Supreme Court Rebuffs Activists, Reinstates Ban on Encouraging Illegal Aliens to Stay in US

May 10, 2020 Updated: May 11, 2020

The Supreme Court unanimously resurrected a federal law struck down by an appeals court that made it a felony to encourage people to come to or stay illegally in the United States.

The May 7 ruling was a dramatic victory for the Trump administration, which had urged the high court to reverse a 2018 ruling by the 9th Circuit Court of Appeals. President Donald Trump, who has made immigration his signature issue, also favors reducing both illegal and legal immigration, along with cracking down on illegal aliens.

The problem, according to the Supreme Court, was that the lower court selected activist groups to dominate arguments against the law and then accepted their reasons for why it should be invalidated, even though the defendant herself did not raise those same concerns in her defense.

San Jose, California-based immigration consultant Evelyn Sineneng-Smith was accused in 2010 of duping illegal aliens into paying her fees to file frivolous applications for visas and 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.

Prosecutors said Sineneng-Smith 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.

Section 1324 of the federal Immigration and Nationality Act 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 period behind bars doubles if he or she acted “for the purpose of commercial advantage or private financial gain.”

A 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,’” Senior U.S. Circuit Judge A. Wallace Tashima, a Clinton appointee, wrote for the panel.

In a decision written by Justice Ruth Bader Ginsburg in the case, cited as U.S. v. Sineneng-Smith, the high court noted that Sineneng-Smith didn’t raise the overbreadth argument at her trial or before the appeals court. (Justice Clarence Thomas filed his own concurring opinion.)

“With the appeal poised for decision based upon the parties’ presentations, the appeals panel intervened,” Ginsburg wrote. “It ordered further briefing, but not from the parties,” and committed a serious error when it moved the case “onto a different track.”

“Instead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel, including a question Sineneng-Smith herself never raised earlier: Whether the statute of conviction is overbroad under the First Amendment.”

The three amici, or groups that participated in the appeal as so-called friends-of-the-court, were the Federal Defender Organizations of the Ninth Circuit, along with two left-wing activist groups—the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild (NLG). The NLG has longstanding ties to the Communist Party USA.

“In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role,” Ginsburg wrote. “The Ninth Circuit ultimately concluded, in accord with the invited amici’s arguments, that [the legal provision] is unconstitutionally overbroad.

“The appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion.”

The appeals court’s judgement was vacated and the case was remanded “for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.”

Dan Stein, president of the Federation for American Immigration Reform (FAIR), told The Epoch Times he was satisfied with the Supreme Court’s decision.

The court was concerned here “with the institutional integrity of the judiciary and its proper role in our tripartite system of government,” he said.

“There is a point beyond which politicized judges, many appointed by President Obama, may not go in spontaneously raising policy issues on appeal that were not presented by the parties in the lower courts,” Stein said.

“Courts are not super legislatures that have the right to substitute their own political and policy judgments for those of elected representatives based on a whim, and no effort to recruit politically allied organizations to provide friend-of-the-court briefs can empower an expansive authority that does not lie properly within the judiciary.

“Not only is this a win for the Trump administration, it’s a win for the American people, and conveys the concern that the Supreme Court itself has with the radicalized nature of many lower Court judges in abusing their powers—especially as it pertains to controversial political issues like immigration policy.”