On Tuesday the Supreme Court heard oral arguments in United States v. Sineneng-Smith. The Court granted certiorari last October. Evelyn Sineneng-Smith challenged a law that criminalizes encouraging or aiding in illegal immigration. She was convicted of bringing persons to the US illegally through fraudulent use of the “Labor Certification” program which expired in 2001.
The arguments centered on whether the law violated the First Amendment since the law prohibits anyone to “encourage” or “induce” illegal immigration. Sineneng-Smith claims that the language of the statute is too broad and restrains speech too much. Chief Justice Roberts asked the government whether a granddaughter who says, knowing her grandmother was in the country illegally, she “hopes her grandmother will stay in the US” would violate the law. The government responded that the law was to prevent criminal conspiracies and that the scope of the law was narrower than what Roberts posited.
Justice Sotomayor questioned why the statute was necessary when Sineneng-Smith would have been convicted under regular mail fraud laws. The government responded that the jail time for the charges is different and that, unlike mail fraud, this statute also covers spoken statements. The government also struggled to define “encourage” when questioned by Justice Alito on its meaning in the statute. The government’s counsel kept attempting to explain it but never seemed to clarify what the meaning was in a way that was satisfactory to the Justices.
Sineneng-Smith articulated that if the word “encourage” was to be replaced with “solicit” then there would be clarity but the law would still be invalid because it singles out a particular type of solicitation. The Court pushed back, pointing out that there have been other laws that single out particular types of behaviors, such as liquor laws.