Federal Law Making It a Crime to Encourage Undocumented Aliens to Stay in U.S. Unconstitutional

Several federal laws criminalize behavior that aids the migration of undocumented immigrants into the U.S. For example, it is a crime to smuggle immigrants across the border or to conceal an undocumented immigrant. One such law, 8 U.S.C. § 1324(a)(1)(A)(iv), has been challenged as unconstitutional. It involves a provision that makes it a felony 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 [it] will be in violation of law."

Targeting Criminal Behavior or Free Speech?

The question with § 1324(a)(1)(A)(iv) is whether it targets speech that is integral to criminal conduct (here, aiding and abetting illegal immigration) or instead targets speech protected under the First Amendment.

In 2018, the Ninth Circuit Court of Appeals, held in U.S. v. Sinengeg-Smith that this provision was indeed overbroad. However, in 2020, the Supreme Court unanimously overturned the decision, since neither party had brought up the overbreadth argument in lower courts. As Justice Ginsburg wrote, "the [Ninth Circuit] appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion."

The Supreme Court did not, however, issue a decision on the merits. This meant that a lower court, if given an appropriate case, could again declare § 1324(a)(1)(A)(iv) invalid. In U.S. v. Hansen, a different Ninth Circuit panel did just that.

Invalidated Again

The defendant-appellee in Hansen operated an organization that purported to help immigrants reside legally in the U.S. through adult adoption. Of course, adult adoption is not a valid way to obtain U.S. citizenship, and no one who paid Hansen ever became a U.S. citizen.

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Hansen was convicted on 12 counts, including mail fraud and other federal crimes. Two of those convictions were for "encouraging or inducing unlawful immigration for private financial gain." But the Ninth Circuit panel vacated these two convictions, finding the federal law underlying them to be overbroad. According to Judge Ronald Gould, who wrote the opinion, prohibiting speech that "encourages or induces" coming to the U.S. also prohibits "commonplace statements" such as “I encourage you to reside in the United States." The First Amendment protects these kinds of statements.

Split Circuits

The Ninth Circuit is currently the only federal appellate court to have found § 1324(a)(1)(A)(iv) unconstitutional, as the panel noted in its decision. In 2011, the Fourth Circuit Court of Appeals did not find the same provision overbroad, instead holding in an unpublished opinion that the words "encourage" and "induce" did not prohibit a substantial amount of free speech and was geared toward actions that aided and abetted bringing undocumented immigrants to the U.S.

Should the government appeal (which seems likely), the Supreme Court may take up the case to resolve the circuit court split, particularly since the Ninth Circuit decision invalidates a portion of federal law.

Aiding and Abetting Undocumented Immigration Still Violates Federal Law

While the Ninth Circuit specifically invalidated § 1324(a)(1)(A)(iv), it is important to note that none of the other provisions in § 1324 were similarly held to be overbroad. And because the Ninth Circuit distinguished between "encouraging or inducing" and "aiding and abetting," it is still a violation of federal law to assist in bringing an alien into the U.S. outside of a port of entry or otherwise in violation of federal law.

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