Are certain subsections of 8 U.S.C. § 1324, which criminalize encouraging or inducing an undocumented immigrant to remain in the United States for financial gain, facially unconstitutional in light of the First Amendment’s protection of free speech?
This case asks the Supreme Court to decide whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i)’s federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is facially unconstitutional. The Petitioner, the United States, argues that these provisions do not criminalize speech protected under the First Amendment because “encourage” and “induce” refer only to the facilitation or solicitation of illegal immigration and not to protected speech. The United States thus argues that these provisions have a legitimate sweep because they primarily regulate conduct. The Respondent, Evelyn Sineneng-Smith, counters that “encourage” and “induce” have expansive meanings that extend beyond facilitative conduct. Sineneng-Smith claims that these provisions primarily function to criminalize a wide array of speech that is protected under the First Amendment. The outcome of this case will affect the ways in which citizens may advocate for immigration reform and the nature of professional immigration advice.
Questions as Framed for the Court by the Parties
Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.
Respondent Evelyn Sineneng-Smith (“Sineneng-Smith”) ran an immigration consulting firm in California where she helped clients obtain permanent residence in the United States through a Labor Certification program. United States v. Sineneng-Smith at 6–7. Most of Sineneng-Smith’s clients were Philippine natives who were already working in the United States illegally. Id. at 6. Although Sineneng-Smith’s retainer agreements with her clients stated that she would assist them in obtaining “permanent residence through Labor Certification,” the Labor Certification program expired in 2001. Id. at 7. Even though Sineneng-Smith knew that the program had expired, she continued to onboard new clients through 2008, erroneously telling them that they could still receive permanent residence through the Labor Certification program. Id. Some of Sineneng-Smith’s clients testified that they would have left the United States had they been informed that they were not eligible for permanent residence through the Labor Certification program. Id.
In 2010, Sineneng-Smith was charged with three counts of violating Section 1324(a)(1)(A)(iv) (“Subsection (iv)”), which provides that anyone who “encourages or induces an alien to . . . reside in the United States, knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law” is subject to criminal liability under Section 1324(a)(1)(B). Id. If a person violates Subsection (iv) “for the purpose of . . . private financial gain,” then he or she must be fined or imprisoned (or both). 8 U.S.C. § 1324(a)(1)(B)(i). Before trial in the United States District Court for the Northern District Court of California (the “District Court”), Sineneng-Smith moved to dismiss the counts under Subsection (iv), arguing among other things that Subsection (iv) violates the First Amendment because it impermissibly restricts free speech. Id. at 7–8. The District Court denied Sineneng-Smith’s motion to dismiss but in doing so did not reach the First Amendment argument. Id. at 8. At trial, the jury convicted Sineneng-Smith of violating Subsection (iv), finding her guilty on all three counts. Id. Sineneng-Smith then moved for a judgment of acquittal, arguing that there was insufficient evidence to support her conviction. Id. The court denied the motion and sentenced Sineneng-Smith to 18 months in prison and ordered her to pay various fines. Id.
Sineneng-Smith appealed to the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”), again arguing that Subsection (iv) violates the First Amendment. Id. at 8. The Ninth Circuit reversed the conviction, holding that Subsection (iv) violates the First Amendment due to its overbreadth. Id. at 12–13. While recognizing that the statute criminalizes “legitimately prohibited conduct,” the Ninth Circuit determined that it also criminalizes a “substantial amount of protected speech.” Id. at 13. In so ruling, the Ninth Circuit first reasoned that the phrase “encourages or induces” is broad enough to encompass speech, not just conduct that would facilitate illegal immigration. Id. at 18–21. The court then determined that Subsection (iv) criminalizes a significant amount of protected speech, such as a mother who asks her undocumented child to remain in the country, or an attorney who advises an undocumented client to remain in the country in order to realize greater due process protection. Id. at 30, 41. As such, the Ninth Circuit concluded that “there is a realistic (and actual) danger that the statute will infringe upon recognized First Amendment protections.” Id. at 38. The Ninth Circuit accordingly held that Subsection (iv) is overbroad and violates the First Amendment. Id. at 42.
THE MEANING OF “ENCOURAGE” AND “INDUCE”
Petitioner, the United States, contends that Subsection (iv) does not infringe on a substantial amount of protected speech because “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States” refers only to facilitating or soliciting illegal activity. Brief for Petitioner, the United States at 18. Specifically, the United States argues that a person “encourages or induces” illegal conduct only if he aids, abets, or solicits the violation. Id. at 19. In support of its argument, the United States points to criminal law norms, explaining that accomplice liability commonly includes “encourage” as one form of abetting. Id. The United States additionally asserts that the terms “encourage” and “induce” are commonly used in both state and federal laws to describe the solicitation of illegal activity. Id. at 20–21. The United States further argues that earlier immigration statutes linked “encourage” and “induce” to aiding-and-abetting liability. Id. at 23. For example, the United States claims, early immigration laws commonly listed the terms “encourage” or “induce” alongside terms like “solicit” and “assist,” indicating that when these words are grouped together, they describe facilitation or solicitation. Id. The United States contends that, in passing subsequent statutes that listed only the words “encourage” or “induce,” Congress was merely shortening the statute while still preserving the prohibition on facilitation and solicitation. Id. The United States additionally asserts that prohibiting speech that “encourages” or “induces” illegal activity is consistent with the First Amendment even if the underlying offense is civil, rather than criminal. Id. at 41. The United States claims that the Supreme Court has permitted the prohibition of speech intended to encourage or induce illegal activities in cases involving only civil offenses. Id. at 41–42.
Sineneng-Smith counters that Subsection (iv) is impermissibly overbroad because the words “encourage” and “induce” do not mean just “solicit” or “facilitate” or just “aid” and “abet,” but are expansive terms that also encompass speech. Brief for Respondent, Evelyn Sineneng-Smith at 17–18. According to Sineneng-Smith, dictionary definitions of “encourage” and “induce” indicate that the ordinary meaning of those words includes speech. Id. at 18. Sineneng-Smith also argues that Congress intended for “encourage” and “induce” to convey a different meaning than words such as “aid” and “abet” because Congress was capable of including words like “aid” and “abet” in Subsection (iv) yet declined to do so. Id. at 19–20. In support of this argument, Sineneng-Smith points to the subsection immediately following Subsection (iv), Section 1324(a)(1)(A)(v)(II), which expressly prohibits aiding and abetting. Id. at 20. Sineneng-Smith thus argues that since the words “encourage” and “induce” are not listed alongside any other terms and instead appear in isolation, they retain their ordinary, expansive meaning. Id. at 22. Sineneng-Smith further argues that Congress intended for Subsection (iv) to have a broad application because over time Congress omitted all of the other terms that historically had been grouped alongside “encourage” and “induce.” Id. at 31–32. For example, Sineneng-Smith explains, earlier immigration statutes criminalized “knowingly assisting, encouraging, or soliciting [illegal immigration].” Id. at 31. Sineneng-Smith additionally argues that “encourage” and “induce” are different than “aid” and “abet” because Subsection (iv) lacks the traditional elements associated with aiding-and-abetting statutes. Id. at 26. For example, Sineneng-Smith asserts, an aider-and-abettor must typically assist in a crime, not a civil offense, but a person being “encouraged” does not have to have committed a crime, since residing in the United States without immigration status is not criminal. Id. at 27.
IS SUBSECTION (IV) CONSISTENT WITH THE FIRST AMENDMENT?
The United States claims that Subsection (iv) is not overbroad because it has a legitimate sweep that does not infringe on speech protected under the First Amendment. Brief for Petitioner at 28. The United States argues that Subsection (iv) has a “plainly legitimate sweep” because it prohibits specific crimes that involve only conduct or unprotected speech. Id. at 28–29. For example, the United States contends, Subsection (iv) has previously been used against actors who sold fraudulent documents to unlawfully present aliens, assisted aliens in entering the country unlawfully, misleadingly lured aliens into the country for work, and participated in smuggling-related activities. Id. at 29–30. The United States thus argues that because many prosecutions under Subsection (iv) “involve only “nonexpressive conduct,” they do not implicate the First Amendment. Id. at 30. While the United States recognizes that some facilitative conduct is achieved partially or entirely through speech, such as speech that “encourages” an alien to stay in the country, the United States maintains that there is still no First Amendment violation in those cases because that speech is not protected under the First Amendment. Id. at 31. According to the United States, Congress can permissibly restrict speech that is “intended to induce illegal activities.” Id. Specifically, the United States argues that courts have long considered the First Amendment as being inapplicable to laws that criminalize speech that encourages specific crimes. Id. If this were not the case, the United States warns, then all speech used in furtherance of a crime would be immune from prosecution, even speech that is “an integral part” of criminal conduct. Id. at 31–32.
The United States further argues that even if Subsection (iv) could hypothetically be applied to traditionally protected speech—like an attorney’s advice that a client stay in the country while contesting removal—it has never actually been used to prosecute this type of protected speech. Id. at 32–33. The United States additionally argues that Subsection (iv) does not prohibit abstract or generalized advocacy of illegality because the “induce[ment]” or “encourage[ment]” must be directed at a particular, identifiable undocumented immigrant and must be carried out by the actor for “commercial advantage or private financial gain.” Id. at 34–36. The United States thus argues that these requirements narrow the scope of Subsection (iv) such that it does not penalize speech protected by the First Amendment. Id.
In contrast, Sineneng-Smith argues that Subsection (iv) has a sweeping scope and primarily functions to criminalize speech protected by the First Amendment. Brief for Respondent at 22. Sineneng-Smith claims that the United States’ examples of crimes that prohibit conduct and unprotected speech are already covered by other provisions of Section 1324(a), and therefore Subsection (iv) functionally criminalizes only protected speech. Id. at 23. For example, Sineneng-Smith asserts, the harboring provision of Section 1324(a)(1)(A)(iii) encompasses the same “aiding and abetting” conduct that Subsection (iv) targets: conduct that substantially facilitates an undocumented immigrant’s remaining in the United States. Id. at 23–24. Sineneng-Smith argues that the harboring provision also covers acts of “providing fraudulent documents and identification information,” and therefore Subsection (iv) is redundant to regulate this conduct as well. Id. at 24. Sineneng-Smith additionally argues that Subsection (iv) is not necessary to target “smuggling activities,” as the United States contends, because such activity is likewise covered by the harboring provision’s prohibition on assisting in the unlawful transportation or harboring of undocumented persons. Id. at 25. Sineneng-Smith further claims that Subsection (iv) is unnecessary to prohibit those who assist in an immigrant’s unlawful entry into the country or who misleadingly lure undocumented immigrants to the United States because this activity is already regulated under Section 1324(a)(1)(A)(i) and (ii), which prohibit bringing or transporting undocumented persons into the country through unlawful means. Id. Sineneng-Smith thus concludes that Subsection (iv) does no independent work that is not covered by the statute’s surrounding provisions, other than to criminalize protected speech. Id. at 23.
Sineneng-Smith further argues that the sweeping scope of Subsection (iv) could potentially criminalize and chill traditionally protected speech that is often employed by a wide array of actors, including immigration lawyers, advocates, teachers, religious leaders, and physicians. Id. at 35–37. Sineneng-Smith also contends that Subsection (iv) prohibits more generalized advocacy of illegality because it is not meaningfully narrowed by Section 1324(a)(1)(B)(i), which imposes a prison sentence of up to ten years or a fine if a person violates Subsection (iv) for the purpose of “commercial advantage or private financial gain.” Id. at 40. Specifically, Sineneng-Smith argues that since Subsection (iv) can be charged separately from Section 1324(a)(1)(B)(i)—which is what happened in Sineneng-Smith’s case—Subsection (iv) is not always narrowed by it. Id.
DOES THE STATUTE CHILL PROTECTED SPEECH?
The Immigration Reform Law Institute (“IRLI”), in support of the United States, argues that because Subsection (iv) is designed to criminalize conduct it does not chill protected speech. Brief of Amicus Curiae The Immigration Reform Law Institute (“IRLI”), in support of Petitioner at 12. The IRLI claims that Subsection (iv) cannot reasonably be expected to chill protected speech any more than other statutes that criminalize the encouragement of illegal activity, such as a statute making it illegal to encourage someone to rob a bank. Id. The IRLI accordingly asserts that Subsection (iv) does not criminalize the hypotheticals discussed by the Ninth Circuit, such as where a mother encourages her undocumented child to remain in the country. Id. at 13. According to the IRLI, Subsection (iv) does not reach such speech because the speaker would not have been acting for commercial benefit or financial gain. Id. at 14. The IRLI similarly argues that Subsection (iv) does not have a chilling effect on speech that is coupled with acts of “pure advocacy,” such as where people participate in protest marches. Id. In that case, explains the IRLI, there is also no motive of financial gain and the advocacy is not meant to encourage or induce the illegal immigration of any particular individual. Id.
The Rutherford Institute et al., in support of Sineneng-Smith, responds that Subsection (iv)’s breadth undesirably chills protected speech. Brief of Amicus Curiae Rutherford Institute et al., in support of Respondent at 15. The Rutherford Institute claims, for example, that Subsection (iv) is broad enough that it criminalizes the encouragement of civil disobedience. Id. As a result, the Rutherford Institute contends that the government could severely impede social protest, thereby harming citizens who seek to raise awareness of injustice and inequality. Id. The Rutherford Institute further argues that criminalizing not just the act of civil disobedience itself, but also speech promoting civil disobedience, cuts against the First Amendment’s very purpose: to protect those who speak out to challenge potentially unjust laws. Id. at 16. The Rutherford Institute asserts that civilly disobedient protesters such as Henry David Thoreau, Dr. Martin Luther King Jr., and women’s suffrage leaders brought about significant social change by taking the exact action that the statute seeks to criminalize, namely, encouraging citizens to break unjust laws. Id. at 18–19, 21. Without encouragement of civil disobedience, the Rutherford Institute concludes, citizens cannot push for social change. Id. at 30.
EFFECT ON PROFESSIONAL IMMIGRATION ADVICE AND GENERAL ADVOCACY
The United States asserts that Subsection (iv) does not present a “realistic danger” of stifling professional immigration advice or general immigration advocacy, pointing out that there are no instances where Subsection (iv) has actually been used to prosecute such speech. See Brief for Petitioner at 33–34. The United States implies that, while Subsection (iv) might be read as literally applying to such speech, it “cannot sensibly be read” to be so broad. Id. at 35. To that end, the United States explains, a lawyer who informs an undocumented immigrant that he or she is unlikely to be prosecuted for remaining in the country illegally does not run afoul of Subsection (iv). Id. at 35. The United States points out that such legal advice comports with the Model Rules of Professional Conduct, which provide that a lawyer may “discuss the legal consequences of any proposed course of conduct with her client.” Id. The United States likewise claims that it is perfectly lawful to post on social media advocating for immigration law reform, implying that it is not realistic to read the statute to apply to such behavior. Id. Invalidating the Subsection (iv), concludes the United States, would only serve to eliminate the statute’s “numerous legitimate applications.” Id. at 36.
Immigration Representatives and Organizations (“Immigration Representatives”), in support of Sineneng-Smith, argue that Subsection (iv) unjustly criminalizes immigration advice and hampers the U.S. Immigration System. Brief of Amicus Curiae Immigration Representatives and Organizations (“Immigration Representatives”), in support of Respondent at 5, 19. The Immigration Representatives assert that the statute’s overbreadth criminalizes non-fraudulent speech with no exemptions for truthful immigration advice concerning a valid government program. Id. at 6‒8. According to the Immigration Representatives, the legal system relies on professionals being able to provide competent advice in order to administer justice fairly. Id. at 19. The need for competent legal advice is particularly acute in the context of immigration law, the Immigration Representatives continue, because immigration law is highly complex. Id. The Electronic Frontier Foundation (“EFF”) agrees, claiming that Subsection (iv)’s breadth will also hinder the speech of online organizations that provide services to immigrants. Brief of Amicus Curiae Electronic Frontier Foundation (“EFF”), in support of Respondent at 6. The EFF argues that even the speech of organizations such as the ACLU, which provides accurate information to immigrants regarding their legal rights, can be criminalized under Subsection (iv). Id. at 8. As a result, the EFF asserts, the Subsection (iv) will limit the speech of numerous actors who seek to “give hope or courage” to undocumented immigrants in the United States. Id. at 9.
- Ilya Shapiro, Trevor Burrus, & Michael Collins, United States v. Sineneng-Smith, Cato Institute (Jan. 22, 2020).
- Lorelei Laird, The Supreme Court May Criminalize Immigration Advocacy, Slate Magazine (Nov. 18, 2019).