The U.S. Supreme Court agreed to take up a case involving a law that the government says is important for prosecuting those who encourage illegal immigration, but civil libertarians are worried about free speech and “disastrous” consequences of overzealous enforcement.
The dispute puts the hot-button immigration issue in front of the justices—with the added complexity of speech and criminal justice implications.
The law struck down by the U.S. Court of Appeals for the Ninth Circuit last year ensures “appropriate punishment for defendants who seek enrichment by incentivizing or procuring violations of the immigration laws by aliens who illegally enter or remain in the United States,” the Justice Department said in its petition filed over the summer, which the justices granted Oct. 4.
It joins an array of appeals at the intersection of immigration and criminal law already slated for resolution this Supreme Court term, which starts Oct. 7. Following oral argument in the case, which isn’t scheduled yet, a decision is expected by late June.
The appeal stems from the case of Evelyn Sineneng-Smith, who operated an immigration consulting firm in San Jose, Calif. She signed retainer agreements telling clients—mostly natives of the Philippines unlawfully employed in the home health care industry—that they could obtain green cards through a certification process she knew had expired.
The Justice Department wants the high court to reverse the Ninth Circuit’s decision invalidating the law Sineneng-Smith was prosecuted under. It allows the government to go after anyone who “encourages or induces an alien to come to, enter, or reside in the United States” if the individual knew, or recklessly disregarded “the fact that such coming to, entry, or residence is or will be in violation of law.”
The law criminalizes “a substantial amount of constitutionally-protected expression,” the appeals court said last December. It “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.’”
Government officials dismiss the Ninth Circuit’s “hypotheticals” as overblown, urging the justices to restore “an important tool” for enforcement efforts.
But groups like the ACLU don’t find such scenarios far-fetched.
“It would be disastrous” if the Supreme Court reverses the Ninth Circuit, said ACLU deputy legal director Cecillia Wang. “Anytime you hear a government lawyer saying ‘trust us’ when our free speech rights are at stake, you should run in the other direction.”
She gave an example against the backdrop of another contentious immigration case on the docket this term.
“I write an op-ed saying, ‘I disagree with the U.S. immigration laws and I believe that ‘Dreamers’ should stay in the U.S., you belong here.’” That’s a reference to children brought to the U.S. illegally who’ve been spared deportation under an Obama-era initiative—known as DACA—that the Trump administration is trying to undo in a closely-watched case set for argument in November.
“I can’t leave it up to good faith in prosecutors not to come after me and try to throw me in federal prison for doing that,” Wang said.
The case is United States v. Evelyn Sineneng-Smith, U.S., 19-67, review granted 10/4/19.