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Could Law Against "Harboring" Immigrants Send Millions of Americans to Jail? Roger Algase

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Update: September 27, 10:00 am:

Immigration issues per se played almost no role at last night's (September 26th) initial presidential debate between Donald Trump and Hillary Clinton.

However, the issue of foreign trade agreements did receive a lot of discussion, and Donald Trump showed the same disturbing trend to scapegoat foreigners or foreign countries for most, if not all, the problems of America, that he often does when discussing immigration issues (as in his August 31 Arizona speech, which was full of blame against legal, not only illegal, immigrants for America's job related and other economic problems).

In last night's debate, for example, Trump repeatedly blamed China and its alleged currency manipulation for American job losses, and at one point, even claimed that every country in the world was taking advantage of the United States economically.

He also blamed some of America's strongest allies, such as Japan and NATO countries, for allegedly not paying their fair share of the expenses for their defense incurred by the United States.

Trump's obsession with blaming foreigners for America's problems, whether relating to the economy, crime or national security, certainly explains why his opponents often call him "xenophobic".

This is also a troubling indication as to how Trump might use laws which are already on the books, such as INA Section 212(f), discussed on my recent post, and INA Section 274(a) discussed in my original comment below, to exclude large classes of immigrants (or all immigrants) from the US; and to make life much more difficult and dangerous, not only for millions of immigrants who are already here, but for American citizens who support them or assist them, including, very possibly, giving them legal advice or representation, as will be discussed in Part 2 of my comments on Section 274(a).

My original post appears below.

For at least the past 20 years, ever since IIRIRA was rammed through a Republican-controlled Congress as a rider to a must pass, veto-proof omnibus appropriations bill that President Bill Clinton had little choice but to sign into law just over a month before that year's presidential election, Republican leadership has been calling for more and more draconian illegal immigration enforcement measures and for reducing legal immigration in one form or another.

In 2005, eleven years ago, the Republican-controlled House passed a bill that, H.R. 4437, that would have imposed even more drastic penalties for immigration violations.

The current Republican standard bearer, Donald Trump, with his calls for mass deportation, a Mexican border Wall, a ban on immigration from some, if not all, Muslim countries and cutbacks in or elimination of legal skilled worker visas and green cards such as H-1B and labor certifications, did not suddenly arise out of nowhere.

During all this time, however, the general assumption among the public has been that only immigrants will be affected by any tightening of the immigration laws. Americans, to be sure might have a harder time in employing immigrants, and many Americans would lose their spouses, children and other close relatives to deportation if immigration enforcement is increased, but few people talk very much about the chance that millions of American could be could be prosecuted and go to jail for violating the immigration laws, if a president takes power who is determined to stamp out any opposition among to draconian immigration enforcement policies.

I refer to INA Section 274(a)(1)(A), which provides in relevant part as follows:

"Any person who-

(iii) knowing or in reckless disregard of the fact that 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 means of transportation,"

(shall according to Section B(ii) of the same paragraph

"be fined under title 18, United States Code, imprisoned not more than 5 years, or both."

At first glance, this statute might appear to be directed only against smugglers, not people who may happen to be living with unauthorized immigrants or engaged on normal, innocent, day-to-day transactions with them.

But think again. In US v. Costello, 666 F. 3rd 1040 (7th Circuit, 2012), the federal government charged a woman with the crime of violating this statute for picking her boy friend up at a bus station, driving him to her home, and continuing to live with him there as they had been doing for several months previously.

The district court convicted her, holding, in effect, that simple "sheltering", i.e. letting her boy friend live together with her, amounted to harboring under the statute.

Judge Posner, writing for a two judge majority of a three judge panel (there was a vigorous dissent by the third judge) adopted a narrower view of the term "harboring" and reversed the conviction.

On reading Judge Posner's decision, which will be discussed in more detail in Part 2 of this series, one can easily get the impression that Judge Posner may have been influenced less by a literal dictionary definition of the word "harboring" and more by what he saw as the possible consequences of upholding the conviction: He wrote as follows:

"This connotation enables one to see that the emergency staff at the hospital may not be 'harboring' an alien when it renders emergency room treatment even if he stays in the emergency room overnight, that giving a lift to an alien with a flat tire may not be harboring...and finally that allowing your boyfriend to live with you may not be harboring, even if you know he shouldn't be in the United States".

In other words, one might paraphrase Judge Posner's opinion to hold that INA Section 274 was meant to take reasonable measures to prevent people from bringing immigrants into the United States illegally, not to introduce fascism, where friends, family members and even casual strangers can go to jail for not turning other friends, family members or other casual strangers over to the authorities for even the most minor immigration violations, or for not acting as agents of the state in ferreting out such violations in order to avoid being charged with "reckless disregard" of someone's lack of legal status in this country.

To be continued in a future post..
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants obtain work visas and green cards for more than 35 years.

Roger's email address is

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Updated 01-08-2017 at 11:47 AM by ImmigrationLawBlogs

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  1. MKolken's Avatar
    Were you aware that under Obama harboring is the second most prosecuted immigration related crime charged?
  2. ImmigrationLawBlogs's Avatar
    Has Obama prosecuted two million Americans under this statute? This is the number that Judge Richard Posner, writing the majority opinion for the 7th Circuit, suggested might be vulnerable to prosecution in his opinion reversing the District Court's conviction and dismissing the charges against the defendant in the Costello case.

    Most of us may think that even mentioning such a huge number of potential defendants under this statute is nothing but wild hyperbole.

    But would Donald Trump look it it that way if he becomes America's new strongman?

    Roger Algase
    Attorney at Law
    Updated 09-26-2016 at 01:22 PM by ImmigrationLawBlogs
  3. MKolken's Avatar
    Do you know what the most heavily prosecuted federal charge is? Illegal reentry. In fact, Obama has made a concerted effort to target immigrants for federal criminal prosecution.
  4. JohnKang's Avatar
    Roger, somehow I can't find US v. Costello by searching in Lexis the citation 66 F. 3rd 1040 or U.S. v. Costello. Is it possible that the case name or citation or both are incorrect in your blog?
  5. JohnKang's Avatar
    Roger, I figured it out. The correct citation is 666 F. 3rd 1040, NOT 66 F. 3rd 1040.
  6. ImmigrationLawBlogs's Avatar
    Thank you very much for drawing the wrong citation to my attention. I have now made the correction.

    Roger Algase
    Attorney at Law
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