Encouraging Undocumented Immigrants to Stay Isn’t a Crime, Ninth Circuit Says

PASADENA, Calif. (CN) – The Ninth Circuit on Tuesday struck down part of a federal law that criminalizes encouraging undocumented immigrants to stay in the United States, finding it violates free speech rights.

The law makes it a felony to “encourage” or “induce” someone from another country to enter or stay in the United States if the encourager knew or recklessly disregarded the fact that it would be illegal.

But the court’s three-judge panel said statements by family members “surely” constitute the bulk of statements under the law’s purview, thus “criminaliz[ing] a substantial amount of constitutionally-protected expression” under the First Amendment.

“[T]he 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,'” Senior U.S. Circuit Judge A. Wallace Tashima, a Clinton appointee, wrote for the panel in a 42-page opinion.

Tuesday’s ruling came out of immigration consultant Evelyn Sineneng-Smith’s criminal appeal.

Sineneng-Smith, who mostly served people from the Philippines seeking green cards while unlawfully employed in the United States as home health care workers, continued signing up clients even after a Labor Certification program conferring permanent residence to such workers expired in 2001.

Sineneng-Smith was convicted on two counts of encouraging and inducing an undocumented immigrant to remain in the United States for the purposes of financial gain and two counts of mail fraud and sentenced to 18 months on each count, to be served concurrently.

On appeal, Sineneng-Smith argued the immigration law restricts “vast swaths” of protected speech, and maintained a conviction would violate the First Amendment. The federal government countered the law only forbids specific conduct and a “narrow band” of unprotected speech.

The panel upheld the mail fraud conviction Tuesday, citing Sineneng-Smith’s confession that she knew her clients weren’t eligible for permanent residence and that if she told them so, they wouldn’t hire her.  But it overturned her first conviction on First Amendment grounds.

Using an example of “a loving grandmother who urges her grandson to overstay his visa,” Tashima concluded, “Just because the grandmother wanted her words to encourage her grandson and said them directly to him does not render those words less protected under the First Amendment.”

“The government’s interpretation of Subsection (iv) rewrites the statute,” he chided.

In an email, Justice Department spokesman Steven Stafford maintained such statements aren’t protected.

“It is illegal to knowingly assist in the commission of violent crimes, drug crimes, and a variety of other crimes; it is only right that Congress, on a fully bipartisan basis, has criminalized assisting in the commission of immigration crimes as well,” Stafford said.

U.S. Circuit Judge Marsha Berzon, a Clinton appointee, and U.S. Circuit Judge Andrew Hurwitz, an Obama appointee, also sat on the panel.

Sineneng-Smith’s lawyer Daniel Cook, of Bodega Bay, could not immediately be reached for comment Tuesday.

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