By Allen E. Kaye
The final episode of the series on the answers to questions
involving immigration under a new administration.
Even where there may be a good-faith basis to insist on
a warrant for access (or, in certain cases, a subpoena for
access to records), such a request should not be seen as a
license to frustrate the law enforcement purpose. For instance, if, while awaiting service of the warrant, an institution were to hide an undocumented person or destroy
records, a law enforcement authority or court might very
well take the position that an institution had run afoul of
the “harboring” provision discussed below. Such steps
could also trigger liability for obstruction of justice.
Might campus police departments have less discretion to
minimize or avoid cooperation?
Federal law does not obligate local law enforcement —
including sworn campus police officers — to devote resources to the enforcement of federal immigration laws.
The INA provides that state or local police may enter into
cooperative agreements with immigration enforcement
officials and agents, though these are not compulsory.
Some college and university police departments have
pledged not to sign up for a voluntary program even if one
is offered. However, state laws often establish and inform
campus police officers’ authority and activities. This can
be the case for private institutions’ police departments as
well as those of public institutions. A review and understanding of the source of campus police officers’ authority
and applicable state law is prudent. For example, a campus police department that is asked to consider adopting
practices to implement or support sanctuary campus
practices may find itself unable to do so due to applicable
Also worthy of consideration are a campus police department’s obligations pursuant to the department’s or
the institution’s relationship with other law enforcement
authorities, particularly those detailed in increasingly
common memoranda of understanding between institutions and/or their campus police departments and local
police departments (and perhaps state or federal law enforcement agencies as well).
Lack of cooperation by campus police could impact unwritten, but significant, cooperative expectations among
federal, state, and local law enforcement. Resulting tensions may have negative consequences for state and local
police and government responsiveness on a range of other
matters that significantly affect college and universities,
their campuses, and their communities.
Could an institution's officials or campus community
members violate federal "harboring" law?
The INA provides for imposing criminal penalties and
fines on individuals and organizations for employing,
concealing, harboring, or shielding from detection unauthorized aliens. The statute also makes it unlawful to encourage or induce an alien to come to, enter, or reside in
the U.S. The statute penalizes attempts to commit the prohibited acts, as well as aiding or assisting such acts.
In the past, courts have interpreted the harboring pro-
How worried should an institution be about losing federal
hibition broadly, generally considering “shielding,” “har-
boring,” and “concealing” to encompass “conduct tending
substantially to facilitate an alien’s remaining in the
United States illegally.” This includes conduct “tending to
substantially facilitate an alien’s remaining in the United
States illegally and to prevent government authorities
from detecting the alien’s unlawful presence.”
Some recent court decisions have begun to limit the
definitions of that which constituted “harboring” under
the statute by requiring that the defendant do more than
simply provide shelter to an undocumented alien. Those
court cases suggest that “harboring” means keeping an
alien in any place with the intent to conceal from govern-
ment authorities, moving an alien, or providing physical
protection to an alien. For example, in one case, a restau-
rant owner was convicted under the harboring provision
for employing and providing housing for unauthorized
aliens where the court agreed that the defendant had not
simply provided housing, but rather had “deliberately
safeguarded] members of a specified group from the au-
thorities.” The federal appeals court said that “a defen-
dant 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.” However, there is significant variation
among the federal courts as to what must be established
regarding the defendant's intent — in other words,
whether the defendant must act with clandestine intent
(to hide the alien), whether the defendant must "sub-
stantially facilitate” the person's unlawful stay, or
whether "simple sheltering” is sufficient to trigger statu-
tory liability. Some federal courts have also taken the po-
sition that a person illegally “encourages” an
unauthorized alien to “reside” in the U.S. when the per-
son takes action “to facilitate the alien's ability to live in
this country indefinitely.”
Given the fluidity of the broader national attention to
immigration issues, the various ways this is being experi-
enced geographically and the possibility that states' laws
may be relevant, as well as the current uncertainty about
the particular focus of the new administration's immigra-
tion agenda, it would be prudent to remain attentive to fu-
ture interpretations of “harboring” by governmental
officials, law enforcement, and the courts.
funding if it is perceived as non- cooperative?
A federal funds recipient certifies or represents generally that it will comply with “all applicable laws” in connection with the receipt of a federal grant or other federal
funding. However, at this time, no federal grant documents or guidance have been identified indicating that
the primary federal agencies that provide federal financial
assistance to institutions (such as the U.S. Department of
Education, the National Institutes of Health, and the National Science Foundation) have adopted policies to compel or even request cooperation with the ICE by federal
funds recipients, or policies that would provide a specific
basis on which to withhold federal funding for noncooperation with ICE's investigations or requests Of course,
this could change in the future.
Should international members of our campus communi-
ties be concerned?
While media attention has focused on DACA and undocumented students, the change in administration could
bring with it policies and protocols that impact international members of campus communities. For example,
students from predominantly Muslim countries could
face extended security delays for travel to the United
States after January 20 if the new administration encourages some of its suggested policy actions. The 9/11 terrorist attacks prompted a call-in registration program that
targeted anyone from 26 countries, all but one of which
have predominantly Muslim populations. A similar program could be implemented, or existing review for national security concerns could be expanded.
Campus leaders, as well as advisers to international students, faculty, and staff should remain attentive to the
possible implementation of these or other discretionary
measures. They could have a significant impact on the attractiveness and accessibility of American higher education to potential undergraduate and graduate students
from other countries.
Where do I turn for more information and advice?
To teach people more about DACA, sanctuary, and other
post-election issues that impact the higher education
community, the National Association of College and University Attorneys (NACUA) even sponsored a webinar December 8.
More specifically, institutions would be well advised to
consult with knowledgeable in-house or outside counsel.
Context matters, i.e., particular facts and circumstances.
So do state and local laws, and institutional (and campus
police) relationships with state and local policymakers
and authorities. Whether an institution is public or private may matter, as may whether students are primarily
residents or commuters. These, and other potentially relevant things may require a careful assessment of a particular issue or question in the moment, given the fluid
Allen E Kaye, a Phi Beta Kappa graduate of Queens College of the City of New York, Columbia Law School (JD)
and New York University Law School (LLM), is the President of the Law Offices of Allen E Kaye and Associates
and Of Counsel to Pollack, Pollack, Isaac and DeCicco.
He is a past National President of the American Immigration Lawyers Association and Co-Chair of the Immigration Committee of the Queens County Bar
Association. He has been selected by Martindale-Hubbell as a 2014 “Top Rated Lawyer” in the practice
of Labor and Employment (for Immigration) and the
2017 Edition of The Best Lawyers in America.
Questions for publication may be sent to Kaye at 225
Broadway, Suite 307, New York, NY 10007, or by email
at AllenEKaye5858@gmail.com or firstname.lastname@example.org