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Court Says Encouraging Illegal Travel to U.S. is Free Speech

— December 8, 2018

A federal law barring Americans from encouraging or inducing foreign nationals to illegal travel to or stay in the United States has been stricken down.

On Tuesday, the 9th Circuit Court of Appeals reversed the conviction of California resident Evelyn Sineneng-Smith.

Sineneng-Smith, writes, was prosecuted under a law the 9th Circuit called “unconstitutionally overbroad.” Under its purview, the statute allows authorities to charge anyone who “encourages or induces an alien to come to, enter, or reside in the United States” if that person knew the alien had no legal ability to be on U.S. soil.

Citing the First Amendment, the court ruled the law “criminalizes a substantial amount of constitutionally-protected expression.”

“We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that ‘encourage’ does not mean encourage, and that a person cannot ‘induce’ another with words. At the very least, it is clear that the statute potentially criminalizes the simple words—spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client—‘I encourage you to stay here,’” the opinion said. “The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep.”

Image of a legal gavel
Legal Gavel; image courtesy of qimono via Pixabay, reports that Sineneng-Smith operated an immigration consulting firm in San Jose. Her firm primarily served Philippines nationals who illegally working and residing within the United States. She was convicted in 2013 of two felony counts of breaking immigration law, along with another two counts of mail fraud.

A 2015 statement from the Justice Department accuses Sineneng-Smith of “intentionally providing” illegal immigrants with “dishonest advice.” The agency claims that she “advised foreign nationals,” most of whom were from the Philippines, to enter the United States on tourist visas before petitioning for labor certification forms.

The Department of Justice further asserts that Sineneng-Smith’s advice was devoid of legal merit, in that she allegedly “knew” that the law had changed and that her clients would no longer be able to obtain work authorization. She charged $5,900 per filing—her “victims” say they were never told that federal statutes had changed, making it more difficult to transition from a tourist visa to lawful permanence residency.

“In addition,” the Justice Department writes, “Sineneng-Smith encouraged these victims to overstay the time allowed under their tourist visas and work illegally in residential healthcare facilities.”

Neither nor Fox News mentions that Sineneng-Smith allegedly defrauded her clients while inducing to illegally immigrate to the United States.

While Sineneng-Smith’s immigration convictions have been overturned, the 9th Circuit upheld the mail fraud charges.

The 9th Circuit Court has come under fire from the Trump administration for issuing frequent challenges to White House immigration policy.


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