The US Court of Appeals for the Ninth Circuit on Tuesday struck down a federal law that prohibits “encouraging” or “inducing” unlawful immigration on First Amendment grounds.
The court examined whether the law “permits a felony prosecution of any person who ‘encourages or induces an alien to come to, enter, or reside in the United States’ if the encourager knew, or recklessly disregarded ‘the fact that such coming to, entry, or residence is or will be in violation of law.'”
In its decision, the court focused on interpreting “encourages” or “induces” before finding the statute in violation of First Amendment free speech protections. The court found the statute to be: “unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression.”
The court requested amicus briefs before coming to their decision. One brief expressed concerns over organizations and individuals being prosecuted for:
moral and ethical advocacy, such as providing objective legal advice with respect to immigration law, explaining immigration procedures, laws and status, expressing views about immigration policy, and even advocating on behalf of immigrants regarding education, employment and housing conditions. Criminalizing such conduct and speech cannot be tolerated under the First Amendment and fundamental notions of fairness and public welfare.
The case was on appeal on behalf of Evelyn Sineneng-Smith, who was convicted of three counts of encouraging or inducing unlawful immigration for private financial gain and three counts of mail fraud in 2010. Singeneng-Smith operated an immigration consultation business for Filipino health care worker immigrants and fraudulently encouraged them to apply for permanent residence through the expired Labor Certificate Process. She collected $3.3 million dollars from clients between August 2004-2007.