Court Rules that Encouraging Undocumented Immigration is Protected by First Amendment

A federal appeals court on Tuesday struck down a portion of federal law that makes it a crime to encourage illegal immigration, ruling that the statute violates the First Amendment.

“Criminalizing expression like this threatens almost anyone willing to weigh in on the debate,” Judge A. Wallace Tashima wrote in his opinion for the 9th Circuit Court of Appeals, Politico reported.

Federal prosecutors argued that the law should apply only to individuals who provide “substantial assistance” to immigrants entering or residing in the U.S. illegally, according to Politico, which noted that the law took effect before President Trump took office.

Tashima disagreed with prosecutors, saying that their reading was “strained.”

“Although the ‘encourage or induce’ prong … may capture some conduct, there is no way to get around the fact that the terms also plainly refer to First Amendment-protected expression,” Tashima wrote.

A former California immigration consultant, Evelyn Sineneng-Smith, filed the appeal.

Sineneng-Smith was sentenced in 2015 to 18 months in prison after a jury convicted her on tax and mail fraud charges as well as a violation of the law that the 9th Circuit Court ruled against Tuesday.

Prosecutors argued that she used her business as a scam and urged immigrants to apply for programs that had already ended or for which they were clearly not eligible.

The 9th Circuit Court upheld the other convictions for Sineneng-Smith’s other crimes.

The Justice Department did not immediately respond to a request for comment.

By Megan Keller for THE HILL
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