Along the US-Mexico Border Prosecutions for Harboring Immigrants Continue to Climb
The latest available case-by-case records tracking lead charges for February 2020 show 504 new prosecutions under federal laws prohibiting the harboring of undocumented immigrants, up from 400 during the same month last year. Eighty-six percent of new prosecutions in February took place in federal courts along the US-Mexico border. On an annual basis, harboring prosecutions reached an all-time high in FY 2019 with just shy of 5,700 new cases, up from about 4,500 in FY 2018. This growth may be at least partly attributed to a directive issued by then Attorney General Jeff Sessions in 2017 encouraging federal prosecutors to increase prosecutions against harboring.
These findings are based on case-by-case federal government records obtained and analyzed by Transactional Records Access Clearinghouse at Syracuse University following extensive successful litigation under the Freedom of Information Act (FOIA).
In each month of FY 2020 so far, the number of harboring prosecutions has exceeded any corresponding month in the previous decade, as shown in Figure 1. For instance, February 2020 was higher than any February on record. Fiscal years 2010 through fiscal year 2016 are shown in grey, while fiscal years 2017 through 2020 are emphasized for clarity.
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Although harboring prosecutions fluctuate from month to month often varying with the season of the year, the most recent annual data show a clear upward trend starting from a low of less than 3,500 in FY 2015 to a high of nearly 5,700 in FY 2019 (see Figure 2). If the number of harboring prosecutions continues to set month-over-month records throughout FY 2020, this year could set yet another record for the annual number of harboring cases.
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Despite this growth, harboring convictions represent a small fraction of the total number of immigration-related prosecutions. Largest, of course, are prosecutions for illegal entry (8 USC 1325) and illegal reentry (8 USC 1326). In February 2020, for instance, there were just over 500 harboring prosecutions compared to nearly 4,000 each for illegal entry and reentry.
Of the 504 new harboring prosecutions in February, most-86 percent respectively-occurred in the five federal district courts along the US-Mexico border: Texas South, Texas West, California South, Arizona, and New Mexico (see Figure 4). In fact, these five district courts have remained in the top five districts for harboring prosecutions for years. All harboring cases for February 2020 were referred for prosecution by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), the two chief immigration enforcement agencies in the country within the Department of Homeland Security (DHS).
Although not in the top five districts for harboring offenses, several district courts are now prosecuting higher numbers of harboring cases than previously seen. The Western District of Louisiana (in Shreveport), ranked 6th in February among federal harboring prosecutions and the Eastern District of North Carolina (in Raleigh) ranked 7th nationwide.
What Is Harboring?
Harboring is a federal crime described under 8 USC 1324 as "bringing in and harboring certain aliens." The harboring provision is broader than just harboring. This law makes it a crime to smuggle undocumented immigrants into the United States or to encourage immigrants to enter the country unlawfully. It makes it a crime to conceal, harbor, or shield undocumented immigrants from detection. And it makes it a crime to aid undocumented immigrants in violating the law by providing transportation.
In practice, 8 USC 1324 applies not only to common sense forms of smuggling (i.e. helping someone sneak into the United States). Federal prosecutors may also use this law to charge an employer who fails to submit proper tax documents for an undocumented worker, alerting undocumented immigrants about a future immigration raid in order to avoid arrest, or providing undocumented immigrants with false documentation to evade detention[1]. The definition of charges as well as the actual charging practices may vary among federal court districts and among U.S. Attorney offices.
One of the more high-profile harboring cases occurred in 2019 when federal prosecutors in Arizona charged Scott Warren, a teacher and volunteer with No More Deaths, under 8 USC 1324, after he allegedly provided unlawful support to migrants. A jury was unable to reach a verdict in Warren's first trial, and a jury found Warren not guilty in a second trial.
Footnotes
[1] The following report from the National Lawyers Guild was useful in preparing these examples: Julie Mao and Jan Collatz (2017), "Understanding the Federal Offenses of Harboring, Transporting, Smuggling, and Encouraging under 8 U.S.C. § 1324(a)." National Immigration Project of the National Lawyers Guild.
TRAC offers free monthly reports on program categories such as white collar crime, immigration, drugs, weapons and terrorism and on selected government agencies such as the IRS, FBI, ATF and DHS. For the latest information on prosecutions and convictions, go to https://trac.syr.edu/tracreports/bulletins/. In addition, subscribers to the TRACFed data service can generate custom reports for a specific agency, judicial district, program category, lead charge or judge via the TRAC Data Interpreter.