Please note the following "law" for harboring, aiding, and abetting illegal aliens. Specifically note the highlighted portions of said law. Based on this evidence, do you still contend that Wells-Fargo is not knowingly engaged in illegal activity, by providing loans and mortgages to illegal aliens?
Federal Immigration and Nationality Act
Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)
"Any person who . . . encourages or induces an alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."
Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):
A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:
* assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or
* encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or
* knowingly assists illegal aliens due to personal convictions.
Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.
Recruitment and Employment of Illegal Aliens
It is unlawful to hire an alien, to recruit an alien, or to refer an alien for a fee, knowing the alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work.
Employers may give preference in recruitment and hiring to a U.S. citizen over an alien with work authorization only where the U.S. citizen is equally or better qualified. It is unlawful to hire an individual for employment in the United States without complying with employment eligibility verification requirements.
Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection.
Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. Day laborers or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law.
An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of deification of authorization to work, employer also means an independent contractor, or a contractor other than the person using the alien labor.
The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.
An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer's work force. Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance.
Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.
IT IS ILLEGAL FOR NONPROFIT OR RELIGIOUS ORGANIZATIONS to knowingly assist an employer to violate employment sanctions, REGARDLESS OF CLAIMS THAT THEIR CONVICTIONS REQUIRE THEM TO ASSIST ALIENS. Harboring or aiding illegal aliens is not protected by the First Amendment.
It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.
Encouraging and Harboring Illegal Aliens
It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any alien who is in the United States in violation of law. HARBORING MEANS ANY CONDUCT THAT TENDS TO SUBSTANTIALLY FACILITATE AN ALIEN TO REMAIN IN THE U.S. ILLEGALLY.
The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.
An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien's illegal employment.
Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring.
It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien's entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that "encouraging" includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors.
The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.
The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years' imprisonment.
Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years' imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored.
A court may order a convicted smuggler to pay restitution if the alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years' imprisonment.
Enforcement
A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions.
By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.
State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law.
There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws.
Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens.
Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer's consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.
RICO -- Citizen Recourse
Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes.
A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, AND CAN INCLUDE NONPROFIT ASSOCIATIONS.
Tax Crimes
Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice.
In addition to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.
Does Wells Fargo "know" these home loan applicants are illegal aliens or, "in reckless disregard of the fact, encourage or induce an alien to reside"?
You obviously cannot just assume that Wells Fargo "knows" - they are not asking of course and, we have to presume as well, they would not fund a loan if that were evident on the paperwork submitted. As your own post notes: "Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance." Where the rubber meets the road will be if 1) Wells Fargo can be found in "reckless disregard" to that fact and 2) funding a home loan qualifies as "encourag[ing] or induc[ing] an alien to reside". I will also address below 3) everything else you threw up against the wall to see what sticks.
1) "Reckless" according to Black's Law Dictionary, 6th ed., depends on the factual circumstances and "may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive, or negligent . . . A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and circumstances known to him it's disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. Model Penal Code § 202(c)." As an example, reckless "within the meaning of requirement for commission of involuntary manslaughter [is] when he he consciously disregards substantial and unjustifiable risk that his acts are such as are likely to cause death or great bodily harm to some individual and where such disregard constitutes gross deviation from standard of care which reasonable person would exercise is such situation. People v. Griffith 14 Ill.Dec. 393, 56 Ill.App.3d 747, 372 N.E.2d 404".
How would a Court rule on these questions, or I think more importantly, will otherwise "law-abiding" lenders join with Wells Fargo and simply make this the acceptable standard of conduct / within the standard of care? We simply don't have enough facts at this point in time to predict, but I'm sure their lawyers have, at the very least, put procedures into place to argue they are not in "reckless disregard." For instance, some stringent guidelines for not accepting applications with known false statements or other obvious errors. You already know that Wells Fargo is requiring TWO in-person meetings - I purchased a home recently and can testify I never met the Countrywide rep once.
2) On the funding of a home loan qualifying as "encourag[ing] or induc[ing] an alien to reside", I might be willing to give you that one, for the purpose of argument, pending some applicable case law on point holding otherwise. Thanks for your post - let me know if you have any questions about the above analysis.
Thanks also for being the only one to respond with an arguably applicable law, and good luck with any such prosecution(s) or even helping Pelham with his / her very own personal RICO action for that matter - gotta love the American way - woo hoo!
3) As for the First Amendment (I never claimed that as justification) or tax code violations, actual alien smuggling or harboring as against Wells Fargo, fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors allegations, you will have to be a bit more specific in said application to this particular Wells Fargo "Celebrate Home" program for me to render any meaningful comment.
Laws are for little people like you, mister border vigilante. The RNC and I get to pick and choose what laws we like. Just ask Karl Rove.
Thanks for posting this OB1... I couldn't pull it up yesterday at work and didn't get to it last night before I passed out! :D This is perfect... I must bookmark for later usage. :)