Justices Take Up Ban on Encouraging Illegal Immigration

The Supreme Court is seen in Washington on June 17, 2019. (AP Photo/J. Scott Applewhite)

WASHINGTON (CN) – The Supreme Court will soon hear arguments on free speech and immigration after it agreed Friday to decide the constitutionality of a federal law that criminalizes encouraging undocumented immigrants to stay in the United States.

The Ninth Circuit struck down the law last year, in the case of immigrant counselor Evelyn Sineneng-Smith.

Sineneng-Smith, of San Jose, California, was convicted in 2013 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.

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

On appeal, the Ninth Circuit took issue with the text of the federal law she was charged under, ruling last year that the words “encourage” and “induce” were overly broad.

Among the judges’ concerns were questions over whether the lack of nuance could potentially jeopardize attorneys who advise clients that have lived in the U.S. for an extended period of time to stay because their removal is highly unlikely.

And if an illegal immigrant even so much as approaches a U.S. citizen to discuss their status and the citizen freely states, “You should stay,” the judges noted that response could be considered a criminal violation.

“The 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 Bill Clinton appointee, wrote for the panel in a 42-page opinion. “The statute thus criminalizes a substantial amount of constitutionally-protected expression.”

Sineneng-Smith had argued the law she was charged under chills First Amendment expression, but the Justice Department saw it differently and appealed the Ninth Circuit’s decision to the Supreme Court.

“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,” Justice Department spokesman Steven Stafford said in a statement after the ruling last year.

Per their custom, the Supreme Court justices did not comment on their decision to take up the case.

Oral arguments in Sineneng-Smith’s case will be heard during the same term that the high court decides another critical issue facing immigrants.

In November, the court will weigh the constitutionality of the Trump administration’s move to end programs protecting young Hispanic adults brought to the U.S. illegally as children.

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