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Can the government prosecute someone for ‘encouraging’ illegal immigration? Supreme Court to decide

Is it a crime or free speech for someone to “encourage” immigrants to come to this country illegally, or remain here after their visas have expired?

The Supreme Court grappled with that question Monday in the case of a Sacramento man who charged immigrants $500 to $10,000, and falsely promised he could help them obtain U.S. citizenship.

He was convicted of 15 counts of fraud as well as two counts of encouraging two immigrants to overstay their visas.

That latter charge won him a partial acquittal before the U.S. 9th Circuit Court of Appeals, and it posed for the high court a clash between immigration law and the 1st Amendment.

Since 1952, federal law has made it a crime to “encourage or induce an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact” that doing so would be illegal.

Pointing to those broad words, the 9th Circuit ruled that the provision violated the 1st Amendment because it could be read to make it a crime for family members or friends to encourage a person to come to this country or to remain here illegally. The appeals court upheld the 15 fraud counts against the defendant, Helaman Hansen, and a 20-year prison term.

The justices agreed to hear the government’s defense of the “encourage” provision of the law, and most of them sounded skeptical of the free-speech claim, at least in this case.

“He solicited immigrants and defrauded them. He was taking advantage of very vulnerable people,” said Justice Neil M. Gorsuch. “This law has been on the books for 50 years.”

Justice Amy Coney Barrett agreed, noting there is no record of the law being used to prosecute innocent people for encouraging immigrants to stay in this country.

But the court’s liberals said they saw a potential free-speech problem.

“This statute criminalizes words,” said Justice Sonia Sotomayor.

Justice Elena Kagan agreed that the law‘s wording is so broad that it could threaten everyday conversations. What if a lawyer, doctor or neighbor advises someone they should stay in this country even if they are undocumented, she asked.

“They say, ‘I really think you should stay.’ What happens?” she said to Deputy Solicitor Gen. Brian Fletcher.

He replied the government has not and will not prosecute people for such family or friendly conversations. If such a case arises, he added, the defendant should invoke the 1st Amendment as a defense.

He urged the court not to strike down the “encourage or induce” provision solely because it could be potentially misused in future cases.

Several of the justices also noted that Hansen may be entitled to win a retrial for part of his case because the jury instructions were flawed.

The case was United States vs. Hansen, and a written opinion can be expected by late June.

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