Petition for Writ of Certiorari — David Allen Anderton, Petitioner v. United States

Supreme Court briefDec 19, 2018

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NO.

In the Supreme Court of the United States

DAVID ALLEN ANDERTON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

SHIRLEY BACCUS-LOBEL

Counsel of Record

Law Office of Shirley Baccus-Lobel

A Professional Corporation

8350 Meadow Road, Suite 186

Dallas, Texas 75231

214.220.8460

sbl@lobellaw.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTION PRESENTED FOR REVIEW

Whether to “encourage” or “induce” an alien to

come to, enter, or reside in the United States in

reckless disregard of the alien’s “in violation of law”

status, the serious felony offense created by 8 U.S.C.

§ 1324’s residual clause [8 U.S.C. § 1324 (a)(1)(A)(iv)],

is impermissibly vague because it leaves the choice of

prohibited conduct and unbridled enforcement

discretion to law enforcement, prosecutors, judges and

juries, in contravention of the due process of law and

the separation of powers, and because the statute’s

overbreadth runs afoul of the First Amendment’s

guarantee that no law shall abridge the freedom of

speech.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Course of Proceeding . . . . . . . . . . . . . . . . . . . 3

B. The Court of Appeals’ Decision . . . . . . . . . . . 4

BASIS OF FEDERAL JURISDICTION IN THE

DISTRICT COURT . . . . . . . . . . . . . . . . . . . . . . . . . . 5

REASONS FOR GRANTING THE WRIT . . . . . . . . 6

The Court’s Decision Conflicts with the

Decision of the Court of Appeals for the

Ninth Circuit in United States v. SineningSmith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.

The Fifth Circuit Erred in Upholding the

Constitutionality of 8 U.S.C. § 1324(a)(1)(A)(iv),

a Residual Clause which Leaves the

Determination of the Offense Conduct to the

Executive and Judicial Branches in Derogation

of the Separation of Powers and the Due

Process of Law . . . . . . . . . . . . . . . . . . . . . . . . . 9

iii

III.

This Conflict Between the Circuits Creates a

Disparity Between Federal Jurisdictions in

Application of the Law, an Issue Which

Arises in the Context of Immigration Law

Enforcement, a Matter of National

Importance . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Fifth Circuit

(August 16, 2018) . . . . . . . . . . . . . App. 1

Appendix B Amended Judgment in a Criminal

Case in the United States District

Court Eastern District of Texas,

Sherman Division

(October 20, 2017) . . . . . . . . . . . App. 17

Appendix C Memorandum Opinion and Order in

the United States District Court

Eastern District of Texas, Sherman

Division

(December 1, 2016) . . . . . . . . . . App. 28

Appendix D Order Denying Petition for Rehearing

in the United States Court of Appeals

for the Fifth Circuit

(September 24, 2018) . . . . . . . . . App. 32

Appendix E 8 U.S.C. § 1324 . . . . . . . . . . . . . . App. 33

TABLE OF AUTHORITIES

CASES

Beckles v. United States,

137 S. Ct. 886 (2017) . . . . . . . . . . . . . . . . . . 12, 13

City of Chicago v. Morales,

527 U.S. 41 (1999) . . . . . . . . . . . . . . . . . . . . . . . 13

DelRio-Mocci v. Conolly Props. Inc.,

672 F.3d 241 (3d Cir. 2012) . . . . . . . . . . . . . . . 8, 9

Elonis v. United States,

575 U.S.__, 135 S. Ct. 2001 (2015) . . . . . . . . . . 15

Giaccio v. Pennsylvania,

382 U.S. 399 (1966) . . . . . . . . . . . . . . . . . . . . . . 12

Grayned v. City of Rockford,

408 U.S. 104 (1972) . . . . . . . . . . . . . . . . . . . . . . 12

Johnson v. United States,

576 U.S.___, 135 S. Ct. 2551

(2015) . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 14, 15

Kolender v. Lawson,

461 U.S. 352 (1983) . . . . . . . . . . . . . . . . . . . . . . 13

Posters ‘N’ Things, Ltd. v. United States,

511 U.S. 513 (1994) . . . . . . . . . . . . . . . . . . . . . . 15

Ratzlaf v. United States,

510 U.S. 135 (1994) . . . . . . . . . . . . . . . . . . . . . . 15

Sessions v. Dimaya,

584 U.S.___(2018) . . . . . . . . . . . 10, 11, 14, 15, 16

United States v. Balint,

258 U.S. 250 (1922) . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Sinening-Smith,

No. 15-10614 (9th Cir. December 4,

2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8, 9, 16

United States v. Stevens,

559 U.S. 460 (2010) . . . . . . . . . . . . . . . . . . . . . . . 8

CONSTITUTION AND STATUTES

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . 1

8 U.S.C. § 1324 . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

18 U.S.C. § 1546(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Petitioner David Allen Anderton respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth

Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 901 F.3d 278

(Appendix A). The opinion of the district court denying

a motion to dismiss is set forth in Appendix D.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1). On August 16, 2018, the United

States Court of Appeals for the Fifth Circuit issued its

decision in this case affirming petitioner’s convictions.

On September 24, 2018, the timely petition for

rehearing was denied. Appendix C. The petition is filed

within 90 days after that date and is therefore timely.

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED

Amendment I to the U.S. Constitution provides, in

part: “Congress shall make no law . . . abridging the

freedom of speech . . ..”

Amendment V to the U.S. Constitution provides, in

part: “No person shall . . . be deprived of life, liberty,

or property, without due process of law;”

8 U.S.C. § 1324(a)(1)(A)(iv) and (v) provide:

(1)(A) Any person who –

* * *

(iv) 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; or

(v) engages in any conspiracy to commit any

of the preceding acts [§§(a)(1)(A)(i), (ii), (iii),

and (iv)].

8 U.S.C. § 1324(a)(1)(B)(i) provides:

(B) A person who violates subparagraph (A)

shall, for each alien in respect to whom such a

violation occurs(1) in the case of a violation of subparagraph

(A)(1) or (v)(I) or in the case of a violation of

subparagraph (A)(ii)(iii), or (iv) in which the

offense was done for the purpose of

commercial advantage or private financial

gain, be fined under Title 18, imprisoned not

more than 10 years, or both[.]

STATEMENT

A. Course of Proceedings

Following a jury trial in the Eastern District of

Texas, petitioner, the owner and operator of an

irrigation and landscape business, was convicted of

“conspiracy to encourage and induce an illegal alien to

reside in the United States in violation of 8 U.S.C.

§ 1324 (a)(1)(v)(I) (Count 2); and encouraging an illegal

alien to reside in the United States in violation of 8

U.S.C. § 1324(a)(1)(A)(iv) (Counts 3-6).” 901 F.3d at

280; App. A at 1-2. The indictment charged that “for

the purpose of commercial advantage and private

personal gain, [he] encouraged and induced [illegal

aliens] to reside in the United States, knowing and in

reckless disregard of the fact that such residence would

be in violation of the law” and conspired to do so.1

Prior to trial, petitioner moved to dismiss the counts

alleging violations of 8 U.S.C. § 1324(a)(1)(A)(iv) and

(v) on the ground that the scienter standard of

recklessness was an inappropriate standard for a

serious criminal offense. The motion was denied.

Appendix D.

Petitioner was sentenced to concurrent 5-year terms

of probation, received a $60,000 fine ($10,000 on each

count), and was ordered to pay restitution of

$19,073.63. Appendix B. In addition, certain real

Petitioner was also convicted of false statement in an

immigration document, a petition for visa workers, in violation of

18 U.S.C. § 1546(a). That conviction also was affirmed by the court

of appeals. App. A at 1, 12-14. 901 F.3d at 280, 285-286.

property was ordered forfeited. 901 F.3d at 282; App. A

at 4.

B. The Court of Appeals’ Decision

Petitioner argued on appeal that 8 U.S.C.

§ 1324(a)(1)(A)(iv) is impermissibly vague and its mens

rea standard, constitutionally deficient. As the court

below characterized the issue: “He contends that the

terms ‘encourage’ and ‘induce’ are so broad as to have

no discernable parameters . . . [and that] a mens rea

of reckless disregard of other persons’ illegal presence

exacerbates the vagueness . . ..” 901 F.3d at 283;

App. A at 6. Petitioner therefore urged that his

conviction for violations of 8 U.S.C. § 1324(a)(1)(A)(iv)

[inducing or encouraging aliens to reside in the U.S.

“knowing or in reckless disregard of the fact” that such

residency is or will be in violation of the law] and

conspiracy to do so were fatally flawed and should be

set aside.

The court below rejected petitioner’s constitutional

challenge to 8 U.S.C. § 1324(a)(1)(A)(iv), stating:

As to vagueness, Justice Scalia summed up,

“[o]ur cases establish that the Government

violates the guarantee [of the Due Process

clause] by taking away someone’s life, liberty, or

property under a criminal law so vague that it

fails to give ordinary people fair notice of the

conduct it punishes, or so standardless that it

invites arbitrary enforcement” [citation omitted].

This court is concerned that the instant

statutes of conviction, Sections 1324

(a)(1)(A)(iv) and (v), are extremely broad

and the consequences of felony conviction

are harsh. Whether these terms are

unconstitutionally vague is another matter.

Courts must indulge a presumption of

constitutionality and carefully examine a statute

before finding it unconstitutional. Skilling v.

United States, 561 U.S. 358, 405-06 . . . (2010).

901 F.3d at 283 (emphasis added); App. A at 7.

Applying a “presumption of constitutionality and

carefully examin[ing the] statute[,]” the court found it

“sufficiently clear to provide fair notice to the public

and guide law enforcement.” 901 F.3d at 283; App. A

at 7, 8. With respect to “the requirement that a

defendant exhibit ‘reckless disregard’ that an alien’s

residence in the U.S. will be illegal,” the court of

appeals said it was “bound to ‘follow Congress’ intent

as to the required level of mental culpability for any

particular offense.’” 901 F.3d at 284; App. A at 9.

THE BASIS OF FEDERAL JURISDICTION IN

THE COURT OF APPEALS

The jurisdiction of the court of appeals was invoked

under 28 U.S.C. § 1291.

REASONS FOR GRANTING THE WRIT

The court of appeals upheld § 1324(a)(1)(A)(iv),

despite acknowledged misgivings regarding the

breadth of the statute. However, the statute is not

salvageable. Like residual clauses this Court has

considered previously, this “catch all” subsection

reposes in other branches of government a level of

discretion at odds with the Constitution’s guarantee of

due process and its requirement of separation of

powers. Moreover, this statute’s overbreadth abridges

the freedom of speech, as the Ninth Circuit held in

United States v. Sinening-Smith. No. 15-10614 (decided

December 4, 2018).

The Court’s Decision Conflicts with the

Decision of the Court of Appeals for the

Ninth Circuit in United States v. SineningSmith.

In Sinening-Smith, the Ninth Circuit reversed

convictions for encouraging and inducing an alien to

remain in the United States for purpose of financial

gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and

1324(a)(1)(B)(i) and concluded that Subsection (iv) was

unconstitutional.2 The Ninth Circuit concluded that

§ 1324(a)(1)(A)(iv)’s breadth could not be reconciled

with the Constitution’s prohibition against laws

Sineneng-Smith also was convicted of mail fraud, in violation of

18 U.S.C. § 1341. Those convictions were affirmed in a separate

unpublished memorandum opinion.

abridging the freedom of speech.3 The court of appeals’

decision in this case conflicts with that result.

“Sinening-Smith operated an immigration

consulting firm…[and her clients were foreign workers]

unlawfully employed in the home health care industry

in the United States, who sought authorization to work

and adjustment of status to obtain legal permanent

residence (green cards). Sineneng-Smith assisted

clients with applying for a ‘Labor Certification,’ and

then for a green card[,]” representing that the

certification would achieve permanent resident status

when the program had actually expired (slip op. at 6-7).

Regarding subsection (iv)’s “felony prosecution of any

person who ‘encourages or induces an alien to come to,

enter, or reside in the United States’ if the encourager

knew, or recklessly disregarded ‘the fact that such

coming to, entry, or residence is or will be in violation

of law,’” the court of appeals addressed the potential

reach of encouraging and inducing, and concluded:

The statute thus criminalizes a substantial

amount of constitutionally-protected expression.

The burden on First Amendment rights is

intolerable when compared to the statute’s

legitimate sweep. Therefore, we hold that

Subsection (iv) is unconstitutionally overbroad

in violation of the First Amendment.

(slip op. at 6). Acknowledging that “encourage or

induce” can encompass both speech and conduct, the

The court ordered briefing on the due process challenge to the

statute on vagueness grounds but did not reach that issue in view

of its disposition on First Amendment grounds. Sineneng-Smith,

slip op. at 42, n.15.

court observed that “neither of these verbs has clear

non-speech meanings that would inform and limit the

other’s meaning.” Id. at 18-19.

The court described the government’s contention

that subsection (iv) should be interpreted to require

specific action:

The government contends, in light of these

other verbs in the other subsections, that

“encourage or induce” “should likewise be

interpreted to require specific actions that

facilitate an alien’s coming to, entering, or

residing in the United States illegally. So

understood, §1324(a)(1)(A)[(iv)] serves as a

‘catch all’ provision that covers actions other

than ‘bringing,’ ‘transporting,’ etc., that might

facilitate illegal immigration.”

Id. at 20 (emphasis added). The Court reasoned that

although “subsections (i)-(iii) prohibit specific actions,

it does not follow that Subsection (iv) covers only

actions.” Id. at 21. The Court concluded that the

“Government’s interpretation of subsection (iv) rewrites

the statute.” Id at 14. “While we endeavor to ‘construe[]

[a statute] to avoid serious Constitutional doubts,’ we

can only do so if the Statute is ‘readily susceptible to

such a construction.’” ”We will not rewrite a law to

conform it to Constitutional requirements, for doing so

would constitute a serious invasion of the legislative

domain . . ..” Id. at 14, citing United States v. Stevens,

559 U.S. 460, 481 (2010).

Like the Fifth Circuit (901 F.3d at 283-84; App. A at

6, 8-9, 10), the Ninth addressed the Third Circuit’s

decision in DelRio-Mocci v. Conolly Props. Inc., 672

F.3d 241, 249 (3d Cir. 2012). The court of appeals

observed that “DelRio-Mocci added an act requirement,

a substantiality requirement, and a causation

requirement to the text of Subsection (iv)[,]” and

stated: “we do not think the statute is reasonably

susceptible to this interpretation in the absence of

statutory text to that effect” (Sinening, slip op. at 26).

The statute “does not contain an act or assistance

requirement.” Id. at 39. The court noted the statute’s

silence “about the mens rea required for the encourage

prong” and the knowing or reckless disregard regarding

the alien’s “in violation of law” status. Id. at 15.4 The

court concluded that “implying a mens rea requirement

into the statute, … did not cure the statute’s

impermissible scope.” Id. at 39.

II.

The Fifth Circuit Erred in Upholding the

Constitutionality 8 U.S.C. § 1324(a)(1)(A)(iv),

a Residual Clause which Leaves the

Determination of Offense Conduct to the

Executive and Judicial Branches in

Derogation of the Separation of Powers and

the Due Process of Law.

The Fifth Circuit reached a different conclusion

regarding Subsection 1324(a)(1)(A)(iv)’s constitutionality.

Despite its concerns about this “extremely broad statute”

and its harsh consequences, the court was “strongly

inclined to conclude that ‘encourage’ and ‘induce’ are

sufficiently clear to provide fair notice to the public and

guide law enforcement.” The court noted: “The district

The court in Sineneng-Smith repeatedly emphasized that

residence in the United States is not a crime even if the person’s

presence is unauthorized. Id. at 29, 31, 36, 41.

court instructed that ‘[e]ncourage means to knowingly

instigate, help or advise. Induce means to knowingly

bring about, to effect or cause or to influence an act or

course of conduct.’” 901 F.3d at 283; App. A at 8. The

court erred in ruling that encourage and induce are

sufficiently precise to shield the statute from a fatal

vagueness challenge. “Help” and “advice” describe

human discourse and interaction without meaningful

limitation or context, other than a relationship to

unauthorized aliens. Induce - to “influence” a “course of

conduct” - is without parameters and also specifies no

conduct. These open-ended terms invite free-wheeling

prosecutorial and law enforcement decision making.

Unlike the other provisions of § 1324(a)(1)(A), the

statute is not constrained by an actus reus. Like the

residual clauses condemned as impermissibly broad in

Johnson v. United States, 576 U.S.___, 135 S. Ct. 2551

(2015) and Sessions v. Dimaya, 584 U.S.___(2018),

§ 1324(a)(1)(A)(iv)’s catch all terminology suffers the

same fatal infirmities.

Speaking for four members of the Court in Dimaya,

Justice Kagan reiterated that the “void-for-vagueness

doctrine” “guards against arbitrary or discriminatory

law enforcement by insisting that a statute provide

standards to govern the actions of police officers,

prosecutors, juries, and judges” (Dimaya, slip op. at 45). Justice Gorsuch’s concurrence echoes this concern:

“‘A vague law impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution

on an ad hoc and subjective basis’” (Dimaya

concurrence, slip op. at 9; citation omitted).

The “void for vagueness” doctrine is “a corollary of

the separation of powers—requiring that Congress,

rather than the executive or judicial branch, define

what conduct is sanctionable and what is not” (Dimaya,

slip op. at 5). The concurrence also acknowledged the

“doctrine’s equal debt to the separation of powers”

(Dimaya concurrence, slip op. at 8, and 2):

“[L]egislators may not * * * leav[e] to judges the

power to decide ‘the various crimes

includable in [a] vague phrase,’ Jordan v.

DeGeorge, 341 U.S. 223, 242 (1951) (Jackson, J.,

dissenting).” Id. at 8 (emphasis added).

“Vague laws also threaten to transfer legislative

power to police and prosecutors, leaving to them

the job of shaping a vague statute’s contours

through their enforcement decisions.” Id. at

8 (emphasis added).

“Allowing the legislature to hand off” the “hard

business” of “law making” “risks substituting”

for the Constitution’s design “one where

legislation is made easy,” leaving unelected

officials free to pursue their own predilections.

Id. at 9.

Nor is the statute constrained by an inherently

unlawful context – as, for example, is the case with

fraud. The universe of possible applications of the

terms “induce” and “encourage” is limited only by the

enforcement predilections of the agent, prosecutor,

judge, or juror.

By its terms, the statute embraces any conduct

which would “induce or encourage” an undocumented

alien to reside in the United States. The universe of

possible conduct which would “induce” or “encourage”

an undocumented foreigner to reside in the U.S. is

seemingly unlimited. Consider a few of the ordinary

incentives which a community affords, in addition to

opportunities for work and for shelter: education,

participation in religious activities, charitable

opportunities, recreation, medical and dental care,

emergency care, entertainment, access to legal

assistance, and so forth. The court of appeals’ opinion

necessarily approves filling-in-the-blanks with the

proscribed “induced or encouraged” conduct, but this

runs afoul of the constitutional prohibition against

vague criminal statutes and abridges the separation of

powers which assigns legislative power to the

Congress.

Section 1324(a)(1)(A)(iv) does not describe, even

loosely, the conduct proscribed. It describes no

conduct. “A vague law impermissibly delegates basic

policy matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discriminatory

application.” Grayned v. City of Rockford, 408 U.S. 104,

108-109 (1972) (emphasis added). “An unconstitutionally

vague law invites arbitrary enforcement in this sense if

it ‘leaves judges and jurors free to decide, without any

legally fixed standards, what is prohibited and what is

not in each particular case.” Beckles v. United States,

137 S. Ct. 886, 894 (2017), citing Giaccio v.

Pennsylvania, 382 U.S. 399, 402-403 (1966).

“[T]he Due Process Clause prohibits the

Government []from ‘taking away someone’s life, liberty,

or property under a criminal law so vague that it fails

to give ordinary people fair notice of the conduct it

punishes, or so standardless that it invites arbitrary

enforcement[,]’” Beckles, 137 S. Ct. at 892 (emphasis

added), citing Johnson, 135 S. Ct. at 2556, citing

Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).

The court of appeals also erred in treating the due

process claim of impermissible vagueness as an “as

applied” claim. 901 F.3d at 282-83; App. A at 6. The

constitutionality of the statute cannot be sustained by

the “as applied” analysis in these circumstances. As

this Court observed in City of Chicago v. Morales, 527

U.S. 41, 52 (1999): “[E]ven if an enactment does not

reach a substantial amount of constitutionally

protected conduct, it may be impermissibly vague

because it fails to establish standards for the police and

public that are sufficient to guard against the arbitrary

deprivation of liberty interests. Kolender v. Lawson,

461 U.S. 352, 358…(1983).”

Justice Alito’s dissent from the holding in Johnson,

135 S. Ct. at 2580 (which found a sentencing

enhancement to be impermissibly vague) stated one

view of the law governing vagueness challenges:

Thus, in a due process vagueness case, we will

hold that a law is facially invalid ‘only if

the enactment is impermissibly vague in

all of its applications.’ Hoffman Estates [v.

Flipside, Hoffman Estates], 455 U.S. [489,] at

494-495…[(1982)] (emphasis added); see also

Chapman [v. United States], 500 U.S. [453,] at

467… [(1991)]. (emphasis added)

However, the majority in Johnson rejected the view

that an “as applied” analysis was controlling [135 S. Ct.

at 2561]:

Resisting the force of these decisions, the

dissent insists that ‘a statute is void for

vagueness only if it is vague in all its

applications.’…It claims that the prohibition of

unjust or unreasonable rates in [United States

v.] L. Cohen Grocery [Co., 255 U.S. 81 (1921)]

was ‘vague in all applications,’ even though one

can easily envision rates so high that they are

unreasonable by any measure….It seems to us

that the dissent’s supposed requirement of

vagueness in all applications is not a

requirement at all, but a tautology. If we hold a

statute to be vague, it is vague in all its

applications (and never mind the reality). If the

existence of some clearly unreasonable rates

would not save the law in L. Cohen Grocery, why

should the existence of some clearly risky crimes

save the residual clause?

Clarification of the appropriate use of “as applied”

constitutional analysis also is squarely presented here.

As in Dimaya, one vague element is compounded by

another. Petitioner asserted below “that making such

conduct a felony offense under a mens rea of reckless

disregard of other persons’ illegal presence

exacerbates the vagueness, particularly because

various statutes and regulations strictly limit an

employer’s ability to question the immigration status of

new or existing hires.” 901 F.3d at 283: App. at 6

(emphasis added).

The statute’s infirmities are indeed compounded by

insufficient mens rea standards. No scienter is

required with respect to the gravamen of the offense, to

“induce” and to “encourage”; and a standard of

recklessness applies to the alleged offender’s

knowledge of the alien’s status. The court of appeals

dismissed the scienter argument, on the ground that

recklessness is a standard often used in criminal

statutes. 901 F.3d at 284; App. A at 9. However, the

courts reject de minimus mens rea standards for

statutes imposing heavy penalties. To apply a scienter

standard of recklessness in such circumstances offends

the “ ‘general rule’ [] that a guilty mind is ‘a necessary

element in the indictment and proof of every crime.’”

Elonis v. United States, 575 U.S.__, 135 S. Ct. 2001,

2009 (2015), citing United States v. Balint, 258 U.S.

250, 251 (1922). See, also, Posters ‘N’ Things, Ltd. v.

United States, 511 U.S. 513 (1994) (even with respect

to items objectively discernable as drug paraphernalia,

a culpable state of mind is required). And see Ratzlaf

v. United States, 510 U.S. 135 (1994).

The constitutional requirement of a clear and

culpable state of mind is particularly compelling in the

case of purported violations arising in the context of

ordinary and legal human endeavors – here, the hiring

of people to work at a business engaged in lawful

commerce. Recklessness in that context, particularly

given the conflicting obligations an employer faces both

to not hire an unauthorized worker and to at the same

time not discriminate in that hiring (901 F.3d at 283:

App. A at 6), is not a tenable scienter requirement for

a violation of §1324(a)(i)(A)(iv).

An inadequate mens rea requirement renders the

statute’s reach indeterminate and thereby violates due

process. E.g., Johnson, 135 S. Ct. at 2556-57. As in

Dimaya, the statute here layers uncertain or

speculative terms – “encourage or induce” • “in

reckless disregard” • “residence is or will be in

violation of law” - thus compounding vagueness.

Dimaya, slip op. at 8; concurrence, at 8, 16-17.

III.

This Conflict Between the Circuits Creates

a Disparity Between Federal Jurisdictions

in Application of the Law, an Issue Which

Arises in the Context of Immigration Law

Enforcement, a Matter of National

Importance.

These conflicting rulings on the constitutionality of

§1324(a)(1)(A)(iv), one on due process grounds and the

other to secure the liberty of freedom of speech, create

an untenable situation. The resulting conflict means

that this law may be applied and enforced in certain

federal jurisdictions in the United States, but not in

others.

The conflict arises in the context of “a hotly-debated

issue in our society” [Sinening, slip op. at 40], a context

in which the transfer of Congressional power to

prosecutors and juries is particularly dangerous. As the

Sineneng court observed - in particular reference to

statutory overbreadth in the First Amendment context

but also applicable to enforcement decisions which

compromise due process: “We think that they are part

of every-day discussions in this country where citizens

live side-by-side with non-citizens.” Id. at 38. This is

an area of law for which uncertainty regarding a

statute’s application and insufficiently constrained

discretion regarding enforcement decisions present

serious dangers.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,