Oh my goodness!!! Check out this award for No More Deaths. Sue
FOR IMMEDIATE RELEASE CONTACT: MARK WALLEM
FEBRUARY 18, 2020 MWALLEM@ALBA-VALB.ORG
PHONE: 212-674-5398 CONTACT: KATE DOYLE
NO MORE DEATHS WINS ALBA/PUFFIN AWARD FOR HUMAN RIGHTS ACTIVISM
NEW YORK – The Abraham Lincoln Brigade Archives (ALBA) is pleased to announce that the 2020 ALBA/Puffin Award for Human Rights Activism will go to No More Deaths in support of its humanitarian efforts to alleviate the suffering and end the fatalities of those crossing the southern border of the United States. One of the largest monetary awards for human rights in the world, the ALBA/Puffin Award is a $100,000 cash prize granted annually by ALBA and the Puffin Foundation to honor the nearly 3,000 Americans who volunteered in the Spanish Civil War (1936-1939) to fight fascism under the banner of the Abraham Lincoln Brigade.
This year’s award acknowledges the urgent need for humanitarian aid to safeguard the lives of immigrants and refugees worldwide, and the profound bravery of the civil disobedience sometimes necessary to accomplish that goal. The award ceremony will take place at the Japan Society in New York on May 17, 2020 at 5pm.
“No More Deaths is comprised of individuals from all walks of life who are standing up in defense of human rights against the ill-formed and odious actions of their own government. Their work speaks louder than words, saving lives that have been devalued by heartless US policies.”– Perry Rosenstein, President of The Puffin Foundation.
No More Deaths is a humanitarian organization based in southern Arizona. It was created in 2004 as a coalition of community and faith groups, dedicated to stepping up efforts to stop the deaths of migrants in the desert and to achieving the enactment of a set of Faith-Based Principles for Immigration Reform. This coalition later developed into an autonomous project dedicated to ending the death and suffering in the Mexico–US borderlands through multiple projects of civil initiative.
“It's an honor to be recognized for the vital work we do in the borderlands. Over the past few years our organization has been targeted as part of widespread attacks on undocumented people in the United States. However, we will not be deterred,” stated Paige Corich-Kleim, a longtime desert aid worker. “We will use these resources to further our mission and continue to stand in solidarity with migrating people around the world.”
Drawing on the foundational principles of humanity, neutrality, impartiality, and independence, No More Deaths is dedicated to its mission to end death and suffering in the US Borderlands. The organization has conducted multiple projects to aid and bear witness to the struggles of migrants at the border. Through its network of volunteers, No More Deaths has maintained a year-round humanitarian presence in the deserts of southwestern Arizona; a program of research and documentation to expose patterns of abuse against people crossing the border at the hands of Border Patrol; an aid program in northern Sonora for migrants that plan to cross the desert; and a weekly legal clinic in Tucson that works side by side with community members applying for status or facing deportation and that trains participants to help each other through the immigration court process. No More Death also operates a 24-hour Missing Migrant Hotline and deploys search and rescue teams to look for the disappeared.
“No More Deaths embodies the same spirit of volunteerism, humanitarian intervention, and courage that animated the volunteers of the Lincoln Brigade more than 80 years ago,” said Kate Doyle, Chair of ALBA’s Human Rights Committee. “In the face of the global refugee crisis and the failure of current public policies, No More Deaths offers a powerful model for personal and collective conscientious engagement.”
The ALBA/Puffin Award for Human Rights Activism is an initiative to sustain the legacy of the experiences, aspirations, and idealism of the Abraham Lincoln Brigade. It supports contemporary international activists and human rights causes. Philanthropist and visionary Perry Rosenstein, President of the Puffin Foundation, created and established an endowed fund for this human rights award in 2010.
ALBA Annual Celebration and Award Ceremony
Sunday, May 17, 5-6:30pm | Reception Following
The Japan Society | 333 East 47th St., New York City
Tickets will be available at www.alba-valb.org
The Abraham Lincoln Brigade Archives: www.alba-valb.org
The Abraham Lincoln Brigade Archives (ALBA) is an educational non-profit dedicated to promoting social activism and the defense of human rights. ALBA’s work is inspired by the American volunteers of the Abraham Lincoln Brigade who fought fascism in the Spanish Civil War (1936-39). Drawing on the ALBA collections in New York University’s Tamiment Library, and working to expand such collections, ALBA works to preserve the legacy of the Abraham Lincoln Brigade as an inspiration for present and future generations.
Other recipients of the ALBA/ Puffin Award for Human Rights Activism include investigative journalists Lydia Cacho and Jeremy Scahill; Judge Baltasar Garzón; Kate Doyle and Fredy Peccerelli, who work to expose human rights violations in Guatemala; United We Dream, a national network of youth-led immigrant activist organizations that fight for the rights of millions of undocumented immigrants in the United States; public-interest lawyer Bryan Stevenson; Spain’s Association for the Recovery of Historical Memory; Proactiva Open Arms, dedicated to rescuing migrants in the Mediterranean; the Coalition of Immokalee Workers, a worker-based labor and human rights organization founded in Florida in 1993; and the Immigrant Justice Campaign, a legal aid organization that works to increase access to legal counsel for immigrants held in detention centers.
The Puffin Foundation: www.puffinfoundation.org
Since it was founded in 1983, the Puffin Foundation Ltd. has sought to open the doors of artistic expression by providing grants to artists and art organizations who are often excluded from mainstream opportunities due to their race, gender, or social philosophy. The Puffin, a species whose nesting sites were endangered by encroaching civilization, were encouraged to return to their native habitats through the constructive efforts of a concerned citizenry. The Foundation has adopted the name Puffin as a metaphor for how it perceives its mission, which is to ensure that the arts continue to grow and enrich our lives. In so doing it has joined with other concerned groups and individuals toward achieving that goal. The Puffin Foundation is also a long-standing supporter of ALBA’s educational mission.
Abraham Lincoln Brigade Archives (ALBA)
239 W 14th Street, Suite 2
New York, NY 10011
Tel. +1 212 674 5398
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Today I am publishing four testimonies of Central American asylum seekers from Kino Border Initiative's (KBI) newsletter, Passages. No More Deaths works with this KBI in Nogales, Sonora, Mexico.
FEBRUARY 11, 2020 BY KINO BORDER INITIATIVE
Testimonies From MPP
The following testimonies are from families who came to the Comedor during the month of January. All had sought protection in the U.S., and all were sent back to Nogales to await their court dates in El Paso, which were generally months out. The families asked for their experiences to be shared publicly. These were first read at the “Save Asylum” protest in Tucson on January 31, and in order to elevate the asylum-seekers’ voices, we share them here as well.
Family from Guatemala: two daughters (9 and 3), mom (33) and dad (51)
Mom: We left Guatemala because the gangs killed my dad, and then they came after my husband. They were watching him all the time, when he left the house, when he went to work. They extorted us, and it got to the point we could no longer pay. They put a note under our door that said, “We hope your daughter’s funeral will be cheaper than paying us.” We had no choice but to travel. What they did to my father they would have done to us.
Dad: We heard that we could find safety in the U.S. and that it would require proof. So we got documents and took photographs of the notes, of the violence, and of my wife’s dad’s body.
Mom: When we got to the U.S. and tried to show the officers this proof, they didn’t care. They didn’t even look at it. They kept us in detention for six days. During that time, my older daughter got very sick. The food there was very bad and she couldn’t eat any of it. She has epilepsy and had a seizure. She had to go to the hospital. She is still traumatized from that experience. Children aren’t meant to not have their freedom. They aren’t meant to be treated like criminals. It’s not their fault.
Dad: They didn’t believe I was my children’s father. They said I was too old to possibly be their dad and that I was lying. They made me take a DNA test to prove that I was their father. I was separated from my wife and daughters for six days. I saw another man and his son in detention who were so afraid of being sent back that the father would not sign the papers. The man bunched up his fist and wouldn’t do it. The agent grabbed his hand and forcibly unfurled his fingers and shoved his fingers on the paper.
Mom: We’re not safe in Mexico. We didn’t want to come here. But to return back to Guatemala would have meant the death of my husband and daughter.
Dad: It’s very important and good to share these stories. Thank you for sharing our story. We don’t want to die. Please tell them we don’t want to die.
Family from Guatemala: two daughters (11 and 4) and mom (35) (mother speaking)
We left Guatemala because the gangs were targeting my daughter. She is only 11, but she is tall for her age, and looks older. They followed her everywhere. When this happens is that the girls become the property of the gangs, they are raped and disappeared. This happened to the daughter of someone I know. They said that my daughter was asking for it because she left the house, but she only left the house to go to school. I tried to report this to the police and nothing happened.
I had the proof that this was happening and that her life was in danger when I got the border. I showed it to the agent but he didn’t care. He said I either had to return to Mexico and wait there or return to Guatemala. I said I didn’t want to do either. He said I had to, and that if I didn’t sign the papers, he would sign them for me and no one would know it wasn’t me. I never did sign any papers but here I am. He signed my name for me.
When I had to decide if I would go back to Mexico or Guatemala I chose Mexico. It’s dangerous for us as Guatemalans here too. But at least here there’s a small chance of opportunity, and that’s how I decided. I told the official I didn’t know what to do when I got back to Mexico. He said, “you can ask your God if he will let you into the U.S.”
Here, we are staying at a shelter. It’s not safe. There is the mafia here. There is a man there who follows my daughter around. It’s scary for her and for me and the shelter doesn’t do anything. I think he is about 35.
We have our court date on March 31. I don’t know how we will survive until then. I don’t know how we will find the money to get to Juarez.
Mom with two young children (Mother speaking)
I had to abandon Guatemala because of a lot of violence at home. I lived through sexual assault and threats. The journey was very difficult. We arrived in the US after a week.
In detention we ate once a day. I thought we were going to be detained two days with immigration and then be able to go with my family members, like people did before. The agent told me that I had two options: fight my case from Mexico or accept deportation by plane. Many who didn’t speak Spanish signed to return to Guatemala. They were confused, they didn’t know if they were signing to fight their cases or to be deported to Guatemala. I am very afraid of returning to Guatemala. Some people said they weren’t afraid of returning, but they didn’t understand what they were being asked. They told us there would be a plane flight the following day. There was a woman with a baby who was detained for 9 days. She signed to be deported because of the desperation of her baby and the poor treatment. Her son didn’t have much clothing and was cold. She was glad to leave that place.
I never imagined I would have to wait in Mexico. I was in Nogales for almost two weeks. I was sad, but I have a lot of faith in God that he is going to help me with my case and help me arrive to the US and not have to go back to Guatemala. I don’t want to stay in Mexico because there is a lot of crime. I don’t understand why they send people to court in Juarez/El Paso, maybe just to make us give up.
We are a family of 5 with our 12-year-old son, our 7-year-old daughter and our baby who is a year and three months. We are a humble family.
In Guatemala we had work and we lived peacefully. We had a bakery. We used to work together and we were good. But afterwards we lived with fear. For 8 years we paid extortion fees to the gangs. We basically worked just to pay them money and it wasn’t enough for us. They always wanted the amount they asked for and they didn’t give extensions. You had to have it ready. After paying it for 8 years, they asked us for 50,000 quetzales and we didn’t have that money.
Dad: we knew the risk of bringing them here, but for their safety we did it. If someone was well off in their country, they wouldn’t need to leave.
It isn’t just that they sent us here. The court date is a long ways off (not until March 25th). We don’t know anyone, we don’t have anything. We feel very sad and disillusioned. We also feel unsafe and closed in here. We don’t have money for the bus to Juarez. Our family sends us a bit from Oregon but they don’t have enough to send us what we need.
Mom: It makes me sad to see my children suffer. It was very cold in detention. You arrive wet from the desert and instead of hot air they put on cold air. They detained us on December 29th and they sent us here on January 2nd. Our message for immigration is that they should be more attentive to the needs of the people. That they give better food to the children. That they ask why someone is coming.
We ask that they allow us to stay inside [the country]. Our family can help us. They are ready to receive us in Oregon. I know we can’t enter other countries, but this is a big country and it has the means to help us. We ask that they give us permission to stay. What we want is a future for our children. That they can study, that they live peacefully, far from crime. The kids have dreams of being a police officer and a doctor.
Son: We ask that they don’t discriminate against us because we are all equal.
Mom: We are all children of the same God. It doesn’t matter if we are short or tall or black or white.
In this blog, I am providing you with a truncated (by me) version of the verdict in federal District Court in Tucson last week reversing the conviction of four No More Deaths volunteers. As you will read, they were convicted earlier in 2019 for placing water and food near Ajo, Arizona for migrants traveling north through the most deadly area of the Sonoran Desert.
I have used ellipses (...) to indicate where material has been omitted. If you want to quote from or refer to the verdict, I suggest you go to the original court document. The underlining is mine to highlight important information.
TRUNCATED BY SUE LEFEBVRE, 2-8-2020
ORDER NO. CR-19-00693-001-TUC-RM (PARTIAL)
Defendants Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick (collectively “Defendants”) appeal from convictions for violations of the regulations governing the Cabeza Prieta National Wildlife Refuge (“the CPNWR” or “the Refuge”). The violations were committed in the course of leaving supplies of food and water in an area of desert wilderness where people frequently die of dehydration and exposure. Defendants, who are volunteers with a charitable organization affiliated with the Unitarian Universalist Church, admit the factual allegations made by the Government. They entered the Refuge without a permit, drove on a restricted-access road, and left food and water for those in need to find. Defendants argue that those actions, taken with the avowed goal of mitigating death and suffering, were sincere exercises of religion and that their prosecution is barred by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA” or “the Act”). The Court finds that Defendants demonstrated that their prosecution for this conduct substantially burdens their exercise of sincerely held religious beliefs, and that the Government failed to demonstrate that prosecuting Defendants is the least restrictive means of furthering any compelling governmental interest.
II. FACTUAL BACKGROUND
On August 13, 2017, Defendants entered the CPNWR, drove down a restricted-access road, and left bottles of water and cans of food at several pre-selected locations along foot trails used by people entering the United States unlawfully. Fish and Wildlife (“FWS”) Officer Michael West encountered Defendants, who admitted that they did not have a permit to be on the CPNWR. Officer West directed Defendants to exit the Refuge, which they did. No citations or notices of violation were issued at that time.
Defendants are volunteers with “No More Deaths/No Más Muertes,” a “faith-based organization” and “ministry of the Unitarian Universalist Church of Tucson.” A founding volunteer of that organization testified that No More Deaths is a “humanitarian aid organization” that was founded in 1999 (actually, 2004—editor SL)“ to provide food and water and medical care in the desert.” At that time, increased immigration enforcement in Texas and California began to “funnel the migration pattern right through the Tucson sector of the border,” leading to large numbers of unauthorized migrants dying while attempting to cross the remote desert wilderness of southern Arizona on foot.
According to the Pima County Medical Examiner, 2,816 sets of “undocumented border crosser remains” were recovered in Arizona between the years 2000 and 2017.* No More Deaths began tracking those deaths and leaving jugs of water in areas where human remains had been recovered.
The month before Defendants entered the CPNWR without a permit, the permit application was amended to specifically prohibit the leaving of “water bottles, water containers, food, food items, food containers, blankets, clothing, footwear, [and] medical supplies” on the CPNWR.
*This figure reflects only the number of recovered sets of human remains. Testimony introduced at trial suggested that remains are recovered for as few as one in ten migrants who die in this unpopulated area.
III. PROCEDURAL BACKGROUND
On December 6, 2017, Defendants were charged by criminal information with entering the CPNWR without a permit in violation of 50 C.F.R. § 26.22(b) and abandoning property in violation of 50 C.F.R. § 27.93. (Doc. 1.) Defendant Hoffman was also charged with driving in a wilderness area in violation of 50 C.F.R. § 35.5. (Id.)
Defendants are volunteers with “No More Deaths/No Más Muertes,” a “faith-based organization” and “ministry of the Unitarian Universalist Church of Tucson.” A founding volunteer of that organization testified that No More Deaths is a “humanitarian aid organization” that was founded in 1999 “to provide food and water and medical care in the desert.” At that time, increased immigration enforcement in Texas and California began to “funnel the migration pattern right through the Tucson sector of the border,” leading to large numbers of unauthorized migrants dying while attempting to cross the remote desert wilderness of southern Arizona on foot. According to the Pima County Medical Examiner, 2,816 sets of “undocumented border crosser remains” were recovered in Arizona between the years 2000 and 2017. No More Deaths began tracking those deaths and leaving jugs of water in areas where human remains had been recovered.
The CPNWR, which is in southwestern Arizona, shares a 56-mile border with Sonora, Mexico. Visitors are required to obtain permits and sign a hold harmless agreement to enter the Refuge. The hold harmless agreement describes the Refuge as “one of the most extreme environments in North America,” and warns that the area “contains no sources of safe drinking water.” The CPNWR contains numerous trails used by migrants, and, according to the Pima County Medical Examiner, 32 sets of human remains were recovered from the CPNWR in 2017 alone. (Tr. Ex. 133.) Those deaths are despite the presence of “rescue beacons” installed and operated by the United States Border Patrol.
RFRA provides “very broad protection for religious liberty” by exempting religious believers from laws that substantially burden the exercise of their religious beliefs. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014). The Government must provide such an exemption unless the application of the law to the believer is the “least restrictive means” of furthering a “compelling government interest. An RFRA claim may be brought as an affirmative defense to criminal charges. United States v. Christie, 825 F.3d 1048, 1065 (9th Cir. 2016).
*The Court is not convinced that the sufficiency-of-evidence standard proposed by the Government is applicable here, as Defendants do not challenge whether the Government established the elements of the regulatory violations for which they were convicted but, instead, challenge Magistrate JudVelasco’s rejection of their RFRA defense. To succeed on their RFRA defense, Defendants bore the initial burden of demonstrating that their prosecution substantially burdened their sincere religious exercise. As Defendants bore that burden, the Court cannot evaluate the “sufficiency” of the Government’s evidence.
To succeed on a RFRA defense, a claimant must first make two showings: (1) governmental action burdens a sincere “exercise of religion” and (2) the burden is “substantial.” A RFRA claim that does not establish these two elements fails. If a claimant does demonstrate a substantial burden on her sincere exercise of religious belief, a court must find a RFRA violation unless the Government demonstrates that “application of the burden to the person” both (1) “furthers a compelling governmental interest” and (2) “is the least restrictive means of furthering that compelling government interest.”
A. Sincere “Exercise of Religion” under RFRA
To prevail on their RFRA defense, Defendants must first demonstrate that they are being prosecuted for actions that constitute a sincere “exercise of religion.” Although Defendants do not claim to be members of mainstream or traditional congregations, they do argue that their volunteer activities with No More Deaths are exercises of sincerely held religious and spiritual beliefs.
The Supreme Court has long recognized that “a determination of what is a ‘religious’ belief or practice” is “a most delicate question[.]” The Court’s analysis cannot “turn upon a judicial perception of the particular belief or practice in question.” Beliefs do not need to be “acceptable, logical, tent, or comprehensible to others” to constitute religious beliefs. “[R]eligious experiences which are as real as life to some may be incomprehensible to others.”
In determining whether a set of beliefs should be protected as “religious,” the Ninth Circuit has analyzed “whether the beliefs professed … are sincerely held and whether they are, in [a claimant’s] own scheme of things, religious.” ‘Religious’ beliefs, then, are those that stem from a person’s ‘moral, ethical, or religious beliefs about what is right and wrong’ and are ‘held with the strength of traditional religious convictions.’”
The Court finds that the proper standard to apply here is whether the beliefs professed are sincerely held and whether they are, in Defendants’ own scheme of things, religious. Defendants here are volunteers with an organization, No More Deaths, which is a “ministry” of the Unitarian Universalist Church of Tucson and a faith-based organization that was founded by religious leaders. The body camera footage of the FWS Officer who encountered the Defendants on the CPNWR shows that the Defendants immediately identified themselves as “from the Church in Tucson.” (The truck Defendants were driving was registered to the Unitarian Universalist Church.
Reverend John Fife, a retired Presbyterian minister and “founding volunteer” of No More Deaths, testified that “the life of faith is not simply a matter of belief or creed,” but is fundamentally “a matter of what you do in relationship to those who are in most need.” He explained that this belief flows, in part, from the New Testament parable that describes Jesus’ teaching at the Last Judgment that, “I was hungry, I was thirsty, I was naked, I was in prison, I was an alien, and as you do it to least of these, my brothers and sisters, you do it to me.” Volunteers therefore exercise their “faith out there in the desert through No More Deaths” by providing “humanitarian aid directly where most of the death [is] occurring in the desert.” The “faith basis” of No More Deaths and “the spirituality and the spiritual principles that have founded [that] organization and formed that community” is made “very clear” in No More Deaths’ volunteer training.
Additionally, the nature of Defendants’ conduct itself suggests sincerity. Defendants were convicted for activities that included hiking food and water into a rugged, unforgiving wilderness during Southern Arizona’s extreme August heat. The temperature at the time of the Defendants’ conduct was over 100 degrees Fahrenheit.6 As one Defendant testified, providing aid in this environment was “incredibly straining on the body” because “at that temperature . . . you’re dehydrated just by being there” and so “your brain is kind of fuzzy” and it is “hard to think clearly.” As another described the heat: “I mean, it’s exhausting. It’s heavy. Like, it feels like . . . a blanket. There’s nowhere to hide from the sun.” As another put it: “[H]iking around in 110 degrees is not what I want to be doing with my time, but I do it because I feel the need to and obligated to be there and do my part.”*
*There was a dispute at trial whether the temperature at the time was 102 degrees or 110 degrees.religious objection to taking an oath of honesty was sincere in his religious beliefs. The Court explained that the claimant’s choice not to testify in his defense, notwithstanding his professed innocence, suggested “the sincerity of true religious conviction.” As in Ward, Defendants’ willingness to suffer for their beliefs likewise suggests such sincerity. The Government has not identified any evidence in the record that would support a conclusion that Defendants are “patently devoid of religious sincerity[.] ”The Court concludes that Defendants’ beliefs are sincerely held.
Consideration of sincerity, which is a question of fact, should include consideration of Defendants’ “credibility and demeanor” while testifying. Magistrate Judge Velasco heard testimony from each Defendant as to her beliefs and did not express any reservations about Defendants’ sincerity. Because the Court concludes that, on this record, it would find clear error even if Judge Velasco had made an adverse credibility finding and found Defendants insincere, the Court need not remand for additional factual findings.
B. Substantial Burden
To claim an exemption under RFRA, Defendants must demonstrate that enforcement of the CPNWR regulations “substantially burden[s]” the exercise of their religious beliefs. A substantial burden exists “when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit” or when a believer is “coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” The substantial burden inquiry must not stray into a judgment as to whether a claimant’s beliefs are reasonable. See e.g., Hobby Lobby, 573 U.S. at 724 (explaining that “whether the religious belief asserted in a RFRA case is reasonable” is a “very different question that the federal courts have no business addressing”); Smith, 494 U.S. at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim”).
The evidence introduced at trial showed that 32 sets of human remains were recovered from the CPNWR during 2017 alone. Defendants are charged with conduct that took place in August, when the chance of death was highest due to the extremely high temperatures. Given Defendants’ professed beliefs, the concentration of human remains on the CPNWR, and the risk of death in that area, it follows that providing aid on the CPNWR was necessary for Defendants to meaningfully exercise their beliefs.
Finally, the Government argues that Defendants’ admitted failure to obtain a permit bars them from bringing a RFRA challenge. However, it is undisputed that the amended permit application explicitly prohibited leaving food and water on the CPNWR. The regulation that Defendants are charged with violating, requires a CPNWR entrant to (1) obtain a permit and (2) follow the permit’s terms and conditions. Defendants could not have exercised their religious beliefs by leaving food and water on the CPNWR without violating the permitting regulation— either by not obtaining a permit or alternatively by not adhering to the permit’s terms and conditions. Because obtaining permits would not have allowed Defendants to lawfully conduct the activities for which they are being prosecuted, Defendants were not required to apply for permits to claim a RFRA exemption. Supp. 2d 1081, 1085 (N.D. Cal. 2008) (“[W]here it would have been futile to apply for a permit, that person need not apply for a permit to bring a RFRA challenge.”
The Court concludes that the prosecution of Defendants for these actions substantially burdens their religious exercise. As Defendants successfully carried this burden, it fell to the Government to demonstrate that prosecution of Defendants was the least restrictive means of achieving a compelling governmental interest.
C. Compelling Interest
The Government argues on appeal that the burden on Defendants’ religious exercise is justified by a “compelling interest” in furthering “the national decision to maintain [the CPNWR] in its pristine nature.” The Government, however, has not established that providing an exemption to Defendants would frustrate that interest. The evidence at trial established that the CPNWR is a former active military bombing range that has unexploded munitions strewn about. The Refuge is currently both a corridor for unlawful entry into the United States which produces significant amounts of garbage and also a site of significant law enforcement activity, which takes its own environmental toll.
In other words, as Magistrate Judge Velasco found, the CPNWR is “littered with unexploded military ordinance, the detritus of illegal entry into the United States, and the on-road and off-road vehicular traffic of the U.S. Border Patrol efforts to apprehend illegal entrants/undocumented immigrants.” Given this context, the Government cannot claim a compelling interest in “maintain[ing]” the CPNWR as “pristine.” The Court agrees the Government has a compelling interest in maintaining the environmental conditions on its public lands. But in the RFRA context, the compelling interest inquiry requires the Government to demonstrate a compelling interest in “the application of the challenged law to the person—the particular claimant whose sincere exercise of religion is being substantially burdened.” See Hobby Lobby, 573 U.S. at 726 (internal quotation marks and citations omitted). Particularly given the conditions on the CPNWR, the Government has failed to articulate any “marginal” compelling interest, beyond its general interests, in enforcing the CPNWR regulations against these “particular” Defendants..
Moreover, the record shows that Defendants’ conduct does not have significant negative effects on the environmental conditions of the CPNWR. Any environmental damage caused by the “abandoning” of food and water is mitigated by Defendants’ practice of bringing garbage bags and picking up as much trash as possible. As one Defendant explained: “[O]ur packs are empty by the time we get there, and we replace that with the garbage that’s around the area, and it’s not always necessarily our garbage either.” Defendants’ testimony on this point is supported by FWS Officer West’s body camera footage, which shows at least one Defendant removing empty, crushed water bottles from her backpack upon returning to the truck.
Nor has the Government shown that Defendant Hoffman’s driving on a pre-existing “administrative” road in order to reach a remote area of the Refuge has a significant negative impact on the CPNWR. It is not alleged that Defendants ever went off-road in a vehicle. In contrast, Border Patrol and other law enforcement officers go off-road into the wilderness on the CPNWR with some regularity. Members of the public are also regularly granted permission to drive on restricted-access roads for research or other purposes. Given these exemptions, the Government cannot claim a compelling interest in uniform prevention of access to these roads. (finding that exemptions in Controlled Substances Act undercut an asserted compelling interest in uniform application of that law).
No more persuasive is the Government’s argument that “permitting an exemption for these four defendants” would “quickly lead” to a flood of religious objections. The Supreme Court has squarely rejected such “slippery slope” concerns, noting that such concerns “could be invoked in response to any RFRA claim for an exception to a generally applicable law.” The slippery-slope argument fails in the RFRA context, where a “case-by-case” application of the statutory test is required to determine whether, in a particular instance, a law of general applicability must give way to an individual’s free exercise of their religion.
The Government has also asserted a compelling governmental interest in “enforcing the border and controlling immigration.” Although Defendants were not charged with any immigration-related offense, the Government nonetheless claims that Defendants’ actions “furthered and encouraged illegal smuggling activity in the CPNWR.” The Government seems to rely on a deterrence theory, reasoning that preventing clean water and food from being placed on the Refuge would increase the risk of death or extreme illness for those seeking to cross unlawfully, which in turn would discourage or deter people from attempting to enter without authorization. In other words, the Government claims a compelling interest in preventing Defendants from interfering with a border enforcement strategy of deterrence by death. This gruesome logic is profoundly disturbing. It is also speculative and unsupported by evidence.
As discussed above, 32 sets of human remains were recovered from the Refuge in 2017 alone, and the Government produced no evidence that these fatalities had any effect in deterring unlawful entry. Nor has the Government produced evidence that increasing the death toll would have such an effect.
The Court concludes that the Government failed to demonstrate that it furthered any compelling interest by prosecuting Defendants.
D. Least Restrictive Means
Even if the Government had established a compelling interest, it did not show that it cannot further that interest while accommodating Defendants’ religious beliefs. “The least-restrictive-means standard is exceptionally demanding.” The Government “must demonstrate that ‘no alternative forms of regulation’ would” suffice to accomplish the Government’s compelling interest. This “focused inquiry” means that the Court may “not ease the government’s burden by rubber stamping vague or generalized arguments about means and ends.”
Defendants have suggested alternative means of maintaining the environmental integrity of the CPNWR while also allowing a religious exemption. For example, the Government “could allow these defendants to leave water and food at certain designated points on the refuge, so long as they maintained their practice of removing all trash they encountered on their hikes, including and especially used water bottles and food cans formerly left by No More Deaths volunteers.” The Government does not explain why such an arrangement would not allow it to achieve its interest in protecting the environmental integrity of the CPNWR. The Government states that Defendants’ “suggested alternatives do not address [harm to the CPNWR] in the slightest” but it fails to provide evidence or explanation of why this is so. The Court concludes that the Government failed to demonstrate that the prosecution of Defendants is the least restrictive means of achieving a compelling governmental interest.
Defendants met their burden of establishing that their activities were exercises of their sincere religious beliefs, and the Government failed to demonstrate that application of the regulations against Defendants is the least restrictive means of accomplishing a compelling interest. Accordingly, the Court finds that application of the regulations against Defendants violates RFRA, and the Court will reverse Defendants’ convictions.
. . . . IT IS ORDERED that Defendants’ convictions are reversed. The Clerk of Court shall randomly reassign this case to a magistrate judge for entry of a judgment of acquittal and vacatur of Defendants’ sentences. Any fines or fees paid by Defendants shall be returned to them, and Defendants’ probation shall be terminated.
Dated this 31st day of January, 2020.
The Honorable Rosemary Marquez
United States District Judge
Laura Ilardo posted this report from the Florence Immigration Project in Keep Phoenix Together on Facebook. Click on the links to learn more. Thanks, Laura, Sue
January 31 at 9:18 PM
The Florence Immigrant & Refugee Rights Project
January 31 at 5:40 PM
Today, the Trump Administration announced an expansion of its cruel and racist Muslim ban to six additional countries. This un-American policy has already separated thousands of families. But unlike the first version, the new rule doesn't just apply to visitors to the U.S. but also to those seeking refugee or asylum status, green cards, and other pathways to immigrate to the U.S.
The expanded #MuslimBan is part of an ongoing attack on communities of color. The list includes Nigeria, Myanmar, Eritrea, Kyrgyzstan, Sudan, and Tanzania.
This is yet another attempt by the administration to decimate the immigration system for nearly everyone - Latinx people, Muslims, women of childbearing age, asylum seekers, refugees, and the working class. These policies defy everything we claim to stand for as a country and are yet another form of family separation. They also fit a pattern of bias and bigotry, with no credible purpose but to do away with longstanding values and turn away working class people and people of color.
The Florence Project encourages everyone opposed to the #MuslimBan to call their Senators and Representatives and demand that Congress pass the No Ban Act to stop this affront to religious freedom and human decency. Learn more here: muslimadvocates.org/muslim-ban