WASHINGTON (CN) — Defending the prosecution of a woman who encouraged immigrants to overstay their visas, a lawyer for the government assured the Supreme Court on Tuesday that exhorting one’s own grandchild in the same way would not run afoul of the law.
Chief Justice John Roberts evoked the hypothetical at oral arguments this morning just over a year after the Ninth Circuit ruled the law unconstitutional on its face, reversing two convictions of immigration consultant Evelyn Sineneng-Smith.
Though she had graduated from law school, Sineneng-Smith was not acting as a licensed attorney when she worked with members of the Philippines immigrant community in San Jose, California, seeking green cards.
In addition to two counts of encouraging an alien to remain in the United States for purposes of financial gain, Sineneng-Smith was convicted of mail fraud and filing false tax returns. The two encouragement felonies were the only ones overturned by the Ninth Circuit.
Seeking their reinstatement Tuesday, Deputy U.S. Solicitor General Eric Feigin emphasized that an overly solicitous grandmother would not be prosecuted here since the law is already narrowly defined.
“The issue of when verbal acts or other acts cross the line into criminal complicity or solicitation is not an issue unique to this statute,” Feigin said. “It’s one that the criminal law has dealt with for centuries and something that abstract and attenuated is not going to be criminal complicity.
“In particular, this statute, we think, covers a narrower subset of criminal complicity and solicitation that really requires substantial participation in some unlawful venture … with the goal that that unlawful venture actually occur.”
Justice Samuel Alito pressed Feigin to define the word “encourage” with respect to the statue, saying the lawyer’s definition sounded much like aiding and abetting statutes previously described in federal law.
“I think here, Congress’ focus on the words ‘encourage’ and ‘induce’ mean three things,” Feigin said. “First of all, it has to be something that the defendant actually wants to bring about or wants to succeed. … Second, it has to be something that the alien is aware of. … And then the third thing is we think it requires some substantial amount of participation.”
Mark Fleming, an attorney with WilmerHale representing Sineneng-Smith, said the government’s interpretation would criminalize a teacher who encourages a student to remain in the country to continue their education. Fleming said the government had no evidence Sineneng-Smith encouraged illegal immigrants to violate the law, only that she committed mail fraud.
While he argued that the First Amendment shields Sineneng-Smith’s encouragement, Fleming said the same would not be true in a hypothetical scenario described by Alito where a person encourages a suicidal teenager to pull the trigger.
“You’re talking about inciting imminent harm and imminent lawlessness,” Fleming said. “Also, let’s remember, at Common Law, suicide was a crime and so the framers may well have considered that speech soliciting or aiding and abetting suicide was, in fact, not something that was being protected by the First Amendment.”
Alito meanwhile emphasized that today’s Common Law did not criminalize suicide.
“But, certainly, the unlawfulness here is imminent,” Alito said. “In fact, the unlawfulness exists prior to the speech and exists a nanosecond after the speech ended, so it is imminent.”
“I think that’s another distinction from the suicide case that I was going to get to, is most state laws that prohibit the solicitation of suicide have a causation requirement,” Fleming said. “So, there has to actually be some connection between the speech and what’s going to happen.”