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Apologies if the question is somewhat naive. IANAL.

  • As far as I know, illegal immigration (well, technically speaking, "illegal entry" is a crime (misdemeanor or felony depending on particulars).

  • To the best of my understanding, if you help someone to commit a crime, you can be charged and prosecuted (aiding and abetting?). Concealing a crime can be prosecuted (accessory after the fact?). If you deliberately plan to do so in advance, presumably you can be prosecuted for conspiracy.

Combining the two points above, can people in general, and especially politicians or LEOs, be charged and prosecuted for intentionally violating immigration policies (e.g. failing to detain someone knowing their illegal status, etc...)?

Context for the question: http://fortune.com/2016/11/11/new-york-los-angeles-sanctuary-cities-donald-trump/

  • Just to be clear, the question is, can you be charged and prosecuted. Regardless of how likely that prosecution is to succeed in practice. E.g. assume you have iron clad prood/evidence. – DVK Nov 19 '16 at 16:11
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    The fact that illegal entry is a crime does not imply that being in the US without valid immigration status is a crime. In fact, it isn't. So yeah, if you help someone cross the border, you're aiding that person in the commission of a crime. If you offer some kind of assistance to someone living in the US, you're not necessarily. If you fail to apprehend someone who is in civil violation of immigration law, well, there's no crime, because it's not a criminal violation. – phoog Nov 19 '16 at 21:51
  • @phoog - "The Pew Hispanic Center estimates that 6–7 million immigrants came to the United States via illegal entry, accounting for probably a little over half of the total population". This is from a source that is likely pro-illegal biased. – DVK Nov 19 '16 at 22:40
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    You seem to be saying that because "a little over half" of one group belongs to another group, the members of the first group should all be assumed to belong to the second group. That makes no sense. – phoog Nov 20 '16 at 4:50
  • What is an "LEO"? Never heard of it. – ohwilleke Jan 19 '17 at 3:52
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I am answering assuming that LEO must mean "Law Enforcement Officer" (the abbreviation is not widely used).

can people in general, and especially politicians or LEOs, be charged and prosecuted for intentionally violating immigration policies (e.g. failing to detain someone knowing their illegal status, etc...)?

The short answer is no. But, they can be successfully sued for enforcing immigration laws when they do not have the legal authority to do so, and usually, state and local government officials do not have the legal authority to enforce federal immigration laws. (State and local governments are also generally prohibited from enacting state or local laws pertaining to someone's immigration status.)

In general, the only people with the authority to detain someone for violating immigration laws are immigration officers employed by the federal government. They have absolute discretion in how they enforce federal immigration laws and are free to systematically or on a case by case basis choose not to enforce those laws, as are the executive branch politicians to whom they report.

One of the main reasons that state and local officials cannot enforce immigration laws is that this would interfere with this exclusive jurisdiction of the federal government over immigration and with the absolute discretion of federal officials to decline to enforce the immigration laws or to enforce immigration laws merely on a selective basis.

State and local officials have authority in this regard only if they are expressly authorized to do so by law, and then, only if the state or local government chooses to cooperate by allowing their officials to be used for that purpose.

Generally speaking, the federal government authorizes state and local jail administrators to detain someone pursuant to an immigration hold if the state and local government authorizes the jail to do so. But, usually state and local officials do not have the authority to arrest someone solely for being in the U.S. without having a valid and current immigration status. This authority is largely reserved to Homeland Security officials, although FBI agents in the Justice Department probably also have this authority.

In contrast, generally speaking, someone detained by a state and local law enforcement officer who enforces a federal immigration law, despite not having the legal authority to do so, could prevail in a lawsuit against the state or local law enforcement officer for violating the civil rights of a person detained by someone who had no legal authority to do so. Such suits have prevailed repeatedly in Phoenix, Arizona where a rogue sheriff attempted to enforce federal immigration laws despite not having the legal authority to do so.

Thus, the assumption that the kind of actions involved, for example, in "sanctuary city" policies are intentional violations of immigration law is ill-founded (violating a mere "policy" that is not actually a law is by definition never illegal). Generally speaking, there are no immigration laws violated.

A "coyote" is intentionally violating an immigration law as is someone sneaking over the border when not legally authorized to do so. Someone who doesn't participate in the act of illegal entry, and who does not violate federal employment laws related to immigration (basically requiring an I-9 to be filled out and filed with the federal government), is violating no law.

As a matter of constitutional law, the federal government does not have have the constitutional authority to compel state and local government officials to enforce federal law (although it can authorize and "bribe" state and local governments to do so). Subject to applicable state law, for example, a city government has every right to declare itself a "sanctuary city" and refrain from actively assisting the federal government's enforcement of federal immigration laws.

Also, politicians and state and local prosecutors are absolutely immune from legal liability in connection with performance of their official duties, and law enforcement officers have qualified immunity for their acts.

In particular, law enforcement and prosecutors have essentially absolute discretion to refrain from choosing to enforce any law, and their politician bosses have broad authority to direct how they will exercise this discretion. For example, in general, even if a prosecutor and law enforcement know to an absolute certainty that someone is a serial killer, and can effortlessly arrest that person without any risk of harm to anyone and at minimal expense, they have no enforceable legal duty under U.S. law to try to arrest that person or prosecute that person for any crime. Failing to enforce a known violation of the law is not a crime (unless the failure to enforce is caused by a bribe).

Many millions of people who reside in the United States are deportable but have not committed any crime, so rendering assistance to someone is deportable is not per se assisting someone in the commission of a crime, even after the fact, and indeed, many public officials have a legal duty to aid all "persons" in protecting their legal rights, including people who are deportable.

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They cannot be prosecuted. The elements of the federal crime of aiding and abetting (18 USC 2) are spelled out by the DOJ:

  1. That the accused had specific intent to facilitate the commission of a crime by another;

  2. That the accused had the requisite intent of the underlying substantive offense;

  3. That the accused assisted or participated in the commission of the underlying substantive offense; and

  4. That someone committed the underlying offense.

The 4th element we can take for granted. It is certainly possible to assist someone in violating federal law to illegally enter the US, in which case the assister can be prosecuted for that, but generic helping of a person who has committed that crime does not have the other 3 elements, especially the 3rd.

Accessory after the fact, which has a lesser punishment, requires knowing of the underlying offense, and providing assistance to the violator "in order to hinder or prevent his apprehension, trial or punishment". So for example if you know that Jones has committed a federal crime and you shelter him in your shed so that he avoids detection by the marshal, you have perpetrated. If you provide him a place to stay for general humanitarian reasons, then you have not done the prohibited "in order to" thing.

  • Your first sentence seems to conflict with your last paragraph (re: aatf). If LEO/politician shelters illegals, and knows they are illegal, that seems to fit the requirements as stated in your answer? – DVK Nov 19 '16 at 17:05
  • The difference between general humanitarian aid and specific hiding in order to prevent detection by law enforcement will be subtle, but not really questionable. I'm discounting the known possibility of renegade prosecution. I would still say that the First Amendment protects the right to hold unpopular ideas, though Maura Healey is nevertheless going after people for doing that. It would be another matter if Congress created a new crime to compel local law to assist in execution of presidential decrees. – user6726 Nov 19 '16 at 17:47
  • As I commented on the question, assume a theoretical scenario that you KNOW. Maybe someone confessed. May be they got snitched on. May be there was a tap. May be they openly admitted hoping to make a political statement or take it to SCOTUS. Just assume there's evidence proving (or at least showing) they knew. – DVK Nov 19 '16 at 19:01
  • The chain is: Person A commited a crime (illegal entry). Person B found out (and you have proof as prosecutor). Person B refused to apprehend despite finding out. Are they prosecutable as AATF? – DVK Nov 19 '16 at 19:03
  • Point is, even giving knowledge, if you feed, clothe, give legal advice to etc. the purpose of doing so has to be to allow them to escape law enforcement. What "sanctuary cities" do isn't that, it's simply refusal to act as surrogates for federal officers to seek and arrest for certain federal offenses. There is no law compelling B to apprehend. If there were (when there is), then the answer changes. – user6726 Nov 19 '16 at 20:27

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