Faith leaders, charitable organizations oppose resident 'harboring' bill

BOISE — A House committee took well over an hour of testimony Tuesday regarding a bill seeking to penalize organizations for transporting or otherwise providing assistance to an individual in the United States without legal permission. 

House Bill 764, sponsored by Rep. Dale Hawkins, R-Fernwood, and authored by former Idaho solicitor general Theo Wold, seeks to make the concealing, transporting or assisting of a person without legal residency status a misdemeanor upon first violation and a felony upon subsequent violations. 

The bill, voted to be held in committee by members of the House Judiciary, Rules & Administration Committee, would have barred organizations from engaging in a range of actions, including encouraging unlawful residency or assisting those who are in the U.S. in violation of federal law through “shelter, financial support, or legal assistance.” 

Whether an organization as a whole or a member of an organization is found guilty of violating the bill, the state and/or municipalities must revoke the organization's business licenses and permits for one year and impose a fine not exceeding $3,000. In the event of a repeated violation, the organization will have its business licenses and permits permanently revoked, the bill states.  

During the public testimony period, which drew dozens of testifiers, there was overwhelming opposition from local faith leaders, nonprofit organizations, and law enforcement, who each raised concerns about being prosecuted under the bill's language.

Randy Ford, president and CEO of the Idaho Food Bank, expressed concern that the nonprofit's mission to provide food across the state would be upended if the bill passed. Since the organization doesn’t verify immigration status before providing food or gift cards for food, Ford noted the Idaho Food Bank could be construed as providing “financial support” that “recklessly disregards” a person’s immigration status. 

To avoid prosecuting a food bank volunteer under the bill, the consequence would likely be profiling food bank clients based on the language they speak or their perceived national origin, Ford said.

Jenny Hirst, an outreach minister at Collister United Methodist Church, said the Bible teaches to "feed the hungry, clothe the naked, welcome the stranger." In the case of churches, nonprofits and food banks, resources are provided according to need. But the bill's "vague language" would require these organizations to ask a person's immigration status to provide their services.

"This bill represents a profound overreach in the mission of private nonprofits and faith communities, and it undermines the humanitarian work Idaho communities have carried out faithfully for generations," Hirst said.

Several exceptions to the bill’s provisions are in place to shield certain organizations and agencies, so as not to inhibit their ability to function. That includes exceptions for people acting in their official capacity as a first responder to transport and render emergency aid or for law enforcement and those hired by law enforcement to “securely transport an alien who is unlawfully present in the United States.”  

Idaho state courts, including their staff, attorneys and appointed counsel, are also exempt from the bill when acting in an official capacity.  

Ada County Sheriff Matt Clifford, who opposed a previous version of the bill last year, spoke on behalf of the Idaho Sheriffs' Association and said there were no substantial changes in the bill to allow for the association to support the bill. Though there is an exception for law enforcement, the bill limits that exception to transport, excluding other law enforcement resources used to assist investigations.  

“This bill does not provide a clear exception for law enforcement to aid victims of crime or speak to witnesses as needed,” Clifford said. “The bill assumes we only ever deal with a criminal alien suspect, and that is not the reality.”

Clifford said Ada County Sheriff deputies are frequently interacting with people who are unlawfully present and victims of human trafficking, sexual abuse, physical assault or theft.

Under the language of the bill, however, law enforcement would be unable to communicate with these individuals about their rights or provide a person with a safe place to stay from an abuser, Clifford said.  

Neal Dougherty, an immigration attorney with Ramirez-Smith Law, spoke on his own behalf and said he anticipated that the viability of his profession would be affected under the bill, as he operates in private practice outside the bill’s exceptions for individuals working for Idaho state courts.  

“I serve people who are non-citizens, and I try and help them get legal status,” Dougherty said. “I try to defend them and uphold their rights and the exceptions that are within this law, with regard to provisional legal assistance, would make it so that my job is a felony.”

Dennis Benjamin, a criminal defense attorney with Kevin, Benjamin & McKay LLP, spoke on his own behalf about the potential impact of the legislation on defense attorneys. Benjamin said his perspective on the bill was that it would make it a crime to provide legal counsel to a person without lawful residency status, in violation of the right to counsel established by the Fifth Amendment.

Benjamin said it would also make the jobs of defense attorneys seeking compliance far more difficult, as legal advice in criminal defense could vary greatly depending on a person’s legal status. If attorneys asked for their client's immigration status and subsequently provided legal aid, however, it would constitute a “knowing” violation of the bill.

Following the testimony, Hawkins indicated an openness to send the bill for amendment to address concerns raised by attorneys and law enforcement. After several committee members voiced concerns about lingering issues raised by those who testified, the body ultimately voted 9-7 to hold the bill in committee.

“We have our good churches, we have our good sheriffs, good conservative people that I know and I greatly respect … coming in here and saying, well, ‘our objections have not been listened to or incorporated,’” Rep. John Shirts, R-Weiser, said. “And that’s what gives me some pause."