On February 25 of this year, the Supreme Court of the United States will hear oral argument in U.S. v. Sineneng-Smith. This case has attracted widespread attention due to its potential ramifications for immigration stakeholders and the provision of certain types of immigration advice.
Evelyn Sineneng-Smith worked as an immigration consultant in La Jolla, California. She oriented her business towards assisting foreign nationals who were working as nurses and in other home healthcare positions. As part of these activities, Ms. Sineneng-Smith prepared and filed labor certification applications that provided a path to lawful permanent residence for individuals not lawfully present at that time. The particular program relied on by Ms. Sineneng-Smith to file these applications, however, was closed in April 2001. Despite knowing the program could no longer be used, Ms. Sineneng-Smith continued to enter into agreements, with clients who were unlawfully present, to prepare and file such labor certification applications. In total, Ms. Sineneng-Smith made over $3 million from these agreements.
Ms. Sineneng-Smith was convicted in District Court for three different types of offense: encouraging or inducing illegal immigration for financial gain (three counts); mail fraud (three counts); and tax fraud (two counts). At the court of appeals, Ms. Sineneng-Smith’s convictions for encouraging or inducing illegal immigration for financial gain were reversed. The U.S. government then appealed to the Supreme Court, who issued a writ of certiorari to hear the case on October 4th, 2019.
The attention focused on Ms. Sineneng-Smith’s case concerns the constitutionality of the statute on which some of her convictions rest. The so-called “encouragement provision”, 8 U.S.C. 1324(a)(1)(A)(iv), reads as follows: "[a]ny 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).”
Both sides agree that Ms. Sineng-Smith’s conduct was unlawful under the language of this statute. Both sides also agree that the statute itself is lawful as applied to Ms. Sineng-Smith’s actions. However, Ms. Sineneng-Smith argues that the statute is facially invalid because it is overbroad. Under the doctrine of overbreadth, if the statute violates the First Amendment in a substantial number of cases, it may be struck down on its face (even if it does not violate the First Amendment with respect to Ms. Sineneng-Smith’s case). The main issue before the Supreme Court, therefore, is whether, and to what extent, the statute violates the First Amendment: the extent to which it prohibits speech.
The government argues that the “text, context, and history” of the statute show that its primary purpose is to regulate conduct and highlight the lack of convictions for speech under this statute. The government also highlights the requirement for financial gain as evidence that it targets conduct (such as “selling fake passport stamps”) and notes that, if the statute was used to convict based on protected speech, the parties impacted could appeal those convictions on the basis that the statute is unlawful as applied to them.
The brief submitted on behalf of Ms. Sineneng-Smith, and the amicus cuariae briefs submitted by, amongst others, Amnesty International, the Cato Institute, and the National Association of Criminal Defense Lawyers, challenge the government’s interpretation of the statute’s history and application. They argue that the plain meaning of the statute covers advice by immigration stakeholders, to individuals unlawfully present, advising them of their rights – including so-called “know your rights” presentations. Their briefs provide examples of the statute being used to intimidate immigration advocates and having a chilling impact on immigration advice. Further, they argue that financial gain is required to enhance the penalty for violating the statute but is not required for conviction under the statute itself.
The arguments presented in U.S. v. Sineneng-Smith, and the decision of the court, could have consequences far beyond the courtroom and the case will be followed closely by immigration stakeholders inside and outside the government.
The brief of the United States can be viewed here.
The brief of the respondent in this case, Ms. Sineneng-Smith, can be viewed here.
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