May 9, 2017

Op-ed: Can You Go to Jail for ‘Assisting’ Your Undocumented Neighbor?



This op-ed was originally published by The American Conservative on May 8, 2017. 

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Among the new “charging practices” that Attorney General Jeff Sessions announced earlier this month—ostensibly to help establish lawfulness in our immigration system—is the prosecution of individuals aiding or assisting criminal aliens entering the United States. Despite what the administration wants Americans to believe, the law is not new, although prioritized enforcement of the policy is.

In fact, there is no reason these laws need prioritization, since they are well-known and regularly used. Publicizing enforcement of the laws serves mainly to chill the behavior of Americans, and to isolate their undocumented neighbors, family members, and fellow community members.

President Trump and Attorney General Sessions have each intimated that penalizing Americans who aid illegal aliens is a new and necessary policy. But these statements and tactics do nothing to arm law enforcement with the right guidance or the tools necessary to effectively do their jobs, and does nothing to keep our country safe. What we need is for Congress to clarify the laws and penalties already on the books, and to ensure that we adequately enforce them.

The first of the existing laws—INA § 1327—prohibits any individual from knowingly aiding or assisting an inadmissible person entering the United States. Not only is the punishment for a violation of the law stiff—fines and imprisonment for up to 10 years—it is a very broad standard. The courts generally find that the government must prove only that the accused knew the person he was helping was inadmissible, rather than, for example, requiring knowledge that the alien had a prior conviction.

Used far more often is the law prohibiting bringing in and harboring certain aliens (INA § 1324), which makes it a felony to knowingly: 1) bring an illegal alien into the U.S. anywhere besides a port of entry; 2) transport an illegal alien within the U.S.; 3) conceal, harbor, or shield an illegal alien from detection; and 4) encourage an illegal alien to enter or remain in the U.S.

Most keen readers will note that the above provisions are sweeping, and in many cases, very subjective. The courts agree. There is a fair amount of judicial interpretation tied to these provisions because the law is hardly clear.

Let’s use “transporting” as an example. Certainly, if I were to sneak an alien into the trunk of my car in exchange for cash once past customs and border patrol, prosecution seems warranted and clear-cut. But what if I offered a ride to an alien seeking to be treated in a clinic across the border? Based on current interpretationsof the law, this is probably “incidental” transportation, which is not usually considered criminal. That changes, however, if I drive an alien to a job site.

Understanding what constitutes “encouraging” an alien is also difficult. Generally, the courts rely on circumstantial evidence to prove that the accused knew or should have known that their actions benefited the alien, but the case law suggests these considerations are generally made on a case-by-case basis.

Regardless of the fine line prosecutors must walk, these cases move swiftly through the nation’s immigration courts. In February this year, bringing in and harboring certain aliens accounted for the second-highest lead charge in immigration matters filed U.S. district courts. In one month, there were 227 charges pursuant to § 1324; this was second only to charges brought for reentry of a deported alien (1,325 charges).

Further adding to the confusion surrounding the administration’s insistence that this become an enforcement priority, this charge was ranked second in 2016 as well, and was ranked second in 2012, suggesting that prosecutors are aware of the charge and well-versed in its use.

The takeaway is that the laws are not meant to punish the helpful neighbor or the unwitting assistant, regardless of the way they are painted by the administration. Both statutes in the Immigration and Nationality Act have origins dating back to 1952, and were reviewed every few years to ensure that our borders are secure, and that we reduce the danger not only to those individuals who work on our borders, but specifically for the undocumented individuals who are often hoodwinked into paying for a dangerous journey across the border, resulting in serious injury and occasionally death.

Of course, that raises the question: If we have reasonably adequate laws on the books that are being enforced, why is the administration making public statements suggesting otherwise?

Some posit that the administration is deliberately stoking fear; so far, the fear and uncertainty surrounding its policies have resulted in broad-based suspicion toward Latinos, including those who have broken no laws, which was purportedly part of President Trump’s immigration strategy during the campaign season. Popularizing these types of criminal charges may be a component of such a strategy.

A more practical approach to these laws would be to call on Congress to clarify the provisions of each statute, so that individuals and prosecutors alike will have more guidance about the type of behavior that warrants prosecution.

We hardly need new tools to protect our borders. We need adequate enforcement of the laws on the books, and ongoing clarification of the ways those laws protect all who encounter our justice system.