Last week, we discussed the new immigration bill that will make it a felony
to assist an alien to remain in the United States. Religious and
secular humanitarian groups fear potential prosecution as a result of the
changes. Stuart Buck asked:
I dont know immigration law well enough to answer this: Is there any
reason to believe that the law would actually have the feared result? As I
read the bill, it wouldnt even be possible for Church workers to disobey
the law unless they actively assist illegal aliens TO remain in the
United States. I.e., by doing something that affirmatively assists illegal
entry, not by the mere delivery of social services. By analogy, if a
aiding-and-abetting statute prohibited assisting someone to commit a
felony, this would obviously not apply to a soup kitchen that happened go
give food to someone who later happened to commit a felony. Giving people
food amounts to assisting people generally, not assisting any
*particular* action that an individual commits or might have committed. For
what its worth, the bills sponsors emphatically deny that the bill has any
application to social services . . .
I was curious about this too, so I took a look at 8 U.S.C. § 1324, which is
the current statute. Under Section 1324(a)(1)(A)(iii), anyone who
conceals, harbors, or shields [an illegal alien] from detection, commits a
felony punishable by up to five years in prison. I looked at some of the
cases, and I was astonished at the breadth this statute has been given. The
general rule is that merely providing shelter to an alien is enough to
constitute harboring under the statute. United States v. Lopez, 521 F.2d
437, 439 (2d Cir. 1975); see also United States v. Acosta, 531 F.2d 428, 430
(9th Cir. 1976) (rejecting the idea that the statutes requirement of
harboring requires clandestine sheltering, and instead construing harbor
to mean afford shelter to). The logic of these cases is simple: Because
affording shelter to an illegal alien is conduct which by its nature tends
to substantially facilitate the aliens remaining in the United States
illegally, providing shelter to illegal aliens constitutes harboring illegal
aliens under 8 U.S.C. § 1324(a)(1)(A)(iii). United States v. Balderas, 91
Fed. Appx. 354, 355, 2004 WL 605233, at *2 (5th Cir. Mar. 26, 2004).
OLC has an opinion from 1983, Church Sanctuary for Illegal Aliens. 7 U.S.
Op. OLC 168, 1983 WL 160504. It concludes, The housing of illegal aliens
by churches would appear to be a violation of 8 U.S.C. § 1324(a)(3)
[editors note: the statute has since been reorganized, which is why the
numbers are slightly off], which forbids the harboring of illegal aliens.
Although the churches alert the INS that they are offering the aliens
shelter, the most recent case law rejects the notion that harboring must
involve actually hiding the alien or otherwise clandestine activity.
The breadth of the statute was initially tempered by the fact that the
statute required actual knowledge the putative violator had to actually
know the recipient of assistance was an illegal alien for the statute to
apply. But that was changed in 1986 reckless disregard of an aliens
status is now enough. I imagine that most of the Catholic relief houses
operating along the border are consciously aware of a substantial
possibility that they are housing illegal aliens, so I think its clear that
even as the statute exists today they are violating it.
As for the proposed changes with the broad interpretations given the
notion of harboring (which seems to be a far more easily constrained
concept than assisting), I can only assume that the proposed statute would
be even more of a threat to religious and secular groups trying to provide
for immigrant populations.
By the way, Rep. Kings assertion that "no priest, nun, social worker, or
volunteer has ever
been arrested or will be arrested" seems incorrect. In United States v.
Aguilar, 883 F.2d 662 (9th Cir. 1989), for example, the Ninth Circuit
affirmed the conviction of Father Anthony Clark and several other people
from Sacred Heart Church that were involved in the sanctuary movement for
violating 8 U.S.C. § 1324(a)(1)(A)(iii). You can find other examples in
Gregory A. Loken & Lisa R. Babino, Harboring, Sanctuary, and the Crime of
Charity Under Federal Immigration Law, 28 Harv. C.R.-C.L. L. Rev. 119
(1993).
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
