Harboring: Overview of the Law 1 Harboring: Overview of the Law The Immigration and Nationality Act (INA) prohibits individuals from concealing, shielding, or harboring unauthorized individuals who come into and remain in the United States. Under the law it is a criminal offense punishable by a fine or imprisonment for any person who: knowing or in reckless disregard of the fact than an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. INA §274(a)(1)(A)(iii); 8 U.S.C. §1324(a)(1)(A)(iii) [hereinafter the “harboring provision” or “Section 1324 (a)”]. The Harboring Prohibition Applies to Everyone The harboring prohibition is not restricted to those individuals who are in the business of smuggling undocumented immigrants into the United States or who employ undocumented immigrants in sweatshop-like conditions. As interpreted by the courts, harboring can apply to any person who knowingly harbors an undocumented immigrant. See, e.g. , United States v. Shum , 496 F.3d 390 (5th Cir. 2007); United States v. Zheng , 306 F.3d 1080, 1085 (11th Cir. 2002), cert . denied , 538 U.S. 925 (2003); United States v. Kim , 193 F.3d 567, 573-74 (2d Cir. 1999); United States v. Rubio-Gonzalez , 674 F.2d 1067, 1073 (5th Cir. 1982); United States v. Cantu , 557 F.2d 1173, 1180 (5th Cir. 1977), cert . denied , 434 U.S. 1063 (1978). What Are the Elements of Harboring? To establish a violation of the harboring provision, the government must prove the following in most jurisdictions: “(1) the alien entered or remained in the United States in violation of the law, (2) the defendant concealed, harbored, or sheltered the alien in the United States, (3) the defendant knew or recklessly disregarded that the alien entered or remained in the United States in violation of the law, and (4) the defendant’s conduct tended to substantially facilitate the alien remaining in the United States illegally.” Shum , 496 F.3d at 391-392 (quoting United States v. De Jesus-Batres , 410 F.3d 154, 160 (5th Cir. 2005), cert . denied , 546 U.S. 1097 (2006) (emphasis added)). The U.S. Court of Appeals for the Seventh Circuit has rejected the fourth element asserting that the phrase “conduct tending substantially to facilitate” is a judicial addition to the statute that is unnecessary for a conviction because the statute requires no specific degree of assistance. United States v. Xiang Hui Ye , 588 F.3d 411, 415-416 (7th Cir. 2009). What Actions Constitute Harboring? Although Congress passed legislation to prohibit and punish the “harboring” of undocumented individuals, it never defined the term. The work of defining what constitutes “harboring” has been left to the courts. As shown below, the federal courts have not settled on one uniform definition, but rather many of the circuit courts have adopted their own definition of “harboring.”
Harboring: Overview of the Law
Aug 04, 2023
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