Ninth Circuit finds part of the alien smuggling criminal statute unconstitutional. What does that mean for removability?

Sunday, December 9th, 2018
By: Jonathan MontagJ.D.

In a case filed December 4, 2018, a Ninth Circuit Court of Appeals panel decided in USA v. Sineneng-Smith that the criminal statute, INA § 274(a)(1)(A)(iv), is unconstitutionally over-broad in violation of the First Amendment because it criminalizes a substantial amount of protected expression in relation to its narrow band of legitimately prohibited conduct and unprotected expression.

The statute states:

Any alien who encourages or induces 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 law shall be punished….

The Court noted that as written, the law could criminalize a grandmother telling her undocumented grandchildren not to return to their country, or an attorney who advises a client that she should remain in the country while contesting removal – because, for example, non-citizens within the United States have greater due process rights than non-citizens outside the United States, or because, as a practical matter, the government may not physically remove her until removal proceedings are completed. The Court noted that such potential prosecutions are not wildly speculative, pointing out that former Immigration and Customs Enforcement Acting Director Thomas Human threatened to prosecute San Francisco officials under INA § 274 because of San Francisco’s being a sanctuary city

The Sineneng-Smith court also noted an alarming case where the United States attorney asserted it could prosecute an attorney for giving illegal aliens advice to remain in the United States while their status is disputed in United States v. Henderson.

While valuable as a criminal law case, this Immigration – First Amendment crossover (as Barbri would put it), could also have removability implications. If criminalizing “encouraging and inducing” an alien to enter the United States violates the First Amendment and thus is not valid criminal statute, would the deportation statute at INA § 237(a)(1)(E) or the inadmissibility statute at INA § 212(a)(6)(E)(I) that renders deportable or inadmissible a non-citizen who “encourages and induces” an alien to enter or try to enter the United States in violation of the law also be a violation of the alien’s First Amendment rights and thus invalid?

The answer is not obvious for a few reasons. First, do aliens even have First Amendment rights? Second, the Sineneng-Smith decision was partially based on the fact that INA § 274(a)(1)(A)(iv) criminalized encouraging or inducing an alien to remain in the United States in violation of the law. For an undocumented alien to remain in the United States is not a crime – it is a civil law violation – and criminalizing the encouraging or inducing a non-criminal act is unprecedented, says the Sineneng-Smith court. Illegal entry, on the other hand, is a crime, so would specifically encouraging or inducing illegal entry also be protected speech?

On the other hand, criminal statutes and related immigration statutes often do sink or swim in tandem. Precedent also exists to extend criminal holdings to the civil immigration context. After the Supreme Court found that 18 U.S.C. § 16(b) was void for vagueness in the criminal context in Johnson v. United States, it found it similarly void for vagueness in the immigration context in Sessions v. Dimaya.

Also, keep in mind whether INA § 274(a)(1)(A)(iv) is divisible with different elements and separate means, an important issue in determining removability after Mathis v. United States  and Rendon v. Holder in the Ninth Circuit  before it.

The Ninth Circuit website posts a Manual of Model Criminal Jury Instructions. The instruction for INA § 274(a)(1)(A)(iv) is:

The defendant is charged in [Count _______ of] the indictment with encouraging illegal entry by an alien in violation of Section 1324(a)(1)(A)(iv) of Title 8 [INA § 274)(a)(1)(A)(iv)] of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, [name of alien] was an alien;

Second, the defendant encouraged or induced [name of alien] to [come to] [enter] [reside in] the United States in violation of law; and

Third, the defendant [knew] [acted in reckless disregard of the fact] that [name of alien]’s [coming to] [entry into] [residence in] the United States would be in violation of the law.

An alien is a person who is not a natural-born or naturalized citizen of the United States. An alien enters the United States in violation of law if not duly admitted by an Immigration Officer.


If the paragraphs are elements and the bracketed words are means, then a jury does not decide if the defendant encouraged illegal entry to the United States or staying “illegally” in the United States. This certainly supports the argument that INA § 274)(a)(1)(A)(iv) should not be considered proof of an alien smuggling act.

The Ninth Circuit has held that any violation of INA § 274 is an alien-smuggling aggravated felony. In United States v. Galindo-Gallegas,  the court discussed specifically INA §§ 274(a)(1)(A)(i) and (ii). In Castro-Espinosa v. Ashcroft, the Court added INA § 274(a)(1)(A)(iii) as an alien-smuggling aggravated felony. While no case specifically addressed INA § 274(a)(1)(A)(iv), the other two cases made it plain that any violation of INA § 274 was an aggravated felony. If Sineneng-Smith survives, now that INA § 274(a)(1)(A)(iv) is not even a crime, perhaps a more careful look at all of INA § 274 is warranted. If being in the United States illegally is not a crime, as the Sineneng-Smith court pointed out, should transporting or harboring an alien in the country illegally be one? Further, if how the alien came to be present in the United States without authorization was not something the defendant was involved with (or else the respondent in removal proceedings could be charged with actual smuggling rather than encouraging or inducing it), would criminal guilt or civil removability hinge on whether the alien overstayed a visa or entered without inspection? If so, would not yet another constitutional provision rear its delightful head, equal protection?

Of course, the removal statutes for alien smuggling, INA § 237(a)(1)(E) and INA § 212(a)(6)(E)(I), do not require criminal convictions, but the argument remains whether encouraging and inducing illegal entry can be considered alien smuggling after Sineneng-Smith.

It also gives one pause as to what things immigration attorneys tell their clients that could result in criminal prosecution, particularly when the Justice Department is run by people disdainful of immigration attorneys, as was discussed here. Posted December 9, 2018.


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