U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Encouraging Undocumented Immigration Not Illegal, 9th Circuit Rules

A recent Ninth Circuit appellate opinion explains that the federal law prohibiting individuals from inducing or encouraging undocumented immigration when they know it will be unlawful is unconstitutional.

Simply put, the court explained that the statute criminalized "encouraging," which triggers First Amendment scrutiny and fails that scrutiny for being overly broad. And while amicus in the case, and other immigration advocates, believe the end result is just, the underlying case's facts might be difficult for those same individuals to stomach.

Immigration Consultant

The underlying case involved an immigration consultant who was basically convicted of scamming her customers/clients by encouraging them to stay in the country based upon a law that had expired. The consultant had clients sign retainers, and those clients relied upon her purported expertise as a consultant and stayed in the country unlawfully.

While the government argued that the statute prohibiting inducing or encouraging referred to conduct rather than speech, and conduct is what's at issue here, so the First Amendment was not invoked. But the court disagreed, explaining that the clear meaning of encourage or induce would encapsulate speech and/or conduct, and thus the First Amendment applied.

Luckily for the convicted here, the court agreed that the conviction for this conduct had to be vacated because the law creates an unconstitutional restriction on free speech. Fortunately for the individuals that trusted her to their own detriment, her conviction on mail fraud charges still stand, and she will be resentenced on that conviction.

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