- Associated Press
Tuesday, December 4, 2018

SAN FRANCISCO — A U.S. appeals court struck down a federal immigration law Tuesday that opponents warned could be used to criminalize a wide range of statements involving illegal immigration.

The law made it a felony for someone to encourage an immigrant to enter or live in the U.S. if the person knew either act is illegal.


The law violates the First Amendment because it criminalizes a substantial amount of protected speech, a three-judge panel of the 9th U.S. Circuit Court of Appeals said.

The statute, for example, would make it illegal for a grandmother to urge her grandson to ignore limits on his visa by encouraging him to stay in the U.S., Judge A. Wallace Tashima said.

In addition, a speech addressed to a crowd that encouraged everyone in the country illegally to stay here could also lead to a criminal prosecution, Tashima said.

“Criminalizing expression like this threatens almost anyone willing to weigh in on the debate,” he said.

A message to the Justice Department was not immediately returned.

Attorneys for the government have argued that the law only prohibited conduct and a very narrow band of speech that was not protected by the U.S. Constitution. They also noted it had not been used against “efforts to persuade, expressions of moral support, or abstract advocacy regarding immigration.”

The law preceded the Trump administration, which has taken a hard line on immigration.

The ruling came in the case of an immigration consultant in San Jose, Evelyn Sineneng-Smith, who was convicted of fraud after prosecutors said she falsely told immigrants they could obtain permanent residency under a program she knew had expired.

Sineneng-Smith was also convicted of encouraging or inducing an immigrant to remain in the country for financial gain. The 9th Circuit panel overturned those convictions on appeal and considered the constitutionality of the law.


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