Page 34 - The Indian EYE 011323
P. 34
IMMIGRATION JANUARY 13, 2023 | The Indian Eye 34
United States v. Hansen:
Supreme Court Once Again Agrees to Hear
Constitutionality of a Smuggling Statute That
Could Impact Immigration Lawyers
n December 9, 2022, many undocumented immi- tional as applied to him, but practitioner who operated unprotected free speech. The
the Supreme Court grants had successfully be- the district court denied his an immigration consulting court provided several exam-
Ogranted certiorari in come U.S. citizens through motion. firm in San Jose, California. ples of seemingly innocuous
United States v. Helaman his program. In reality, it is Hansen then appealed Sineneng-Smith represented conduct that could consti-
Hansen, a case that poses the not possible to obtain U.S. to the Ninth Circuit, ar- mostly natives of the Philip- tute a criminal violation of
question whether the feder- citizenship through adult guing in relevant part that pines who were unlawfully the provision, including one
al criminal prohibition on adoption. Hansen was con- INA §274(a)(1)(A)(iv) is employed in the home health that is especially troubling
encouraging or inducing un- victed of several counts of facially overbroad under the care industry and who sought for immigration lawyers –
lawful immigration for com- fraud in California, and was First Amendment. The gov- to adjust their status to per- an attorney telling her client
mercial advantage or private found to have violated INA ernment argued that that manent residence through that she should remain in the
financial gain in violation of §274(a)(1)(A)(iv) because subsection (iv) was limited the filing of a labor certifica- country while contesting re-
INA §274(a)(1)(A)(iv) is un- he encouraged or induced to speech integral to crim- tion by an employer. These moval, because, for example,
constitutionally overbroad. individuals who participated inal conduct, specifically clients were not eligible to non-citizens within the Unit-
Helaman Hansen ran an or- in his program to overstay solicitation and aiding and apply for adjustment of sta- ed States have greater due
ganization called Americans their visas on two occasions. abetting. The Ninth Circuit tus in the United States un- process rights than those
Helping America Chamber He first moved to dismiss the disagreed, holding that the der INA § 245(i) which ex- outside the United States,
of Commerce (“AHA”) that two fraud counts that were provision prohibits a broad pired on April 30, 2001 and and because as a practical
purported to help undocu- based on a violation of INA range of protected speech. they also did not appear to matter, the government may
mented immigrants become INA §274(a)(1)(A)(iv) on One could violate 8 U.S.C. be grandfathered under this not physically remove her
U.S. citizens through adult the ground that this provision § 1324(a)(1)(A)(iv) mere- provision. Although Sine- until removal proceedings
adoption. Hansen falsely ad- is facially overbroad, void for ly by “knowingly telling an neng-Smith knew that her have been completed. The
vised these individuals that vagueness, and unconstitu- undocumented immigrant ‘I clients were not eligible un- Supreme Court ultimately
encourage you to reside der 245(i), she continued dismissed the case on oth-
in the United States’”, to sign retainer agreements er grounds, particularly for
the court reasoned. The with them and tell them that having departed from the
court held INA §274(a) they could apply for green party presentation principle.
(1)(A)(iv) is unconstitu- cards in the United States. It remains to be seen
tionally overbroad, and At least two of the clients how the Supreme Court
reversed Hansen’s con- testified that they would have rules in Hansen, but its de-
victions under this pro- left the country if they were cision could carry important
vision. The government advised that they were not el- implications for immigration
is seeking review of the igible to apply for permanent lawyers. Given the striking
Ninth Circuit’s decision residence. breadth of INA §274(a)(1)
at the Supreme Court, Sineneng-Smith was (A)(iv), a lawyer telling an
arguing in part that it convicted by a jury on two undocumented client sim-
has historically con- counts of encouraging and ply “I encourage you to re-
strued the “encourage” inducing an alien to remain main in the United States”
or “induce” language of in the United States for the – perhaps because the client
INA §274(a)(1)(A)(iv) purposes of financial gain, in would later become eligible
very narrowly to prose- violation of INA §274(a)(1) to seek adjustment of status –
cute those who engaged (A)(iv) and INA §274(a)(1) could render her vulnerable
in serious criminal con- (B)(i). She was also convicted to prosecution. The Ninth
duct. on two counts of mail fraud Circuit in Hansen provided
The same First in violation of 18 U.S.C. numerous other examples of
m of Amendment over- §1341. The Ninth Circuit re- protected speech that could
CYRUS D. MEHTA & PARTNERS PLLC breadth argument at versed her convictions under potentially be prosecutable
issue in Hansen was ad-
INA §274(a)(1)(A)(iv) and according to the plain text
dressed two years ago INA §274(a)(1)(B)(i) on the of the statute, including en-
in United States v. Ev- ground that “encourage” and couraging an undocumented
elyn Sineneng-Smith. “induce” under their plain immigrant to take shelter
We discussed this case meaning restrict vast swaths during a natural disaster,
at length in a previous of protected expression in advising an undocumented
blog, excerpts of which violation of the First Amend- immigrant about available
are reproduced here. ment despite the government social services, telling a tour-
United States v. Eve- countering that the statute ist that she is unlikely to face
2 6th Floor lyn Sineneng-Smith in- only prohibits criminal con- serious consequences if she
volved an unauthorized duct and a narrow band of overstays her tourist visa, or
www.TheIndianEYE.com
