INA: ACT 274 - BRINGING IN AND HARBORING CERTAIN ILLEGAL ALIENS
Federal Immigration
and Nationality Act
of 1954
Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)
"Any person who . . . encourages or induces an alien to . . .
reside . . . knowing or in reckless disregard of the fact that such . .
. residence is . . . in violation of law, shall be punished as provided
. . . for each alien in respect to whom such a violation occurs . . .
fined under title 18 . . . imprisoned not more than 5 years, or both."
Section 274 felonies under the federal Immigration and Nationality
Act, INA 274A(a)(1)(A):
A person (including a group of persons, business, organization, or
local government) commits a federal felony when she or he:
* assists an alien s/he should reasonably know is illegally in
the U.S. or who lacks employment authorization, by transporting,
sheltering, or assisting him or her to obtain employment, or
* encourages that alien to remain in the U.S. by referring him
or her to an employer or by acting as employer or agent for an employer
in any way, or
* knowingly assists illegal aliens due to personal convictions.
Penalties upon conviction include criminal fines, imprisonment, and
forfeiture of vehicles and real property used to commit the crime.
Anyone employing or contracting with an illegal alien without verifying
his or her work authorization status is guilty of a misdemeanor. Aliens
and employers violating immigration laws are subject to arrest,
detention, and seizure of their vehicles or property. In addition,
individuals or entities who engage in racketeering enterprises that
commit (or conspire to commit) immigration-related felonies are subject
to private civil suits for treble damages and injunctive relief.
Recruitment and Employment of Illegal Aliens
It is unlawful to hire an alien, to recruit an alien, or to refer
an alien for a fee, knowing the alien is unauthorized to work in the
United States. It is equally unlawful to continue to employ an alien
knowing that the alien is unauthorized to work. Employers may give
preference in recruitment and hiring to a U.S. citizen over an alien
with work authorization only where the U.S. citizen is equally or better
qualified. It is unlawful to hire an individual for employment in the
United States without complying with employment eligibility verification
requirements. Requirements include examination of identity documents and
completion of Form I-9 for every employee hired. Employers must retain
all I-9s, and, with three days' advance notice, the forms must be made
available for inspection. Employment includes any service or labor
performed for any type of remuneration within the United States, with
the exception of sporadic domestic service by an individual in a private
home. Day laborers or other casual workers engaged in any compensated
activity (with the above exception) are employees for purposes of
immigration law. An employer includes an agent or anyone acting directly
or indirectly in the interest of the employer. For purposes of
verfication of authorization to work, employer also means an independent
contractor, or a contractor other than the person using the alien labor.
The use of temporary or short-term contracts cannot be used to
circumvent the employment authorization verification requirements. If
employment is to be for less than the usual three days allowed for
completing the I-9 Form requirement, the form must be completed
immediately at the time of hire.
An employer has constructive knowledge that an employee is an
illegal unauthorized worker if a reasonable person would infer it from
the facts. Constructive knowledge constituting a violation of federal
law has been found where (1) the I-9 employment eligibility form has not
been properly completed, including supporting documentation, (2) the
employer has learned from other individuals, media reports, or any
source of information available to the employer that the alien is
unauthorized to work, or (3) the employer acts with reckless disregard
for the legal consequences of permitting a third party to provide or
introduce an illegal alien into the employer's work force. Knowledge
cannot be inferred solely on the basis of an individual's accent or
foreign appearance.
Actual specific knowledge is not required. For example, a newspaper
article stating that ballrooms depend on an illegal alien work force of
dance hostesses was held by the courts to be a reasonable ground for
suspicion that unlawful conduct had occurred.
IT IS ILLEGAL FOR NONPROFIT OR RELIGIOUS ORGANIZATIONS to knowingly
assist an employer to violate employment sanctions, REGARDLESS OF CLAIMS
THAT THEIR CONVICTIONS REQUIRE THEM TO ASSIST ALIENS. Harboring or
aiding illegal aliens is not protected by the First Amendment. It is a
felony to establish a commercial enterprise for the purpose of evading
any provision of federal immigration law. Violators may be fined or
imprisoned for up to five years.
Encouraging and Harboring Illegal Aliens
It is a violation of law for any person to conceal, harbor, or
shield from detection in any place, including any building or means of
transportation, any alien who is in the United States in violation of
law. HARBORING MEANS ANY CONDUCT THAT TENDS TO SUBSTANTIALLY FACILITATE
AN ALIEN TO REMAIN IN THE U.S. ILLEGALLY. The sheltering need not be
clandestine, and harboring covers aliens arrested outdoors, as well as
in a building. This provision includes harboring an alien who entered
the U.S. legally but has since lost his legal status.
An employer can be convicted of the felony of harboring illegal
aliens who are his employees if he takes actions in reckless disregard
of their illegal status, such as ordering them to obtain false
documents, altering records, obstructing INS inspections, or taking
other actions that facilitate the alien's illegal employment. Any person
who within any 12-month period hires ten or more individuals with actual
knowledge that they are illegal aliens or unauthorized workers is guilty
of felony harboring. It is also a felony to encourage or induce an alien
to come to or reside in the U.S. knowing or recklessly disregarding the
fact that the alien's entry or residence is in violation of the law.
This crime applies to any person, rather than just employers of illegal
aliens. Courts have ruled that "encouraging" includes counseling illegal
aliens to continue working in the U.S. or assisting them to complete
applications with false statements or obvious errors. The fact that the
alien is a refugee fleeing persecution is not a defense to this felony,
since U.S. law and the UN Protocol on Refugees both require that a
refugee must report to immigration authorities without delay upon entry
to the U.S.
The penalty for felony harboring is a fine and imprisonment for up
to five years. The penalty for felony alien smuggling is a fine and up
to ten years' imprisonment. Where the crime causes serious bodily injury
or places the life of any person in jeopardy, the penalty is a fine and
up to twenty years' imprisonment. If the criminal smuggling or harboring
results in the death of any person, the penalty can include life
imprisonment. Convictions for aiding, abetting, or conspiracy to commit
alien smuggling or harboring, carry the same penalties. Courts can
impose consecutive prison sentences for each alien smuggled or harbored.
A court may order a convicted smuggler to pay restitution if the alien
smuggled qualifies as a victim under the Victim and Witness Protection
Act. Conspiracy to commit crimes of sheltering, harboring, or employing
illegal aliens is a separate federal offense punishable by a fine of up
to $10,000 or five years' imprisonment.
Enforcement
A person or entity having knowledge of a violation or potential
violation of employer sanctions provisions may submit a signed written
complaint to the INS office with jurisdiction over the business or
residence of the potential violator, whether an employer, employee, or
agent. The complaint must include the names and addresses of both the
complainant and the violator, and detailed factual allegations,
including date, time, and place of the potential violation, and the
specific conduct alleged to be a violation of employer sanctions. By
regulation, the INS will only investigate third-party complaints that
have a reasonable probability of validity. Designated INS officers and
employees, and all other officers whose duty it is to enforce criminal
laws, may make an arrest for violation of smuggling or harboring illegal
aliens.
State and local law enforcement officials have the general power to
investigate and arrest violators of federal immigration statutes without
prior INS knowledge or approval, as long as they are authorized to do so
by state law. There is no extant federal limitation on this authority.
The 1996 immigration control legislation passed by Congress was intended
to encourage states and local agencies to participate in the process of
enforcing federal immigration laws. Immigration officers and local law
enforcement officers may detain an individual for a brief warrantless
interrogation where circumstances create a reasonable suspicion that the
individual is illegally present in the U.S. Specific facts constituting
a reasonable suspicion include evasive, nervous, or erratic behavior;
dress or speech indicating foreign citizenship; and presence in an area
known to contain a concentration of illegal aliens. Hispanic appearance
alone is not sufficient. Immigration officers and police must have a
valid warrant or valid employer's consent to enter workplaces or
residences. Any vehicle used to transport or harbor illegal aliens, or
used as a substantial part of an activity that encourages illegal aliens
to come to or reside in the U.S. may be seized by an immigration officer
and is subject to forfeiture. The forfeiture power covers any
conveyances used within the U.S.
RICO -- Citizen Recourse
Private persons and entities may initiate civil suits to obtain
injunctions and treble damages against enterprises that conspire to or
actually violate federal alien smuggling, harboring, or document fraud
statutes, under the Racketeer-Influenced and Corrupt Organizations
(RICO). The pattern of racketeering activity is defined as commission of
two or more of the listed crimes. A RICO enterprise can be any
individual legal entity, or a group of individuals who are not a legal
entity but are associated in fact, AND CAN INCLUDE NONPROFIT ASSOCIATIONS.
Tax Crimes
Employers who aid or abet the preparation of false tax returns by
failing to pay income or Social Security taxes for illegal alien
employees, or who knowingly make payments using false names or Social
Security numbers, are subject to IRS criminal and civil sanctions. U.S.
nationals who have suffered intentional discrimination because of
citizenship or national origin by an employer with more than three
employees may file a complaint within 180 days of the discriminatory act
with the Special Counsel for Immigration-Related Unfair Employment
Practices, U.S. Department of Justice. In additon to the federal
statutes summarized, state laws and local ordinances controlling fair
labor practices, workers compensation, zoning, safe housing and rental
property, nuisance, licensing, street vending, and solicitations by
contractors may also apply to activities that involve illegal aliens.