Can the US government arrest me for helping an alien?

Copyright 2025, Farhad Sethna, Atty, all rights reserved.

Background:

Recently, Stephen Miller, who was Trump‘s immigration point man during his first administration and has continued to lead Trump‘s anti-immigration efforts sent letters through a pro-Trump organization America First Legal, to various entities identified as “sanctuary cities“ by the incoming Republican administration.

In those letters, Steven Miller claimed that so-called “sanctuary cities”, which allegedly harbor aliens or enact policies which protect aliens from federal detention and removal efforts could be subject to prosecution under various federal statutes, including RICO (the Racketeering Influenced Corrupt Organizations act of 1970) and the Immigration and Nationality Act (INA).

In order to verify Mr. Miller’s threats, I undertook some research. While what I have found is by no means conclusive, and as in any legal matter, there are always nuances and exceptions or loopholes, I do believe that Mr. Miller is over-reaching, and trying to use scare tactics to dissuade ordinary citizens from assisting aliens.

 

Question raised:

Can the federal government prosecute individual US citizens who help aliens who are either legally or illegally present in the United States, with regard to such alien’s continued stay in the USA?

 

Short answer:

No.

 

Analysis:

The RICO statute was passed in response to an organized crime wave in the late 60’s. RICO stands for Racketeering Influenced Corrupt Organization, and as the name suggests, is geared to criminal organizations, not individuals.  I found a  relevant summary of RICO on a reputable website I visit often for reliable and accurate US statutory (law) information – the “Legal Information Institute” at the Cornell Law School.  The LII summarizes RICO as follows:

The Racketeer Influenced and Corrupt Organizations Act (RICO) is a federal law (codified at 18 U.S.C. §§ 1961-68) targeting organized criminal activity and racketeering. RICO enhances existing criminal punishments and creates new causes of action for acts done as a part of an organized criminal enterprise. 

The law was originally passed in 1970 as a part of a larger movement to curb organized crime and to allow victims of organized crime to recover. While the original statute was primarily targeted at the mafia who’s disconnected structure made conviction of high-ranking members difficult due to the inability to tie them directly to crimes, the use of the statute has now been used to take down many notable criminal enterprises.

RICO imposes a maximum criminal penalty of 20 years in prison for violations of the statute. If sentenced the defendant must also forfeit all proceeds obtained while engaging in racketeering activity to the government. To be convicted under RICO, a pattern of racketeering activity is necessary. This means that at least 2 separate activities that can be classified as racketeering must have occurred within 10 years of each other.

RICO allows for a private individual that was injured by a violation of the law to recover treble damages suffered by the wrongful activity of the offender. A criminal conviction under RICO against the defendant will estop them from defending the allegations if they are brought to civil court.

Source:  https://www.law.cornell.edu/wex/rico

 

What is “racketeering activity”?

Title 18, Chapter 95 of the US Code has a lengthy definition of what constitutes “racketeering activity”. I’ve summarized some of the possible examples of this activity:

  •  1951. Interference with commerce by threats or violence
  •  1952. Interstate and foreign travel or transportation in aid of racketeering enterprises
  •  1953. Interstate transportation of wagering paraphernalia
  •  1954. Offer, acceptance, or solicitation to influence operations of employee benefit plan
  •  1955. Prohibition of illegal gambling businesses
  •  1956. Laundering of monetary instruments
  •  1957. Engaging in monetary transactions in property derived from specified unlawful activity
  •  1958. Use of interstate commerce facilities in the commission of murder-for-hire
  •  1959. Violent crimes in aid of racketeering activity
  •  1960. Prohibition of unlicensed money transmitting businesses

 

 As you can see from the above, the language pertains to some pretty serious criminal stuff or conspiracies in furtherance of an illegal scheme. Letters from Mr. Miller further go onto cite sections of the Immigration and Nationality Act  (INA) for “harboring” aliens and the criminal section of the US Code making it a crime to “impede an officer in his official duties”.

First, the Immigration and Nationality Act section related to “harboring” pertains to alien smugglers who are bringing aliens in car transporting aliens within the United States.

 

8 U.S. Code § 1324 – Bringing in and harboring certain aliens:

The statute criminalizes activities including (1) bringing aliens illegally into the USA, (2) transporting aliens who are illegally within the USA, (3) hiding aliens who are illegally in the USA, (4) induces an alien to come illegally to the USA, or (5)  conspires to commit the above or aids in any attempt to do so.

 

18 U.S. Code § 372 – Conspiracy to impede or injure officer:

The section on impeding a US officer in his official duties relates to overt actions that prevent an officer from performing their duties, including, but Including, for example, hiding an alien, who is legally obliged to report to the Department of Homeland Security for removal.

 

“If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat…or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.”

Let’s look at each of the above sections carefully:  the first, from the INA requires far more illegal action than the help that an immigrant rights advocate would typically render an alien seeking relief from removal.  I’ve listed the kinds of help that can be legally provided below.

The second section, likewise, threatens criminal prosecution for “two or more persons” who conspire, by illegal means, to prevent a federal officer from conducting his or her official duties.  Again, I do not see the typical immigrant rights advocate holding off a federal officer from arresting and incarcerating an alien immigrant in the lawful pursuit of his official duties, violating the provisions of  8 USC 372, above.

 

Therefore – What actions can a private citizen legally do to help immigrants?

The first question to be asked is: has a Court or the Department of Homeland Security issued a final order of deportation (removal) against the alien?

For more detailed information on how to assess an alien’s case, visit our very helpful website

https://saveimmigrantfamiliesusa.com/

Assess the alien’s case using the detailed questionnaire (in Spanish or English) on the home page.  Contact an immigration attorney in order to verify your findings and possible legal action that the alien can take to protect himself and his family from removal.

[You can also visit my blog at sethnalaw.com for articles on different immigration topics ranging from deportation to student visas, permanent residency through family or work, asylum law and citizenship.]

If the alien has NOT received a final order of removal (deportation), then the alien may be eligible for several forms of “relief from removal” (more on the websites and questionnaire referenced above)

Once you have concluded this initial intake and analysis, and if the alien DOES NOT have a final order of removal against himself, then:

 

A private US citizen or organization can legally do any of the following: 

  • Assist the alien in filing whatever applications can be filed with courts or the Department of Homeland Security to keep the alien legally in the USA while his or her applications are decided by the appropriate agency.
  • Assist in an alien’s transportation including to immigration court, hospitals, schools, appointments at ICE or other federal agencies, appointments to state or local agencies, etc.  (NOT assist in transporting an alien to a place of hiding).
  • House an alien in his or her premises, as long as the alien remains in removal proceedings and the alien has not exhausted all of his or her appeals. Only if and when a final order of removal is issued, can ICE seek to actually try to remove that alien from the United States.  Until then the alien must have a place to stay. Aliens (and by extension people helping them) have an obligation to report their up-to-date address with the DHS.
  • Provide financial help, clothing, food, and other necessities to the alien. The citizen can transport the alien to and from a worksite, or assist the alien in obtaining necessary, legal documentation (eg: drivers’ license, care registration and car insurance) in order to travel legally, while his or her other applications for relief are pending.
  • Help an alien secure employment authorization which is typically granted to aliens with certain types of pending immigration applications (example: Asylum, DACA, TPS, VAWA, U and T visas, Adjustment of Status, etc.)
  • Help an alien to obtain a legal social security number and secure legal employment when the alien receives work authorization from the DHS as explained above.
  • Assist an alien to obtain legal benefits (example – health care, food stamps, WIC) from state or federal agencies for US citizen members of the alien’s family (example: US Citizen spouse or US citizen children)
  • Assist an alien or the alien’s family in obtaining a place to stay.

 

In a nutshell, the legal processes need to play out, and aliens are entitled to common human decency, including food, clothing, and shelter while their removal proceedings wend their way through the system.

Also, it is impractical to expect ICE to be removing millions upon millions of aliens immediately, so it will have to schedule removals in an orderly fashion. Obviously, that will not happen overnight, and so will take considerable time and resources of the federal government.  During that time, an alien still has to live within US society and be able to care for his or her family.

 

What if an alien receives a final order of removal?

An alien who is issued a final order of removal may be required to report to ICE for removal, and if such an order is issued, the alien, and any US citizen, helping such alien must “produce” the alien to the DHS. However, unless the US citizen has executed some kind of guarantee with the US government to produce said alien for removal, the US citizen has no legal obligation to produce the alien, and may not be prosecuted for failure to do so.  However, an alien who fails to report to ICE becomes a “fugitive” and then can be arrested and detained by ICE.

It is also very possible that ICE will not remove the alien right away. An alien may perhaps seek to stay their removal based on extenuating circumstances, and ICE may grant a state of deportation or removal. In that case, ICE will require the alien to report to ICE, perhaps wear an ankle bracelet for monitoring, or check in with ICE using a mobile phone app.

An alien who with an final order of removal and no pending appeals who is NOT removed from the USA can also seek “suspension of removal” from ICE.  In extenuating circumstances, ICE may grant such suspension, and the alien may be able to remain in the USA as long as the grant or suspension remains valid.

It is also possible that an alien may have been released from ICE custody under an “Order of Supervision” from ICE.  In such a case, an alien can also seek employment authorization from ICE and remain in the USA until such time that the DHS finally removes him or her from the USA.

 

Conclusion:

There are many ways a US citizen can legally help an alien facing removal from the USA without fear of prosecution. While it is important to be cautious and not take any risks or illegal acts (example  – hiding an alien who ICE is looking for), the actions listed above are typically going to be upheld as lawful acts of humanitarian concern and not criminal acts subject to prosecution.  If in doubt, of course, consult an experienced civil rights, criminal law or immigration attorney.

Stay tuned for further developments…..

 

© Farhad Sethna, Attorney, 2025

Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.