Wednesday, December 5, 2018

Ninth Circuit Invalidates Criminal Statute Prohibiting "Encouraging" Noncitizen to Remain in the United States


The U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge Wallace Tashima (with Marsha Berzon and Andrew D. Hurwitz), issued an interesting First Amendment opinion in an immigration case.  Here is the court's summary of the opinion:

"The panel reversed the district court’s judgment with respect to the defendant’s convictions on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) & 1324(a)(1)(B)(i); vacated the defendant’s sentence; and remanded for resentencing.

The panel held that subsection (iv) – which 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 – is unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression.

In a concurrently filed memorandum disposition, the panel affirmed the judgment with respect to the defendant’s convictions on two counts of mail fraud in violation of 18 U.S.C. § 1341."

The case is getting press coverage.  The Ninth Circuit struck down part of a federal law that criminalizes encouraging undocumented immigrants to stay in the United States, finding it violates free speech rights.  The law makes it a felony to “encourage” or “induce” someone from another country to enter or stay in the United States if the encourager knew or recklessly disregarded the fact that it would be illegal.

The opinion said statements by family members “surely” constitute the bulk of statements under the law’s purview, thus “criminaliz[ing] a substantial amount of constitutionally-protected expression” under the First Amendment.“[T]he statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I encourage you to stay here.'”


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