The Biden administration pleaded with the Supreme Court on Monday to preserve a section of the law that punishes people who entice illegal immigrants to remain in the U.S., brushing aside First Amendment worries.
Justices seemed conflicted, suggesting that the language of the law is broad enough that it might be seen to snare churches, charities and even family members, who might have to be careful about what they say to an illegal immigrant.
But the justices also said the law is decades old and hasn’t been used in that way.
“The statute’s been on the books for a long time and there’s an absence of prosecutions. There’s also an absence of chilling effects,” said Justice Amy Coney Barrett.
The case involves a part of the law that makes it illegal to smuggle or harbor illegal immigrants.
Helaman Hansen was convicted of falsely telling illegal immigrants he could get them on the path to legal status through adult adoption. He charged up to $10,000 apiece, making more than $1.8 million, but failed to deliver legal status since there is no adult adoption citizenship program.
He was convicted on fraud charges, and also under the smuggling charge, which makes it illegal to encourage or induce unlawful immigration, particularly for financial gain.
The 9th U.S. Circuit Court of Appeals, though, said the law was too broad and would apply to normal communications, which runs against the First Amendment’s free speech guarantee.
Justice Sonia Sotomayor seemed to agree.
“Why should we uphold this statute that criminalizes words, makes the punishment 5 years, which is rather significant?” she said. “I know of no other statute where the aiding and abetting punishment, or the solicitation punishment, is greater than the punishment we’re giving the person who’s going to commit the crime.”
That was a reference to the fact that while crossing the border without permission is a crime, remaining in the country illegally is only a civil offense, punishable by deportation.
Several justices were troubled by the fact that someone could face a jail sentence for enticing a crime, when the penalty for the crime itself doesn’t include jail time.
So did the idea that someone might be prosecuted for urging a relative to stay unlawfully.
“I think we’re going to talk to the grandmother who lives with her family who’s illegal, or who are noncitizens, 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 continue living here with us, your grandchildren will love having you,’” Justice Sotomayor said. “Can you prosecute this?”
“I think not,” replied Brian H. Fletcher, the deputy solicitor general arguing the case for the Justice Department.
Chief Justice John G. Roberts Jr. repeatedly came back to the fact that there were no prosecutions of those kinds of cases in the record.
And Justice Neil M. Gorsuch said Hansen’s case was a particularly odd arena in which to fight over this law, given Hansen’s behavior.
“He’s victimized these people and may be the 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 justice said. “it’s a little awkward that we’re worried about chilling other people’s speech and it has nothing to do with the case before us.”
He wondered if the court shouldn’t wait for another case involving one of the situations of a charity or family member getting snared.
“Mr. Hansen’s behavior was not commendable here,” said Esha Bhandari, the lawyer for the American Civil Liberties Union who argued against the government.
But she said he was already guilty under the fraud convictions, for which he netted a sentence of 20 years, and those won’t change no matter how the court rules on the smuggling charges.
She also said immigration lawyers are closely watching the case to see if they need to change their advice to clients to avoid running afoul of the law.
“When the stakes of getting it wrong are felony prosecution and 5 years imprisonment, people are not going to go anywhere close to the line,” she said.
The case is U.S. v. Hansen. A ruling is expected by late June.
