Anna Moneymaker / The New York Times
The Supreme Court in Washington on Oct. 7, 2019. There are several significant immigration matters on the court’s docket.
Monday, Nov. 11, 2019 | 9 p.m.
WASHINGTON — A 1986 federal law makes it a crime to "encourage" immigrants without authorization to come to or stay in the United States.
"The statute potentially criminalizes the simple words — spoken to a son, a wife, a parent, a friend, a neighbor, a co-worker, a student, a client — 'I encourage you to stay here,'" Judge A. Wallace Tashima wrote last year for a unanimous panel of the 9th U.S. Circuit Court of Appeals, in San Francisco, in striking down the law.
The law applies to a grandmother urging a grandchild to overstay a visa or a lawyer advising a client to stay in the country while fighting deportation, Tashima wrote. It may cover public officials helping immigrants in sanctuary cities and perhaps even speeches at immigration rallies, he wrote.
Last month, the Supreme Court agreed to decide whether the law can be squared with the First Amendment. The case, United States v. Sineneng-Smith, No. 19-67, is one of several significant immigration matters on the court's docket. On Tuesday, the court will hear arguments on whether the Trump administration can rescind protections for so-called Dreamers. Later in the term, it will consider whether immigrants can go to court to challenge orders calling for their expedited removal.
The First Amendment case concerns Evelyn Sineneng-Smith, who ran an immigration consulting firm in San Jose, California. Her clients, mostly from the Philippines, worked without authorization in the home health care industry. Sineneng-Smith offered to help them get green cards under a Labor Department certification program that she said would give them permanent resident status and allow them to work legally.
But the program had expired. Sineneng-Smith nonetheless charged her clients $6,800 to file applications she knew to be futile. She was convicted of mail fraud, a conviction that the 9th Circuit affirmed and that Sineneng-Smith is not challenging in the Supreme Court. The question for the justices is whether her separate conviction under the 1986 law for encouraging her clients to stay in the United States was proper.
In the 9th Circuit, Sineneng-Smith argued that she had a First Amendment right to file the applications, which was not a particularly strong argument. "Speech integral to criminal conduct," the Supreme Court has said, is not protected by the First Amendment.
When the case reached the 9th Circuit, it did something unusual. It asked for briefing on a different First Amendment question. The court wanted to know whether the law was overbroad, chilling the free speech of people other than Sineneng-Smith.
After getting additional briefs and hearing another round of arguments, the appeals court ruled that the law was unconstitutional.
In urging the Supreme Court to hear its appeal, the Trump administration said the 9th Circuit had gone too far. The Supreme Court has said that striking down laws because they are too broad is "strong medicine" to be used only when the laws are unconstitutional in a substantial number of real-world settings rather than in "fanciful hypotheticals."
In his 9th Circuit opinion, Tashima said that his examples of possible prosecutions "are not some parade of fanciful horribles."
"Instead," he wrote, "they represent real and constitutionally protected conversations and advice that happen daily."
Whatever the literal language of the 1986 law, Solicitor General Noel J. Francisco wrote for the government in its petition seeking review, criminal laws are "ordinarily understood not to prohibit abstract advocacy of illegality."
"Just as a teenager does not aid, abet or solicit marijuana possession merely by saying to a friend, 'I encourage you to try smoking pot,'" Francisco wrote, a grandmother does not violate the 1986 law "merely by saying to her grandson whose visa has expired, 'I encourage you to stay.'"
Francisco asked the justices to decide only whether speech made for financial gain could be made criminal. The 1986 law does discuss financial gain, but in a separate provision allowing longer sentences when money is involved.
Prosecutions under the law tend to be limited to cases concerning classically criminal conduct by unsympathetic defendants. But not always. In 2012, for instance, a Massachusetts woman, Lorraine Henderson, was convicted of hiring an immigrant in the country illegally to clean her home and offering general and not always reliable advice about immigration law.
In that case, Judge Douglas P. Woodlock, of the U.S. District Court in Boston, wrote that the "plain and unadorned language" of the law "can be read to cast a wide net over those who interact with illegal aliens by offering employment."
Woodlock did not consider First Amendment issues in his decision, but he granted Henderson's motion for a new trial based on his misgivings about the sweep of the law. Prosecutors dropped the case.
In Sineneng-Smith's case, the government argued that it did not pursue prosecutions based on ordinary interactions with immigrants in the country illegally.
That was small comfort, Tashima wrote. "Just because the government has not (yet) sought many prosecutions based on speech," he wrote, "it does not follow that the government cannot or will not use an overbroad law to obtain such convictions."
In the Supreme Court, Sineneng-Smith's lawyers said they should be allowed to challenge the law in order to protect the constitutional rights of other people.
"The very reason that overbroad laws are subject to facial attack," they wrote, "is to remedy the chilling effect resulting from keeping such laws on the books."
