Tuesday, December 4, 2018
The Ninth Circuit ruled in U.S. v. Sineneng-Smith that a federal statute that criminalizes "encourag[ing] or induc[ing]" an alien to come to, to enter, or to reside in the United States violates the First Amendment. The court ruled that the statute was unconstitutionally overbroad and struck it.
The statute, 8 U.S.C. Sec. 1324(a)(1)(A)(iv), permits a felony prosecution of any person who "encourages or induces an alien to come to, enter, or reside in the United States" if the encourager knew, or recklessly disregarded "the fact that such coming to, entry, or residence is or will be in violation of law."
The court held that the law bans substantially more speech than the First Amendment allows under the incitement doctrine, or as speech integral to criminal conduct. (The court reminds us that simply being in the United States isn't a crime.) Here's an example the court quotes from an amicus brief: "a loving grandmother who urges her grandson to overstay his visa," by saying "I encourage you to stay." The statement violates Subsection (iv), but:
Again, in Williams, the Supreme Court used almost identical language--"I encourage you to obtain child pornography"--to describe abstract advocacy immune from government prohibition. The government has not responded persuasively to this point; it simply argues that the grandmother would not be subject to criminal charges because her statement was "not accompanied by assistance or other inducements." However, as we have detailed above, Subsection (iv) does not contain an act or assistance requirement.
Another example: "marches, speeches, publications, and public debate expressing support for immigrants." And other: an attorney who tells a client that the client should remain in the country while contesting removal, because non-citizens in the U.S. have greater due process rights than non-citizens outside the U.S.
The court rejected the government's limiting interpretation--that the statute only prohibits a person from (1) knowingly undertaking (2) a non-de-minimis (3) act that (4) could assist (5) a specific alien (6) in violating (7) civil or criminal immigration laws--as wholesale rewriting the law.