Could Suggesting an Undocumented Immigrant Stay in the Country Put You in Jail? The Supreme Court Will Decide 

The US Supreme Court could make it a crime to encourage undocumented immigrants to stay in the U.S.

The Supreme Court has decided to take up United States vs. Sineneng-Smith, a case that uses the provision of forbidding “encourag[ing] or induc[ing] an alien to … reside in the United States” when the person who is doing the encouraging knows that the person is undocumented and has no legal status in the U.S.

SCOTUS will now decide if the law fits with the First Amendment, The New York Times reported. Last year, Judge A. Wallace Tashima struck down the law in writing for a unanimous panel of the United States Court of Appeals for the Ninth Circuit in San Francisco.

“The statute potentially criminalizes the simple words — spoken to a son, a wife, a parent, a friend, a neighbor, a co-worker, a student, a client — ‘I encourage you to stay here,’” Tashima wrote, according to The Times.

The Case

The First Amendment case involves Evelyn Sineneng-Smith, who was an immigration consultant and had her own firm in San Jose, California. Sineneng-Smith’s clients, who were mostly from the Philippines, were illegally employed in the U.S. and were looking to obtain green cards to stay in the U.S.

Sineneng-Smith had told her clients that she knew of a program through the Labor Certification process that could help them obtain permanent legal status, but the program had expired on April 30, 2001, and Sineneng-Smith knew it. Despite this, she still charged her clients $6,800 to file applications, according to The Times.

Sineneng-Smith was indicted, charged and convicted by a jury of violating a federal law that prohibits encouraging an undocumented immigrant to come or stay in the U.S., “knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”

She appealed her conviction and when it reached the Ninth Circuit, she said she said it was her First Amendment Right to file the applications, but the separate filing was immediately shot down. The Supreme Court has said that “Speech integral to criminal conduct,” which means that it is not protected by the amendment.

What This Means

The provision in the law has many immigrant rights groups on edge. With the recent hearings on immigration and DACA that have been heard in court this past month, some advocates worry about the Trump administration cracking down on this one provision.

“An advocate or lawyer now has to worry, given the government’s position in this case, that this language … may trigger criminal liability just for correctly advising a noncitizen,” Manny Vargas, senior counsel for the nonprofit Immigrant Defense Project in New York City, previously told Slate. Evangeline M. Chan, an immigration attorney and the Director of Immigration Law Project of Safe Horizon told The North Star since the provision is so broad, which is why immigration lawyers and advocates are nervous. Chan said that if the Supreme Court finds Sineneng-Smith’s act of consulting undocumented immigrants fell under this statue, it would be an “alarming and broad interpretation of this section of the statute.”

“It really depends on how the Supreme Court will weigh in on that,” Chan told TNS.

Chan said the government is looking to criminalize specific and affirmative acts with this law, like charging individuals who have smuggled undocumented immigrants into the country or harboring them. She said it’s alarming Sineneng-Smith was charged under this provision over what she said to her clients, which, Chan explains, is something many lawyers and advocates do.

“When we meet with our clients for a consultation, we tell them what their options are and if they have no options, or if they have an option in the future, by giving them the knowledge that they may be eligible for something in the future, that could be seen as encouraging someone to stay. It would implicate so much of what we do and that’s why it’s really alarming for the immigration advocates community,” Chan said.

Chan also noted that this provision is scary for anyone in general, like people on social media who support the rights of immigration to stay in the country, because it could fall under this statute should this be used to penalize free speech.

“What we’re going to be looking for, and hoping we don’t see from the Supreme Court, is this kind of broad interpretation of this specific section to have it apply to speech,” said Chan. “A different interpretation would really be incongruous with the entire Immigration and Nationality Act.”

“In this political climate where this government has shown a willingness to criminalize pro-immigration advocates and immigration attorneys for doing their jobs,” said Chan, “there definitely is a fear that the government will have a broad interpretation of that statute and have it apply to the very work that we do.”


About the Author

Maria Perez is a breaking news writer for The North Star. She has an M.A. in Urban Reporting from the CUNY Graduate School of Journalism. She has been published in various venues, including Newsweek, Juvenile Justice Information Exchange, City Limits, and local newspapers like The Wave and The Home Reporter.