Sunday, December 9, 2018

“Encouraging or inducing” an alien to remain held unconstitutionally overbroad

Last week, in United States v. Sineneng-Smith, the Ninth Circuit vacated  convictions for encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) & 1324(a)(1)(B)(i), finding the statute unconstitutionally overbroad because it impermissibly criminalizes a substantial amount of constitutionally-protected expression.

broken snow flakes on waterSpecifically, subsection (iv) of that statute provides for a felony prosecution where one “encourages or induces” an alien to come, enter, or reside in the United States if the defendant knew, or recklessly disregarded the fact that such coming to, entry, or residence is or will be in violation of the law.

As an example of the statute's impermissible infringement on protected expression, the Ninth Circuit noted the doting grandma who could face felony charges for urging her grandson to overstay his visa by saying, “I encourage you to stay.” The Ninth Circuit, too, highlighted the numerous examples of professionals, such as attorneys, whose speech may be chilled by the breadth of subsection (iv) given that, under the statute’s clear scope, an “attorney’s accurate advice could subject her to a felony charge.”

As a result? The statute is unconstitutionally overbroad given that “[t]he burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep.” Convictions vacated.

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