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Can a Grandmother Be Sent to Jail for Encouraging Her Grandson to Overstay His Visa? We’ll Find Out.

It is illegal to assist or aid in illegal immigration.  Rightly so (although some have argued that placing water bottles in the Arizona desert for illegal immigrants crossing the Mexican border should hardly be a crime).

But the U.S. government decided decades ago to make criminal the act of “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States” while knowing such conduct to be illegal.

Imagine, then, a grandmother who encourages her grandson to overstay his visa by telling him “I encourage you to stay” in the United States.  “I’m old and I need your help.”

Or someone who directs a social media post to undocumented individuals saying something along the lines of “I encourage all you folks out there without legal status to stay in the U.S.!  We are in the process of trying to change the immigration laws, and if you stay here that may help us.”

Earlier this year, one federal appellate court said statements such as those above could be perceived as illegal under the statute and thus constitute a felony.  And because the current law criminalizes a broad array of speech that most would be considered perfectly legitimate, the court found the law to be “overbroad” and thus a violation of the First Amendment.

But the legal battle is not yet over.  Last month, the U.S. Supreme Court granted a petition by the federal government to hear a case addressing this particular statute.

A California immigration lawyer, Evelyn Sineneng-Smith, provided legal advice to predominantly Filipino workers in the home health care industry.  She offered to help them to obtain worker permits under a Labor Department certification program that would give them permanent resident status and allow them to work legally.

A lofty goal for an immigration lawyer.  She was paid well, charging clients nearly $7,000 each to file the applications.

Only problem?  Ms. Sineneng-Smith knew that the federal certification program at issue had expired, and thus she knew the petitions she filed on behalf of her clients would be rejected.  In other words, she accepted money for what she knew would be unsuccessful legal proceedings.  A jury convicted her in 2015 of mail fraud, as well as pursuant the 1986 law for “encouraging” her clients to stay in the United States. She was sentenced to 18 months in jail.

The mail fraud conviction was upheld on appeal.  But the U.S. Court of Appeals for the Ninth Circuit, which sits in San Francisco, overturned the speech portion of the law.

Now the U.S. Supreme Court will tackle a free speech case that may test the justices’ commitment to First Amendment principles.  The government argues that the restrictions on speech that “encourages” or “induces” an alien to illegally enter or remain in the United States is an “appropriate punishment” for such actions.  As the government said:

Congress can constitutionally proscribe moneymaking schemes, [like Ms. Sineneng-Smith’s], that are premised on causing or increasing unlawful entry or residence by particular aliens.  The provisions here are primarily directed at conduct, not speech.  To the extent they even reach speech, they do so only incidentally by prohibiting communications that foster unlawful activity by particular individuals, which have long been understood to be outside the scope of the First Amendment.

That view was firmly rejected by the appellate court, and several parties have urged the Supreme Court to uphold the lower court’s finding that the statute violates the First Amendment because it would criminalize all types of otherwise innocent speech.

As the American Civil Liberties Union noted in a friend-of-the-court filed with the Supreme Court, the First Amendment does not permit the government to punish advocacy of unlawful acts except in two narrow circumstances:  the government may regulate speech that is intended and likely to elicit imminent violence, and the government may criminalize “speech integral to criminal conduct,” such as guiding an individual on how to cheat on his taxes.

Those exceptions are not present in the case the Supreme Court agreed to take up.  As the ACLU wrote:

[The statute] is substantially overbroad and does not provide individuals with clear guidance about when their speech risks becoming a federal felony.  That guidance is particularly crucial for anyone who counts non-citizens among their friends, loved ones, coworkers, or clients. . . .  The only sure way to avoid prosecution under [the statute] is self-censorship.  This chilling effect is particularly pernicious since immigration policy is a perennially contested issue of public concern, and federal authorities have indicated that they will aggressively prosecute immigration-related crimes.

Few free speech cases reach the Supreme Court these days.  With two new justices sitting on the Court, the Court’s traditionally strong support for free speech could be in peril.  Oral argument has not yet been scheduled.  Stay tuned.

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