Law Against “Encouraging Illegal Immigration” Struck Down

 Posted on February 27, 2019 in Immigration

A federal case out of California has interesting ramifications for the family and loved ones of immigrants - and quite possibly their attorneys! On December 4, 2018, the 9th Circuit overturned the convictions of one woman who was convicted of violating provisions of the Immigration & Nationality Act (INA) that made knowingly ‘encouraging’ or ‘inducing’ someone to enter the U.S. or remain in the U.S. without documentation a felony. The court held that the provision affected a range of free speech issues and was likely overbroad.

Relevant Provision Too Broad

The relevant section of the law states that it is unlawful to “encourage or induce” an alien to enter or reside in the U.S. without documentation if one is aware that their arrival/entry/residence in the country will be against the law. It was passed in 1985, during a revamping of the INA, and its initial intent was to punish alien smugglers and others who might try to suborn people into unlawful entry and residence, and any other malevolent actor who might try to convince aliens out of status to remain in the country when they ought to have departed.

The woman was working as an immigration consultant, and in that capacity, she had several clients for whom she helped obtain labor certifications. However, she did so under the impression that getting a labor certification was the first step toward seeking lawful permanent residency when, in reality, the program which allowed such an adjustment had expired in 2001. Thus, her work was held to “encourage or induce” undocumented aliens to come to or remain in the U.S., because they believed they could obtain permanent residency.

First Amendment Problems

The woman was convicted on several immigration violations and mail fraud, but on the convictions relating to “encouraging or inducing” her clients to remain in the U.S. despite her knowing it was illegal, she appealed. Her argument was that the specific wording of the law criminalized speech that is protected by the First Amendment. “Encouraging or inducing” does not necessarily have to be active; it can merely be words or hopes. A grandmother hoping that her grandson overstays his visa so that she can see him more often is ‘encouraging,’ even if she does nothing to further that result actually happening.

In the end, the 9th Circuit held that the law could have too much of a chilling effect on speech while not having enough benefit to the country to warrant it - under such a law, for example, immigration attorneys could be jailed for giving advice to their clients if it involved remaining in the country to adjust status or apply for asylum. While still making a point to state that the woman's actions were harmful and potentially damaging to many people (in many cases, her clients remaining in the country while undocumented on her advice could have led to them being barred from the U.S. for any amount of time between ten years and life), the court overturned her convictions on that particular offense.

Contact a Chicagoland immigration Lawyer

The result of the case is a good one for families of immigrants because now they need not fear immigration consequences of their own for merely trying to advise their loved ones. However, to make actual immigration decisions, it is always strongly advised to speak to an experienced attorney. The skilled DuPage County deportation defense lawyers at Mevorah & Giglio Law Offices have years of experience with these cases and will sit down with you to try and determine where you and your loved ones should go from here. Call us today at 630-932-9100 for a free consultation.