Harboring Undocumented Students? Insights For College And University General Counsel

I recently served as a panelist on "The New World of Immigration Compliance: Advising Universities in an Era of Enforcement" at the National Association of College and University Attorneys (NACUA)'s Winter 2026 Virtual CLE Workshop on Compliance. The session addressed the growing legal and operational pressures facing colleges and universities as federal immigration enforcement activity intensifies.

For this CLE, I authored written materials examining a question that has drawn increasing attention from higher education counsel: whether a university could face criminal liability under 8 U.S.C. § 1324, the federal "harboring" statute, for enrolling or housing undocumented students.

The issue gained renewed focus after the ACLU issued an open letter to university general counsels asserting that routine institutional conduct, such as providing housing, enrollment, and student services, does not violate the harboring statute. Rather than focusing on policy arguments, our analysis examines the governing case law. By examining federal appellate decisions that have upheld harboring convictions, I identified where courts have actually drawn the line.

To secure a conviction under § 1324(a)(1)(A)(iii), the government must prove that a defendant concealed, harbored, or sheltered a noncitizen who was unlawfully present, knew or recklessly disregarded that status, and engaged in conduct that substantially facilitated the person's remaining in the United States. In several circuits, courts require proof of intentional assistance aimed at helping the individual avoid detection.

The cases sustaining criminal convictions involve affirmative acts such as arranging sham marriages, encouraging the use of false documents, restricting an individual's movement, or actively warning individuals about approaching immigration authorities. By contrast, federal appellate courts have repeatedly declined to treat the ordinary provision of housing or services as harboring. As the ACLU letter notes, courts addressing the issue have held that renting to an undocumented person, without more, does not satisfy the statute.

Applying that framework to higher education, common campus scenarios, like allowing undocumented students to attend classes, providing housing on the same terms offered to other students, and administering neutral scholarship or benefit programs, generally do not pose much risk of meeting the substantial facilitation or concealment elements required for criminal liability. Risk increases where there is evidence of active concealment, misleading statements to authorities, or assistance in evading enforcement. Neutral, mission-based policies administered uniformly, coupled with clear guardrails for employees during enforcement activity, significantly reduce exposure.

Another area of growing concern for educational institutions is ICE administrative subpoenas. Administrative subpoenas issued by ICE are not self-executing; absent a court order compelling compliance, failure to respond does not carry penalties. Institutions should carefully review the statutory authority cited, assess scope and relevance, develop advanced response protocols, and adopt data minimization practices. ICE lacks unilateral authority to impose binding gag orders through administrative subpoenas.

The broader message for university counsel is one of calibration. Immigration enforcement may be more assertive, and longstanding statutes may be tested in new ways. Appellate precedent provides meaningful limits. Institutions that understand those limits, train stakeholders appropriately, and maintain neutral policies grounded in their educational mission are well positioned to manage risk without retreating from core operations.

At Klasko Immigration Law Partners, we work closely with colleges and universities nationwide on the full spectrum of immigration compliance, student and faculty mobility, and institutional risk management. Our higher education team is supported by an expanding bench of experienced litigators prepared to assist institutions facing subpoenas, investigations, or other enforcement-related challenges.

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