Can the U.S. Government Prosecute a Person for Encouraging an Undocumented Immigrant to Reside in the United States: i.e. Can Immigration Attorneys be Sentenced to Ten-Years in Federal Prison for Doing Our Jobs?
This week the U.S. Supreme Court heard arguments in U.S. v. Sineneng-Smith. The question before the Court was “whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i) [INA § 274(a)(1)(A)(iv) and (B)(i)] is facially unconstitutional?” Respondent’s opening brief at *1. In a weird confluence of events, I was in D.C. this week and was able to attend the oral argument. In fact, I was sitting about five feet away from Nina Totenberg during the argument. Here’s her article. This case must make the heads of several of the more conservative justices explode. On the one hand, this case is about First Amendment rights, which this Court seems to protect vigorously. On the other hand, the case is also about immigration law and immigration enforcement…. Let’s first start with the statute which provides in relevant part:
“(A) Any person who —
(iv) 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; or….
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs—
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both….
INA § 274(a)(1)(A)(iv) and (B)(i) (emphasis added).
Under this statute, any attorney who provides a consultation or represents an undocumented immigrant for private financial gain and encourages them to stay in the United States could face a ten-year prison sentence. If the attorney is not getting any financial gain, then they are facing a five-year prison sentence. It can also apply to religious institutions, medical institutions, charities, and the list goes on. It is not a comforting thought. The Ninth Circuit found the statute unconstitutional. United States v. Sineneng-Smith, No. 15-10614 (9th Cir. Dec. 4, 2018). Here is my original blog about the Ninth Circuit case. The Government appealed the case and the Supreme Court granted cert.
Facts of the Case
Evelyn Sineneng-Smith ran an immigration consulting firm in San Jose, California. Her clients were mostly Filipinos who worked in the home health care industry and were without status. Between 2001 and 2008, Ms. Sineneng-Smith had clients sign retainer agreements specifying that she was assisting the clients to obtain permanent resident status through Labor Certification. Now, for those of you who are thinking; she was helping them get Labor Certs? What? Those went away in 2001. You would be right. Nonetheless, she was telling clients that she was going to help them get labor certs.
On July 14, 2010, a grand jury returned a superseding ten-count indictment charging Mrs. Sineneng-Smith with three counts of violating INA § 274(a)(1)(A)(iv). After a twelve-day jury trial, the jury found Ms. Sineneng-Smith guilty of three counts of violating INA § 274(a)(1)(A)(iv) and of three counts of mail fraud. The Ninth Circuit overturned the convictions for Section 274(a)(1)(A)(iv) finding that the statute was unconstitutional but, in a separate memorandum upheld the mail fraud conviction. The Government appealed and the Supreme Court granted certiorari. The Court heard the case on February 25, 2020. Mark Fleming from Wilmer Hale in Boston, argued for Ms. Sineneng-Smith. Eric Fegin from the Solicitor General’s Office argued for the Government. There were several amici briefs. You can read the all of the briefing in this case here. The oral arguments were very impressive.
The Government’s Opening Argument
Deputy Solicitor General Fegin started off the argument by stating that the “encourage” and “induce” part of the statute is limited. He argued that these provisions have existed for decades and there is no evidence of these provisions chilling speech. He argued that the statute was not aimed at speech and to the extent that it affected speech, the courts could deal with it on an ad hoc basis. He added that what Ms. Sineneng-Smith had done was very bad.
Chief Justice Roberts started the questioning. He used the hypothetical of the Government prosecuting a grandmother under this statute who said to her undocumented grandchild, “I really wish you would stay in the United States.” Mr. Fegin responded that the statute wouldn’t apply in that situation because the Government only prosecutes unlawful ventures.
Justice Ginsburg then asked about U.S. v. Henderson, 857 F.Supp.2d 191 (D. Mass 2012). Rather than try to describe the case myself, I’ll quote the first line of the original opinion. “In this criminal case the heedless, hapless, and negligent hypocrisy of the defendant confronts the stern, solemn, and implacable sanctimony of the government over a matter of household employment: the periodic engagement of a cleaning lady.” Henderson, 857 F.Supp.2d at 191. It is important to understand the facts of this case. Ms. Henderson was the Boston Area Port Director for Customs and Border Protection. Ms. Henderson hired a woman to clean her house every two weeks. She found the woman through a business card that the woman had left in Henderson’s building, offering cleaning services. Ms. Henderson eventually discovered that the woman was undocumented. Despite being high up in CBP, she did not apparently understand immigration law, and when she learned that the woman had given birth to a U.S. citizen child, Ms. Henderson told the woman to apply for a green card. She also told the woman not to leave the United States because she wouldn’t be let back in. The Government prosecuted her for violation of INA § 274(a)(1)(A)(iv). Their theory of the case was that by giving the woman advice, Ms. Henderson was “encouraging” her to stay in the United States in violation of the statute. Back to the Sineneng-Smith case; Mr. Fegin did not really answer Justice Ginsburg’s question.
Justice Kavanaugh posed the hypothetical about a charity that provides food to undocumented people, ‘Would they be prosecuted under this statute?’ The Government said no, the statute wouldn’t apply if the charity gave food to people, including undocumented people. Justice Kavanaugh probed further and asked, ‘Well, what if the charity was specifically designed to serve the undocumented population and gave undocumented immigrants food?’ Mr. Fegin said then, in that case, the statute would apply. I found that chilling. Then Mr. Fegin argued that the statute has to be seen as a part of the Immigration and Nationality Act as a whole. He argued that this part of the statute has not historically been applied to prosecute immigration activists or attorneys.
Justice Kagan asked Mr. Fegin about the Amnesty International Brief. (That brief discusses the fifty-nine journalists, activists, lawyers, including those from Al Otro Lado, and clergy who have been put on a watch list and have been detained at the border). She also brought up the Henderson case. Mr. Fegin responded that the Amnesty International Brief was referring to advocates who were being violent and were advising undocumented immigrants to violate U.S. law. (At the argument I was puzzled by what Mr. Fegin was saying. None of the attorneys I know who have been working at the border have been violent, have been advocating violence or have been counseling clients to lie. I went back and carefully read the Amnesty International Brief to get some context into his assertions. I believe that Mr. Fegin was referring to CBP’s allegations cited in the Amnesty International brief, that the people on the watch list had participated in or witnessed a violent confrontation between CBP and migrants on the border on November 25, 2018. CBP also accused some of the people on the list of “coaching” asylum seekers and advising them to lie to the U.S. government. Amnesty International Brief at 8 and 10).
Justice Sotomayor asked, ‘If the people advising the undocumented population believed they were telling the truth and that they weren’t encouraging the violation of the law; wouldn’t their speech be protected?’ Mr. Fegin argued that Ms. Sineneng-Smith was lying to the clients so her speech wouldn’t be protected. (I’m not sure if she was lying to the clients or just didn’t know that labor certs did not exist after 2001). Justice Sotomayor asked, ‘If Ms. Sineneng-Smith had been giving proper legal advice would she have been prosecuted under this statute?’ Mr. Fegin argued that it was not unlawful to advise a person about a legal case. In support of his argument, he argued that this statute should not be applied lightly. He cited United States v. Williams, 553 U.S. 285 (2008). (The Supreme Court carved out an exception to First Amendment protections for solicitation to commit a crime. Mr. Fegin was analogizing Ms. Sineneng-Smith’s actions to solicitation to commit a crime and there is no First Amendment protection for those actions).
Justice Breyer then started asking questions in what I thought was an attempt to find a middle ground on the case. He kept referring to the amicus brief written by Professor Eugene Volokh from UCLA. (Hereinafter the Volokh Brief). Justice Breyer noted that by following the suggestions in Professor Volokh’s brief the Court would avoid the “list of horribles” set forth in the Ninth Circuit’s opinion. In his brief Professor Volokh argues that under Williams there is a First Amendment exception to speech that is integral to criminal conduct. He argues that if the Supreme Court finds that the statute goes beyond solicitation to commit a crime and includes abstract advocacy, such as a newspaper column encouraging people to enter the United States illegally the statute should be struck down. But, if the Supreme Court limits the statute to punishing only the solicitation of a crime, then it is important for the Court to define what solicitation means. “In particular, this case offers an opportunity to clarify the “important distinction” between unprotected solicitation of illegal activity and protected “abstract advocacy” of such activity.” Volokh Brief at 2. Professor Volokh then argues that “[s]olicitation should be limited to directly, specifically, and purposefully encouraging people to commit a particular crime.” Id. Professor Volokh argues that if the statute is limited to this definition of solicitation, it does not violate the First Amendment. Justice Breyer noted that entering the United States illegally is a crime but living in the United States illegally is not a crime. He seemed to think that Volokh had the answer. I think if you want to predict how the Supreme Court is going to rule in this case, you should read Professor Volokh’s brief. You can read it here.
Mr. Fegin responded that the government would prefer limiting the reach of the statute to encompass only the solicitation of the crime rather than declaring the statute unconstitutional. But, he argued, there is no reason to limit the “encouragement” or “solicitation” provisions to criminal activity. Justice Breyer asked, ‘What about the landlady who says, “you always have a place here”? What about sanctuary cities? All would fall under your interpretation as being prosecutable under this statute.’
Then Justice Alito asked, ‘What does encourage mean? Does it include actions?’ Mr. Fegin responded that encouraging means substantially participating in the activity that the underlying undocumented immigrant wants to do. Justice Alito replied that Mr. Fegin had just given him the definition of ‘aiding and abetting.’ Mr. Fegin came up with a three-part test: (1) the encourager has to want to encourage the act; (2) the undocumented immigrant has to want to commit the act and knows about it and how to do it; and, (3) there is a substantial amount of participation between the encourager and the undocumented immigrant. Mr. Fegin argued that you can’t encourage someone in a de minimis way. Justice Alito asked, ‘So if a person says to an undocumented immigrant, “I think you should stay here” that wouldn’t be prosecutable behavior; but if they repeated it ten times forcefully would that be enough?”
Justice Kagan added, ‘Is forceful speech enough or do you need action?’ Justice Gorsuch chimed in. He noted that in criminal law the First Amendment doesn’t allow the punishment for speech that encourages a person to commit a crime to be greater than the punishment for underlying crime itself. He asked what mens rea was necessary in this case? Was it a mens rea of recklessness? He asked whether if he was reckless in his speech could he be criminally punished where the underlying conduct could only be civilly punished? In other words, could a person be prosecuted for encouraging someone to reside in the United States illegally where living in the United States illegally is not a criminal offense? Mr. Fegin responded that to be prosecuted under this statute the person must want the unlawful venture to succeed.
Justice Alito noted that a government can make prostitution a civil offense and criminally prosecute someone who solicits prostitution. And, then the Government was out of time.
Ms. Sineneng-Smith’s Argument
Ms. Sineneng-Smith’s attorney, Mark Fleming, started off by arguing that the statute as written is unconstitutional and even if the Court rewrote the statute as a solicitation offense, it would still be unconstitutional. Mr. Fleming argued that Ms. Sineneng-Smith never encouraged anyone to commit a crime.
Justice Ginsburg asked whether Ms. Sineneng-Smith could have been convicted under any provision of INA § 274? Mr. Fleming said, “No.” He noted that any illegal activity on her part was properly prosecuted under the mail fraud statute.
Justice Alito then referred back to the Volokh brief, and asked, ‘What if a teenager is being bullied, is suicidal, and has a gun. He calls a friend and threatens to kill himself. The friend is in a bad mood, and says, go ahead, just do it. Can the friend be prosecuted?’ Mr. Fleming responded that helping a person commit suicide falls under the exception to free speech set forth by the Court in Brandenburg v. Ohio, 395 U.S. 444 (1969) (freedom of speech and freedom of the press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.) Justice Alito then asked, ‘Well, why doesn’t encouraging someone to stay in the United States illegally constitute incitement under Brandenburg? Mr. Fleming responded that the statute has no causation requirement and no mens rea requirement.
Justice Breyer then went back to the Volokh brief. He asked, ‘Could the statute stand if it were rewritten to say that it is illegal to encourage or solicit a violation of criminal law rather than just a violation of law, which includes civil offenses?’ Mr. Fleming responded that as a matter of statutory interpretation the Court would be going too far. He pointed out that Congress knows how to use the words “solicitation” and “aiding and abetting.” He said this statute is not a narrow solicitation statute and is not an aiding and abetting statute.
Justice Kavanaugh asked, ‘If the statute said aid, abet, or solicit, would it be Constitutional?’ Mr. Fleming responded that his argument only goes to the one section of the statute and that Section 274(a)(1)(A)(iv) doesn’t use the words aid, abet, or solicit.
Justice Sotomayor noted that the statute makes it illegal to hire an undocumented worker but that there is no statute making it illegal to work in the United States without proper documentation. Mr. Fleming differentiated this statute from others by noting that it infringes on pure speech.
Justice Alito pointed out that there are lots of situations where the states make “encouragement” illegal. He noted that it is illegal to encourage a minor to drink and that a person can do a lot of damage by encouraging someone. He also noted that here Ms. Sineneng-Smith was not merely engaging in speech, she was also engaging in conduct. Mr. Fleming cited Coates v. Cincinnati, 402 U.S. 611 (1971) where the Court struck down an ordinance because it was overbroad and included a substantial amount of protected speech along with conduct. Justice Alito asked Mr. Fleming about the facts in Coates and Mr. Fleming recited the short factual pattern stated in the Supreme Court’s decision.
Justice Kagan then asked whether there was a realistic probability of prosecution? (I had a flash-back and thought, for a second, that I was listening to an argument about the categorical approach). Mr. Fleming responded by pointing to the Henderson case yet again. Justice Kagan remarked, “one case.” Mr. Fleming replied, it might be one case, but there is a risk of chilling speech. He noted that the statute hadn’t been used historically but that now the government is using it to go after attorneys and religious organizations. (See the Amnesty International Brief).
Justice Breyer, still seemingly trying to find the middle ground, asked ‘What if the Government wants this statute to be interpreted as a solicitation statute where there is an underlying crime and imminent harm under Brandenburg?’ Mr. Fleming responded that solicitation must include criminal conduct with the intent to further such conduct.
Chief Justice Roberts noted that Congress would need to pass a new law. Justice Kagan (seemingly realizing that it is hard for Congress to pass laws) asked, how can we narrow the statute without rewriting it? Mr. Fleming said it was impossible in this case. Justice Kagan asked, ‘Then when can you narrow a statute?’ Mr. Fleming replied that you must look at the legislative history of the statute to get to the interpretation and then narrow it based on the legislative history. He stated that there is no way to get to Constitutional avoidance in this case because the statute is just plain bad.
Justice Alito, during the intervening questions, had pulled and read part of the Coates case. He informed everyone that Coates was a student involved in a demonstration. He said that Coates definitely engaged in speech as well as conduct. He asked Mr. Fleming whether he could show him a case where no speech was involved?
Justice Kavanaugh asked, ‘If Congress passed a law saying it’s against the law to aid, abet, or solicit the following acts that are not crimes, would the statute be Constitutional?’ Mr. Fleming said, probably not. Mr. Fleming pointed out that this particular statute uses very broad language.
Government’s Rebuttal
Mr. Fleming’s time was over and then it was the Government’s rebuttal time. Mr. Fegin argued that the Court could use Constitutional avoidance and that it is not unusual to use Constitutional avoidance in First Amendment cases. He argued that Congress can civilly proscribe unprotected speech and that unprotected speech can be criminally prohibited.
Justice Sotomayor asked, ‘What in this statute would give a person notice of what’s illegal? What about a church providing worship to an undocumented person? What about a hospital providing medical care? How would they know?’ Mr. Fegin responded that they are using the principles of solicitation, aiding, and abetting and that you had to look at the context. And then the hour was over and the oral argument ended. Sadly, I did not get to hear Clarence Thomas’s voice. He rarely speaks during oral arguments. I went to two days of oral arguments and he never once spoke.
In an interesting side note, I happened to meet one of the deputy solicitors who worked on the brief, in this case, a few days before the oral argument. It was a social setting and I was standing in line next to him at a buffet. I knew that he had worked at the Solicitor General’s office and I started chatting him up. I told him that I planned to go to the oral argument in the Sineneng-Smith case on Tuesday. He told me that he worked on that brief for the Solicitor General’s office. I told him that as an immigration attorney in private practice working in deportation defense, I was afraid of being criminally prosecuted for advising undocumented immigrants about their rights and “encouraging” them to stay in the country and apply for relief. He responded that this statute wouldn’t be used against attorneys. I contained myself and didn’t say, “Ha!” As I said, it was a social setting; and I was proud of my self control. But I think it’s important to note that the former attorneys from the Solicitor’s Office do not see this statute as a vehicle to prosecute immigration attorneys.
I am not going to try to guess how the Supreme Court is going to rule on this case. On the one hand, the conservative justices love to protect the First Amendment. On the other hand, they seem to be giving the Executive Branch free rein when it comes to immigration issues. Other attorneys in the courtroom (not as vested in the outcome as I) seemed to think there was no way that this statute could withstand a First Amendment challenge. When the argument was over, I went up and thanked Mark Fleming and his team for unknowingly representing thousands of deportation defense attorneys in this case.