Supreme Court Narrowly Interprets Statute That Criminalizes Encouraging Or Inducing Foreign Individuals To Enter The U.S. Illegally While Upholding First Amendment Overbreadth Doctrine

Published date23 August 2023
Subject MatterLitigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
Law FirmCahill Gordon & Reindel LLP
AuthorMr Joel Kurtzberg, Jason Rozbruch and Christina Lee

On June 23, 2023, in United States v. Hansen, the United States Supreme Court rejected a First Amendment overbreadth challenge to 8 U.S.C. '1324(a)(1)(A)(iv) ("clause (iv)"), which forbids "encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States" if one knows or recklessly disregards the fact that such entry would violate the law.1 In so holding, the Court interpreted the scope of the criminal statute narrowly - concluding that the terms "encourage" and "induce" were used as terms of art in the statute and referred solely to criminal solicitation and facilitation. As a result, the Court held that, when read narrowly, the statute does not prohibit a substantial amount of constitutionally-protected speech and was not legally overbroad. While the Court did not eliminate the First Amendment overbreadth doctrine altogether - as some commentators had predicted2 - the Court's decision, and Justice Thomas's concurrence in particular, demonstrate the continued erosion of the overbreadth doctrine and signal that it may be on its final legs.

I. Factual and Procedural Background

Helaman Hansen promised hundreds of noncitizens that they could inherit U.S. citizenship if adopted by a U.S. citizen through a program he called "adult adoption." There exists no such path to citizenship, and Hansen accumulated almost $2 million from the 450-plus noncitizens that were duped into participating. The United States charged Hansen with mail and wire fraud and violating clause (iv).

On December 18, 2017, following a jury trial in the United States District Court for the Eastern District of California, Hansen was convicted of violating clause (iv).3 Post-conviction, Hansen moved to dismiss the government's clause (iv) charge on First Amendment overbreadth grounds. The district court denied Hansen's motion,4 and Hansen appealed to the United States Court of Appeals for the Ninth Circuit.

During the pendency of Hansen's appeal, the Ninth Circuit decided United States v. Sineneng-Smith. 5 In that case, the Ninth Circuit sua sponte raised the issue of clause (iv)'s overbreadth and held, in December 2018, that clause (iv) was an unconstitutionally overbroad restriction of speech.6 The Supreme Court vacated that judgment in May 2020,7 finding that the Ninth Circuit had abused its discretion by "inject[ing] the overbreadth issue into the appeal and appointing amici to argue it."8 According to the Supreme Court, the Ninth Circuit had "departed so drastically...

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