Opposition Brief — Lili Zhang Tydingco, Petitioner v. United States

Supreme Court briefFeb 26, 2025

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No. 24-5913

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

LILI ZHANG TYDINGCO, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

SARAH M. HARRIS

Acting Solicitor General

Counsel of Record

ANTOINETTE T. BACON

TYLER ANNE LEE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTIONS PRESENTED

Whether petitioner’s Confrontation Clause rights were

violated when a customs officer testified at trial to statements

that petitioner made during an interview through an interpreter

who did not testify.

Whether the district court was required to instruct the

jury that finding petitioner guilty of harboring an alien, in

violation

U.S.C.

1324(a)(1)(A)(iii),

concealment from law enforcement.

(I)

requires

active

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 24-5913

LILI ZHANG TYDINGCO, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-5a) is not

published in the Federal Reporter but is available at 2024 WL

3064026.

A prior opinion of the court of appeals (Pet. App. 6a-

11a) is not published in the Federal Reporter but is available at

2022 WL 445527.

Another prior opinion of the court of appeals

(Pet. App. 12a-27a) is reported at 909 F.3d 297.

JURISDICTION

The judgment of the court of appeals was entered on June 20,

2024.

A petition for rehearing was denied on July 30, 2024 (Pet.

App. 28a).

The petition for a writ of certiorari was filed on

October 28, 2024.

The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Northern Mariana Islands, petitioner was convicted of

unlawfully

harboring

1324(a)(1)(A)(iii).

noncitizen,

Am.

Judgment

petitioner to 90 days of imprisonment.

of appeals affirmed.

violation

The

U.S.C.

court

sentenced

Am. Judgment 2.

The court

Pet. App. 1a-5a.

September

2013,

petitioner

legal

permanent

resident of Saipan in the Commonwealth of the Northern Mariana

Islands -- traveled to China, where she met X.N., a minor female

and Chinese citizen.

Gov’t C.A. Br. 5-6; C.A. E.R. 588-589.

X.N.’s parents wanted her to study in the United States and become

a U.S. citizen.

Ibid.

Petitioner agreed to take X.N. back to

Saipan with her.

C.A. E.R. 589.

At the time, Chinese citizens were permitted to enter and

stay in the Northern Mariana Islands without a visa for a maximum

of 45 days under a conditional parole tourism program.

Br. 5; C.A. E.R. 177-180.

Gov’t C.A.

To be paroled into the country under

that program, the Chinese citizen was required to be interviewed

by a U.S. Customs and Border Protection (CBP) officer upon arrival

and show proof of a return ticket departing within 45 days.

C.A. Br. 5; C.A. E.R. 178-180.

Gov’t

If CBP granted parole, an I-94

form indicating the departure date was placed in the individual’s

passport.

Gov’t C.A. Br. 5; C.A. E.R. 181-183.

Petitioner returned to Saipan with X.N. on September 25, 2013,

and they went through CBP processing at the airport.

Br. 6; C.A. E.R. 201-205, 577-582, 589.

Gov’t C.A.

Documentation presented

to CBP showed that X.N. was booked on a return flight scheduled on

October 28, 2013, fewer than 45 days from her date of arrival.

Gov’t C.A. Br. 6; C.A. E.R. 197-199, 246-247, 580.

CBP referred

petitioner

and

during

which

petitioner

presented

that

X.N.’s

X.N.

secondary

notarized

inspection,

letter

stating

parents had authorized petitioner and her husband to be X.N.’s

guardians for the duration of X.N.’s stay on Saipan.

Gov’t C.A.

Br. 6; C.A. E.R. 203, 239-242, 577-578, 583-586.

Petitioner, who is proficient in both English and Chinese,

spoke both languages with the CBP officer conducting the secondary

inspection, Ronald Muna.

244-245, 368, 588.

Gov’t C.A. Br. 6, 20; C.A. E.R. 238,

An airline-employed interpreter was also

present and translated some of the conversation.

239, 253; see Pet. App. 2a, 5a.

C.A. E.R. 237-

During the interview, petitioner

falsely told Officer Muna that she was X.N.’s aunt.

Gov’t C.A.

Br. 6; C.A. E.R. 243-244.

CBP granted X.N. admission to the Northern Mariana Islands

until November 4, 2013, based on petitioner’s representations that

X.N.’s stay would comply with the parole program.

6; C.A. E.R. 237-246.

Gov’t C.A. Br.

That mandatory departure date was stamped

on an I-94 form in X.N.’s passport, which petitioner saw.

Gov’t

C.A. Br. 7; C.A. E.R. 589; C.A. Supp. E.R. 113.

Shortly afterward, petitioner enrolled X.N. in school on

Saipan.

Gov’t C.A. Br. 7; C.A. E.R. 589, 591.

X.N. lived at

petitioner’s home for approximately a year and a half before the

Northern Mariana Islands’ Division of Youth Services removed her

from the home.

Gov’t C.A. Br. 8; C.A. E.R. 589-590.

In October 2015, petitioner waived her rights and provided a

signed, written statement to federal law enforcement, in which she

admitted, among other things, that she understood that the United

States had immigration laws; that X.N.’s father had wanted X.N. to

come to the United States; that petitioner had agreed to take X.N.

to Saipan; that petitioner and X.N. spoke to a CBP officer upon

arrival in Saipan; that petitioner had X.N.’s passport and saw the

November 2013 parole date on X.N.’s I-94; and that X.N. lived with

petitioner for one and a half years.

Gov’t C.A. Br. 8-9; C.A.

E.R. 587-590. 1

A federal grand jury in the Northern Mariana Islands

returned an indictment charging petitioner with two counts of

unlawfully

harboring

1324(a)(1)(A)(iii).

alien,

Indictment 1-2.

violation

U.S.C.

Section 1324(a)(1)(A)(iii)

provides for criminal penalties for any person who, “knowing or in

reckless disregard of the fact that an alien has come to, entered,

A Chinese interpreter was provided for this lawenforcement interview, although petitioner stated that she spoke

and understood English. C.A. E.R. 367-374, 438-439.

or remains in the United States in violation of law, conceals,

harbors, or shields from detection

place.”

such alien in any

8 U.S.C. 1324(a)(1)(A)(iii).

Petitioner proceeded to trial.

counts

* * *

was

dismissed,

jury

After one of the harboring

found

petitioner

guilty

the

remaining harboring count pertaining to X.N.

C.A. Supp. E.R. 91.

The

district

court

imprisonment.

sentenced

petitioner

ten

months

Id. at 77.

trial.

The court of appeals reversed and remanded for a new

Pet. App. 12a-27a.

The court of appeals first determined that the evidence was

sufficient to support petitioner’s conviction.

Pet. App. 18a-19a.

The court observed that “[o]nly [petitioner’s] mental state was

truly in dispute at trial.”

Id. at 18a.

And it determined that

a “rational juror could have found that [petitioner] knew that

X.N.’s continued presence in the United States was unlawful after

November

2013”;

that

immigration

laws”;

and

alien.”

Ibid.

The

court

entitled

petitioner

that

appeals

jury

“intended

petitioner

also

held

instruction

“harbored

violate

the

illegal

that

petitioner

was

not

that

harboring

required

“shelter[ing] X.N. for the specific purpose of avoiding detection

by immigration authorities.”

Pet. App. 20a.

The court observed

that it had previously rejected the argument that “‘harbor’ means

‘to harbor so as to prevent detection by law enforcement agents.’”

Ibid. (quoting United States v. Acosta de Evans, 531 F.2d 428, 430

(9th Cir.), cert. denied, 429 U.S. 836 (1976)).

But the court of

appeals nonetheless reversed petitioner’s conviction and remanded

for a new trial, on the view that the district court had been

required to provide an instruction “that the defendant intended to

violate the law”; that the omission of such an instruction had not

been harmless; and that the instruction on the statutory phrase

“reckless disregard” constituted reversible plain error.

Id. at

23a-27a.

A grand jury returned a superseding indictment charging

petitioner with a single count of harboring an alien, in violation

of 8 U.S.C. 1324(a)(1)(A)(iii), Superseding Indictment 1-2, and

petitioner again proceeded to trial.

guilty,

and

the

imprisonment.

district

court

The jury found petitioner

sentenced

her

days

C.A. Supp. E.R. 45-46.

In an unpublished opinion, the court of appeals again reversed

and remanded for a new trial, concluding that certain evidence of

prior bad acts should not have been admitted against petitioner

and that the error was not harmless.

Pet. App. 6a-11a.

But the

court rejected petitioner’s other asserted grounds for reversal.

The

court

appeals

first

determined

that

sufficient

evidence supported petitioner’s harboring conviction because the

government had presented the same evidence that the court had

previously found sufficient.

Pet. App.7a.

The court also found

that the jury instructions on the harboring offense complied with

its previous decision.

Ibid.

The court of appeals further determined that the district

court did not err in admitting the testimony of CBP Officer Muna

regarding petitioner’s translated statements during the airport

interview.

Pet. App. 10a.

The court of appeals explained that

translated statements are admissible under the Federal Rules of

Evidence and the Confrontation Clause of the Sixth Amendment “if

they ‘fairly should be considered the statements of the speaker.’”

Ibid. (quoting United States v. Orm Hieng, 679 F.3d 1131, 1139

(9th Cir.), cert. denied, 568 U.S. 1055 (2012)).

The court noted

that courts “must consider all relevant factors” in making that

assessment.

Ibid. (quoting Orm Hieng, 679 F.3d at 1139).

And

here the court found that petitioner’s “English fluency” was the

“dispositive factor” demonstrating that the translated statements

should

treated

interpreter.

Ibid.

petitioner’s

The

court

own,

not

emphasized

those

that

the

petitioner

“understands English, was present when the interpreter relayed her

statements to Officer Muna, and never corrected the translation or

expressed any confusion about it.”

charging

Ibid.

A grand jury returned a second superseding indictment

petitioner

1324(a)(1)(A)(iii).

with

Second

violation

Superseding

Indictment

Petitioner proceeded to trial for the third time.

U.S.C.

1-2.

trial,

the

government

again

presented

evidence

statements made by petitioner at her airport interview with CBP

Officer Muna.

Petitioner again objected on the theory that her

statements were inadmissible unless the interpreter testified, and

the district court overruled the objection.

C.A. E.R. 8-10.

With

respect to the harboring offense, petitioner submitted a proposed

jury instruction stating that “[o]ne harbors an illegal alien

through

conduct

remaining

that

the

substantially

United

States

facilitates

illegally

and

immigrant’s

that

prevents

government authorities from detecting the individual’s unlawful

presence.”

Id. at 28.

The district court instead instructed the

jury that “harbor” means “to provide shelter to,” C.A. Supp. E.R.

27 (internal quotation marks omitted), and that the jury had to

find that petitioner “harbored X.N. with the intent to violate the

law,” id. at 23.

The jury found petitioner guilty, and the district court

sentenced her to 90 days of imprisonment.

Am. Judgment 1-2.

The court of appeals affirmed in an unpublished opinion.

Pet. App. 1a-5a.

The court again rejected petitioner’s argument

that Officer Muna’s testimony violated the Confrontation Clause.

Id. at 2a.

The court observed that it had “already decided” in

the second appeal that petitioner’s interpreted statements were

admissible,

because

petitioner

“was

fluent

English

therefore could have corrected any mistranslation.”

Ibid. 2

and

Turning to petitioner’s claim of instructional error on the

harboring offense, the court of appeals observed that its decision

in the first appeal “foreclose[d]” the argument that the term

“harbor” as used in Section 1324(a)(1)(A)(iii) “requires active

concealment.”

Pet. App. 5a.

The court also rejected petitioner’s

challenge to the sufficiency of the evidence, explaining that the

first appeal had “held that the evidence we find admissible today

was sufficient to support her conviction.”

Ibid.

ARGUMENT

Petitioner argues (Pet. 9-21) that the admission, through the

trial testimony of the CBP officer, of her translated statements

the

officer

during

her

airport

interview

violated

the

Confrontation Clause because the interpreter did not also testify.

Petitioner additionally argues (Pet. 22-25) that the court of

appeals erred in not instructing the jury that “harbor[ing]” under

8 U.S.C. 1324(a)(1)(A)(iii) requires active concealment from law

enforcement.

The court of appeals’ decision is correct; it does

not conflict with any decision of this Court; and petitioner does

not allege any conflict in the courts of appeals warranting the

The court of appeals additionally rejected petitioner’s

claim that the introduction of her October 2015 written statement

to law enforcement, which was also translated, violated the

Confrontation Clause. Pet. App. 3a. Petitioner does not renew

her challenge respecting the October 2015 statement before this

Court.

Court’s review in this case.

The petition for a writ of certiorari

should be denied.

Petitioner

admission

her

renews

her

translated

claim

(Pet.

statements

9-21)

during

that

the

airport

interview violated the Confrontation Clause.

That claim lacks

merit.

recognized,

the

court

appeals

correctly

the

interpreter at the interview acted only as a language conduit for

petitioner’s

own

statements,

and

the

relevant

declarant

for

constitutional purposes was therefore petitioner herself.

addition, the statements in this case were nontestimonial and would

present no confrontation issue even if they were treated as those

of the interpreter.

This Court has repeatedly denied petitions

for writs of certiorari raising Confrontation Clause challenges to

the admission of translated statements. 3

The same result is

warranted here.

The

Confrontation

Clause

provides

that

“[i]n

criminal prosecutions, the accused shall enjoy the right

to be confronted with the witnesses against him.”

Amend. VI.

all

* * *

U.S. Const.

In Crawford v. Washington, 541 U.S. 36 (2004), this

Court construed that provision in light of “the common-law history

See Singh v. United States, 144 S. Ct. 134 (2023) (No.

22-7604); Lopez-Ramos v. Minnesota, 140 S. Ct. 845 (2020) (No. 195936); Ye v. United States, 579 U.S. 903 (2016) (No. 15-1002);

Santacruz v. United States, 570 U.S. 919 (2013) (No. 12-6807);

Budha v. United States, 568 U.S. 1164 (2013) (No. 12-7148); see

also Garcia-Chicol v. Arkansas, 141 S. Ct. 880 (2020) (No. 205834) (argument raised in statement of case but not listed as

question presented).

of the confrontation right,” Michigan v. Bryant, 562 U.S. 344, 353

(2011) (citing Crawford, 541 U.S. at 50), and held that absent a

prior opportunity for cross-examination, testimonial hearsay by a

witness adverse to the defendant is generally barred by the Clause,

Crawford, 541 U.S. at 68.

This Court has reinforced in cases

following Crawford that the Confrontation Clause “applies only to

witnesses ‘against the accused,’” Samia v. United States, 599 U.S.

635, 644 (2023) (citation omitted), and applies only to statements

that constitute “testimonial hearsay,” Davis v. Washington, 547

U.S. 813, 825 (2006); see Bryant, 562 U.S. at 354-355, 359 n.5.

The

court

appeals

below

correctly

determined

that

petitioner’s confrontation right was not violated because the

translations of petitioner’s interview statements were properly

attributed to petitioner herself, not to the interpreter who did

not testify.

Pet. App. 2a-3a, 10a.

In resolving the issue, the

court relied on its decision in United States v. Orm Hieng, 679

F.3d 1131 (9th Cir. 2012), which explained that “[a] defendant and

an interpreter are treated as identical for testimonial purposes

if the interpreter acted as a ‘mere language conduit’ or agent of

the defendant.”

Id. at 1139 (quoting United States v. Nazemian,

948 F.2d 522, 528 (9th Cir. 1991), cert. denied, 506 U.S. 835

(1992)).

And here, the court determined that the interpreter

merely acted as a conduit for petitioner because petitioner herself

was proficient in English and “could have corrected any error the

interpreter made.”

Pet. App. 3a.

The translated statements were therefore non-hearsay party

admissions falling outside the Confrontation Clause.

Evid. 801(d)(2)(A).

See Fed. R.

And as the courts of appeals have recognized,

Crawford does not affect the admissibility of a defendant’s own

out-of-court admissions at a criminal trial.

See, e.g., United

States v. Tragas, 727 F.3d 610, 615 (6th Cir. 2013); United States

v. Crowe, 563 F.3d 969, 976 n.12 (9th Cir. 2009); United States v.

Ramos-Cardenas, 524 F.3d 600, 609-610 (5th Cir.) (per curiam),

cert. denied, 555 U.S. 908, and 555 U.S. 949 (2008); United States

v. Tolliver, 454 F.3d 660, 664-665 (7th Cir. 2006), cert. denied,

549 U.S. 1149 (2007).

Petitioner contends (Pet. 9, 18) that the court of appeals’

precedent treating an interpreter as a conduit for the speech of

the foreign-language speaker is “inconsistent with this Court’s

holdings in Crawford” and its progeny, and “nearly identical to

the reliability test[]” in Ohio v. Roberts, 448 U.S. 56 (1980),

which established a reliability standard that Crawford abandoned.

That is mistaken. The language-conduit inquiry addresses the issue

whether a particular out-of-court statement is hearsay -- i.e.,

whether the out-of-court declarant is the interpreter or the

individual giving the statement that the interpreter translated

(here, petitioner).

See Nazemian, 948 F.2d at 525-526.

As noted

above, the Confrontation Clause applies only if the challenged

statement is third-party hearsay; the language-conduit inquiry

addresses that threshold question and is therefore analytically

distinct from, and antecedent to, a determination of whether the

Confrontation Clause applies.

Crawford reassessed the scope of

the Confrontation Clause, but that decision did not address what

constitutes hearsay in the first instance.

petitioner

notes

(Pet.

14),

the

four-factor

test

articulated by the court of appeals in Nazemian, 948 F.2d 522, for

determining whether interpreted statements should be viewed as the

interpreter’s or the original speaker’s turns in part on issues

related to the translation’s reliability.

See 948 F.2d at 527.

But that limited role of reliability does not contravene Crawford.

Any consideration of reliability under the approach in Nazemian is

relevant only to determining to whom a statement is attributable

(i.e., whether the Confrontation Clause applies at all), not to

whether the Clause has been satisfied (the reliability standard

considered and rejected in Crawford, see 541 U.S. at 62-63).

In its 2012 decision in Orm Hieng, 679 F.3d 1131, the Ninth

Circuit carefully analyzed and explained why Crawford does not

disturb

the

language-conduit

standard.

Id.

1139-1141.

Consistent with the foregoing analysis, the court of appeals

recognized that Crawford and its progeny “make it clear that, if

testimonial

statement

introduced,

the

Sixth

Amendment

requires opportunity for confrontation of the person who made the

statement,” but that those decisions “do not address the question

whether, when a speaker makes a statement through an interpreter,

the Sixth Amendment requires the court to attribute the statement

to the interpreter.”

Id. at 1140.

Petitioner contends (Pet. 17-18) that “a circuit split is

emerging” with respect to the constitutionality of translated

statements.

But

there

conflict

the

lower

courts

warranting this Court’s intervention.

Since Crawford, three courts of appeals and two state courts

of last resort have issued published decisions addressing Sixth

Amendment challenges to the introduction of translated statements

made by the defendant or another witness.

Four of those five

courts -- the Fourth and Ninth Circuits and the Arkansas and

Minnesota Supreme Courts -- have found no Confrontation Clause

problem in admitting such testimony based on agency or languageconduit approaches.

See United States v. Shibin, 722 F.3d 233,

235, 248-249 (4th Cir. 2013) (plain-error posture), cert. denied,

572 U.S. 1089 (2014); Orm Hieng, 679 F.3d at 1140-1141; GarciaChicol v. State, 597 S.W.3d 631, 638-639 (Ark.), cert. denied, 141

S. Ct. 880 (2020); State v. Lopez-Ramos, 929 N.W.2d 414, 417-423

(Minn. 2019), cert. denied, 140 S. Ct. 845 (2020); see also United

States v. Budha, 495 Fed. Appx. 452, 454 (5th Cir. 2012) (per

curiam), cert. denied, 568 U.S. 1164 (2013) (adhering to the

majority position in an unpublished decision).

the Eleventh Circuit, has held otherwise.

Only one court,

See United States v.

Charles, 722 F.3d 1319, 1321-1330 (2013) (finding error in the

admission of a CBP officer’s testimony regarding the statements

made by an interpreter who translated the defendant’s Creole

statements into English during an interrogation in which the

defendant was suspected of a crime).

That shallow and lopsided

disagreement does not warrant this Court’s intervention.

Further

review

particular

case,

because

especially

even

unwarranted

petitioner’s

this

translated

statements during the airport interview should be viewed as the

interpreter’s statements

, the statements were not testimonial.

Their admission thus presented no Confrontation Clause issue at

all, and they would be admissible even in the Eleventh Circuit.

statement

objectively indicate

“testimonial”

* * *

“the

circumstances

that [its] primary purpose” is to

establish “past events potentially relevant to later criminal

prosecution.”

Bryant, 562 U.S. at 356 (quoting Davis, 547 U.S. at

822); see Ohio v. Clark, 576 U.S. 237, 244-246 (2015) (statements

are not testimonial if they “were not made with the primary purpose

of creating evidence for [a defendant’s] prosecution”).

“Where no

such primary purpose exists, the admissibility of a statement is

the concern of state and federal rules of evidence, not the

Confrontation Clause.”

Bryant, 562 U.S. at 359.

made

that

clear,

moreover,

enforcement officers’

Clause.”

* * *

“not

all

This Court has

‘interrogations

law

are subject to the Confrontation

Id. at 355 (quoting Crawford, 541 U.S. at 53).

this

case,

the

interpreter’s

statements

during

petitioner’s airport interview with CBP Officer Muna were not

testimonial for two independent reasons.

First, the interpreter’s

primary purpose in making those statements was simply to facilitate

communication

interview.

between

petitioner

and

Officer

Muna

during

the

That purpose is mechanical; an interpreter’s job is to

provide that service to various speakers, in various contexts, for

various types of statements.

Second, to the extent the purpose of the CBP interview is

relevant, its primary purpose was to further the processing of

X.N.’s parole into the United States, not to enable a future

prosecution. See C.A. E.R. 239-240, 245-246. As courts of appeals

have recognized, statements made for the purpose of immigration

processing do not qualify as testimonial. See, e.g., United States

v. Santos, 947 F.3d 711, 729 (11th Cir. 2020) (recognizing that a

DHS

officer’s

annotations

the

defendant’s

naturalization

application were nontestimonial because they were made “for the

primary purpose of determining [the defendant’s] eligibility for

naturalization”) (citation omitted), cert. denied, 141 S. Ct. 1048

(2021); United States v. Lang, 672 F.3d 17, 22–23 (1st Cir.)

(same), cert. denied, 566 U.S. 1041 (2012); United States v.

Caraballo, 595 F.3d 1214, 1229 (11th Cir. 2010) (recognizing that

information

agent-generated

immigration

form

was

nontestimonial because the form “is primarily used as a record by

the [government] for the purpose of tracking the entry of aliens

into the United States”).

That is so even if “an incidental or

secondary use of the [immigration] interviews” and forms “actually

furthered a prosecution.”

Caraballo, 595 F.3d at 1229.

Here, as Officer Muna testified, the purpose of petitioner

and X.N.’s airport interview (or, secondary inspection) was to

evaluate whether X.N. should be allowed to enter the United States.

C.A. E.R. 239. Specifically, Officer Muna explained that secondary

inspection

meant

“question

* * *

[the

traveler’s]

admissibility into the U.S.” by requesting details about the

purpose of the traveler’s stay, where the traveler is staying, and

whether the traveler has a return ticket.

Id. at 239-240.

Officer

Muna further explained that in cases involving the conditional

parole program, see pp. 2-3, supra, the interview is meant to

evaluate whether the passenger is a “legitimate traveler” to the

Northern

Mariana

Islands

and

will

“comply

program.”

C.A. E.R. 245; see id. at 245-246.

with

the

[parole]

The primary purpose

of the interview was thus immigration processing, not criminal

prosecution, and the statements at issue were not testimonial.

Petitioner separately renews her contention (Pet. 22-

25) that she was entitled to a jury instruction to the effect that

harboring an alien, in violation of 8 U.S.C. 1324(a)(1)(A)(iii),

requires an “active effort to conceal” the alien.

The court of

appeals correctly rejected that contention, and any disagreement

in the lower courts does not warrant this Court’s review.

This

Court has denied petitions raising similar claims, and it should

follow the same course here. 4

The court of appeals correctly rejected petitioner’s

argument that conviction for her crime required proof of “active

concealment.”

Pet. App. 5a.

A defendant’s guilt under Section 1324(a)(1)(A)(iii) may be

established

shield[ed]

from

proof

that

detection”

she

“conceal[ed],

alien,

knowing

harbor[ed],

reckless

disregard of the fact that the alien is in the United States

illegally.

8 U.S.C. 1324(a)(1)(A)(iii) (emphasis added).

Thus,

according to the statute’s “express terms,” it “may be violated in

any one of several ways -- by harboring, or by concealing, or by

shielding from detection or by attempting to do any of these.”

United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 (5th Cir.

1982). And as the court of appeals explained in petitioner’s first

appeal, “[w]hen Congress uses different terms in the same statute,”

the presumption is “that each term has a distinct meaning.”

Pet.

App. 20a; see, e.g., Ysleta del Sur Pueblo v. Texas, 596 U.S. 685,

698 (2022) (“[A]n interpretation that [collapses a distinction

between terms] violates our usual rule against ascribing to one

word a meaning so broad that it assumes the same meaning as another

statutory term.”) (citation and internal quotation marks omitted).

See Zheng v. United States, 144 S. Ct. 2604 (2024) (No.

23-928); Miner v. United States, 556 U.S. 1209 (2009) (No. 088093).

That is true of the distinct terms “harbor” and “conceal” in

Section 1324(a)(1)(A)(iii). Contemporaneous dictionaries indicate

that the plain meaning of “harbor” includes the sort of sheltering

which

petitioner

engaged.

See,

e.g.,

Webster’s

New

International Dictionary of the English Language 1137 (2d ed. 1958)

(defining “harbor” as “[t]o afford lodging to; to entertain as a

guest; to shelter; to receive; to give a refuge to; to contain”)

(emphasis omitted); Webster’s New International Dictionary of the

English Language 981 (1917) (same); Funk & Wagnalls New Standard

Dictionary of the English Language 1114 (1946) (defining “harbor”

as “[t]o give refuge, shelter, or protection to”). 5

Although that

was not the invariant definition, see Black’s Law Dictionary 847

(4th ed. 1951) (citing an 1847 case interpreting the Fugitive Slave

Act of 1793, ch. 7, 1 Stat. 302, to suggest that harboring might

mean “receiv[ing]

* * *

a person for the purpose of so concealing

him” (citing Jones v. Van Zandt, 46 U.S. (5 How.) 215, 227 (1847)),

the

weight

the

dictionary

definitions

does

not

support

petitioner’s construction of the text.

b. Petitioner asserts (Pet. 22-25) that the courts of appeals

are

divided

over

the

scope

“harbor[ing]”

under

U.S.C.

Section 1324(a)(1)(A)(iii) was enacted as part of the

Immigration and Nationality Act of 1952.

Pub. L. No. 82-414,

ch. 447, § 274, 66 Stat. 228-229. A predecessor provision, which

also included the terms “harbor” and “conceal” was enacted in 1917.

Immigration Act of 1917, Pub. L. No. 64–301, ch. 29, § 8, 39 Stat.

880.

1324(a)(1)(A)(iii).

But

any

disagreement

narrower

than

petitioner suggests and does not warrant review in this case.

Petitioner principally contends (Pet. 22) that the Second,

Third, Seventh, and Eleventh Circuits “explicitly requir[e] a

finding that the defendant actively aided a non-citizen in avoiding

detection by the authorities.” That is mistaken. In United States

v. Vargas-Cordon, 733 F.3d 366 (2013), the Second Circuit stated

that the “mere act of providing shelter to an alien, when done

without

intention

help

prevent

immigration authorities or police, is

[Section] 1324(a)(1)(A)(iii).”

the

alien’s

detection

* * *

not an offense under

Id. at 382.

But as the Second

Circuit has emphasized, a defendant “may be guilty of harboring

even though his conduct ‘lack[s] the hallmarks of active, classic

concealment.’”

United States v. George, 779 F.3d 113, 119 (2015),

(quoting Vargas-Cordon, 733 F.3d at 382).

The Third Circuit’s decision in United States v. Ozcelik, 527

F.3d 88 (2008), cert. denied, 555 U.S. 1153 (2009), likewise did

not impose an active-concealment requirement.

The court stated,

as a general matter, that “the terms ‘shielding,’ ‘harboring,’ and

‘concealing’ under [Section] 1324 encompass conduct ‘tending to

substantially facilitate an alien’s remaining in the United States

illegally’ and to prevent government authorities from detecting

the alien’s unlawful presence.”

Id. at 100 (citation omitted).

But the Third Circuit did not hold that “harboring,” specifically,

requires active concealment.

Instead, the court reversed the

Section

1324(a)(1)(A)(iii)

conviction

because

the

defendant’s

conduct amounted only to “general advice to, in effect, keep a low

profile and not do anything illegal,” which the court determined

did not violate the statute.

Id. at 101.

Nor does the Seventh Circuit’s decision in United States v.

Costello, 666 F.3d 1040 (2012), support petitioner’s claim here.

There, the Seventh Circuit explained that a restaurant owner

providing housing, employment, and low wages to aliens -- but

without making any further effort to conceal or shield the aliens

from detection -- would constitute a “perfect case of harboring.”

Id. at 1049; see id. at 1045.

as “materially

* * *

And the court defined “harboring”

assist[ing] an alien to remain illegally in

the United States without publicly advertising his presence but

without needing or bothering to conceal it.” Id. at 1047 (emphasis

added).

The

Eleventh

Circuit’s

decision

United

States

Dominguez, 661 F.3d 1051 (2011), cert. denied, 566 U.S. 1034

(2012), did not announce an active-concealment requirement either.

In Dominguez, the Eleventh Circuit found insufficient evidence to

support the defendant’s Section 1324(a)(1)(A)(iii) conviction for

his actions concerning five Cuban nationals who had come to the

United States to pursue professional baseball careers.

1056, 1062-1063.

See id. at

The defendant, whose company provided housing

for the players, “took the players to experienced immigration

counsel

shortly

after

they

arrived

process

them

through

immigration,” and later accompanied the players to a scheduled

appointment at a U.S. Citizenship and Immigration Services office

to apply for asylum and parole, after which the players were

paroled.

Id. at 1062-1063.

The jury was instructed on the entire

statutory phrase of “conceal, harbor, or shield from detection,”

and

the

Eleventh

Circuit

insufficient

because

defendant

the

support

immigration status.

found

the

only

that

aided

defendant’s

the

Id. at 1063.

the

evidence

players

conviction,

seeking

was

part

lawful

That fact-bound decision did

not hold that “harboring” must involve active concealment.

Petitioner further notes (Pet. 23) that the Fifth, Sixth, and

Eighth Circuits have stated that “harboring” “encompasses conduct

that tends to substantially facilitate non-citizens remaining in

the country illegally and prevent authorities from detecting the

non-citizens’ presence.”

Pet. 23 (quoting United States v. Zheng,

87 F.4th 336, 343 (6th Cir. 2023) (brackets omitted), cert. denied,

144 S. Ct. 2604 (2024)); see Rubio-Gonzalez, 674 F.2d at 1073 &

n.5; United States v. Tipton, 518 F.3d 591, 596 (8th Cir. 2008).

That

formulation

does

not

include

the

“active

concealment”

instruction (Pet. App. 5a) that petitioner sought in this case,

and petitioner cannot show that her case would have come out

differently in those courts.

The evidence at trial showed that petitioner substantially

facilitated X.N.’s continued illegal presence in the country by

providing her with a place to live, serving as her guardian and

claiming to be her aunt, enrolling her in school, and covering her

food and expenses.

C.A. E.R. 589; see Gov’t C.A. Br. 6-8.

And

petitioner had represented to immigration authorities that X.N.

would be leaving the United States within the required period under

the parole program, see Gov’t C.A. Br. 6; C.A. E.R. 237-246 -conduct that was not only “active,” but also had the tendency to

convince those authorities to let their guard down.

Thus, even if

the

“harboring”

under

tending

“substantially

jury

had

been

1324(a)(1)(A)(iii)

instructed

requires

that

conduct

Section

facilitate” an alien’s continued unauthorized presence, petitioner

cannot establish that the outcome would have been different here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SARAH M. HARRIS

Acting Solicitor General

ANTOINETTE T. BACON

TYLER ANNE LEE

Attorneys

FEBRUARY 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.