Immigration law on giving advice tossed by U.S. court

A long-standing immigration law that imposes criminal punishment for “encouraging or inducing” someone to enter or remain in the United States illegally violates freedom of speech, a federal appeals court ruled Tuesday.

People can be punished for helping others to violate the law, including the law against illegal entry, but “encouraging” and “inducing” are typically acts of expression that cannot be criminalized, said the Ninth U.S. Circuit Court of Appeals in San Francisco. And the court noted that it is not a crime to remain in the U.S., even for someone who entered without authorization.

The law, passed in 1985, “potentially criminalizes the simple words — spoken to a son, a wife, a parent, a friend, a neighbor, a co-worker, a student, a client — ‘I encourage you to stay here,’ ” Judge A. Wallace Tashima said in the 3-0 ruling. “The statute thus criminalizes a substantial amount of constitutionally protected expression.”

Although the law has not been used much, Tashima said, it might be invoked to prosecute a

grandmother who encourages her grandson to overstay his visa, or a speaker at a rally who calls out, “I encourage all you folks out there without legal status to stay in the U.S.” in support of a campaign to change immigration laws.

Lawyers for the city of San Francisco told the court that the Trump administration’s director of Immigration and Customs Enforcement had threatened to use the law to prosecute city officials for allegedly shielding undocumented immigrants from federal agents through the city’s “sanctuary” policy.

Attorney Mark Fleming, who filed arguments for the Immigrant Defense Project and the National Lawyers Guild, said lawyers might also be prosecuted for advising an undocumented client to remain in the U.S.

“The mere risk of that happening has a chilling effect on people,” Fleming said.

Other federal courts have upheld the law by interpreting it narrowly to cover only advice that aids in lawbreaking. The Justice Department, which could appeal the ruling, did not respond to a request for comment.

The case came from San Jose, where Evelyn Sineneng-Smith operated an immigrant counseling firm, mostly for Philippine migrants working in health care. She was convicted in 2015 of telling two undocumented clients she could help them obtain work permits and legal residence even though she knew the law allowing those benefits had already expired. The clients told investigators they would have left the U.S. if they had known the truth.

The court overturned her two felony convictions for encouraging her clients to remain in the country, but upheld two separate mail fraud convictions for sending retainer agreements to her clients saying she would help them legalize their status. She also pleaded guilty to filing false tax returns. She was sentenced to 18 months in prison but has been free on bail during her appeal.

Her lawyer, Daniel Cook, said he would continue to appeal the mail fraud convictions, arguing that SinenengSmith did not actually defraud her clients because her advice could have helped them gain legal status under bills then pending in Congress. But he said the court’s ruling on free speech was important.

If the 1985 law remained intact, Cook said, “no undocumented immigrant could ever get advice from anyone” without a risk that the adviser would be prosecuted.