power to exclude evidence that they believe is not relevant to the charges that are being filed against the defendant.”

Roman Mars:
The judge had effectively reduced the case to its most basic level. Had the sanctuary workers engaged in a conspiracy to smuggle and harbor undocumented people? Yes or no. There was to be no discussion about context, history or motivations.

Delaney Hall:
One of the defendants was a man named Jim Corbett. Along with Reverend Fife, he’d helped to found the sanctuary movement. Corbett died in 2001 but in an archival interview. He described the situation that the defense team found itself in. He said it was as if a man was driving late at night in freezing weather. His car breaks down, so he goes to a nearby house …

Jim Corbett:
“… and breaks in, and then is discovered and brought to trial, and the judge rules out any evidence that would indicate that it was 40 below, his car had gone bad, he had stopped, went to the only house in the area and entered it.”

Roman Mars:
Without understanding the context, Jim thought there was no way the jury could understand why the sanctuary workers had decided to shelter Central Americans.

Jim Corbett:
“Now, in terms of the necessity defense, we’re talking about something very similar with people fleeing torture in a murder in a very different context, but to rule out the ability to refer to that necessity simply makes a mockery of the law.”

Delaney Hall:
The judge named Earl Carroll died in early February of 2017. We requested an interview with prosecutor Donald Reno Jr., but he’s still an active litigator for what’s now known as Immigration and Customs Enforcement. The agency declined our request to speak with him, but he was featured in the news report from 1985, and he described the sanctuary movement as “an alien smuggling conspiracy.”

Donald Reno Jr.:
“The defendants induced, encouraged, smuggled, transported, and harbored illegal aliens.”

News Report:
“The government says that’s not much different from drug smuggling.”

Roman Mars:
Over the next several months, the prosecution laid out its case against the sanctuary workers, relying heavily on testimony from their undercover informants. Reno characterized the sanctuary movement as a smuggling operation, pure and simple.

Delaney Hall:
The defense team tried to undermine those accounts in cross-examination and to sneak in details about context and motivation when they could, but in most ways, their hands were tied. When it came time for the defense to present their case, they declined to put anyone on the stand.

News Report:
“Today, the defense rested without questioning a single witness. Jury deliberations could begin next week.”

Roman Mars:
The jury deliberated for more than 48 hours, spread over nine days. On May 1st, 1986, 16 months after the indictments and more than six months since the start of the trial, the jury filed into the courtroom to read the verdict. Of the 11 sanctuary workers who went to trial, three were acquitted of all charges, eight were found guilty, including Reverend Fife, which hit Bates Butler, the lawyer, really hard.

A. Bates Butler III:
After the jury came in, I was so disgusted (chokes up) with the system that I had worked in for so long, I didn’t want to be a part of it. And we were so upset that our government in our court system had cast aside our clients with their moral positions, and we felt like the government in the courts were bankrupt. The system was bankrupt.

Delaney Hall:
But the other defense lawyer, James Brosnahan, had known there were significant hurdles they needed to overcome.

James Brosnahan:
You know, juries are very good, but they come into the box with their own attitude, and the attitude is people just can’t come over the border. If you’re going to do that, you’ve got to pay the price.

Delaney Hall:
Ruth Anne Myers of the INS thought the verdict was fair.

Ruth Anne Myers:
The people that worked in the sanctuary movement did not present those people to immigration offices. They smuggled them into the U.S., they gave them “sanctuary” in their churches. They did not follow the law.

Delaney Hall:
Next came the sentencing by the judge.

A. Bates Butler III:
We really were worried that the judge was going to put them in prison.

Reverend John Fife:
My attorney told me, “Take a toothbrush in your hip pocket when you go to sentencing because they want you bad.” So I had made arrangements with the congregation and with my family and everything expecting to go to prison, and much to our astonishment, he sentenced all of us who were convicted to five years probation.

Roman Mars:
The judge gave them relatively lenient sentences considering they’d been convicted of, in some cases, felonies.

James Brosnahan:
We were relieved at that point. I think I don’t know what he thought, but I thought that if he gave these nice people jail term, there would be awful public opinion on that. I think he had some sense that that might be true.

Delaney Hall:
Many of the sanctuary workers, including Reverend Fife, went back to their communities and continued their work in the sanctuary movement. Churches continued sheltering people, volunteers continued helping people across the border. Many of the sanctuary volunteers had made clear in their closing arguments in the trial that they wouldn’t stop doing the work.

News Report:
“The government may have sentenced John Fife and seven other sanctuary activists, but it is hardly silenced them nor stopped them from a cross country-crusade.”

Delaney Hall:
And at that point, did the government just back off? I mean, they must’ve known that you were continuing to do exactly what they’d just tried you for.

Reverend John Fife:
Right. They backed off us here in Tucson, but they tried one more trial.

Roman Mars:
In New Mexico, the government charged a man and a woman who were part of the sanctuary movement for transporting undocumented immigrants.

Reverend John Fife:
The jury, in that case, found them not guilty, and at that point, we knew that the movement had grown to the point where juries would no longer convict sanctuary workers.

Roman Mars:
Not long after the criminal trial had ended, a group of churches and refugee rights organizations filed a class-action lawsuit against the government. They alleged, among other things, that the government had engaged in discriminatory treatment of asylum claims made by Guatemalans and Salvadorians. In 1990, the government settled the lawsuit.

Reverend John Fife:
They agreed to give everyone who was here without documents from those countries temporary protected status – work permits – and they agreed to a whole series of reforms of the political asylum process, so we essentially began to wind down the sanctuary movement.

Delaney Hall:
But even though the churches were slowing their work, the whole idea of sanctuary was spreading. College campuses, cities, counties, even whole states began to declare themselves sanctuaries, and not just for refugees fleeing persecution, but for undocumented people more broadly. This accelerated through the 1980s and has continued up to today.

Roman Mars:
But what exactly sanctuary means varies from place to place.

James Brosnahan:
Anything you want. That’s part of the problem, and each city is probably a little bit different.

Roman Mars:
Once again, lawyer, James Brosnahan.

James Brosnahan:
Usually, the local authorities, police, sheriff, will not assist in the deportation of undocumented people.

Roman Mars:
In some places, police aren’t allowed to inquire about a person’s immigration status or to give that information to the federal government. In other places, all residents are promised access to city services regardless of their immigration status. These policies can be set in law or they can just happen in practice.

Delaney Hall:
President Donald Trump talked a lot about sanctuary cities during his campaign, and he’s pointed to murders committed by undocumented immigrants as evidence that sanctuary cities should not exist. He’s threatened to pull federal funding from cities that identify as sanctuaries and he’s also promised to accelerate deportations. In response, churches are once again sheltering people.

Alison Harrington:
I think a lot of congregations across the nation are struggling with what will it mean to be faithful to the mandates of our faith underneath this administration?

Roman Mars:
This is Alison Harrington. She’s the current pastor of Southside Presbyterian in Tucson, the church where the sanctuary movement began in the 1980s. She and her congregation provided sanctuary to a couple of people who were threatened with deportation during the Obama Administration. They’re now having conversations about whether that work will expand in the next few years.

Alison Harrington:
I mean, I can’t ignore the fact that my predecessor, John Fife was indicted for doing the work that I’m doing right now, and that he was looking at ten years in prison. I try not to think about that, but you can’t ignore that.

Delaney Hall:
Since 2011, churches have had some protected status as sanctuaries. In that year, Immigration and Customs Enforcement under President Obama issued a memo. It said that some sensitive locations require special consideration by immigration officers.

Alison Harrington:
The government has said we won’t enter into those sensitive locations unless it’s an extreme situation or we have higher levels of approval, and those sensitive locations are houses of worship, hospitals, and schools.

Roman Mars:
But that practice isn’t codified into law and could easily change. Recently, there have been reports of immigration agents targeting undocumented people in hospitals and schools. Churches might also be vulnerable.

Reverend John Fife:
That’s going to have to be worked out through a number of institutional decisions as well as court decisions well into the future. What’s going to be the result five years from now? We’ll see. No one knows.