United States v. Hansen

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.