The Supreme Court avoided a difficult First Amendment question on Friday, ruling that an unusual 1986 federal law that makes it a crime to “encourage” or “induce” unauthorized immigrants to come to or stay in the United States should be read narrowly to require complicity in a criminal conduct.
A broader interpretation of the law would give rise to constitutional concerns, Justice Amy Coney Barrett wrote for the majority in the 7-to-2 decision. She added that the law’s key words were terms of art used in a “specialized, criminal-law sense” and mean something different than they do in ordinary usage. For purposes of the law, she wrote, the terms require proof of solicitation or facilitation of a crime.
When the case was argued in March, several justices asked questions about the law’s sweep, given the usual meaning of “encourage.”
Justice Sonia Sotomayor asked about a grandmother living in the United States without authorization. “The grandmother tells her son she’s worried about the burden she’s putting on the family,” the justice said. “And the son says: ‘Abuelita, you are never a burden to us. If you want to continue living here with us, your grandchildren love having you.’”
Justice Brett M. Kavanaugh asked about charitable organizations. “There’s still going to be a chill or a threat of prosecution for them for providing food and shelter and aid and recommending people for scholarships,” he said.
In dissent on Friday, Justice Ketanji Brown Jackson, joined by Justice Sotomayor, rejected the majority’s approach and said the court should have struck down the law on First Amendment grounds. She gave other examples of the law’s sweep if its words bore their ordinary meaning.
“It would also apply to the doctor who informs a noncitizen patient that a necessary medical treatment is more readily available in the United States, influencing the patient to stay beyond the expiration of his visa to await treatment,” Justice Jackson wrote. “The college counselor who advises an undocumented student that she can obtain a private scholarship to attend college in the United States, inspiring the student to reside here, would also fall within the scope of the statute.”
The case involved Helaman Hansen, who was convicted of violating the law, along with mail and wire fraud, for taking large fees to help undocumented immigrants obtain citizenship through adult adoption.
“It was too good to be true,” Justice Barrett wrote. “There is no path to citizenship through ‘adult adoption.’”
She described some of Mr. Hansen’s victims. “After hearing about the program from their pastor, one husband and wife met with Hansen and wrote him a check for $9,000 — initially saved for a payment on a house in Mexico — so that they could participate,” Justice Barrett wrote. “Another noncitizen paid Hansen out of savings he had accumulated over 21 years as a house painter. Still others borrowed from relatives and friends. All told, Hansen lured over 450 noncitizens into his program, and he raked in nearly $2 million as a result.”
Last year, a panel of the U.S. Court of Appeals for the Ninth Circuit upheld Mr. Hansen’s fraud convictions, which resulted in 20-year prison sentences, but it reversed his convictions under the 1986 law for encouraging immigrants to overstay their visas, which would have come with 10-year sentences to be served at the same time as the sentences for fraud.
Esha Bhandari, a lawyer with the American Civil Liberties Union, which represents Mr. Hansen, reacted cautiously to Friday’s ruling.
“The Supreme Court has drastically limited the encouragement provision to apply only to intentional solicitation or facilitation of immigration law violations,” she said. “As written by Congress, the law has left people wondering what they can safely say on the subject of immigration. Now we expect the government to respect free speech rights and only enforce the law narrowly going forward.”
In dissent, Justice Jackson wrote that she feared that constitutionally protected speech would continue to be stifled under the majority’s approach.
“Ordinary people confronted with the encouragement provision, for instance, will see only its broad, speech-chilling language,” she wrote. “Even if they do consult this court’s decision, and do recognize that it substantially narrows the statute’s scope, the court’s decision leaves many things about future potential prosecutions up in the air.”