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Free Speech

Court Strikes Down Ban on "Encourag[ing] or Induc[ing] an Alien to Come, Enter, or Reside" in the U.S.

The majority reads the statute broadly, and holds it's unconstitutionally overbroad; the dissent would read it more narrowly, as limited to constitutionally unprotected solicitation of specific criminal conduct.


From today's Tenth Circuit decision in U.S. v. Hernandez-Calvillo, written by Judge Nancy Moritz and joined by Judge Scott Matheson.

This appeal involves the constitutionality of a federal immigration statute that makes it a crime to encourage or induce a noncitizen to reside in the United States, knowing or recklessly disregarding that such residence violates the law…. We [conclude that] Section 1324(a)(1)(A)(iv)'s plain language targets protected speech, and neither the government's nor the dissent's proposed limiting construction finds support in the statute's text or surrounding context. And when properly construed, the statute criminalizes a substantial amount of constitutionally protected speech, creating a real danger that the statute will chill First Amendment expression….

Subsection (A)(iv), the provision challenged as overbroad here, makes it a crime to "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." …

The government maintains that … the statute does not use the words encourage and induce in their ordinary sense; instead, the government asserts, it uses them as synonyms for the criminal-law concepts of facilitation (also known as aiding or abetting) and solicitation. In other words, the government reads subsection (A)(iv) as targeting those who facilitate or solicit others to engage in certain illegal immigration activity—specifically, unlawfully "com[ing] to, enter[ing], or resid[ing] in the United States." [But the court disagreed, for reasons I generally omit here. -EV] … The ordinary meanings of encourage and induce encompass both conduct and speech, and nothing in the statutory language or surrounding context suggests that Congress gave those terms a narrower meaning akin to the criminal-law concepts of facilitation and solicitation….

Our conclusion that subsection (A)(iv) reaches at least some speech does not end the analysis, of course, because the First Amendment does not protect all kinds of speech. Indeed, the Supreme Court has long recognized several "narrowly limited" categories of unprotected speech, "the prevention and punishment of which … raise [no] [c]onstitutional problem." These categories include "obscenity, defamation, fraud, incitement, and speech integral to criminal conduct." The government invokes the last category, arguing that any speech covered by subsection (A)(iv) is unprotected because it is "integral to criminal conduct."

But based on our construction of subsection (A)(iv), this narrow category does not cover all the speech the statute can reach…. [S]ubsection (A)(iv) prevents a person from encouraging or inducing a noncitizen to "reside in the United States," even though such residence is not a crime. It is thus possible under subsection (A)(iv) to punish speech encouraging an act that is only civilly unlawful. So in at least some cases, the narrow category of unprotected "speech integral to criminal conduct" will not apply.

{We reject the government's suggestion that this category of unprotected speech includes speech integral to unlawful activity of any kind, civil or criminal. The Supreme Court has described the category as covering only speech integral to "criminal conduct." Indeed, the case first recognizing this category confirms its limited application to speech "used as an integral part of conduct in violation of a valid criminal statute." Giboney v. Empire Storage & Ice Co. (1949) (emphasis added). The government supports its contrary view with cases involving a different category of unprotected expression—"[o]ffers to engage in illegal transactions." U.S. v. Williams (2008); see also Pittsburg Press Co. v. Pittsburgh Comm'n on Hum. Relations (1973) (upholding ordinance barring newspaper from publishing advertisements for transactions that were unlawful under both civil and criminal laws). No one argues that this transactional category applies here, so the government's reliance on these cases is misplaced.}

Notably, subsection (A)(iv)'s language is also broad enough to sweep in even protected "abstract advocacy of illegality." Williams; see also Ashcroft v. Free Speech Coal. (2002) ("The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it."). {The First Amendment protects such advocacy so long as it is neither "directed to inciting or producing imminent lawless action" nor "likely to incite or produce such action." Brandenburg v. Ohio (1969). The government does not suggest that this exception would apply to speech advocating the illegal immigration conduct subsection (A)(iv) proscribes.}

Again, subsection (A)(iv) does not require specific intent that a noncitizen commit unlawful immigration conduct. Nor does it require that such unlawful conduct ever occurs—simply encouraging someone to come to, enter, or reside in the United States (either knowing or recklessly disregarding that person's unlawful status) violates subsection (A)(iv), regardless of whether the noncitizen actually comes to, enters, or resides in the United States. So the statement to a noncitizen, "I encourage you to [reside in the United States]," would support a conviction under subsection (A)(iv), even if the noncitizen takes no action in response to the encouragement….

Although subsection (A)(iv) criminalizes some protected speech, the provision is facially overbroad only if it criminalizes "a substantial amount of protected speech." … That number must be substantial "not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." So to assess subsection (A)(iv)'s overbreadth, we must compare its "legitimate and illegitimate applications." …

We start by assessing subsection (A)(iv)'s constitutionally permissible applications. The government maintains that subsection (A)(iv) covers a wide range of "significant real-world criminal activity." It points to criminal activity related to (1) procuring and providing fraudulent documents to noncitizens, (2) helping noncitizens enter the United States, (3) luring noncitizens for unlawful work, and (4) smuggling activities.

But for each of the government's examples, as Appellees note, other statutes independently—and more narrowly—proscribe these activities…. The availability of these alternative prosecutorial tools dilutes the force of subsection (A)(iv)'s legitimate applications. See Keyishian v. Bd. of Regents of Univ. of State of N.Y. (1967) ("The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.").

When asked at oral argument to identify an example of unprotected, proscribable speech or conduct that could only be prosecuted under subsection (A)(iv), the government pointed to United States v. Kalu (10th Cir. 2015), U.S. v. Sineneng-Smith (9th Cir. 2020), and this case. But these examples only prove subsection (A)(iv)'s redundancy.

The first two examples both involved a host of additional charges on top of a subsection (A)(iv) offense. In Kalu, the government secured convictions on 89 counts for mail fraud (18 U.S.C. § 1341), visa fraud (18 U.S.C. § 1546), forced labor (18 U.S.C. § 1589), trafficking in forced labor (18 U.S.C. § 1590), money laundering (18 U.S.C. § 1956), and encouragement and inducement under subsection (A)(iv). The government did not explain what aspect of the conduct in Kalu might have gone unpunished if not for subsection (A)(iv). And in Sineneng-Smith, besides the subsection (A)(iv) convictions, the government also obtained convictions for mail and tax fraud. If anything, Kalu and Sineneng-Smith display the vast array of enforcement tools available to the government.

So does this case, the government's final example of conduct proscribed solely by subsection (A)(iv). Here too, the government secured convictions for other crimes—another crew leader pleaded guilty to hiring a noncitizen in violation of 8 U.S.C. § 1324a(a)(1)(A), and Torres separately pleaded guilty to conducting an unlicensed money-transmitting business in violation of 18 U.S.C. 1960. Instead of focusing on these convictions, the government points to Appellees' particular conduct, arguing that only subsection (A)(iv) "cover[s] their participation in a scheme designed to pay and putatively insure unlawfully present [noncitizens]." Rep. Br. 6. But the government has prosecuted similar conduct as "conceal[ing], harbor[ing], or shield[ing] from detection" under subsection (A)(iii)….

On the other side of the ledger, we are convinced that many of subsection (A)(iv)'s potential applications involve protected speech. As Appellees note, the statute punishes "any words spoken in encouragement of a[] … noncitizen's continued residence in the United States, so long as the speaker knows or recklessly disregards the noncitizen's immigration status." And recall that, as we noted when interpreting the statute, the defendant's encouraging words need not have any effect on the listener….

It is reasonable to conclude that vast amounts of protected speech would be swept up in a "criminal prohibition of [such] alarming breadth." The statute makes it a crime, for example, to tell a family member who has overstayed his or her visa, "I encourage you to reside in the United States"; to "tell[] a tourist that she is unlikely to face serious consequences if she overstays her tourist visa"; or to inform a noncitizen "about available social services." And an immigration attorney could face prosecution for "providing certain legal advice to [noncitizens]." Although impossible to quantify with exact precision, these "commonplace statements" are "likely repeated countless times across the country every day." As a result, subsection (A)(iv) is surely "violated scores of times daily."

The government downplays these examples as "fanciful hypotheticals," emphasizing the lack of actual prosecutions involving protected speech. But actual prosecutions are not required to prove a statute's overbreadth. The First Amendment "does not leave us at the mercy of noblesse oblige," and we will not "uphold an unconstitutional statute merely because the [g]overnment promise[s] to use it responsibly." Stevens. And in any event, the examples above are not so fanciful considering the government's prosecution in United States v. Henderson (D. Mass. 2012).

In Henderson, the government brought a subsection (A)(iv) charge against a federal immigration official for encouraging her housekeeper, a noncitizen, to remain in the United States by "advis[ing] the [housekeeper] generally about immigration law." This advice included the statement, "[I]f you leave[,] they won't let you back." When questioned by the trial judge about subsection (A)(iv)'s scope at a hearing, the prosecutor "contended that an immigration lawyer would be prosecutable" under subsection (A)(iv) "if he [or she] advised a[] [noncitizen] client to remain the country because if the [noncitizen] were to leave[, that person] could not return to seek adjustment of status." The prosecutor took this position even though the immigration lawyer would be advising the client on "how to pursue entirely legal processes." …

Judge Bobby Baldock dissented, reasoning that the statute should indeed be read as limited to generally constitutionally unprotected solicitation of "criminal violations of immigration law."

Disclosure: I didn't participate in this case, but I did file an amicus brief on basically the same question in U.S. v. Sineneng-Smith, when it was before the Ninth Circuit; that brief, which the dissent cites, argued that the statute should indeed be read narrowly, as limited to solicitation of criminal conduct….