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The Supreme Court could criminalize immigration advice and advocacy

  
Via:  Vic Eldred  •  4 years ago  •  8 comments

By:   BY SARAH SHERMAN-STOKES

The Supreme Court could criminalize immigration advice and advocacy
More importantly, the government is wrong that these instances are merely hypothetical. In 2008, Lorraine Henderson was arrested and charged in Massachusetts with violating 8 USC Section 1324 for giving casual legal counsel to her undocumented cleaning lady — robust advice such as “you have to put in paperwork and file” and warning her “you have to be careful ’cause they will deport you.” Henderson was convicted, and though a new trial eventually was granted and the prosecution declined to...

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Today the Supreme Court will hear oral argument on whether a federal statute that criminalizes any person who encourages a non-citizen to come to, or reside in, the United States, should be struck down. If the court holds that the law can stand, the impact could be devastating and far-reaching — potentially criminalizing legal advice by immigration attorneys and the written and spoken words of immigrant advocates and activists.

The chilling effect it would have on non-citizens and their allies would be profound and especially insidious in this political moment of increasing, and increasingly nefarious, anti-immigrant sentiment.

This case centers around the activities of  Evelyn Sineneng-Smith , who ran an immigration consulting business in California serving mostly Filipino immigrants in the health care industry. Sineneng-Smith promised she could provide a pathway to lawful status for these non-citizens through eligibility in a labor certification program. Though Sineneng-Smith knew that they weren’t statutorily eligible for this program, she took their money anyway, and over the course of seven years accumulated millions of dollars in legal fees. In 2010, Sineneng-Smith was prosecuted, and  later convicted , of mail fraud, among other charges. 

Among these additional charges, she was convicted under  8 USC Section 1324 , a 1986 law, added through the Immigration Reform and Control Act ( IRCA ), that makes it a federal crime to “encourage” unauthorized immigration. The statute reads:

“Any person who ... encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law ... shall be punished as provided in subparagraph (B).”

The Ninth Circuit, in a ruling by Judge  A. Wallace Tashima struck down the law , saying that it was too broad — chilling free speech in violation of the First Amendment. Tashima wrote that this law would criminalize “real and constitutionally protected conversations and advice that happen daily.” Indeed, he laid out several examples of conduct that might be prosecuted under this statute: a loving grandmother who urges her grandson to overstay his visa; words on social media encouraging undocumented immigrants to stay in the United States; or an attorney who tells her client she should remain in the United States while contesting her removal.

Perhaps unsurprisingly, the Trump administration thought the historically progressive Ninth Circuit Court of Appeals had gone too far, even though the judge said his examples were not “ a parade of fanciful " hypotheticals. But of course, these are the very kinds of cases that “necessitate hypotheticals” because “legitimate speakers are often cowed by the severe penalties incurred for violating speech prohibitions,” Ilya Shapiro  writes in a brief  for the Cato Institute supporting Sineneng-Smith.
More importantly, the government is wrong that these instances are merely hypothetical. In 2008, Lorraine Henderson  was arrested  and charged in Massachusetts with violating 8 USC Section 1324 for giving casual legal counsel to her undocumented cleaning lady — robust advice such as “you have to put in paperwork and file” and warning her “you have to be careful ’cause they will deport you.” Henderson was convicted, and though a new trial eventually was granted and the prosecution declined to proceed, Henderson’s case serves as a cautionary tale.

In defending their conviction of Sineneng-Smith under this statute today, the government’s argument largely has been “trust us.” That is, trust us not to engage in prosecutorial overreach; trust us not to prosecute the kinds of free speech that you fear will be chilled. Among other things, the government argues that not only is the statute constitutional, it never would be used in the kinds of ways that Sineneng-Smith and her attorneys fear. 

But that kind of trust must be earned. And today, with heightened racism, xenophobia and anti-immigrant advocacy, such trust is hard to come by. During today’s oral argument, immigrants and their allies will be listening to hear whether the justices are similarly skeptical of putting faith in this administration’s promises of prosecutorial restraint.


Sarah Sherman-Stokes is associate director of the   Immigrants’ Rights and Human Trafficking Program   at Boston University School of Law.


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Vic Eldred
Professor Principal
1  seeder  Vic Eldred    4 years ago

Godspeed

 
 
 
It Is ME
Masters Guide
2  It Is ME    4 years ago

"Breaking the law for Dummies" should have its limits, especially when written by a "Lisc. Professional"  !

 
 
 
Vic Eldred
Professor Principal
2.1  seeder  Vic Eldred  replied to  It Is ME @2    4 years ago

What are the odds that 4 of the Justices will vote to allow them to keep right on doing it?

 
 
 
It Is ME
Masters Guide
2.1.1  It Is ME  replied to  Vic Eldred @2.1    4 years ago
What are the odds that 4 of the Justices will vote to allow them to keep right on doing it?

I can't see how "Any of them Could", with a straight face !

 
 
 
1stwarrior
Professor Participates
2.2  1stwarrior  replied to  It Is ME @2    4 years ago

Especially since that person is writing for Cato Institute, an institute which STRONGLY advocates for the reduction of immigration laws/policies.

 
 
 
Texan1211
Professor Principal
3  Texan1211    4 years ago

I wonder if this ruling coming down could possibly be used to prosecute people who have installed sanctuary policies?

What encourages illegal aliens to come here more than knowing that they are safe from prosecution if they can only avoid detection by the feds?

 
 
 
Tacos!
Professor Guide
4  Tacos!    4 years ago

I agree with the 9th Circuit. The law is overbroad. Almost anything could be seen as "encouraging" or "inducing." And considering we're talking about speech, strict scrutiny applies.

For lawyers, the Model Rules already prohibit (albeit not criminally) a lawyer from counseling or assisting a client to commit an act the lawyer knows is criminal or fraudulent.

Beyond that, things like solicitation and conspiracy are already crimes, but they have specific definitions. 

The defendant in the case was justifiably convicted of fraud. I think we're hitting this thing from enough angles without going after speech. If federal immigration officials are allowed to do their jobs, this business of "encouraging" people needn't be a concern.

 
 
 
Texan1211
Professor Principal
5  Texan1211    4 years ago

Doesn't look like our more liberal friends care about this one way or the other.

 
 

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