US Supreme Court Skeptical of Overturning Federal Ban on Encouraging Illegal Immigration

A U.S. Border Patrol directs an illegal alien after he crossed into the United States from Mexico through a gap in the border wall separating Algodones, Mexico, from Yuma, Ariz., on May 16, 2022. Frederic J. Brown/AFP via Getty Images

The U.S. Supreme Court has cast a skeptical eye on a First Amendment challenge against a federal ban on encouraging illegal immigration, with justices saying the law is too rarely invoked to actually chill free speech.

The law in question, known as Section 1324 of the U.S. Code, makes it a crime punishable by up to 10 years in prison to “encourage or induce” foreign nationals to illegally enter or remain in the United States for private financial gain.

During Monday’s oral argument (pdf), several Supreme Court justices appeared to agree that the rather broad terms of “encourage” and “induce” could be interpreted in a way to infringe one’s freedom of speech. They did note, however, that the government hardly used the law to prosecute Americans merely for what they say.

“The statute’s been on the books for a long time, and there’s an absence of prosecutions,” said Justice Amy Coney Barrett. “There is also an absence of demonstrated chilling effect.”

Meanwhile, Justice Sonia Sotomayor argued that the chilling effect is real, pointing to a 2019 report that the U.S. government created a secret database of activists and journalists sympathetic to illegal immigrants.

“Well, we do know that the [U.S. Customs and Border Protection] made a list of all of the people, religious entities, the lawyers, and others who were providing services to immigrants at the border and was saying that they intended to rely on this statute to prosecute them,” she said. “We’re criminalizing words related to immigration.”

More than two years ago, the Supreme Court reversed a circuit court decision that struck down Section 1324. In late Justice Ruth Bader Ginsburg’s second-last majority opinion (pdf), the high court unanimously declared that the lower court made a “drastic departure from the principle of party presentation” that “constituted an abuse of discretion.”

‘Adult Adoption’ Program

The constitutionality of the same law is being tested again this year in a different case brought by Helaman Hansen, a California man who had convinced adult illegal immigrants to pay him as much as $10,000 on the false promise that he could help them get U.S. citizenship through being legally adopted by a U.S. citizen.

Hansen was sentenced to 20 years in prison in 2017 after a jury found him guilty of 12 counts of mail fraud, three counts of wire fraud, and two counts of encouraging and inducing illegal immigration for private financial gain. By the time the Sacramento police arrested him, Hansen had induced approximately 500 victims to pay more than $500,000 to join his non-existing “adult adoption” program.

Brian Fletcher, a Justice Department attorney defending Section 1324, urged the justices to read the law’s language as “soliciting or aiding-and-abetting.” This narrower reading, he said, would avoid the First Amendment question by separating speech and obviously illegal conduct.

Esha Bhandari, a staff attorney at American Civil Liberties Union (ACLU), argued the case on behalf of Hansen. While acknowledging that her client had scammed many people and will serve his time in jail, she said the challenge is about the potential criminalization of people who genuinely advise illegal immigrants with “truthful information.”

Bhandari also accused Fletcher of trying to make the court rewrite the law. “But that is Congress’s job,” she said.

At another point of the argument, Justice Brett Kavanaugh put the Biden administration official in an awkward situation by asking him why progressive activists who provide food, water, and shelter to illegal immigrants don’t have to worry about his narrower interpretation.

“They seem to have a sincere concern about that ... that it will deter their kind of everyday activities,” he said. “That’s what a lot of charities do ... with non-citizens who are not in the country lawfully.”

Fletcher replied vaguely that one “has to meet the sort of very high bar” in order to get prosecuted under Section 1324. When pressed repeatedly by Kavanaugh for where exactly the line should be drawn, Fletcher said there’s a difference between “taking for granted” that people have already crossed the border and providing them with some assistance while they are here and actively taking steps to associate oneself in their venture of illegally staying in the country.

Justice Ketanji Brown Jackson, the latest addition to the court’s progressive minority, seemed to take issue with Fletcher’s response. Fletcher had to assure her that providing illegal immigrants with food and shelter won’t violate the statute, even though doing so facilitates their ability to stay.

“I don’t think that’s acting with the purpose of keeping those people in the country when they would otherwise leave,” he told Jackson.