Immigration Enforcement and Harboring Doctrine

Abstract

This Article takes a first look at the origins and evolution of a federal statute enacted over fifty years ago that prohibits “harboring” unauthorized aliens. Federal law contains no definition of harboring in the immigration context, and in the years since the enactment of the statute, courts have interpreted it in ways that are wide-ranging and inconsistent. While courts initially interpreted harboring relatively narrowly, as clandestine concealment, some courts subsequently interpreted harboring as encompassing any conduct which substantially facilitates an unauthorized alien’s continued presence in the United States. Applying this definition, courts have assigned liability for relationships that are both exceedingly common and socially valuable, such as allowing an unauthorized alien relative to live in one’s home; renting an apartment to unauthorized aliens, and giving advice and other assistance to unauthorized aliens. This Article examines the legislative history of the statute, evaluates how federal courts transformed the meaning of harboring from a crime involving concealment to a crime involving the facilitation of unauthorized presence, and considers the impact of broad court constructions of harboring on immigration law goals.

Keywords: immigration