U.S. Supreme Court Weighs Law Against Inducing Illegal Immigration for Gain

By Mark Walsh — February 25, 2020 4 min read
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The U.S. Supreme Court on Tuesday took up a federal law that makes it a crime to encourage or induce illegal immigration for commercial gain, with several education-related threads coming to the fore.

Under the federal statute, “even accurate advice encouraging someone to stay is banned. And as a result, this law makes a felon of a teacher who says to an undocumented student that she should stay and pursue her education,” said Mark C. Fleming, the lawyer representing a California immigration consultant who was convicted under the law.

The lively hour-long argument in the case, United States v. Sineneng-Smith (No. 19-67), touched on the roles of sanctuary cities and advocacy groups in aiding undocumented immigrants, as well as other areas in which speech inducing someone to commit a legal violation might be at issue.

Justice Samuel A. Alito Jr. asked about a teenager “who has been very seriously bullied and is very depressed and is thinking of committing suicide.”

“The teenager has a gun in his hand,” Alito continued. “He calls up the one person he thinks is his friend and he says, ‘I’m thinking of killing myself.’ And the person on the other end of the line says, ‘You’ve said this before, I’m tired of hearing this from you, you never follow through, you’re a coward, why don’t you just do it, I encourage you to pull the trigger.’ Now is that protected by the First Amendment?”

Fleming said such an incitement to suicide would likely fall under First Amendment exceptions that do not protect speech inciting immediate harm or lawlessness.

The defendant in the case, Evelyn Sineneng-Smith of San Jose, Calif., was an immigration consultant focusing on people working in the home health-care industry. The federal government says she fraudulently promoted a labor-certification program for workers she knew to be in the United States without authorization, charging each more than $6,000 to file paperwork she suggested would put them on a path to legal permanent residence status when she knew the workers did not qualify for the program.

She was convicted of mail fraud and violations of a provision of the Immigration and Nationality Act of 1952 that makes it a felony to induce or encourage an alien to enter or remain in the country illegally.

“This statute historically was not used very much, but the government has recently made it a focus of enforcement,” Fleming told the justices. “It’s also something that ... they are using as the basis for investigation of U.S. citizens for their prayer, for their speech, and for their legal advice.”

He pointed to a friend-of-the-court brief filed by several religious organizations who minister to undocumented aliens and fear federal prosecution for activities that include helping young immigrants with school enrollment, the provision of school supplies, and holding English-as-a-second-language classes.

Sineneng-Smith challenged the encouragement provision as an unconstitutionally overbroad restriction on speech that would chill a broad swath of immigration-related speech. The U.S. Court of Appeals for the 9th Circuit, in San Francisco, agreed with her and struck down the provision and reversed her convictions on those charges. (The defendant’s mail fraud convictions were not reversed.)

The federal government appealed to the Supreme Court, where Deputy U.S. Solicitor General Eric J. Feigin said Tuesday that “prohibitions on facilitating or soliciting unlawful activity have existed since before the founding and are perfectly constitutional.”

“Congress didn’t use these familiar criminal law terms to enact a novel and broad ban on speech,” Feigin added. “Congress was using these words in their normal criminal law meaning because, let’s not forget, this statute ... covers the facilitation, solicitation of a lot of actual criminal conduct, coming to and entering the United States unlawfully.”

The court appeared skeptical of the government’s arguments. Justice Sonia Sotomayor expressed a concern that charitable organizations and others helping immigrants at the border “were being watched [by the government] because they potentially violated this encouragement provision and inducement provision.”

Justice Stephen G. Breyer referred to “universities, church groups, I mean, you name it, sanctuary cities, where they’re trying to, whatever they’re trying to do” to help immigrants, “but it wouldn’t be tough [to] turn it over to the prosecutors.”

Chief Justice John G. Roberts Jr. worried about the possible prosecution of a grandmother “whose granddaughter is in the United States illegally, tells the granddaughter, ‘You know, I hope you will stay because, you know, I will miss you, things will not get better if you go back, so I encourage you to stay.’”

Feigin said the grandmother would not be violating the law.

One friend-of-the-court brief filed in support of Sineneng-Smith raised a broader point related to civil disobedience, including in education.

“Speech encouraging a violation of law has a long and noble history in this country,” said the brief by the Rutherford Institute, the American Civil Liberties Union, and the Service Employees International Union. “Moreover, civil disobedience—and its encouragement—remains a central part of protests today, spanning the political spectrum. If the government were free to criminalize encouragement of civil disobedience, that threat would imperil a critically important form of social protest, chilling historically protected advocacy and impeding national debate on pressing issues.”

Among other contemporary examples, the brief discusses student walkouts for gun control after recent school shootings or last year’s Global Climate Strike.

“If mere encouragement of unlawful conduct were itself a crime, anyone who urged participation in walkouts that triggered student truancy could face prosecution for encouraging those absences,” the brief says.

A decision in the case is expected by late June.

A version of this news article first appeared in The School Law Blog.