The unspoken theme of the last few weeks within immigration law has been the issue of the separation of powers – but not the usual issue of the Judiciary usurping the powers of the other two branches. Instead, the issue is that of the Executive usurping the powers of the Legislature. This blog is unusually long because the Ninth Circuit decisions were unusually long this week. The Putative Attorney General, Matthew Whitaker, referred two cases to himself; but, the week before that, several Organizations filed an amicus brief in Matter of Negusie, 27 I.&N. Dec. 481 (BIA 2018). The amicus brief (which is very well-written) argues that Trump violated the Attorney General Succession Law (enacted in 1870) by appointing Whitaker, through a tweet, as the acting Attorney General rather than going through the line of succession established by Congress. The brief argues that Whitaker has no jurisdiction or authority over the case because his appointment violates the AG Succession Act. You can read the brief here. It is well worth the read.
The Ninth Circuit refused to enjoin the Temporary Restraining Order issued by the District Court for the Northern District of California enjoining the Trump Administration from enacting a new policy prohibiting noncitizens who entered the United States without inspection from the southern border from applying for asylum. One of the arguments that the Ninth Circuit found to be very persuasive was that the Executive branch was trying to usurp the powers of the Legislative branch by regulating away the statute. In other Ninth Circuit news, the Ninth Circuit held that a law permitting criminal prosecution of any person who “encourages or induces an alien to come to, enter, or reside in the United States” if the encourager knew or recklessly disregarded “the fact that such coming to, entry, or residence is or will be in violation of the law” was a violation of the First Amendment. United States v. Sineneng-Smith, No. 15-10614, slip op. at *5 (9th Cir., Dec. 4, 2018). The decision focused on the criminal prosecution of such speech. All in all, it was a good week for immigrants in the Ninth.
PUTATIVE ATTORNEY GENERAL CASES
I don’t think we can actually call Matthew Whitaker the Attorney General, or even the Acting Attorney General. Instead, in honor of Pereira, I think we should call him the Putative Attorney General. Once Attorney General Sessions resigned, the proper successor under the Attorney General Succession Law was the Deputy Attorney General; or, if both the Attorney General and the Deputy Attorney General were unavailable, the Associate Attorney General shall act as the Attorney General. Notably, the Attorney General may also designate the Solicitor General and the Assistant Attorneys General in further order of succession to act as Attorney General. 28 U.S.C. § 508. The statute clearly spells out the line of succession. Nowhere under the statute is the former Chief of Staff to the Attorney General and former CNN news commentator listed. And, there is no provision in that statute allows the president to override the line of succession. The Amicus brief in Matter of Negusie lays out this argument.
Family as a Social Group
Anyhow, this past week, the Putative AG referred two cases to himself. Matter of L-E-A, 27 I.&N. Dec. 494 (A.G. 2018); and Matter of Castillo-Perez, 27 I.&N. Dec. 495 (A.G. 2018). In Matter of L-E-A-, the Board of Immigration Appeals (BIA) had held that to establish asylum on the basis of membership in a particular social group composed of family members the noncitizen must establish (1) they are a member of the family; and (2) the family relationship is at least one central reason for the claimed harm. Matter of L-E-A-, 27 I.&N. Dec. 40 (BIA 2017). The Putative A.G. referred this case to himself and asked that the parties and any and all interested amici address the issue of “Whether and under what circumstances an alien may establish persecution on account of membership in a “particular social group” under 8 U.S.C. § 1101(a)(42)(A) [INA § 101(a)(42)(A)] based on the alien’s membership in a family unit.” Matter of L-E-A-, 27 I.&N. Dec. 494 (A.G. 2018). Interested amici may submit briefs on or before January 18, 2019.
Matter of L-E-A-, 27 I.&N. Dec. 494 (A.G. 2018).
Can a Noncitizen Who Has a DUI Conviction Establish Good Moral Character Under INA 101(f)
The second case is very interesting in terms of the issue of separation of powers. In this case the Putative A.G. referred to himself the issue of whether an applicant for cancellation of removal for nonpermanent residents can establish good moral character under INA § 101(f) if they have convictions for driving under the influence. Can the Putative A.G. issue case law finding that a noncitizen who has been convicted of driving under the influence is statutorily ineligible for cancellation of removal in an act of discretion? It seems that mandating a result, obviates discretion. (I want to use the pretentious phrase, that ‘mandating a result, ipso facto obviates discretion; but I won’t be pretentious). Mandating a discretionary finding really seems to be a usurpation of Congressional power. I don’t think the Putative A.G. (or any Attorney General) can create new laws through seemingly limiting discretion to the point where discretion no longer exists. The Putative A.G. asked the parties and the amici to address the following issues:
1. In connection with an application for cancellation of removal under 8 U.S.C. § 1229b(b) [INA § 240A(b)], what is the appropriate legal standard for determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f) [INA § 101(f)]?
2. What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f) [INA § 101(f)]?
3. What impact should multiple such convictions have in determining whether to grant discretionary relief under 8 U.S.C. § 1229b(b) [INA § 240A(b)]?
If Congress wants to change the statutory definition of cancellation of removal or the statutory definition of good moral character to preclude a noncitizen who has been convicted of driving under the influence; Congress can do so. But, a Putative A.G. (or even a real one) can’t do it by stating that EOIR must deny all these cases an exercise of discretion. Because, guess what, when immigration courts and the BIA must deny something in an exercise of discretion – that becomes a statutory bar. Interested Amici may submit briefs on or before January 18, 2019.
Matter of Castillo Perez, 27 I.&N. Dec. 495 (A.G. 2018).
NINTH CIRCUIT
The Ninth Circuit issued two very interesting decisions this week. Both cases boasted a list of attorneys who are a virtual Who’s Who in the world of immigration law. I don’t know where these people find the time, but I am grateful for their work. The lawyers in both cases were very clever in crafting their arguments in ways that would appeal to the current Supreme Court. First, a very conservative panel of the Ninth Circuit led by Jay Bybee held that the district court properly granted a Temporary Restraining Order enjoining the Trump Administration through a Presidential Proclamation and an emergency regulation from prohibiting people who entered the United States without inspection from the southern border after November 9, 2018 from qualifying for asylum. This issue was presented, in part, as a violation of the separation of powers. I believe that by framing the issue this way, the Ninth Circuit’s opinion will likely find a sympathetic audience in the Supreme Court.
In the other case, the Ninth Circuit held that the Government cannot criminally prosecute a person for encouraging or inducing a noncitizen to enter or remain in the United States. The Ninth held that this law is a violation of the freedom of speech clause under the First Amendment. It seems that the current Supreme Court will declare almost any law or regulation invalid if they believe it violates any First Amendment right. This Supreme Court reminds me of the Lochner Court; but, instead of using the “right to contract” to invalidate every law, they use the First Amendment. I was very impressed by the Lochner decision when I was in law school. In Lochner v. New Yorker, the Supreme Court held that a New York State rule limiting the hours that bakers could work in New York to ten hours per day, sixty hours per week violated the “right to contract” that they read into the Due Process Clause. If those bakers wanted to work more than ten hours per day/sixty hours per week who was the Government to stop them? They had the right to contract. Now it seems that the Supreme Court is invalidating every law they can find (campaign finance, LGBTQI rights…) under the First Amendment. Not that I am complaining about this particular decision; but, it’s interesting to see the parallels with the previous gilded age. I think if the Supreme Court is going to declare every law that they don’t like unconstitutional under the First Amendment; it’s our job as immigration advocates to try to bring in the First Amendment as often as possible. So, kudos to these lawyers.
The Ninth Circuit Upheld the TRO Enjoining a New Regulation that Prohibits Noncitizens who Entered the United States without Inspection from the Mexican Border from Applying for Asylum
In a sixty-five-page decision, with a seven-page dissent, the Ninth Circuit upheld the district court’s Temporary Restraining Order (TRO) enjoining the Trump Administration from enacting a new regulation that prohibits people who enter the United States from the southern border after November 9, 2018, from ever obtaining asylum. Jay Bybee (one of the most conservative judges in the country) pretty much eviscerates the Government’s argument in support of the new regulation. The Government rather than requesting rehearing en banc from the Ninth Circuit, went straight to the Supreme Court and asked them to reverse the TRO. On December 11, 2018, the Solicitor General filed a motion with the Supreme Court arguing that the District Court’s ruling was deeply flawed. For some unknown reason, the Solicitor General did not address the Ninth Circuit’s ruling; which was issued the Friday before. Anyhow, the question went to Justice Kagan and she directed the challengers to submit a response by noon on December 17, 2018. It’s interesting to watch the Government go straight to the Supreme Court on every decision. In this case, it’s especially interesting because a very conservative panel of the Ninth Circuit has already upheld the TRO. I don’t know that the Supreme Court will provide a more sympathetic venue. You can read about this move in Amy Howe’s excellent Supreme Court blog here.
One of the really interesting things about this decision is that Bybee frames the situation at the southern border and in the immigration courts as a crisis; citing to the “staggering increase” in asylum applications. But he does not go into the root causes for the increase. He fails to note that there 25.4 million refugees; 40 million people who are internally displaced; and 3.1 million asylum seekers world-wide. Instead he focuses on the 97,000 asylum applications filed in 2018 and the current backlog of over 200,000 asylum applications in the immigration courts. I would think that a country of over 325 million people could absorb the asylees who are fleeing for their lives. There is definitely an international crisis; I just don’t think that the crisis is the that of too many people seeking asylum in the United States.
“In an effort to contain this crisis” on November 9, 2018, the Attorney General and the Secretary of the Department of Homeland Security proposed a new regulation to take effect immediately. That regulation provides that a noncitizen entering the United States along the southern border with Mexico may not be granted asylum if the noncitizen is subject to a presidential proclamation. The same day Trump issued a proclamation suspending the entry of any noncitizen into the United States across the international boundary between the United States and Mexico but exempting from that suspension, any noncitizen who enters the United States at a port of entry and properly presents for inspection. The effect of the rule and the proclamation is to make asylum unavailable to any noncitizen who seeks refuge in the United States if they entered the country from Mexico outside a lawful port. The District Court for the Northern District of California issued a TRO finding it likely that the decision was inconsistent with existing U.S. law which provides that a noncitizen may apply for asylum whether or not they arrived and entered through a designated port of entry. INA § 208(a)(1). And, that the Attorney General failed to follow the proper procedures for enacting a regulation. The Government appealed seeking a stay of the district court’s TRO pending appeal. The Ninth denied the Government’s motion for a stay of the TRO (or a stay of the stay).
First, we get a civics lesson on the powers of each branch of Government and on the separation of powers. It concludes that while it is not the role of the judiciary to probe and test the justifications of immigration policies; the judiciary may review the political branches to determine whether they exceed the constitutional or statutory scope of their authority. Then the Ninth goes into the history of refugee and asylum law; who may apply for protection; and how the Government is to adjudicate the applications. Then we get to the challenged provisions and the procedural history of the case. We don’t even get to the issue of jurisdiction until page 22; and everyone is arguing that the Ninth lacks jurisdiction. The Organizations (East Bay Sanctuary Covenant, et al.) argue that the Government’s appeal of the TRO is premature; and the Government argues that the Organizations lack standing and can’t even bring the case.
The Ninth Circuit finds that the Government may appeal the TRO. They note that while a TRO is ordinarily not an appealable order (which I did not know) where a TRO has the same effect as a preliminary injunction; the parties may seek appeal. The courts treat a TRO as a preliminary injunction where an adversary hearing has been held and the court’s basis for issuing the order is being challenged. Plus, in this case, the district court ordered the TRO to remain in effect for thirty days instead of the normal fourteen-day limit under Rule 65(b) of the Federal Rules of Civil Procedure.
Standing
Then they get to the issue of standing. The Government argues that the Organizations do not have standing and that their claims do not fall within the zone of interests protected by the INA. The Ninth Circuit notes that the concept of standing is built on the principle of separation of powers. “[S]tanding ensures that the litigants have “a personal stake in the outcome of the controversy as to justify the exercise of the court’s remedial powers on their behalf.” Town of Chester v. Laroe Estates, Inc. 137 S. Ct. 1645, 1650 (2017).” East Bay Sanctuary Covenant v. Trump, No. 18-17274 slip op. at 25 (9th Cir. Dec. 7, 2018). The Ninth Circuit disagreed with the district court and fund that they did not have third-party standing to sue. However, they did find that they had organizational standing to sue. The Organizations had standing because they were able to show that the Government’s actions have perceptibly impaired their ability to provide the services that they were formed to provide. They could not represent their clients. Second, the Organizations could demonstrate that the rule will cause them to lose a substantial amount of funding. For standing purposes, a loss of even a small amount of money is ordinarily an “injury.”
Zones of Interests Inquiry
Then the Ninth goes into the “zone of interests” inquiry. To bring a claim under the Administrative Procedures Act (APA) the plaintiff must establish that they are “suffering [a] legal wrong because of agency action, or [are] adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. East Bay Sanctuary Covenant, slip op. at *36. The zone of interests is not the APA itself but rather the zone of interests to be protected or regulated by the statute that the plaintiffs claim was violated – here it’s the INA. The Ninth finds that even though the Organizations are neither regulated by nor benefitted by the INA their interest in providing asylum services that they were formed to provide falls within the zone of interests for APA purposes.
Stay Pending Appeal
Finally, at page 40, we get to the Government’s request that the Ninth issue a stay of the TRO pending appeal. Here is where the case gets really fun. In order to issue a stay, the court must look at four factors:
(1) Whether the stay applicant has made a strong showing that they are likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of the stay will substantially injure the other party’s interest in the proceedings; and, (4) where the public interest lies.
East Bay Sanctuary Covenant, slip op. at *40. Now, I am used to requesting stays for my client; it’s fun to watch the Government request a stay for a change.
First, and most importantly, the Ninth held that the Government is not likely to succeed on the merits. “[T]he Government is not likely to succeed in its argument that the Rule is consistent with the INA.” East Bay Sanctuary Covenant, slip op. at *41. The Ninth Circuit notes that the statute allows any noncitizen in the United States to apply for asylum. To grant that right and then in the next breath say that a noncitizen who enters the United States without inspection has no right to receive that right makes that right a nullity. In order to be valid, the regulations must be consistent with the statute under which they are promulgated. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. 467 U.S. 837 (1984).
The Ninth Circuit finds that the Rule is likely arbitrary and capricious for a second reason: it conditions a noncitizen’s eligibility for asylum on a criterion that has nothing to do with asylum itself. Therefore, the Rule cannot be considered a reasonable effort to interpret or enforce the current provisions of the INA. East Bay Sanctuary Covenant, slip op. at *46. Here is the gold: “the rule of decision enforced by the Government – that illegal entry, through Mexico specifically, will always be disqualifying – is inconsistent with the treaty obligations that the United States has assumed, and that Congress has enforced.” East Bay Sanctuary Covenant, slip op. at *49.
The Government then argues that the President has the authority to suspend noncitizens from entering the United States under Section 212(f) of the INA. The Ninth finds that the rule of decision is not an exercise of authority under Section 212(f) because it does not concern the suspension of entry or other impose restrictions on the entry of noncitizens as the President deems appropriate. The Rule imposes the penalty on noncitizens already present within our borders; not people at the border so 212(f) does not apply.
The Government next argues that the TRO constitutes a major and unwarranted judicial interference into the conduct of foreign policy and undermines the separation of powers by blocking the Executive Branch’s lawful use of its authority. East Bay Sanctuary Covenant, slip op. at *50. The Ninth Circuit zings them stating, “But, if there is a separation of powers concern here, it is between the President and Congress, a boundary that we are sometimes called upon to enforce.” Id. Now the gloves are coming off! The Ninth notes that “Here, the Executive has attempted an end-run around Congress. The President’s Proclamation by itself is a precatory act [precatory means expressing a wish – I had to look it up]. The entry it “suspends” has long been suspended: Congress criminalized crossing the Mexican border at any place other than a port of entry over 60 years ago.*.*.*. The Proclamation attempts to accomplish one thing. In combination with the Rule, it does indirectly what the Executive cannot do directly: amend the INA. Just as we may not, as we are often reminded, “legislate from the bench,” neither may the Executive legislate from the Oval Office.” East Bay Sanctuary Covenant, slip op. at *51. If the entire case were like this, it would have been a lot more fun to read.
The Ninth then goes on to the next issue (and we are at page 60) of whether the Government has established that it will be irreparably harmed absent a stay. The Ninth finds that the Government has not established a likely irreparable injury. Finally, the Ninth notes that because the Government has not satisfied the first two factors necessary for the stay (likelihood of success on the merits and irreparable injury absent a stay) there is no reason to dwell on the final two factors. They note that a stay of the district court’s order would not preserve the status quo; rather it would upend it. And, the public interest favors both sides.
Remedy
Finally (only two pages left) the Ninth looks at the appropriate remedy. The Government challenges the nationwide scope of the TRO as being impermissibly broad. The Ninth notes that the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff. In immigration matters the district courts have the authority to enjoin unlawful policies on a universal basis.
Then there is an opinion from Judge Leavy dissenting in part (because a sixty-five-page decision is not quite long enough). Judge Leavy concurs that the Ninth may treat the district court’s order as an appealable preliminary injunction. He also agrees that the Organizations have standing. But he disagrees with the rest of the opinion. Judge Leavy would find that the Rule was exempt from standard notice and comment rule making. He also finds that “Nothing in the structure or plain words of the statute, however, precludes a regulation categorically denying eligibility for asylum on the basis of the manner of entry.” East Bay Sanctuary Covenant, slip op. at *3 (Leavy, J. Dissenting in part). Judge Leavy found that the Government has made a sufficient showing of irreparable harm and that the public has a significant interest in efficient border law administration. He concludes that the balance of harm to the plaintiffs does not weigh in their favor and he would grant the stay.
East Bay Sanctuary Covenant et al. v. Trump et al., No. 18-17274 (9th Cir. Dec. 7, 2018).
It is a Violation of the First Amendment to Criminally Prosecute Someone for Encouraging or Inducing a Noncitizen to Enter or to Remain in the United States in Violation of the Law
The Ninth Circuit found that a statute providing for criminal prosecution of a person who encouraged and induced a noncitizen to enter or remain in the United States for the purposes of financial gain is unconstitutional. The defendant in this case was convicted of the following two provisions of 8 U.S.C. § 1324, INA § 274:
(a)(1)(A)(iv) 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; or *.*.*.
(a)(1)(B)(i) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs — 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.*.*.*.
The Ninth looked at two issues: (1) Does subsection (iv) abridge constitutionally-protected speech? and, (2) To answer this question, what does “encourages or induces” mean? The Ninth Circuit noted that any reasonable reading of the statute potentially criminalizes a grandmother saying to her grandson, “Gee, I wish you would stay here.” Or, “Gee, I wish you would come and visit me.” Because the statute criminalizes a substantial amount of constitutionally-protected speech, it is unconstitutional. You can stop reading about this decision right here if you don’t want to go too deep into the weeds with me.
Facts
Evelyn Sineneng-Smith ran an immigration consulting firm in San Jose, California. (I practice in San Jose, and I have never heard of her – but that does not mean a lot). Her clients were mostly Filipinos who worked in the home health care industry and were without status. Ms. Sineneng-Smith assisted clients with applying for “Labor Certification” and then for a green card. She had her clients sign retainer agreements that specified that she was assisting the clients to obtain permanent resident status through Labor Certification. Now, for those of you who are awake, you might be thinking; she was helping them get Labor Certs? What? Those went away in 2001. You would be right. But, between 2001 and 2008 Ms. Sineneng-Smith continued to have clients sign retainer agreements purportedly to help clients obtain green cards through 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 (encouraging or inducing an alien to reside in the country, knowing and in reckless disregard of the fact that such residence is in violation of the law). After a twelve-day jury trial (wow!) the jury found Ms. Sineneng-Smith guilty of three counts of violating INA § 274 and of three counts of mail fraud. (The Ninth Circuit in a separate memorandum upheld the finding of mail fraud). Ms. Sineneng-Smith timely appealed and the Ninth held oral argument in April 2017. In September 2017, the Ninth invited amici to file briefs on the following issues:
Issues
- Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem?
- Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First Amendment or the Fifth Amendment, and if so, whether any permissible limiting construction would cure the constitutional vagueness problem?
- Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any serious constitutional problems the Court might determine existed?
Sineneng-Smith, slip op. at *9.
Overbroad Statute
The Ninth looked at whether the statute was overbroad. To determine if the statutes were overbroad the Ninth first construed the statute. Then they had to determine whether the statute as construed restricted speech; and, if it did, was that speech protected. Finally, they weighed the amount of protected speech that the statute restricts against its legitimate sweep. The Ninth found that the statute was overbroad holding: “The only reasonable construction of Subsection (iv) restricts a substantial amount of protected speech in relation to the narrow band of conduct and unprotected expression that the statute legitimately prohibits. Therefore, we hold that Subsection (iv) is facially invalid.” Sineneng-Smith, slip op. at *13.
Going back to its three-part analysis the Ninth Circuit first construed the elements of the crime. It found that the Government must prove: (1) the defendant knowingly encouraged or induced a particular noncitizen – or group of noncitizens – to come to, enter, or reside in the country; (2) in reckless disregard of whether doing so would constitute a violation of the criminal or civil immigration laws on the part of the noncitizen. The Ninth noted that “encourage or induce” can mean speech or conduct or both. There is no substantiality or causation requirement.
The Ninth Circuit looks at the mens rea requirement both for the “encourage or induce” prong and for the “violation of the law” prong. The Ninth Circuit found that the mens rea for the “encouraging” or “inducing” requires knowledge. However, the mens rea for the “violation of law” prong only requires recklessness.
Next, the Ninth Circuit construes the terms “encourages” or “induces.” The Ninth finds that “encourages” or “induces” can mean speech, or conduct, or both. Therefore, the subsection could criminalize encouraging statements like, “I wish you were here.” (Nearly every postcard writer in the history of the world could be prosecuted under that statute). Now, apparently, the Government took the position that an immigration lawyer could be prosecuted for a federal felony under INA § 274(a)(1)(A)(iv) if they advised an undocumented client to remain in the country. That argument gives me the chills. The Ninth noted that just because the Government has not yet sought many prosecutions based on speech does not mean it cannot or will not use an overbroad law to obtain such convictions. Sineneng-Smith, slip op. at *28.
The Ninth then construes the phrase “in violation of the law.” The Ninth notes that living in the United States without status violates civil immigration laws. The statute criminalizes language that may encourage both civil and criminal law violations.
The Ninth Circuit defines the statute as follows:
To recap, we interpret Subsection (iv) as follows: to violate
the subsection, a defendant must knowingly encourage or induce a particular
alien – or group of aliens – to come to, enter, or reside in the country, knowing
or in reckless disregard of whether doing so would constitute a violation of
the criminal or civil immigration laws. As construed, “encourage or induce” can
mean speech, or conduct, or both, and there is no substantiality or causation
requirement.
Sineneng-Smith, slip op at *30.
After finding that the statute restricts speech, the next issue is whether the statute reaches protected speech and whether the statute restricts a substantial amount of such speech in relation to the legitimate sweep of the statute. The Ninth notes that the statute applies to both criminal and civil violations of immigration law and concludes that the statute reaches protected speech.
Once the Ninth determined that the statute reaches protected speech, it then analyzes whether the amount of protected speech the statute restricts is substantial in relation to its legitimate sweep. The Ninth Circuit notes that the Government has already shown a willingness to apply Subsection (iv) to potentially protected speech. In a footnote, it notes that ICE Director Thomas Homan threatened San Francisco city and county officials with prosecution under INA § 274 for declaring itself to be a sanctuary city. Sineneng-Smith, slip op. 38 n. 12.
Of additional concern to the Ninth was the protection of immigration attorneys from governmental prosecution as they noted that the Government seems poised to prosecute attorneys under this statute.
An attorney can knowingly encourage a course of action without aiding or abetting it. Moreover, as we have explained, remaining in the country while undocumented, without more, is not a crime. More fundamentally, though, the government has already shown its intent to prosecute those citizens (attorneys or sympathetic lay persons) who give even general immigration advice.
Sineneng-Smith, slip op. at *41 (emphasis added). The Ninth concludes that the statute criminalizes a substantial amount of protected expression in relation to the statute’s legitimate narrow sweep. Therefore, the statute is unconstitutional. Thank you to all the attorneys who represented us – even though we may not have known it.
United States v. Sinengeng-Smith, No. 15-10614 (9th Cir. Dec. 4, 2018).