The Ninth Circuit invalidated the subsection of a law that makes it a crime to encourage unlawful immigration, ruling Thursday it is overbroad and covers speech that is protected by the First Amendment (article available here).
In a unanimous, published decision, the panel vacated a federal jury's conviction on two counts in a criminal case against a California man who made more than $1 million in a bogus adult adoption immigration scheme. While the panel upheld the conviction of Helaman Hansen on 15 counts, it overturned two counts stemming from the subsection in question — subsection (iv) of Title 8 U.S. Code Section 1324(a)(1)(A).
"Many commonplace statements and actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States," the panel said. "For example, the plain language of subsection (iv) covers knowingly telling an undocumented immigrant 'I encourage you to reside in the United States.' Such a statement is protected by the First Amendment."
Hansen was arrested in 2016 and accused of running an elaborate scheme targeting adult undocumented immigrants with bogus claims that, through adoption, they could gain U.S. citizenship. After receiving the $150 fee, Hansen would continue to raise the rates, sometimes up to $10,000, the prosecutors claimed. About 500 victims paid into the scheme, according to the prosecutors, but not one obtained citizenship.
The panel interpreted subsection (iv) to prohibit someone "from inspiring, helping, persuading, or influencing, through speech or conduct, one or more specified aliens to come to or reside in the United States in violation of civil or criminal law."
The panel agreed that the subsection does encompass some criminal conduct but found that it has a "relatively narrow legitimate sweep" that "pales in comparison" to the amount of protected speech it also covers.
"The government's argument that actual prosecutions show its narrow interpretation of subsection (iv) is unconvincing," the panel said. "Previous prosecutions do not change the plain meaning of a statute. Also, the government's interpretation of subsection (iv)'s reach is subject to change and is irrelevant."
The case is U.S. v. Helaman Hansen, 17-10548, in the U.S. Court of Appeals for the Ninth Circuit.