Harboring and Shielding Aliens and Other Federal Felony Offenses: A Thought Experiment

By Dan Cadman on March 6, 2018

A few days ago I blogged about the most recent outrageous conduct of Oakland, Calif., Mayor Libby Schaaf, who took it upon herself to publicly expose an impending enforcement action by Immigration and Customs Enforcement (ICE) agents targeting aliens, including criminal aliens, who were either fugitives from immigration removal proceedings, or who were believed to have reentered the United States illegally after having been previously removed.

In that blog, I raised the possibility that several federal felony charges might be levied against Schaaf (and possibly others who conspired with her), depending on the exact facts at play, which are admittedly not fully known, at least publicly. The Justice Department is allegedly investigating Schaaf's conduct (which she claims wasn't criminal since she didn't "officially" receive the information, although that is an egregious misunderstanding of the law). As I suggested, the most relevant statutes appear to be:

  • Harboring or shielding an illegal alien from detection, 8 U.S.C. Section 1324(a)(1)(A)(iii);
  • Obstruction of an official proceeding, 18 U.S.C. Section 1505, paragraph two; and
  • Conspiracy, 18 U.S.C. Section 371.

At about the same time that I blogged, other pundits and observers were indicating their belief that the provisions I've just cited don't apply. I have given their comments consideration and concluded that they're wrong, at least within the context of their reasoning, which was based on the simple language of the statutes and not on the known facts. In making my own argument in favor of the applicability of the statutes, it's worth conducting a thought experiment, as follows:

ICE agents in California are assigned to conduct an enforcement operation at a restaurant that's believed, on the basis of credible information received, to be employing illegal aliens. The primary targets of the operation are three illegal alien employees, two of whom are absconders from immigration proceedings and a third who has reentered the United States after being removed previously. Two of the three have criminal records.

Agents wearing protective vests and "raid" jackets clearly labeled "ICE" in large block letters enter the public space of the restaurant promptly after it opens in an attempt to minimize interaction with patrons. As they walk in, a man (later identified as the on-duty manager) darts toward the kitchen and through the swinging door, shouting in a loud voice, "Run! Immigration! Run!" The agents pursue him.

Agents assigned to guard the back door of the restaurant are a few moments late in positioning themselves, and arrive just in time to see five individuals burst through the door and scatter to the winds. They catch none of them, but proceed inside, where the agents from the front have sequestered the now-identified manager in his small office off of the kitchen, to prevent further disruption of their efforts.

It's abundantly clear to all of the agents, and indeed any reasonable observer of the scene, that the restaurant manager has engaged in an overt act to shield aliens from detection and arrest by ICE agents.

How in any meaningful way do the manager's acts in this hypothetical differ from those engaged in by Schaaf? I don't think they do.

Of course, proof in a court of law to meet the "beyond a reasonable doubt" standard that applies in criminally charging the manager (or Schaaf) is something else again. How might such proof be obtained? Let's go back into the restaurant:

Following the escape of the five individuals and sequestering of the manager, the ICE agents systematically question the remaining employees.

On being approached, one man produces his green card, saying, "I'm legal. The ones you wanted, the illegals, are the ones who ran out when you came." Two or three other employees nod their heads. After all are questioned, the agents are able to affix names to the five who fled, and three of those names are the same as individuals on whom ICE had leads.

Short, formal, sworn statements from the resident alien and the others are taken and include the pertinent fact that the five who fled were known to be illegal because, being among fellow countrymen, they made no attempt to hide their status. The employees who provided the statements are material witnesses whose testimony can be used if a criminal charge is filed. The ICE agents have been careful to obtain biographic and identifying data on these individuals, including addresses, driver's license numbers, etc., for future contact.

The manager is not taken into custody, but he is advised of his rights and told that he may be the subject of criminal charges under 8 U.S.C. Section 1324. At this juncture, realizing things have taken a nasty turn, he declines to say anything more. He is also warned that any attempt to interfere with or influence the testimony of the witnesses — including by firing them in retribution — might result in further charges against him, and the agents depart with only one illegal alien in tow — one they were not seeking, and who doesn't appear to have a prior criminal or adverse immigration history, but who has overstayed his tourist visa. His arrest is simply collateral happenstance — he was in the wrong place at the wrong time— but is nonetheless perfectly legitimate.

As can be seen by the follow-on to this hypothetical enforcement action, even absent being able to arrest the actual wanted aliens because they heeded the warning and fled, a threshold harboring/shielding case has been made, with a good possibility that additional charges may apply because the agents will certainly return to closely examine the business records of the restaurant.

There is also another possible charge: "Obstruction of Proceedings before Departments, Agencies and Committees" under the second paragraph of 18 U.S.C. Section 1505. Keep in mind that many of these aliens were being sought because they fled from removal proceedings being conducted by the immigration courts, which are a part of the Executive Office for Immigration Review, a division within the Department of Justice (DOJ). As such, an obstruction charge under the second paragraph of Section 1505, relating to "official proceedings", appears apt. One might think that the U.S. attorney's offices, which are also a part of DOJ, would deem it a priority to prosecute individuals who impede or obstruct the functions of another DOJ division.

Finally, there is a third charge, which might apply in specific cases involving aliens who have illegally returned to the United States after having been deported. (This is a charge I didn't mention in the prior blog post.) If ICE agents had procured and were armed with criminal warrants of arrest for this charge in any of the cases involving the restaurant employees in our hypothetical example, then at the time the manager engaged in his overt conduct of shouting out warnings so that his illegal alien employees could escape, he might also be guilty of harboring a federal fugitive, which can be found at 18 U.S.C. Section 1071.

In sum, although I've described a hypothetical situation, it has much in common with what happened in Oakland. For that reason, in my view a good case might very well be made against Schaaf on the basis of at least some of the charges described. It would require follow-up work to review business records at the places where the fugitives worked, as well as interviewing and taking statements from potential witnesses such as employers and employees, or even neighbors or other "collateral arrests", who can testify that an individual who was targeted in the ICE operation fled after hearing of the mayor's warning.

For purposes of investigating Schaaf's actions with an eye toward prosecution, it would be easy enough to selectively hone in on those with the worst criminal records who evaded arrest during the operation — particularly against those with criminal reentry warrants or outstanding civil warrants of arrest or removal. Some of them may have been known to be illegally employed, and one way to leverage employer cooperation in the government's endeavor would be by examining their records and hiring practices. An employer would find it much more in his interest to cooperate with ICE on the matter of one or two targeted aliens who fled or failed to show up for work after Schaaf's warning was issued than to be exposed to the possibility of fines or worse.

Then of course, there is an interesting chain of individuals who might be interviewed from among the mayor's staff and the police department to determine exactly how the mayor received her "unofficial" notice of the impending ICE enforcement operation. Calling together a grand jury would be the very best way to accomplish this, as it would emphasize the seriousness with which the federal government has chosen to take the matter. Grand jury witnesses would be aware that perjury charges loom over their heads should they choose to lie or conceal material facts about which they are questioned.

Is all of this work worth it? What kind of message does the federal government want to send to political leaders who are scofflaws and advocates of lawless sanctuary policies? If the answer is, "enough is enough," then yes, the investigative effort is well worthwhile.