The U.S. Court of Appeals for the Ninth Circuit on Tuesday struck down a federal law that made a potential felon out of anyone who “encourages or induces” undocumented immigrants to remain in the U.S. in violation of the country’s immigration laws.
The decision strikes down subsection iv of 8 U.S.C. § 1324(a)(1)(A), which permits a felony prosecution against anyone who “encourages or induces an alien to come to, enter, or reside in the United States” if the offender knew, or recklessly disregarded “the fact that such coming to, entry, or residence is or will be in violation of law.”
In a 42-page opinion written by Judge A. Wallace Tashima, the court found that the subsection would have an outsized, chilling effect on speech protected by the First Amendment “on a hotly debated issue in our society.”
“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,’” Tashima wrote.
Tashima, who was joined in his decision by Circuit Judges Marsha Berzon and Andrew Hurwitz, found that the law was unconstitutionally overbroad.
Daniel Cook of Bodega Bay represents the defendant in the underlying case, San Jose-based immigration consultant Evelyn Sineneng-Smith. Sineneng-Smith was previously sentenced to 18 months in prison as a result of her work for undocumented immigrants primarily from the Philippines employed in the home health care industry in the U.S. She has been out on bond while the appeal has been pending.
Cook said that he intended to appeal an unpublished memorandum from the court upholding two wire fraud counts against his client, but that he was “pleased” with the decision. He said it would be important to lawyers, consultants like his client and charitable organizations working to help undocumented immigrants.
“It really addresses the big problem with that statute particularly in this day and age with this administration with its approach to immigration enforcement,” Cook said.
Sineneng-Smith had the backing of several amici, including the Immigrant Defense Project and National Immigration Project of the National Lawyers Guild, represented by Wilmer Cutler Pickering Hale and Dorr; the National Association of Criminal Defense Lawyers, represented by Covington & Burling; and Asian Americans Advancing Justice, represented by Crowell & Moring. That coalition contended that the words “encourage and induce” in the statute should carry their plain meaning. They argued the statute therefore restricted vast swaths of protected speech including attorney-client communications, public advocacy and even conversations between family and friends.
The government countered that when read in context the statute only prohibited conduct tied to violations of federal immigration laws, a narrow band of unprotected speech that would aid and abet criminal activity.
But in Tuesday’s Ninth Circuit opinion, Tashima noted that unauthorized presence in the country is a civil violation and not a crime. The judge also found that the plain language of the statute was clear and would have both “a real and substantial” chilling effect on protected speech.
“The only reasonable construction of Subsection (iv) restricts a substantial amount of protected speech in relation to the narrow band of conduct and unprotected expression that the statute legitimately prohibits,” the judge wrote.
A spokesman for the U.S. Attorney’s Office for the Northern District of California, which is handling the underlying case, didn’t immediately respond to a request for comment.
Wilmer’s Mark Fleming, who represented two immigrant rights groups as amici and handled a portion of oral arguments before the Ninth Circuit, said the court issued a “careful, well-reasoned opinion that went no further than it needs to.”
“It’s a solid blow for common sense,” he said.
Annie Hudson-Price, staff counsel at Public Counsel who also argued as an amicus backing Sineneng-Smith, said that the ruling should assure lawyers handling immigration matters pro bono that they won’t risk running afoul of the law when representing undocumented clients.
“It’s a victory for anyone who is an advocate or family member or friend of anyone in the undocumented immigrant community,” she said.
Correction: An earlier version of this story misspelled the name of Wilmer’s Mark Fleming. We regret the error.