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Supreme Court to review criminalization of speech in illegal immigration

The remaining spaces on the high court's docket are filling up with appeals on immigration, sentencing rules, arbitration and IRS policies. 

WASHINGTON (CN) — After passing up on the issue two years ago, the Supreme Court agreed Friday to hear the Biden administration's bid for the country to criminalize, again, the encouragement of illegal immigration. 

The case stems from a scam whereby Helaman Hansen charged immigrants up to $10,000 with the promise that he could get them U.S. citizenship through “adult adoption.” Almost 500 people fell prey to the scheme during its four-year existence. 

Hansen was charged with encouraging or inducing unlawful immigration for private financial gain, as well as mail and wire fraud. Encouraging immigration under false pretenses carries a maximum prison sentence of five years for every noncitizen who was harmed. That sentence jumps to 10 years if the crime involves private financial gain. 

Hansen was found guilty on all counts. He was sentenced to 20 years in prison followed by two years of parole. 

The case was stayed while the Supreme Court considered a similar case, United States v. Sineneng-Smith. The defendant here, Evelyn Sineneng-Smith, was convicted of scamming home health care workers from the Philippines to apply for a work-authorization program whose deadline had long passed. 

In a unanimous ruling written the late Justice Ruth Bader Ginsberg, the court reversed a Ninth Circuit ruling that struck down a law criminalizing the act of encouraging immigrants to illegally stay in the U.S. The appeals court had struck down the law as overbroad, violating constitutionally protected speech. 

While Ginsberg in 2020 rebuked the circuit ruling, she and the other justices punted on the substantive question presented by the case: Is the First Amendment violated when criminalizing the encouragement of illegal immigration schemes? 

At the behest of the Biden administration, the court now seeks to answer this question. 

After the court’s ruling in Sineneng-Smith, the Ninth Circuit vacated Hansen’s convictions, finding that the federal law he was charged under was overbroad and unconstitutional. 

The Biden administration told the court that the appeals court struck down an important act of Congress that is used to prosecute smuggling and other unlawful immigration activity. The government claims the court has long ruled that Congress can criminalize speech that involves a crime. 

“As the Court has explained, ‘the constitutional freedom for speech’ does not ‘extend[] its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute,’” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief

Hansen's case is one of four the court added to its docket Friday afternoon. One of the other appeals comes from cryptocurrency giant Coinbase, which is fighting off suits from former users. This summer the company asked the court to halt these suits in an emergency manner to prevent pricy litigation and discovery. The court declined

Now back at the court, Coinbase asked the justices to review a procedural issue that could help force customers into arbitration. 

The court will also review sentencing rules for drug traffickers, and IRS policies on notifying account holders when their records are summoned. 

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