"Substantially Facilitate" Element of Illegal Alien Harboring Means to Make Alien's Presence Substantially "Easier or Less Difficult"

United States v. Shum, No. 06-11002 (5th Cir. Aug. 10, 2007) (Higginbotham, Wiener, Garza)

Shum, who was the vice-president of an office-cleaning company that employed illegal aliens as janitors, was convicted of alien harboring for gain under 8 U.S.C. § 1324. On appeal, he argued that the Government failed to prove that he "substantially facilitated" the aliens' presence in the United States, an element of the offense. Specifically, he argued that employing the aliens made it more likely that their illegal presence would be detected, and that, because the aliens remained in the U.S. before and after they worked for Shum, his conduct had nothing to do with their continued illegal presence in the U.S.

The court rejected what it characterized as Shum's "but-for" argument. Relying on a Second Circuit opinion (which in turn cites legislative history), the court concluded that "Congress intended for § 1324 to deter '[e]mployers . . . from hiring unauthorized aliens and this, in turn[,] will deter aliens from entering illegally or violating their status in search for employment.'" (alterations in Shum). "[D]eclin[ing] to adopt a definition of 'substantially facilitate' that undermines Congress's purpose in enacting § 1324[,]" the court held that "to 'substantially facilitate' means to make an alien's illegal presence in the United States substantially 'easier or less difficult.'"

The court went on to find the element satisfied in this case. Shum gave the aliens fake ID's "to facilitate the background check required to clean government buildings," and failed to file requried social security paperwork. By employing the aliens and "shield[ing] their identities from detection by the Government[,]" Shum substantially facilitated their illegal presence in the U.S.