Inducing illegal immigration should be a crime, 25 state attorneys general tell Supreme Court

The attorneys general of 25 states have filed a petition with the U.S. Supreme Court asking it to protect a federal law that’s been used to prosecute those who “encourage” or “induce” illegal immigration.

The U.S. Supreme Court is scheduled to hear oral arguments in United States v. Helaman Hansen on March 27. The case is on appeal from the U.S. Court of Appeals for the Ninth Circuit.

The coalition led by Montana Attorney General Austin Knudsen is urging the Supreme Court to reverse a Ninth Circuit Court of Appeals ruling that struck down a part of 8 U.S. Code, which the federal government has used to prosecute illegal immigration-related cases.

At issue is whether the federal prohibition on “encouraging” or “inducing” unlawful immigration for commercial advantage or private financial gain violates the First Amendment of the U.S. Constitution.

Helaman Hansen’s business involved advising foreign nationals who were illegally in the U.S. on how to obtain U.S. citizenship for a fee. He was convicted and sentenced for violating federal law, including on two counts of encouraging or inducing illegal immigration for private financial gain under 8 U.S.C. § 1324(a)(1)(A)(iv) (the “encouragement provision”) and (B)(i).

The encouragement provision of 8 U.S.C. makes it a felony to “encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard that such coming to, entry, or residence is or will be in violation of law.” Violating it carries a maximum penalty of five years in prison, which can be increased to a maximum of 10 years when the violation is committed “for the purpose of commercial advantage or private financial gain.”

In its ruling, the Ninth Circuit applied what’s known as the “overbreadth doctrine,” which allows a federal court to strike down a statute if it believes it would violate the First Amendment in a substantial number of other cases. In this case, the court held that enforcing these provisions “chills free speech.”

Prior to Hansen’s ruling, in United States v. Sineneng-Smith, the Supreme Court unanimously reversed a Ninth Circuit decision that struck down the same provisions. It did so on procedural grounds, not on the merits of the case. Hansen’s case brings before the court the constitutional issue.

The Ninth Circuit used a “strained textual analysis of 8 U.S.C. § 1324(a)(1)(A)(iv)’s criminal prohibition on encouraging or inducing noncitizens to unlawfully enter or reside in the United States,” the AGs argue, which “invalidated that law on the grounds that it is unconstitutionally overbroad.” If it isn’t overturned, they argue, the Ninth Circuit’s ruling “will impede the enforcement of criminal immigration laws nationwide, leading to significant adverse consequences for the Amici States.”

The Ninth Circuit’s “strained analysis,” the AGs argue, “greatly expands this doctrine’s reach.” Not only does it violate separation of powers between federal and state governments, they argue, it also impedes the states’ ability to enforce their own criminal laws against encouraging or inducing unlawful conduct.

State criminal laws would be vulnerable to broad constitutional challenges, the AGs argue, undermining the states’ constitutional power to create and enforce their respective criminal codes, which could aid violent criminals from avoiding prosecution.

The brief points to laws in all 50 states prohibiting individuals from “encouraging” or “inducing” certain crimes, arguing the terminology has long been understood in criminal law. The Ninth Circuit’s decision “threatens widespread uncertainty in the states’ ability to enforce their criminal laws that use these terms,” they maintain.

In Montana, for example, laws governing solicitation, prostitution, and sexual abuse of children would be impacted. In Texas, capital felony or felony of the first degree and smuggling of persons, including concealing, harboring or shielding victims from detection, would be impacted, the brief cites as examples.

The ACLU, counsel for the Office of the Federal Defender for the Eastern District of California, argues the case is about “whether the First Amendment permits criminal punishment of speech that merely encourages a noncitizen to remain in the United States, without any requirement of intent to further illegal conduct, and when remaining in the United States unlawfully is itself not a crime.”

However, 8 U.S.C. § 1325, which governs “improper entry by an alien” into the U.S. states, makes it a crime to unlawfully enter the United States, punishable with a fine and imprisonment; 8 U.S.C. § 1326 governs the “reentry of removed aliens,” specifying felony charges that can carry between 10 and 20 years in prison.

The ACLU maintains 8 U.S.C.’s encouragement provision violates the First Amendment “because it criminalizes a wide swathe of constitutionally protected speech.” It alleges if it stands, it would make it a crime “for a grandmother to say she doesn’t want her undocumented grandchild to leave her,” for a doctor to advise a patient with an expiring student visa about medical treatment, for a “priest to inform a noncitizen parishioner whose employment authorization is ending” about resources, and for an attorney to counsel “an out-of-status noncitizen” about how to obtain lawful permanent resident status.

Among other requirements, the AGs argue the overbreadth claim “should require a showing more than a hypothetical danger of chilling protected speech.”