This Report summarizes cases granted review on November 21 and December 1 and 9, 2022 (Part I).

Case Granted Review: United States v. Hansen, 22-179

United States v. Hansen, 22-179. The Court will resolve “[w]hether 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.” Respondent Helaman Hansen

operated a program that “purported to help undocumented immigrants become U.S. citizens through adult adoption,” which he persuaded at least 471 noncitizen victims to join. Although respondent knew that the adult adoptions that he touted would not lead to U.S. citizenship and that “no one had achieved U.S. citizenship” through his program, he charged his victims up to $10,000 to pursue the false hope of that outcome. Respondent’s victims included both noncitizens already in the United States on visas, whom he induced to remain in the country unlawfully, and noncitizens abroad, whom he induced to travel to and reside in the United States unlawfully to participate in his adoption scheme. A federal jury convicted respondent of violating §1324(a)(1)(A)(iv), which makes it unlawful to “encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” and §1324(a)(1)(B)(i), which specifies an enhanced penalty of up to ten years of imprisonment if the violation is committed “for the purpose of commercial advantage or private financial gain.” Respondent filed a post-trial motion seeking to dismiss his §1324(a) convictions on various constitutional theories, including that “Subsection (iv) is unconstitutionally overbroad.” The district court dismissed the motion.

While respondent’s case was on appeal in the Ninth Circuit, that court issued its opinion in a separate but similar case, United States v. Sineneng-Smith, 910 F.3d 461 (2018), holding that §1324(a)(1)(A)(iv) is “unconstitutionally overbroad in violation of the First Amendment.” The Supreme Court vacated the decision in Sineneng-Smith, but without reaching the merits. The Ninth Circuit in this case then again held that §1324(a)(1)(A)(iv) is facially “overbroad and unconstitutional.” 25 F.4th 1103. The Ninth Circuit panel acknowledged that §1324(a)(1)(A)(iv) has been applied in prior prosecutions to conduct that Congress may proscribe—such as “procuring and providing fraudulent documents and identification information to unlawfully present aliens, assisting in unlawful entry, [and] misleadingly luring aliens into the country for unlawful work.” But based largely on the view that the provision criminalizes such activities as “telling an undocumented immigrant ‘I encourage you to reside in the United States,’” or “encouraging an undocumented immigrant to take shelter during a natural disaster,” the panel deemed §1324(a)(1)(A)(iv)’s “plainly legitimate sweep” to be “narrow” and to “pale[] in comparison to the amount of protected expression” that it purportedly encompasses. The panel rejected any application of the canon of constitutional avoidance, asserting that “the plain meaning of subsection (iv) does not permit [its] application.” Nine judges dissented from the denial of rehearing en banc.

The United States argues in its petition that “the statutory text, context, and history all demonstrate that Congress’s longstanding prohibition on ‘encourag[ing]’ or ‘induc[ing]’ unlawful immigration activity, 8 U.S.C. 1324(a)(1)(A)(iv), is a conventional prohibition on soliciting or facilitating illegality, a type of prohibition that has never raised First Amendment concerns.” Says the United States, the provision’s “‘plainly legitimate sweep’ encompasses a variety of real-world conduct that stimulates unlawful immigration. As the court of appeals acknowledged, Section 1324(a)(1)(A)(iv) ‘surely . . . encompasses some criminal conduct.’ The provision has been the basis for prosecuting a wide range of activities that have no claim to First Amendment protection, including transportation activities; procuring and supplying fraudulent documents and identification to noncitizens who lack lawful status; and providing assistance for unlawful entry.” (Citations omitted.) Prosecutions of that sort “form the core of Section 1324(a)(1)(A)(iv)’s plainly legitimate sweep” and “are valid under the First Amendment.” “And to the extent that Section 1324(a)(1)(A)(iv) prohibits facilitation and solicitation accomplished partially or entirely through speech, it covers only speech that the Court has recognized to be ‘undeserving of First Amendment protection.’” Criticizing the Ninth Circuit’s reasoning, the United States says that ‘[t]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.’” And “[t]he panel did not identify a single instance in which Section 1324(a)(1)(A)(iv) has been applied to protected speech in the many decades since Congress first enacted it.” “Finally,” writes the United States, “the Ninth Circuit erred in refusing to apply the canon of constitutional avoidance to assuage any substantial constitutional concerns that it had.”