Encouraging Illegal Immigration a Free-Speech Test for Justices

If US Supreme Court watchers get déjà vu during Monday’s arguments over the constitutionality of a law used to punish those who encourage illegal immigration, it’s because the justices have heard this fight before.

The issue was argued in 2020, but a procedural misstep kept the justices from settling it.

The federal government is back again, asking the court to overturn an appellate ruling that struck down the provision for being unconstitutionally overbroad and criminalizing speech protected by the First Amendment.

The Justice Department says it relies on the measure to prosecute migrant smugglers and others who facilitate illegal immigration. Attorneys on the other side say a ruling for the government could create a new category of unprotected speech.

“The government’s construction of the statute is just way too broad and would criminalize ethical, competent immigration advice that lawyers and organizations routinely give people who come to see them with all sorts of immigration problems,” said Matthew Vogel, a supervising attorney at the National Immigration Project of the National Lawyers Guild. The group joined a brief urging the court to affirm the appeals court decision.

Some worry it could go even further.

Grandparents, Doctors

At the center of Monday’s case is Helaman Hansen. He was convicted of two counts of encouraging or inducing unlawful immigration for private financial gain as well as mail and wire fraud.

Hansen duped hundreds of undocumented immigrants into paying him extensive fees by promising a pathway to citizenship through an adult adoption program.

Hansen wants the Supreme Court to uphold the US Court of Appeals for the Ninth Circuit’s ruling that wiped out his convictions for encouraging illegal immigration. If it doesn’t, his attorneys argue grandparents could be prosecuted for telling their undocumented grandchildren they don’t want them to leave the country and doctors could be at risk for recommending foreign patients stay to continue treatment.

It could also give states and the government a green light to pass similar laws in other contexts, said Esha Bhandari, Hansen’s attorney and deputy director of the Speech, Privacy, and Technology Project at the American Civil Liberties Union Foundation.

“Take public health,” she said. “You could have states that make it a crime to encourage people to violate public health orders even if those are not crimes.”

This same First Amendment issue was last before the court in United States v. Sineneng-Smith. In a unanimous decision, the justices sent the case back to the Ninth Circuit to be reconsidered after finding the appeals court had wrongly inserted itself into the dispute. The Ninth Circuit had invited interested parties outside of the case to brief and argue constitutional challenges that hadn’t been raised by the defendant.

While there aren’t the same procedural missteps that prevented a ruling on the issue in Sineneng-Smith, the government said the Ninth Circuit used the same rationale to strike down the law in Hansen’s case.

Narrow Reading

The Justice Department declined to comment for this story. But in petitioning the Supreme Court to review the appeals court decision, the government argued the law won’t reach the kinds of innocent expressions of support for undocumented immigrants that the Ninth Circuit hypothesized.

“Like other state and federal laws that use the terms ‘encourage’ and ‘induce’ to invoke the traditional criminal-law concepts of facilitation and solicitation,” US Solicitor General Elizabeth Prelogar said the measure at issue in Hansen “does not prohibit mere advocacy of lawbreaking.”

It’s “best read as a conventional criminal prohibition on facilitating or soliciting illegal activity, not a far-reaching prohibition on innocent advocacy,” she wrote.

In a brief supporting the government, the Immigration Reform Law Institute argued the Ninth Circuit analyzed Hansen’s “encouraging and inducing” immigration as a stand alone crime without considering the commercial-advantage and financial-gain element of it.

“This person was a scammer and was taking advantage of would-be immigrants to get them adult adoption and that’s the kind of people who break this law,” said Christopher Hajec, the group’s director of litigation.

Though the government argues it reads the law narrowly, Bhandari said that wasn’t its position earlier in the case. At trial, the government opposed Hansen’s request for a jury instruction that would have required the government to prove he intended for undocumented immigrants to violate the law.

“The government’s argument was the jury can apply the plain ordinary meaning of the statutory terms and the government was successful,” Bhandari said. “Now at the Supreme Court the government says this is a very narrow statute, you don’t read it according to its plain ordinary meaning.”

Even if the government does apply it narrowly, Bhandari said an overbroad law on the books could still cause people to self-censor.

“Our hope is that the court takes seriously the chilling effect this has on people,” she said.

The case is United States v. Hansen, U.S., No. 22-179.