Are UC Officials Who Hire Illegal Aliens Subject to Criminal Prosecution?

Last September, 29 law professors assured the University of California that “no federal law prohibits [it] from hiring undocumented students”, that the Immigration Reform and Control Act of 1986’s prohibition on the knowing hiring and employment of aliens not authorized to work under federal law “does not bind state government entities”. I have concluded that if the UC regents do authorize such employment and the federal government challenges it, that IRCA’s employer sanctions regime will likely be found to apply to UC and UC will likely not be found to have a constitutional right to hire unauthorized aliens as professors.

Following the receipt of this assurance from the 29 law professors, the UC regents indicated their support in principle and voted to form a working group to examine the issue and complete a proposed implementation plan by November 2023. The regents have not yet publicly announced a plan.

The professors failed to detail to UC the risks involved, not only to HR officers, but also to the UC regents themselves. For “employer sanctions” violations carry not only civil but also potential criminal liability, and penalties include (and have resulted in) imprisonment.

Employer sanctions’ primary criminal offense involves “pattern or practice” violations: “Any person or entity which engages in a pattern or practice of violations ... shall be fined not more than $3,000 for each unauthorized alien .., imprisoned for not more than six months for the entire pattern or practice, or both”.

Other applicable criminal offenses include:

“Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens” unauthorized to work who have been smuggled into the U.S. is subject to penalties including “fine[s] ... or imprison[ment] for not more than 5 years, or both.”

“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 ... or ... engages in any conspiracy to commit any [such] act[], or ... aids or abets the commission of any ... [such] act[]” is subject to penalties including “for each alien in respect to whom ... a violation occurs ... fine[s] .., imprison[ment for] not more than 5 years, or both ... “or [if] the offense was done for the purpose of commercial advantage or private financial gain, ... fine[s] .., imprison[ment] not more than 10 years, or both”.

“Any person who ... encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law ... or ... engages in any conspiracy to commit any [such] act[], or ... aids or abets the commission of any ... [such] act[]” is subject to the same potential set of penalties as for harboring.

The “harboring” and “encouraging/inducing” offenses are predicate offenses for purposes of civil and criminal application of RICO — the Racketeer Influenced and Corrupt Organizations Act.

No administration has aggressively utilized employer sanctions’ criminal penalties. A principal cause of this failure is the difficulty in proving that an employer “knowingly” hired or employed unauthorized aliens, in large part the result of the easy availability to them of fraudulent documents. However, proof of knowledge should not be a difficulty in the case of an employer, potentially such as UC, that publicly proclaims that it will knowingly hire unauthorized aliens.

While the Biden administration utilizing its power of prosecutorial discretion might very well refuse to enforce employer sanctions against UC, the statute of limitations for the federal crimes involved is five years. Thus, the next administration would be able to bring prosecutions for most or all UC’s hiring under a new policy, and certainly for the continuing employment of unauthorized aliens still employed at UC (as continuing employment is a continuing offence).

https://cis.org/Report/Are-UC-Officials-Who-Hire-Illegal-Aliens-Subject-Prosecution

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