Are 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), which ban encouraging or inducing unlawful immigration for commercial advantage or private financial gain, unconstitutionally overbroad in violation of the First Amendment?
This case asks the Court to analyze 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), to determine whether statutes criminalizing “encouragement or inducement” of immigration violations violate the First Amendment. The United States argues that subsection (A)(iv) is constitutional because solicitation and facilitation of illegal actions is not protected under the First Amendment. The United States further states that subsection (A)(iv) primarily punishes conduct rather than speech, and that subsection (A)(iv) cannot be challenged by an individual who was prosecuted under § 1324(a)(1)(B)(i). Hansen counters that subsection (A)(iv) unconstitutionally prohibits abstract advocacy of illegal action. Hansen also argues that subsection (A)(iv) punishes large amounts of protected speech in addition to conduct, and that Hansen was convicted under both subsection (A)(iv) and subsection (B)(i). This case touches on important questions regarding free speech, immigration advocacy, and state criminal statutes.
Questions as Framed for the Court by the Parties
Whether the federal criminal prohibition against encouraging or inducing unlawful 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 on First Amendment overbreadth grounds.
Helaman Hansen started his own immigration advising service and began to charge individuals for his services in October of 2012. United States v. Hansen at 1105. During the course of the program, Hansen would provide advice to undocumented immigrants on how to obtain United States citizenship. Id. at 1105. A key component of the program, at Hansen’s instruction, was that citizenship would be granted to undocumented immigrants if they were adopted by a United States citizen and completed some other tasks. Id. However, immigrants cannot become U.S. citizens through adult adoption, and no immigrants had become citizens through Hansen’s program. Id. Nonetheless, Hansen continued to charge individuals for this advice. Id. In addition, Hansen encouraged at least two undocumented individuals to overstay their visas. Id. Hansen provided his services to roughly 471 undocumented immigrants between October 2012 and January of 2016, with the immigrants’ costs ranging from $550 to $10,000 each and profits for Hansen exceeding one million dollars. Id. at 1106.
The State brought charges against Hansen in United States District Court for the Eastern District of California, including multiple counts of wire fraud, mail fraud, and two counts of “encouraging or inducing unlawful immigration for private financial gain” under 8 U.S. § 1324(a)(1)(A)(iv) and (B)(i) (“subsections (A)(iv) and (B)(i)”). Id. at 1105–06. In the spring of 2017, a jury in the district court found Hansen guilty of wire fraud, mail fraud, and the two counts of inducing unlawful immigration. Id. at 1106. However, in November of 2017, Hansen moved to dismiss the counts for encouraging or inducing unlawful immigration for private financial gain under subsections (A)(iv) and (B)(i), claiming that the statute section was overbroad, overly vague, and, when applied in his case, unconstitutional. Id. The district court denied Hansen’s motion and sentenced Hansen to 240 months for each count of mail and wire fraud, and 120 months for each count of encouraging unlawful immigration for private financial gain, to be served concurrently. Id.
Hansen appealed his convictions to the United States Court of Appeals for the Ninth Circuit, claiming that the district court erred in failing to dismiss his convictions for the two counts under subsection (A)(iv). Id. at 1106. While Hansen’s appeal was pending before the Ninth Circuit, the Ninth Circuit ruled on a separate case also calling into question statute section subsection (A)(iv), which Hansen had been convicted under. Id. at 1107. In that separate case, United States v. Sineneng-Smith, the Ninth Circuit ruled that the statute section pertaining to encouraging unlawful immigration for private financial gain was, in fact, overbroad. Id. Therefore, Hansen incorporated this argument into his appeal. Id. However, the Ninth Circuit’s holding in Sineneng-Smith was reversed by the Supreme Court for a procedural issue absent from Hansen’s case. Id. Still, the Ninth Circuit found Sineng-Smith persuasive even though it was vacated on other grounds. Id. The Ninth Circuit ultimately vacated Hansen’s two convictions under subsection (A)(iv), holding that subsection (A)(iv) was overbroad and unconstitutional, and remanded to the district court for resentencing. Hansen at 1111. The United States then petitioned the Supreme Court of the United States, and was granted certiorari on December 9, 2022. Brief for Petitioner, United States at 1.
STATUTORY INTERPRETATION OF § 1324(A)(1)(A)(IV)
The United States argues that 8 U.S.C. 1324(a)(1)(A)(iv), which criminalizes “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States,” does not violate the First Amendment because it only bars the solicitation or facilitation of illegal acts. Brief for Petitioner, the United States at 20. The United States notes that solicitation and facilitation of illegal acts is not protected by the First Amendment, because it is speech “integral to criminal conduct.” Id. at 41. The United States maintains that, in the criminal law context, “encourage” and “induce” are terms of art, which have been historically understood to require active encouragement of specific acts. Id. at 21. The United States specifically notes that “encourage” and “induce” are used in many state and federal statues to define clearly illegal crimes like solicitation, facilitation, and aiding and abetting. Id. at 22–24. The United States further points out that Congress included “assist” and “solicit” in earlier versions of subsection (A)(iv). Id. at 26. Thus, the United States reasons, the intent of Congress was to criminalize intentional solicitation and facilitation of illegal immigration, not speech addressed to the general public. Id. The United States posits this interpretation is supported by subsection (A)(iv)’s requirement that defendants knew of or recklessly disregarded the fact that an immigrant’s entrance or continued presence in the U.S. was illegal. Id. at 27. The United States asserts that this dovetails with the intent required for criminal accomplices. Id. at 28. Finally, the United States argues reading § 1324 broadly would violate the principle of constitutional avoidance, under which states courts should, when possible, read statutes narrowly to avoid constitutional issues. Id. at 35. Thus, the United States asserts, the Court should avoid raising First Amendment problems by interpreting subsection (A)(iv) as a statute about solicitation and facilitation, which are not protected by the First Amendment. Id.
In opposition, Hansen alleges that § 1324(a)(1)(A)(iv) is not a solicitation or facilitation statute, because it sweeps broader than solicitation or facilitation and unconstitutionally encompasses protected First Amendment speech. Brief for Respondent, Helaman Hansen at 14. Hansen emphasizes that, under Brandenburg v. Ohio, the First Amendment protects individuals who advocate lawbreaking in the abstract: the only exception is when speech is geared towards and likely to produce “imminent” illegal action. Id. at 18. Hansen asserts that the United States cherrypicked its definitions of “encourage” and “induce,” and ignored the words’ obvious meanings. Id. at 25. Hansen alleges that “encourage” and “induce,” by definition, include speech that merely influences people and makes it more likely they will stay in the United States. Id. at 16. Thus, Hansen posits, subsection (A)(iv) criminalizes clearly protected speech, such as doctors telling patients that staying in the United States will make treatment easier. Id. Hansen states that, when governments use “encourage” and “induce” to define other crimes, they usually pair them with other verbs to limit their meaning and provide context; by contrast, because subsection (A)(iv) uses “encourage” and “induce” alone, the words must be interpreted on their face. Id. at 36. Hansen stresses that subsection (A)(iv) only requires knowledge or reckless disregard of an individual’s status, not knowledge or intent that an individual will break the law in the near future. Id. at 29–30. Thus, Hansen cautions, § 1324 extends beyond Brandenburg’s exception, which requires both intent and imminence. Id. at 31. Hansen further emphasizes that Congress chose to remove the intent requirement of “willfully or knowingly” encouraging or inducing from the statute in 1986—thus, the Court should not add back in a requirement Congress explicitly removed. Id. at 26, 30. Finally, Hansen states that constitutional avoidance only applies when there are two equally valid interpretations of a statute: because subsection (A)(iv) is clearly not a solicitation or facilitation statute, constitutional avoidance is inapplicable. Id. at 24.
RISK OF PUNISHING SPEECH PROTECTED BY THE FIRST AMENDMENT
The United States asserts that § 1324(a)(1)(A)(iv) is not unconstitutionally overbroad because there is no realistic risk it will impact protected speech. Brief for Petitioner at 36. The United States emphasizes that Hansen’s own actions were constitutionally unprotected, because he was soliciting individuals to remain in the United States as part of his adult-adoption scheme. Id. at 17. Thus, the United States argues, Hansen can only win if he realistically demonstrates the statute will also punish large swaths of protected speech. Id. at 18. Yet, the United States alleges, Hansen provides no examples of times when subsection (A)(iv) was used to prosecute unprotected speech. Id. at 46. Instead, the United States emphasizes, Hansen relies solely on hypotheticals, which cannot by themselves prove a statute is too broad. Id. at 44–45. The United States counters that, in reality, subsection (A)(iv) is predominantly used to prosecute actions left unaddressed by surrounding statutes, such as selling fake immigration papers or assisting smuggling. Id. at 39. The United States points out that the federal government has no statutes criminalizing solicitation in general. Id. at 38. The United States further notes that while immigrants who illegally remain in the United States break the law, illegally remaining is a civil, not criminal, violation; thus, individuals who encourage immigrants to stay cannot be charged under aiding and abetting statutes. Id. Thus, the United States maintains, without subsection (A)(iv), the government could not prosecute people like Hansen, who actively spurred immigrants to break the law—unprotected conduct which can be penalized without infringing on the First Amendment. Id. at 38–39.
Hansen counters that, even if § 1324(a)(1)(A)(iv) prohibits some unprotected speech, the amount is marginal compared to the amount of protected speech it prohibits. Brief for Respondent at 21. Hansen maintains that, when there is a risk the government could misuse a statute, courts cannot trust the government to act responsibly. Id. at 20. Thus, Hansen alleges, speech-related statutes can be overturned even if they are rarely or never used against protected speech. Id. Hansen notes that, when courts judge speech statutes, they must consider if there is a “mismatch” between what the government wishes to criminalize and what the statute actually covers, and whether there are less restrictive ways to achieve that goal. Id. at 22. Hansen maintains that there are narrower ways to criminalize solicitation and facilitation of illegal immigration. Id. For example, Hansen offers, Congress can rephrase subsection (A)(iv) to specifically ban solicitation, or explicitly state defendants must intend to encourage imminent action. Id. at 22, 30. Hansen also argues his actions were already criminalized under federal fraud statutes. Id. at 22–23. Thus, Hansen concludes, the government could achieve its objectives without using a statute that also criminalizes protected advocacy. Id. Finally, Hansen argues, solicitation and facilitation are only unprotected when they are integral to criminal conduct. Id. at 38. Hansen concludes that, since remaining illegally is a civil violation, encouraging immigrants to remain is protected First Amendment speech—and, thus, a statute which criminalizes this speech is presumptively overbroad. Id. at 39, 40, 43.
HANSEN’S ABILITY TO CHALLENGE § 1324(A)(1)(A)(iv)
The United States argues that, even if § 1324(a)(1)(A)(iv) is unconstitutionally overbroad, Hansen is not the correct defendant to challenge the statute. Brief for Petitioner at 48–49. The United States notes that Hansen was prosecuted under § 1324(a)(1)(B)(i), a section of § 1324 that requires not only encouragement or inducement, but encouragement or inducement for “commercial advantage or private financial gain.” Id. at 46. The United States posits that this additional element further limits the breadth of “encouragement” or “inducement” and invalidates most of Hansen’s hypotheticals. Id. at 46–47. Moreover, the United States asserts, because of the financial-gain element, subsection (B)(i) is a distinct crime from subsection (A)(iv). Id. at 48. The United States argues defendants cannot be convicted of one crime, then challenge the conviction based on the constitutionality of a different crime, using hypotheticals only relevant to the different crime. Id. Thus, the United States concludes, Hansen cannot challenge subsection (A)(iv), because it must be challenged by someone actually convicted under the statute. Id. at 47.
Hansen counters that § 1324(a)(1)(B)(i) is not a separate crime from §1324(a)(1)(A)(iv). Brief for Respondent at 32. Instead, Hansen argues subsection (B)(i) is a sentencing enhancement. Id. Hansen states that, in his case, the jury came to two separate conclusions: first, that he was guilty under subsection (A)(iv); and second, that he deserved subsection (B)(i)’s harsher punishment. Id. at 33. Thus, Hansen concludes, he was convicted under subsection (A)(iv) and subsection (B)(i) and can challenge both in court. Id. Hansen further argues that his First Amendment arguments are just as applicable to speech made for financial gain. Id. at 34. Hansen contends that, even with the financial-motive enhancement, subsection (B)(i) still unconstitutionally punishes the speech of professionals like doctors or lawyers, who are often paid to give information to undocumented clients. Id. at 34–35. Thus, Hansen maintains, it makes no difference which section he was convicted under, because both are unconstitutional and overbroad. Id.
INTEGRITY OF THE STATE CRIMINAL JUSTICE PROCESS
Montana et al., writing in support of the United States, contend that finding in favor of Hansen would harm and invalidate state criminal statutes in all 50 states. Brief of Amici Curiae Montana et al., in Support of Petitioner at 7. Montana argues that because a large portion of Hansen’s case rests upon the overbreadth of the statute, namely the words “induce,” and “encourage,” then all state statutes which use the same words would immediately be deemed overbroad. Id. Montana states that this damage would be incredibly widespread, as all 50 states use these statutes. Id. at 8. Furthermore, Montana highlights the fact that the words “induce” and “encourage” are found in incredibly important statutes such as those which prohibit relations with minors and those pertaining to the solicitation of illegal activities. Id. Montana proceeds to point out that numerous state supreme courts have deemed that this language is not overbroad. Id. at 12. Thus, Montana concludes, finding in favor of Hansen would undermine states’ rights to develop and uphold criminal codes. Id. at 9.
City and County of San Francisco, California et al. (“San Francisco”), writing in support of Hansen, contend that to find in favor of the United States in this instance could have unwanted ramifications on state and local governments. Brief of Amici Curiae City and County of San Francisco et al., in Support of Respondent at 8. According to San Francisco, upholding this overly broad language in the statute could criminalize typical speech and policies of state and local government officials who simply want to make their jurisdictions more welcoming for undocumented immigrants. Id. at 9. Additionally, the National Association of Criminal Defense Lawyers and National Association of Federal Defenders (“Criminal Defense Lawyers”), writing in support of Hansen, argue that to find in favor of the United States in this instance would harm the integrity of the criminal justice system within states by hindering legitimate representation of noncitizens. Brief of Amici Curiae National Association of Criminal Defense Lawyers and National Association of Federal Defenders, in Support of Respondent at 14. Criminal Defense Lawyers elaborate that attorneys have a “professional and ethical duty to their clients to provide zealous advocacy” and the “attorneys must be able to advise clients unencumbered by fear of recrimination.” Id.
POTENTIAL CHILLING OF PROTECTED SPEECH
Montana, writing in support of the United States, argues that the overbreadth doctrine, which serves to prevent the chilling of speech, is out of place in this instance. Brief of Montana et. al, at 7. Montana contends that there has been no proposed instance of this specific statute chilling any constitutionally protected speech, and a hypothetical concern of this type of deterrence is insufficient to strike down a statute. Id. at 14. According to Montana, when legislatures write statutes, they are presumed to be embodiments of the people’s will within the bounds of the Constitution. Id. Therefore, Montana contends, when courts determine rulings based on hypotheticals instead of concrete, real world examples, it “short circuit[s] the democratic process.” Id. Montana ultimately asserts that the risk of hypothetically chilling speech does not justify the cost of doing so before there has been any tangible real-world injury. Id.
Religious Organizations, writing in favor of Hansen, contend that construing this statute in favor of the United States would lead to the chilling of protected speech and create confusion about whether the speech is directed at specific immigrants or to the general public. Brief of Amici Curiae Religious Organizations, in Support of Respondent at 24. Even though the statute only prohibits encouragement targeted at specific undocumented immigrants, Religious Organizations are wary that the statute might nevertheless encompass speech directed at a group that includes immigrants or that is put on a public platform like social media. Id. Religious Organizations argue that they engage in many kinds of beneficial and constitutional activity, including protected speech and religious or political activities, that would be chilled if the Court found this statute constitutional. Id. at 24–25. Religious Organizations assert, for example, extremely commonplace humanitarian actions, such as “[p]roviding an undocumented immigrant with food, clothing, and physical shelter” could become a crime under this statute. Id. at 28. Therefore, according to Religious Organizations, the Court should find in favor of Hansen so as to not create a slippery slope of chilling protected and beneficial conduct. Id.
The authors would like to thank Professor Nelson Tebbe for his insights into this case.
- Andrew Chung, U.S. Supreme Court to Consider Prohibition on Encouraging Illegal Immigration, Reuters (Dec. 9, 2022)
- Debra Cassens Weiss, Supreme Court will Consider Ban on Encouraging Illegal Immigration in case of ‘Adult Adoption’ Promoter, ABA Journal (Dec. 12, 2022)
- Supreme Court Takes Case on Immigration Scam Case, Associated Press (Dec. 9, 2022)