Compassion or Crisis?: Distinguishing Intent Under § 1324 in Sanctuary and Trafficking Cases

I.  Introduction

In times of disaster, the law has the potential to shift in dangerous ways. Under both Trump administrations, immigration has been portrayed not as a legal or humanitarian issue, but as a national emergency requiring exceptional measures to resolve. This framing has facilitated the support of harsh policies like family separation1 and mandatory registration2 —legal strategies which both dehumanize and punish migrants searching for a better life in the United States. These policies also raise broader concerns about the U.S. government’s use of perceived crises to justify legal actions that test the limits of justice and civil liberties. The “disaster,” then, is not migration itself, but rather a political construction that casts immigration as a crisis to justify sweeping legal changes with lasting consequences for immigrants and citizens alike.

Under the first Trump administration, Attorney General Jeff Sessions called for a renewed commitment to prosecuting immigration crimes, particularly those that fell under the anti-harboring statute.3 The anti-harboring statute, 8 U.S.C. § 1324, prohibits individuals from concealing, harboring, or shielding from detection aliens4 who have entered or remain in the United States illegally.5 Between 2014 and 2019, prosecutions under § 1324 rose by 37.2%.6 Further, § 1324 was effectively used by Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) agents to threaten criminal sanctions against individuals who were suspected of violating § 1324 and who refused to comply with agency demands to carry out warrants for arrest.7

The 2024 re-election of Donald Trump as President of the United States has brought these issues to the forefront of American politics once again, and the use of § 1324 as an intimidation tactic is one of the most important tools in Trump’s substantial anti-immigration toolbox.8 However, Congress did not explicitly define what it means to “harbor” an undocumented immigrant in § 1324, and courts interpreting the provision have disagreed over what mens rea, if any, is required to prove that a defendant engaged in actions that constitute harboring. Some circuit courts have held that § 1324 requires proof of intent to harbor.9 Other courts do not require proof of mens rea, and instead focus on identifying whether a defendant “substantially facilitated” an undocumented immigrant’s stay in the United States.10 The lack of uniformity in the application of § 1324 therefore creates confusion for individuals and organizations, and this confusion leads to the potential chilling of humanitarian efforts as well as social fragmentation in response to heated debates over the enforcement of immigration law and the status of individual rights.

Section 1324’s anti-harboring provision is broad, allowing it to be applied across a wide range of contexts. In practice, this breadth has led courts to use it both to prosecute those who harbor immigrants as a form of sanctuary and those who harbor immigrants for the purpose of trafficking them into the United States. This Comment will argue that these two applications should be treated differently. Courts should interpret § 1324’s mens rea requirement narrowly in sanctuary cases—requiring proof of intent to harbor—but more broadly in trafficking cases—attaching liability when a defendant has “substantially facilitated” an undocumented immigrant’s stay in the United States. This approach would ensure that the legal focus shifts toward the harmful act of trafficking itself, rather than the trafficker’s underlying motives. Conversely, applying a narrower mens rea in sanctuary cases would reduce the risk of criminal liability for those providing humanitarian aid, thereby encouraging individuals and organizations to offer sanctuary while reducing fear of legal repercussions. Part II of this Comment outlines the historical background of the anti-harboring statute and its various interpretations. Part III analyzes the current circuit split regarding the interpretation of the word “harbor” in § 1324. Finally, Part IV proposes two distinct arguments that allow sanctuary and trafficking to be treated with different mens rea standards under this statute.

II.  Background

A.  Anti-Harboring Statute

Title 8 of U.S.C. § 1324 was passed in 1952 as part of the Immigration and Nationality Act (INA),11 and later amended by the Immigration Reform and Control Act (IRCA) of 1986.12 Section 1324(a)(1)(A)(iii) of the INA provides that any person who:

knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation13

shall be subject to punishment in the form of a fine or imprisonment.14 The term “alien” refers to “any person not a citizen or national of the United States.”15

Other subsections of § 1324, though not the primary focus of this Comment, illustrate how Congress sought to regulate different aspects of entry into the United States. Section 1324(a)(1)(A) prohibits bringing undocumented immigrants into the United States without official permission,16 transporting undocumented immigrants within the United States,17 encouraging or inducing undocumented immigrants to enter or reside in the United States,18 and engaging in a conspiracy to commit or aiding and abetting the commission of the aforementioned acts.19 Section 1324(a)(2) further prohibits knowingly bringing or attempting to bring an undocumented immigrant into the United States, particularly when the individual bringing them knows or has reason to believe that the immigrant “has not received prior official authorization.”20 Additionally, § 1324(a)(3) prohibits the hiring of ten or more individuals during any twelve-month period, when the employer has “actual knowledge” that those hired for employment are considered unauthorized aliens, as defined in 8 U.S.C. § 1324a(h)(3).21 These provisions were designed to function in tandem, and the government has frequently brought charges under more than one subsection in the same case.22 While these subsections overlap and reinforce one another, this Comment focuses on the anti-harboring provision and the distinctive interpretive challenges it raises in sanctuary and trafficking contexts.

To secure a conviction under § 1324(a)(1)(A)(iii), the government must prove (1) the defendant concealed, harbored, or shielded from detection an undocumented immigrant; (2) the immigrant was present in the United States in violation of the law; and (3) the defendant knew or acted in reckless disregard of the immigrant’s unlawful status.23 These elements—actus reus, circumstance, and mens rea regarding immigration status—are well settled by courts. There is ongoing disagreement among courts as to the mens rea required for the act of harboring itself.

1.  Statutory history of § 1324

a.  Immigration Act of 1917

Congress enacted the first iteration of an anti-harboring statute in February 1917.24 This statute restricted immigration to the United States by imposing a literacy test, introducing new categories of inadmissible immigrants, and creating a “barred zone” that spanned from the Middle East to Southeast Asia.25 The Immigration Act of 1917 further prohibited the concealing or harboring of undocumented immigrants.26 The Act included an explicit punishment provision for the crime of landing or bringing undocumented immigrants into the United States, but it contained no such provision for the crime of harboring those immigrants.27

The Supreme Court first interpreted the 1917 anti-harboring statute decades later in United States v. Evans.28 In Evans, the Court considered whether the Immigration Act of 1917 prohibited the harboring of undocumented immigrants even if the defendant charged with harboring did not also aid in the immigrant’s illegal entry to the United States.29 The government argued that unlawful entry was an ongoing crime, despite the fact that in 1917 deportations were rare and the concept of “unlawful presence” had not yet been established by the enactment of quota laws.30 The Court, however, rejected the government’s argument, finding that the legislative history of the 1917 harboring provision was unclear and that the word “harbor” was ambiguous.31 This ambiguity presented “a task outside the bounds of judicial interpretation.”32

The Court in Evans noted that the term “harbor,” as it was used in the statute, could be understood in a variety of ways. At its narrowest, “harboring” could be limited to acts closely tied to—but still distinct from—smuggling, as part of a chain of offenses beginning with unlawful entry.33 A somewhat broader reading would treat concealing and harboring as distinct offenses, though the Court did not elaborate on how the two might differ in practice.34 At its broadest, the statute could apply to immigrants who entered the United States legally but remained there unlawfully.35 The Court ultimately refused to interpret the statute itself, noting that it was not the role of the judiciary to guess what Congress intended when it enacted the 1917 statute.36 Instead, the Court called on Congress to revise the statute and provide more specificity regarding the meaning of the word harbor.37 Congress went on to revise the statute three more times—in 1924,38 1952,39 and 198640 —though none of the revisions directly clarified what “harboring” entails. As a result, the ambiguity highlighted by the Evans Court in its 1948 decision has persisted, leaving the scope of “harbor” unsettled and subject to ongoing judicial interpretation.

b.  Immigration Act of 1924

Congress influenced the contemporary understanding of the phrase “illegal alien” with the passage of the Immigration Act of 1924.41 Also known as the Johnson-Reed Act, this statute made a number of important changes to the 1917 legislation, including enacting national origin quotas, expanding the number of categories of people eligible for deportation, and making deportable anyone who entered the United States without a valid visa or inspection.42 Before the 1924 statute was enacted, deportation was uncommon—between 1908 and 1920, only two or three undocumented immigrants were deported each year, often being removed from “asylums, hospitals, and jails.”43 These changes were made in the 1924 Act largely to address the fact that the literacy test included in the Immigration Act of 1917 did not deter enough potential immigrants from entering the United States.44

These amendments correlated with an ideological shift in how the American public thought about “legal” versus “illegal” immigration.45 With the 1924 Act, it became clear that legal status was dependent upon an immigrant successfully making it through the immigration channels set up by the government.46 Anyone who entered the United States outside of those channels was considered “illegal.”47 In many ways, the Immigration Act of 1924 linked illegality with race. For example, the American public associated “illegal alien” and “contract laborer” with Mexicans,48 “alien citizen” with Asian immigrants,49 and “colonial subject” with those of the Filipino imported labor force.50

c.  “Wetback” Bill of 1952

The 1948 Evans decision, in which the Supreme Court first interpreted the 1917 anti-harboring statute, came at a time when the issue of Mexican immigration was salient in American political debates. In 1942, the United States implemented the Mexican Farm Labor Program to address the U.S. labor shortage resulting from World War II.51 This program allowed Mexicans to enter the United States as short-term contract workers.52 The program was renewed after the end of World War II, but it restricted Mexican migrants to agricultural work in the United States.53 This work typically consisted of low pay and harsh conditions, exposure to deadly chemicals, long hours of physically demanding labor, and long periods of separation from their families.54

In a 1951 message to Congress, President Harry S. Truman expressed his concerns about “the living and working conditions of migratory farm workers,”55 including the entry of “illegal immigrants, the so-called wetbacks” into the United States.56 Illegal immigrants from Mexico, he argued, had a negative impact on wages and working conditions in the agricultural sector because of their inferior bargaining position.57 President Truman therefore recommended that Congress enact legislation “providing punishment for the offense of harboring or concealing aliens who have entered [the] country illegally.”58 This recommendation prompted the passage of what became unofficially known as the “Wetback”59 Bill in March of 1952.60

In passing the 1952 Bill,61 the 82nd Congress stated that its purpose was broad—its goal was “to strengthen the law generally in preventing aliens from entering or remaining in the United States illegally.”62 It is more accurate, however, to understand the bill as being passed to enforce the removal of Mexican immigrants in the United States and to impede any further unregulated immigration to the United States by Mexicans.63 During legislative hearings, several Representatives made it clear that this bill was intended to address the “wetback” problem in the United States.64 The term “wetback” was initially used to describe Mexicans who entered the United States by swimming or wading across the Rio Grande, leaving them with literally wet backs.65 Eventually, the term expanded to also refer to Mexican immigrants who came to the United States by foot or by car.66

By referring explicitly to the “wetback” problem in the United States, lawmakers who supported this bill invoked a singular image of Mexican immigrants: they were all single men with solely economic goals who lacked social, cultural, or familial ties in the United States and had no intentions of forming them upon their arrival.67 For example, Representative Lyle described Mexican migrants as “hungry, hunted men in a strange land [who] constitute a distinct menace to the property and stock of [American] ranchers.”68 The racial foundations of the 1952 Bill, and the fact that the bill was unofficially referred to as the “Wetback” Bill, only intensified the link between race and legal status that had begun to take shape with the passage of the 1924 Act.

The reference by lawmakers to the 1952 Bill as the “Wetback” Bill was both inaccurate and oversimplistic. The use of the stereotype failed to account for the fact that many Mexican farmworkers immigrated to the United States with their families. These families then entered into many facets of American society, like schools and factories.69 Further, although much of the congressional debate framed immigration as a problem that was concentrated primarily at the Mexican border, some members acknowledged its national scope. Representative Celler, for instance, noted that “those who [came] in illegally through the southern border . . . [found] their way up to the New York sweat shops; they [found] their way up to Michigan and all parts of the country.”70 In recognition that unauthorized migrants were working across the nation, the final version of the 1952 Bill contained an exception to the harboring provision, known as the Texas Proviso, which provided that employment would not constitute harboring.71 The Proviso underscored Congress’s willingness to exempt employers from liability even as it criminalized other forms of assistance to undocumented immigrants.

d.  Section 274(a) of the Immigration and Nationality Act of 1952

The 1952 Bill was incorporated as § 274(a) of the INA72 later that same year. Senator McCarran, the sponsor of § 274(a) of the INA, initially advocated for the removal of the words “willfully and knowingly” from the bill’s anti-harboring provision.73 Senators who opposed this change highlighted the potential it had to lead to situations in which good Samaritans were punished simply for their acts of compassion toward individuals who happened to be undocumented immigrants.74 Without a mens rea requirement of willful or knowing behavior, “any innocent person might be the victim of a tremendous number of fines and court sentences.”75 Senator McCarran ultimately conceded and agreed to amend the proposed language to keep the phrase “willfully and knowingly,” which applied to an individual’s knowledge of an immigrant’s undocumented status.76

e.  The Immigration Reform and Control Act of 1986

The IRCA of 198677 revised § 274(a) of the INA of 1952, which has since been codified as 8 U.S.C. § 1324.78 In doing so, it removed the formerly controversial phrase “willfully and knowingly” from the anti-harboring provision. In its place, it requires that a defendant must be proven to have engaged in harboring behaviors “knowing[ly] or in reckless disregard of the fact” that an immigrant is undocumented, a lower standard of proof than the former “willfully and knowingly” requirement.79 By easing the government’s burden of proof, Congress made it easier to prosecute harboring offenses, suggesting an intent for the provision to reach a broader set of individuals engaged in sheltering undocumented immigrants. Yet, Congress still failed to define the term “harbor” or to specify a mens rea requirement for the act of harboring itself—as opposed to the defendant’s knowledge of the immigrant’s status—leaving the scope of the provision uncertain.

With the passage of the IRCA in 1986, Congress also repealed the Texas Proviso, which provided an exception to the anti-harboring statute for employment.80 Notably, shortly after the IRCA was adopted, the Immigration and Naturalization Service (INS)81 adopted the position that “employment of illegal aliens in and of itself does not constitute harboring under section 274(a) of the Act as amended.”82 This interpretation effectively reintroduced, at the agency level, the very carve-out Congress had eliminated, underscoring the ongoing tension regarding the interpretation of this statute.

To illustrate how the statutory language has shifted, it is useful to compare § 274(a)(3) of the INA—the provision that the IRCA amended—with the current text. Section 274(a)(3) of the INA made any person guilty of a felony if they “willfully or knowingly conceal[ed], harbor[ed], or shield[ed] from detection, or attempt[ed] to conceal, harbor, or shield from detection, in any place” an unauthorized immigrant.83 Here, the mens rea language “willfully or knowingly” specifically modified the act of “conceal[ing], harbor[ing], or shield[ing] from detection”84 any unauthorized immigrant in the United States. In contrast, 8 U.S.C. § 1324(a)(1)(A)(iii) makes guilty any individual who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, any such alien in any place.”85 The mens rea language in this statute—“knowingly or in reckless disregard of the fact”—modifies only the phrase “the fact that an alien has come to, entered, or remains in the United States in violation of law.”86 In other words, § 1324 today attaches mens rea only to an immigrant’s legal status, leaving unresolved what intent, if any, is required for the act of harboring.

This drafting decision left open the question of whether liability requires intent specific to the act of harboring itself. Congress’s failure in both the 1952 and 1986 versions of the anti-harboring statutes to make this clear meant that judges became responsible for determining the proper mens rea required to prove that a defendant acted in violation of the statute. Since Congress failed to define the term “harbor” in § 274(a) of the INA and the Supreme Court offered no further guidance on the issue after its decision in Evans, this task was left solely to lower courts. As a result, interpretations of the anti-harboring provision—and the necessary mens rea that accompanies a conviction under this section—are inconsistent and ambiguous, creating confusion for undocumented immigrants and those who interact with them. The historical evolution of the language of § 1324 reveals a persistent ambiguity surrounding the term “harboring.” Despite multiple legislative revisions to the statute, Congress has never clearly defined the term, leaving courts with broad interpretive discretion, which has resulted in unpredictable outcomes that undermine the intended purpose of § 1324.

B.  Evolution of Case Law

It is perhaps unsurprising that courts tasked with interpreting the multiple iterations of the anti-harboring statute have disagreed over the appropriate mens rea required to prove that a defendant engaged in “harboring.” Initially, courts construed the anti-harboring provision narrowly by focusing their analysis on whether defendants intended to impede efforts by enforcement agents to discover unauthorized immigrants.87 Over time, however, courts came to interpret the term “harbor” more broadly by considering whether a defendant’s actions “substantially facilitated” the presence of an undocumented immigrant.88 Today, the circuit courts are split between these competing approaches—the Third, Fifth, Sixth, and Eighth Circuits follow the broader “substantial facilitation” approach,89 whereas the Second, Seventh, and Ninth Circuits apply a narrower intent-based standard.90

1.  Interpreting the Immigration Act of 1917

Two early cases by the Sixth and Second Circuits interpreted the harboring provision of the Immigration Act of 1917 narrowly. In Susnjar v. United States,91 the Sixth Circuit “conceive[d] the natural meaning of the word ‘harbor’ to be to clandestinely shelter, succor, and protect improperly admitted aliens . . . .”92 The Second Circuit relied on Susnjar when it adopted a similar definition in United States v. Smith.93 There, the court found that harbor “means only that the [immigrants] shall be sheltered from the immigration authorities and shielded from observation to prevent their discovery as aliens.”94 The facts in Susnjar and Smith were fairly straightforward—both involved defendants whose actions directly facilitated the concealment or exploitation of unauthorized immigrants.

In Susnjar, the defendants were accused of violating the anti-harboring provision of the 1917 Act by planning to bring unauthorized immigrants into the United States from Canada and transport them again from Detroit, Michigan to Cleveland, Ohio.95 After arriving in Detroit, the undocumented immigrants stayed the night at Susnjar’s house where they were given food and drink.96 In Smith, several defendants were charged with importing and harboring undocumented immigrants in violation of the 1917 Act.97 The co-defendants met two Canadian girls in Buffalo, New York and learned that the girls did not have enough money to return to Canada.98 The girls then met defendant Smith, who managed the house where they stayed and under whose supervision the girls engaged in prostitution.99 The straightforwardness of these early cases comes not from their particular set of facts, but instead from the obvious connection between each defendant’s actions and the concealment of an undocumented immigrant. In other words, in both of the cases above, the undocumented immigrants were being harbored in the United States due to direct actions taken by the defendants.

2.  Interpreting § 1324 before the 1986 amendment

When defendants began acting in more complex ways, it became harder for judges to find a clear link between defendants’ actions and the concealment of unauthorized immigrants. Later cases, for example, involved defendants who not only provided housing but also engaged in additional activities such as facilitating employment or personal arrangements for undocumented immigrants.100 As a result, courts began to apply a more expansive definition of harboring—one that considered whether actions taken by defendants tended to “substantially facilitate” the continued presence of undocumented immigrants in the United States.

In 1975, the Second Circuit affirmed the conviction of Ernesto Lopez in United States v. Lopez,101 holding that “harboring” includes conduct that substantially facilitates an unauthorized immigrant’s continued presence in the United States.102 Lopez was charged with twenty counts of harboring undocumented immigrants in violation of 8 U.S.C. § 1324(a)(3).103 The defendant “owned several single family houses . . . which [he] had operated as havens for aliens who had illegally entered the United States.”104 Lopez admitted to knowing that the individuals he housed had not immigrated legally.105 Lopez further assisted the undocumented individuals by helping them obtain employment, providing them with transportation to and from work, and arranging sham marriages.106

The Lopez court found that at least two provisions in § 1324 were “inconsistent with an intent to limit the prohibition [of harboring] to conduct connected with the smuggling of the alien into the United States.”107 It cited first to § 1324(a)(2), which stated that “in order to be guilty of knowingly transporting an illegal alien the person charged must ‘have reasonable grounds to believe that [the alien’s] entry into the United States occurred less than three years prior thereto.’”108 It additionally pointed to the fact that Congress explicitly provided that “employment . . . shall not be deemed to constitute harboring.”109 Therefore, the Second Circuit held that Congress intended the term “harbor” to constitute conduct that tended to substantially facilitate an unauthorized immigrant’s remaining in the United States, provided that the defendant had knowledge of the immigrant’s unauthorized status.110

Less than a year later, the Ninth Circuit interpreted the term harboring in United States v. Acosta de Evans111 to mean “simple sheltering.”112 It argued that the purpose of § 1324 “is to keep unauthorized aliens from entering or remaining in the country” and that “this purpose is best effectuated by construing ‘harbor’ to mean ‘afford shelter to.’”113 The Ninth Circuit addressed an important argument made by the defendant—that the exemption of employment from the harboring provision “allows those who exploit [immigrants’] labor to escape punishment while penalizing persons who, in some instances, may be acting in a neighborly and human fashion.”114 The court was somewhat sympathetic to this argument but stated firmly that “it is the kind of unfairness which it is for Congress, not courts, to cure.”115

The Ninth Circuit’s opinion in Acosta de Evans is only three pages long. While it notes that one of the immigrants whom de Evans was providing shelter to, Imelda Felix-Arroyo, was a relative of de Evans,116 the opinion glosses over their familial relationship and instead focuses on the fact that de Evans “knew that [Felix-Arroyo] was illegally in the country.”117 In doing so, the court implies that the context of the “harboring” behaviors are unimportant—despite the fact that the legislative history surrounding the various anti-harboring provisions are largely reliant on context. For example, when the 1952 bill was incorporated as § 274(a) of the INA,118 legislators highlighted their concerns about victimizing those who provided support for individuals who simply happened to be undocumented immigrants.119

The Ninth Circuit’s decision in Acosta de Evans was the first in a series of cases involving the sanctuary movement in the 1980s,120 which culminated in the highly contested 1989 case United States v. Aguilar.121 In it, the Ninth Circuit affirmed the convictions of defendants for “masterminding and running a modern-day underground railroad that smuggled Central American natives across the Mexican border” to “several Arizona churches that operated as self-described sanctuaries.”122 After undocumented immigrants made it to churches in Arizona, many of them were subsequently dispersed to safehouses across the United States. In taking these actions, the defendants “counseled the aliens to avoid American immigration authorities at all costs and lie to them if apprehended.”123

The District Court in Aguilar instructed the jury that “while harboring included ‘conduct tending to directly or substantially facilitate the alien’s remaining in the United States in violation of law,’ it did not require an intent to aid the unlawful alien for the purpose of evading INS detection.”124 The Ninth Circuit upheld this jury instruction based on the definition of harboring it set out in Acosta de Evans, where it “examined the legislative history of § 1324(a) and case law from other circuits that already had addressed this issue.”125 Ultimately, the Aguilar decision was understood by the public to hold that churches and other individuals or organizations who offered aid to undocumented immigrants would be guilty of harboring so long as they were aware of the illegal status of the immigrants they were helping.126 In other words, “compassion [had] become illegal.”127 Other courts would later expand upon the definition of harboring as substantial facilitation.

III.  Status of Current Law

The enactment of the IRCA in 1986, as previously highlighted, led to substantial changes for § 1324. Most notable was the removal of the words “willfully and knowingly” in favor of the phrase “knowing or in reckless disregard of the fact that an alien has come to . . . the United States in violation of law.”128 Recent circuit court decisions that bear on the interpretation of this statute have failed to address the confusion and ambiguity surrounding the statute. In fact, many contemporary circuit court decisions rely on precedent that interpreted the meaning of § 1324(a) before the 1986 amendment.129 Therefore, despite the fact that Congress made an explicit change to the language of § 1324 with the enactment of the IRCA in 1986, the applicable law in several U.S. jurisdictions reflects courts’ interpretation of the law as it existed in 1952.

Circuit courts are currently split along two main lines of analysis in their interpretation of the word “harbor” in § 1324: the Third, Fifth, Sixth, and Eighth Circuits all adhere to the broader “substantial facilitation” test that the Second Circuit set out in Lopez,130 while the Second, Seventh, and Ninth Circuits require proof of intent in order to convict a defendant of harboring.131

A.  The Third, Fifth, Sixth, and Eighth Circuits Apply the Substantial Facilitation Standard

The Third, Fifth, Sixth, and Eighth Circuits apply the “substantial facilitation” test to cases involving § 1324. This test, which was developed by the Second Circuit in Lopez, provides that the term “harbor” encompasses conduct which tends to “substantially facilitate an alien’s remaining in the United States illegally,” given that the defendant had knowledge of their illegal status.132 Substantial facilitation often involves affirmative acts such as providing shelter, transportation, employment, or false documentation.133 The following cases illustrate how these circuits have applied this standard.

The Sixth Circuit recently applied the substantial facilitation test in United States v. Zheng,134 a case that demonstrates how courts applying this test might treat employment and housing as forms of harboring. Here, the Sixth Circuit considered an appeal for convictions against Yu Zheng and Yan Qui Wu, a couple operating a Chinese restaurant in Kentucky. Zheng and Wu were found to have employed undocumented immigrants at their restaurant, and to have provided those immigrants with shelter in their basement.135 At the trial court,                 a jury ‌f‌o‌u‌nd Zheng and Wu guilty of harboring under 8 U.S.C. § 1324(a)(1)(A)(iii).136 The couple appealed, arguing that the district court “erred in instructing the jury on the meaning of ‘harboring’ by not including a requirement that [the defendants] acted intentionally and knowingly in shielding the illegal noncitizens from law enforcement.”137

The Sixth Circuit affirmed the conviction, noting that in 1986, Congress amended 8 U.S.C. § 1324 as part of the IRCA.138 In doing so, Congress removed the statutory requirement that a person concealing, harboring, or shielding a noncitizen must have done so willfully or knowingly.139 Congress, however, included the “knowing or in reckless disregard” mens rea to qualify “the fact that an alien has come to, entered, or remains in the United States.”140 This explicit change, according to the Sixth Circuit, suggests that “Congress does not require the government to prove that a defendant acted intentionally.”141 The Sixth Circuit upheld the district court’s jury instruction, which “specified that providing housing and employment are ways to show substantial facilitation.”142 In doing so, the Sixth Circuit reinforced its relatively broad interpretation of § 1324, emphasizing substantial facilitation over specific intent to harbor.

The Sixth Circuit’s justification in Zheng aligns with the approach taken by the Third, Fifth, and Eighth Circuits.143 In United States v. Ozcelik,144 the Third Circuit applied the same substantial facilitation framework but limited its reach when the defendant’s conduct does not involve affirmative assistance.145 In Ozcelik, the court reversed a defendant’s conviction for attempting to harbor an undocumented immigrant. The case involved Hakan Ozcelik, a Turkish national who immigrated to the United States as a stowaway in 1990 and eventually became a legal U.S. citizen.146 When Ozcelik was later employed as a Customs and Border Protection Officer for the Department of Homeland Security, he was introduced to Tunc Tuncer, a Turkish citizen who failed to meet the requirements of his F-1 student visa and was therefore subject to deportation.147 Ozcelik offered to help Tuncer by paying friends in the INS to change the dates for Tuncer’s visa.148 Ozcelik was ultimately charged with “seeking and accepting a bribe in return for being influenced in the performance of official acts” as well as with “attempting to conceal, harbor, and shield from detection an illegal alien.”149

With respect to the harboring charge, the Third Circuit found that the proper test—whether a defendant’s conduct tended to substantially facilitate an immigrant’s remaining in the United States illegally—was not met when Ozcelik told Tuncer, an undocumented immigrant, to hide from authorities and use multiple addresses.150 They noted that “[c]onvictions under § 1324 generally involve defendants who provide illegal aliens with affirmative assistance, such as shelter, transportation, direction about how to obtain false documentation, or warnings about impending investigations.”151 The court held that Ozcelik’s behavior did not constitute “harboring” because he did not know of any “imminent threat” to Tuncer’s legal status in the United States.152 In applying the substantial facilitation test, the Third Circuit emphasized the absence of affirmative assistance by the defendant when it reversed his conviction.

The Fifth Circuit similarly emphasized that a defendant’s actions must be substantial when it affirmed a conviction in United States v. Shum.153 There, the court held that actions that “make an alien’s illegal presence in the United States” easier or less difficult constitute substantial facilitation.154 Defendant Shum engaged in this kind of behavior by employing undocumented immigrants as janitors and providing them with false identification cards that would enable them to pass a required background check for cleaning government buildings.155

The Eighth Circuit employed the same “substantial facilitation” test in United States v. Tipton156 when it affirmed a conviction of a restaurant owner who had hired and harbored illegal immigrants.157 Tipton was found to have paid the immigrants less than minimum wage for their work while providing an apartment for them to live in.158 Tipton and another defendant, Seferi, substantially facilitated the remaining in the United States of the undocumented immigrants “by granting them employment, by providing [them] a place to live, daily transportation, and money to purchase necessities, and by maintaining counterfeit immigration papers for each” immigrant.159

The Third, Fifth, Sixth, and Eighth Circuits have found that the term “harbor” refers to conduct which tends to “substantially facilitate” an unauthorized immigrant’s remaining in the United States. Although courts differ in exactly how they police the line between affirmative and passive assistance, these circuits have generally emphasized conduct such as providing shelter, employment, transportation, or fraudulent documents as sufficient to establish harboring under § 1324.160 However, there is no definitive test that circuit courts apply to determine whether conduct is truly substantial.

B.  The Second, Seventh, and Ninth Circuits Require Intent

The Second, Seventh, and Ninth Circuits require intent to harbor to convict under § 1324, but they articulate this requirement in slightly different ways. The Second Circuit applies a narrowed version of the substantial facilitation test that requires intent,161 while the Seventh and Ninth Circuits look for proof that a defendant purposefully concealed or safeguarded undocumented immigrants from detection.162

The Second Circuit clarified its approach in United States v. Vargas-Cordon,163 where it affirmed a defendant’s conviction under § 1324(a)(1)(A)(iii).164 The thirty-seven-year-old defendant had arranged for the unlawful entry of his fifteen-year-old niece into the United States and subsequently housed her and concealed her presence while maintaining a sexual relationship with her.165

Doctrinally, Vargas-Cordon addressed the Second Circuit’s own inconsistent precedent. In 1940, the court read “harbor” to require intent to evade detection, but by 1975 it had applied the term more broadly to cover conduct substantially facilitating unlawful presence.166 To resolve this tension, the Vargas-Cordon court emphasized the placement of “harbors” alongside “conceals” and “shields from detection” in § 1324, reasoning that Congress “intended [the term] to encompass an element of concealment.”167 The court also relied on the overall structure of § 1324(a), noting that each subpart of the statute focuses on a distinct kind of act.168

Applying this interpretation, the Second Circuit concluded that Vargas-Cordon’s actions were undertaken with the purpose of preventing his niece’s detection by authorities, thereby satisfying an intent-based test for harboring. Although the Second Circuit continues to invoke the substantial facilitation framework it set out in its 1975 Lopez decision, it has modified this test by requiring proof of intent to substantially facilitate an immigrant’s stay in the United States. This requirement is therefore narrower than the substantial facilitation test alone and aligns more closely with the tests used by the Seventh and Ninth Circuits.

The Seventh Circuit in United States v. Costello169 reversed a defendant’s conviction, holding that cohabitation with a known undocumented immigrant is not enough to establish “harboring” under § 1324 because the term “harbor” must be interpreted with context in mind.170 In Costello, the defendant—an American citizen—was charged with harboring her Mexican boyfriend from detection, who she knew was in the United States illegally.171 The government urged the Seventh Circuit to define the term “to harbor” as “to shelter,” essentially advocating for a substantial facilitation test.172 The Seventh Circuit rejected this reading, explaining that the meaning of “harbor” may change depending on the circumstance.173 Writing for the court, Judge Posner noted that “‘[t]o shelter’ has an aura of protectiveness, as in taking ‘shelter’ from a storm. To shelter is to provide a refuge.”174 Under that definition, sheltering is not what occurred in this case.175  

Building on this reasoning, the Seventh Circuit suggested that the “substantial facilitation” standard should be supplemented to require judges to consider context when assessing whether a defendant has harbored an illegal immigrant. Courts should consider whether a defendant provides or offers “a known illegal alien a secure haven, a refuge, a place to stay in which the authorities are unlikely to be seeking him.”176 This increased specificity differentiates “harboring” from “simple sheltering,” and stands in contrast to the broader facilitation approach used by the Third, Fifth, Sixth, and Eighth Circuits, which does not require proof of intent to conceal.

Three years later, in United States v. McClellan,177 the Seventh Circuit reiterated that harboring is more deliberate than “simply providing housing”—harboring requires an intent to safeguard undocumented immigrants from being identified by authorities.178 The court affirmed a conviction where the defendant, a restaurant owner, was found to have provided housing to his employees, whom he knew to be undocumented immigrants. The court concluded “that a defendant is guilty of harboring for purposes of § 1324 by ‘providing . . . a known illegal alien a secure haven, a refuge, a place to stay in which the authorities are unlikely to be seeking him.”179 The Seventh Circuit emphasized that this kind of intent can be established by proving that a defendant took actions to conceal an undocumented immigrant, such as by moving the immigrant “to a hidden location or providing [them with] physical protection.”180

The McClellan court notably distinguished Costello by finding that, “unlike the defendant in Costello, Mr. McClellan and his employees were not ‘cohabiting,’ nor was he simply providing aliens with a place to stay.”181 The court’s reasoning makes clear that a defendant’s intent is an essential component of distinguishing “harboring” from “simply providing housing to a known alien” under § 1324.182

The Ninth Circuit similarly upheld a conviction based on jury instructions that defined “purposefully” as the appropriate mens rea to convict a defendant of harboring undocumented immigrants. In United States v. You,183 the court noted that, in the context of a jury instruction, requiring a finding of purpose “is synonymous with having acted with necessary intent.”184

The Second, Seventh, and Ninth Circuits require intent in order to find a defendant guilty of harboring under § 1324. The Second Circuit applies a hybrid approach by requiring intent of substantial facilitation, while the Seventh and Ninth Circuits look for specific evidence of intent to conceal undocumented immigrants from the authorities.

C.  The Eleventh Circuit Requires Knowing Conduct That Substantially Facilitates Concealment

Finally, the Eleventh Circuit requires a slightly lower mens rea standard than the Second, Seventh, and Ninth Circuits. The test used by the Eleventh Circuit lies somewhere between the “substantial facilitation” test and strict intent.185 Notably, the Eleventh Circuit employs reasoning similar to that of the Second Circuit in Vargas-Cordon. Both courts adopt “hybrid” tests that incorporate an explicit mens rea requirement (e.g., “intent” or “knowingly”), which specifically modifies conduct falling within the substantial facilitation test.186 The substantial facilitation test is used independently by the Third, Fifth, Sixth, and Eighth Circuits.187

In United States v. Dominguez,188 the Eleventh Circuit found that the action of “harboring” was appropriately qualified by the mens rea “knowingly.”189 Still, the court emphasized that the knowing conduct must be such that it “tend[s] to substantially facilitate an alien’s escaping detection thereby remaining in the United States illegally.”190 In this instance, Dominguez brought the immigrants in question to immigration counsel shortly after they entered the United States. Further, the undocumented individuals did not engage in any conduct indicating that they were hiding or avoiding immigration officials. Importantly, the Eleventh Circuit argued that under its test for harboring, “the relevant evidence in establishing that a defendant acted in furtherance of an alien’s illegal status will vary from case to case.”191

The circuit courts have articulated two dominant approaches to interpreting § 1324’s anti-harboring provision: one that focuses on whether a defendant’s actions substantially facilitated an immigrant’s continued presence in the United States, and another that requires clear evidence of intent to harbor. Because the statute lacks a uniform standard, defendants engaged in vastly different conduct—human trafficking versus providing food and shelter—may face the same criminal liability. Courts in some circuits have upheld convictions even where defendants may have had no intention to violate the law, leading to potentially severe penalties for individuals or organizations engaged in humanitarian aid. This Comment therefore proposes a dual approach—courts should interpret § 1324’s mens rea requirement narrowly in sanctuary cases and more broadly in trafficking cases.

IV.  Applying Narrow Intent to Sanctuary and Substantial Facilitation to Trafficking

This Comment argues that courts should interpret the mens rea requirement of § 1324’s anti-harboring provision strictly when considering instances of providing sanctuary for immigrants but broadly when considering instances of trafficking. In other words, courts should require proof of intent in cases where defendants have provided sanctuary, while they should apply the substantial facilitation test in cases where defendants have trafficked immigrants. This approach aims to address the tension between the facts that (1) the United States has no comprehensive law against trafficking, leading “law enforcement [to] prosecute traffickers using a variety of criminal, labor, and immigration laws”192 and (2) between 2011 and 2025, ICE had a protected areas policy, which “instruct[ed] officers to refrain from taking enforcement actions at or near . . . protected areas,”193 including places like schools, medical or mental healthcare facilities, places of worship, and more.194 What ties these locations together is that they are often places where undocumented immigrants are offered aid and other forms of sanctuary.

This conflict matters because it creates the risk that the same statutory provision could be applied both to humanitarian actors offering refuge in protected spaces and to traffickers exploiting immigrants, even though the moral and legal stakes of these contexts differ dramatically. By failing to distinguish between them, courts risk chilling sanctuary while under-penalizing trafficking. The Trump administration’s public condemnation of sanctuary cities has only sharpened this tension,195 casting sanctuary itself as unlawful harboring and underscoring the need for courts to clarify that different mens rea standards should apply in different circumstances. More broadly, this dynamic illustrates how statutory ambiguity can enable the government to conflate fundamentally different contexts—sanctuary and trafficking—under the same punitive framework. Recognizing this tension therefore creates space for courts to draw workable distinctions that Congress has not.

Against this backdrop, this Comment advances two distinct arguments supporting the separation of sanctuary and trafficking under the mens rea requirement of § 1324’s anti-harboring provision. First, courts should interpret the statute to require intent to harbor in sanctuary cases but allow a broader substantial facilitation standard in trafficking cases. Second, even if courts decline to bifurcate the legal standard under § 1324, they should still interpret the substantial facilitation test in light of the defendant’s motive, ensuring that humanitarian actors are not punished as harshly as traffickers.

A.  Sanctuary vs. Trafficking

Although both sanctuary and trafficking can trigger prosecutions under § 1324’s anti-harboring provision, they raise sharply different concerns. Sanctuary cases typically involve communities or individuals providing shelter, food, or aid to undocumented immigrants, often motivated by humanitarian or religious commitments. By contrast, trafficking cases involve exploitation—through force, fraud, or coercion—that uses immigrants’ legal vulnerability as a tool of control. These divergent contexts highlight why a uniform mens rea standard risks conflating conduct aimed at protection with conduct rooted in exploitation.

1.  Harboring as sanctuary

In Aguilar, the Ninth Circuit considered the application of § 1324’s anti-harboring provision to an instance of providing sanctuary to undocumented immigrants.196 As this case suggests, the sanctuary movement has a rich history in the United States.197 Sanctuary can take many different forms, including active forms of sanctuary (including helping undocumented immigrants enter the United States and assisting with transportation within the United States) as well as reactive forms of sanctuary (including providing shelter, food, clothing, and medical assistance).198 While both the active and reactive forms of sanctuary have historical foundations, the practice of reactive sheltering is better established.199

Despite the Ninth Circuit’s holding in Aguilar, many religious groups and other communities have continued providing sanctuary to undocumented immigrants. For example, as part of the New Sanctuary Movement of 2007, congregations and religious leaders from across the United States formed a coalition in which they agreed to provide refuge for undocumented immigrants at risk of deportation.200 While ICE is authorized to enter those places with warrants to arrest undocumented immigrants,201 it was the agency’s former official policy to avoid immigration enforcement in protected areas, including schools, churches, and medical facilities.202 Although these groups may act with knowledge that undocumented immigrants are present, the open and public nature of their conduct complicates any inference of intent to evade detection, since their aim is often humanitarian rather than concealment.

2.  Harboring as trafficking

The Trafficking Victims Protection Act (TVPA)203 of 2000 defines “severe forms of trafficking” to include both sex trafficking and labor trafficking.204 Both of these severe forms of trafficking consist of the use of “force, fraud, or coercion.”205 Sex trafficking, in particular, involves the “recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act.”206 When conduct that constitutes trafficking is committed against undocumented immigrants, this can implicate the anti-harboring provision of § 1324 as well.

One key component of adult trafficking is the element of force or coercion. Importantly, “even if victims initially offer consent, that consent is rendered meaningless by the actions of the traffickers to exploit them for labor, services, or commercial sex.”207 These actions may include targeting vulnerable individuals, isolating them, and monitoring their movement and travel.208 In cases involving minors, there is no requirement for fraud or coercion.209 Several courts have upheld convictions on charges under both § 1324’s anti-harboring provision and federal anti-trafficking laws.210 In United States v. Garcia-Gonzalez, for example, the Fifth Circuit affirmed a defendant’s conviction under both statutes after he was charged with three counts of child sex trafficking, one count of conspiring to harbor illegal aliens, and six counts of alien harboring.211 These charges are often brought together, where applicable, as it may be easier for prosecutors to secure a conviction under § 1324 when proving the elements of trafficking—force, fraud, or coercion—may be more difficult.

Still, critics of the TVPA argue that the law does not do enough to protect victims of labor and sex trafficking.212 In particular, the TVPA’s classification of “severe victims” fails to address the “hidden nature of the industry,” in which “[m]any, if not most, of the victims are transported into the host country illegally” and it is their immigrant status that enables the victim to be hidden by the trafficker.213 In other words, because undocumented immigrants fear detection and deportation, traffickers exploit this vulnerability to keep victims hidden, discourage them from seeking help, and maintain control over their services. Other weaknesses of the TVPA include its failure to provide assistance to “voluntary” victims—those who knew they were engaging in sex work but did not know that they would be forced to work under inhumane conditions—as well as the requirement that victims assist in the prosecution of their traffickers.214 Because the TVPA defines “severe forms of trafficking” narrowly—focusing on force, fraud, or coercion—individuals who enter into work voluntarily fall outside the statute’s protections, even if they are later exploited under abusive conditions. These gaps in coverage have led prosecutors and courts to rely on overlapping provisions, including § 1324’s anti-harboring provision, to hold traffickers accountable and bring justice to trafficking victims.

B.  Courts Should Apply Distinct Mens Rea Standards: Intent for Sanctuary, Substantial Facilitation for Trafficking

The circuit courts that have considered whether § 1324 requires proof that a defendant acted intentionally have generally split into two camps. Several courts have held that § 1324 requires proof of intent, while others have held that the government need only prove that a defendant’s actions substantially facilitated an undocumented immigrant’s remaining in the United States. One way for courts to address the concern outlined above is to require intent for defendants providing sanctuary, while only requiring proof of substantial facilitation for those engaged in trafficking.

The Supreme Court has repeatedly emphasized that “statutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”215 This principle reflects a recognition that statutory language derives meaning from its relationship to other provisions, the structure of the statute as a whole, and the underlying purpose Congress sought to achieve. Courts must therefore consider how different interpretations would function in practice and whether they would produce outcomes that align with legislative intent.216

This contextual approach advanced by the Supreme Court is especially important in cases involving broad or ambiguous terms like “harboring.” In Yates v. United States,217 the Supreme Court declined to apply an expansive interpretation of the term “tangible object” in the Sarbanes-Oxley Act, emphasizing that the term must be understood in light of its placement within the broader statute.218 In particular, the Court found it to be “highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind” in a statute specifically aimed at targeting corporate fraud.219 Similarly, in Marinello v. United States,220 the Court narrowly interpreted a statute which makes it a felony, “corruptly or by force,” to “endeavo[r] to obstruct or imped[e] the due administration” of the Tax Code.221 The Court recognized that it has:

traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress and out of concern that a “fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.”222

Supreme Court precedent therefore reinforces the idea that courts must interpret statutory language with sensitivity to context, Congress’s purpose, and the real-world implications of their rulings.223

Taking this interpretive approach one step further, several scholars have offered support in defense of “multiple statutory meanings.” Ryan Doerfler, a Harvard Law School professor whose work focuses on theories of statutory and constitutional interpretation, emphasizes that legislation mimics ordinary conversation in significant ways.224 Because of this, “what the words at issue [in statutes] mean depends not just upon the setting in which they were spoken or written down, but also upon the setting in which they are heard or read.”225

In other words, the context of statutory language matters. Congress relies on the ability of courts to recognize the importance of context when it uses adjectives like “dangerous,” “serious,” and “significant” in statutes.226 Further, “Congress uses context-sensitive language in statutory texts that are intended to be read in multiple, importantly different contexts.”227 Congress sometimes drafts statutory language that is intended to be interpreted in both civil and criminal contexts, while knowing that interpretive norms differ between the two settings. For example, 15 U.S.C. § 77q prohibits the use of interstate commerce for the purposes of fraud or deceit.228 For criminal convictions under this statute, an intent to defraud or violate the law is a necessary element of the claim.229 For civil convictions, however, the plaintiff need only prove that the defendant acted recklessly.230 There is a difference in interpretation between the criminal and civil contexts of this statute, despite the fact that the language remains the same.

Bifurcation is also consistent with criminal law’s recognition that the same underlying offense can carry different mens rea requirements depending on context. Homicide statutes, for example, vary the required mens rea to reflect different levels of culpability. First-degree murder requires intent and premeditation, second-degree murder requires intent without premeditation, and manslaughter may only require recklessness or negligence.231 Each involves the same basic act—causing the death of another person—but the same underlying crime may be punished differently depending on the defendant’s mens rea.

Similarly, Good Samaritan laws commonly bifurcate legal outcomes based on the motive behind otherwise similar conduct. Many states provide immunity from drug possession charges for individuals who seek emergency assistance during an overdose, recognizing that the same criminal act of possessing a controlled substance should not be punished when undertaken in the course of trying to save a life. For example, Illinois law prohibits arrest or prosecution for drug possession when the evidence arises from a good-faith effort to seek or obtain emergency medical assistance.232 Although Good Samaritan laws formally achieve this result through immunity provisions rather than shifting the elements of the crime, they nonetheless illustrate that legislatures and courts are willing to treat the same underlying conduct differently depending on motive. These statutes therefore reflect a broader principle that the purpose behind an action can and should inform culpability.

Although courts do not often apply different mens rea standards within a single statutory provision, § 1324’s ambiguity creates an opportunity to do so. Recognizing that sanctuary and trafficking represent fundamentally different contexts, courts should adopt an intent standard in sanctuary cases and a substantial facilitation standard in trafficking cases. While this would be a novel approach, it is consistent with criminal law’s long-standing recognition that context and motive can meaningfully alter culpability.

As highlighted earlier, the “Wetback” Bill and what eventually became § 274(a) of the INA were rushed through the legislature in response to pressures from both President Truman and the Mexican government, who were concerned about illegal immigration from Mexico having negative impacts on the wages and working conditions of legal laborers.233 The actual language of § 274(a) swept widely, while the bill’s sponsors and supporters indicated that the harboring provision should be interpreted narrowly.234 For example, Congressman Celler stated that the “Wetback” Bill should only be used to punish “the smuggler and the man who tries to make money out of the misery of some of the workers . . . . Certainly we do not want to get after the good people.”235

It is clear, then, that the drafters of § 274(a) were legislating with an intent to “punish ‘malefactors. . .who exploit and oppress’” undocumented immigrants.236 How can this be squared with the additional use of § 1324 as a tool to punish those who aim to support and uplift? Doerfler’s endorsement of the interpretation of multiple statutory meanings offers a solution to this problem. The legislative intent of § 274(a) paints a dichotomous picture of the United States at the time the statute was enacted—on one hand, legislators were worried about the exploitation of migrant workers. On the other, their beliefs were shrouded in nationalism and racism toward Mexican laborers. A dual interpretation of the statute would allow courts to preserve Congress’s aim of targeting traffickers and exploiters, while limiting the risk that the same provision could be used against those engaged in humanitarian sanctuary—efforts that Congress never clearly intended to punish. The moral distinction between sanctuary and trafficking lends further support to a bifurcated approach. Trafficking is a classic malum in se offense—one that is inherently exploitative and socially condemned.237 Sanctuary, by contrast, is closer to a malum prohibitum offense—conduct made criminal by statute, often without inherently wrongful intent.238 Courts regularly recognize this difference when determining culpability,239 and doing so here would ensure proportionality in how § 1324 is enforced.

Importantly, this proposed approach is fully consistent with the existing mens rea structure under § 1324. The knowledge requirement that a defendant must know or recklessly disregard the fact that an individual is unlawfully present in the United States is well-settled under the statute. This Comment merely builds upon this threshold element by proposing that courts adopt a bifurcated approach when evaluating a defendant’s further purpose in harboring. The existing knowledge requirement serves as a baseline that ensures defendants are aware of the immigration status of those they assist, while the bifurcated intent inquiry adds a second dimension to that analysis, allowing courts to determine culpability based on the nature of the conduct and its underlying motive.

1.  This interpretation accords with legislative intent

Of course, critics might challenge this argument as being too reliant on the legislative history, rather than focusing on the statute’s plain language. This reliance creates a risk of expanding the scope of the law beyond its original intent, and of imposing contemporary legal or policy preferences.240 It is clear, however, that the plain language of § 1324 cannot be fully understood without accounting for its long, complicated history. In attempting to parse out the proper interpretation of the term “harbor,” almost every circuit court has undertaken the task of outlining the statute’s legislative history. Further, this history reflects the evolving norms and understandings of American legislators. Looking at the statute’s plain language in isolation risks obscuring the statute’s overall purpose. This risk is heightened by the Supreme Court’s recent trend toward strict textualism, which often emphasizes statutory text to the exclusion of history or purpose.241 Against this backdrop, § 1324’s long and complicated history underscores why context remains essential to understanding the provision.

2.  This interpretation does not unduly expand the potential for judicial activism

Another critique of this argument is that “if courts were permitted to recognize multiple statutory meanings, that would create an additional way in which courts might mischaracterize what statutes say.”242 The concern is that if courts are permitted to interpret multiple meanings from the same statute, then they have a greater opportunity to both introduce meanings that Congress never actually intended and legislate from the bench. Doerfler pushes against this critique by noting that courts already have the potential to do these things when they are constrained to only one statutory interpretation.243

In the case of § 1324, separate courts have already been characterizing the anti-harboring provision in a variety of ways. It is likely that some, if not many, of these interpretations have introduced meanings that Congress never intended. For example, the use of § 1324’s anti-harboring provision to prosecute those who engage in cross-border sex trafficking is likely not a scenario that the statute’s drafters envisioned for the provision. The problem of mischaracterization, therefore, may not lie as much in the number of possible interpretations, but in the inherent challenges courts face when trying to apply statutes to situations that differ from those initially anticipated by legislators.

3.  This interpretation does not inherently create a roadmap for evasion

Distinguishing between sanctuary and trafficking in the application of § 1324 may simply create a roadmap for evasion for those intending to exploit undocumented immigrants. In other words, defendants would always attempt to argue that their actions constitute sanctuary, even when they do not. Without more guidance, this would likely undermine the clarity and predictability of § 1324’s anti-harboring provision, providing confusion to victims and sanctuary providers, while benefiting those engaged in trafficking.

Therefore, it will be important for courts to clearly define the terms “sanctuary” and “exploitation” in their role of giving meaning to broad statutory language. Courts can look to a variety of sources to aid with this task, including statutory definitions, prior case law, dictionaries, international law, public policy, and even testimony or amicus briefs from experts in these fields. For example, courts might define “sanctuary” in terms of its underlying humanitarian purpose. Throughout its history, the sanctuary movement has focused on providing non-coercive shelter, aid, and protection, especially when formal legal protections are unavailable.244 Courts might also consider different kinds of “exploitation,” such as physical, emotional, and economic. The Palermo Protocol, the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, defines exploitation as “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”245 These or similar definitions would allow for a broader and more nuanced understanding of these distinct categories, such that judges would have the informed discretion to distinguish between instances of sanctuary and trafficking on a case-by-case basis.

To determine which mens rea standard applies in a given case, courts could adopt a threshold inquiry focused on a defendant’s purpose. This would not require the creation of an entirely new framework but would instead build upon existing judicial practices. Courts frequently assess purpose or motive in criminal contexts—such as distinguishing between different degrees of homicide246 or determining the applicability of sentencing enhancements247 —and can similarly examine whether the defendant’s conduct was primarily exploitative or humanitarian. Evidence relevant to this inquiry could include the nature of the relationship between the defendant and the undocumented immigrant, the presence or absence of financial gain or coercion, the degree of planning involved, and whether the defendant’s actions were part of a broader criminal enterprise. Courts could also consider testimony from the undocumented immigrant, communications or records showing intent, and expert evidence on trafficking dynamics. In practice, courts could begin by asking whether the defendant’s conduct was primarily exploitative. Where that inference cannot be drawn, the statute should be applied under an intent requirement.

While there still remains a possibility of creating a roadmap for evasion, this concern does not weigh decisively against adopting this nuanced approach to interpreting and applying § 1324. The anti-harboring provision is already vague and inconsistently applied across the circuits, meaning that courts already use a case-by-case approach when determining a defendant’s purpose and evaluating the nature of their conduct. Requiring intent for sanctuary cases but only substantial facilitation for trafficking cases might actually provide courts with more guidance for an already flexible and discretionary area of law.

4.  Courts should default to requiring intent in unclear cases

Some conduct may not neatly fall into either the sanctuary or trafficking categories. For instance, a person might help a romantic partner or family member remain in the United States not out of humanitarian concern but also not for financial or exploitative reasons. These kinds of relationships can involve mixed motives that defy easy classification. In such cases, courts should default to applying the stricter mens rea requirement of intent. This default would function as a safeguard against sweeping individuals into criminal liability where the moral implications of the conduct are ambiguous. This approach additionally reflects the principle that criminal statutes, particularly those carrying severe penalties, should be interpreted narrowly to protect individual liberty and avoid punishing conduct that lacks culpable intent.248

This kind of “safety valve” would not undermine the bifurcation framework but would instead reinforce it, ensuring that courts err on the side of caution when the normative character of a defendant’s conduct is unclear. By requiring clear evidence of intent in ambiguous cases, courts can adhere to the legislative purposes of § 1324 without chilling socially acceptable or morally benign behavior.

C.  Courts Should Uniformly Apply the Substantial Facilitation Test With Respect to a Defendant’s Motive

The substantial facilitation test that has been adopted by the Third, Fifth, Sixth, and Eighth Circuits defines “harboring” broadly to include any conduct that makes it easier for undocumented immigrants to remain in the United States. But this standard does not distinguish between exploitative conduct, such as trafficking, and humanitarian conduct, such as providing sanctuary. Therefore, it is important to qualify this proposed solution by requiring that courts apply the substantial facilitation test considering a defendant’s motive for harboring undocumented immigrants. In other words, courts should consider whether a defendant’s actions tend to substantially facilitate the exploitation of undocumented immigrants, as is typically the goal in instances of trafficking.249

This is a viable alternative because it modifies an already existing approach. The Third, Fifth, Sixth, and Eighth Circuits have already adopted the substantial facilitation approach, suggesting that a modified version of this test will come with both practicality and judicial familiarity. The modified version provides clarity to this existing approach, however, by focusing the court’s analysis on the effects of a defendant’s conduct—a standard that is likely easier to establish than specific intent. Further, it still provides courts with the necessary discretion to consider motive without making it dispositive. In other words, courts will retain the flexibility to differentiate between sanctuary and trafficking cases while still working within an existing body of precedent.

As highlighted above, courts will want to consult a variety of sources to develop an effective definition of “exploitation.” In particular, courts will likely want to look to existing anti-trafficking statutes, including the TVPA, which focus on the use of “force, fraud, or coercion” as well as the subjection of individuals to “involuntary servitude, peonage, debt bondage, or slavery.”250

The proposal that courts should distinguish between exploitative and humanitarian conduct when applying § 1324’s mens rea requirement makes use of judicial discretion and amplifies the approach used by the Eleventh Circuit in United States v. Dominguez. In Dominguez, the court emphasized that whether evidence is relevant “in establishing that a defendant acted in furtherance of an alien’s illegal status” will be context- and defendant-specific.251 In applying the substantial facilitation test, this Comment argues that courts should consider whether a defendant’s actions tended to substantially facilitate the exploitation of undocumented immigrants or merely tended to substantially facilitate the provision of humanitarian aid. In the latter cases, courts should take a more lenient approach in applying § 1324 sanctions.

There are several reasons why this modified substantial facilitation test would lead to different results for individuals engaging in sanctuary provision and those engaging in actions that constitute trafficking. First, similar to the argument outlined above, it allows courts to punish those who benefit from the exploitation of undocumented immigrants—as the proponents of the original harboring statute intended—while narrowing the mens rea required to convict defendants that have provided sanctuary to undocumented individuals.

Further, giving more discretion to judges applying the substantial facilitation test allows them to consider the history of the sanctuary movement in the United States as well as the lenient position taken by administrative agencies with respect to those who provide such sanctuary (e.g., ICE’s protected areas policy). In doing so, courts may recognize that the substantial facilitation test, as it is currently applied by several circuit courts, is too broad to accurately capture the harms that § 1324’s anti-harboring provision aims to address. Costello demonstrates how applying the substantial facilitation standard without attention to context or purpose can lead to the criminalization of non-exploitative, humanitarian conduct, an outcome that is inconsistent with statutory intent.

Additionally, courts should consider the role of agency deference. It was ICE’s official policy from 2011 to 2025 to avoid immigration enforcement in protected areas, including schools, churches, and medical facilities.252 A court might therefore apply something akin to Kisor deference—established in Kisor v. Wilkie253 —when it considers the substantial facilitation test. According to Kisor, courts may defer to an agency’s interpretation of a statute when a regulation is “genuinely ambiguous,” the agency’s interpretation of the ambiguous provision is “reasonable,” and the agency in question is entitled to controlling weight.254 However, it is important to note that Kisor deference has been criticized for giving too much power to agencies and incentivizing vagueness in regulations.255 Therefore, it might make more sense for courts to simply draw inspiration from agencies, rather than deferring to them completely.

Again, a natural critique of this argument is that it gives courts too much discretion and therefore has the potential to lead to the opposite of the desired outcome—perhaps under this standard, more people will be prosecuted under the anti-harboring statute than before. But as noted above, courts should not adopt this approach without intelligently and explicitly defining the difference between “sanctuary” and “exploitation.”

V.  Conclusion

As President Trump settles into office for his second term, uncertainty plagues many individuals living in the United States. In particular, undocumented immigrants, their family members, and communities face renewed threats under an administration focused on increasingly aggressive immigration enforcement. This includes a commitment to prosecuting individuals under § 1324’s anti-harboring provision. This moment reflects more than just immigration policy—it represents how the law can be shaped to respond to a perceived crisis. When immigration is framed as a disaster, it becomes easier for the U.S. government to implement punitive policies that erode civil liberties and blur the line between humanitarian aid and criminal conduct. If the law shifts in dangerous ways, it could create lasting negative consequences for this nation’s most vulnerable populations.

In response to this uncertainty and confusion, courts have the potential to play an incredibly important role. They should resolve the existing circuit split regarding the mens rea necessary to convict a defendant under this statute. This resolution should come in the form of interpreting the mens rea requirement narrowly in instances of sanctuary but broadly in instances of trafficking and exploitation. This resolution will not only provide consistency and security, but also affirm the purpose of the anti-harboring provision and encourage a spirit of humanity and community in times of crisis.

• 1See generally Family Separation – A Timeline, Southern Poverty L. Ctr. (Mar. 23, 2022), https://www.splcenter.org/news/2022/03/23/family-separation-timeline ‌[‌p‌e‌r‌ma‌‌.c‌‌c‌‌/‌S‌Q‌G8‌-73L8].
• 2See generally Maria Sacchetti, Trump Administration Says Undocumented Immigrants Must Register, Wash. Post (Feb. 25, 2025), https://www.washingtonpost.com/immigra‌t‌io‌‌n‌/2‌‌0‌25‌/‌‌02/25/trump-administration-undocumented-immigrants-register/ [perma.cc/3VJH-8EK3].
• 3Hannah M. Hamley, The Weaponization of the “Alien Harboring” Statute in a New-Era of Racial Animus Towards Immigrants, 44 Seattle U. L. Rev. 171, 184–85 (2020).
• 4Scholars have critiqued the use of the word “alien” to describe undocumented immigrants because it dehumanizes and “others” them. In this Comment, I avoid using the term “alien” wherever possible in favor of less stigmatizing alternatives, such as “immigrant” or “undocumented individual.” I do, however, use the term “alien” where necessary in legal contexts. See generally Kevin R. Johnson, “Aliens” and the US Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. Miami Inter-Am. L. Rev. 263 (1997); see also D. Carolina Nunez, War of the Words: Aliens, Immigrants, Citizens, and the Language of Exclusion, 2013 BYU L. Rev. 1517, 1527 (2014).
• 58 U.S.C. § 1324(a)(1)(A)(iii).
• 6Hamley, supra note 3, at 185.
• 7Id. at 173.
• 8President Trump has also advocated for anti-immigration policies including mass deportation, challenging birthright citizenship, and dismantling the asylum protection system, among others. See generally Trump on Immigration: Tearing Apart Immigrant Families, Communities, and the Fabric of Our Nation, ACLU (June 6, 2024), https://www.aclu.org/publications/trump-on-immigration [perma.cc/7DMD-C3VD].
• 9See United States v. Vargas-Cordon, 733 F.3d 366, 382 (2d Cir. 2013); United States v. McClellan, 794 F.3d 743, 751 (7th Cir. 2015); United States v. You, 382 F.3d 958, 966 (9th Cir. 2004).
• 10See United States v. Ozcelik, 527 F.3d 88, 99–102 (3d Cir. 2008); United States v. Shum, 496 F.3d 390, 392 (5th Cir. 2007); United States v. Zheng, 87 F.4th 336, 342–43 (6th Cir. 2023); United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008).
• 11Immigration and Nationality Act, Pub. L. No. 82–414, 66 Stat. 163 (1952) (current version at 8 U.S.C. §§ 1101 et seq.).
• 12Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, § 112(a), 100 Stat. 3381 (codified as amended at 8 U.S.C. § 1324(a)).
• 138 U.S.C. § 1324(a)(1)(A)(iii).
• 14Id. § 1324(a)(1)(B).
• 15Id. § 1101(a)(3).
• 16Id. § 1324(a)(1)(A)(i). Official permission to enter the United States lawfully is obtained after inspection and authorization by an immigration officer. Id. § 1101(a)(13)(a).
• 17Id. § 1324(a)(1)(A)(ii).
• 18Id. § 1324(a)(1)(A)(iv).
• 198 U.S.C. § 1324(a)(1)(A)(v).
• 20Id.§ 1324(a)(2).
• 21Id. § 1324(a)(3).
• 22See, e.g., United States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007).
• 23See CRM 1907. Title 8, U.S.C. 1324(a) Offenses, DOJ, ‌h‌t‌tps://www.justice.gov/arc‌‌‌h‌i‌v‌e‌s/‌‌j‌m‌/‌c‌r‌i‌minal-resource-manual-1907-title-8-usc-1324a-offenses [perma.cc/XAH5-‌8‌4‌E‌A‌]‌.‌
• 24[1]Immigration Act of 1917, Pub. L. No. 64-301, 39 Stat. 874.
• 25Id. § 3; see also Immigration Act of 1917 (Barred Zone Act), Immigr. Hist., ‌h‌t‌t‌p‌s://immi‌g‌r‌at‌i‌o‌n‌history.org/item/1917-barred-zone-act/ [perma.cc/HZ3D-JHRN].
• 26Immigration Act of 1917 § 8.
• 27See United States v. Evans, 333 U.S. 483, 484 (1948).
• 28333 U.S. 483 (1948).
• 29See id.
• 30Eisha Jain, Immigration Enforcement and Harboring Doctrine, 24 Geo. Immigr. L.J. 147, 159 (2010).
• 31Evans, 333 U.S. at 484–85.
• 32Id. at 495.
• 33Id. at 488.
• 34Id.
• 35Id. at 488–89.
• 36Id. at 495.
• 37Evans, 333 U.S. at 495.
• 38See Immigration Act of 1924, Pub. L. No. 68-139, ch. 190, 43 Stat. 153.
• 39See Act of March 20, 1952, Pub. L. No. 82-283, 66 Stat. 26 (incorporated into the Immigration and Nationality Act, Pub. L. No. 82-414, § 274(a), 66 Stat. 163, 229 (1952) (current version at 8 U.S.C. § 1324(a))).
• 40See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 112(a), 100 Stat. 3381.
• 41Immigration Act of 1924, Pub. L. No. 68-139, ch. 190, 43 Stat. 153.
• 42Id.
• 43Jain, supra note 30, at 158.
• 44See The Immigration Act of 1924 (The Johnson-Reed Act), U.S. Dep’t State, https://2001-‌2‌0‌0‌9‌‌.‌s‌t‌ate.gov/r/pa/ho/time/id/87718.htm# [perma.cc/W8BN-V2WC].
• 45Jain, supra note 30, at 158.
• 46Id. at 158–59.
• 47Id.
• 48See Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 95, 247 (2004).
• 49Id. at 170.
• 50Id. at 94.
• 51Jessie Kratz, The Bracero Program: Prelude to Cesar Chavez and the Farm Worker Movement, Nat’l Archives (Sept. 27, 2023), https://prologue.blogs.archives.gov/2023/09/27/the-brac‌e‌r‌o‌-‌program-prelude-to-cesar-chavez-and-the-farm-worker-movement/# [perma.cc/MUZ7-9QZ5].
• 52Id.
• 53Id.
• 54Id.
• 5582 Cong. Rec. 97, 8144 (statement of Pres. Truman).
• 56Id. at 8145.
• 57Id.
• 58Id.
• 59The term “wetback” is considered a racist slur because of how it has historically been used to demonize and criminalize Mexican immigrants. In this Comment, I opt only to use the term “wetback” when it is necessary to provide historical context. For more information regarding the derogatory use of this term see Lisa A. Flores, Deportable and Disposable: Public Rhetoric and the Making of the Illegal Immigrant 126–38 (2020).
• 60See 82 Cong. Rec. 98, 1345 (1952) (stating that “the measure under consideration has been described as a wetback bill”).
• 61See Act of March 20, 1952, Pub. L. No. 82-283, 66 Stat. 26.
• 62H.R. Rep. No. 82-1377, at 1358 (1952).
• 63See Hamley, supra note 3, at 188.
• 64See 82 Cong. Rec. 98, 1340 (1952).
• 65See 82 Cong. Rec. 98, 5321 (1952) (statement of Sen. McCarran).
• 66See Marisa Gerber, Slur Has a Complex Translation in Latino Community, L.A. Times (Apr. 1, 2013), https://www.latimes.com/local/lanow/la-xpm-2013-apr-01-la-me-ln-wetback-20130401-‌s‌t‌o‌r‌y‌.html [perma.cc/N23Z-ZYXD].
• 67See Jain, supra note 30, at 160.
• 6882 Cong. Rec. 98, 1340 (1952) (statement of Rep. Lyle).
• 69Jain, supra note 30, at 162.
• 7082 Cong. Rec. 98, 1347 (1952) (statement of Rep. Celler).
• 71Immigration and Nationality Act, Pub. L. No. 82-414, § 274(a), 66 Stat. 163, 229 (1952) (current version at 8 U.S.C. § 1324(a)).
• 72Id. at 228–29.
• 73See 82 Cong. Rec. 98, 5319 (1952) (statement of Sen. Humphrey).
• 74Id.
• 75Id. at 5320 (statement of Sen. Humphrey).
• 76Id.
• 77Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 112(a), 100 Stat. 3381.
• 78Immigration and Nationality Act, Pub. L. No. 82-414, § 274(a), 66 Stat. 163, 229 (1952) (current version at 8 U.S.C. § 1324(a)).
• 798 U.S.C. § 1324(a)(1)(A)(iii).
• 80Id.
• 81With the passage of the Homeland Security Act in 2002, the INS was replaced by ICE, CBP, and U.S. Citizenship and Immigration Services (USCIS) in 2003. See Handbook for Employers M-274: 1.1 The Homeland Security Act, U.S. Citizenship & Immigr. Servs., ‌h‌tt‌p‌s‌‌:‌/‌/w‌‌ww‌.‌u‌‌s‌c‌is‌‌.‌g‌ov‌‌/i-9-central/form-i-9-resources/handbook-for-employers-m-274/10-why-employers-must-verify-employment-authorization-and-identity-of-new-employees/11-the-homeland-security-act#‌[‌p‌e‌r‌m‌a‌.‌c‌c‌/‌8‌9‌VR-LXWM].
• 82Control of Employment of Aliens, 52 Fed. Reg. 16,216, 16,217 (May 1, 1987).
• 83Immigration and Nationality Act § 274(a)(3).
• 84Id.
• 858 U.S.C. § 1324(a)(1)(A)(iii).
• 86Id.
• 87Jain, supra note 30, at 167.
• 88Id. at 168.
• 89See United States v. Ozcelik, 527 F.3d 88, 99–102 (3d Cir. 2008); United States v. Shum, 496 F.3d 390, 392 (5th Cir. 2007); United States v. Zheng, 87 F.4th 336, 342–43 (6th Cir. 2023); United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008).
• 90See United States v. Vargas-Cordon, 733 F.3d 366, 382 (2d Cir. 2013); United States v. McClellan, 794 F.3d 743, 751 (7th Cir. 2015); United States v. You, 382 F.3d 958, 966 (9th Cir. 2004).
• 9127 F.2d 223 (6th Cir. 1928).
• 92Id. at 224.
• 93112 F.2d 83 (2d Cir. 1940).
• 94Id. at 85 (citing Susnjar, 27 F.2d at 223).
• 95Susnjar, 27 F.2d at 223.
• 96Id. at 224.
• 97Smith, 112 F.2d at 84.
• 98Id.
• 99Id. at 85. Prostitution would not have counted as “employment,” as 8 U.S.C. § 138 prohibited the importation and maintenance of undocumented immigrants for the purpose of prostitution. Id.
• 100See generally United States v. Lopez, 521 F.2d 437 (2d Cir. 1975).
• 101521 F.2d 437 (2d Cir. 1975).
• 102Id. at 441.
• 103Id. at 438. At the time of the Lopez decision, 8 U.S.C. § 1324(a)(3) provided that any person who “willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, in any place, including any building or any means of transportation” an unauthorized immigrant would be guilty of a felony. See Immigration and Nationality Act, Pub. L. No. 82-414, § 274(a), 66 Stat. 163, 229 (1952) (current version at 8 U.S.C. § 1324(a)).
• 104Lopez, 521 F.2d at 438–39.
• 105Id. at 439.
• 106Id. at 439.
• 107Id. at 440. Both of the provisions the Lopez court cited to were removed from 8 U.S.C. § 1324 by the Immigration Reform and Control Act in 1986. SeeImmigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 112(a), 100 Stat. 3381 (current version at 8 U.S.C. § 1324(a)).
• 108Lopez, 521 F.2d at 440.
• 109Id.
• 110Id. at 441.
• 111531 F.2d 428 (9th Cir. 1976).
• 112Id. at 430. In so holding, the Ninth Circuit specifically rejected the narrower interpretations of “harboring” adopted by the Sixth Circuit in Susnjar v. United States, 27 F.2d 223 (6th Cir. 1928) and the Second Circuit in United States v. Smith, 112 F.2d 83 (2d Cir. 1940).
• 113Acosta de Evans, 531 F.2d at 430.
• 114Id.
• 115Id.
• 116Id. at 429.
• 117Id.
• 118Immigration and Nationality Act, Pub. L. No. 82-414, § 274(a), 66 Stat. 163, 229 (1952) (current version at 8 U.S.C. § 1324(a)).
• 119See 82 Cong. Rec. 98, 5320 (1952) (statement of Sen. Humphrey).
• 120See Jain, supra note 30, at 171.
• 121883 F.2d 662 (9th Cir. 1989).
• 122Id. at 666–67.
• 123Id. at 667.
• 124Id. at 689.
• 125Id. at 690.
• 126Jain, supra note 30, at 173.
• 127Gregory A. Loken & Lisa R. Babino, Harboring, Sanctuary and the Crime of Charity Under Federal Immigration Law, 28 Harv. C.R.-C.L. L. Rev. 119, 123 (1993).
• 1288 U.S.C. § 1324(a)(1)(A)(iii).
• 129Immigration and Nationality Act, Pub. L. No. 82-414, § 274(a), 66 Stat. 163, 229 (1952) (current version at 8 U.S.C. § 1324(a)).
• 130See infra Section III.A.
• 131See infra Section III.B. Current Ninth Circuit precedent interpreting § 1324, which requires proof of intent, is markedly different than the court’s analysis in United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989), in which it merely required proof of substantial facilitation.
• 132United States v. Lopez, 521 F.2d 437, 441 (2d Cir. 1975).
• 133See United States v. Ozcelik, 527 F.3d 88, 99–102 (3d Cir. 2008); United States v. Shum, 496 F.3d 390, 392 (5th Cir. 2007); United States v. Zheng, 87 F.4th 336, 342–43 (6th Cir. 2023); United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008).
• 13487 F.4th 336 (6th Cir. 2023).
• 135Id. at 339.
• 136Id.
• 137Id.
• 138Id. at 341.
• 139Id. at 342.
• 140Zheng, 87 F.4th at 342.
• 141Id.
• 142Id. at 347.
• 143Id. at 343 (noting that “[t]he Second, Seventh, and Ninth Circuits have opined that ‘harboring’ requires a defendant to act intentionally or purposefully,” but the Sixth Circuit “join[s] with the approach used by the Third, Fifth, and Eighth Circuits”).
• 144527 F.3d 88 (3d Cir. 2008).
• 145Id. at 100.
• 146Id. at 91.
• 147Id.
• 148Id.
• 149Id. at 92.
• 150Ozcelik, 527 F.3d at 99–102.
• 151Id. at 99 (drawing inspiration from the arguments put forth in United States v. Acosta de Evans, 531 F.2d 428 (9th Cir. 1976)).
• 152Id. at 100.
• 153496 F.3d 390 (5th Cir. 2007).
• 154Id. at 392 (quoting United States v. Dixon, 132 F.3d 192, 200 (5th Cir. 1997)).
• 155Id.
• 156518 F.3d 591 (8th Cir. 2008).
• 157Id. at 594.
• 158Id.
• 159Id. at 595.
• 160See United States v. Ozcelik, 527 F.3d 88, 99 (3d Cir. 2008).
• 161See United States v. Vargas-Cordon, 733 F.3d 366, 382 (2d Cir. 2013).
• 162SeeUnited States v. McClellan, 794 F.3d 743, 751 (7th Cir. 2015); United States v. You, 382 F.3d 958, 966 (9th Cir. 2004).
• 163733 F.3d 366 (2d Cir. 2013).
• 164Id. at 370.
• 165Id. at 370–71.
• 166Compare United States v. Smith, 112 F.2d 83, 85 (2d Cir. 1940), with United States v. Lopez, 521 F.2d 437, 441 (2d Cir. 1975).
• 167Vargas-Cordon, 733 F.3d at 381.
• 168Id. at 381–82.
• 169666 F.3d 1040 (7th Cir. 2012).
• 170Id. at 1050.
• 171Id. at 1041.
• 172Id. at 1043.
• 173Id.
• 174Id. Judge Posner further states, “[the Seventh Circuit] doubt[s] that the government would argue that a hospital emergency room that takes in a desperately ill person whom the hospital staff knows to be an illegal alien would be guilty of harboring, although it fits the government’s definition of the word.” Id. at 1044.
• 175Costello, 666 F.3d at 1043.
• 176Id. at 1050.
• 177794 F.3d 743 (7th Cir. 2015).
• 178Id. at 750–51.
• 179Id. at 749–50 (quoting Costello, 666 F.3d at 1050).
• 180Id. at 751.
• 181Id. at 750.
• 182Id. at 750–51.
• 183382 F.3d 958 (9th Cir. 2004).
• 184Id. at 966.
• 185See United States v. Dominguez, 661 F.3d 1051, 1063 (11th Cir. 2011) (holding that harboring requires knowing conduct that tends to substantially facilitate an immigrant’s escaping detection).
• 186See id.; United States v. Vargas-Cordon, 733 F.3d 366, 381 (2d Cir. 2013).
• 187See, e.g., United States v. Ozcelik, 527 F.3d 88, 99–102 (3d Cir. 2008); United States v. Shum, 496 F.3d 390, 392 (5th Cir. 2007); United States v. Zheng, 87 F.4th 336, 342–43 (6th Cir. 2023); United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008).
• 188661 F.3d 1051 (11th Cir. 2011).
• 189Id. at 1063.
• 190Id.
• 191Id. at 1062 n.9 (citing United States v. Barajas-Chavez, 162 F.3d 1285, 1289 (10th Cir. 1999) (en banc)).
• 192Katrin Corrigan, Putting the Brakes on the Global Trafficking of Women for the Sex Trade: An Analysis of Existing Regulatory Schemes to Stop the Flow of Traffic, 25 Fordham Int’l L.J. 151, 162 n.37 (2001); see generally Shelly George, The Strong Arm of the Law is Weak: How the Trafficking Victims Protection Act Fails to Assist Effectively Victims of the Sex Trade, 45 Creighton L. Rev. 563 (2012).
• 193Protected Areas and Courthouse Arrests, U.S. Immigr. & Customs Enf’t [hereinafter Former USCIS Protected Areas Policy], https://www.ice.gov/about-ice/ero/protected-areas ‌[‌p‌e‌r‌m‌a‌.‌c‌c‌/‌55LY-2UGB] (last updated May 7, 2024) (describing former protected areas policy). As of March 2025, ICE’s protected area policy emphasizes the use of officer discretion and encourages “a healthy dose of common sense.” Protected Areas and Courthouse Arrests, U.S. Immigr. & Customs Enf’t [hereinafter Current USCIS Protected Areas Policy], https://www.ice.gov/about-ice/ero/protected-areas ‌[‌p‌er‌‌m‌a‌.cc/2QTX-YU3G] (last updated Mar. 27, 2025) (reflecting current protected areas policy).
• 194See Former USCIS Protected Areas Policy, supra note 193.
• 195Joel Rose, The White House Threatens Sanctuary Cities in Another EO, but Courts Are Skeptical, NPR, https://www.npr.org/2025/04/28/nx-s1-5379614/white-house-threatens-sanctuary-cit‌i‌e‌s‌-‌again [perma.cc/866T-7B4L].
• 196See generally United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989).
• 197See id. at 666–67.
• 198Loken & Babino, supra note 127, at 127–32.
• 199Seeid. at 132.
• 200See Jonathan Petts, What is “Sanctuary” and How Does it Help Immigrants?, Immigr. Help (May 30, 2022), https://www.immigrationhelp.org/learning-center/what-is-sanctuary-and-how-‌d‌o‌e‌‌s‌-‌‌it-help-immigrants [https://perma.cc/8TDC-GAW6].
• 201Id.
• 202Former USCIS Protected Areas Policy, supra note 193. Cf.Current USCIS Protected Areas Policy, supra note 193.
• 203See Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified at 22 U.S.C. §§ 7101 et seq.).
• 20422 U.S.C. § 7102(11).
• 205Id.
• 206Id. § 7102(12) (emphasis added).
• 207Fact Sheet: Human Trafficking, U.S. Dep’t Health & Hum. Servs., ‌h‌t‌‌t‌ps‌:‌‌/‌/‌w‌w‌w‌.‌a‌c‌f‌.‌h‌h‌s‌.‌g‌o‌v‌‌/‌‌otip/fact-sheet/resource/fshumantrafficking# [perma.cc/A3NX-EBRA].
• 208Id.
• 209Id.
• 210See generally United States v. Garcia-Gonzalez, 714 F.3d 306 (5th Cir. 2013); United States v. Campbell, 770 F.3d 556 (7th Cir. 2014); Sheikh v. United States Dep’t of Homeland Sec., 106 F.4th 918 (9th Cir. 2024).
• 211Garcia-Gonzalez, 714 F.3d at 311.
• 212See George, supra note 192.
• 213See id. at 573.
• 214Id. at 575–76.
• 215Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989).
• 216See generally William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990).
• 217574 U.S. 528 (2015).
• 218Id. at 545.
• 219Id. at 546.
• 220584 U.S. 1 (2018).
• 221Id. at 4.
• 222Id. at 7–8 (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995)).
• 223Note, however, that today’s Supreme Court maintains a stronger emphasis on statutory text rather than the implications of its rulings. See, e.g., Garland v. Cargill, 602 U.S. 406, 410 (2024) (holding that a semiautomatic rifle equipped with a bump stock is not a machinegun and emphasizing the statutory text despite policy arguments about gun safety).
• 224Ryan D. Doerfler, Can a Statute Have More Than One Meaning?, 94 N.Y.U. L. Rev. 213, 230 (2019).
• 225Id. (emphasis omitted).
• 226Id. at 231.
• 227Id. at 233.
• 22815 U.S.C. § 77q.
• 229See United States v. Vandersee, 279 F.2d 176 (3d Cir. 1960).
• 230See Edward J. Mawod & Co. v. SEC, 591 F.2d 588 (10th Cir. 1979).
• 231See, e.g., 18 U.S.C. §§ 1111–1112.
• 232Good Samaritan Act, 745 Ill. Comp. Stat. 49/1–49/120 (1997).
• 23382 Cong. Rec. 97, 8144–45 (1951).
• 23482 Cong. Rec. 98, 807 (1952) (statement of Sen. Kilgore).
• 23582 Cong. Rec. 98, 1347 (1952) (statement of Rep. Celler).
• 236Id. at 1346.
• 237See Malum in Se, Black’s Law Dictionary (6th ed. 1990).
• 238See Malum Prohibitum, Black’s Law Dictionary (6th ed. 1990).
• 239See, e.g., District of Columbia v. Colts, 282 U.S. 63, 73 (1930) (finding the malum in se/malum prohibitum distinction key for determining whether an offense is a petty crime); United States v. American Cynamid Co., 354 F. Supp. 1202, 1205 (S.D.N.Y. 1973) (holding that scienter is not required when an offense is malum prohibitum).
• 240See generally, Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).
• 241See, e.g., Garland v. Cargill, 602 U.S. 406, 410 (2024) (emphasizing statutory text in striking down a bump stock rule); Niz-Chavez v. Garland, 593 U.S. 155, 160–62 (2021) (focusing on a single document requirement in immigration notices); West Virginia v. EPA, 597 U.S. 697, 723–24 (2022) (limiting the EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act).
• 242Doerfler, supra note 224, at 240–41.
• 243Id. at 241.
• 244See generally Sophie H. Pirie, The Origins of a Political Trial: The Sanctuary Movement and Political Justice, 2 Yale J.L. & Human. 381 (1990).
• 245See G.A. Res. 55/25, annex II, Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (Nov. 15, 2000).
• 246See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 685–86 (1975) (discussing the state’s burden to prove malice aforethought to differentiate murder from manslaughter).
• 247See,e.g., United States v. Patterson, 119 F.4th 609, 611 (9th Cir. 2024) (holding that the district court erred by imposing a three-level sentencing enhancement for hate crime motivation).
• 248See, e.g., Rewis v. United States, 401 U.S. 808, 812 (1971) (noting that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity” (citing Bell v. United States, 349 U.S. 81, 83 (1955))).
• 249This approach overlaps with, but is not identical, to the Seventh Circuit’s intent-based standard, which emphasizes concealment from authorities. See United States v. Costello, 666 F.3d 1040, 1044 (7th Cir. 2012) (rejecting “sheltering” alone as sufficient to constitute harboring); United States v. McClellan, 794 F.3d 743, 751 (7th Cir. 2015) (requiring intent to safeguard undocumented immigrants from detection). Whereas the Seventh Circuit focuses on concealment, the approach proposed here directs courts to consider whether the defendant’s conduct was exploitative rather than humanitarian.
• 25022 U.S.C. § 7102(11).
• 251United States v. Dominguez, 661 F.3d 1051, 1062 n.9 (11th Cir. 2011).
• 252Caitlin McTiernan, Protected No More – How States Are Responding to Immigration Enforcement in Sensitive Locations, Am. Immigr. Council (Apr. 11, 2025), https://www.americanim‌m‌i‌g‌rationcouncil.org/blog/how-states-respond-immigration-enforcement-in-sensitive-locations/    ‌[‌p‌‌‌e‌‌‌‌‌r‌m‌a.cc/5X8D-F9KC].
• 253588 U.S. 558 (2019).
• 254Christopher J. Walker, What Kisor Means for the Future of Auer Deference: The New Five-Step Kisor Deference Doctrine, Yale J. on Reg.: Notice & Comment(June 26, 2019), ‌h‌t‌t‌p‌s‌:‌/‌/‌w‌w‌w‌.‌yalejreg.com/nc/what-kisor-means-for-the-future-of-auer-deference-the-new-five-step-kisor-def‌e‌r‌e‌nce-doctrine/ [perma.cc/D2VG-KDLX].
• 255See Gillian Metzger, Symposium: The Puzzling and Troubling Grant in Kisor, SCOTUSblog (Jan. 30, 2019), https://www.scotusblog.com/2019/01/symposium-the-puzzling-and-t‌r‌o‌ubling-grant-in-kisor/ [perma.cc/9NXS-UJA3].