by Mark Wilson

THE U.S. COURT OF APPEALS FOR THE Ninth Circuit held that a federal law, 8 U.S.C. § 1324(a)(1)(A)(iv), that criminalizes encouraging or inducing an alien to reside in the U.S. for private financial gain of such person is facially overbroad and unconstitutional because it covers a substantial amount of protected speech since many common statements and actions could be construed as covered by the statute.

Helaman Hansen operated an organization called Americans Helping America Chamber of Commerce (“AHA”) from at least October 2012 to September 2016. AHA claimed to help undocumented immigrants become U.S. citizens through an “adult adoption” program. At least 471 victims participated in the AHA program, each paying between $550 and $10,000 and netting Hansen and AHA more than $1.8 million in revenue, according to an FBI analyst.

Hansen falsely told victims that many immigrants had become U.S. citizens through the program. He later admitted to federal agents, however, that no one had achieved U.S. citizenship through the program, and it is not possible to become a U.S. citizen through adult adoption.

Hansen was charged with 12 counts of mail fraud, three counts of wire fraud, and two counts of encouraging or inducing illegal immigration for private financial gain. The illegal immigration charges brought under § 1324(a)(l)(A)(iv) and were based on Hansen encouraging or inducing victims to overstay their visas.

Following an 11-day trial, a jury found Hansen guilty of all charges in Spring 2017. Hansen then moved to dismiss the illegal immigration charges, arguing that § 1324(a)(l)(A)(iv) is facially overbroad, void for vagueness, and unconstitutional as applied to him. The U.S. District Court for the Eastern District of California denied the motion and sentenced Hansen to concurrent 240-month prison terms on each of the mail and wire fraud convictions and 120-month prison terms on each of the illegal immigration convictions.

The Ninth Circuit affirmed Hansen’s mail and wire fraud convictions but vacated the illegal immigration convictions, agreeing with Hansen that § 1324(a)(l)(A)(iv) is facially overbroad.

Quoting Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002), and Massachusetts v. Oakes, 491 U.S. 576 1989), the Court recognized that the “Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere,” given that “an overly broad statute may chill the speech of individuals, including those not before the court.”

Section 1324(a)(l)(A)(iv) criminalizes encouraging or inducing “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.” After reviewing dictionaries and case law for the meaning of various terms and applying principles of statutory construction, the Court interpreted that subsection “as prohibiting someone from (1) inspiring, helping, persuading, or influencing, (2) through speech or conduct, (3) one or more specified aliens (4) to come to or reside in the United States in violation of civil or criminal law.”

In United States v. Sineneng-Smith, 910 F.3d 461 (9th Cir. 2018) (Sineneng-Smith I), a panel of the Ninth Circuit held that subsection (iv) is unconstitutionally overbroad, but the Supreme Court vacated and remanded that decision because the overbreadth issue had been raised by amici rather than the defendant and thus the panel abused its discretion by departing “so drastically from the principle of party presentation” when it decided “the case on arguments originally raised by amici.” United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020). On remand, the panel affirmed the conviction under subsection (iv) without analyzing the overbreadth challenge. United States v. Sineneng-Smith, 982 F.3d 766 (9th Cir. 2020), cert denied, 142 S. Ct. 117 (2021).

“Although Sineneng-Smith I was vacated on other grounds,” the Court found “that much of its thorough analysis is persuasive on the overbreadth issue.” Consequently, it added its own “thoughts reinforcing that conclusion of overbreath.”

The Court found that “it is clear that subsection (iv) covers a substantial amount of protected speech” and creates “‘a criminal prohibition of alarming breadth’ comparable to other statutory provisions the Supreme Court has held are facially overbroad.” For example, the Court stated that knowingly telling an undocumented person “I encourage you to reside in the United States” is protected by the First Amendment but also prosecutable under the statute at issue. In contrast, “subsection (iv)’s plainly legitimate sweep … is narrow and pales in comparison to the amount of protected expression that is encompassed by subsection (iv).” Thus, the Court concluded that “the chilling effect of subsection (iv) is substantial.”

The Court stated that “[w]e are mindful that invalidating subsection (iv) for overbreadth is ‘strong medicine’ that is not to be ‘casually employed,’” but for the reasons set forth in its opinion, “subsection (iv) is overbroad and unconstitutional.”

Accordingly, the Court vacated Hansen’s convictions that were based upon § 1324(a)(l)(A)(iv) and remanded to the district court for resentencing. See: United States v. Hansen, 25 F.4th 1103 (9th Cir. 2022).

Editor’s note: In an unpublished opinion, the Fourth Circuit came to the opposite conclusion and held that § 1324(a)(l)(A)(iv) isn’t constitutionally overbroad because it doesn’t criminalize a substantial amount of speech protected by the First Amendment, reasoning that the statute largely prohibits criminal aiding and abetting. See United States v. Tracy, 456 F. App’x 267 (4th Cir. 2011).

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