U.S. court strikes down law that makes it a felony to encourage someone to violate immigration law

A federal appeals court panel Tuesday struck down as overly broad a federal law that makes it a felony to encourage someone to violate immigration laws. Above, the 9th Circuit Court of Appeals in San Francisco.
(Josh Edelson / AFP/Getty Images)

An appeals court decided unanimously Tuesday to strike down a federal law that makes it a felony to encourage someone to violate immigration laws.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said the law was overly broad and violated constitutional protections for free speech.

The court cited the example of a mother who tells her adult son who’s in the country illegally that she would like him to stay in the U.S. because she would be lonely without him.


“Situations like this one, where a family member encourages another to stay in the country, or come to the country, are surely the most common form of encouragement or inducement within [the law’s] ambit,” wrote Judge A. Wallace Tashima, a Clinton appointee, for the panel.

The decision struck down a provision of an immigration law that has been in effect since 1985.

The provision makes it a felony for someone to encourage or induce a person from another country to come to the U.S. or remain in the U.S. knowing or recklessly disregarding the fact that the action would violate immigration law.

The ruling came in an appeal by Evelyn Sineneng-Smith, who operated an immigration consulting firm in San Jose.

She was convicted on two counts of encouraging and inducing a resident without documentation to remain in the United States for the purposes of financial gain, which the ruling overturned.

She also was convicted of mail fraud, which the panel upheld.

The 9th Circuit said the section of the law it struck down imperiled not only family members but also attorneys who advise clients on immigration matters.


The panel cited the example of an attorney who tells a client to remain in the country while contesting deportation because noncitizens within the U.S. have more rights than those outside the country.

“Under the the statute’s clear scope, the attorney’s accurate advice could subject her to a felony charge,” the panel said.

The panel said the examples it cited were “not some parade of fanciful horribles.”

“Instead, they represent real and constitutionally protected conversations and advice that happen daily,” the court said.

Tuesday’s decision was the first by a federal appeals court to strike down the law. A federal appeals court based in Virginia upheld the law several years ago in a ruling that could not be cited as precedent.

Anne Hudson-Price, an attorney with Public Counsel who helped argue the case, said it was unclear how many times people have been charged under the law.

She cited the case of a woman who gave advice about immigration law to her housekeeper, who was in the country without authorization.

The woman was convicted under the provision in 2012 in Massachusetts. A new trial was ordered, and the Obama administration declined to retry the case.

Overturning the law is important because it could “silence an entire side of the debate” over immigration, she said.

The Department of Justice could not be reached for comment about a possible appeal.

Twitter: @mauradolan


4:20 p.m.: This article was updated reaction.

This article was originally published at 12:40 p.m.