A federal appeals court has struck down a portion of federal law that makes it a crime to encourage foreigners to enter or reside in the United States illegally.
The 9th Circuit Court of Appeals panel ruled that the provision violates the First Amendment by covering speech that is constitutionally protected.
Judge A. Wallace Tashima said the statute appeared to apply to statements amounting to “pure advocacy on a hotly debated issue in our society.”
“Criminalizing expression like this threatens almost anyone willing to weigh in on the debate,” Tashima wrote in a 42-page opinion issued Tuesday.
Federal prosecutors said the law — which predates the Trump administration — should only be read to apply to individuals who provide “substantial assistance” to undocumented immigrants, but the judge called that reading “strained” and unpersuasive.
“Although the ‘encourage or induce’ prong…may capture some conduct, there is no way to get around the fact that the terms also plainly refer to First Amendment-protected expression,” Wallace wrote.
The ruling does not affect nearby language in the same statute covering those who knowingly harbor or shield illegal immigrants.
The decision came in an appeal brought by former California immigration consultant, Evelyn Sineneng-Smith, who was sentenced in 2015 to 18 months in prison after a jury convicted her on tax and mail fraud charges, as well as a violation of the law about encouraging foreigners to reside illegally in the U.S.
Prosecutors painted her immigration practice as a scam and said she induced immigrants to apply for programs that had ended or benefits for which they were clearly ineligible.
The appeals court panel upheld Sineneng-Smith’s other convictions Tuesday, but she will have to be re-sentenced because the court vacated her conviction on the charge of encouraging immigrants to reside in the U.S. illegally.
President Donald Trump has railed against the 9th Circuit in recent weeks, blasting its appeals and district court judges for rulings blocking his immigration-related policies, including his effort to end the Obama-era Deferred Action for Childhood Arrivals program and his attempt to restrict the process for granting asylum to foreigners claiming persecution in their home countries.
Tashima’s ruling Tuesday was joined by Judges Marsha Berzon and Andrew Hurwitz. Tashima and Berzon were appointed by President Bill Clinton. Hurwitz was appointed by President Barack Obama.
Another 9th Circuit Judge, Stephen Reinhardt, was originally on the panel considering the case, but the Jimmy Carter appointee died in March at age 87. Hurwitz assumed Reinhardt’s position on the panel.
Justice Department spokesman Steven Stafford said Wednesday that the department stands behind the law and is considering what to do next.
“It is illegal to knowingly assist in the commission of violent crimes, drug crimes, and a variety of other crimes; it is only right that Congress, on a fully bipartisan basis, has criminalized assisting in the commission of immigration crimes as well,” Stafford said. “The Department is reviewing this ruling and considering our options.”
The government could ask a larger, 11-judge 9th Circuit panel to take up the issue, or ask the Supreme Court to step in.