Case No. 19-67 | 9th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
This case is centered around a federal criminal provision, codified at 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), that prohibits “encouraging or inducing illegal immigration for commercial advantage or private financial gain.” Petition for a Writ of Certiorari at (I), United States v. Sineneng-Smith, No. 19-67 (U.S. filed July 12, 2019). The Court is asked to determine the constitutionality of this provision on its face.
The main contention between the parties is whether the provision is unconstitutionally overbroad on its face. The Ninth Circuit held in favor of the Respondent, who argued the provision is so broad that it criminalizes protected speech under the First Amendment. The Petitioner, the United States, argued the Ninth Circuit misapplied an as-applied challenge principle to a facial challenge case.
Both parties argue the text, context, and history are on their side. The key for the textual argument is whether the verb “encourage” or “induce” refers to facilitation and solicitation, or encompasses broader speech. The United States argues that in the criminal law context, these words have a narrower meaning evidenced by Congress’s first incorporation of them into statutory schemes and other elements of crime. On the contrary, the Respondent focuses on the general use of the term, including the use by the United States in other contexts. It also points out differences between this provision and conventional “aiding-and-abetting” provisions.
The sweep of the provision is another key issue. The United States emphasizes how non-speech acts like selling a fake passport are criminalized under this provision, and argues the Ninth Circuit failed to identify a realistic chilling effect. The Respondent replied by pointing to the United States’ acknowledgement that this provision was not redundant of other statutory schemes. The Respondent argues that the expansion was to include speech.
Lastly, the United States highlights the financial gain requirement that arguably narrows the scope of the provision, and argues the First Amendment does not categorically protect speech that “facilitates or solicits a civil violation of the law.” Brief for the United States at 15, United States v. Sineneng-Smith, No. 19-67 (U.S. filed Dec. 2, 2019). The Respondent instead suggests alternative challenges such as content and viewpoint discrimination, and vagueness.
Aside from these legal arguments, the two parties tell two very distinct stories: an immigration consultant who deceived her clients and the government versus an immigration consultant who helped employers and noncitizen employees in good faith. It will be interesting how the Court finds the facts and how the facts affect the Court’s decision, if at all.