This spring, the Supreme Court will decide on the constitutionality of a law that criminalizes encouraging illegal immigrants to stay in or come to the US.
Three years ago, the court heard arguments on the same issue, and several of them suggested that the law was a violation of the First Amendment as it could turn commonplace statements into crimes.
At the time, Justice Brett Kavanaugh asked if a charity that provided food to “people who can’t get it elsewhere and they know that the people taking advantage of that are here unlawfully” was committing a felony.
Chief Justice John Roberts imagined “a grandmother whose granddaughter is in the United States illegally.” He asked if the grandmother would be committing a crime if she asked her granddaughter to stay.
According to Justice Sonia Sotomayor, the law would even cover legal advice.
However, the court unanimously decided not to make a ruling in the case because the First Amendment question had not been raised by the parties involved, including by those who filed amicus briefs.
But last month, the Supreme Court agreed to decide a case involving prosecution under the 1986 law after the defendant challenged it on First Amendment grounds.
We obtained a copy of the petition for you here.
Helaman Hansen was convicted of violating the law by charging huge fees to help immigrants obtain citizenship via adult adoption. The defendant was also charged with mail and wire fraud because it was found to be a scam.
“Hansen admitted to federal agents that no one had achieved US citizenship through the program, and it is not possible to become a US citizen through adult adoption,” Judge Ronald Gould wrote for the panel of the Court of Appeals for the Ninth Circuit. The panel upheld the fraud convictions but reversed the conviction under the 1986 law.
Gould wrote that the law was unconstitutional because “many commonplace statements and actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States.” He added that it would only take “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States’” for someone to commit a felony.
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