Is It Illegal to Encourage Unlawful Behavior?

If you tell someone to violate the law, is that a punishable crime? Simply put, that case comes before the Supreme Court on Feb. 25. Justices will consider whether to uphold the conviction of a woman whose crime was advising immigrants to break the law. Will the justices rule that the First Amendment forbids making this a crime, or try to avoid that question altogether?

Labor Certification Adjustment Scheme

Evelyn Sineneng-Smith is a fraudster who plied her trade among the most vulnerable – people with tenuous immigration status. She marketed herself as someone who advises undocumented or illegal immigrants on how to change their status using her extensive knowledge of the system. Her immigrant clients were looking for ways to improve their immigration status legally and thought that’s what they were buying from Sineneng-Smith. She defrauded them.

A provision of our labyrinthine immigration and naturalization law is that an “adjustment” in legal status for permanent residents or green card holders was possible for those who were both in the United States as of Dec. 21, 2000, and had a Labor Certification Application filed on their behalf with the Department of Labor by an employer on or before April 30, 2001. Sineneng-Smith knew the program barred people who fell outside those requirements but sold them her services touting her ability to use the little-known adjustment regulation anyway.

People who came after Dec. 21, 2000, or whose certification application was filed after April 30, 2001, could not use Section 245(i). Even though Sineneng-Smith was aware that a client’s status fell outside the time limits of the program, she continued offering her services. The Ninth Circuit Court of Appeals found that she defrauded 2,000 clients this way, all of whom could never qualify for an adjustment under the program. It also reversed one conviction on free speech grounds, which got her case to the highest court in the land.

Inducement

While her fraud conviction is in place, the government is at the Supreme Court challenging the reversal of one of Sineneng-Smith’s convictions – for encouraging people to live in the United States in violation of the immigration laws. According to 8 U.S.C. § 1324(a)(1)(A)(iv), you are guilty of a federal crime if you encourage or induce “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.” 

Sineneng-Smith calls her language free speech and claims the inducement crime infringes upon it, making the crime unenforceable. She was convicted of that crime in the district court, but the Ninth Circuit threw it out, calling the law “unconstitutionally overbroad in violation of the First Amendment…”

Arguing via hypothetical, the Cato Institute brief in the case lays out how the prosecution of this crime may affect an earnest advocate, one who does not seek to defraud clients.

“For example, the government may convict an immigration attorney of this crime merely by showing that the attorney, knowing her client was present unlawfully, counseled her about the advantages to remaining in the United States -- and did so in the hope that she might receive a fee.”

Cato joins a host of organizations submitting briefs in the case. They are concerned about the potential liability this law may impose if upheld on anyone who advises on immigration matters generally, and specifically to those with questionable legal status. While it did not do so in the lower courts, the federal government is now arguing that the law can pass muster as a crime of solicitation and not speech. Law Professor Gabriel J. Chin writes, “Perhaps the only way the courts will be able to reconcile Section 1324 with other parts of federal law is by interpreting it as primarily applicable to smugglers and their cohorts, rather than to people who encounter unauthorized migrants who are settled in the United States in ordinary commercial, social, religious, charitable and legal contexts.” We’ll see if the justices agree.

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Read more from Scott D. Cosenza.