Ninth Circuit: Law Barring People From Encouraging Illegal Aliens to Enter U.S. Is Unconstitutional

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Posted: Dec 04, 2018 7:50 PM
Ninth Circuit: Law Barring People From Encouraging Illegal Aliens to Enter U.S. Is Unconstitutional

The Ninth Circuit Court of Appeals on Tuesday struck down a law that makes it a crime to "encourage or induce” someone to come to the United States illegally. 

According to the Court, the law violates people's First Amendment rights because "it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimacy prohibited conduct and unprotected expression."

"We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that 'encourage' does not mean encourage, and that a person cannot 'induce' another with words," Judge A. Wallace Tashima wrote in the Court's opinion. "At the very least, it is clear that the statue potentially criminalize the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – 'I encourage you to stay here.'"

Judges Marsha Berzon and Andrew Hurwitz agreed with the opinion. And, of course, all three of them were appointed by Democrats.

The case, United States of America v. Evelyn Sineneng-Smith, was brought about when Sineneng-Smith, a former immigration attorney in San Jose, California, told her clients in the U.S. on visas that they would apply for permanent residence by applying for labor certification from Department of Labor. 

According to a 2015 press release from Immigration and Customs Enforcement, Sineneng-Smith charged each client $5,900 to file the DOL certifications, despite knowing that her clients wouldn't qualify for the benefit under current law.

She was eventually found guilty and sentenced to 18 months in jail as well as a $15,000 fine for "encouraging illegal immigration for private financial gain, mail fraud, and willfully contributing to a fraudulent tax return."