Courthouse Steps Decision: United States v. Hansen

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On Friday, June 23, 2023, the Supreme Court released its decision in United States v. Hansen. At issue in Hansen was whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), a federal criminal statute that prohibits encouraging or inducing unlawful immigration for commercial or financial benefit sometimes termed “the encouragement provision,” violates the First Amendment.

Helamen Hansen operated an advising service for undocumented immigrants who wanted to pursue U.S. citizenship. Under the encouragement provision, Hansen was convicted of two counts of encouraging or inducing illegal immigration for financial gain (along with other federal crimes). He challenged those convictions, contending the law is facially overbroad. The Ninth Circuit agreed, vacating his convictions on those counts. The Court heard Oral Argument on March 27, 2023.

Please join us for a Post-Decision Courthouse Steps webinar, where we will break down and analyze the Court’s decision. 


  • Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland



As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Chayila Kleist:  Hello, and welcome to this Federalist Society webinar call. Today, June 26, 2023, we host a post-decision “Courthouse Steps” on United States v. Hansen, which was decided just last week by the Court. My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call, as The Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, I’ll keep my introduction quite brief, but if you’d like to know more about our speaker, you can access his impressive full bio at


      Today, we are fortunate to have with us Brian Fish, who is a member of The Federalist Society’s Criminal Law and Procedure Practice Group Executive Committee and the President of the Baltimore Lawyer’s Chapter. As a note to the panel before I hand it off, if you have any questions, please submit them via the question-and-answer feature so that we’ll have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Mr. Fish, the floor is yours.


Brian Fish:  Well, thank you very much, Chayila, and hello, Federalists, from a rather overcast and dreary Baltimore, waiting for the storms that they’re predicting today. Today’s case that we’re going to be discussing for the next few minutes—United States v. Hansen—can be summed up in the old legal maxim, “If something seems to be too good to be true, it probably is.” In this particular case, one Helamen Hansen came up with something that not only was too good to be true, but it was also a crime, and he was prosecuted and convicted of a great many things—finally, coming down with the fact that he embezzled approximately $2,000,000 from 450 victims, thereabouts, from something that can never be true.


      His scheme was that he was going to adult adopt people by -- people here in violation of United States immigration law. He was going to have these people adopted by United States citizens, which he claimed, to them, would lead to United States citizenship. As I stated, that’s complete and utter fabrication. It’s a lie. It’s a fraud. There is no way that simply being adopted as an adult by a United States citizen can lead to citizenship, but that was the scheme. Again, he made almost $2,000,000 from this scheme, and that leads us to today’s case with a lot of jurisprudence behind it, a lot of procedural hiccups, and an intertwined Supreme Court case from a couple of years ago.


      So let’s get off the -- this off the back here. He was convicted of, among other things, under Title VIII of the United States [Code]—The Immigration Act—§ 1324(a)(I)(A)(iv), which, quite simply, prohibits encouraging or inducing illegal immigration. Now, that’s where the fight comes from—that term, “encouraging or inducing.” What does it mean? Is there one meaning that you can get from a Webster’s dictionary versus a Black’s Law dictionary? And that is what 50 pages or so of legal decision writing comes down to.


      As I said, this case is intertwined with another case. That case came out a couple -- three years ago—also out of the Ninth Circuit—United States v. Sineneng-Smith. This case today, Hansen, cannot be discussed without discussing Sineneng-Smith, such that if this was a boxing match, quite simply, today’s case would be Sineneng-Smith II. In Sineneng-Smith, the Court took the case, I think, simply so they could slap down the Ninth Circuit for doing something, yet again, “beyond the pale,” as the Irish say. In that case, the Ninth Circuit took what was a run-of-the-mill § 1324 case -- Sineneng-Smith was inducing folks to stay in the United States in violation of the law. No one, either the government nor his lawyers, were arguing the Overbreadth Doctrine.


      The case gets to the Ninth Circuit after, obviously, a conviction on many counts—including the §1324 counts—and Sineneng-Smith was arguing the standard issue; “They didn’t prove their case,” yadda, yadda, yadda. It was a run-of-the-mill appeal on the brief. Once it gets to oral argument time, beforehand however, the Ninth Circuit said, “We want to discuss the Overbreadth Doctrine, and since neither one of you guys are talking about it, we, on our own motion, are going to have amici file -- we’re going to appoint one to discuss the Overbreadth Doctrine and how it applies to that particular case.”


      The Ninth Circuit then, on their own motion, heard all of that and decided, “Yes. §1324 did violate the Overbreadth Doctrine,” and they dismissed those convictions. The government appeals. The Supreme Court takes the appeal, and in a 9-0 decision, which was one of the last cases authored by Justice Ginsberg -- 9-0, they slap down the Ninth Circuit, which was a relatively rarity. They said they abused their -- excuse me -- abused their discretion, not just with a simple error, an actual abuse of discretion. To do so, it violated the Case or Controversy doctrine, and they sent it back. The Ninth Circuit, with Sineneng-Smith—then, just using the arguments of the government and Sineneng—dismissed their appeal and sustained the convictions.


      In the meantime, however, back in the Ninth, Hansen was charged with and went to trial on this exact same statute. Hansen, seeing what had happened in Sineneng-Smith, then changes his tact and says, “The § 1324 is overly broad and should be dismissed.” Ninth Circuit held that case in abeyance to see what the Supreme Court did in Sineneng. Then, poof. “Well, that one didn’t work. Let’s try this again, and this time, we can say that it was Hansen’s argument, and so, therefore”—the Ninth Circuit—“we didn’t interject our own ideas into the case.” That case—obviously, it was argued back in March—decision came out on Friday in a 7-2 decision authored by Justice Barrett. Well, let’s put it this way: a 6-1-1 decision. Justice Thomas wrote a concurring opinion, which I’ll get to in a minute. His first sentence of his concurrence was, “I join the Court’s opinion in full.” So that’s why I say it’s 7-2.


      As we know, Justice Jackson is new to the Court. She was not around for the Sineneng-Smith decision. She authored the dissent today, joined by Justice Sotomayor who, essentially, switched her votes. Yes, I realize that the Sineneng-Smith was a procedural only decision, but for reasons I’ll get to in a few minutes, I believe -- it seems like Sotomayor has switched sides in this particular case.


      So, just giving you folks a little background on what exactly is an Overbreadth challenge. It’s not something that’s a common parlance, so I’ll quote from the majority opinion. “The Overbreadth Doctrine allows a litigant, even—as in this case—an undeserving one such as Mr. Hansen, to vindicate the rights of the silenced as well as society’s broader interest in hearing them speak.” In other words, what the Overbreadth Doctrine says is, if a statute could both apply to someone who’s doing something illegally and could apply to someone who is doing something which we would believe would be a perfectly legal thing to do but silences that speech for fear of being prosecuted—if that goes too far, if you will—then the Overbreadth Doctrine kicks in, and we as a Court should invalidate the statute in question. That’s, in a sense or in a sum, what the Overbreadth Doctrine comes to.


      Now, how much free speech can be or should be allowed to be chilled, if you will, before the Overbreadth Doctrine kicks in is, of course, something to be discussed. Also, what should apply, if anything, if we’re not going to apply the Overbreadth Doctrine to a particular case? And that simply goes to an as-applied circumstance—is this statute, as applied to an individual defendant, so overly chilling free speech as to be invalidated—and not do it as a -- excuse me -- to do it as a case in controversy, and not to do it as an extra-judicial or extra-legislative layer that the judiciary should not be able to engage in?


      So we’re coming down to the nitty-gritty of what this case discusses, and it’s really a battle of the dictionaries, if you will. Is the statute we’re discussing—§ 1324, which prohibits encouraging or inducing illegal immigration -- are “encourage and induce” terms of art, or should we be using the common definitions, again, found in Webster’s? The majority—again, 7-2—says that the terms “encourage and induce” are analogous to a standard issue “solicit and facilitate” terminologies. And because “encourage and induce” mean solicit—which is if you solicit a crime, you are, in fact, committing the crime of solicitation—and if you’re inducing someone to commit a crime or a violation of the law, then you are facilitating them, which is also a crime.


      Both Arizona and Montana filed briefs at various stages of this -- today’s decision -- and discussing that the fact that all 50 states use the terms “encourage and induce” and no time whatsoever in the course of the last 200 years of jurisprudence has these terms been deemed overly broad, and every single state has them. My colleague on the group, Mark Brnovich—then the Attorney General of Arizona—had a laundry list that -- and so did Montana in their brief. Justice Barrett quotes from that laundry list of state statutes that use the terms “encourage and/or induce” in the definition of various crimes throughout the country. No one’s had an issue with these until today.


      The main defense argument that is picked up by the dissent is that the history of 8 USC 1324 goes back to 1880s or so, and that history involves Congress removing or replacing various words in essentially the same very short statute and that those removed words have changed the statute such that it is now, from -- obviously, from their point of view, overly broad. Justice Barrett, in her majority opinion, dismisses that of -- over the course of approximately 20 pages -- basically says, “No. These definitions, these words, have been used for many, many, many, many years.


      They have what they called -- and all three opinions use the term “old soil,” meaning that these terms have accumulated certain meanings in the criminal law aspect, such that when Congress uses them, they’re not using them in -- as their common definitions—again, what you would find in Webster’s—but is brining all of that “old soil” when they’re enacting a new piece of legislation, making a new law, that uses old terms. They’re bringing the “old soil” of all of those old decisions and all of that old terminology with them when they’re making the new law, and so that as this the current iteration of § 1324 goes back to the 1950s, they were simply removing what were deemed extraneous [inaudible 15:18 - 15:26] redundant terms to streamline.


      That’s all they’re [inaudible 15:32] doing, and [inaudible 15:34] anything else that by removing words that are extraneous, we’re somehow changing the mens rea to a particular crime—in this case, the encouraging of illegals to stay in this country—that’s simply not the case, and Justice Barrett does a bang-up job, if you will, of making these points well. 


      So her main point in this aspect to the case is the terms “encourage and induce” have a mens rea built into their meaning, unlike what the defense and the dissent is arguing that some of the words that were excluded in the 1950 change in the -- in § 1324 removed mens rea and made it overly broad. No, “encourage and induce” have mens rea built in, and we didn’t need those extra words. That was the main point to Justice Barrett’s majority opinion. There didn’t seem to be—looking at my notes from the March arguments -- didn’t seem to be a great deal of dissent, if you will, from most of the justices at that time.


      And Justice Barrett finishes up her opinion by making the obvious point—but it needed to be made—that speech intending an unlawful act is not protected by the First Amendment. So in other words, you can’t simply say, “Well, yeah, I was encouraging someone to commit a crime, but I have First Amendment rights, and nanny nanny poo poo on you.” No. There’s no First Amendment protection when you’re encouraging someone to commit a violation of law.


      That gets us to what I perceive to be the most important part of this case, and it’s Justice Thomas’s concurring opinion. The reason I’ve been so fascinated with the interplay of Sineneng-Smith and Hansen is I -- and I think all of you as Federalists should be well aware of and agree with -- sorry, I’m the expert -- my opinion is courts should not be teeing up cases. Litigants can do that. Lawyers can do that. Courts should not be in the business of teeing up cases to get a Supreme Court decision. What the courts should be doing is applying the law to the facts, making a decision, and moving along.


      This gets me to Justice Thomas’s concurrence. His main point is, “Let’s get rid of the Overbreadth Doctrine. It’s not in the Constitution. It’s not in the First Amendment. It’s nowhere to be seen, other than this Court”—obviously, the Supreme Court’s decisions. “Let’s get rid of it.” I tend to agree. His main point—and he gives us a history lesson, which probably most of us have not been reminded of for quite some time—that, first of all, the Overbreadth Doctrine essentially gives federal courts the power to invalidate lawfully enacted statutes, even if there isn’t a case in controversy before them, which flies in the face of the point of our federal judiciary. There has to be a case in controversy to be able to have the judiciary be able to make a ruling on something. That’s just the foundational piece of how cases get started in our system.


      Here, what we have is Hansen and Sineneng-Smith and a host of other folks saying, “Yeah, this statute obviously applies to me, and it applies to me because of what I did, which was clearly illegal, but because it could be viewed to get other people and those actions out there away from me that I’m asking you, the Court, to invalidate the law even if it doesn’t affect me whatsoever.” That’s simply not part of our -- or should not be -- it has been at some level for many years now, but it should not be a part of our judicial process. But it is. And Justice Thomas and -- thankfully, a reminder of why that’s so—why cases should not start in any way whatsoever other than two parties on a case in controversy.


      Let me check my notes and my tabs here. Here we go. From Justice Thomas’s concurrence opinion: “The judicial power is only the authority to resolve private disputes between particular parties rather than matters affecting the general public.” He goes on. And why is that so? Why should courts only adjudicate the case in front of them? And that’s, as we all -- as Federalists would agree, I would like to think, that judges don’t have any particularized knowledge of anything else. They should not be deemed to have specialized knowledge, and they shouldn’t be put in a position where they’re making policy.


      And Justice Thomas’s main point that he hammers home in this opinion is if you allow the Overbreadth Doctrine to continue, it simply allows federal courts to make policy. Whether it’s good policy, bad policy, whether it overturns the legislative policy or the executive policy, we should not be allowing federal courts to make policy, and that’s what the Overbreadth Doctrine does, and he wants to get rid of it. I couldn’t agree more.


      Now, the problem is no one joined in his concurrence. So is he the outlier on this particular issue? It would seem to be that’s the case. I’m hoping not. We shall see, but I do not think that any court—but especially the Ninth Circuit, which has, obviously, a long history of getting slapped out by the Circuit -- by the Supreme Court for just making things up that aren’t in the case that’s in front of them -- we shouldn’t be allowing them even greater latitude by continuing to have the Overbreadth Doctrine be applicable to anything whatsoever. Let’s get rid of it.


      Now, let’s get to the dissent. As I said, Justice Jackson authors the dissent; Sotomayor joins her in that. And what it comes down to is, again, the battle of the dictionaries. The dissent would have us use the common language definitions for “encourage and induce.” That’s where the tension between the majority and the dissent comes into play. What definitions are we going to apply to these words? Are they terms of art, or should we use the common everyday definition? Obviously, their common usage idea did not win out. I was expecting a 6-3 decision. Even Justice Kagan, who isn’t always -- how shall we say? Well, let’s put it this way. I was expecting Justice Kagan to dissent as well. She did not. She joined the majority opinion and, basically, with their understanding—I went back through my notes—that these kinds of cases should not be dealt with in an Overbreadth Doctrine.


      That would be an extreme use of Overbreadth, which use would simply say is, use an as-applied standard on a case-by-case basis—looking through my notes of the oral arguments back in March. But I was expecting her to go with the dissent on their definitional aspect of this case, in that § 1324 did, in fact, become overly broad when Congress deleted some of the words in the prior iteration of the statute. But that didn’t happen. She was the seventh vote for the majority. 


      So the dissent goes on listing the potential litany of horrors, as it was deemed by the majority. The government could prosecute a grandmother for saying -- telling her grandson that he should stay in the United States in violation of the law. Or it would prohibit an immigration attorney from discussing a case with his or her client because that could be deemed to be encouraging someone to stay in the country illegally—if they had a root to gain lawful status. Or could a doctor be prosecuted because they encouraged someone to stay for surgery, again, staying in violation of the law. That litany of horrors, as it was deemed, was pretty much brushed away by the majority as not something that was thought of or as a possible -- none of these things were deemed possible, in that there was 70 years of this particular statute in its current iteration, and in no time whatsoever has any of these kinds of things even been brought up as a criminal case. There was no reason to believe that they ever would be, and the majority simply brushes these kinds of arguments away.


      The dissent says that the majority was rewriting the statute and writing back into the statute those terms that had been removed in the 50s. I don’t see it. I agree that you’re going to use the terms “encourage and induce,” they are terms of art, and “encourage and induce” do mean “solicit and facilitate.” There is all of that “old soil” that has been discussed previously that comes with those terms, and therefore, there is a mens rea built into § 1324. You didn’t need extraneous terms. 


      So the best part of the dissent—and I’ll finish here—was something that we, again, as Federalists, should appreciate. The dissent starts with, “Ordinarily, we start with the text of the statute.” Wow. What a great, novel idea that, in case after case after case after case, doesn’t always hold true. But in Hansen, they became textualists, and they want to argue the text of the statute. The only difference is which definitions of the words of the text did they want to go with? But at least we are now at the place where everybody’s arguing text of the statute. And I think that’s a good place to be.


      So with that, I’ll turn it back to Chayila.


Chayila Kleist:  Well, thank you. I really appreciate that breakdown of the opinions that were put forward, the various arguments. I actually already answered one of the questions I had, which was, “What was the statutory interpretation framework that’s used, that textualism across the board and arguing about definitions.”


      It’s now time for audience Q&A. We have one, but I’m going to remind our audience, if you would like to submit questions, please feel free to do so. We’re excited to get them answered.  Our first question does come from an audience member who asks, “Do you think Hansen will have any impact on the Abstract Advocacy Doctrine, described by Justice Scalia in Williams? I believe he offered a statement, ‘I encourage you to obtain child pornography as an example of a protected abstract advocacy.’ Justice Barrett’s opinion doesn’t seem to address this doctrine, but Justice Jackson raised it in her dissent.”


Brian Fish:  And I agree, Justice Barrett ignores that issue completely. There was one other issue that the dissent pointed out that Justice Barrett, in her decision, did not even address, and that was in most of these kinds of cases, where you use the terms “encourage and induce,” you’re encouraging a criminal violation. In most but not all civil -- excuse me -- immigration cases, they are prosecuted by the civil authorities from ICE and the Department of Justice Executive Office for Immigration Review. In other words, immigration cases are civil cases, so can we encourage a civil violation, and does that somehow affect the Overbreadth Doctrine?


      As the dissent points out, Justice Barrett does not address that issue, so they sort of hung it there as low-hanging fruit. Maybe someone will give that a try. If we’re simply encouraging a civil violation of, say, entering without inspection, will that be dealt with by the Court in a different fashion than Hansen and Sineneng-Smith with their fraud schemes? Would they deal with it differently? Possibly. We’ll see. But based on today’s decision, I don’t think that that’s going to happen. I think they will -- the courts will look at this—look at what happened to the Ninth, now twice—and say, “No. I think § 1324 is just fine the way it is, and you’re guilty.” But it’s, at least, out there. There’s a possibility.


Chayila Kleist:  Got it. Well, next question for you. You mentioned that you expected this to be a 6-3 decision, but were there any other things that surprised you about how the decision came down, either the way it was decided, how the Court broke out, or the rationale of any of the Justices?


Brian Fish:  No. Well, Thomas’s concurrence scared me. When I first got the decision, and I saw that it was two in the dissent, but there was only six in the majority, I’m like, “Oh no. Did Thomas -- what did he do? Did he go completely in a different direction?” And so, I was relieved when I got to his concurring opinion and read it. You should always -- as we all know, we withhold judgment until we actually know what we’re talking about. And so, I did, and I’m like, “Okay. I understand completely. He wants to get rid of the Overbreadth Doctrine.” So I was relieved about that. I was scared when I saw the fact that he had a concurring opinion, if there was something truly an outlier he wanted to discuss, and thankfully, it wasn’t.


      I was disappointed, as I just said—to answer the last question—that Justice Barrett didn’t take up the in-violation-of-the-law kind of aspect. Does it have to be an encouragement or inducement of a criminal violation, or can someone be convicted of § 1324 because they were encouraging or inducing a civil immigration violation? That’s still out there. I wish Justice Barrett had added one more line—literally, that would have been it—in her decision addressing that aspect because that was a big chunk of -- a couple of the amici briefs were making that point.


      So it is still out there, and that was a bit of a disappointment. But other than that, the decisions came out pretty much exactly how I thought they would, in terms of the language used. It really comes down to we’re fighting about which definition we’re going to use. Are we going to be using a -- the term of art that is criminal law context, or are we just going to use Webster’s? And that’s what it came down to. Thankfully, there wasn’t anything more than that that I could glean from today’s decision.


Chayila Kleist:  Got it. Following up on that distinction between which dictionary. Are there other cases where that—the way this decision came out and the dictionary that was used by the majority—could have an effect, or do we not know what this framework and the dictionary that was chosen -- how that’ll affect other cases?


Brian Fish:  Well, I think that’s where that term “old soil” I brought up a couple of times -- and, again, it’s -- that term is throughout all three opinions. I think that the best way to analyze a criminal law statute is look at the history of the words in criminal law and not simply the common everyday definition because we as lawyers understand that—that sometimes there’s literally hundreds of years of history that attached itself to words in a criminal law context, especially when some of our laws and cases start deciding cases from very old England in the 16 and 1700s. So you bring all of that forward to today.


      Should we just be using common definitions? Well, I think we’re well past that. And I guess that’s part of the rub from the dissent’s point of view. Why shouldn’t we be using the Webster’s dictionary because that’s what everybody else uses, not just us lawyers? That’s a legit argument, but I think that horse is so far out of the barn and down the road. It is three counties over. No. Terms have meaning, and you have to look at the criminal law context for the meaning when you have a common law system such as us, where we base it on, literally, hundreds of years of talking and writing. You got to bring all of that forward, and that’s the “old soil” that comes with it.


Chayila Kleist:  Well, thank you. Another question from our audience. They ask something of a broader on Justice Thomas’s jurisprudence. The questioner asks, “Justice Thomas has struck out on his own in a number of issues: digital media providers as common carriers, the continued vitality of New York v. Sullivan, and now Hansen. Will the academy or media reexamine his scholarship as a result of these concurring opinions?”


Brian Fish:  I could only hope so. I mean, for many years, Justice Thomas was seen as—in an insulting way—Scalia’s sidekick. And I think what we have been seeing now, for the past several years, is that not only was wrong then, it’s certainly wrong now. He has his own opinions, his own ideas. Obviously, we can agree or disagree with them, but they are -- he’s well versed in the historical context of the Constitution, as is illustrated by his concurring opinion today. He’s talking about the New York State law and how those laws were either upheld or dismissed by the super legislative body that existed in 1777. He brings all of that forward, all of that history, and I think we’re finally now able to appreciate—at least, some other folks who haven’t been listening to him and reading—what he’s been saying for the last 30/40 years.


      Other folks are now beginning to understand the gravity of what he discusses and how he wants the judiciary to actually do their job and not do the job of the policymakers. Obviously, that’s his number one priority -- is we need to be focused on doing the judicial work and not the legislative work. So I’m hoping that that is coming out there. Whether the mainstream media cares or will discuss it or not—or if they do, just dismiss him, which is what I perceive will be happening—that’s a different issue.


      I also think that one of the good things of COVID was we actually got to hear Justice Thomas. For years, he wouldn’t say a word in oral arguments. And he always made the point that, “I want to hear what the lawyers say. This is their time to shine. This is their time to argue to me their position. I didn’t want to waste their time.” And then, with COVID, we got to hear everybody ask their questions. We got to hear what Justice Thomas was focusing in on. I think that was -- it may be the only good thing about the COVID situation. But it was a good thing. And so now, I think because of that we are appreciating Justice Thomas even more than we had before. 


Chayila Kleist:  Nicely said. Thank you. Another audience question. We’re reverting back to your comments on “old soil.” What if there isn’t any “old soil?” Does Hansen create a presumption in favor of inferring specialized meaning or using dictionary definitions?


Brian Fish:  Now that’s a good question. Thankfully, though, in most cases, there is “old soil.” But yes, as Congress continues to write new laws—some of which have no basis in anything of yesterday—I do believe that if there’s no “old soil” to attach, then yes, until something can be attached to a word that hadn’t been in the criminal law context previously, we should be using the common definitions until something begins to attach itself to those words and phrases. That’s what begins the “old soil” process. Old things get into the soil; they attach themselves there. The soil gets used by the plant, and up it shoots with a little bit of water and some sunlight. So until the soil, the water, and the sun attach themselves to definitions—if it’s a brand-new phrase or a brand-new word that’s being introduced into the criminal law lexicon—then I think, yeah, what does Webster say? Because we have nothing else to start from, so we have to start from somewhere. Why not the common definition?


Chayila Kleist:  Fair enough. Need a starting point, I guess. But if you don’t have soil, then you got to go somewhere. Next question for you. Obviously, when we did the “Courthouse Steps” right after the oral argument, the questions all revolved around what’s the Court going to decide? What are the arguments that are going to be made? Now that we have the decision, what are the questions that remain unanswered, if any?


Brian Fish:  Well, as I mentioned a few minutes ago, whether a civil law violation is enough to “encourage and induce” when the terminology is a violation of law, does it have to be a violation of criminal law? If not, then Hansen or Sineneng-Smith goes back to having a legitimate argument on that basis. Look, we are encouraging a civil immigration violation—someone crossing the border illegally or staying illegally. That, in and of itself—at least, coming legally and then overstaying—is not a criminal law violation.


      Coming across the border without proper documentation is, in fact, a criminal law violation. It’s normally not done so. It’s normally handled by civil immigration courts, but it could be. So that play -- that issue is still out there. Well, there remains to be seen how some courts would handle that. Like I said earlier, I think now that there’s been two § 1324 decisions, my assumption is the courts will be, “No, we’re not going there.” 


      Are there any other issues? Yes. As just discussed, if there’s a new -- maybe not so much in the § 1324 case, but again, new criminal law violations that don’t have the “old soil” -- as I sit here, I start thinking about technological issues, and new crimes are being created, if you will, based on stealing IT stuff. And a lot of the ways you go about making those thefts are new, and so there’s not the -- old definitions might not apply. They might have to generate new terms, and so those kinds of issues outside § 1324 will continue to develop as technology develops.


      As to a -- more§ 1324 decisions, I don’t see anything than what we’ve been seeing in the last few years with some § 1324 (a)(I)(A)(iv) prosecutions, which was this case. It’s going to be those kinds of multi-victim, multi-million-dollar fraud schemes. The one-offs, where someone gives their nephew 500 dollars to go from Tijuana to San Diego—yeah, it could be prosecuted. Will it be? Unlikely. Would it become a Supreme Court case? Highly unlikely, simply because of the way the U.S. Attorney’s Offices, especially at the border, are overworked, undermanned. They’re not going to be taking those one-off kinds of cases. They’re going to be taking $2,000,000 fraud schemes like this. So I don’t see any great change in how the government is going to be prosecuting § 1324s, going forward.



Chayila Kleist:  Got it. Well, thank you, and barring any final questions from our audience or any final thoughts on your end, we can wrap it there and give everybody back a little bit of their afternoons. On behalf of The Federalist Society and myself, Mr. Fish, thanks so much for joining us today and sharing your valuable time and expertise. Thank you to our audience, as well, for joining and participating. We welcome listener feedback at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We’re adjourned.