Harboring undocumented aliens is still a crime — expect Sessions to prosecute it

Harboring undocumented aliens is still a crime — expect Sessions to prosecute it
© Greg Nash

I raised the possibility a year ago that Chicago Mayor Rahm Emanuel will face criminal charges for harboring undocumented aliens if he goes much further with his sanctuary policies.

Punishment for harboring ranges from a fine and/or up to a year in prison to life in prison or a death sentence.

It hasn’t happened…yet. But Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsData confirm that marijuana decriminalization is long overdue The FIRST STEP Act sets up a dangerous future The Sessions DOJ is working to end the great asylum hustle MORE has called for more harboring prosecutions and is not limiting the reach of the harboring provisions.

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The Border Patrol arrested a member of the No More Deaths humanitarian group in the Arizona desert a few months ago and charged him with harboring for giving aliens who had made an illegal crossing food, water, and a place to sleep for three days.  

Harboring prosecutions are still uncommon, but I expect this to change when Sessions realizes that the immigration court backlog crisis is making it impossible for him to enforce the immigration laws effectively.

He will have to find ways to make America a less desirable place for undocumented aliens to live. In other words, he will have to encourage “self-deportation.”

Harboring prosecutions can serve this purpose by making individuals, landlords, employers, humanitarian organizations, etc., afraid to become involved with undocumented aliens. Even church congregations would be vulnerable.

The immigration court backlog.

The immigration court backlog has grown every year since 2006. It has gotten so bad that aliens can’t be moved through removal proceedings in an acceptable amount of time, and because it isn’t feasible to detain them while they are waiting for their hearings, many are absconding.

As of March, 2018, the backlog was 692,298 cases and the average wait for a deportation hearing was 718 days.

Sessions is trying to deal with the backlog, but he hasn't found an effective way to do it.

Making America a less desirable place for undocumented aliens.

The Immigration Reform and Control Act of 1986 included employer sanction provisions to make it difficult for undocumented aliens to get jobs here, i.e., to eliminate the “job magnet.”

This might have worked if the employer sanction provisions had been implemented effectively, but that hasn't happened, and it has been 30 years since the sanctions were established.

Prakash Khatri and I have suggested focusing instead on the “exploitation magnet,” i.e., the fact that it is so easy to exploit undocumented foreign workers makes them attractive to unscrupulous employers.

The Labor Department can address this problem purely as a labor issue with its authority to enforce federal labor laws that were enacted to curb such abuses.

Will harboring prosecutions be more successful than employer sanctions were?

Maybe not, but Sessions has to try something and harboring prosecutions might help.

To convict someone of harboring, the government must establish that the defendant concealed, harbored, or shielded an undocumented alien from detection. A conviction can result from committing any one of the three acts.

The harboring provisions provide the following penalties for each alien in respect to whom a violation occurs:

  1. If the offense did not involve commercial advantage or financial gain, a fine or imprisonment for up to 5 years, or both;
  2. If it was done for commercial advantage or financial gain, a fine or imprisonment for up to 10 years, or both;
  3. In the case of a violation during and in relation to which the offender causes serious bodily injury, or places in jeopardy the life of any person, a fine or imprisonment for up to 20 years, or both; and
  4. In the case of a violation resulting in the death of any person, a death sentence or imprisoned for any term of years or for life, a fine, or both.

The statute does not define “conceal,” “harbor,” or “shield from detection.” The federal courts have had to define these terms.

Conceal” generally has been taken to mean hiding or otherwise preventing the discovery of an undocumented alien.

Courts have interpreted “shielding” more expansively. Even the making of false statements or falsifying documents may constitute “shielding.”

According to the ACLU, “harboring” is defined differently in the various federal jurisdictions across the country.

The most frequent characteristic the courts have used to describe “harboring” is that it facilitates an immigrant’s remaining in the United States illegally, which encompasses an extremely wide range of activities.

This is certain to result in inconsistent verdicts. People are going to be incarcerated for conduct that wouldn’t have been considered a crime if it had been committed in a different judicial district.

While a large-scale, nationwide campaign of harboring prosecutions might make it harder for undocumented aliens to live in the United States, the cost will be too high if it fills our prisons with American citizens and Lawful Permanent Residents who were just trying to be good Samaritans.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.