The Supreme Court on Monday debated whether a federal law that makes it a crime to “encourage” or “induce” an illegal immigrant to remain in the U.S. sweeps up amounts of speech that is protected by the First Amendment, and in being too broad, could jeopardize charitable groups that feed the hungry or a family’s plan to have a grandmother continue living with them.
At the center of the case is defendant Helaman Hansen, who, in operating an organization called Americans Helping America Chamber of Commerce, conned 471 immigrants who had overstayed their visas into paying between $550 and $10,000 under the false pretense that they could obtain U.S. citizenship through adult adoption.
Hansen was convicted in 2017 on 15 counts of mail and wire fraud for defrauding those people out of a total $1.8 million and was sentenced to 20 years in prison, NPR reported.
However, the jury also convicted him on two counts encouraging or inducing illegal immigrants to remain in the U.S. After the U.S. Court of Appeals for the 9th Circuit found the corresponding decades-old law “overbroad and unconstitutional,” the government appealed, bringing the matter before the Supreme Court, The Washington Post reported.
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During an hour and half hearing Monday, Deputy Solicitor General Brian H. Fletcher, representing the Justice Department, made strategic concessions, but argued the statute be upheld.
“I think we’re going to talk to the grandmother who lives with her family who’s illegal or who are noncitizens,” Justice Sonia Sotomayor said, according to the Post. “The grandmother tells her son she’s worried about the burden she’s putting on the family, and the son says, ‘Abuelita, you are never a burden to us. If you want to live here — continue living here with us, your grandchildren love having you.’ Are you — can you prosecute this?”
“Why should we uphold a statute that criminalizes words,” she added. “That’s what we’re doing with this statute.”
“What do you say to the charitable organizations that say, even under your narrowing construction, there’s still going to be a chill or a threat of prosecution for them for providing food or shelter and aid,” Justice Brett Kavanaugh asked Fletcher. “They seem to have a sincere concern about that and that it will deter their kind of everyday activities.”
“We do know that the Customs Department made a list of all the people, religious entities, the lawyers and others who were providing services to immigrants at the border and was saying they were going to rely on the statute to prosecute them?” Sotomayor also posed.
According to NPR, Justice Elena Kagan inquired, “What happens to all the cases where it could be a lawyer, it could be a doctor, it could be a neighbor, it could be a friend, it could be a teacher and could be anybody, says to a noncitizen, ‘I really think you should stay.’ What happens to that world of cases?”
Fletcher, admitting there would be hard cases, said the law should not be interpreted to the broadest possible meaning and instead the words “encourage and induce” should be read more like intentionally seeking to aid and abet a crime – and the Hansen’s case involves defrauding immigrants. If the Supreme Court wants to protect the aforementioned people or groups from prosecution, he encouraged the justices to write their opinion indicating “that the statute has the limits that we say it has, in ways that we won’t be able to get around in the future.”
“It is a little awkward, though, that this case comes up in a posture with Mr. Hansen, who I don’t think anybody could say he’s been chilled from speaking,” Justice Neil M. Gorsuch said. “I mean, he’s had no problem soliciting people here in this country and defrauding them to the tune of lots and lots of money… He has victimized these people, and it may be a poster child for a situation in which the underlying offense might be modest, but you might want to criminalize it because he’s taking advantage of very vulnerable people.”
The hypotheticals aside, Justice Amy Coney Barrett argued there were few examples of the immigration law causing a chilling effect to free speech.
“No one’s pointed out there are charitable organizations, to use Justice Kavanaugh’s hypothetical, that are not giving food and shelter and resources or that lawyers are afraid to give advice. I mean, the statute’s been on the books for a long time,” she said. “There’s an absence of prosecutions. There is also an absence of demonstrated chilling effect.”
Hansen’s lawyer, Esha Bhandari, countered that under the encouragement provision, the government did not have to prove that he lied or deceived anyone or engaged in any false speech – only that he encouraged or induced people to stay in the U.S. The American Civil Liberties Union is also backing Hansen as he challenges the two-count conviction on free speech claims.