Among the eight immigration cases pending at the U.S. Supreme Court is one involving the First Amendment. On February 25, 2020, the Supreme Court heard oral arguments in U.S. v. Sineneng-Smith, a case involving a federal statute that makes it a crime to encourage or advise immigrants in the country to stay illegally. The Supreme Court will decide if this federal statute is unconstitutional. A decision is expected by June 30, 2020.
The case stems from a California woman, Evelyn Sineneng-Smith, who ran an immigration consulting business serving Filipino home health care workers. From 2001 to 2008, she collected more than $3 million from clients applying for an adjustment of their immigration status. But the particular program Sineneng-Smith was filing under had ended in 2001, so the clients she applied for were not actually eligible.
Sineneng-Smith was convicted of mail fraud and tax violations. She was also charged with the crime that is at issue in the case at the Supreme Court: illegally encouraging an alien to remain in the United States.
The legal question in the case is whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain is unconstitutional.
During oral arguments, only Justice Samuel Alito seemed to believe that the government could actually punish anybody who ‘encourages’ undocumented immigration. “If it could, after all, then political speech defending open borders or opposing deportation might be considered a federal offense.”
Representing the government, Deputy Solicitor General Eric Feigin asserted that the law covers only criminal conduct or ‘solicitation’ of a crime, not mere advocacy or expression.
Justice Sonia Sotomayor asked Feigin how “an average person” could possibly know about “all of the limitations you’re suggesting to us.”
A ruling for the First Amendment right to free speech this case would establish that the government cannot punish people for wanting to help immigrants in need.
Stayed tuned to see what the U.S. Supreme Court ultimately decides in this case.