NACDL

The Department of Homeland Security, through its Immigration and Customs Enforcement division (“ICE”), has begun aggressively pursuing employers suspected of hiring and harboring illegal aliens. ICE recently proclaimed that it has “fundamentally reformed immigration enforcement” and that its reforms specifically target “employers who knowingly break the law.”¹ ICE’s press releases regularly trumpet the indictment and sentencing of employers convicted of violating immigration laws. For example, ICE recently announced that the owner of a Virginia salon was sentenced to 30 months in federal prison for conspiring to harbor illegal aliens;² that three Arizona restaurant chain executives were indicted for harboring and hiring illegal aliens;³ and that a Miami subcontractor was sentenced to 21 months in federal prison for hiring and harboring illegal aliens.⁴ The statistics support ICE’s claim of increased criminal enforcement against employers. Between 2008 and 2010, the number of employers arrested for worksite-related immigration violations rose by 45 percent.⁵ Simply put, ICE has put the heat on employers.

It has thus become more important than ever for criminal defense counsel to be aware of, and to assert, several key defenses and arguments that may be available to employers facing immigration-related charges. In particular, as described in much greater detail below, defense counsel should (1) mount a vigorous challenge to ICE’s all-too-frequent deportation of exculpatory witnesses, and (2) seek the strictest possible interpretation of the alien harboring statute.

I. Move for Dismissal When The Government Deports Exculpatory Witnesses

Federal prosecution of an employer for immigration violations often begins with an ICE raid on the employer’s workplace. During these raids, ICE agents detain and question suspected illegal immigrants working on the premises. The agents inquire about each employee’s immigration status, about the employer’s knowledge of that status, and about the employer’s role, if any, in bringing the employee to the United States and supporting the employee outside of the workplace. The frightened employees often give contradictory statements. Some report that the employer attempted to verify their eligibility to work in the United States and admit to using false documentation to trick the employer into believing that they are in the country lawfully. Others claim that the employer well knew that they were in the United States illegally and that the employer nonetheless hired, housed, and supported them. And at the end of these interviews, ICE often deports all of the employees it interviewed, including those who gave exculpatory statements that would tend to support a defense that the employer was unaware that the employees were in the country illegally.⁶ 

ICE agents then report the inculpatory employee statements to a grand jury, and the grand jury later returns an indictment against the employer for employing and/or harboring illegal aliens. By that time, the witnesses with exculpatory information — the ones who would support the defense’s claim that the employer made a good faith effort to insure compliance with the immigration laws — are long gone and far beyond the reach of American legal process.

Supreme Court Precedent Supports Dismissal When ICE Deports Exculpatory Witnesses

When ICE deports alien witnesses who have exculpatory information, counsel should seek dismissal based upon the U.S. Supreme Court’s decision in United States v. Valenzuela-Bernal.⁷ The defendant in Valenzuela-Bernal was charged with knowingly transporting illegal aliens within the United States. At the time authorities arrested the defendant, they also arrested and interviewed the aliens whom defendant was transporting. A federal prosecutor “concluded that [defendant’s] passengers possessed no evidence material to the prosecution or defense,” and the government deported the passengers to Mexico.⁸ 

The Supreme Court held that the deportation of the passengers under these circumstances did not violate the defendant’s rights under the Compulsory Process Clause or the Due Process Clause. The Court explained that the government has a legitimate interest in “the prompt deportation of alien witnesses who are determined by the government to possess no material evidence relevant to a criminal trial.”⁹ This governmental interest “justifies the prompt deportation of illegal-alien witnesses upon the Executive’s good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution.”¹⁰ 

The Court stressed, however, that the government may not deport alien witnesses who do have evidence favorable to a criminal defendant. In the Court’s words, the deportation of alien witnesses violates the Compulsory Process Clause and the Due Process Clause where the alien’s testimony “would be both material and favorable to the defense.”¹¹ The Court held that “sanctions may be imposed on the government for deporting witnesses” where the defendant “makes a plausible showing” that “the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.”¹² A defendant may make this showing by relying on the ICE agents’ reports containing the deported witnesses’ statements; by presenting testimony from other individuals (such as American employees) who may have been present during interactions between the defendant and the deported witnesses; and, if essential, through his own testimony describing his interactions with the deported witnesses. Where the defendant shows that the government deported witnesses with important exculpatory information, “[s]anctions will be warranted” as long as “there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact.”¹³ 

When ICE deports an alien who claims that he misled his employer into believing that he was eligible to work in the United States (by, for instance, presenting the employer with fake immigration paperwork), the appropriate “sanction” under Valenzuela-Bernal is dismissal of any harboring and/or illegal hiring charges against the employer. Dismissal is warranted because, as several lower federal courts have held, an alien’s statement that he tricked his employer is both material and favorable to the employer’s defense.¹⁴ Indeed, such a statement negates one of the essential elements of a harboring and/or illegal hiring charge: that the employer knew, or recklessly disregarded, that the alien was unlawfully in this country.¹⁵ Moreover, such testimony from the alien is likely to have a strong impact on the jury because the communications between the employer and the alien concerning the alien’s immigration status lie at “the heart of the alleged offense.”¹⁶ And the jury would likely find the alien’s testimony credible because, as a former employee of the employer-defendant, the employee has “no bias in favor of the government or the defendant[].”¹⁷ Simply put, as one federal court has emphasized, “No other witnesses could provide an unbiased, equally effective substitute for [the deported employee’s] exculpatory knowledge of what went on at” the employer’s worksite.¹⁸ 

Several federal courts have followed Valenzuela-Bernal and have dismissed indictments where the government deported alien witnesses who, prior to their deportation, told government agents that their employers did not know their true immigration status. For instance, in United States v. Lin,¹⁹ the federal court dismissed an indictment charging restaurant owners with numerous immigration offenses. The case began when agents from the Immigration and Nationalization Service (the predecessor of ICE) conducted raids at the defendants’ restaurants. At the time of the raid, agents arrested and interviewed restaurant employees whom the agents suspected of being illegal aliens. During the interviews, several employees made statements favorable to the defendants. For instance, they told agents “that the defendants had no knowledge or otherwise did not know that their workers were illegal aliens” and that “the defendants had required them [the employees] to provide documentation and that the witnesses had purchased fraudulent documents elsewhere.”²⁰ The government deported these employees and/or offered them “voluntary departure” (which the court called the “equivalent” of deportation).²¹ Other employees were detained as material witnesses. The court granted defendants’ motion to dismiss because the government deported witnesses who “had information relating directly to the defendants’ knowledge of whether their workers were illegal.”²² 

Likewise, the federal court in United States v. Nebraska Beef²³ dismissed an indictment against an employer after the government deported employees with exculpatory information. The defendants in Nebraska Beef were charged with conspiring “to commit immigration violations during the hiring of aliens who work[ed] in their packing house.”²⁴ The case began when the INS raided a meat processing facility and arrested and interviewed more than 100 alien-employees. During the interviews, several of the employees made statements that were favorable to the defendants. For instance, many of them told INS agents “that they [the aliens] procured their documents from sources wholly unrelated to any of the defendants,” and some employees told the agents that “none of the defendants helped them [the employees] fill out the bogus forms.”²⁵ The INS agents admitted that “this evidence was clearly exculpatory, and it was perfectly apparent at the time of the interviews.”²⁶ Nonetheless, the INS agents arranged for the employees to be deported. The court held that the government’s knowing deportation of these alien witnesses with material exculpatory information required dismissal of the indictment.²⁷ 

Finally, the court in United States v. Hernandez²⁸ dismissed an indictment after the government deported witnesses with exculpatory information. The defendant in Hernandez and his companion were arrested on suspicion of entering the country illegally. At the time of the arrest, there was an altercation between the defendant and a border patrol agent, and the agent suffered a broken nose. In post-arrest interviews, both the defendant and his companion told government agents that the defendant acted in self-defense and in defense of the companion, and both claimed that the border patrol agent was the aggressor. Not long thereafter, the companion pleaded guilty to a minor offense, was sentenced to time served, and was deported. The government deported the companion without notice to the defendant and without affording the defendant an opportunity to interview her and preserve her testimony. The court dismissed the indictment after concluding that trying the defendant under these circumstances would violate his rights under the Compulsory Process Clause and Due Process Clause:

Under these facts, where there is no doubt that the Government knows for certain that [the deported witness’s] testimony could have conceivably benefitted Defendant, the Government was obligated to notify defense counsel of [the companion’s] upcoming plea and deportation to afford defense counsel an opportunity to interview [the companion] prior to her removal from the United States. The Government acted in a manner that interfered with Defendant’s ability to offer exculpatory evidence by [the companion], and it simply cannot claim it had no duty to give proper notice to defense counsel when it was effectively putting [the companion] beyond the reach of the subpoena power of the Southern District. Consequently, the Government’s lack of notice to defense counsel clearly violated Defendant’s compulsory process and due process rights.²⁹ 

How to Handle Negative Court Of Appeals Precedent

The government will counter a motion to dismiss under Valenzuela-Bernal by citing the federal appellate decisions that narrow the scope of the decision. For instance, several courts of appeals have ruled that dismissal is appropriate under Valenzuela-Bernal only where the government deports witnesses in bad faith. Defense counsel should not be deterred by these decisions. They are open to serious challenge and are serious candidates for reversal by the Supreme Court. Moreover, they can often be neutralized.

The Sixth Circuit’s decision in United States v. Damra³⁰ is typical of the appellate decisions construing Valenzuela-Bernal to require dismissal only when the government acts in bad faith. The Sixth Circuit held that Valenzuela-Bernal must be read in light of the Supreme Court’s more recent decision in Youngblood v. Arizona,³¹ in which the Court held that a defendant seeking dismissal of an indictment based upon the destruction of potentially exculpatory evidence must show that the government acted in bad faith. According to the Sixth Circuit, when Valenzuela-Bernal is read in light of Youngblood, it allows dismissal of an indictment based upon the deportation of witnesses only when the defendant shows that the government completed the deportation in bad faith.

When faced with Damra (and decisions like it), counsel should argue that the Sixth Circuit (and the other courts of appeals that have similarly limited Valenzuela-Bernal in light of Youngblood) simply ignored the clear limitation on the holding in Youngblood. By Youngblood’s express terms, it requires a showing of bad faith only where the police destroy or displace “potentially useful” evidence.³² The Supreme Court and the courts of appeals (including the Sixth Circuit) have repeatedly held that Youngblood does not require a showing of bad faith where the government eliminates or displaces “material exculpatory” — as opposed to “potentially useful” — evidence.³³ Thus, Youngblood did not change the rule from Valenzuela-Bernal that — wholly apart from whether the government acted in bad faith — the sanction of dismissal is warranted when the government deports alien witnesses who possess material exculpatory information that could influence the trier of fact. Counsel should argue that to the extent decisions like Damra require a showing of bad faith, they are wrongly decided and are good candidates for reversal.³⁴ 

The good news for defendants is that they can still win a motion to dismiss even if the court adopts a narrow reading of Valenzuela-Bernal and requires a showing of bad faith. There are at least three ways in which a defendant may establish that the government acted in bad faith in deporting an alien-witness: by showing (1) that the government deported the alien-witness even though the government had“knowledge” that the witnesses possessed exculpatory information;35 (2) that the government departed from its normal deportation procedures;³⁶ or (3) that the government deported the witnesses to gain a tactical advantage over the defendants.³⁷ 

The first and third ways to show bad faith are self-explanatory; the second — by showing a departure from policy — may be especially fruitful. There is authority for the proposition that the government has a policy not to deport witnesses who possess material exculpatory information, and thus that any knowing deportation of such witnesses is a departure from policy amounting to bad faith.³⁸ Moreover, the United States Attorney’s Criminal Resource Manual provides that witnesses who “possess evidence favorable to the defendant” should not be deported.³⁹ In addition, Congress has created several mechanisms to secure the attendance at trial of alien witnesses who possess exculpatory information,⁴⁰ and that is further evidence that the government’s policy is not to deport such witnesses. No matter which theory of bad faith is being pursued, defense counsel should seek an evidentiary hearing in order to develop the factual basis for a showing of bad faith.⁴¹ 

II. Push for a Narrow Construction of the ‘Harboring’ Statute

The charging decision follows an ICE raid. In some cases, the government charges the employer with knowingly “employing” illegal aliens in violation of 8 U.S.C. § 1324a, a misdemeanor.⁴² In other cases, however, the government may charge the employer with “conceal[ing], harbor[ing], or shield[ing]” illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). That offense is a felony carrying a maximum penalty of 10 years in prison and a sizable fine.⁴³ 

The factual line between those two offenses is often a fine one. If the illegal alien lives on the employer’s property — in employee lodging on a farm, for example — is the employer necessarily guilty of “harboring”? Or does the government have to show something more to prove that the employer’s conduct progressed from mere employment to harboring, such as the fact that the employer took some affirmative steps to shield the illegal alien from detection from the authorities?

Given the stakes, it is critical for employers and their defense counsel to understand the varying ways the federal courts of appeals have interpreted the harboring statute, and to push for the narrowest possible interpretation of the statute.

An Overview of the Harboring Statute

The harboring statute, found at 8 U.S.C. § 1324, is titled “Bringing in and harboring certain aliens.” As the title suggests, § 1324 encompasses both smuggling illegal aliens into the United States and harboring them after they arrive. The harboring crime is set forth in § 1324(a)(1)(A)(iii), which provides that any person or employer who:

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 any means of transportation;

… shall be punished as provided in subparagraph (B).⁴⁴ 

Subparagraph (B) then provides that an employer convicted under the harboring statute is subject to a fine and up to five years’ imprisonment, or a fine and 10 years’ imprisonment if the “offense was done for the purpose of commercial advantage or private financial gain.”⁴⁵ 

The statute does not define “conceals, harbors, or shields from detection,” however, and the Supreme Court has not provided a precise definition.⁴⁶ Amidst that uncertainty, the federal appellate courts have interpreted the harboring statute widely and inconsistently.

Circuit Split Over Meaning of The Harboring Statute

There is, in fact, a pronounced circuit split on the meaning of “conceals, harbors, or shields” under the harboring statute.⁴⁷ The Sixth Circuit reads the statute most restrictively, requiring the government to show “clandestine sheltering” by the employer to support a harboring charge.⁴⁸ The Second, Third, Fifth, and Eighth Circuits take various intermediate approaches requiring the government to prove some conduct substantially facilitating the alien’s unlawful presence.⁴⁹ And the Seventh and Ninth Circuits reject those readings altogether, instead reading the statute broadly to cover any conduct — substantial or otherwise — that conceals, harbors, or shields an illegal alien.⁵⁰ 

A. Narrowest Interpretation of the Harboring Statute

The Sixth Circuit has read the harboring statute the most restrictively of all the circuits. In the 1928 case Susnjar v. United States, the court held that “[w]hen taken in connection with the purposes of the act, we conceive the natural meaning of the word ‘harbor’ to be to clandestinely shelter, succor, and protect improperly admitted aliens, and that the word ‘conceal’ should be taken in the simple sense of shielding from observation and preventing discovery of such alien persons.”⁵¹ 

Susnjar is an old opinion and was based on a predecessor harboring statute, but it is still good law in the Sixth Circuit. Indeed, several district courts within the circuit have recently followed Susnjar’s “clandestine sheltering” test in interpreting the current harboring statute.⁵² Thus, in the Sixth Circuit, the government has to prove more than simple housing or providing shelter for illegal aliens; the government also has to prove that the employer housed or sheltered the alien “with the intent to assist the alien’s attempt to evade or avoid detection by law enforcement.”⁵³ 

B. Intermediate Interpretation of The Harboring Statute

Other circuits have followed Susnjar’s restrictive approach to the harboring statute, but without requiring “clandestine sheltering.”⁵⁴ The Second and Third Circuits have held that, to prove harboring, the government must show that (1) the employer’s conduct tended to substantially facilitate an alien’s remaining in the United States illegally; and (2) the conduct tended to prevent government authorities from detecting the alien’s unlawful presence.⁵⁵ 

In United States v. Lopez, the Second Circuit considered a harboring charge against a defendant who rented homes to 27 illegal aliens. The court declined to adopt the Sixth Circuit’s “clandestine sheltering” test,⁵⁶ noting that the Sixth Circuit in the Susnjar case was interpreting a predecessor statute and that the Supreme Court had chosen to leave the meaning of “harbor” unresolved in an intervening case, rather than adopt Susnjar’s reading.⁵⁷ The Lopez court was instead “persuaded by the language and background of the revision of the statute that the term was intended to encompass conduct tending substantially to facilitate an alien’s remaining in the United States illegally, provided, of course, the person charged has knowledge of the alien’s unlawful status.”⁵⁸ The court held that the defendant’s conduct met that standard — rejecting the defendant’s argument that the statute only extended to smuggling illegal aliens — because the defendant had “provid[ed] lodging to large numbers of aliens with knowledge of their illegal entry”; “had helped some to obtain employment”; and, in exchange for “substantial sums of money” from third parties, “had arranged sham marriages” for the aliens.⁵⁹ 

The Second Circuit in a later case added an additional element to its harboring standard. The court in United States v. Kim held that “harboring, within the meaning of § 1324, encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”⁶⁰ 

The Third Circuit followed suit in United States v. Ozcelik.⁶¹ The court held “that the terms ‘shielding,’ ‘harboring,’ and ‘concealing’ under § 1324 encompass conduct tending to substantially facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting the alien’s unlawful presence.”⁶² The court noted that “[c]onvictions under § 1324 generally involve defendants who provide illegal aliens with affirmative assistance, such as shelter, transportation, direction about how to obtain false documentation, or warnings about impending investigations.”⁶³ The court vacated the defendant’s harboring conviction because the evidence showed only that the defendant had “giv[en] an alien advice to lay low and to stay away from the address on file with the INS, obvious information that any fugitive would know.”⁶⁴ 

Thus, in the Second and Third Circuits, merely providing shelter to an illegal alien, for example, would not be considered “concealing, harboring, or shielding” within the meaning of the harboring statute. The government must also show some affirmative conduct tending to substantially facilitate the alien’s unlawful presence and tending to prevent government authorities from detecting the alien’s unlawful presence.

C. Another Intermediate Interpretation of the Harboring Statute

The Fifth Circuit has followed the Second Circuit’s original standard in Lopez. In United States v. Cantu, the court “agree[d] with the conclusion in Lopez that Section 1324 … [prohibits] activity tending substantially to facilitate an alien’s remaining in the United States illegally.”⁶⁵ The Fifth Circuit, though, has not adopted the Second Circuit’s additional element, set forth supra, of preventing government authorities from detecting the alien’s unlawful presence.

The Eighth Circuit has followed this same course. In United States v. Tipton, the court (quoting a Fifth Circuit opinion) held that “[h]arboring means any conduct that substantially facilitates an alien’s remaining in the United States illegally.”⁶⁶ The court in that case upheld a conviction against a defendant who harbored aliens “by granting them employment, by providing the aliens a place to live, daily transportation, and money to purchase necessities, and by maintaining counterfeit immigration papers for each alien.”⁶⁷ 

Thus, in the Fifth and Eighth Circuits, the government must show, as in the Second and Third Circuits, that the defendant employer’s conduct tended to substantially facilitate the alien’s unlawful presence in the United States. But, unlike in the Second and Third Circuits, the government need not show that the employer’s conduct tended to prevent government authorities from detecting the alien’s unlawful presence.

D. Broadest Interpretation of the Harboring Statute

The Seventh and Ninth Circuits have outright rejected the other circuits’ “substantially facilitating” harboring tests. In United States v. Ye, the Seventh Circuit, expressly noting that it was creating a circuit split, held that the “‘tends substantially to facilitate’ overlay that several circuits have endorsed” was “a judicial addition to the statute” that “should not be adopted.”⁶⁸ The court noted that the overlay had originated in the Second Circuit’s Lopez opinion merely to make the point “that the proscriptive reach of ‘harbor’ is not limited to conduct related to the entry of aliens into the country.”⁶⁹ From there, the precedent snowballed, with other courts “explicitly stating or implicitly suggesting that [that] language is a separate element necessary for conviction under the statute.”⁷⁰ 

The Seventh Circuit rejected that snowballing. The court held that “§ 1324(a)(1)(A)(iii) criminalizes all conduct that fits the definition of ‘shield from detection,’ not merely conduct that ‘tends substantially to facilitate’ an alien’s evasion of discovery.”⁷¹ “Whether [the] conduct ‘tends substantially’ to assist an alien is irrelevant, for the statute requires no specific quantum or degree of assistance.”⁷² Holding otherwise, the court held, “invades the province of Congress by de-criminalizing less forms of conduct — i.e., actions that only ‘tend slightly or moderately’ to help an alien.”⁷³ The court took special aim at the Third Circuit’s Ozcelik opinion, stating that “Ozcelik demonstrates how what was originally an obscure, benign nonstatutory phrase in one court’s opinion (Lopez) can be transmuted into an offense element that raises the threshold for a conviction under § 1324(a)(1)(A)(iii).”⁷⁴ 

In milder terms, the Ninth Circuit has sided with the Seventh. In United States v. Acosta de Evans, the court expressly rejected the Sixth Circuit’s “clandestine sheltering” test, and held that a defendant could be guilty of harboring simply by providing shelter to an illegal alien. The court reasoned that “[s]tandard definitions of ‘harbor’ include both concealment and simple sheltering, although the latter appears to be the primary meaning.” The court concluded that the “purpose of [§ 1324] is to keep unauthorized aliens from entering or remaining in the country … [and w]e believe that this purpose is best effectuated by construing ‘harbor’ to mean ‘afford shelter to’ and so hold.”⁷⁵ The Ninth Circuit later affirmed that definition, holding that “the word ‘harbor’ means ‘to afford shelter to’ and does not require an intent to avoid detection.”⁷⁶ 

Thus, in the Seventh and Ninth Circuits — in contrast to all other circuits that have weighed in on the issue — the government does not have to show that the defendant employer’s conduct “substantially facilitated” an alien’s unlawful presence in the United States, and does not have to show that the employer’s conduct was intended to prevent detection by government authorities.

Importance of Pushing for the Narrowest Interpretation of the Harboring Statute

Given the pronounced circuit split in interpreting the harboring statute — a split that may one day be resolved by the Supreme Court — it is important for criminal defense counsel faced with harboring charges to push for a narrow reading of the statute. At a minimum, seeking a strict interpretation of the statute will preserve the issue for Supreme Court review, and/or preserve the issue in case the Supreme Court adopts a narrow reading of the statute while counsel’s case is pending in a lower court. Specifically, counsel should argue, invoking the Sixth Circuit’s interpretation of the harboring statute, that the statute requires “clandestine sheltering” to support a harboring charge.⁷⁷ Counsel should also argue in the alternative, invoking the Second and Third Circuits’ interpretations, that the statute requires both that (1) the employer’s conduct tended to substantially facilitate an alien’s remaining in the United States illegally; and (2) the conduct tended to prevent government authorities from detecting the alien’s unlawful presence. And counsel should be aware of, and argue against, conflicting case law from the Seventh and Ninth Circuits. Asserting those arguments will ensure that the client’s interests are protected, no matter which of the various interpretations of the harboring statute the Supreme Court may ultimately adopt.

Authors' Update

In January 2012, the Seventh Circuit issued a noteworthy opinion highlighting and deepening the circuit split on the meaning of “harboring” under the statute. In United States v. Costello, 666 F.3d 1040, 2012 WL 266864 (7th Cir. Jan. 31, 2012), the Seventh Circuit considered whether a woman was guilty of harboring when she did nothing more than permit her illegal-alien boyfriend to live in her home. Writing for the court, Judge Posner rejected the government’s argument that harboring “just means to house a person,” and cautioned against using in isolation dictionary definitions that strip the statutory terms of their meaning and context. The court reasoned that “‘harboring,’ as the word is actually used, has a connotation – which ‘sheltering,’ and a fortiori ‘giving a person a place to stay’ – does not, of deliberately safeguarding members of a specified group from the authorities, whether through concealment, movement to a safe location, or physical protection.” The court in Costello cited with approval the Sixth Circuit’s interpretation of the harboring statute, which requires the government to prove that the defendant acted “to clandestinely shelter, succor, and protect improperly admitted aliens.” (Susnjar v. United States, 27 F.2d 223, 224 (6th Cir. 1928)). The Seventh Circuit held that “concealment (‘clandestinely shelter’) is an element of harboring.” Thus, the court held, the defendant’s permitting her illegal-alien boyfriend to live with her was not “harboring,” and the court vacated her conviction. In reaching its conclusion, the Seventh Circuit surveyed and rejected other court of appeals decisions that read “harboring” broadly in the statute to encompass “simple sheltering.” The court also rejected as “too vague to be a proper gloss on a criminal statute,” the somewhat narrower interpretation of other courts that the harboring statute was violated only if the conduct “substantially facilitated” the alien’s remaining in the country. The court instead stated that “[a] better gloss than ‘substantial facilitation’ would be providing … a known illegal alien a secure haven, a refuge, a place to stay in which the authorities are unlikely to be seeking him[.]” The Seventh Circuit, therefore, has adopted a narrow interpretation of the harboring statute in line with the Sixth Circuit’s interpretation, and has squarely rejected the interpretations of the Second, Third, Fifth, and Ninth Circuits. Given this significant new opinion from the Seventh Circuit, it is more important than ever for criminal defense practitioners defending against harboring charges to be aware of the various interpretations of the statute, and to argue for the narrowest possible interpretation.

Notes

1. Immigration and Customs Enforcement Worksite Enforcement — Up to the Job?: Hearing Before the Subcomm. on Immigration and Policy Enforcement of the H. Comm. on the Judiciary (Jan. 26, 2011) (testimony of Kumar C. Kibble, Deputy Director, Immigration and Customs Enforcement; available at http://www.dhs.gov/ynews/testimony/testimony_1299767085496.shtm (hereinafter, Kibble, Immigration), at 2.
2. Press Release, U.S. Immigration and Customs Enforcement, Department of Homeland Security, Owner and Madame of Korean Room Salon in Virginia Sentenced (April 15, 2011) (available at http:// www.ice.gov/news/releases/1104/ 110415alexandria.htm).
3. Press Release, U.S. Immigration and Customs Enforcement, Department of Homeland Security, Three Restaurant Chain Executives Indicted on Federal Immigration, Tax Charge (April 20, 2011) (available at http://www.ice.gov/news/releases/1104/ 110420phoenix.htm).
4. Press Release, U.S. Immigration and Customs Enforcement, Department of Homeland Security, Three Subcontractors Sentenced for Employing Illegal Aliens in Miami-Dade School Construction Project (Dec. 14, 2010) (available at http:// www.ice.gov/news/releases/1012/ 101214miami.htm).
5. Kibble, Immigration, supra note 1, at 3.
6. For cases involving variations of this fact pattern, see, e.g., United States v. Nebraska Beef, Ltd., 194 F. Supp. 2d 949 (D. Neb. 2002); United States v. Lin, 143 F. Supp. 2d 783, 789 (E.D. Ky 2001), vacated on other grounds, 59 Fed. Appx. 685 (6th Cir. 2003); United States v. Hernandez, 347 F. Supp. 2d 375 (S.D. Tex. 2004).
7. United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).
8. Id. at 861.
9. Id. at 865 (emphasis added).
10. Id. at 872 (emphasis added).
11. Id. at 872-73.
12. Id. at 873.
13. Id. at 874.
14. See, e.g., United States v. Nebraska Beef, Ltd., 194 F. Supp. 2d 949, 959-961 (D. Neb. 2002)(finding in a prosecution for conspiring to hire illegal aliens, statements by deported aliens that they obtained and presented bogus immigration documents they obtained from third parties were “material and favorable”); United States v. Lin, 143 F. Supp. 2d 783, 789 (E.D. Ky. 2001) (finding statement by deported witness that the defendant “asked him if he had papers documenting that he was permitted to work in the United States and he told her that he did and showed her a fabricated social security card” was material and favorable to defendant).
15. See, e.g., United States v. Cuevas-Reyes, 572 F.3d 119, 121 (3d Cir. 2009) (quoting statutory elements of harboring offense).
16. Nebraska Beef, 194 F. Supp. 2d at 961.
17. Seeid. (deported witnesses deemed credible and important).
18. Id.
19. United States v. Lin, 143 F. Supp. 2d 783 (E.D. Ky. 2001), vacated on other grounds, 59 Fed. Appx. 685 (6th Cir. 2003). On appeal in Lin, the Sixth Circuit was “in fundamental agreement with the district court” and “part[ed] company” with the district court on “procedural rather than substantive” grounds. Lin, 59 Fed. Appx. at 686 (emphasis added). The Sixth Circuit said that it was not clear that the unavailable testimony related to all of the counts in the 71-count indictment. Id. at 687. The Sixth Circuit remanded to allow the district court to determine, on a count-by-count basis, which counts of the indictment should be dismissed based upon the deportation of exculpatory witnesses.
20. 143 F. Supp. 2d at 786.
21. Id. at 785.
22. Id. at 789.
23. Nebraska Beef, 194 F. Supp. 2d at 959-961.
24. Id. at 950-51.
25. Id. at 960.
26. Id.
27. Id. at 958-61.
28. United States v. Hernandez, 347 F. Supp. 2d 375 (S.D. Tex. 2004).
29. Id. at 384.
30. United States v. Damra, 621 F.3d 474 (6th Cir. 2010).
31. Youngblood v. Arizona, 488 U.S. 51 (1988).
32. Id. at 58 (emphasis added).
33. See, e.g., Illinois v. Fisher, 540 U.S. 544, 549 (2004) (explaining that the bad-faith requirement in Youngblood depended on the distinction between “‘material exculpatory’ evidence and ‘potentially useful’ evidence”); Moldowan v. City of Warren, 578 F.3d 351, 384-85 (6th Cir. 2009) (“[T]he Court’s decision in Youngblood confirms that where ‘material exculpatory evidence’ is concerned, the mental state of the government official withholding that evidence is not relevant to determining whether a due process violation has occurred.”); United States v. Wright, 260 F.3d 568, 570-71 (6th Cir. 2001) (“Separate tests are applied to determine whether the government’s failure to preserve evidence rises to the level of a due process violation in cases where material exculpatory evidence is not accessible versus cases in which ‘potentially useful’ evidence is not accessible;” bad faith need not be shown when material exculpatory evidence is destroyed) (citations omitted).
34. Besides arguing that Damra is wrong, defendants in the Sixth Circuit should attempt to limit the decision. The defendant in Damra sought dismissal based upon the government’s deportation of a witness who may have possessed exculpatory information. Damra, 621 F.3d at 491. Since the defendant could not show — as many defendants can through the use of government interview reports — that the deported witness actually possessed material exculpatory information, the decision cannot be read as governing claims by a defendant who can demonstrate that the deported witnesses actually possessed material exculpatory information.
35. United States v. Hernandez, 347 F. Supp. 2d 375, 386 (S.D. Tex. 2004) (holding that the government acted in bad faith when it deported witnesses whom it knew to possess exculpatory information).
36. United States v. Nebraska Beef, Ltd., 194 F. Supp. 2d 949, 957 (D. Neb. 2002).
37. Id.
38. Seeid. at 958 (“It is undisputed that the normal INS procedure in a case involving a sweep to obtain evidence of a targeted criminal prosecution is to faithfully search for and preserve exculpatory evidence.”); id. (It is “clearly the policy of the INS not to remove anyone who the INS agents believed to possess exculpatory information.”) (emphasis added).
39. Material Witness in Alien Smuggling Cases, Title 9, Section 1910, United States Attorney’s Criminal Resource Manual (available at http://www.justice.gov/usao/eousa/ foia_reading_room/usam/title9/crm01910.htm) (last visited July 1, 2011).
40. For instance, it is well-established that the aliens with exculpatory information may be detained pending trial as material witnesses under 18 U.S.C. § 3144, see, e.g., United States v. Mercedes, 164 F. Supp. 2d 248 (D. P.R. 2001) (ordering defense witnesses with exculpatory information held as material witnesses pending trial); United States v. Huang, 827 F. Supp. 945 (S.D.N.Y. 1993) (same). Likewise, federal law expressly authorizes temporary parole for “aliens who will be witnesses in proceedings being, or to be, conducted by judicial . . . bodies in the United States.” 8 C.F.R. § 212.5.
41. A defendant has a right to such a hearing where he can make a colorable claim of bad faith. See, e.g., United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996) (defendant has a right to a pretrial evidentiary hearing on a motion to dismiss where, as here, the defendant’s moving papers demonstrate a “colorable claim” for relief); cf. United States v. Thompson, 16 Fed. Appx. 340, 342 (6th Cir. 2001) (“A district court is required to hold an evidentiary hearing when the defendant has set forth contested issues of fact that bear upon the legality of the search.”). Moreover, federal courts have repeatedly recognized that a motion to dismiss based upon the deportation of exculpatory witnesses can only be resolved following an evidentiary hearing at which the defendant is given a right to present and develop a complete factual record. See, e.g., Nebraska Beef, 194 F. Supp. 2d at 950 (court conducted evidentiary hearing before dismissing indictment); Hernandez, 347 F. Supp. 2d at 378 (same); United States v. Hudson, 265 F. Supp. 2d 1299, 1300 (M.D. Fla. 2003) (same).
42. 8 U.S.C. § 1324a(e)(4) (2004) (civil penalties); § 1324a(f) (criminal penalties for those who “engage[] in a pattern or practice of violations”). See United States v. Zheng, 306 F.3d 1080, 1084 n.3 (11th Cir. 2002) (“Section 1324a provides a civil penalty, not to exceed $3000, for each unauthorized alien and a criminal penalty, not to exceed six months, for the entire pattern or practice of employing illegal aliens”).
43. 8 U.S.C. § 1324(a)(1)(B)(i); § 1324(a)(1)(B)(ii).
44. 8 U.S.C. § 1324(a)(1)(A)(iii).
45. 8 U.S.C. § 1324(a)(1)(B)(i); § 1324(a)(1)(B)(ii). For a discussion of the “commercial advantage” element, see Zheng, 306 F.3d at 1084.
46. See United States v. Evans, 333 U.S. 483, 489 (1948) (declining to resolve the question of the “reach of the statute,” in reviewing a predecessor harboring statute; the Court in dicta noted that “an innkeeper furnishing lodging to an alien lawfully coming in but unlawfully overstaying his visa would be guilty of harboring, if he knew of the illegal remaining”).
47. See United States v. Ye, 588 F.3d 411, 416 n.5 (7th Cir. 2009) (noting the circuit split).
48. Susnjar v. United States, 27 F.2d 223, 224 (6th Cir. 1928).
49. See United States v. Lopez, 521 F.2d 437 (2d Cir. 1975); United States v. Kim, 193 F.3d 567 (2d Cir. 1999); United States v. Oczelik, 527 F.3d 88 (3d Cir. 2008); United States v. Cantu, 557 F.2d 1173, 1180 (5th Cir. 1977); United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008).
50. See United States v. Ye, 588 F.3d 411 (7th Cir. 2009); United States v. Acosta de Evans, 531 F.2d 428 (9th Cir. 1976).
51. Susnjar, 27 F.2d at 224.
52. See, e.g., United States v. Belevin-Ramales, 458 F. Supp. 2d 409, 411 (E.D. Ky. 2006); Hager v. ABX Air, Inc., 2008 WL 819293 (S.D. Ohio Mar. 25, 2008).
53. Belevin-Ramales, 458 F. Supp. 2d at 411.
54. The Second Circuit has expressly held that the defendant’s “conduct need not be clandestine.” United States v. Herrera, 584 F.2d 1137, 1144 (2d Cir. 1978).
55. United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999); United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir. 2008).
56. Id. at 574 n.3.
57. The Lopez court was referring to the Supreme Court’s opinion in United States v. Evans, 333 U.S. 483 (1948), where the Court considered an apparent drafting error in a previous version of the harboring statute. The statute added the crime of concealing or harboring illegal aliens, but did not provide any penalty provisions for that crime. The Supreme Court declined to revise the statute by judicial construction, but in doing so remarked in dicta that “an innkeeper furnishing lodging to an alien lawfully coming in but unlawfully overstaying his visa would be guilty of harboring, if he knew of the illegal remaining.” United States v. Lopez, 521 F.2d 437, 439-40 (2d Cir. 1975).
58. Lopez, 521 F.2d at 440-41.
59. Id. at 439.
60. Kim, 193 F.3d at 574.
61. Ozcelik, 527 F.3d at 100.
62. Id. 
63. Id. at 99.
64. Id. It appears that the Eleventh Circuit may follow the Second and Third Circuits in requiring conduct both facilitating the alien’s ability to remain in the United States and preventing detection from authorities. In United States v. Zheng, 306 F.3d 1080, 1084 (11th Cir. 2002), the court, citing Kim, held that the “government showed that the appellees harbored the illegal aliens by providing both housing and employment which facilitated the aliens’ ability to remain in the United States illegally. The housing and employment prevented government authorities from detecting the illegal aliens’ unlawful presence.” In another case, however, the Eleventh Circuit noted that the “statutory evolution of § 1324(a)(i)(A)(iii) indicates that knowingly or recklessly hiring illegal aliens probably is enough by itself to constitute concealing, harboring, or shielding from detection for purposes of the statute.” Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010).
65. United States v. Cantu, 557 F.2d 1173, 1180 (5th Cir. 1977).
66. United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008).
67. Id. 
68. United States v. Ye, 588 F.3d 411, 415-16 (7th Cir. 2009).
69. Id. 
70. Id. at 416 (citing United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir. 2008); United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008); United States v. DeJesus Bartres, 410 F.3d 154, 160 (5th Cir. 2005); United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999)).
71. Id. at 415.
72. Id. at 416.
73. Id. 
74. Id. at 416-17.
75. United States v. Acosta de Evans, 531 F.2d 428 (9th Cir. 1976).
76. United States v. Aguilar, 883 F.2d 662, 690 (9th Cir. 1989), superseded by statute in part as stated by United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002). The Ninth Circuit has held, however, that “knowledge and criminal intent are both required” to sustain a harboring conviction. United States v. You, 382 F.3d 958, 966 (9th Cir. 2004). Thus, a defendant must “kn[ow] that the individuals were [illegal] aliens” and must “intend[] to violate the law” to be convicted under the harboring statute. Id. 
77. The Supreme Court’s decision in Flores-Figueroa v. United States, 556 U.S. 646, 129 S. Ct. 1886 (2009), may lend some support to arguments in favor of this construction of the statute. In Flores-Figueroa, the Court was called upon to interpret the following language in the aggravated identity theft statute (18 U.S.C. § 1028A(a)(1)): “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The Court held that the term “knowingly” modified all of the terms that followed it. The Court’s approach in Flores-Figueroa may support the argument that the term “from detection” in the harboring statute modifies all of the verbs preceding it — “conceals, harbors, and shield” — and, thus, that the statute is violated only when a defendant attempts to clandestinely hide an alien from the government.