Published on: Friday, October 4, 2019

Today, the United States Supreme Court granted certiorari to decide “[w]hether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.” 

Section 1324(a)(1)(A)(iv) permits a felony prosecution of any person who “encourages or induces an alien to come to, enter, or reside in the United States” if the encourager knew, or recklessly disregarded “the fact that such coming to, entry, or residence is or will be in violation of law.”  The Ninth Circuit Court of Appeals held that subsection iv is unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression.  See United States of Am. v. Sineneng-Smith, 910 F.3d 461, 483 (9th Cir. 2018) (“It is apparent that Subsection (iv) is susceptible to regular application to constitutionally protected speech and that there is a realistic (and actual) danger that the statute will infringe upon recognized First Amendment protections.”).

The Ninth Circuit's opinion is available here.  Certiorari stage briefing is available on the Supreme Court’s website hereThe Training Division provides resources on immigration and offenses involving noncitizens