Is Encouraging Unauthorized Immigration Free Speech or a Felony?

WASHINGTON — When the Supreme Court hears arguments this spring on the constitutionality of a curious law that makes it a crime to “encourage” unauthorized immigrants to come to or stay in the United States, the justices may have a sense of déjà vu.

They heard arguments on the same question three years ago, with several of them suggesting that the law, enacted in 1986, violated the First Amendment by turning commonplace statements into felonies.

Chief Justice John G. Roberts Jr. asked about “a grandmother whose granddaughter is in the United States illegally.” Would it be a crime, he wanted to know, if she told her granddaughter that she missed her and encouraged her to stay?

Justice Brett M. Kavanaugh imagined a charity that gave food to “people who can’t get it elsewhere and they know that the people taking advantage of that are here unlawfully.” Was the charity committing a felony?

Justice Stephen G. Breyer wondered about “the landlady who says to the person, ‘You always have a place here,’ knowing that that person is illegally in the United States.”

Justice Sonia Sotomayor worried that even sound legal advice could be covered by the law.

Two months later, the court unanimously decided not to rule in the case. Justice Ruth Bader Ginsburg, in one of her last opinions, said the appeals court had tried too hard to reach out to decide the First Amendment question, which had not been raised by the parties, including by soliciting friend-of-the-court briefs.

“The appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion,” Justice Ginsburg wrote.

That left the First Amendment question for another day. It has arrived.

Last month, the court agreed to decide a case arising from a prosecution under the same law, one in which the defendant had challenged the law on First Amendment grounds without judicial prompting.

The defendant, Helaman Hansen, was convicted of violating the law, along with mail and wire fraud, for taking large fees to help undocumented immigrants obtain citizenship through adult adoption. It was a hoax, a panel of the U.S. Court of Appeals for the Ninth Circuit said.

“Hansen admitted to federal agents that no one had achieved U.S. citizenship through the program,” Judge Ronald M. Gould wrote for the panel in February, “and it is not possible to become a U.S. citizen through adult adoption.”

The panel upheld Mr. Hansen’s fraud convictions, which resulted in 20-year prison sentences, but it reversed his convictions under the 1986 law for encouraging immigrants to overstay their visas, which would have come with 10-year sentences to be served at the same time as the sentences for fraud.

The 1986 law, Judge Gould wrote, was unconstitutional. Under it, he wrote, “many commonplace statements and actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States.” All it would take to turn an utterance into a felony, he wrote, was “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States.’”

Other statements that would violate the law, Judge Gould wrote, included ones “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.”

In July, a divided three-judge panel of the 10th Circuit, in Denver, joined the Ninth Circuit in striking down the law, saying that it was surely violated scores of times every day.

Later that month, the Ninth Circuit turned down the government’s request that a larger panel of the court rehear Mr. Hansen’s case, over the dissents of several judges. One of them, Judge Patrick J. Bumatay, said the key word in the 1986 law — “encourages” — was a term of art that required complicity in a crime and did not apply to casual exchanges.

It is true that prosecutions under the law have tended to be limited to cases concerning plainly criminal conduct by unsympathetic defendants. But there is at least one possible exception.

In 2012, a Massachusetts woman, Lorraine Henderson, was convicted of hiring an unauthorized immigrant to clean her home and offering general and sometimes unreliable advice about immigration law.

In that case, Judge Douglas P. Woodlock, of the Federal District Court in Boston, wrote that the “plain and unadorned language” of the 1986 law “can be read to cast a wide net over those who interact with illegal aliens by offering employment.”

In urging the Supreme Court to hear the new case, United States v. Hansen, No. 22-179, the Biden administration said the Ninth Circuit’s decision striking down the law was “a substantial impediment to the nationwide administration of the immigration laws.”

When the justices hear arguments in the coming months, they will explore how much encouragement violates the law.

The last time around, that point troubled Justice Samuel A. Alito Jr.

“If the defendant just says, well, ‘I encourage you to stay here,’ that might not be enough,” he said. “But if the defendant says it 10 times in a forceful voice, that would be a violation?”

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