Federal appeals court: law against encouraging unlawful immigration a free speech violation

The US Court of Appeals for the Ninth Circuit on Thursday struck down a law prohibiting speech that encouraged undocumented immigrants to “enter or reside” in the US. The court held that the law was an unconstitutional infringement on the freedom of speech.

The Ninth Circuit found that 8 USC § 1324(a)(1)(A)(iv), barring the encouragement of unlawful immigration, was overbroad and swept in a substantial amount of speech otherwise protected by the First Amendment. Examples of potentially prohibited protected speech include “encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to undocumented immigrants.”

The government argued that the law only covered aiding and abetting unlawful immigration and did not encroach on free speech. But the surrounding provisions already addressed aiding and abetting, as well as other conduct associated with facilitating unlawful immigration. Applying statutory construction principles against redundancies, the court concluded that this context “le[ft] little room for subsection (iv) to cover additional actions.”

The challenge to subsection (iv) arose from the prosecution of Helaman Hansen of Americans Helping America (AHA), which operated a scheme to defraud undocumented immigrants by offering to adopt them as a step towards naturalization in exchange for large sums of money. There is no path to citizenship through “adult adoption.” Hansen was charged with two counts under subsection (iv). Thursday’s decision upheld his other convictions but struck down his sentence for encouraging unlawful immigration.