It Violates the First Amendment to Criminalize Immigration Advocacy or Giving Advice to Illegal Immigrants – Cato Institute

Posted: January 24, 2020 at 6:48 am

Regardless of the immigration enforcement practices at any given time, there are people and organizations who urge illegal immigrants to stay in this country and wait for political change. Likewise, immigrants themselves will take proactive steps in an attempt to adjust their status, to come out of the legal shadows.

Lawyers will advise some immigrantsquite correctly, in many casesthat remaining in the country illegallywill grant them certain constitutional or statutory protections that are unavailable outside the United States. But these advocates and attorneys may be tonguetied by afederal law that criminalizes encourage[ing] an alien to reside in the United States, knowing or in reckless disregard of the fact that such residence is in violation of law. The potential sentence for this crime could be increased if the encouragement was motivated by financial gain, such as attorneys fees or charitable donations.

Evelyn SinenengSmith is an immigration consultant in California who dealt with many unlawfully present aliens in the Filipino community. She took advantage of certain clients by taking their money to apply for afederal program that would normalize their status, while knowing that this program was not open to them. She was prosecuted for and convicted of that fraud; the government had her dead to rights and thats the end of that story.

But the government further alleged that Ms. Sineneng-Smiths advice influenced her clients to stay in the country illegally. She was thus also charged and convicted for encouraging aliens to remain in the United States unlawfully, the sentence for which was enhanced by afinding that she did so for financial gain. The U.S. Court of Appeals for the Ninth Circuit reversed her conviction, ruling that the statute violated the First Amendment. The Supreme Court agreed to consider the case.

Under the First Amendment, Congress cannot criminalize speech. Certain types of speech, howeverlike threats, obscenity, incitement of violence, and speech integral to criminal conductare not protected by the First Amendment. Adefendant whose own speech is not protected may nevertheless challenge her conviction on the ground that the law is overbroad and sweeps in others protected speech.

A law is overbroad when the unprotected speech or actions it legitimately targets are eclipsed by the protected speech that could be targeted. In Ashcroft v. Free Speech Coalition (2002), the Supreme Court explained that overbreadth challenges are necessary because severe penalties for violating an unconstitutional law are enough to deter (chill) lawabiding citizens from speaking, even if they would eventually win achallenge to their convictions.

Cato has filed an amicus brief supporting Ms. SinenengSmith in the Supreme Court. Our brief counters part of the governments brief, which argues that, even if the statute is overbroad, its saved by the fact that additional elements of financial gain need to be proven for asentence enhancement. We argue that the sentence enhancement is irrelevant to the chilling effect of the underlying statute and, even if the analysis is limited to encouragement motivated by financial gain, the statute still criminalizes protected commercial speech.

The Supreme Court will hear oral argument in United States v. SinenengSmithon February 25.

It Violates the First Amendment to Criminalize Immigration Advocacy or Giving Advice to Illegal Immigrants - Cato Institute

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