Amicus Curiae Brief — United States, Petitioner v. Evelyn Sineneng-Smith

Supreme Court briefJan 22, 2020

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No. 19-67

IN THE

___________

UNITED STATES OF AMERICA,

PETITIONER,

EVELYN SINENENG-SMITH,

RESPONDENT.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

__________

BRIEF FOR THE CATO INSTITUTE AS

AMICUS CURIAE SUPPORTING RESPONDENT

__________

January 22, 2020

Ilya Shapiro

Counsel of Record

Trevor Burrus

Michael T. Collins

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

QUESTION PRESENTED

Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain violates the

First Amendment.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND

SUMMARY OF ARGUMENT............................... 1

ARGUMENT ................................................................ 5

THE GOVERNMENT’S MERGER OF THE

PREDICATE OFFENCE AND THE

SENTENCING ENHANCEMENT DOES NOT

THAW THE CHILLING EFFECT OF

§ 1324(a)(1)(A)(iv).................................................. 6

A. The Government’s Understanding of

Alvarez Is Wrong and Does Not Justify the

Piecemeal Overbreadth Doctrine the

Government Requests ....................................... 6

B. Apprendi Is a Shield Protecting Against

Increased Sanctions for Facts not Found

by a Jury, not a Sword Allowing the

Government to Evade the First Amendment

with Sentencing Enhancements ....................... 9

C. Even the Government’s Most Radical

Rewrite Fails to Prevent the Chilling

Effects Respondents Describe......................... 13

II. CRIMINALIZING ENCOURAGEMENT AND

INDUCEMENT FOR FINANCIAL GAIN

CHILLS A BROAD SWATH OF PROTECTED

COMMERCIAL SPEECH ................................... 14

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............. 9

Arizona v. United States, 567 U.S. 387 (2012) ......... 15

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002) .................................. 4, 5, 14, 18

Board of Trustees of State Univ. of N.Y. v. Fox,

492 U.S. 469 (1989) ................................................ 14

Gooding v. Wilson, 405 U.S. 518 (1972) ...................... 5

Hildwin v. Florida, 490 U.S. 638 (1989) ................... 12

Hurst v. Florida, 136 S. Ct. 616 (2016) ..................... 12

INS v. St. Cyr, 533 U.S. 289 (2001)........................... 13

Members of City Council of City of L.A. v.

Taxpayers for Vincent, 466 U.S. 789 (1984) ............ 5

Schenck v. United States, 249 U.S. 47 (1919) ............. 2

Texas v. Johnson, 491 U.S. 397 (1989)........................ 6

United States v. Alvarez, 567 U.S. 709 (2012) .. passim

United States v. Booker, 543 U.S. 220 (2005) ........... 11

United States v. Stevens, 559 U.S. 460 (2010) ............ 5

United States v. Williams, 553 U.S. 285 (2008)........ 14

Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442 (2008) ....................................... 5

Statutes and Other Authorities

Cal. Dep’t of Motor Vehicles,

AB 60 Driver License ............................................. 17

H.R. Rep. No. 113-84 (2013) ........................................ 7

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, § 112 ....................................... 12

Omnibus Consolidated Appropriations Act, 1997,

H.R. 3610, 104th Cong. (1996) ............................... 12

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan think tank dedicated to individual liberty, free markets, and limited

government. Cato’s Robert A. Levy Center for Constitutional Studies promotes the principles of constitutionalism that are the foundation of liberty. To those

ends, Cato conducts conferences and publishes books,

studies, and the annual Cato Supreme Court Review.

This case interests Cato because of its implications

for the freedom of speech in a variety of contexts. In

addition, as an advocate of less-restrictive immigration policies, Cato and its employees could run the risk

of violating the criminal statute at issue.

INTRODUCTION AND

SUMMARY OF ARGUMENT

A popular YouTuber with a large following in the

illegal immigrant community produces a video featuring an impassioned plea for illegal immigrants to stay

in the country despite current anti-immigrant sentiment. He argues that, even if an alien is violating the

law, it’s better to stay here and prosper in America.

The video goes viral, and the YouTuber produces a series of such videos, each one earning him more subscribers and more ad revenue. Would he have knowingly or recklessly “encourage[d] or induce[d] an alien

to come to, enter, or reside in the United States” in vi-

1 Rule 37 statement: Both parties have consented to the filing of

this amicus brief. No party’s counsel authored any of this brief;

amicus alone funded its preparation and submission. Also, with

no direct financial gain from this case, amicus is ineligible for a

subparagraph (B)(i) enhancement in the event this brief encourages unlawful aliens to remain within the United States.

olation of federal law? Would he be eligible for a sentencing enhancement because he arguably did it “for

the purpose of commercial advantage or private financial gain”?

The fact that the answer to this question is unclear—and that under a plain reading of the statute at

issue it seems that the YouTuber did commit a federal

crime—says just about everything about this case.

To adapt the stunningly broad language used by

the government in Ms. Sineneng-Smith’s case, would

the YouTuber have “inspired hope in his viewers” and

“influenced their decision to stay in the country”? Gov.

C.A. Br. at 33. The government claims it has never

prosecuted such people as the hypothetical YouTuber,

and, if asked, would certainly aver to this Court that

it would never do so. But if pleading prosecutorial discretion defeated overbreadth challenges, then there

would be no overbreadth challenges.

More importantly, if the YouTuber asked a lawyer

about the law, should the lawyer, going off a plain

reading of the statute, advise him that he may very

well be violating federal law by making the videos?

And if the YouTuber didn’t make the videos—probably

wisely—would that be a paradigmatic example of

“chilling” First Amendment-protected speech?

Here’s another not-so hypothetical: A member of

the Socialist Party distributes fliers advocating that

young men “assert their rights” and resist conscription, arguing that it violates the Thirteenth Amendment. Schenck v. United States, 249 U.S. 47, 51 (1919).

Would a law prohibiting someone from “encouraging”

or “inducing” someone to resist conscription run afoul

of the First Amendment?

Title 8 U.S.C. § 1324(a)(1)(A)(iv) taken on its own

criminalizes protected speech and is overbroad under

the First Amendment. The Court need not adopt the

government’s rewritten version, which merges the

predicate offence with the sentence enhancement. If

the Court looks at this statute in the context of a sentencing enhancement charged below, however, the enhancement is still irrelevant to the chilling effect of the

predicate offence. A vast swath of legitimate commercial speech is chilled by the predicate offence plus the

sentence enhancement.

The enhancement in subparagraph (B)(i) does not

thaw the chill of (A)(iv) simply because it offers increased penalties. The government misreads United

States v. Alvarez, 567 U.S. 709 (2012), and proffers a

theory that, in an overbreadth challenge, the Court

may only evaluate the predicate offence in conjunction

with any sentence enhancement the government happens to charge. Alvarez invalidated a statute proscribing false claims to have won service medals, with additional penalties for claiming to have won the Medal

of Honor. But Alvarez does not require courts to look

only at the predicate offence in conjunction with the

applicable sentence enhancement. Justice Breyer’s

concurrence flatly rejected such a reading by positing

that a statute limited to special awards might survive

scrutiny. Nevertheless, the government treats the factual focus on lying about the Medal of Honor as though

an overbroad statute may be saved by a sentence enhancement. That could lead to the absurd result of a

ban on flag-burning that survives scrutiny because of

a sentence enhancement for, say, inciting a riot.

Nor is it relevant to the chilling effects of the main

statute that the elements of the sentencing enhancement be proven to a jury before they may increase a

defendant’s sentence. The jury instructions and forms

in this case show that subparagraph (A)(iv) is the predicate offence where the chilling effect must lie. J.A. at

118–21. The jury here was asked whether the defendant was guilty of violating (A)(iv) and then asked if the

financial gain enhancement could be applied. A defendant’s ability to scrupulously prove she had not

been motivated by financial gain would do nothing to

save her from a guilty verdict—nor save the hypothetical YouTuber if he showed a lack of profit motive. The

chilling effect remains with the predicate offence.

The government offers to rewrite the statute and

rectify the “cosmetic drafting choice” Congress made in

treating (B)(i) as a separate sentence enhancement rather than create two predicate offences, one with a financial gain element and one without. Pet. Br. at 40–

41. But this Court should not be in the business of

writing statutes, and even if this Court were to rewrite

the statute, the base burden of the revised statute

would be on speech. The statute as a whole would be

unconstitutionally overbroad regardless of additional

non-speech elements the government may look to.

Overbreadth cases necessitate hypotheticals because legitimate speakers are often cowed by the “severe penalties” incurred for violating speech prohibitions. Ashcroft v. Free Speech Coal., 535 U.S. 234, 244

(2002). Under the statute, immigration attorneys,

medical professionals, YouTubers, Cato Institute policy scholars, and members of the Court’s own bar can

fear the consequences of their legitimate speech. Indeed, a good-faith agent in Ms. Sineneng-Smith’s

place, one who was merely mistaken about the availability of certain immigration programs, could still face

decades in prison for conduct that involved no fraud.

ARGUMENT

Title 8 U.S.C. § 1324(a)(1)(A)(iv), even limited by

(B)(i), is facially invalid. When statutes regulate or

punish protected speech, “the transcendent value to all

society of constitutionally protected expression” justifies attacking the overinclusive prohibition. Gooding v.

Wilson, 405 U.S. 518, 520–21 (1972). The Constitution

protects people “from overbroad laws that chill speech

within the First Amendment's vast and privileged

sphere.” Ashcroft, 535 U.S. at 244.

Under the First Amendment, a law is invalid “as

overbroad if ‘a substantial number of its applications

are unconstitutional, judged in relation to the statute’s

plainly legitimate sweep.’” United States v. Stevens,

559 U.S. 460, 473 (2010) (quoting Wash. State Grange

v. Wash. State Republican Party, 552 U.S. 442, 449, n.6

(2008)). “[A] statute may be challenged on its face even

though a more narrowly drawn statute would be valid

as applied to the party in the case before it.” Members

of City Council of City of L.A. v. Taxpayers for Vincent,

466 U.S. 789, 799 (1984) (citing Gooding, 405 U.S.

518).

Amicus endorses respondent’s arguments that subparagraph (A)(iv), itself, is overbroad. Furthermore,

the government is wrong to suggest that subparagraph

(B)(i) in some way limits this Court’s review of (A)(iv).

A statute limited to prohibiting commercial speech

that encourages or induces aliens to remain in the

United States would still have “a substantial number

of its applications [be] unconstitutional.”

I. THE GOVERNMENT’S MERGER OF THE

PREDICATE OFFENCE AND THE

SENTENCING ENHANCEMENT DOES NOT

THAW THE CHILLING EFFECT OF

§ 1324(a)(1)(A)(iv)

Ms. Sineneng-Smith posits that § 1324(a)(1)(A)(iv),

standing alone, is unconstitutionally overbroad and

chills protected speech beyond the legitimate scope of

the statute. Resp. Br. at 14 et seq. This provision

should be viewed on its own for an overbreadth challenge. The sentencing enhancement provisions in

(B)(i) are irrelevant to (A)(iv)’s chilling effect.

A. The Government’s Understanding of Alvarez Is Wrong and Does Not Justify the

Piecemeal Overbreadth Doctrine the Government Requests

Suppose Congress passed a proscription levying a

$50 fine for burning cloth on sticks, but if that cloth is

the American flag, then the fine is doubled. A court

may wish to consider a challenge to that statute only

in the context of the sentence enhancement. If, however, a statute proscribes burning the American flag

with a $50 fine, and five days in jail are added if the

flag is burned for financial gain, then a court would

quickly invalidate the predicate offence regardless of

the sentencing enhancement. Cf. Texas v. Johnson,

491 U.S. 397 (1989).

In United States v. Alvarez, neither the plurality

nor the concurrence required or encouraged courts to

look only at the predicate offence tied to a sentence enhancement. 567 U.S. 709 (2012). The concurrence’s

reasoning impliedly contradicts the government’s

reading. See 567 U.S. at 736 (Breyer, J., concurring in

judgment). Potential speakers gain no solace from Alvarez and will continue to be chilled by subparagraph

(A)(iv) regardless of any militating influence of the

subparagraph (B)(i) enhancement.

A four-justice plurality and two-justice concurrence

together invalidated the Stolen Valor Act in Alvarez.

Id. at 730. As the government notes, Pet. Br. at 38, the

plurality reached this conclusion by examining the

act’s general prohibition against falsely claiming to

have won military honors, along with the sentence enhancement for falsely claiming to have won the Congressional Medal of Honor. Alvarez, 567 U.S. at 715–

16. The concurrence, however, did not distinguish between general and enhanced offences. See id. at 736

(Breyer, J., concurring in judgment) (noting that the

statute covers marksmanship awards).2

Instead, the concurrence contemplated versions of

the statute that may have survived. Pertinent to the

government’s reading, Justice Breyer suggested that

Congress could determine that certain awards, like the

Medal of Honor, deserve greater protection and thus

limit the Stolen Valor Act to encompass only those.3 Id.

at 737. Despite the ability to reconstruct a more First

Amendment-conscious statute, the concurrence still

noted that the statute as written was unconstitutional.

2 Nor can the government look to the dissent, which makes no

suggestion that analysis should be limited to the Medal of Honor

enhancement. See Alvarez, 567 U.S. at 739 (Alito, J., dissenting).

3 Congress, accepting that the predicate offense of claiming mili-

tary honors was invalidated by Alvarez, took Justice Breyer’s suggestion to heart and limited the act to certain specific medals.

H.R. Rep. No. 113-84, at 4 (2013). It also added the requirement

of specific intent to obtain a tangible benefit. Id.

Nevertheless, the government treats the factual focus on lying about the Medal of Honor as if the predicate offence may be ignored if a sentence enhancement

is present. This is a stretch from the more reasonable

conclusion that the plurality mainly considers the

Medal of Honor because that is the lie the defendant

happened to tell. See id. at 713 (plurality).

Even if the distinction in Alvarez was relevant, it

was left unremarked upon. The sentence enhancement

in Alvarez forbade a particular lie as opposed to a general lie. The act proscribed generally stating, “I won

awards in the army” and added additional penalties

for specific speech: “I won the Congressional Medal of

Honor.” But subparagraph (B)(i) does not, in any way,

alter the proscribed speech as in Alvarez. Thus, the

lower court was correct that subparagraph (B)(i) is irrelevant to the chilling analysis of subparagraph

(A)(iv).

As with the hypothetical flag burning statute, the

chilling effect of subparagraph (A)(iv) has to be viewed

on its own. Any person reading § 1324(a)(1) would read

subparagraph (A)(iv) as self-actualizing, just as any

person who read the Stolen Valor Act would be chilled

from claiming to have won medals, whether the Medal

of Honor or for marksmanship. And anyone who reads

the hypothetical Flag Burning Act above would be

chilled from flag burning, regardless of whether they

stand to gain financially. Similarly, any person reading § 1324 would be chilled by (A)(iv) alone, regardless

of the sentence enhancements in (B)(i)–(iv). This is emphasized, not lessoned, by the government’s arguments invoking Apprendi v. New Jersey.

B. Apprendi Is a Shield Protecting Against

Increased Sanctions for Facts not Found

by a Jury, not a Sword Allowing the Government to Evade the First Amendment

with Sentencing Enhancements

1. Apprendi focuses on the requisite burden of

proof for increased sentencing.

The government is attempting to weaponize Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi

states the Constitution’s guarantee that every fact

supporting an upward departure from a crime sentencing range must meet the same burden of proof as the

facts of the predicate offence. Id. at 482. The government must submit additional facts needed for a sentence enhancement—like facts supporting a financial

gain incentive per (B)(i)—to a jury before seeking the

enhanced sentence; nothing more, nothing less. In this

case, the facts of the predicate offence—encouraging or

inducing an alien to immigrate illegally—must be

found by a jury beyond a reasonable doubt, which automatically qualifies for sentencing under subparagraph (B)(ii). If the government adds a financial-gain

enhancement, then a jury must find the facts supporting that charge beyond a reasonable doubt as well.4

That distinction is seen in the instructions given to

the jury below. J.A. at 118–21. Counts one, two, and

4 This is only true for subparagraphs (A)(ii), (iii), and (iv). If a jury

find the requisite facts for a violation of subparagraphs (A)(i) or

(A)(v)(I) then the sentence automatically falls under subparagraph (B)(i) with no necessary additional facts to find under Apprendi. 8. U.S.C. § 1324(a)(1)(B)(i). No charge of aiding and abetting under (A)(v)(II) will qualify for (B)(i) enhancement.

three ask the same questions with respect to three aliens. Id. Each is divided into parts (a) and (b). Id.

Count one reads:

On or About June 5, 2005, Encouraging or Inducing an Alien Identified by the Name Oliver

Galupo to Reside in the United States

Id. at 118. There is no mention here of a financial gain.

Question 1(a) then asks:

As to Count One of the Superseding Indictment, WE FIND defendant Evelyn SinenengSmith:

Id. This instruction provides the jury foreman with a

choice of not guilty and guilty, still with no mention of

the financial gain incentive. The jury foreman is next

told.

If you find Ms. Sineneng-Smith not guilty of

Count 1 in question 1(a), skip question 1(b) and

go directly to Count Two. If you find Ms.

Sineneng-Smith guilty of Count 1 in question

1(a), please answer question 1(b).

Id. (emphasis in original). If the jury finds Ms.

Sineneng-Smith guilty of the predicate offence, then,

and only then, does Apprendi come into play. For sentencing, the district judge must know beyond a reasonable doubt the answer to 1(b):

Has the government proven beyond a reasonable doubt that defendant Evelyn SinenengSmith committed the offense in Count One for

private financial gain?

Id. at 119. It is only with an affirmative answer to 1(b)

that the judge can constitutionally move from the default sentencing scheme in subparagraph (B)(ii) to the

enhanced sentencing scheme in (B)(i). Had the jury returned a negative, Ms. Sineneng-Smith would still face

prison. 8 U.S.C. § 1324(a)(1)(B)(ii). The question of financial gain arose only if the jury finds that Ms.

Sineneng-Smith committed the elements necessary to

be guilty under subparagraph (A)(iv) alone.

The government cautions against ascribing constitutional significance to the “label” of sentencing enhancement. Pet. Br. at 40 (quoting United States v.

Booker, 543 U.S. 220, 231 (2005)). This is fine advice

in the context of Booker, where that label meant the

difference between a defendant receiving his full

rights under the Constitution and the government

working around the constitutional standard for criminal convictions by labeling crimes as sentence enhancements. The advice is inapposite here. The label

here is an easy means of distinguishing between the

predicate offence that threatens to chill speech and one

of several additional penalties for the speech.

Speech is chilled by the command against “encourag[ing] or induc[ing]” regardless of whether a

(B)(i) or (B)(ii) sentence is tacked on. The innocent

speaker cannot take heart in her ability to flawlessly

prove to a jury that she neither sought nor received

any commercial advantage or financial gain. If the jury

answers that she is guilty of encouragement or inducement and returns a negative to the financial gain question, the government will not let her walk free with a

handshake and apology. They will seek a sentence under the default of subparagraph (B)(ii) where no Apprendi factors impede them. Apprendi does nothing to

thaw the chill of this statute because the additional

conduct and additional sentence are irrespective of the

speech forming the predicate offence.

2. Statutory interpretation matters outside of

Apprendi’s core holding should be limited to

statutes passed in Apprendi’s wake.

Unquestionably, Apprendi applies retroactively to

every substantive crime masquerading as a sentence

enhancement, regardless of when it was written into

law. See, e.g., Hurst v. Florida, 136 S. Ct. 616 (2016)

(overruling in part Hildwin v. Florida, 490 U.S. 638

(1989), which applied Apprendi to a sentencing scheme

previously upheld under pre-Apprendi case law). Accordingly, the Court may reasonably believe that legislation passed after Apprendi is written cognizant of

the requirement that sentence enhancements receive

the same fact-finding rigor as the predicate offence.

But subparagraph (B)(i) was added to the statute

in 1986, 14 years before Apprendi. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, §

112. And the portion of (B)(i) concerning financial gain

was added four years before Apprendi. Omnibus Consolidated Appropriations Act, 1997, H.R. 3610, 104th

Cong. § 203 (1996). Under Apprendi, the government

acted properly at the sentencing stage by asking the

jury whether this enhancement has been proved beyond a reasonable doubt. Before Apprendi clarified the

rights of defendants, it is unclear that Congress considered (B)(i) as anything other than an add-on to the

predicate violations of subparagraph (A).

Even interpreting § 1324 in light of Apprendi, that

case only adds a jury requirement if, and only if, a defendant is convicted under the predicate offence. the

predicate offence alone should be the basis for an overbreadth challenge.

C. Even the Government’s Most Radical Rewrite Fails to Prevent the Chilling Effects

Respondents Describe

The government finally defends the inclusion of

subparagraph (B)(i) in the overbreadth analysis of

subparagraph (A)(iv) by urging the Court not to invalidate the statute for a “cosmetic drafting choice.” Pet.

Br. at 40–41. But that “cosmetic” choice is the entire

statutory organization. The government contends that

there is no difference between the statutory scheme

that Congress created after deliberation and a reorganization where Congress instead created two versions of subparagraph (A)(iv): subsection (i) with a financial-gain enhancement and subsection (ii) without.

Despite the government’s cosmetology, this change

would represent a radical departure from this Court’s

usual constitutional interpretive method. While courts

must construe a statute to avoid constitutional problems where it is “fairly possible” to do so, INS v. St.

Cyr, 533 U.S. 289, 300 (2001), this Court is not required to redraft statutes in a form aligned with the

Constitution. See Alvarez, 567 U.S. at 736–38 (Breyer,

J., concurring in judgment) (examining possible alternative formulations of the statute at issue). The legislative power is not vested in this branch.

Even with this “cosmetic” reorganization, the fact

that a sub-subparagraph of (A)(iv) would contain an

additional financial gain element would be immaterial

to the chilling effect of (A)(iv) as a whole. Speech said

with the intent of financial gain—commercial speech—

is protected by the First Amendment.

II. CRIMINALIZING ENCOURAGEMENT AND

INDUCEMENT FOR FINANCIAL GAIN

CHILLS A BROAD SWATH OF PROTECTED

COMMERCIAL SPEECH

This law criminalizes protected commercial speech

that incidentally encourages or induces aliens to unlawfully remain in the United States. As Ms.

Sineneng-Smith notes, the breadth of protected speech

criminalized here “dwarfs” any legitimate sweep the

statute has. Resp. Br. at 35. While amicus has previously argued to this Court that the commercial/noncommercial speech distinction should be eliminated,

lesser scrutiny for commercial speech does not matter

here. “Some of our most valued forms of fully protected

speech are uttered for a profit,” and some of our most

valued forms of protected commercial speech are

chilled by the statute here. Board of Trustees of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 482 (1989).

Overbreadth cases necessitate hypotheticals about

scenarios not before the Court. As the Court has noted,

legitimate speakers are often cowed by “severe penalties” risked by violating unconstitutional speech prohibitions. See Free Speech Coal., 535 U.S. at 244. As in

any law school class, hypotheticals are a necessary

evil.5 This Court must “strike a balance between competing social costs.” United States v. Williams, 553

U.S. 285, 292 (2008). A statute is invalid under the

5 The government correctly notes that the Court below did not cite

any actual prosecutions, but rather presented a series of examples of speech that could be chilled by the statute. Pet. Br. 32. Had

the government prosecuted this conduct the First Amendment violation would be obvious to all. But this ignores the very reason

this Court recognizes facial challenges when protected speech is

at risk: the chilling effect on law-abiding citizens who will avoid

prosecution by abiding by the law.

First Amendment “if it prohibits a substantial amount

of protected speech,” which necessitates thinking beyond the case at bar to the protected speech of the community. Id.

For example, the government may convict an immigration attorney of this crime merely by showing that

the attorney, knowing her client was present unlawfully, counseled her about the advantages to remaining in the United States—and did so in the hope that

she might receive a fee. Indeed, as noted by Respondents, the government admits this point. Res. Br. at 3.

The government offers two answers to neutralize

this hypothetical. First, citing the Model Rules of Professional Conduct, it suggests that instead of advising

her client to remain in the country, the lawyer must

merely state the client is “unlikely to be removed.” Pet.

Br. at 35. Left unexplained is how this would not qualify as encouragement, or why requiring a lawyer to

limit her communication with clients to vague suppositions rather than clear answers is not an example of

chilled speech. A lawyer would still be forbidden from

telling her client what she most needs to know, the

benefits of staying rather than leaving, which could induce the client to remain. Additionally, Model Rule

1.2(d) concerns advising clients on future criminal endeavors. Continued residence is not criminal. Arizona

v. United States, 567 U.S. 387, 407 (2012). A lawyer

should be able to advise this course of action without

running into Model Rule 1.2 issues.

The government understandably views immigration matters from an enforcement perspective. In response to the Ninth Circuit’s example of an immigration attorney, the government points to the requirement that the alien’s residence be in violation of law.

Cert. Pet. at 18. Because aliens already in removal proceedings are not in violation of the law when given a

reprieve during the proceedings, the government suggests that the legal advice they seek after the commencement of proceedings will not violate (A)(iv) and

(B)(i). Id. This is true, and immigration attorneys entering at this stage need not be chilled. But illegal aliens are often concerned with the uncertainty of their

status, and they often seek immigration assistance before the government catches them and grants them

temporary legal reprieve. That large body of aliens

concerned with their own status includes, pertinently,

the aliens “encouraged” by Ms. Sineneng-Smith in this

case, who sought preventative immigration assistance.

This statute also criminalizes this hypothetical exchange with a proactive concerned alien of indeterminate status who seeks advice about the Deferred Action for Childhood Arrivals (DACA) program. Imagine

this conversation:

Alien: I want to stay in America. My parents

brought me here from Ruritania when I was

four. I don’t even speak Ruritanian. But if I

can’t figure out whether I qualify for DACA, I

will have to leave.

Attorney: I am an immigration lawyer and can

help. Come by my office at 123 Fake Street. I

normally bill $75 per hour.

Alien: I don’t know, I think I should just leave.

Attorney: How about we look at your situation

first? Stay put until we have done that, let’s

schedule a consultation next week.

Here the attorney has knowingly encouraged a particular alien to remain in the country in reckless disregard for whether remaining violates federal law, and

for financial gain.

Apart from lawyers, additional vital services rely

on commercial speech that would be sanctioned by the

combined statute. A pediatrician may encourage patients to stay in America because of vital care being

delivered to an illegally present child. To convict the

pediatrician of this crime, the government need only

prove that, for the purpose of financial gain, she knowingly encouraged specific aliens—her patients or their

families—to remain in the United States in knowing

or reckless disregard of the fact that such residence is

in violation of law. Informing the patient that there is

no better available care than what they can receive in

the United States is protected speech. That information would certainly “encourage” or “induce” a patient to remain where medical care is superior.

This statute also covers public servants trying to

help aliens access state programs. To convict a California Department of Motor Vehicles employee of this

crime, the government need only prove that she knowingly encouraged or induced a particular alien—any of

the available customers—to reside in the United

States by informing them about the California’s special licenses for unlawful aliens.6 The special licenses

allow such persons to drive and thus be more likely to

6 California forbids employees from denying a driver license be-

cause the candidate is an unlawful alien, if such person can prove

California residency. Cal. Veh. Code § 12801.9. Such employees

are caught between violating state and federal law. See also Cal.

DMV, AB 60 Driver License, https://www.dmv.ca.gov/portal/dmv/detail/ab60 (last visited Jan. 17, 2020).

remain in the United States. The DMV’s workers salary would be the financial gain.

Despite the statute’s sweeping range, on reading

the government’s brief, one is left with the impression

that if not for § 1324(a)(1)(A)(iv), in conjunction with

(B)(i), it would be unable to prosecute immigration

fraud. Unfortunately for Ms. Sineneng-Smith, that is

not the case. Ms. Sineneng-Smith’s fraudulent activities were charged and convicted under a separate statute. But if Ms. Sineneng-Smith had instead acted under the wrong impression that the program she was

utilizing was still valid, she would have lacked the

mens rea for fraud. If she advised her clients about the

existence of a legitimate program, and her clients were

induced to remain unlawfully in the country, no fraud

would have been committed. But she could have been

convicted under this overbroad statute that captures

malicious fraud and innocent advice alike.

In a “textbook example” of why the facial challenges to statutes that burden expression are a necessity, this Court has noted that “severe penalties”

would prove too great a risk to legitimate speakers.

Free Speech Coal., 535 U.S. at 244. Here the Court

need only ask whether this defendant, if she had not

committed any malum prohibitum act of fraud, would

be punished solely for her speech. She would have

faced decades in prison and undefined fines.

CONCLUSION

For the foregoing reasons, and those presented by

respondent, the Court should affirm the court below.

Respectfully submitted,