U.S. Court of Appeals for the Fifth Circuit
The Fifth Circuit's definition of harboring is broader than
the Second and Third Circuits. It rejects the notion that to
be convicted of harboring a defendant's conduct must be part
of a smuggling operation or involve actions that hide
immigrants from law enforcement authorities. See De Jesus-
Batres, 410 F.3d at 162 (specific intent is not an element of
the offense of harboring). An early Fifth Circuit decision,
U.S. v. Cantu, 557 F.2d 1173 (5th Cir. 1977), remains
informative. In Cantu, immigration agents visited the restaurant owned
by Mr. Cantu because they received information that he was
employing undocumented workers. The agents wanted to question
the employees. Mr. Cantu refused admission to his restaurant
until they could provide a warrant. While the immigration authorities waited outside for the
warrant, Mr. Cantu made arrangements with at least two of his
patrons to drive some of his undocumented employees into
town. Mr. Cantu also arranged for his employees to sit in the
restaurant and then leave the restaurant like customers. As
the employees left the restaurant, the immigration agents
approached them and questioned them about their immigration
status. The agents determined their illegal status and
arrested them. Mr. Cantu argued that, because he did not instruct his
employees to ``hide,'' and because the employees left the
restaurant in full view of the officers, he could not be
charged with shielding immigrants from detection. He also
argued that his actions were not connected to any smuggling
activity. The Fifth Circuit, relying on the Second Circuit's
Lopez decision, rejected these arguments, and determined that
Mr. Cantu's actions--instructing the employees to act like
customers so they could evade arrest--tended to facilitate
the immigrants remaining in the U.S. illegally. Id. at 1180. In another Fifth Circuit case, United States v. Varkonyi,
645 F.2d 453 (5th Cir. 1981), the court cited to Lopez to
assert that the harboring statute prohibits ``any conduct
which tends to substantially facilitate an alien's remaining
in the U.S. illegally.'' Id. at 459. Mr. Varkonyi provided a
group of undocumented immigrants with steady employment at
his scrap metal yard six days a week as well as lodging at
his warehouse. On previous occasions, he had instructed and
aided the men in avoiding detection and apprehension. On the
day of their detention, Mr. Varkonyi interfered with Customs
and Border Protection agents' actions by forcibly denying
them entry to his property through physical force. Here, the circuit court found that Mr. Varkonyi's conduct
went well beyond mere employment and thus constituted
harboring. Id. at 459. In this case, the court pointed out
that Mr. Varkonyi knew of the immigrants' undocumented
status, he had instructed the immigrants on avoiding
detection on a prior occasion; he was providing the
immigrants with employment and lodging, he interfered with
immigration agents to protect the immigrants from
apprehension; and he was partly responsible for the escape of
one of the immigrants from custody. Id. Given these facts,
the circuit court found that Mr. Varkonyi's conduct, both
before and after the detention of the immigrants, was
calculated to facilitate the immigrants remaining in the U.S.
unlawfully. Id. at 460. In 2007, the Fifth Circuit ruled in another employment
harboring case that ``substantially facilitate'' means to
make an individual's illegal presence in the United States
substantially ``easier or less difficult.'' United States v.
Keywords matched
immigration Border Protection undocumented immigrants