The harboring provision of the Immigration and Nationality Act, 8 U.S.C. §1324(a)(1)(A)(iii), criminalizes the act of “concealing, harboring, or shielding from detection” any alien who is unlawfully present in the United States. This statute has recently received increased public attention following statements by Tom Homan, who was appointed to oversee immigration policy by the current administration. Mr. Homan has noted in public remarks that it is “a felony to knowingly harbor and conceal an illegal alien from immigration authorities” and that he intends to push for enforcement of this law. See, Alec Hernández, “Tom Homan takes to conservative media to outline Trump's plan for mass deportations,” NBC News (Dec. 11, 2024).

These are matters of serious concern. But what actually is prohibited by the federal harboring statute? While the statute’s language may appear expansive upon first read, judicial interpretations have imposed meaningful limits to avoid criminalizing benign or constitutionally protected conduct. This article examines a few federal cases to illustrate the doctrinal contours of harboring — drawing a clear distinction between active concealment and passive accommodation. Through comparative analysis, it becomes evident that courts require affirmative acts designed to thwart immigration enforcement for a conviction under §1324(a)(1)(A)(iii). In particular, comparing decisions in which courts have found sufficient evidence for harboring with those decisions in which courts came to the opposite conclusion sheds light on the crucial distinction between what is legal and illegal. Given the apparent prioritization of immigration by the new administration, it is important for white-collar defense counsel to become more familiar with these legal issues, as employees and individuals may face prosecution for harboring.

To continue reading Harry Sandick and Kabir Hashmi's article in Business Crimes Bulletin, please click here.