NOLAN’S LATEST @ THE HILL – Sessions’s Next Move Might Well Be To “Gin Up” Harboring Prosecutions!

http://thehill.com/opinion/immigration/387533-harboring-undocumented-aliens-is-still-a-crime-expect-sessions-to

Nolan writes:

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.

. . . .

Will harboring prosecutions be more successful than employer sanctions were?

Maybe not, but Sessions has to try something and harboring prosecutions might help.

To convict someone of harboring, the government must establish that the defendant concealed, harbored, or shielded an undocumented alien from detection. A conviction can result from committing any one of the three acts.

The harboring provisions provide the following penalties for each alien in respect to whom a violation occurs:

1. If the offense did not involve commercial advantage or financial gain, a fine or imprisonment for up to 5 years, or both;
2. If it was done for commercial advantage or financial gain, a fine or imprisonment for up to 10 years, or both;
3. In the case of a violation during and in relation to which the offender causes serious bodily injury, or places in jeopardy the life of any person, a fine or imprisonment for up to 20 years, or both; and
4. In the case of a violation resulting in the death of any person, a death sentence or imprisoned for any term of years or for life, a fine, or both.

The statute does not define “conceal,” “harbor,” or “shield from detection.” The federal courts have had to define these terms.

“Conceal” generally has been taken to mean hiding or otherwise preventing the discovery of an undocumented alien.

Courts have interpreted “shielding” more expansively. Even the making of false statements or falsifying documents may constitute “shielding.”

According to the ACLU, “harboring” is defined differently in the various federal jurisdictions across the country.

The most frequent characteristic the courts have used to describe “harboring” is that it facilitates an immigrant’s remaining in the United States illegally, which encompasses an extremely wide range of activities.

This is certain to result in inconsistent verdicts. People are going to be incarcerated for conduct that wouldn’t have been considered a crime if it had been committed in a different judicial district.

While a large-scale, nationwide campaign of harboring prosecutions might make it harder for undocumented aliens to live in the United States, the cost will be too high if it fills our prisons with American citizens and Lawful Permanent Residents who were just trying to be good Samaritans.

********************************************

Get Nolan’s complete article over at The Hill at the link!

Yeah, I could see Sessions pursuing this. But, believe it or not, it’s been tried before and failed as a deterrent.

During the Reagan Administration, when I was the INS Deputy General Counsel, the Administration brought criminal cases against some of the leaders of the so-called “Sanctuary Movement” in Texas and Arizona.

Unlike undocumented migrants held in immigration detention, those charged with harboring are always vigorously represented by good defense lawyers. The trials are very time-consuming and labor intensive.

I remember once spending the better part of a week in South Texas waiting to be called as a Government witness in a sanctuary prosecution. Upon finally being reached on the witness list, all I got to state was my name and position before the U.S. District Judge sustained the defendants’ objection to my testimony and disqualified me as a witness.

Also, unlike prosecuting undocumented migrants in Immigration Court, 100% of the convictions are appealed, a process that also stretches out for many years. Even when the Government “wins” the case and a conviction is sustained, the sentence is almost always probation or something quite nominal.

In other words, this is a “strategy’ that will tie up lots of U.S. Attorney and Federal Judicial resources, create lots of ill feeling in the community, but provide no real deterrence.  Indeed, my recollection is that rather than deterring the “Sanctuary Movement,” these prosecutions actually inspired and motivated groups opposed to the Government’s policies on Central American migrants!

In fact, eventually there were enough demonstrated problems with the Regan/Bush I Administrations’ approach to Central American asylum seekers that the plaintiffs succeeded in a class action in getting a “redo” of all the cases. This was known as ABC v. Thornburgh. This case, for all practical purposes, ended the U.S. Government’s efforts to expel the Central American asylum seekers who arrived during the 1980s.

Eventually, class members were allowed to obtain green cards under the Nicaraguan and Central American Relief Act (“NACRA”). I was pleased to have approved numerous NACARA cases during my tenure as an Immigration Judge in Arlington. (Yes, they were still around decades later.)

I was continuously inspired by what these hard-working families had achieved in their lives, notwithstanding our efforts to expel them. No, they weren’t all “rocket scientists.” But, nearly without exception, they were contributing members of our community, providing important services or creating necessary goods.

One of the many things that “gives lie” to the restrictionist claim that the current wave of asylum seekers and migrants from the Northern Triangle won’t “fit in” and be able to assimilate. About the only thing inhibiting “assimilation” is our Government’s unwillingness to allow it to take place, and actually acting to discourage it in many, many ways.

I found NACARA applicants to be remarkably “the same as the rest of us, perhaps better” in terms dedication to the “American Dream,” work ethic, respect for education, and willingness to sacrifice so that future generations could have better lives. The only real difference was the “pure luck” of those of us who had the good fortune to be born here.

A “smart” approach to immigration would be to “can” the waste of resources on border prosecutions and detention and put together another legislative effort like NACARA, only this time for all long-time undocumented residents of the US. But, of course, that wouldn’t serve to “fire up” the White Nationalist electoral base that Trump relies upon.

Common sense, learning from history, responsible use of Government resources, and basic human decency are qualities conspicuously absent from Sessions. But, I think that the “NACRA story” shows a very plausible “ultimate long-term outcome” for the latest, ultimately doomed, efforts to deal with immigration issues exclusively with restrictionist policies.

Finally, Nolan has kindly supplied us with an updated link to a list of all seventy (70) of his past articles in The Hill on immigration policy. Congratulations, Nolan, for your prodigious contributions!

http://thehill.com/search/site/Nolan%20Rappaport

PWS

05-15-18