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Supreme Court seems likely to allow anti-illegal immigration law

 March 28, 2023

In an odd turn of events on Monday, the Biden administration argued before the U.S. Supreme Court in support of a federal law that criminalizes the encouragement or inducement of illegal immigration into the United States.

Even odder is the fact that the Supreme Court's conservative majority appeared inclined during those arguments to rule in favor of the Democratic administration and uphold that law as not violating the U.S. Constitution's protections for free speech, Reuters reported.

A fraudulent "adult adoption" program for illegal migrants

The case involves a California man named Helaman Hansen who was convicted in 2017 on multiple federal charges related to a fraudulent "adult adoption" he ran that deceived illegal migrants into believing that they could remain in the U.S. illegally and eventually gain citizenship, for a cost, if they enrolled in his program.

His Sacramento-based program was in operation from 2012 through 2016 and Hansen was alleged to have convinced at least 471 illegal migrants to pay him $10,000 to join the program, even though he knew that it wouldn't result in their becoming citizens, and reportedly earned more than $1.8 million through the fraudulent scam.

He had been convicted at the district court level but the 9th Circuit Court of Appeals had thrown out the conviction for the statute in question while it upheld the convictions on other fraud-related charges.

Hansen, who is currently out of prison while his appeal is pending, faces more than 20 years behind bars, mostly for mail and wire fraud convictions.

Criminalized speech for encouraging or inducing immigration law violations

The case, known as United States v. Hansen, asks the Supreme Court to consider "Whether the federal criminal prohibition against encouraging or inducing unlawful 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 on First Amendment overbreadth grounds."

The first of those two statutes, Sec. 1324 (a)(1)(A)(iv) imposes criminal penalties on anyone who "encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law."

The penalties for that crime are laid out in Sec. 1324 (a)(1)(B)(ii), with a fine and up to five years in prison for violations of (A)(iv), as well as in (B)(i), which also imposes a fine but increases the maximum prison sentence to up to 10 years if "the offense was done for the purpose of commercial advantage or private financial gain."

ACLU says law is overbroad, infringes on normal protected speech

The American Civil Liberties Union, which is representing Hansen alongside a federal defense attorney, argued that the law that prohibits the "encouragement" or "inducement" to violate immigration laws is overbroad and criminalizes ordinary speech that should be protected under the First Amendment.

They further argued that, in the case of illegal entry into the U.S. or overstaying a visa, those aren't even actual crimes but are merely civil offenses that aren't punishable to the same extent as the above statute in question.

"The encouragement provision criminalizes protected speech," Carolyn Wiggin, Hansen's federal defense attorney, said in a February statement. "Contrary to the government’s argument, encouraging a person to overstay their visa is not a crime because overstaying a visa is not a crime. The government is trying to punish speech about an activity more harshly than it punishes the activity itself."

Government argues law is interpreted narrowly in connection to other crimes

SCOTUSblog reported that the federal government argues that the law is not overbroad or unconstitutional and should be interpreted narrowly as being akin to other speech-related crimes like "aiding and abetting" or "soliciting," as well as the speech's relation to other crimes like fraud.

It was further argued that it didn't pertain to such things as "general advocacy" in support of illegal immigration.

Interestingly enough, Reuters reported that the Supreme Court's conservative-leaning majority appeared to be inclined to side with the Biden administration's narrow interpretation of the statute while the liberal-leaning minority of justices seemed to align with the ACLU's much broader interpretation of the law in question.

SCOTUSblog noted that how the high court ultimately rules in this case could extend far beyond just illegal immigration and have an impact on other laws and cases involving free speech and the First Amendment.

It is expected that a ruling in this case will be released to the public in June.