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IMMIGRATION AUGUST 25, 2023 | The Indian Eye 50
Will United States
v. Hansen Come Back
to Bite Trump?
By CYRUS D. MEHTA and ed States v. Hansen, held that In our previous blogs, we
speech constituting fraud is noted the troubling implica-
KAITLYN BOX*
not protected under the First tions that Hansen could have
Amendment. Will Hansen for immigration lawyers and
ormer President come back to bite Trump? their ability to effectively ad-
Trump was indicted
In two previous blogs,
Fon August 1, 2023 by here and here, we have dis- vise their clients, as the plain
language of the statute could
Special Counsel Jack Smith cussed the United States be read to prohibit an immi-
for his efforts to overturn v. Hansen case, the cen- gration lawyer from advising
the 2020 elections. Although tral question of which was an undocumented client to
Trump believes his actions whether INA §274(a)(1)(A) remain in the U.S. to avail of
were protected by the First (iv), or the “encouragement an immigration benefit that
Amendment, a recent Su- provision”, which prohibits would be unavailable to the
preme Court case involving individuals from “encour- ag[ing] or induc[ing] an Hansen and amici argued client if he left the country.
an immigration statute, Unit-
alien to come to, enter, that the encouragement pro-
or reside in the United vision could punish even a We also noted that im-
States, knowing or in lawyer who provides certain
reckless disregard of the types of legal advice to a migration lawyers might
fact that such coming noncitizen, or an aide worker choose to adopt a prac-
to, entry, or residence is who advises an undocument-
or will be in violation of ed immigrant to take shelter tice of advising clients
law” is unconstitutional- in the U.S. during a natural only about the risks and
ly overbroad. Helaman disaster.
Hansen, who ran an or- The government sought benefits of remaining in
ganization called Amer- review by the Supreme the U.S., though giving
icans Helping America Court, asserting among other
Chamber of Commerce arguments, that INA §274(a) elliptical advice of this
(“AHA”) purporting to (1)(A)(iv) is not facially over- kind might not always
help undocumented im- broad because the terms “en-
migrants become U.S. courage” and “induce” in the constitute competent
citizens through adult encouragement provision are representation.
adoption, had been con- terms of art borrowed from
victed of violating INA criminal law that refer to In its decision, however,
§274(a)(1)(A)(iv) be- specific and egregious con- the Supreme Court read the
cause he encouraged or duct, namely facilitation and encouragement provision to
induced individuals who solicitation. narrowly apply only to in-
m of participated in his pro- The Supreme Court tentional facilitation and so-
CYRUS D. MEHTA & PARTNERS PLLC gram to overstay their granted certiorari and, in its licitation. By making it clear
decision issued on June 23,
visas on two occasions.
Hansen’s convic- 2023, held that the encour- that the encouragement
tions eventually were agement provision is not un- provision “stretches no fur-
vacated by the Ninth constitutionally overbroad ther than speech integral to
unlawful conduct, which is
Circuit, which held that because it uses “encourage
unprotected”, the Supreme
the encouragement pro- or induce” “in its specialized, Court’s decision may allevi-
vision is overbroad and criminal-law sense—that is, ate, at least in part, concerns
unconstitutional, as it as incorporating common that upholding the provision
prohibits a broad range law liability for solicitation
2 6th Floor of protected speech . and facilitation”. would have a chilling effect
on competent legal advice.
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