9th Circuit strikes down law criminalizing the encouragement of illegal immigration

A federal law making it a felony to encourage a foreigner to come to or remain in the United States illegally is unconstitutional, the 9th U.S. Circuit Court of Appeals has ruled, saying the statute violates the First Amendment's free speech protections.

In a unanimous opinion published Tuesday, a three-judge panel of the court said the law criminalizes constitutionally protected speech. The only check on the law's scope is prosecutorial discretion, a fact the panel said it could not abide.

"At the very least, it is clear that the 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,'" Senior Judge A. Wallace Tashima wrote in a 42-page opinion.

The statute in question allows the federal government to punish with up to five years of imprisonment any person who "encourages or induces an alien to come to, enter, or reside in the United States" illegally.

Federal prosecutors used the law to go after San Jose-based immigration consultant Evelyn Sineneng-Smith, who, according to the opinion, encouraged a number of Philippine natives working illegally in the American health care industry to apply for labor certifications to later obtain green cards, despite the fact that the certification process had expired.

After she was convicted of encouraging illegal immigration and mail fraud, Senior U.S. District Judge Ronald M. Whyte sentenced Sineneng-Smith to 18 months in prison.

But on Tuesday, the 9th Circuit said the underlying law supporting the first half of the conviction was unconstitutionally overbroad. United States v. Sineneng-Smith, 2018 DJDAR 11517 (9th Cir. Dec. 4, 2018).

U.S. Department of Justice attorneys argued the statute required actual action on the part of an individual to aid or abet illegal immigration to merit prosecution. Rarely had the law, 8 U.S.C. § 1324(a)(1)(A)(iv), been used to prosecute friends of illegal immigrants or attorneys advising clients facing the deportation process, Justice Department attorney Elizabeth D. Collery told the court during oral arguments in February.

That was a poorly supported justification for upholding the statute, Tashima said in his opinion Tuesday.

The judge pointed to a 2012 prosecution of a Boston woman who inadvertently hired a person illegally in the country to clean her house, later advising her on immigration laws when she learned of her maid's situation.

Tashima said the case "exemplifies why we cannot take the government's word for how it will enforce a broadly written statute, and suggests that any would-be speaker who has thought twice about expressing her views on immigration was not being paranoid."

And interpreting the word "encourage" as requiring more than just speaking was an unattainable reading of the law, he added.

"To conclude otherwise, we would have to say that 'encourage' does not mean encourage, and that a person cannot 'induce' another with words," Tashima wrote.

Daniel F. Cook, a sole practitioner from Bodega Bay who represents Sineneng-Smith, described the court's decision as a "careful and meticulous opinion."

"There are a whole number of lawyers, immigration consultants, charitable organizations and amici organizations that have to be pleased with this decision overturning the statute, which would have criminalized ... advice they may have been providing to undocumented immigrants," he said in a phone interview Tuesday.

The case attracted a flood of amicus parties when the 9th Circuit panel requested additional briefing on the constitutional issues. Federal defenders in several West Coast states, the ACLU and numerous immigration advocacy organizations urged the court to strike down the law as overbroad.

"The problem with a law like this is not exclusively in how often it's used, but how it could be used," Wilmer Cutler Pickering Hale and Dorr LLP partner Mark C. Fleming, who represented the Immigrant Defense Project and National Immigration Project of the National Lawyers Guild, said in a phone interview Tuesday.

A high profile showdown over the breadth of the law was not entirely hypothetical. The federal government on several occasions threatened to prosecute San Francisco lawmakers under the law in response to sanctuary city policies, according to a brief filed by City Attorney Dennis J. Herrera.

"In light of this administration and its approach to immigration enforcement, it's a very chilling prospect that if you ... encourage, you've committed a crime," Cook said.

The Justice Department did not respond to a request for comment about the 9th Circuit's decision by press time Tuesday.

Judges Marsha S. Berzon and Andrew D. Hurwitz, who replaced the late Judge Stephen Reinhardt after his March death, joined Tashima's opinion.