U.S. Court Strikes Down Law that Makes it a Felony to Encourage Someone to Violate Immigration Law

An appeals court decided unanimously Tuesday to strike down a federal law that makes it a felony to encourage someone to violate immigration laws.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said the law was overly broad and violated constitutional protections for free speech.

The court cited the example of a mother who tells her adult son who’s in the country illegally that she would like him to stay in the U.S. because she would be lonely without him.

“Situations like this one, where a family member encourages another to stay in the country, or come to the country, are surely the most common form of encouragement or inducement within [the law’s] ambit,” wrote Judge A. Wallace Tashima, a Clinton appointee, for the panel.

The decision struck down a provision of an immigration law that has been in effect since 1985.

The provision makes it a felony for someone to encourage or induce a person from another country to come to the U.S. or remain in the U.S. knowing or recklessly disregarding the fact that the action would violate immigration law.

The ruling came in an appeal by Evelyn Sineneng-Smith, who operated an immigration consulting firm in San Jose.

She was convicted on two counts of encouraging and inducing a resident without documentation to remain in the United States for the purposes of financial gain, which the ruling overturned.

She also was convicted of mail fraud, which the panel upheld.

The 9th Circuit said the section of the law it struck down imperiled not only family members but also attorneys who advise clients on immigration matters.

The panel cited the example of an attorney who tells a client to remain in the country while contesting deportation because noncitizens within the U.S. have more rights than those outside the country.

“Under the the statute’s clear scope, the attorney’s accurate advice could subject her to a felony charge,” the panel said.

The panel said the examples it cited were “not some parade of fanciful horribles.”

“Instead, they represent real and constitutionally protected conversations and advice that happen daily,” the court said.

By MAURA DOLAN for LOS ANGELES TIME
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