United States v. Myung Ho Kim, Also Known as Roberto
193 F.3d 567, 1999 U.S. App. LEXIS 25054 (1999)
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Rule of Law:
An employer's conduct of affirmatively instructing an undocumented alien employee to use false identification and documentation to conceal their identity from authorities constitutes "harboring" under 8 U.S.C. § 1324, a more serious offense than mere unlawful employment.
Facts:
- Myung Ho Kim owned Sewing Masters, a garment-manufacturing business.
- Nancy Farfan, an undocumented alien from Ecuador, worked at Sewing Masters under her real name using false documents.
- In late 1995 or early 1996, Kim instructed his manager to tell undocumented employees, including Farfan, to obtain and use papers with different names if they wanted to continue working.
- Kim warned his manager not to reveal that he gave this instruction, stating that he could go to jail if immigration authorities found out.
- At Kim's direction, Farfan obtained new counterfeit documents in the name "Nancy Ortiz" and completed new employment forms.
- Following Kim's instructions, Farfan also filled out an official INS worksheet indicating that "Nancy Farfan" had been terminated and "Nancy Ortiz" had been newly hired.
- After the INS identified the "Nancy Ortiz" documents as suspect, Kim encouraged Farfan to get her papers "fixed" and approved her using yet another name.
- Farfan then purchased new counterfeit documents in the name "Blanca Ortiz," filled out new employment forms, and continued to work for Kim under that identity.
Procedural Posture:
- Myung Ho Kim was charged by the United States government in the U.S. District Court for the Southern District of New York with three counts of harboring illegal aliens.
- At trial, the jury initially reported it was unable to reach a unanimous verdict.
- After the judge gave the jury an Allen charge, the jury returned a verdict convicting Kim on one count of harboring Nancy Farfan and acquitting him on the other two counts.
- The district court sentenced Kim to three months' imprisonment, departing downward from the Sentencing Guidelines.
- Kim, the appellant, appealed his conviction to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does an employer's conduct of knowingly instructing an undocumented alien employee to use false names and documents to continue employment and evade detection by immigration authorities constitute 'harboring' under 8 U.S.C. § 1324(a)(1)(A)(iii)?
Opinions:
Majority - Kearse, Circuit Judge
Yes. An employer's actions that go beyond simple employment and actively facilitate an alien's ability to remain in the United States illegally constitute harboring under § 1324. The court first rejected Kim's argument that he could only be prosecuted under the lesser unlawful employment statute, § 1324a. It reasoned that § 1324 applies to "[a]ny person" and that Congress, through the Immigration Reform and Control Act of 1986, specifically eliminated a proviso that had previously exempted employment from the definition of harboring. This amendment demonstrated a clear intent to allow for the prosecution of employers under this more severe statute. Furthermore, when an act violates two statutes, the government has the discretion to prosecute under either. The court then defined harboring as "conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence." Kim's conduct, which included directing Farfan to obtain and use multiple sets of false documents and to falsify official records submitted to the INS, went far beyond mere employment and was a deliberate scheme to help her evade detection. This was sufficient to permit a jury to find him guilty of harboring.
Analysis:
This decision clarifies the critical distinction between the misdemeanor of unlawful employment under 8 U.S.C. § 1324a and the felony of harboring under § 1324. It establishes that employers face significantly heightened criminal liability when they move from passive non-compliance to active concealment of an employee's undocumented status. The ruling serves as a precedent that affirmative acts, such as instructing employees to use aliases or falsify documents, are not shielded by the employment relationship and can support a felony harboring conviction. This broad interpretation of "harboring" strengthens the government's ability to prosecute employers who orchestrate schemes to circumvent immigration laws, rather than merely violating hiring regulations.
