Sunday, October 6, 2019

Supreme Court Grants Certiorari in Criminal Immigration/First Amendment Case

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On Friday, the Supreme Court granted certioarari in United States v. Sineneng-Smith, a case from the Ninth Circuit raising the question whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.

The Ninth Circuit, Judge Wallace Tashima (joined by Judges Martha Berzon and Andrew Hurwitz), summarized the opinion as follows:

"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."

KJ

https://lawprofessors.typepad.com/immigration/2019/10/supreme-court-grants-certiorari-in-criminal-immigrationfirst-amendment-case-.html

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