Supreme Court Weighs Whether Encouraging Unlawful Immigration Is a Crime

WASHINGTON — The Supreme Court on Tuesday seemed doubtful that a 1986 federal law that makes it a crime to “encourage” unauthorized immigrants to come to or stay in the United States could be squared with the First Amendment.

“The statute isn’t aimed at speech,” said Eric J. Feigin, a lawyer for the federal government defending the law.

But several justices appeared skeptical, saying that the ordinary meaning of the word “encourage” could subject countless people to criminal liability.

Chief Justice John G. Roberts Jr. asked about “a grandmother whose granddaughter is in the United States illegally.” Would it be a crime, he wanted to know, if she told her granddaughter, “I hope you will stay because, you know, I will miss you; things will not get better if you go back, so I encourage you to stay”?

Mr. Feigin said the court should read the law narrowly to protect such statements. “Something that abstract and attenuated is not going to be criminal complicity,” he said.

The examples kept coming. Justice Brett M. Kavanaugh asked about charities providing food to unauthorized immigrants. Mr. Feigin said that might be covered by the law, subjecting the charity to prosecution.

Justice Stephen G. Breyer asked about “the landlady who says to the person, ‘You always have a place here,’ knowing that that person is illegally in the United States.”

“Or, you know, we can list universities, church groups — I mean, you name it — sanctuary cities,” he continued.

Justice Samuel A. Alito Jr. asked if insistent repetition could turn a statement into a crime. “If the defendant says it 10 times in a forceful voice,” he asked, “that would be a violation?”

Mr. Feigin said the court should limit the law to narrow circumstances that would exclude many of the scenarios that troubled the justices. The defendant, he said, must want to bring about the result of inducing the immigrant to come or stay; the immigrant must understand what was going on; and the defendant must be a substantial participant in the effort.

Mark C. Fleming, a lawyer for the defendant, Evelyn Sineneng-Smith, said the government’s proposal would amount to wholesale and improper revision of the federal statute, one he said currently applies to teachers, pastors, doctors and lawyers.

Ms. Sineneng-Smith ran an immigration consulting firm in San Jose, Calif. Her clients, mostly from the Philippines, worked without authorization in the home health care industry. Ms. Sineneng-Smith offered to help them get green cards under a Labor Department certification program that she said would give them permanent resident status and allow them to work legally.

But the program had expired. Ms. Sineneng-Smith nonetheless charged her clients $6,800 to file applications she knew to be futile. She was convicted of mail fraud, a conviction she did not challenge in the Supreme Court, and of violating the 1986 law.

Justice Elena Kagan asked whether there had been prosecutions of more sympathetic defendants of the sort her colleagues had been asking about. Mr. Fleming had one example.

In 2012, a Massachusetts woman, Lorraine Henderson, was convicted of hiring an unauthorized immigrant to clean her home and of offering general and not always reliable advice about immigration law.

In that case, Judge Douglas P. Woodlock, of the Federal District Court in Boston, wrote that the “plain and unadorned language” of the law “can be read to cast a wide net over those who interact with illegal aliens by offering employment.”

Mr. Fleming urged the justices to focus on the words of the law. “This is a statute that uses very broad words,” he said. “It uses them in the context in which all they can do is ban free speech.”

“I would submit,” he said, “that the First Amendment is wisely designed to protect us from just this kind of a law.”

Several justices, seemingly eager to find a middle ground, cited a friend-of-the-court brief filed by Eugene Volokh, a law professor at the University of California, Los Angeles, mentioning it 11 times.

Professor Volokh argued that the First Amendment did not protect speech that was integral to crimes. But he said speech that encouraged civil violations, like some immigration offenses, could not be made criminal.

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