Ban On ‘Inducing’ Illegal Immigration Before Supreme Court

Whether the criminal prohibition against encouraging or inducing illegal immigration for financial gain violates the First Amendment will be determined by the U.S. Supreme Court this term.

For five years, Evelyn Sineneng-Smith, through her immigration consulting business, touted the supposed benefits of a discontinued Department of Labor certification program to aliens she knew to be ineligible. She charged each client more than $6,000 to file futile applications. In so doing, Sineneng-Smith “induced” her defrauded clients into remaining in the United States.

A federal grand jury indicted Sineneng-Smith on charges including three counts of encouraging or inducing illegal immigration for financial gain, in violation of 8 U.S.C. 1324. At trial, the district court clarified in an order that Sineneng-Smith was “not being prosecuted for making applications” to government agencies, but instead for entering into retainer agreements with illegal aliens after fraudulently representing to them that her efforts could lead to legal permanent resident status. Following a jury trial, Sineneng-Smith was convicted on two of the three Section 1324 counts. She then appealed her conviction to the U.S. Court of Appeals for the Ninth Circuit.

After briefing and oral argument, the Ninth Circuit directed the parties to submit additional briefing pertaining to the constitutionality of Section 1324. The court subsequently held part of Section 1324 impermissibly overbroad in violation of the First Amendment and set aside Sineneng-Smith’s Section 1324 convictions. Arguing that the Ninth Circuit’s holding prohibiting any prosecution under Section 1324 contradicts the Third Circuit, the United States petitioned the Supreme Court for a writ of certiorari.

In support of the petition, the Department of Justice argued Section 1324 is constitutional because it applies to conduct in addition to speech, analogizing Section 1324 to the general federal ban on inducing and abetting crimes. And, as the Ninth Circuit itself held, “[i]t is indisputable that one can encourage or induce with words, or deeds, or both.” The government therefore argued that Section 1324’s “applications to conduct, rather than speech, present no First Amendment concerns.” Further, citing Supreme Court precedent, the government argued it is not an abridgment of freedom of speech to prohibit conduct “merely because the conduct was in part initiated, evidenced, or carried out by means of language.”

The government additionally argued that Section 1324’s “financial-gain element alone eliminates most, if not all, of the Ninth Circuit’s concerns” because “commercial advantage or private financial gain” is not “a normal feature of abstract advocacy.” The Ninth Circuit erred, the government argued, by treating Section 1324’s financial-gain requirement as “irrelevant” to the overbreadth analysis.

In opposition, Sineneng-Smith defended the Ninth Circuit’s holding and argued the “encouragement” provision at issue rarely used and does not warrant review. Moreover, she argued “the government’s attempt to salvage such a provision only underscores that its interest in the statute is not prosecutorial, but rather in chilling expression the government does not like.”

The Supreme Court granted the government’s petition on October 4, 2019, and the parties are now fully briefing the case. Oral argument before the Supreme Court will occur in the Spring term. FedAgent will post an update on United States v. Sineneng-Smith when the Supreme Court decides the case.

All Supreme Court filings in United States v. Sineneng-Smith may be reviewed here. 


This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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