Is it a Crime to Encourage Undocumented Immigrants?
The Supreme Court made headlines today when it announced it would hear The United States v. Sineneng-Smith.
The Sineneng-Smith case has two parts, one of which is settled and one of which is not. Sineneng-Smith ran an immigration help business out of California. She defrauded immigrants by charging them an excessive amount of money to apply to a program she knew was no longer in effect. That Sineneng-Smith committed fraud is not in dispute.
What is in dispute is a conviction for a violation of Section 1324 of the Immigration and Nationality Act, which makes it a crime to “encourage or induce an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of the law.”
The 9th Circuit Court of Appeals upheld the fraud conviction but overturned the encouragement conviction. The government responded by filing a writ of certiorari. The Supreme Court granted cert. in early October.
The question presented: “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(1)(1)(A)(iv) is facially unconstitutional.”
This isn’t the first time this law has been in the news. Last year, the Trump Administration began using these laws against uncooperative officials in sanctuary cities.
Advocates fear upholding this law as unconstitutional could have a chilling effect on the ability of immigration lawyers, advocacy organizations, and others on providing normal services to their clients.
The ACLU filed an amicus brief citing instances of innocent behavior, like Kamala Harris’ tweet which encouraged immigrants to find safety from the California wildfires regardless of immigration status, would be illegal under this broadly written law. So could an immigration lawyer’s routine advice to client.
The brief cites a litany of case law and precedent to uphold its conclusions. It also neatly outlines the problems with using the law in the way it has been used in the Sineneng-Smith case.
“The 1st Amendment does not permit the government to punish advocacy of unlawful acts save in two narrow circumstances. Neither circumstance applies to Section 1324(a)(1)(A)(iv). First, the incitement doctrine permits the government to regulate speech that is intended and likely to elicit imminent violence. But section 1324(a)(1)(A)(iv)’s prohibition on speech involves no violence, and broadly criminalizes all speech regardless of the likelihood and timing of such violation actually occurring. Second, the government may criminalize ‘speech integral to criminal conduct,’ but only when this speech is closely related and necessary to the commission of a crime, such as guiding an individual step-by-step through a false case filing.”
Good arguments, joined by many other voices who are filing briefs of their own.
Now all we have to find out is whether the Supreme Court agrees.
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