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Harboring undocumented aliens is still a crime — expect Sessions to prosecute it. By Nolan Rappaport

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© 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 Sessions has called for more harboring prosecutions and is not limiting the reach of the harboring provisions.

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.

Read more at http://thehill.com/opinion/immigrati...ct-sessions-to

Published originally on The Hill.

About the author. 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.







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Comments

  1. ImmigrationLawBlogs's Avatar
    As Sessions draws up his list of hospitals to raid so he can arrest doctors for giving emergency medical treatment to immigrants without checking their immigration status documents first; landlords who rent to immigrants or hotels which give them rooms without doing the same; or bus and car drivers who accept unauthorized immigrants as passengers, all of which could very arguably be considered as violations of what Nolan correctly points out is the extremely broad interpretation which can be given to the term "harboring" in the statute; Sessions might also want to compare notes about how the crime of harboring Jews was handled by the German authorities before 1945.

    https://www.nytimes.com/2016/12/23/w...r-of-jews.html

    This might also give Sessions some pointers on how to deal with attorneys or public interest organizations or immigrant advocacy groups which offer any kind of advice, assistance or support to unauthorized immigrants.

    Sessions might also not want to fail to arrest the US citizen or LPR spouses or other family members who live with unauthorized immigrants without turning them over to ICE for deportation. If that isn't "harboring", under the statute, then what else is?

    Finally, what about Immigration Judges who grant continuances or bonds to unauthorized immigrants in removal proceedings? Isn't that "shielding" immigrants from deportation too, at least temporarily?

    Sessions already has the power to fire such judges. How about locking them up as well?

    These are just a few helpful suggestions to make sure that America's immigration laws are fully and effectively enforced.
    I will have no further comment on this article.

    Except for one other thing - Sessions should also make sure that there is enough prison space (private prisons preferred, of course - Trump's big campaign donors are entitled to some reward, are they not?) to hold all the priests, ministers and rabbis who might be thinking of offering their places of worship as a refuge or sanctuary to any immigrants who lack legal status in the US.

    As for mosques that might be doing the same thing, I will say nothing.

    Roger Algase
    Attorney at Law
    Updated 05-14-2018 at 01:23 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    As Sessions draws up his list of hospitals to raid so he can arrest doctors for giving emergency medical treatment to immigrants without checking their immigration status documents first; landlords who rent to immigrants or hotels which give them rooms without doing the same; or bus and car drivers who accept unauthorized immigrants as passengers, all of which could very arguably be considered as violations of what Nolan correctly points out is the extremely broad interpretation which can be given to the term "harboring" in the statute; Sessions might also want to compare notes about how the crime of harboring Jews was handled by the German authorities before 1945.

    https://www.nytimes.com/2016/12/23/w...r-of-jews.html

    This might also give Sessions some pointers on how to deal with attorneys or public interest organizations or immigrant advocacy groups which offer any kind of advice, assistance or support to unauthorized immigrants.

    Sessions might also not want to fail to arrest the US citizen or LPR spouses or other family members who live with unauthorized immigrants without turning them over to ICE for deportation. If that isn't "harboring", under the statute, then what else is?

    Finally, what about Immigration Judges who grant continuances or bonds to unauthorized immigrants in removal proceedings? Isn't that "shielding" immigrants from deportation too, at least temporarily?

    Sessions already has the power to fire such judges. How about locking them up as well?

    These are just a few helpful suggestions to make sure that America's immigration laws are fully and effectively enforced.
    I will have no further comment on this article.

    Except for one other thing - Sessions should also make sure that there is enough prison space (private prisons preferred, of course - Trump's big campaign donors are entitled to some reward, are they not?) to hold all the priests, ministers and rabbis who might be thinking of offering their places of worship as a refuge or sanctuary to any immigrants who lack legal status in the US.

    As for mosques that might be doing the same thing, I will say nothing.

    Roger Algase
    Attorney at Law
    Harboring only applies to conduct that assists undocumented aliens to stay here illegally. But I think Roger is right about Sessions prosecuting citizens and LPRs for harboring family members. That's why I conclude with the observation that the price for such prosecutions might be too high.

    I don't think Sessions will need more prison space. If he conducts a large scale, nationwide program to prosecute people who are violating the harboring laws, the sentences will be so outrageously severe that few people will be willing to take a chance on helping someone they know is here illegally. Some people are going to receive life sentences and others will be executed.

    That's the way most laws work. The best example is tax law.I suspect that most people pay their taxes and avoid obvious cheating out of fear that IRS will come after them, and there is good reason to fear IRS.
    They don't impose life sentences or execute anyone, but they can seize all of a person's assets and severely restrict what he can do with his income until his debt is paid.

    It's really very simple. Effective immigration enforcement isn't possible with the current backlog. As I point out in my article, when Sessions realizes this, he will turn to ways to encourage aliens to leave on their own volition, i.e., self-deportation. And harboring prosecutions won't be his only option.

    It's coming.

    Nolan Rappaport
    Updated 05-14-2018 at 03:06 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    As shown by the federal circuit court decisions mentioned in one of the legal discussions which Nolan cites, the term "harboring" is so broad that it can mean almost any kind of contact between a US citizen or LPR and an immigrant who lacks legal status in this country. If the purpose of relying on this law is to make life uncomfortable for unauthorized immigrants by creating a climate of fear and terror among Americans who have any kind of connection with someone who may appear to be foreign born, the harboring statute would be the way to do this.

    That is if Americans are willing to live in an Orwellian (or North Korean style) totalitarian society.

    But the very broadness of the harboring statute could also render it completely useless as an immigration enforcement tool - based on a finding that the statute is unconstitutionally vague, since "harboring" can mean almost anything under the sun.

    Roger Algase
    Attorney at Law


    Again, Roger, there is a Mens Rea. Harboring law only applies to people who knowingly or in reckless disregard help undocumented aliens to remain here unlawfully.

    The harboring provision, however, could be subject to being invalidated as unconstitutionally vague. That's why I pointed out that it can apply to an extreme range of actions.

    I'm not an expert on constitutional law, so I don't know how likely that is. I think, however, that it will not happen until there are prosecutions that illustrate the problem, which may not occur.

    Sessions has advised the prosecutions to limit themselves to cases involving at least three aliens, and the prosecutors aren't likely to waste their time on problematic cases when so many easy cases are out there. I will be very surprised if they bring criminal proceedings for a capital federal felony offense against people whose conduct requires a stretch to support the harboring claim.

    It's easy to speculate about extreme abuses, but if the speculations aren't based on clear, objective facts, they are a waste of time.

    I won't pay attention to Roger's concerns until he can point to a case in which someone was sentenced to prison for something as innocuous as giving a postage stamp to an undocumented alien.

    The case I used as an example in my article involved an organization that was advertising assistance in crossing the Arizona dessert without being caught by the border patrol on an internet website.

    The guy who was prosecuted was a volunteer for that organization. He met three illegal crossers at a barn that was mentioned in the advertisement and provided them with food and lodging until they could recuperate enough to continue their illegal journey into the US. I wasn't able to include all of this in my article. 800 word limit on how long my articles can be.

    Hard to argue that he didn't know he was assisting illegal crossings.

    Nolan Rappaport
    Updated 05-14-2018 at 03:39 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    That is without question a clear case. However Nolan also cites an ACLU memo listing a number of hypothetical situations which conceivably could be prosecuted under this very broad statute even though mens rea would be far less clear than in Nolan's last example.

    Roger Algase
    Attorney at Law
    Updated 05-14-2018 at 03:50 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    That is without question a clear case. However Nolan also cites an ACLU memo listing a number of hypothetical situations which conceivably could be prosecuted even though mens rea is far less clear.

    Roger Algase
    Attorney at Law
    But there is no reason to expect the prosecutors to take weak cases. Federal prosecutors aren't stupid people. When there are exponentially more good cases than they will ever be able to prosecute, it is extremely unlikely that they will take weak ones that would put them in jeopardy of an unnecessary constitutional challenge.

    Nolan Rappaport
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