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U.S. Supreme Court,
Immigration,
Constitutional Law

Feb. 25, 2020

Supreme Court to consider broad immigration-speech law

The federal government will defend the constitutionality of a law that prohibits “encouraging” or “inducing” undocumented noncitizens from entering or remaining in the United States.

Molly Alarcon

Deputy City Attorney, Office of the San Francisco City Attorney

Email: molly.alarcon@sfcityatty.org

Molly is a deputy city attorney in the office of San Francisco City Attorney Dennis Herrera, where she serves on the Complex and Affirmative Litigation Team. She graduated from Yale Law School in 2016, and previously served as a regional voter protection director for Hillary for America. She clerked for the Honorable William J. Kayatta, Jr. on the 1st U.S. Circuit Court of Appeals.

Erin Kuka

Deputy City Attorney, Office of the San Francisco City Attorney

1390 Market St Fl 7
San Francisco , CA 94102

Email: erin.kuka@sfgov.org

UC Hastings COL; San Francisco CA

Erin is a deputy city attorney in the office of San Francisco City Attorney Dennis Herrera, where she serves on the Labor and Employment Team and the Affirmative Litigation Task Force. Erin is a graduate of University of California, Hastings College of the Law. She clerked for the Honorable Justice Paula A. Nakayama of the Hawaii Supreme Court, the Honorable J.P. Stadtmueller of the Eastern District of Wisconsin, and the Honorable Claudia Wilken of the Northern District of California.

On Tuesday at the Supreme Court, the federal government will defend the constitutionality of a law that prohibits "encouraging" or "inducing" undocumented noncitizens from entering or remaining in the United States. While the case is not the most visible or controversial immigration case to come before the court in recent years, the court's ruling may still have a significant, far-reaching impact due to the law's potential restrictions on free speech.

The case is United States v. Evelyn Sineneng-Smith, 19-67. Sineneng-Smith worked as an immigration consultant for nearly two decades, successfully assisting workers in the United States with dozens of applications for lawful permanent residence. The case against Sineneng-Smith involves her handling of two undocumented workers' filings with the federal Department of Labor and U.S. Citizenship and Immigration Services. According to the allegations in the case, Sineneng-Smith falsely told these workers the filings would confer lawful immigration status; for this, Sineneng-Smith was charged with and convicted of mail fraud. (The mail fraud conviction is not before the court.)

But the federal government also charged Sineneng-Smith with a violation of 8 U.S.C. Section 1324(a)(1)(A)(iv), which prohibits "encouraging" or "inducing" someone to come to or stay in the United States unlawfully. In its briefing and argument at the district court, the government argued that Sineneng-Smith violated this section by counseling the workers on "the paths to citizenship" and by using "dangerous words" that encouraged the workers' continued residence here. Following a guilty verdict at trial, Sineneng-Smith appealed to the 9th U.S. Circuit Court of Appeals, which reversed the Section 1324 conviction, holding that Section 1324(a)(1)(A)(iv) is unconstitutionally overbroad under the First Amendment. The 9th Circuit found the statute's language to be remarkably broad -- broad enough to criminalize a grandmother urging her grandson to overstay his visa by telling him "I encourage you to stay." The court concluded that the provision is overbroad under the First Amendment because it "criminalizes a substantial amount of protected expression in relation to the statute's narrow legitimate sweep."

The Supreme Court granted the federal government's petition for writ of certiorari to review the 9th Circuit's ruling, arguing that the provision at issue should be read narrowly, along the lines of a criminal solicitation statute. The lawyers representing Sineneng-Smith -- Mark Fleming, Thomas Sprankling, and their colleagues at Wilmer Hale -- forcefully argued in their merits brief that the plain language of the statute precludes such an interpretation. They also showed how, due to other parts of the same statute (such as a prohibition on "harboring" persons unlawfully present in the U.S.) or other general fraud statutes, the prohibition on "encouragement" or "inducement" is superfluous unless it criminalizes speech. Thus, Sineneng-Smith argued, the provision "punishes as a felony any statement urging or persuading an undocumented noncitizen to enter or remain in the country -- even legal advice from an immigration attorney or a plea from a grandmother to her grandson not to abandon her."

The prohibition on "encouragement" or "inducement" could extend beyond those scenarios. San Francisco, along with local governments and municipal law advocacy organizations from around the country, filed an amicus brief in support of Sineneng-Smith at the Supreme Court. We voiced our concerns that the provision's broad language could chill our speech and jeopardize routine and important local government programs. Distributing "Know Your Rights" brochures explaining the deportation process and informing residents of their constitutional rights could potentially break the law by "encouraging" undocumented residents to stay here. Similarly, an overzealous prosecutor could potentially charge a member of the Board of Supervisors under the section if, during a public hearing on DACA, the Supervisor thanks a DREAMer for her bravery and encourages her to keep fighting for immigration reform in the United States. Clearly, such speech designed to inform our residents and engage with critical political issues resides at the heart of the First Amendment.

San Francisco and the 32 other jurisdictions and organizations that joined the amicus brief urged the Supreme Court to find the broad "encourage" or "induce" language to be unconstitutional, since the looming threat of prosecution chills our vital programs and speech. Striking down this provision would not leave law enforcement powerless in their efforts to root out fraudulent conduct against would-be immigrants; several fraud statutes that do not infringe on free speech rights can be utilized to protect this vulnerable community. As one recent example, San Francisco City Attorney Dennis Herrera successfully sued Lacayo & Associates, a predatory immigration consulting business that defrauded hundreds of individuals seeking immigration assistance. Another recent example is Sineneng-Smith herself, who was convicted for mail fraud for the same conduct that allegedly supports her charge for "encouraging" and "inducing."

At the Supreme Court, our amicus brief joined a chorus of others submitted by a wide array of groups explaining how the broad statutory language could impact their lawful activities -- from immigration lawyers concerned about the statute thwarting their ethical obligation to give accurate legal advice to clients, to faith-based organizations that serve immigrant communities, to journalists interviewed by Amnesty International after the federal government placed them on a "watch list" as part of an investigation into potential violations of the "encourage" or "induce" provision.

A limitless reading of the "encourage" or "induce" provision is a very real threat to full public discourse about immigration issues in the United States. San Francisco is proud to stand with other municipal jurisdictions, faith leaders, attorneys, and human rights workers from around the country in support of the First Amendment. 

#356442

Ilan Isaacs

Daily Journal Staff Writer
ilan_isaacs@dailyjournal.com

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