Supreme Court Considers Ban on Encouraging Illegals to Stay in US

February 25, 2020 Updated: February 25, 2020
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WASHINGTON—The Trump administration urged the Supreme Court to reverse an appeals court ruling that struck down as unconstitutional an immigration law that made it a felony to encourage people to come to or stay illegally in the United States.

Oral arguments were heard Feb. 25 in the case cited as U.S. v. Sineneng-Smith.

President Donald Trump favors reductions in illegal and legal immigration rates. A decision may be handed down in June as the 2020 presidential election campaign heats up. Other rulings in controversial immigration cases are also expected.

The case concerns immigration consultant Evelyn Sineneng-Smith of San Jose, California, a U.S. citizen accused in 2010 by federal prosecutors of duping illegal aliens into paying her fees to file frivolous applications for visas and thereby encouraging them to stay in the country unlawfully. Her business catered to Filipinos unlawfully present in the United States who worked in the home health care field.

Sineneng-Smith allegedly cheated her clients out of more than $3 million by knowingly filing futile applications after the legal deadline of April 30, 2001, for a now-defunct program run by immigration authorities that was supposed to lead to permanent resident status. She was sentenced to 18 months of imprisonment.

The Trump administration argued in court documents that the law provided “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 country.

However, civil libertarians claim the law is so broadly worded that it violates First Amendment free speech protections.

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 penalty rises to a maximum of 10 years 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 by inducing an alien to “come to, enter, or reside” in the United States.

A panel of the 9th Circuit Court of Appeals subsequently found that 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.’”

During oral arguments, Sineneng-Smith’s attorney, Mark Fleming, offered similar anecdotes.

“In this statute, falsity is not an element, nor is truth a defense. Even accurate advice encouraging someone to stay is banned,” Fleming said.

“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 … and as the government has still never denied, it makes a felon of a lawyer who advises an undocumented client that her best route to lawful status is to remain physically present in the United States.”

Justice Samuel Alito challenged Fleming, asking why “encouraging someone to remain in the country illegally” would not qualify, in the words of the Supreme Court’s landmark 1969 free speech ruling in Brandenburg v. Ohio, as unlawful incitement to “imminent lawless action.”

Fleming replied that Brandenburg “only allows regulation of incitement to immediate lawless activity and arguably violent lawless activity.”

Alito replied, saying “the unlawfulness exists prior to the speech and exists a nanosecond after the speech ended, so it is imminent.”

Deputy Solicitor General Eric Feigin argued that invalidating the law would be an overreaction, as he accused advocacy groups that filed friend-of-the-court briefs in the case of hypocrisy.

Such groups “engage daily in the very activities they claim are chilled” by the federal law that is being disputed.

Justice Sonia Sotomayor noted the government made a watch list of individuals and organizations providing legal advice at the southern border who might face prosecution under the law.

So “if you say this has no chilling effect, is that accurate?”

Chief Justice John Roberts wondered aloud if the law would penalize a grandmother who tells her illegal-alien granddaughter, “I hope you stay because … I will miss you.”

Justice Stephen Breyer asked what would happen to “the landlady who says to the person, you always have a place here, knowing that that person is illegally in the United States.”