On February 25, the Supreme Court heard oral arguments in the case of United States v. Sineneng-Smith. At issue is "whether the federal criminal prohibition against encouraging or inducing illegal 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." Brian Fish joins us to discuss oral arguments and their implications.
Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Criminal Law & Procedure Practice Group, was recorded on Friday, March 6, 2020, during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Oral Argument Teleforum on U.S. v. Sineneng-Smith. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today, we are fortunate to have with us Brian Fish, who is a member of our Criminal Law & Procedure Practice Group Executive Committee. After our speaker gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. Brian, the floor is yours.
Brian Fish: Well, thank you very much. Again, my name is Brian Fish. I’m not only a member of the Executive Committee of the Criminal Law Practice Group, I’m also the Baltimore Chapter President here at The Federalist Society. So I’m always happy to be on the other side of the phone call being the expert, giving some opinion. And we’ll be talking today about Sineneng-Smith, which, on its face, is a relatively innocuous case. But once the Court got ahold of it, there was a lot of give and take between the justices with each other and the two arguing attorneys.
The case comes down to a new interpretation of the age old question of, “Should I stay or should I go now?” Well, if an illegal alien here in the United States asks you that question and you answer yes, you might have committed a federal felony punishable by up to five years in prison, and if you are saying yes for monetary gain, as did this particular defendant, she was punishable by up to ten years in the Federal Bureau of Prisons. So with all due respect to the boys in The Clash when they sang that song in 1982, they might have been on to something because they sang the second half of the song in Spanish, so maybe they were foreshadowing this particular case.
A brief recitation of the facts: Both parties agreed, pretty much, to the facts as presented in the government’s petition. Here in a nutshell, what occurred was the defendant was a lawyer and an immigration consultant in California. What she was doing was marketing herself to healthcare workers by saying that she could start a particular process that was active at the time to transition an illegal alien from that status to a lawful permanent resident. In other words, what she was saying is, “I can get you a green card.”
Now, the problem was that there was a multistep process. What you had to do at the time was file what’s called a labor certificate with the Department of Labor. And this was filed by an employer on behalf of the alien. And the employer basically was saying in this paperwork that this employee was useful to their business, had certain talents, and we couldn’t find anybody else who was a citizen already, a lawful permanent resident, so we’ve got this person. And we’d like to keep this person, and we’re going to file this paperwork on their behalf.
Once the Labor Department certified that, then the alien filed what is called an I-140, which is a visa petition for a worker. Once INS, the Immigration and Naturalization Service, part of the Department of Justice, approved the visa petition, then the alien files what’s called an I-485 which is the adjustment of status document that gets them their green card.
Now, the problem for Sineneng-Smith is — and she knew this — was that that program, as it was then constituted, expired. But she continued to advertise her services and take people’s money, telling them that what she was going to do was get them a green card based on that program. Now, I’ve been practicing for years now in that gray area between where criminal law and immigration law overlap, and I can tell you that to this day, there are still people who are in line to adjust their status based on this labor certificate program of many years ago. The defendant in this particular case charged $5,900 per person to start the process plus a $900 fee that she was supposedly using to file the applications.
The government in this particular case is understandably hot and bothered with Sineneng-Smith’s activities because she made $3.3 million filing these certificates. But the problem was, as I’ve said, she was filing them after the expiration date. As I said a moment or two ago, you had to file the labor -- the employer had to file the labor certificate with the Department of Labor on or before April 30, 2001. That date is one of the magical dates in immigration law, 4/30/2001. On that date, literally thousands upon thousands of labor certificates landed at the Department of Labor, and they’re still working through them. To this day, both the now-post 9/11 Department of Homeland Security and the immigration courts, part of the Department of Justice, are still adjudicating adjustment of status petitions based on 19-year-old labor certificates. That’s how big of a problem this was.
So when Sineneng-Smith was continuing to file labor certificates days, months, weeks, years after April 30, 2001, telling people that they were going to get their green card at the end of the process, that was fraud. And it was fraud because there was absolutely no way that an alien could adjust their status based on a visa petition that was filed on May 1, 2001, or -- excuse me, a labor certificate filed on May 1, 2001, or anytime thereafter for this program; just couldn’t happen. But she was continuing to tell these people that that was going to happen. They were going to get their green card. The government, out of -- I went to law school not math school, but near as I could tell, it was over 500 applications were filed by this defendant after the April 30, 2001 date.
The government found three aliens who cooperated and testified that -- or would testify. One of them, the government didn’t put on, so eventually, it was just two of them. But the two aliens testified that Sineneng-Smith told him that they were going to get their green card. She continued for years sending them paperwork saying that the process is still going on, even though it wasn’t and never was, and that, again, that they were going to get their green card, just keep waiting.
Well, the government charged mail fraud, tax fraud, and the heart of the case at the Supreme Court is an action under Title 8 U.S.C. § 1324(a), which is one of the several criminal immigration laws on the books. And this, in a nutshell, criminalizes encouraging or inducing illegal immigration. There are multiple counts of each. The defendant plead guilty to the tax fraud and went to trial on the mail fraud and the 1324 charges, was found guilty. Again, because the government only put on two of the three witnesses, she won a motion for judgment on the third cooperator’s charges, leaving her with a couple of counts of mail fraud and a couple of counts of the encouraging illegal immigration.
It’s a short statute, so I’ll just give it to you to get to the heart of the matter. 1324(a) criminalizes any person who, and then you go down to subsection (iv), encourages or induces 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 the law. So the defendant, through both of the Supreme Court’s arguments, stated that based on just a plain reading of that, if anybody says, “I want you to come to the United States. I know you’re going to be illegal, but you should come,” that, just in and of itself, is a violation on a simple, plain reading of the statute. However, Sineneng-Smith was convicted not just of 1324(a), but she was also convicted of subsection (B)(i) for financial or commercial advantage or gain.
So in other words, she did (a), and she did (B) because she was trying to make a buck. And that comes into play later on in my discussion this morning because is that sentence enhancement, or is that a new crime? The government argued it doesn’t matter. Whether you want to say it’s simply a sentence enhancement or it is a new offense, for our purposes, it doesn’t matter. And I kind of agree with that analysis, but that’s what she was convicted of.
The defense was arguing throughout that this is putting a chilling effect on mere advocacy speech. In other words, could this statute be interpreted that I’m encouraging or inducing an alien to come to the United States by, say, testifying in Congress that illegal aliens should come to the United States because migration is a human right, and therefore we shouldn’t have immigration laws? Simply by saying that, is that a criminal offense? Well, obviously, the government in its argument would simply disagree with that and say no.
And that’s the main point of now turning to the arguments and what happened in the different processes of this case. Starting at the district court, the most poignant fact of the opinion of the district court in California was the following: The court explained that the respondent was not being prosecuted for making applications to the government but was being prosecuted for entering into retainer agreements with illegal aliens after fraudulently representing to them that her efforts could lead to legal permanent resident status. In other words, the district court judge said to the defendant, “You’re not being prosecuted for what you said. You’re being prosecuted for what you did.”
And Justice Alito, when the case got to the Supreme Court last week, picked up on that and was asking a lot of questions of both counsel. Is this really speech or is this mere action, and how should we interpret the language as to either speech or action? The case, oddly enough, didn’t -- Sineneng-Smith didn’t argue that at district court and didn’t argue this at the Ninth Circuit. The Ninth Circuit, after oral arguments, after all the briefs were in, months later, sent out a request not to the parties, but they invited the federal public defenders, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild to file amicus briefs, asking them what they thought about -- their question was, was this statute simply overbroad?
Now, of course, those organizations filed briefs that said absolutely. This is overbroad, should be ruled unconstitutional. Again, none of the parties were arguing this until that point. So the Ninth Circuit on their own asked other organizations for their opinions. They got them. And based on the ruling on that issue, that the language of 1324 is overbroad, they ruled it unconstitutional. The government obviously filed cert with the Supreme Court, and the case was argued last week.
At oral argument, the government’s main point was that the encourage or induce language should be taken together. So basically, it should be read “encourage and induce,” and the encourage and induce language means, one, that the defendant wants something to occur; two, that the alien is aware of the defendant’s speech. So in other words, broad advocacy speech, meaning, I think, saying something along the lines of, “I think we should do away with immigration laws and everybody who wants to come to the United States should come to the United States,” that doesn’t get covered by this statute. And the third thing that the government was -- the third point that they were making was that the defendant has to substantially participate in the alien’s coming to or remaining in the United States. So in other words, the statute from the government’s perspective criminalizes actions, not speech, and certainly not mere advocacy speech.
Now, the Chief Justice fired off the first question to the government attorney, which was the same question that was vexing the Ninth Circuit, which is if a grandmother is here in the United States legally and her grandson is here in the United States illegally, is it a crime for the grandmother to say to the grandson, “I think you should stay here in the United States with me.” Is that crime? The Ninth Circuit asked that. Chief Justice Roberts -- that was the very first question.
And I call it the grandmama question. The government clearly was saying no because -- and their point was simply there’s no substantial participation by the defendant — grandmama, presumably — because the kid’s already here. And not only that, she’s not participating in the child’s remaining here in the United States. She’s just saying -- it’s simply advocacy speech which is not covered by the statute.
Alito picked up on this point that the government was making, and it brings back to what the district court was saying. Alito said that the defendant was not prosecuted for engaging in speech. The defendant was prosecuted for conduct. And the defendant who didn’t engage in speech can’t now make a free speech argument. So to me, Alito is at least in favor of the government’s position that 1324 criminalizes certain actions and not speech.
Justice Kavanaugh takes up a different point of view but sort of comes down, I believe, with Alito. Kavanaugh was asking the government attorney when can the court do a narrowing instruction as opposed to simply looking at the meaning of the words of the statute? In other words, can the Court narrow the statute’s meaning of an overly broad statute, when can the court narrowly interpret those words to keep the statute because the Court’s job is not necessarily to strike down statues. Shouldn’t they be trying to find ways that lawfully enacted statutes are upheld constitutionally? So that was Kavanaugh. And for that matter, Kagan also chimed in on similar thoughts. When should the Court be allowed to narrowly construe a statute to keep it constitutional?
A couple other issues that came up during oral arguments I’ll touch upon now before we get to some Q&A. Defense kept making the point that there were multiple statutes that criminalized the same activity, and therefore, the government didn’t need 1324(a)(iv), and therefore that’s another reason why it should be struck down. But of course, the government was arguing, look, just because multiple statutes criminalize the same thing doesn’t necessarily invalidate or make unconstitutional one or the other statute. And this case proves that’s so in the sense that the defendant -- her actions were both violation of mail fraud, probably wire fraud as well, and the 1324 statute. Just because the same action violates multiple statutes doesn’t negate one or more of those statutes. But the defense threw that argument out there.
So then we come up to a couple of dear friends of The Federalist Society. Both filed amicus briefs to the Supreme Court. And Eugene Volokh from UCLA Law School, who’s certainly well known to The Federalist Society, and I’ve had him here in Baltimore, a wonderful speaker, a great depth of knowledge on just about everything. And he filed an amicus brief on behalf of neither party is how it’s stylized. And what Professor Volokh was asking for was simply he believes that the Court, if it were to limit the language of this particular statute, it would basically make it a solicitation statute, and certainly solicitation statutes have been argued successfully to be upheld for years.
And where the Court is simply going to make 1324(a) a solicitation statute, that’s great. That’s fine. He didn’t have any problem with that. But he wanted to know simply what does it take to have a solicitation crime? In other words, what are the limitations to a solicitation statute? That was Professor Volokh’s main point and question.
And his answer to that is, look, if you’re going to make solicitation a crime, the act that you are soliciting also has to be a crime. And because in this case a lot of activities by illegal aliens that might be covered by 1324 aren’t criminal — they might be illegal but they aren’t criminal — therefore, this statute should be struck down for that reason, the point being that a lot of aliens in the United States who came here legally, in other words, they came here on a tourism visa, say, to visit Disneyworld. They had six months to stay as tourists, and they were supposed to go back. They didn’t go back after their six months was up. They’re still here. That is an immigration violation, but it’s not a crime, as opposed to an alien who gets to the Mexican-Texas border, swims across the Rio Grande, and runs into Texas without being caught by Border Patrol. He has committed a 1325 illegal entry crime. It is a crime to illegal enter the United States.
Because the statute covers, as it’s written now, both activities, Volokh’s position is, look, if what you’re soliciting is -- could be -- you’re asking a person who came here on a visa who just overstayed their visa to do something, that’s not a crime, and so therefore, you can’t have solicitation be a crime if the underlying action isn’t a crime. And that’s one dear friend of The Federalist Society.
Another dear friend of The Federalist Society, Ilya Shapiro for Cato Institute, also wrote an amicus brief. And he takes a significantly different position. He takes -- and again, it’s the Cato Institute, so he takes a much more free speech kind of analysis to the statute. And his analysis is simply, look, on its face, the “encourages or induces an alien” criminalizes speech, and therefore, that has a chilling effect on free speech, and the statute should be struck down.
There’s all of the multiple issues of the case. What I took out of oral argument is that both Alito and Kavanaugh, from different points of view, were probably going to both narrowly interpret this statute to keep it constitutional. And certainly, Alito was going to make the point, look, she was doing activity, not speaking through her filing fraudulent labor certificates after the April 30, 2001 cutoff date, and therefore, the statute is criminalizing activity, not speech.
On the other side, you had Justice Breyer who just loved Professor Volokh’s amicus brief. I was expecting Justice Breyer to plug the professor’s blog site — I’ll do it here — The Volokh Conspiracy. Go online and you can read all of Professor Volokh’s opinions, and his friends, on just about everything.
Justice Breyer seemed to buy into the notion that if the activity being solicited isn’t a crime, therefore the solicitation shouldn’t be a crime. And he seemed to be implying that he was going to rule in favor of striking down the statute. Chief Justice seemed to -- he was asking questions of both sides. I couldn’t really get much of a take on him. It certainly seemed like Sotomayor, Kagan, and Ginsburg had serious problems with the statute as it’s written just on a plain reading of the statute, the “encourages or induces,” they took that to mean that’s speech. And they were ready to -- seemed ready to strike it down. So we’ll see.
My two cents is I think this will be yet another 5-4 decision. Whoever the fifth justice is will be the tiebreaker. And the government’s position is this statute has been around certainly for well over 100 years, not necessarily in its current form, but the language and the ideas of this particular statute have been around since about 1880, 1890, I believe. And there has never been a constitutionality challenge to this.
And simply by making what’s called the overbreadth challenge, the government’s position is, look, to have a successful statutory overbreadth challenge, it requires a substantial amount of protected speech in relation to a statute’s legitimate applications. They were quoting a case from years ago, Virginia v. Hicks. And what the government’s point is, look, there’s not a substantial amount of protected speech that would even be implicated in this statue if you were to read it as a statute that criminalizes speech, and therefore, because there is not a substantial amount of speech that would be covered by this, you, at worst, Supreme Court, should narrowly interpret it to rule out any speech criminalization, read it as an activity crime, and we can all go forward.
We’ll see what happens, but that, in a nutshell, is what was argued last week, and a lot, a lot, a lot of briefs. There were many other briefs filed from various immigrant rights organizations. And I’ll particularly pick a last thought here is picking on Ilya Shapiro just a bit. Ilya’s point was the statute criminalizes, especially the 1324(B), the enhancement, if you will, if you encouraged an alien to come or stay in the United States for financial gain, that is a 10 year felony. Well, Ilya tried to make a joke by stating that. “I’m filing this brief, and I’m not expecting any financial benefit for it, so therefore, I can’t be held accountable under 1324(B), ha ha ha ha.”
Well, I thought that was a funny joke when I read it. Then I thought about it for an extra second, and I’m like, wait a second. If he’s -- by the mere fact that he’s making that joke proves the government’s point that the act is criminalizing conduct because in theory, Ilya Shapiro could be locked up by the United States government for encouraging people to come or stay in the United States who are coming to or remaining in here illegally. But he’s not. And so therefore, I think Ilya’s joke was a joke on himself because it proves the government’s point that, look, we’re not criminalizing speech. We’re criminalizing conduct.
So with that, if there’s any questions, I’ll be happy to give you my two cents.
Micah Wallen: Brian, while we’re waiting for any questions to come in, I wanted to ask what you thought about the issue in this case with whether this case is going to have an effect on the charity work aimed at assisting aliens when they cross the border over into the U.S.?
Brian Fish: Yeah, that question was posed by Justice Kavanaugh to the government attorney. And the knee jerk reaction by the government was, look, say you’re a religious organization and you’re putting bottles of water out in the middle of the desert so the aliens don’t die of thirst. Is that a violation of 1324 because you’re encouraging or inducing an alien to come to or reside in the United States? The encouraging would be it’s known in smugglers’ circles that certain organizations, where they put their water bottles and food stations, that sort of thing, in the middle of the desert so that’ll help us smuggle these people in. Is that, just the mere fact that you’re putting something out there like that in the middle of the desert, is that an inducement?
And the government’s reaction was, look, it may or may not be, but they wouldn’t be prosecuted under 1324. At least they could be, but they’re not speaking, and so they can’t make a First Amendment argument against putting out bottles of water in the desert because they’re not speaking. Again, that’s an activity that could be criminalized, theoretically, but they wouldn’t have a First Amendment argument because they’re not speaking when they do it. They’re putting bottles of water out there.
Much like this defendant wasn’t speaking or advocating, if you will, the decriminalization of certain immigration activity, but she was fraudulently filing visa petitions or labor certificates for aliens, and therefore, she’s inducing them to stay. There again, that’s an action, not a speech, and it wouldn’t be covered by a First Amendment argument like what the defendant in this case was trying to do.
Micah Wallen: All right. Not seeing any questions having come through, Brian, do you have any closing remarks or anything else you wanted to share about the case?
Brian Fish: Well, one more Clash reference in the great “Should I stay or should I go now?” If she stays, there will be trouble. And I think that line from The Clash -- again, the song was sung, the second half of it, in Spanish. Maybe they were foreshadowing. But if you simply state without doing anything else that substantially helps the person stay or come to the United States, if you just say, “I think you should stay,” that in and of itself is not going to violate 1324.
Now, if you’re keeping them at your house, you’re feeding them, you’re telling them when ICE shows up and knocks at the door, that could be a harboring crime which is under a different subsection of 1324, but not 1324(a)(iv). And you don’t have a First Amendment argument because this statute is criminalizing activity, not speech.
Micah Wallen: All right. And on behalf of The Federalist Society, I would like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.
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