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Second chance to evaluate ban on encouraging unlawful immigration

Petitions of the week
A courier drops off a package at the Supreme Court

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Two years ago, in United States v. Sineneng-Smith, the justices reversed a circuit-court decision that struck down a federal law criminalizing the act of “encourag[ing] or induc[ing]” noncitizens to enter or remain in the United States for financial gain. The court’s unanimous but procedural ruling dodged the larger question of whether the law is unconstitutionally overbroad because it prohibits speech that is protected under the First Amendment. This week, we highlight cert petitions that ask the court to consider, among other things, a revived First Amendment challenge to the law head-on.

Helaman Hansen ran an immigration-advising service called Americans Helping America Chamber of Commerce. From 2012 to 2016, Hansen earned an estimated $1.8 million charging people in the United States without authorization for a non-existent pathway to citizenship through adult adoption. A federal court in California convicted Hansen of multiple counts of fraud, as well as convincing two of his customers to overstay their visas and participate in his adoption program in violation of the encourage-or-induce statute.

Hansen appealed to the U.S. Court of Appeals for the 9th Circuit. In the interim, the 9th Circuit issued its ruling in Sineneng-Smith. The encourage-or-induce ban is unconstitutionally overbroad, the 9th Circuit reasoned in that case, because it penalizes general, benign immigration advocacy on behalf of people in the country without authorization. In response, Hansen raised the First Amendment overbreadth issue in his own 9th Circuit appeal.

The 9th Circuit placed Hansen’s case on hold while the justices considered its ruling in Sineneng-Smith. After the justices reversed that ruling on procedural issues not present in Hansen’s case, the circuit court resumed Hansen’s appeal and reiterated its previous conclusion on the law. The 9th Circuit again struck down the statute as overbroad, reversed Hansen’s convictions under it, and ordered resentencing on his fraud convictions alone.

In United States v. Hansen, the government appeals the 9th Circuit’s repeated conclusion in Hansen’s case that the encourage-or-induce statute is unconstitutionally overbroad in violation of the First Amendment. The government argues that the terms “encourage” and “induce” have a long history of specific association with aiding and abetting criminal conduct. Criminalizing the encouragement or inducement of immigration violations for financial gain, the government maintains, is perfectly consistent with the general principle that the First Amendment does not protect speech that is intended to instigate illegal activity.

A list of this week’s featured petitions is below:

United States v. Hansen
21-179
Issue: Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

Resurrection School v. Hertel
21-181
Issues: (1) Whether under the voluntary cessation exception to mootness a government must satisfy the “absolutely clear” standard and, if not, to what extent the government should be treated differently from private defendants; (2) whether the government is owed a presumption of good faith under the voluntary cessation exception to mootness when it retains the authority and interest to re-impose its challenged policy; and (3) whether a claim is capable of repetition yet evading review when the government retains the authority to re-issue a restriction that imposes the same harm in the same way.

Cowan v. Warden
21-183
Issues: (1) Whether a claim is cognizable under Heck v. Humphrey when a plaintiff would be required to disprove any part of the unqualified factual basis for his conviction in order to succeed in the tort action; (2) whether, under Heck, a 42 U.S.C. § 1983 action for excessive force can be barred against officers who were not named in the criminal charge upon which the plaintiff was convicted; (3) whether, under the doctrine of judicial estoppel, a criminal defendant who receives the benefit of a plea agreement can assert facts which are in direct conflict with the stipulated factual basis that supports his underlying conviction, without offering any explanation for the inconsistent positions; and (4) whether the U.S. Court of Appeals for the 9th Circuit erred in denying qualified immunity to the officers when the only material fact disputed by the plaintiff was directly in conflict with the unqualified stipulated factual basis for his underlying criminal plea.

Mansfield v. Williamson County, Texas
21-186
Issue: Whether the due process right recognized in Brady v. Maryland requires the disclosure of exculpatory evidence (or at the very least, evidence of factual innocence) during pretrial plea negotiations.

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