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Researh Servi k-M-
The First Amendment and 'Encouraging or
'Inducing Unlawful Immigration
March 12, 2020
In United States v. Sineneng-Smith, the Supreme Court is considering the constitutionality of a federal
criminal prohibition against encouraging or inducing illegal immigration. The U.S. Court of Appeals for
the Ninth Circuit previously held that the law was unconstitutionally overbroad in violation of the First
Amendment because the terms encourage and induce could criminalize a substantial amount of
protected speech. The government appealed the decision to the Supreme Court, arguing that the law
operates as a prohibition on facilitation and solicitation of unlawful activity and is therefore not
overbroad. Sineneng-Smith is potentially important, not only for federal immigration law and how it is
enforced, but also more broadly for First Amendment jurisprudence on when Congress can criminalize
speech that encourages illegal activity. This Sidebar provides an overview of the case, beginning with
background on immigration and free speech law, before turning to the specific issues raised by Sineneng-
Smith and its potential implications for Congress.
Legal Background
The Immigration and Nationality Act (INA) governs the admission, removal, and presence of non-U. S.
nationals (i.e., aliens). Although it is generally not a crime for a removable alien to be present in the
United States, Congress has established criminal sanctions for certain conduct that undermines
immigration rules. For example, 8 U.S.C. § 1324 contains multiple criminal offenses that penalize
individuals who smuggle, transport, harbor, or conceal unlawfully present aliens, as well as the provision
at issue in Sineneng-Smith. That provision, 8 U.SoC. § 1324(a)(i)(A)(iv) (Subsection (iv)) makes it a
crime for any individual to encourage[] or induce[] an alien to come to, enter, or reside in the United
States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in
violation of the law. A conviction may result in a fine and up to five years' imprisonment, with enhanced
penalties including imprisonment for up to ten years if the crime was committed for commercial
advantage or private financial gain.
Because the INA does not define the terms encourage or induce, there is some debate over the scope
of Subsection (iv), primarily as to whether the terms should be broadly construed in accordance with their
ordinary meaning, or whether Congress intended the terms to prohibit conduct more narrowly. As
discussed below, a narrower construction of the statute would prohibit only conduct or speech that
Congressional Research Service
https://crsreports.congress.gov
LSB10419
CRS Lega Sidebar
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