Justices Send Immigration Consulting Case Back to Ninth Circuit

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) ā€” The Ninth Circuit drastically departed from the arguments of the parties, the Supreme Court ruled Thursday, when it struck down a law that criminalizes the act of encouraging immigrants to stay in the United States illegally.

The case concerns the conviction of Evelyn Sineneng-Smith, who ran an immigration-consulting company in San Jose, California. Sineneng-Smith encouraged her clients, most of whom were home health care workers from the Philippines working in the United States without green cards, to apply for a work-authorization program despite knowing the statutory deadline for taking advantage of the program had long since passed.

Sineneng-Smith pocketed more than $3.3 million from her scheme.

In 2013, a jury convicted her of violating a federal law that makes it a felony to encourage someone to come to or remain in the United States “knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” A separate part of the law enhances the penalty if the encouragement is done for financial gain.

Sineneng-Smith appealed, telling the Ninth Circuit that her conduct was protected under the First Amendment, among other arguments.

After oral arguments in the appeal, however, the three-judge panel asked for additional briefing. In addition to seeking more information from Sineneng-Smith’s attorneys, the judges appointed the Federal Defender Organizations of the Ninth Circuit, the Immigrant Defense Project and the National Immigration Project of the National Lawyers Guild to file friend-of-the-court briefs addressing whether the law under which Sineneng-Smith was convicted is unconstitutionally overbroad or vague under the First and Fifth Amendments.

The court then held additional argument, giving the groups more time than Sineneng-Smith’s own attorney. It later struck down the law as unconstitutionally overbroad, holding that it swept in significant amounts of constitutionally protected speech.

In a terse nine-page opinion, the bulk of which is dedicated to recounting the facts of the case, the unanimous Supreme Court called the Ninth Circuit’s handling of the dispute an extraordinary departure from the  normal course of appeals, as Sineneng-Smith never raised the argument that caused the court to toss out her sentence.

“As earlier observed, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale,” Justice Ruth Bader Ginsburg wrote.

The court sent the case back to the Ninth Circuit and directed the San Francisco-based appeals court to decide the case in a way that bears “a fair resemblance to the case shaped by the parties.”

Sineneng-Smith adopted the groups’ arguments in defending the Ninth Circuit’s ruling before the Supreme Court, arguing the law threatens the speech of a whole list of professionals who work with immigrants.

“Rather, immigration attorneys, criminal defense lawyers, social workers, teachers, and physicians are all paid for their advice and speech,” Sineneng-Smith argued in briefs to the high court. “All may readily find themselves advising or counseling ā€” for financial gain ā€” undocumented noncitizens to stay in the country. Their speech is protected even when they are paid for it.”

In a concurring opinion, Justice Clarence Thomas also raised doubts about the overbreadth doctrine itself, writing it “lacks any basis in the Constitution’s text, violates the usual standard for facial challenges, and contravenes traditional standing principles.”

Overbreadth is a First Amendment legal doctrine that holds restrictions on speech can be invalid if they regulate both unprotected speech and significant amounts of protected speech.

Thomas wrote the doctrine is not based in the First Amendment’s text and that the court has upheld it “solely by reference to policy considerations and value judgments.” He also found fault with the doctrine because it allows litigants to challenge a law based on an injury a third party may or may not have suffered, contrary to traditional principles of standing.

Mark Fleming, an attorney with WilmerHale who represents Sineneng-Smith, said the Supreme Court dodged “important free speech” issues by vacating the lower court ruling on procedural grounds.

“We’re disappointed that an unjust and overbroad law can continue to threaten constitutionally protected advice and support offered by loved ones, religious ministers, medical professionals, lawyers and others trying to help people decide whether to stay in our country,” Fleming said in an email.  

The Justice Department did not immediately return a request for comment.

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