Thursday, December 3, 2009

Shielding Illegal Aliens from Detection Prosecution-Bringing in & harboring aliens

In United States v. Ye, 2009 WL 3818340 (7th Cir. 2009), the U.S. Court of Appeals for the Seventh Circuit, affirmed a district court's conviction under INA § 274(a)(1)(A)(iii) [8 USCA § 1324(a)(1)(A)(iii)] (concealing, harboring, or shielding illegal aliens from detection) Held: that the district judge did not err in the jury instructions on the meaning of “shielding.” The Circuit Court rejected the defendant's contentions that the district court's definition of “shielding” was too vague and overbroad and that the evidence was insufficient to prove that he intended to prevent the government from detecting his illegal alien employees.

The defendant was part owner of a restaurant in Springfield, Illinois. In 2005, the restaurant's hiring practices were investigated based on a tip from a former employee that illegal aliens might be working there. This resulted in an indictment under various subsections of INA § 274 for harboring for commercial advantage (a felony) and hiring persons known to be illegal aliens (a misdemeanor). At trial, the jury was presented with evidence that after it was detected that the defendant did not have I-9 employee verification forms for any of his employees, he informed some of his workers that they were fired but could be re-hired if they produced immigration documents. He advised the employees that they could purchase fake documents in Chicago, which he would accept. One worker was rehired even though the documents he produced were not in his name. When immigration officials made a follow-up visit to the restaurant, it was ascertained that it did not have I-9 forms or payroll records for four Hispanic workers, because they did not have social security numbers. The defendant told the officials that the workers were living in an apartment that he was leasing.

A few months later, in December 2005, agents arrested five illegal aliens who were working at the restaurant. It was revealed that the restaurant did not possess I-9s for these workers because they did not have immigration documents. Three Chinese employees testified that they had been hired by the restaurant without producing any immigration documents, and that the defendant had provided housing for them and other illegal aliens. Evidence was presented that the defendant had signed and submitted reports to the Illinois Department of Employment Security that listed only the wages paid to Chinese workers who had social security numbers, but no Hispanic names were on those forms. In his testimony, the defendant admitted knowing that illegal aliens worked at his restaurant, that he had arranged for renting their apartments, and that he provided them with transportation to work. Over the defendant's objection, the district judge provided the jury with definitions of the statutory terms “concealing” and “shielding.” The judge proceeded to define “shielding” as “the use of any means to prevent the detection of illegal aliens in the United States by the government.” After the jury returned its guilty verdict, the district court denied the defendant's motion for a judgment of acquittal, and, alternatively, a new trial, and sentenced him to 33 months' imprisonment.

The Circuit Court considered that the district judge's “use of any means” language in its jury instruction was not unconstitutionally vague and was consistent with the criminal statute, INA § 274(a)(1)(A)(iii), which does not limit the types of conduct that can constitute shielding from detection. It indicated that the statute criminalizes all conduct that fits the definition of “shield,” not merely conduct that “tends substantially to facilitate” an alien's evasion of discovery. In this regard, the Seventh Circuit Court parted company with other Circuits, including the Second, Third and Fifth. It declared that whether the conduct “tends substantially” to assist an alien is irrelevant because the statute requires no specific quantum or degree of assistance. In concluding that the evidence was sufficient to support the conviction, the court stated that a reasonable jury could have concluded that the defendant's poor paperwork management was indicative of an intention to prevent the government from discovering the illegal aliens. In addition, it considered that the defendant's provision of apartments for the illegal aliens also served to permit the aliens to keep their identities under wraps.


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