Court Divide: Conservative Judges Say Enforce Immigration Law While Libs Want More Migrants

Asylum-seekers wait at a Greyhound bus station in El Paso, Texas, after being dropped off by Immigration and Customs Enforcement, on Dec. 23, 2018. (PAUL RATJE/AFP/Getty Images)
PAUL RATJE/AFP/Getty Images

Conservative judges on the U.S. Appeals Court want the United States Supreme Court to overrule a case that sided with liberal justices who say encouraging illegal aliens to stay in the United States is a matter of free speech.

Nine conservative judges said a federal immigration law that makes such behavior a crime should apply.

But the U.S. appeals court said on Monday a majority of its 29 judges had rejected the government’s request for a new hearing before a larger panel.

The conservative justices want to uphold a 1985 law that says anyone who “encourages or induces” an unauthorized immigrant to enter or live in the U.S., knowing or in “reckless disregard” of the fact that the immigrant’s presence is illegal, could be found guilty of a felony, punishable by up to 10 years in prison.

In the Sacramento case, the Ninth U.S. Circuit Court of Appeals ruled 3-0 in February that the law violates freedom of speech because it could be to interpreted as merely advice about available social or legal services.

The ruling says, in part:

Vacating convictions on two counts of encouraging or inducing an alien to reside in the United States for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), and remanding for resentencing, the panel held that subsection (iv) is overbroad and unconstitutional.

The panel interpreted subsection (iv) as prohibiting someone from (1) inspiring, helping, persuading, or influencing, (2) through speech or conduct, (3) one or more specified aliens (4) to come to or reside in the United States in violation of civil or criminal law.

The panel rejected the government’s argument that subsection (iv) is limited to speech integral to criminal conduct, specifically solicitation and aiding and abetting. Accepting the government’s position that prosecutions for procuring and providing fraudulent documents and identification information to unlawfully present aliens, assisting in unlawful entry, misleadingly luring aliens into the country for unlawful work, and smuggling activities “form the core” of subsection (iv)’s plainly legitimate sweep, the panel wrote that it is apparent that subsection (iv)’s legitimate sweep is relatively narrow.

The panel wrote that subsection (iv) covers a substantial amount of speech protected by the First Amendment, given that 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 wrote that subsection (iv)’s narrow legitimate sweep pales in comparison to the amount of protected expression encompassed by the subsection. The panel concluded that subsection (iv) is therefore facially overbroad.

Judges Sandra Ikuta, Consuelo Callahan, Ryan Nelson, Kenneth Lee, Lawrence VanDyke, Mark Bennett and Daniel Bress joined the dissent. All were appointed by Republican presidents.

The original case involved Helaman Hansen, who ran a Sacramento business from 2012 to 2016 and offered fake citizenship to hundreds of migrants who went through staged adoption ceremonies. Hansen was convicted in 2017 of two counts of violating the law and was sentenced to 20 years in prison. 

In its February ruling, the Ninth Circuit upheld his separate conviction for fraudulently misleading the immigrants, which also carried a 20-year prison sentence, but also ruled the law that banned “encouraging or inducing” illegal aliens stay in the U.S. was unconstitutional.

The case is United States v. Hansen, No. 2:16-cr-00024 before the United States Court of Appeals for the Ninth Circuit.

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