RFRA at the Border: Immigration’s Entry Fiction and Religious Free Exercise

*University of Virginia School of Law, J.D. expected 2022. I am especially grateful to Professor Micah Schwartzman, who suggested this topic, and to Megan Ong for encouraging me to submit this work for publication. I am deeply appreciative of the work of all the members of the Virginia Law Review who assisted in the editing and preparation of this Note—particularly Matthew Kincaid, Matthew West, and Meaghan Haley. Finally, thank you to Andrew Tynes, without whose support this Note would have remained a file on my laptop and riddled with unnecessary commas.Show More

RFRA and RLUIPA have greatly enhanced the religious free exercise rights of individuals, but it is not clear that all immigrants in detention in the United States are able to claim these protections. One lower court has applied the entry fiction doctrine, which limits the constitutional rights of immigrants at the border, to hold that these immigrants do not have statutory rights under RFRA because they are not “person[s]” within the meaning of the statute. This Note contends that the Supreme Court’s recent analysis of RFRA in Burwell v. Hobby Lobby Stores, Inc. calls into question this lower court decision. Contemplating the various methods of statutory interpretation from Hobby Lobby and other lower courts, this Note argues that the plain meaning of “person[s]” should govern its interpretation in RFRA and, thus, should include immigrants subject to the entry fiction.

Introduction

For many, religion is a solace in times of crisis.¹ 1.Maryam Saleh, A Second Chance, Intercept (Dec. 22, 2018, 10:44 AM), https://theintercept.com/2018/12/22/georgia-ice-raids-muslim-refugees/ [https://perma.cc/Q3Q5-MLWS] (“You know, it’s just the belief that you have that you don’t have no control of everything, so, you know, that’s what keeps us going, just prayers . . . .”).Show More However, for some immigrants in detention centers across the country, their ability to practice their religion has been limited.² 2.Conrad Wilson, Hundreds of Immigrant Detainees Held in Federal Prisons, NPR (Aug. 23, 2018, 7:28 AM), https://www.npr.org/2018/08/23/641165251/legal-battles-began-when-migrants-were-sent-to-federal-prisons [https://perma.cc/8A3F-6GN4] (“If you lock somebody up in a foreign country and cut them off from the outside world . . . it’s going to cause all kinds of psychological trauma at the minimum . . . .”).Show More In Glades County, Florida, Muslim immigrant detainees were denied access to the Quran and forced to use bedsheets as prayer rugs.³ 3.See ACLU, Letter from ACLU to U.S. Dep’t of Homeland Sec. 4 (Mar. 15, 2019), https://www.aclu.org/letter/investigating-religious-freedom-violations-border-patrol-and-ice [https://perma.cc/ET7C-TAG6] [hereinafter ACLU Letter]; Complaint at 12–13, Abdulkadir v. Hardin, No. 2:19-CV-00120-SPC-MRM (M.D. Fla. Feb. 27, 2019).Show More In both Port Isabel, Texas and Miami, Florida, Muslim detainees were given only pork sandwiches to eat.⁴ 4.Roque Planas, Border Patrol Fed Pork to Muslim Detainee for 6 Days, Huffington Post (Feb. 27, 2019, 4:45 PM), https://www.huffpost.com/entry/border-patrol-fed-pork-to-muslim-detainee-for-six-days_n_5c76f474e4b0d3a48b5627a2#:~:text=A%20permit%20allowing‌%20him%20to,Parveen%20from%20landinl%20in%20detention [https://perma.cc/F2JZ-ZFKM]; Groups: Muslim Detainees at Miami Facility Are Served Pork, Associated Press (Aug. 20, 2020), https://apnews.com/article/a4cdb2edd79edfc83adde71fdcafb079 [https://perma.cc/A8GJ-4LHJ].Show More In Sheridan, Oregon, Sikh detainees were denied turbans, and other detainees were denied access to pastoral care or spaces to worship.⁵ 5.See ACLU Letter, supra note 4, at 5; Decl. in Support of Habeas Petition at 2, ICE Detainee No. 2 v. Salazar, No. 3:18-CV-01280-MO (D. Or. July 18, 2018); Memo in Support of Petition for Habeas Corpus at 22–23, ICE Detainee Nos. 1-74 v. Salazar, No. 3:18-CV-01279-MO (D. Or. July 30, 2018).Show More In Victorville, California, detainees were likewise denied meals that complied with their religious needs, were denied appropriate religious counseling, and were prevented from wearing head coverings.⁶ 6.See ACLU Letter, supra note 4, at 5; Decl. of Atinder Paul Singh ¶ 5, 10–11, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 1-4; Decl. of Gurjinder Singh ¶¶ 4–8, id., ECF No. 1-5.Show More Indeed, one individual was chastised by officers for using his cell to pray, even though he was given no other space to do so.⁷ 7.Decl. of Gabriel Antonio Manzanilla Pedron ¶ 24, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 45-3.Show More

These stories are reminiscent of the shocking stories relating to immigrant detention centers over the past decade.⁸ 8.See Michael D. Shear, Katie Benner & Michael S. Schmidt, ‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said, N.Y. Times (Oct. 6, 2020), https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html [https://perma.cc/EPE8-HDCX]; Jacob Soboroff & Julia Ainsley, Lawyers Can’t Find the Parents of 666 Migrant Kids, A Higher Number Than Previously Reported, NBC News (Nov. 9, 2020, 4:32 PM), https://www.nbcnews.com/politics/immigration/lawyers-can-t-find-parents-666-migrant-kids-higher-number-n1247144 [https://perma.cc/G8KR-AWJH]; Tell Me More: Child Detention Centers: A ‘Headache’ for the Obama Administration NPR (June 23, 2014, 12:54 PM), https://www.npr.org/2014/06/23/324857970/child-detention-centers-a-headache-for-the-obama-administration [https://perma.cc/3CMF-WM8L].Show More The COVID-19 pandemic has not only grossly over-affected immigrant detainees in terms of the virus’s impact,⁹ 9.Alisa Reznick, ‘You Can Either Be a Survivor or Die’: COVID-19 Cases Surge in ICE Detention, NPR (July 1, 2020, 9:17 AM), https://www.npr.org/2020/07/01/871625210/you-can-either-be-a-survivor-or-die-covid-19-cases-surge-in-ice-detention [https://perma.cc/NBC3-JWK4].Show More but it has led to greater opportunities for mistreatment.¹⁰ 10.Ike Swetlitz, ‘Suddenly They Started Gassing Us’: Cuban Migrants Tell of Shocking Attack at ICE Prison, Guardian (July 2, 2020, 6:00 PM), https://www.theguardian.com/us-news/2020/jul/02/cuban-migrants-detention-ice-facility-new-mexico [https://perma.cc/QP2N-AYNV] (describing immigrant detainees who were corralled into their dormitory and pepper sprayed by prison guards in “full riot gear of gas masks” and “shields” as a response to their hunger strike protesting against their vulnerability to COVID-19).Show More Other accounts of abuse in immigration detention also raise religiously motivated concerns, albeit not as directly as those previously mentioned. For example, in deciding a due process challenge to the Trump administration’s family separation policies, a district court judge wrote that separating her from her child “absolutely precludes” a mother’s “involvement in any aspect of her sons’ care, custody, and control, from religion to education.”¹¹ 11.Jacinto-Castanon de Nolasco v. U.S. Immigr. & Customs Enf’t, 319 F. Supp. 3d 491, 501 (D.D.C. 2018) (emphasis added). While it is not clear that the mother in this case would be able to claim that this burdened her religious beliefs, it shows the scope of religion-related issues present in the immigration detention context.Show More Additionally, recent claims of unwanted gynecological procedures in detention centers¹² 12.Caitlin Dickerson, Seth Freed Wessler & Miriam Jordan, Immigrants Say They Were Pressured Into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020), https://www.nytimes.com/‌2020/09/29/us/ice-hysterectomies-surgeries-georgia.html [https://perma.cc/7TQX-8QKZ].Show More could raise concerns of bodily integrity that are violative of certain religious beliefs. While there would need to be an individualized assessment of whether these practices burdened individuals’ religious practices, all of these stories demonstrate the pressing importance of protecting the religious rights of immigrants in detention centers.

What may be most surprising about the previous stories is not that they happened, but that there may not be a remedy under the law for these violations. The Religious Freedom Restoration Act (“RFRA”)¹³ 13.42 U.S.C. § 2000bb-1.Show More and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)¹⁴ 14.42 U.S.C. §§ 2000cc–2000cc-1.Show More provide the broadest grants of religious free exercise protections against laws made or actions taken by the federal government.¹⁵ 15.While both RFRA and RLUIPA apply to federal actions, only RLUIPA applies to state actions as well. See City of Boerne v. Flores, 521 U.S. 507, 529, 532–36 (1997); Cutter v. Wilkinson, 544 U.S. 709, 713, 715–16 (2005); infra Section I.A.Show More The First Amendment Free Exercise Clause also provides more limited protections against religious liberty violations.¹⁶ 16.U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”); see Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 878–79 (1990).Show More However, because of the complex doctrine known as the “entry fiction,” certain immigrants may not be able to bring a suit under RFRA or RLUIPA.¹⁷ 17.See infra Section I.B.Show More

The entry fiction says that certain individuals, while physically inside the United States are legally considered to be still outside of the United States because they have not “effected an entry.”¹⁸ 18.Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see Wong v. United States, 373 F.3d 952, 971 (9th Cir. 2004) (summarizing the entry fiction doctrine).Show More While controversial,¹⁹ 19.Recent dissents by the Court have argued vehemently against this legal fiction. See Jennings v. Rodriguez, 138 S. Ct. 830, 862 (2018) (Breyer, J., dissenting) (“We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 2013 (2020) (Sotomayor, J., dissenting) (“Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted . . . .”).Show More it has primarily been applied to deny certain immigrants their procedural due process rights in immigration proceedings.²⁰ 20.SeeWong, 373 F.3d at 971–72; see also Zadvydas, 533 U.S. at 703–04 (Scalia, J., dissenting) (claiming that the distinction between “aliens” who have effected an entry and those who have not “makes perfect sense” with regard to the procedures “necessary to prevent entry” but he is “sure they cannot be tortured”).Show More However, relying on this doctrine, at least one lower court has recently interpreted this fiction to deny immigrants their rights under RFRA by holding that they are not “person[s]” under the statute.²¹ 21.Bukhari v. Piedmont Reg’l Jail Auth., No. 01:09-CV-1270, 2010 WL 3385179, at *5 (E.D. Va. Aug. 20, 2010).Show More

At the same time, the Supreme Court has arguably expanded the scope of free exercise protections available to individuals under RFRA.²² 22.See infra Section III.A.Show More In deciding Burwell v. Hobby Lobby Stores, Inc.,²³ 23.573 U.S. 682 (2014).Show More the Court suggested a new, larger role for RFRA in affording religious liberty protections that go even beyond the Constitutional guarantees of the older, more protective free exercise precedents.²⁴ 24.See id. at 695 n.3 (“RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.”); see also infra Section III.A.Show More While this move to untether RFRA from the First Amendment could prove troublesome, in that it allows for broader religion-based challenges to federal laws that protect civil rights,²⁵ 25.See Micah Schwartzman, Richard C. Schragger & Nelson Tebbe, The New Law of Religion, Slate (July 3, 2014, 11:54 AM), https://slate.com/news-and-politics/2014/07/after-hobby-lobby-there-is-only-rfra-and-thats-all-you-need.html [https://perma.cc/92GW-D4GT]; Marty Lederman, Hobby Lobby Part XVIII—The One (Potentially) Momentous Aspect of Hobby Lobby: Untethering RFRA from Free Exercise Doctrine, Balkinization (July 6, 2014), https://balkin.blogspot.com/2014/07/hobby-lobby-part-xviii-one-potentially.html [https://perma.cc/2A3B-MSRX]; see also Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. & Gender 35, 93 (2015) (noting a potential wave of RFRA litigation regarding employer objections to paying benefits for same-sex spouses).Show More this Note will contend that this decision is good for immigrants subject to the entry fiction as it establishes a framework under which they can bring a RFRA claim.

This Note will attempt to resolve a fragment of the jurisprudential conflict between expanded religious liberty rights and restricted immigration rights by answering the narrow question of whether immigrants who are subject to the entry fiction are “person[s]” under RFRA. The normative analysis of this question is clear: the United States should not prevent relief to individuals who have been subjected to some of the treatment described above at the hands of government actors. Unfortunately, the doctrinal analysis is murkier, and it is this analysis with which this Note will contend. Part I will give an overview of RFRA and RLUIPA, including the relevant statutory history. It will then outline in more detail the doctrine of the entry fiction, laying out its import to the constitutional rights of immigrants, and the relevance of these constitutional rights to the statutory interpretation question at the heart of this issue.

Part II will confront the decisions of lower courts that have waded into this murky analysis. Only one lower court has directly ruled on this question as it relates to immigrants subject to the entry fiction.²⁶ 26.See Bukhari, 2010 WL 3385179.Show More That court relied heavily on a case from the U.S. Court of Appeals for the D.C. Circuit, which confronted the question as it relates to Guantanamo detainees.²⁷ 27.Id. at *4; see Rasul v. Myers (Rasul II), 563 F.3d 527, 528 (D.C. Cir. 2009); Rasul v. Myers (Rasul I), 512 F.3d 644, 649 (D.C. Cir. 2008), cert. granted, judgment vacated, 555 U.S. 1083 (2008).Show More As the law around Guantanamo detainees is more developed, this Note will delve deeply into that case and other similar cases from the D.C. Circuit.

Part III will then focus on the Court’s decision in Burwell v. Hobby Lobby Stores, Inc. This Part will explore the Court’s enlarged view of RFRA and how its analysis casts doubt on the reasoning of the decisions in the lower courts. Finally, Part IV will propose a way to answer the question of who are “person[s]” under RFRA. Contending with three separate methods of statutory interpretation, this Note will demonstrate why a plain meaning approach to the term “person[s]” is the most logical from a doctrinal perspective. By reading “person[s]” to include all people who are subject to government burdens on their free exercise, immigrants subject to the entry fiction will have rights under the RFRA and RLUIPA statutory regimes.

1. Maryam Saleh, A Second Chance, Intercept (Dec. 22, 2018, 10:44 AM), https://theintercept.com/2018/12/22/georgia-ice-raids-muslim-refugees/ [https://perma.cc/Q3Q5-MLWS] (“You know, it’s just the belief that you have that you don’t have no control of everything, so, you know, that’s what keeps us going, just prayers . . . .”). ↑
2. Conrad Wilson, Hundreds of Immigrant Detainees Held in Federal Prisons, NPR (Aug. 23, 2018, 7:28 AM), https://www.npr.org/2018/08/23/641165251/legal-battles-began-when-migrants-were-sent-to-federal-prisons [https://perma.cc/8A3F-6GN4] (“If you lock somebody up in a foreign country and cut them off from the outside world . . . it’s going to cause all kinds of psychological trauma at the minimum . . . .”). ↑
3. See ACLU, Letter from ACLU to U.S. Dep’t of Homeland Sec. 4 (Mar. 15, 2019), https://www.aclu.org/letter/investigating-religious-freedom-violations-border-patrol-and-ice [https://perma.cc/ET7C-TAG6] [hereinafter ACLU Letter]; Complaint at 12–13, Abdulkadir v. Hardin, No. 2:19-CV-00120-SPC-MRM (M.D. Fla. Feb. 27, 2019). ↑
4. Roque Planas, Border Patrol Fed Pork to Muslim Detainee for 6 Days, Huffington Post (Feb. 27, 2019, 4:45 PM), https://www.huffpost.com/entry/border-patrol-fed-pork-to-muslim-detainee-for-six-days_n_5c76f474e4b0d3a48b5627a2#:~:text=A%20permit%20allowing‌%20him%20to,Parveen%20from%20landinl%20in%20detention [https://perma.cc/F2JZ-ZFKM]; Groups: Muslim Detainees at Miami Facility Are Served Pork, Associated Press (Aug. 20, 2020), https://apnews.com/article/a4cdb2edd79edfc83adde71fdcafb079 [https://perma.cc/A8GJ-4LHJ]. ↑
5. See ACLU Letter, supra note 4, at 5; Decl. in Support of Habeas Petition at 2, ICE Detainee No. 2 v. Salazar, No. 3:18-CV-01280-MO (D. Or. July 18, 2018); Memo in Support of Petition for Habeas Corpus at 22–23, ICE Detainee Nos. 1-74 v. Salazar, No. 3:18-CV-01279-MO (D. Or. July 30, 2018). ↑
6. See ACLU Letter, supra note 4, at 5; Decl. of Atinder Paul Singh ¶ 5, 10–11, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 1-4; Decl. of Gurjinder Singh ¶¶ 4–8, id., ECF No. 1-5. ↑
7. Decl. of Gabriel Antonio Manzanilla Pedron ¶ 24, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 45-3. ↑
8. See Michael D. Shear, Katie Benner & Michael S. Schmidt, ‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said, N.Y. Times (Oct. 6, 2020), https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html [https://perma.cc/EPE8-HDCX]; Jacob Soboroff & Julia Ainsley, Lawyers Can’t Find the Parents of 666 Migrant Kids, A Higher Number Than Previously Reported, NBC News (Nov. 9, 2020, 4:32 PM), https://www.nbcnews.com/politics/immigration/lawyers-can-t-find-parents-666-migrant-kids-higher-number-n1247144 [https://perma.cc/G8KR-AWJH]; Tell Me More: Child Detention Centers: A ‘Headache’ for the Obama Administration NPR (June 23, 2014, 12:54 PM), https://www.npr.org/2014/06/23/324857970/child-detention-centers-a-headache-for-the-obama-administration [https://perma.cc/3CMF-WM8L]. ↑
9. Alisa Reznick, ‘You Can Either Be a Survivor or Die’: COVID-19 Cases Surge in ICE Detention, NPR (July 1, 2020, 9:17 AM), https://www.npr.org/2020/07/01/871625210/you-can-either-be-a-survivor-or-die-covid-19-cases-surge-in-ice-detention [https://perma.cc/NBC3-JWK4]. ↑
10. Ike Swetlitz, ‘Suddenly They Started Gassing Us’: Cuban Migrants Tell of Shocking Attack at ICE Prison, Guardian (July 2, 2020, 6:00 PM), https://www.theguardian.com/us-news/2020/jul/02/cuban-migrants-detention-ice-facility-new-mexico [https://perma.cc/QP2N-AYNV] (describing immigrant detainees who were corralled into their dormitory and pepper sprayed by prison guards in “full riot gear of gas masks” and “shields” as a response to their hunger strike protesting against their vulnerability to COVID-19). ↑
11. Jacinto-Castanon de Nolasco v. U.S. Immigr. & Customs Enf’t, 319 F. Supp. 3d 491, 501 (D.D.C. 2018) (emphasis added). While it is not clear that the mother in this case would be able to claim that this burdened her religious beliefs, it shows the scope of religion-related issues present in the immigration detention context. ↑
12. Caitlin Dickerson, Seth Freed Wessler & Miriam Jordan, Immigrants Say They Were Pressured Into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020), https://www.nytimes.com/‌2020/09/29/us/ice-hysterectomies-surgeries-georgia.html [https://perma.cc/7TQX-8QKZ]. ↑
13. 42 U.S.C. § 2000bb-1. ↑
14. 42 U.S.C. §§ 2000cc–2000cc-1. ↑
15. While both RFRA and RLUIPA apply to federal actions, only RLUIPA applies to state actions as well. See City of Boerne v. Flores, 521 U.S. 507, 529, 532–36 (1997); Cutter v. Wilkinson, 544 U.S. 709, 713, 715–16 (2005); infra Section I.A. ↑
16. U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”); see Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 878–79 (1990). ↑
17. See infra Section I.B. ↑
18. Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see Wong v. United States, 373 F.3d 952, 971 (9th Cir. 2004) (summarizing the entry fiction doctrine). ↑
19. Recent dissents by the Court have argued vehemently against this legal fiction. See Jennings v. Rodriguez, 138 S. Ct. 830, 862 (2018) (Breyer, J., dissenting) (“We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 2013 (2020) (Sotomayor, J., dissenting) (“Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted . . . .”). ↑
20. See Wong, 373 F.3d at 971–72; see also Zadvydas, 533 U.S. at 703–04 (Scalia, J., dissenting) (claiming that the distinction between “aliens” who have effected an entry and those who have not “makes perfect sense” with regard to the procedures “necessary to prevent entry” but he is “sure they cannot be tortured”). ↑
21. Bukhari v. Piedmont Reg’l Jail Auth., No. 01:09-CV-1270, 2010 WL 3385179, at *5 (E.D. Va. Aug. 20, 2010). ↑
22. See infra Section III.A. ↑
23. 573 U.S. 682 (2014). ↑
24. See id. at 695 n.3 (“RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.”); see also infra Section III.A. ↑
25. See Micah Schwartzman, Richard C. Schragger & Nelson Tebbe, The New Law of Religion, Slate (July 3, 2014, 11:54 AM), https://slate.com/news-and-politics/2014/07/after-hobby-lobby-there-is-only-rfra-and-thats-all-you-need.html [https://perma.cc/92GW-D4GT]; Marty Lederman, Hobby Lobby Part XVIII—The One (Potentially) Momentous Aspect of Hobby Lobby: Untethering RFRA from Free Exercise Doctrine, Balkinization (July 6, 2014), https://balkin.blogspot.com/2014/07/hobby-lobby-part-xviii-one-potentially.html [https://perma.cc/2A3B-MSRX]; see also Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. & Gender 35, 93 (2015) (noting a potential wave of RFRA litigation regarding employer objections to paying benefits for same-sex spouses). ↑
26. See Bukhari, 2010 WL 3385179. ↑

27. Id. at *4; see Rasul v. Myers (Rasul II), 563 F.3d 527, 528 (D.C. Cir. 2009); Rasul v. Myers (Rasul I), 512 F.3d 644, 649 (D.C. Cir. 2008), cert. granted, judgment vacated, 555 U.S. 1083 (2008). ↑