WASHINGTON—The Supreme Court has agreed to take up the Trump administration’s legal challenge to an appeals court ruling that struck down on free speech grounds an immigration law that made it a felony to encourage people to come or stay illegally in the United States.
While the Trump administration argues the law needs to be revived so those who encourage illegal immigration can be taken to court, civil libertarians worry that the law is so broadly worded that it violates the First Amendment’s free speech protections.
The law, invalidated by a three-judge panel of the 9th Circuit Court of Appeals in 2018, provides “appropriate punishment for defendants who seek enrichment by incentivizing or procuring violations of the immigration laws by aliens who illegally enter or remain in the United States,” the Trump administration stated in its petition filed with the court.
The Supreme Court on Oct. 4 granted certiorari, or review, in the case, cited as United States of America v. Sineneng-Smith. Oral arguments haven’t yet been scheduled in the matter.
The case involves immigration consultant Evelyn Sineneng-Smith of San Jose, California, a U.S. citizen who was accused in 2010 by federal prosecutors of duping illegal aliens into paying her fees to file frivolous applications for visas. Her business catered to Filipinos unlawfully present in the United States who worked in the home health care field.
Federal law makes it a felony punishable by up to five years imprisonment for anyone 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.” The person can get up to 10 years behind bars if he or she acted “for the purpose of commercial advantage or private financial gain.”
In 2013, Sineneng-Smith was convicted of violating the federal law, part of 18 U.S.C. 1324, by inducing an alien to “come to, enter or reside” in the United States.
On appeal, the 9th Circuit panel found the law was “unconstitutionally overbroad” because it “criminalizes a substantial amount of protected expression in relation to the statute’s narrow legitimate sweep.” The law “potentially criminalizes the simple words—spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client—’I encourage you to stay here.'”
The Trump administration rejects the circuit court’s “hypotheticals” as overblown and is asking the Supreme Court to resurrect what it calls “an important tool” for immigration law enforcement efforts.
Cecillia Wang, deputy legal director of the American Civil Liberties Union, rejected the government’s reasoning, as reported by Bloomberg Law.
“It would be disastrous” if the Supreme Court were to upend the 9th Circuit ruling, Wang said. “Anytime you hear a government lawyer saying ‘trust us’ when our free speech rights are at stake, you should run in the other direction.”
Wang offered an example pulled from a high-profile immigration case concerning the controversial Deferred Action for Childhood Arrivals (DACA) program that is scheduled to come before the Supreme Court for oral arguments on Nov. 12. That case is cited as Department of Homeland Security v. Regents of the University of California.
“I write an op-ed saying, ‘I disagree with the U.S. immigration laws and I believe that ‘Dreamers’ should stay in the U.S., you belong here,’” she said. “I can’t leave it up to good faith in prosecutors not to come after me and try to throw me in federal prison for doing that.”
“Dreamers” is a reference to children brought to the country illegally whose deportation proceedings were stayed under then-President Barack Obama’s DACA program. President Donald Trump ordered that DACA, which Obama created by executive fiat, be abolished but the courts have ordered the Trump administration to keep the program operating.
The Supreme Court began its new term Oct. 7.