The Ninth Circuit ruled on Tuesday that encouraging undocumented immigrants to stay in the United States is protected by free speech rights, striking down part of a proposed federal law that criminalized the act
Under the law, it is a felony to “encourage” or “induce” a foreign national to either enter or stay in the US while knowing or recklessly disregarding that it would be illegal for that foreigner to do so.
The court, however, pointed out that statements to that effect mostly come from the family members of foreigners. To criminalize these statements, the court claims, would be tantamount to criminalizing “a substantial amount of constitutionally-protected expression” under the First Amendment.
“The statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I encourage you to stay here,’” wrote Senior U.S. Circuit Judge A. Wallace Tashima in a 42-page opinion.
The ruling was for the criminal appeal of immigration consultant Evelyn Sineneng-Smith, who made a living helping people from the Philippines who were unlawfully employed in the U.S. as home health care professionals (a.k.a. caregivers) seek green cards. Sineneng-Smith continued her practice despite the expiration of a Labor Certification program that served as the legal basis for her clients’ permanent residence.
As such, Sineneng-Smith was convicted and sentenced to 18 months for each of the two counts of encouraging and inducing unlawfully present immigrants to remain in the U.S.
Sineneng-Smith argued in her appeal that the law she had violated restricts “vast swaths” of speech that is supposed to be considered protected. She added that maintaining the conviction based on the law would be a violation of the First Amendment. The federal government retorted that the law only forbade a “narrow band” of unprotected speech.
While the Ninth Circuit upheld the mail fraud conviction against Sineneng-Smith, they also overturned her first conviction on First Amendment grounds.
Tashima explained that the statements were akin to a caring grandmother urging her grandson to overstay his visa.
“Just because the grandmother wanted her words to encourage her grandson and said them directly to him does not render those words less protected under the First Amendment,” he added.
Justice Department spokesman Steven Stafford is steadfast in the position that the statements are not protected speech, noting that it is illegal to knowingly assist people in committing violent crimes, drug crimes, and a variety of other crimes.
“It is only right that Congress, on a fully bipartisan basis, has criminalized assisting in the commission of immigration crimes as well,” he said.
If you, or a loved one, are facing an immigration case of this nature and need assistance, don’t hesitate to get in touch with the legal team of the Lyttle Law Firm. Call our offices today at (512) 215-5225 to schedule a consultation with immigration attorney Daniella Lyttle.