Grandparents, preachers, and human rights activists face prison time if the U.S. Supreme Court condones a law punishing those who encourage illegal immigration, advocacy groups warn ahead of an upcoming argument in Washington.
The Trump Administration, challenging an appellate ruling that struck down the measure, contends that those concerns are overblown—that the government is going after grifters, not grandmas.
The justices will try to reconcile these competing narratives at oral arguments Feb. 25, where they’ll confront a trifecta of perennially potent topics: crime and punishment, free speech, and the definitive Trump-era issue of immigration.
The immigration issue in particular has flooded the high court’s docket this term, as the justices weigh the fate of the Obama-era DACA program and a host of lower profile but important questions like the ability of courts to review expedited deportations and immigrants’ fears of persecution in their home countries. Trump’s immigrant wealth test has divided the justices 5-4 in a pair of recent orders.
“The case is important because the First Amendment guarantees our freedom of speech, which protects the right to encourage someone to stay in our country, regardless of their immigration status,” said WilmerHale’s Mark Fleming. He represents Evelyn Sineneng-Smith, the woman at the center of the dispute.
Fleming said the high court “should uphold that principle and strike down this overly-broad, one-sided, and vague law that makes felons of grandparents for talking to their grandchildren, lawyers for advising their clients, clergy for comforting their parishioners, and many more ordinary people for nothing more than speaking simple words of encouragement.”
The Justice Department didn’t comment.
Sineneng-Smith was convicted under the federal law that prohibits people from encouraging or inducing illegal immigration or residence. She was an immigration consultant, and her clients were mostly natives of the Philippines illegally employed in the home healthcare industry.
She helped them apply for labor certifications that she said would help them get green cards. But she knew they weren’t eligible for the certification program, effectively causing them to stay in the U.S. illegally. Sineneng-Smith received an 18-month prison sentence. The statutory maximum for encouragement is generally five years in prison. Defendants can receive five more years if the government proves they did so for financial gain, as it did in this case.
The U.S. Court of Appeals for the Ninth Circuit took aim at the law itself, saying that it “criminalizes a substantial amount of protected expression.”
Striking down the provision, the appeals court rattled off a list of people the law could ensnare, such as a “loving grandmother” urging her grandson to overstay his visa, or anyone posting on social media: “I encourage all you folks out there without legal status to stay in the U.S.!”
Appealing the Ninth Circuit ruling, the Justice Department said the San Francisco-based court ignored the financial factor—Sineneng-Smith was convicted not just for prompting illegality, but for doing so for profit.
The appeals court’s concern about criminalizing “abstract advocacy” is misplaced, DOJ said in its brief to the justices. A similar point is made by the lone amicus brief supporting the government, filed by the Immigration Reform Law Institute, a group seeking to “educate the American people about the threat of unchecked mass migration.”
Sineneng-Smith countered that, under the law, she could have been convicted for encouragement even without any profit motive.
Hypothetical or Real?
DOJ also claimed that the Ninth Circuit’s “parade of horribles”—the litany of people at risk of overzealous prosecution—consists of hypotheticals untied to reality.
But a host of advocacy groups supporting Sineneng-Smith—filing nine amicus briefs—say otherwise.
Among them are religious organizations—including ones that sided with immigrants against Trump in the travel ban case. They’re concerned about having to “either turn away those in need based on immigration status, cease to perform certain charity and advocacy work entirely, or face the realistic possibility of criminal prosecution.”
Lawyer groups worry that the law could chill “ordinary advocacy and humane interactions with clients and their families and friends,” if attorneys have to concern themselves with being prosecuted for giving immigration advice.
Further cutting against the government’s narrative that it’s not curtailing First Amendment freedoms, Amnesty International notes that U.S. Customs and Border Protection made a “watchlist” of journalists, lawyers, and activists at the southern border that CBP admitted was designed to help enforce the encouragement law.
The list included a pastor who, Amnesty’s amicus brief said, “had prayed with and provided religious counseling to migrants traveling to the United States.”
A ruling is expected by late June, just as the 2020 presidential campaign heats up.
The case is United States v. Sineneng-Smith, U.S., No. 19-67, oral argument 2/25/20.