Thursday, August 22, 2019

D. Kan. Judge: Statute criminalizing encouraging unlawful alien is unconstitutionally overbroad

8 U.S.C. § 1324(a)(1)(A)(iv) provides criminal penalties for any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”

Image result for grandma coloring pageLast December, the Ninth Circuit held this section unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression, including “a loving grandmother who urges her grandson to overstay his visa.” United States v. Sineneng-Smith, 910 F.3d 461, 483 (9th Cir. 2019) (cert. pet. filed 07/12/2019).
The Tenth Circuit has yet to address this section. But this week, D. Kan. Judge Murguia relied on Sineneng-Smith to vacate two jury convictions under this section. United States v. Hernandez-Calvillo, D. Kan. No. 16-cr-20097-05 (Order of Dismissal filed 08/21/19); United States v. Papalotzi, D. Kan. No. 16-cr-20097-06 (same).
The government may well appeal. In the meantime, if your client has been charged under this section, move to dismiss, and consider moving to vacate any already-entered plea.

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