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

No. 19-67

IN THE

Supreme Court of the United States

________________________________________

UNITED STATES OF AMERICA,

Petitioner,

v.

EVELYN SINENENG-SMITH,

Respondent.

________________________________________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

________________________________________

BRIEF FOR RELIGIOUS ORGANIZATIONS

AS AMICI CURIAE IN SUPPORT OF

RESPONDENT

________________________________________

JEREMY GIRTON

SAMUEL LEHMAN

VIVAAN NEHRU

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

(202) 383-5300

ANTON METLITSKY

(Counsel of Record)

ametlitsky@omm.com

O’MELVENY & MYERS LLP

Times Square Tower

7 Times Square

New York, NY 10036

(212) 326-2000

Attorneys for Amici Curiae

i

QUESTION PRESENTED

Whether 8 U.S.C. § 1324(a)(1)(A)(iv), which criminalizes “encourag[ing] or induc[ing] an alien to come

to, enter, or reside in the United States” without lawful status, is facially unconstitutional.

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT................................................... 2

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

I.

II.

Amici Engage in Constitutionally

Protected Speech and Activity in

Support of Undocumented

Immigrants .......................................... 5

A.

Amici Advocate for,

Advise, and Support

Undocumented

Immigrants................................ 5

B.

Amici’s Work Is Protected

by the Constitution ................. 13

The Encouragement Provision Is

Unconstitutionally Overbroad .......... 15

A.

The Encouragement

Provision Chills Amici’s

Speech under the Plain

Language of the Statute ......... 16

B.

The Government’s Reading

of the Encouragement

Provision Is Implausible

and Still Chills Amici’s

Protected Expression .............. 22

CONCLUSION ........................................................ 32

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Akwasi Agyei v. Holder,

729 F.3d 6 (1st Cir. 2013) ..................................... 25

Andrus v. Glover Constr. Co.,

446 U.S. 608 (1980) .............................................. 21

Arizona v. United States,

567 U.S. 387 (2012) .............................................. 24

Bd. of Airport Comm’rs v. Jews for

Jesus, Inc.,

482 U.S. 569 (1987) .............................................. 16

Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534 (1986) .............................................. 14

Bhd. of R.R. Trainmen v. Virginia ex

rel. Va. State Bar,

377 U.S. 1 (1964) .................................................. 14

Brandenburg v. Ohio,

395 U.S. 444 (1969) .............................................. 13

Broadrick v. Oklahoma,

413 U.S. 601 (1973) .............................................. 16

Dodd v. United States,

545 U.S. 353 (2005) .............................................. 22

Emp’t Div., Dep’t of Human Res. of Or.

v. Smith,

494 U.S. 872 (1990) ........................................ 13, 14

Heffron v. Int’l Soc. for Krishna

Consciousness, Inc.,

452 U.S. 640 (1981) .............................................. 13

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Holy Land Found. for Relief & Dev. v.

Ashcroft,

219 F. Supp. 2d 57 (D.D.C. 2002),

aff’d, 333 F.3d 156 (D.C. Cir. 2003) ..................... 15

Kedroff v. St. Nicholas Cathedral of

Russian Orthodox Church in N. Am.,

344 U.S. 94 (1952) ................................................ 21

Legal Servs. Corp. v. Velazquez,

531 U.S. 533 (2001) .............................................. 14

Maness v. Meyers,

419 U.S. 449 (1975) .............................................. 14

NAACP v. Button,

371 U.S. 415 (1963) .............................................. 14

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) .............................................. 13

Reno v. ACLU,

521 U.S. 844 (1997) .................................. 16, 20, 28

Riley v. Nat’l Fed’n of the Blind of N.C.,

Inc.,

487 U.S. 781 (1988) .............................................. 15

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) .............................................. 22

Rumsfeld v. Forum for Acad. &

Institutional Rights, Inc.,

547 U.S. 47 (2006) ................................................ 22

United States v. Henderson,

857 F. Supp. 2d 191 (D. Mass. 2012) ................... 30

v

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Seeger,

380 U.S. 163 (1965) .............................................. 13

United States v. Stevens,

559 U.S. 460 (2010) .............................................. 15

United States v. Williams,

553 U.S. 285 (2008) .............................................. 13

Vill. of Schaumburg v. Citizens for a

Better Env’t,

444 U.S. 620 (1980) .............................................. 13

Virginia v. Hicks,

539 U.S. 113 (2003) .............................................. 15

Watchtower Bible & Tract Soc’y of N.Y.,

Inc. v. Vill. of Stratton,

536 U.S. 150 (2002) .............................................. 13

STATUTES

8 U.S.C. § 1101(a)(27)(J) .......................................... 11

8 U.S.C. § 1229b(b)(1)(A) ......................................... 25

8 U.S.C. § 1324(a)(1) ......................................... passim

OTHER AUTHORITIES

About Us, CLINIC (last visited Jan. 21,

2019), https://cliniclegal.org/about-us .................... 6

About Us, Esperanza (last visited Jan.

21, 2019), https://www.esperanzala.org/about-us ........................................................ 6

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

An Important Statement on

Immigration Raids in New York from

Monsignor Sullivan, Catholic

Charities of New York (July 12,

2019),

https://catholiccharitiesny.org/news/i

mportant-statement-immigrationraids-new-york-monsignor-sullivan ....................... 6

Catholic Legal Immigration Network,

Inc. (CLINIC), Facebook (Sept. 6,

2017),

https://www.facebook.com/cliniclegal/

photos/a.10150295106843152.334381.

39238118151/10155159638743152/?ty

pe=3&theater .......................................................... 9

Denied a Day in Court: The

Government’s Use of In Absentia

Removal Orders Against Families

Seeking Asylum, CLINIC (Apr. 16,

2018),

https://cliniclegal.org/resources/remov

al-proceedings/denied-day-courtgovernments-use-absentia-removalorders-against ....................................................... 26

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Dianna M. Náñez, Why a Phoenix

Church Voted to Act as a Sanctuary,

Ariz. Republic (Mar. 3, 2017),

https://www.azcentral.com/story/news

/politics/immigration/2017/03/03/phoe

nix-church-sanctuary-movementimmigrants/98113336/............................................ 9

Eileen Johnson, Two New Haven

Churches Declared Sanctuaries for

Undocumented Immigrants, Yale

Daily News (Apr. 27, 2017),

https://yaledailynews.com/blog/2017/0

4/27/new-haven-churches-to-besanctuary-for-undocumentedimmigrants/ ............................................................ 9

Gilbert and Eleanor Kraus Initiative

Immigrant and Refugee Justice

Action Center, Religious Action

Center of Reform Judaism,

https://rac.org/kraus (last visited Jan.

21, 2020).................................................................. 8

Green Light Bill Gets the Green Light

from Albany, Catholic Charities Blog

(June 20, 2019),

https://catholiccharitiesny.org/blog/gr

een-light-bill-gets-green-light-albany .................. 18

Immigration & Legal Services, LSSNY,

https://lssny.org/life-services/lifeshield/ (last visited Jan. 21, 2019) ......................... 6

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Immigration, Religious Action Center of

Reform Judaism,

https://rac.org/immigration (last

visited Jan. 21, 2020) ............................................. 8

Liberian Refugee Immigration Fairness,

CLINIC,

https://cliniclegal.org/issues/liberianrefugee-immigration-fairness (last

visited Jan. 21, 2020) ............................................. 7

Memorandum from the Attorney

General (Apr. 11, 2017), available at

https://www.justice.gov/opa/pressrelease/file/956841/download ............................... 30

NYS Liberty Defense Project & Catholic

Charities of New York Launch

Statewide Pro Bono Project to Expand

Legal Services for Immigrants, N.Y.

Dep’t of State (Feb. 1, 2019),

https://apps.cio.ny.gov/apps/mediaCo

ntact/public/view.cfm?parm=A5188C

AC-EA18-80B1EBDFA4346E3337CB ............................................ 7

Reform Jewish Movement Decries

Mississippi ICE Raid, Religious

Action Center of Reform Judaism

(Aug. 8, 2019), https://rac.org/reformjewish-movement-decries-mississippiice-raid .................................................................... 6

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Rev. Randall Keeney, Want to Provide

Sanctuary to an Undocumented

Person? This Is What it Takes., Wash.

Post (July 14, 2019),

https://www.washingtonpost.com/opin

ions/2019/07/14/want-providesanctuary-an-undocumented-personthis-is-what-it-takes/ .............................................. 9

Temporary Protected Status (TPS) and

Deferred Enforced Departure (DED),

CLINIC,

https://cliniclegal.org/issues/temporar

y-protected-status-tps-and-deferredenforced-departure-ded (last visited

Jan. 21, 2020).......................................................... 7

Teo Armus, After Helping Migrants in

the Arizona Desert, an Activist Was

Charged With a Felony. Now, He’s

Been Acquitted., Wash. Post (Nov. 21,

2019),

https://www.washingtonpost.com/nati

on/2019/11/21/arizona-activist-scottwarren-acquitted-charges-helpingmigrants-cross-border/ ......................................... 30

Wayne R. LaFave, 2 Substantive

Criminal Law § 11.1 (3d ed. 2017) ....................... 24

1

INTEREST OF AMICI CURIAE 1

Amici are religious and religiously affiliated organizations that provide charitable services to undocumented immigrants as a core part of their faith.

Their work includes, among other things, engaging in

public advocacy, providing legal representation and

advice, and operating various charitable organizations that serve immigrant populations. The First

Amendment’s guarantees of freedom of speech, petition, and religious exercise protect amici’s activities.

Yet much of amici’s work is threatened by the criminal prohibition of statements or expressive acts that

“encourage” or “induce” noncitizens to reside in the

United States unlawfully.

See 8 U.S.C.

§ 1324(a)(1)(A)(iv). This overbroad criminal statute

threatens to chill amici’s constitutionally protected

speech and activity. Amici thus have a substantial

interest in resolution of the question presented in this

case.

A full list of amici is below:

•

•

•

•

American Friends Service Committee (“AFSC”)

Catholic Charities Community Services of the

Archdiocese of New York (“Catholic Charities”)

Catholic Legal Immigration Network (“CLINIC”)

Catholic Migration Services

1 Pursuant to Rule 37.6, counsel for amici curiae state that

no counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person or

entity other than amici or their counsel has made a monetary

contribution to the preparation or submission of this brief.

Counsel of record for each party has consented in writing to the

filing of this brief.

2

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

Central Conference of American Rabbis

Church World Service

Council on American-Islamic Relations (“CAIR”)

Council on American-Islamic Relations California

(“CAIR-CA”)

Episcopal City Mission

Esperanza Immigrant Rights Project

(“Esperanza”)

HIAS (formerly the Hebrew Immigrant Aid Society)

Lutheran Social Services of New York (“LSSNY”)

Men of Reform Judaism

National Council of Jewish Women

New Sanctuary Coalition

National Justice for Our Neighbors

New York Justice for Our Neighbors

Union for Reform Judaism

Unitarian Universalist Service Committee

United Methodist Committee on Relief

(“UMCOR”)

Women of Reform Judaism

INTRODUCTION AND

SUMMARY OF ARGUMENT

Amici are religious and religiously affiliated organizations that provide humanitarian and charitable services to those in need. Central to amici’s faiths

is a commitment to a wide range of religiously motivated advocacy and activity in support of the dignity

of all human beings, irrespective of immigration status. For amici, this is a matter of moral duty and conscience. Yet the statute at issue here would require

amici to either turn away those in need based on immigration status, cease to perform certain charity and

3

advocacy work entirely, or face the realistic possibility

of criminal prosecution. That renders the law unconstitutional.

1. Many faith traditions share the message of

welcoming and loving the stranger, which appears in

multiple religious texts, including the Bible, see, e.g.,

Leviticus 19:33–34; Deuteronomy 10:19; Matthew

25:35–40; Colossians 3:11; Hebrews 13:1, and the

Qur’an, Al-Baqarah 2:177; An-Nisa 4:36; Al-Anfal

8:41; At-Tawbah 9:60. Amici’s commitment to this

message informs and drives their work on behalf of

immigrants, including impact litigation and legislative advocacy; religious, spiritual, and legal counseling and services; and charitable activities directed toward immigrant communities and other vulnerable

populations. This work enjoys ample constitutional

protection, particularly under the Free Speech and

Free Exercise clauses of the First Amendment.

2. Federal law makes it a felony to “encourage[]

or induce[] 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.” 8 U.S.C. § 1324(a)(1)(A)(iv).

Under this provision (the “Encouragement Provision”), anyone who “encourages or induces” an undocumented person to remain in the United States faces

a five-year prison sentence.

a. Read plainly, the Encouragement Provision

prohibits advocacy for undocumented immigrants, including in support of laws that would make it easier

for undocumented immigrants to remain in the

United States. The Provision also limits what immi-

4

gration attorneys can advise their clients, particularly when remaining in the United States without

status could improve the client’s chances of obtaining

legal status.

There is also a serious risk that the Provision

could be read to prohibit providing services or sanctuary to unaccompanied children, victims of abuse, and

those at risk of removal. This would sweep in much

of amici’s charitable work, including running soup

kitchens and homeless shelters in communities with

a high percentage of undocumented immigrants.

Nothing in the text indicates congressional intent to

exclude from the Provision’s reach such religiously

motivated speech and activity. On the contrary, the

only textual clues that do exist, beyond the sweeping

nature of the “encourage[] or induce[]” language itself,

further underscore the Provision’s breadth. The statute’s broad language creates a realistic danger that

amici will be prosecuted for their religiously motivated humanitarian efforts.

b. The Government’s interpretation—that the

Provision reaches only the solicitation or facilitation

of a specific immigration offense—is incompatible

with the statute’s text and fails to solve the constitutional problem. The Government’s critical concessions in its brief and below mean that any “solicitation” reading of the Provision would capture a vast array of speech and conduct—potentially criminalizing

many of amici’s protected statements and activities.

Some amici, for instance, regularly advise clients of

immigration benefits that are available only if they

continue to reside in the country without status for a

certain period of time; or describe, accurately, what

5

actions increase the risk of family separation or removal. But even though such advice enjoys First

Amendment protection, under the Government’s necessarily expansive reading of the Encouragement Provision, this advice potentially “facilitates” a civil infraction—and therefore could, on the Government’s

view, result in a felony conviction.

Amici believe they are obligated by their faith to

both (1) help those in need and (2) do so regardless of

immigration status. The Encouragement Provision

forces amici into a Hobson’s choice: provide their services only to those with lawful immigration status or

give up their work altogether. Either option requires

amici to compromise their faith commitments,

thereby chilling protected expression. Because the

Encouragement Provision threatens to criminalize so

much constitutionally protected speech and conduct,

and serves few other legitimate law-enforcement purposes, it is facially unconstitutional.

ARGUMENT

I. AMICI ENGAGE IN CONSTITUTIONALLY

PROTECTED SPEECH AND ACTIVITY IN

SUPPORT OF UNDOCUMENTED IMMIGRANTS

A. Amici Advocate for, Advise, and Support

Undocumented Immigrants

Amici engage in various activities aimed at supporting immigrants, including those residing in the

United States without legal status. That work includes engaging in religiously motivated advocacy, offering religious and legal counseling, and providing

humanitarian and charitable services to individuals

regardless of immigration status.

6

Social and Political Advocacy. Many amici are

compelled by their faith to speak out on behalf of immigrants and their families, including individuals

without lawful immigration status and those whose

status is in dispute. Although amici’s advocacy is

wide-ranging, it shares a common through line

grounded in their respective faiths: those who enter

or remain in the United States (with or without

proper documentation) deserve to be treated like human beings. They are entitled to dignity, compassion,

and access to basic services. See, e.g., Reform Jewish

Movement Decries Mississippi ICE Raid, Religious

Action Center of Reform Judaism (Aug. 8, 2019),

https://rac.org/reform-jewish-movement-decries-mississippi-ice-raid; An Important Statement on Immigration Raids in New York from Monsignor Sullivan,

Catholic Charities of New York (July 12, 2019),

https://catholiccharitiesny.org/news/important-statement-immigration-raids-new-york-monsignor-sullivan; About Us, CLINIC (last visited Jan. 21, 2019),

https://cliniclegal.org/about-us; Immigration & Legal

Services, LSSNY, https://lssny.org/life-services/lifeshield/ (last visited Jan. 21, 2019); About Us, Esperanza (last visited Jan. 21, 2019), https://www.esperanza-la.org/about-us.

Advocacy to uphold that basic dignity and humanity takes numerous forms. Many amici advocate for

changes to laws or regulations that particularly affect

immigrant communities at the local, state, and national level. Catholic Charities, for instance, has testified before the New York City Council on various

topics, including City budgeting for immigrant services and initiatives, changes to federal “public

charge” rules, and resources for immigrants with

7

mental health needs. It has also partnered with the

State of New York’s Liberty Defense Project to offer

free legal services to immigrants through its Pro Bono

Program. See NYS Liberty Defense Project & Catholic

Charities of New York Launch Statewide Pro Bono

Project to Expand Legal Services for Immigrants, N.Y.

Dep’t

of

State

(Feb.

1,

2019),

https://apps.cio.ny.gov/apps/mediaContact/public/view.cfm?parm=A5188CAC-EA18-80B1-EBDFA4346E3337CB. CLINIC regularly advocates for

changes to immigration law that would benefit individuals without lawful status or at risk of losing status, such as extensions of Temporary Protected Status designations for individuals from places with unsafe country conditions. See Liberian Refugee Immigration Fairness, CLINIC, https://cliniclegal.org/issues/liberian-refugee-immigration-fairness (last visited Jan. 21, 2020); Temporary Protected Status (TPS)

and Deferred Enforced Departure (DED), CLINIC,

https://cliniclegal.org/issues/temporary-protectedstatus-tps-and-deferred-enforced-departure-ded (last

visited Jan. 21, 2020).

Amici also arrange opportunities for clergy and

congregants to contact or meet with their members of

Congress in support of the right of asylum and against

harsh immigration enforcement, identify opportunities to participate in rallies opposing family separation, and facilitate connections between congregations and local immigrant rights groups. Some amici

also participate directly in litigation on behalf of undocumented people. See, e.g., Complaint, Catholic Legal Immigration Network, Inc. v. U.S. Citizenship &

Immigration Servs., No. 8:19-cv-01074 (D. Md. May 3,

8

2019) (seeking release of immigration records of formerly separated families); Brief of Amici Curiae 127

Religious Organizations in Support of Respondent,

Dep’t of Homeland Sec. v. Regents of the Univ. of Calif., No. 18-587 (Oct. 4, 2019); Brief of Amici Curiae 75

Religious Organizations in Support of Plaintiffs, Sierra Club v. Trump, Nos. 19-16102, 19-16299, 1916300, 19-16336 (9th Cir. Aug. 22, 2019).

Many amici provide resources for affiliated congregations to incorporate advocacy on immigration issues into their worship. For example, the Union for

Reform Judaism and Central Conference of American

Rabbis publish material for incorporation into Shabbat services that promotes a legislative solution for

DACA, provide language for rabbis to include in prayers during worship to raise awareness about those affected by family separation, and host resources for Torah study that focus on treatment of immigrants. See

Gilbert and Eleanor Kraus Initiative Immigrant and

Refugee Justice Action Center, Religious Action Center of Reform Judaism, https://rac.org/kraus (last visited Jan. 21, 2020); Immigration, Religious Action

Center of Reform Judaism, https://rac.org/immigration (last visited Jan. 21, 2020).

Amici also participate in a wide variety of broader

public campaigns aimed at welcoming immigrants.

For example, CLINIC created a social media campaign around the message “#HereToStay” in support

of noncitizen youth who seek to remain in the country

through the Deferred Action for Childhood Arrivals

(“DACA”) program, and has published graphics encouraging the public to “urge” elected officials “to

stand against th[e] cruel act” of rescinding DACA. See

Catholic Legal Immigration Network, Inc. (CLINIC),

9

Facebook (Sept. 6, 2017), https://www.facebook.com/cliniclegal/photos/a.10150295106843152.334381.39238118151/1015

5159638743152/?type=3&theater.

Religious Advice and Legal Counseling.

Amici regularly advise undocumented individuals on

matters both legal and spiritual. Religious advice

may come from the pulpit or the confessional, as a

statement to multitudes or advice to an individual.

Religious leaders at sanctuary congregations often

urge congregants to support undocumented immigrants in their communities and their families. See,

e.g., Eileen Johnson, Two New Haven Churches Declared Sanctuaries for Undocumented Immigrants,

Yale Daily News (Apr. 27, 2017), https://yaledailynews.com/blog/2017/04/27/new-haven-churches-to-besanctuary-for-undocumented-immigrants/ (“[A] pastor at the . . . United Methodist Church . . . decided to

preach a sermon calling on members of his church to

support offering sanctuary to undocumented immigrants . . . .”); Dianna M. Náñez, Why a Phoenix

Church Voted to Act as a Sanctuary, Ariz. Republic

(Mar.

3,

2017),

https://www.azcentral.com/story/news/politics/immigration/2017/03/03/phoenix-church-sanctuary-movement-immigrants/98113336/ (“Parishioners were

handed a flier [advertising] a ‘sanctuary walk’ . . . to

encourage communities of faith to open their church

doors [to undocumented immigrants] for sanctuary.”);

Rev. Randall Keeney, Want to Provide Sanctuary to

an Undocumented Person? This Is What it Takes.,

Wash. Post (July 14, 2019), https://www.washingtonpost.com/opinions/2019/07/14/want-provide-sanctuary-an-undocumented-person-this-is-what-it-

10

takes/ (op-ed from religious leader describing how

commitment to “serving [undocumented individuals]

in sanctuary” “may be the most significant gift [one]

can offer”). In the course of providing religious counseling and pastoral care to an undocumented individual, a religious leader may provide advice about

whether remaining in the United States is the best

option for that person or that person’s family.

Guided by a moral imperative to welcome immigrants, many amici also provide free or low-cost legal

services to immigrants, including individuals without

legal status. These services can include offering representation and legal advice to applicants seeking

asylum, family-based immigration status, citizenship, and other forms of immigration relief. In addition to direct representation, many amici regularly

consult with noncitizens about immigration law

through legal clinics and “know your rights” presentations. Several amici maintain free drop-in legal

clinics where individuals can meet with a lawyer and

obtain advice about their rights and legal options or

obtain resources enabling immigrants to represent

themselves pro se. They also conduct presentations

informing immigrants about their legal rights, and

provide similar services in one-on-one meetings with

individuals recently released from detention. Many

congregations provide counseling through referral arrangements with local legal assistance organizations

and social services.

Amici also provide other ancillary services to help

immigrants as they navigate the legal terrain. These

include offering free translation services, preparing

country condition reports, providing group orienta-

11

tions and pro se workshops at detention centers, operating hotlines for immigrants in need, providing

transportation to and from hearings and detention

centers, coordinating pro bono counsel to assist with

legal proceedings, and contacting detainees’ families

to collect documents in support of a request for relief.

To benefit from most of these services, noncitizens

usually must be residing in the United States. Helping noncitizens vindicate their legal rights often implicitly encourages those individuals to maintain

presence in the forum where those rights are adjudicated. Indeed, amici frequently help noncitizens pursue forms of immigration relief that are either expressly or implicitly conditioned on continuing to reside in the United States. For instance, victims of human trafficking or other crimes who are candidates

for U or T visas—which can eventually lead to permanent residence status—as a practical matter must remain in the United States while the underlying crime

is investigated or prosecuted. Undocumented young

persons who are eligible for Special Immigrant Juvenile (“SIJ”) status must remain in the United States

during the pendency of family court proceedings. See

8 U.S.C. § 1101(a)(27)(J) (defining SIJ as “an immigrant who is present in the United States” who meets

certain criteria). In the vast majority of these cases,

the applicants are in the United States without lawful

status until these applications are adjudicated.

Charitable Services. In addition to advocating

publicly and privately on topics related to immigration, amici provide a variety of other services to undocumented individuals and their families. Esperanza, for example, provides free diapers, clothing,

schools supplies, and hygiene products to immigrants

12

in need. They also direct individuals to agencies that

assist with mental health services, school enrollment,

rent assistance, medical care, food banks, employment resources, supplemental nutrition assistance

programs, and other related services. LSSNY operates childcare facilities, provides food and clothing assistance, coordinates foster care placements, and provides apartments for formerly homeless individuals,

all without regard to immigration status. Through its

New International Center, Catholic Charities provides free English language and citizenship preparation classes to anyone, irrespective of legal status.

These types of services are intended to help noncitizens feel included and welcomed in this country. For

instance, CLINIC operates an annual holiday gift

drive for children of formerly separated families.

Children connected to the organization draft letters

identifying gifts they want, and CLINIC makes the

wish lists available to the public to facilitate donation

of the gifts.

Finally, many amici are congregations affiliated

with the New Sanctuary Movement. These houses of

worship hold themselves out as places where immigrants at risk of apprehension are welcome, thereby

explicitly expressing support for individuals who are

undocumented. Importantly, amici do this work

openly, in compliance with judicial warrants, and in a

manner that does not otherwise impede immigration

enforcement. In many cases, sanctuary is offered to

individuals who have been in the United States for

long periods and have U.S. citizen children, but do not

have an open immigration case. Offering sanctuary

provides these individuals time to avail themselves of

13

their legal options. By providing sanctuary and publicly adopting policies that welcome all persons, regardless of immigration or citizenship status, and

that respect privacy by not inquiring about status,

sanctuary congregations advocate for greater social

acceptance and inclusion of undocumented persons

and their families.

B. Amici’s Work Is Protected by the Constitution

All of this work is protected by the Constitution.

Religiously motivated advocacy is protected by the

First Amendment’s protections of speech, petition,

and the free exercise of religion. As this Court has

explained, “oral and written dissemination of . . . religious views and doctrines is protected by the First

Amendment.” Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). And “[t]he

free exercise of religion means, first and foremost, the

right to believe and profess whatever religious doctrine one desires.” Emp’t Div., Dep’t of Human Res. of

Or. v. Smith, 494 U.S. 872, 877 (1990) (emphasis

added).

Accordingly, neither the federal government nor

the states may dictate what a religious organization

advocates. See id.; cf. Watchtower Bible & Tract Soc’y

of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 160–64

(2002); Vill. of Schaumburg v. Citizens for a Better

Env’t, 444 U.S. 620, 632 (1980). That is true even if

the organization advocates for actions that violate the

law. See United States v. Williams, 553 U.S. 285,

298–99 (2008); NAACP v. Claiborne Hardware Co.,

458 U.S. 886, 927 (1982); Brandenburg v. Ohio, 395

U.S. 444, 449 (1969) (per curiam); cf. United States v.

14

Seeger, 380 U.S. 163, 169–73 (1965) (discussing history of exemptions from conscription for religiously

motivated conscientious objectors).

Providing specific religious advice to an individual

is also constitutionally protected. “[I]ndividual participation and advocacy of religion . . . is affirmatively

protected by the Free Exercise and Free Speech

Clauses of the First Amendment.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 553 (1986)

(emphasis removed). Just as the Government cannot

dictate what is said in the pulpit, Smith, 494 U.S. at

877, it likewise cannot mandate what religious leaders advise individual congregants regarding matters

of faith and conscience.

Legal counseling carries similar protections; what

an attorney advises a client is “constitutionally protected expression.” Legal Servs. Corp. v. Velazquez,

531 U.S. 533, 548 (2001); see also NAACP v. Button,

371 U.S. 415, 428–29 (1963). Amici’s efforts to advise

undocumented immigrants of their legal rights, or to

connect them with qualified attorneys, are undoubtedly protected by the Constitution’s guarantees of free

speech, petition, assembly, and due process. See, e.g.,

Maness v. Meyers, 419 U.S. 449, 471–72 (1975) (Stewart, concurring) (explaining that the “due process

right to retained counsel in civil proceedings” does not

permit a court to “arbitrarily prohibit or punish goodfaith advice given by retained counsel”); Bhd. of R.R.

Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1,

5–8 (1964) (holding that the First and Fourteenth

Amendments protect the right of workers to form a

legal referral organization).

15

The First Amendment also protects amici’s provision of religiously motivated and expressive humanitarian services to immigrant populations. See Holy

Land Found. for Relief & Dev. v. Ashcroft, 219 F.

Supp. 2d 57, 83 (D.D.C. 2002) (“[C]haritable activities

may constitute religious exercise if performed by religious believers for religious reasons . . . .”), aff’d, 333

F.3d 156 (D.C. Cir. 2003); see also Riley v. Nat’l Fed’n

of the Blind of N.C., Inc., 487 U.S. 781, 789 (1988)

(“[T]he solicitation of charitable contributions is protected speech . . . .”). In addition to their religious motivation, many amici provide services to undocumented individuals out of a desire to express a message of welcome to those individuals particularly.

These expressive acts are also entitled to First

Amendment protections.

II. THE ENCOURAGEMENT PROVISION IS

UNCONSTITUTIONALLY OVERBROAD

The Encouragement Provision’s chilling effect on

amici’s constitutionally protected work is exactly the

type of concern that the overbreadth doctrine is designed to address. This Court has recognized that the

protections of the First Amendment are of such vital

importance that they justify “‘a second type of facial

challenge,’ whereby a law may be invalidated as overbroad” based on its potential application to parties not

before the Court. United States v. Stevens, 559 U.S.

460, 473 (2010) (quoting Wash. State Grange v. Wash.

State Republican Party, 552 U.S. 442, 450 n.6 (2008)).

The overbreadth doctrine was born “out of concern”

that the threat of enforcement of an overbroad law

may “deter or ‘chill’ constitutionally protected

speech.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

16

That concern is heightened “when the overbroad statute imposes criminal sanctions,” id., because “[t]he severity of criminal sanctions may well cause speakers

to remain silent rather than communicate even arguably unlawful words, ideas, and images,” Reno v.

ACLU, 521 U.S. 844, 872 (1997) (emphasis added) (explaining that a vague criminal statute imposing “penalties including up to two years in prison for each act

of violation” raised “special First Amendment concerns”).

To be invalidated on overbreadth grounds, a statute must punish a “substantial” amount of protected

speech “judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S.

601, 615 (1973). Put otherwise, the statute must pose

a “realistic danger” that it will “significantly compromise recognized First Amendment protections of parties not before the Court.” Bd. of Airport Comm’rs v.

Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (quoting

City Council of L.A. v. Taxpayers for Vincent, 466 U.S.

789, 801 (1984)).

A. The Encouragement Provision Chills

Amici’s Speech under the Plain Language

of the Statute

On its face, the Encouragement Provision threatens to chill much of amici’s constitutionally protected

work. The Provision imposes severe criminal penalties on anyone who “encourages or induces” an individual to reside in the United States in reckless disregard of whether that individual has lawful status.

8 U.S.C. § 1324(a)(1)(A)(iv). Nearby provisions of Section 1324 separately prohibit, inter alia, transporting,

concealing, or harboring undocumented immigrants,

17

conspiring to do so, or aiding and abetting such offenses. See 8 U.S.C. § 1324(a)(1)(A)(i)–(iii), (v). As the

Ninth Circuit explained, the phrase “encourages or

induces” forms the basis of a discrete offense that, far

from being narrowed by neighboring offenses, must,

to retain any meaning, capture conduct other than

what those separate offenses prohibit. See Pet. App.

17a–18a.

The Encouragement Provision must therefore be

read in accord with its ordinary meaning. “Encourage” ordinarily means to “spur on” or to “give help or

patronage to,” while “induce” means “to lead on, move,

influence, [or] prevail upon (any one) to do something.” Pet. App. 14a–15a (quotations omitted). And

those terms unavoidably sweep in a vast array of both

protected speech and expression—potentially including a “speech addressed to a gathered crowd,” an

online campaign “directed at undocumented individuals on social media,” and other “general advocacy.”

Pet. App. 37a.

Given the Provision’s broad sweep, there can be

little doubt that it creates a “realistic danger” of significantly compromising amici’s First-Amendmentprotected speech and expressive conduct. And should

it remain standing, the possibility of enforcement is

certain to chill amici’s expression. To illustrate the

chilling effect, consider how the law could apply to

just some examples of amici’s work:

•

CLINIC’s #HereToStay social media campaign

was aimed at expressing the group’s position

that undocumented immigrants participating

in DACA should be able to remain in the

United States. CLINIC shared the symbol both

18

to raise awareness about DACA and the risk

that it might be rescinded, as well as to encourage DACA participants to state publicly their

desire and intention to stay in the country.

That undoubtedly could be considered “encouragement.”

•

Catholic Charities’ advocacy in favor of New

York’s “green light law,” which permits individuals to obtain New York driver’s licenses irrespective of immigration status, was aimed at

ensuring undocumented immigrants can travel

to and from work and otherwise move freely

without fear of facing deportation due to traffic

stops. The group’s work on this legislation was

explicitly premised on making undocumented

immigrants feel welcome in New York and

“prov[ing] to them what they already know—

that they too are New Yorkers.” Green Light

Bill Gets the Green Light from Albany, Catholic

Charities Blog (June 20, 2019), https://catholiccharitiesny.org/blog/green-light-bill-getsgreen-light-albany. The policy facilitates the

integration of undocumented individuals into

American society and reduces the legal risk of

remaining. This likely encourages (or induces)

some individuals without status to remain

when they otherwise might not.

•

Likewise, among the pastoral responsibilities

of clergy affiliated with amici’s respective religions and religious movements is counseling

congregants on how to deal with challenging

life events in a manner consistent with their

faith. There is a realistic danger that the En-

19

couragement Provision could be applied, for example, to a rabbi’s advice to a congregant that

it would be better to remain in the United

States to stay close to her family when the

rabbi knows or recklessly disregards that she

is undocumented. The statute threatens to

sweep in other, similar advice and counseling,

such as connecting an undocumented congregant with those who could provide temporary

housing or pro bono immigration legal advice.

•

Houses of worship affiliated with several amici

serve as sanctuary congregations, sheltering

and supporting individuals at risk of removal.

For example, AFSC, a Quaker organization

with programs throughout the United States

that work with immigrants through legal representation, leadership training, community

organizing, and policy advocacy, works with

congregations of different denominations that

welcome, house, feed, and visit undocumented

immigrants within their houses of worship or

sanctuary spaces. Similarly, the New Sanctuary Coalition works to connect and engage with

houses of worship that might be willing to serve

as temporary safe spaces for immigrants at

risk of deportation or to organize their congregants to accompany immigrants to check-ins

with Immigration and Customs Enforcement.

Such humanitarian work risks being categorized as encouraging or inducing undocumented immigrants to remain in the country.

•

Amici and countless other religious groups engage in expressive charitable activities aimed

20

at aiding individuals irrespective of immigration status. Many amici provide food, toys, diapers, clothing, school items, and hygiene products to those in need, without regard to immigration status. They also provide services specifically aimed at immigrants, such as Englishas-a-second-language classes. For undocumented persons in the greatest need, such

charitable assistance can help make their life

in this country possible. As such, there is a reasonable risk that these and other examples of

direct support could be deemed violations of the

Encouragement Provision.

These examples capture only a handful of amici’s

advocacy, counseling, and charitable activities which

could be construed to fall within the broad scope of the

statute’s prohibition against “encourag[ing]” an immigrant to remain in the United States unlawfully. The

risk Section 1324(a)(1)(A)(iv) poses is not merely the

risk of prosecution, but the risk also that amici are

compelled to “remain silent” and curtail these important and religiously motivated activities (including those that benefit immigrants with legal status)

to avoid the danger of prosecution. See Reno v. ACLU,

521 U.S. at 872. While constitutional protections for

amici’s work are not absolute, they undoubtedly prevent the Government from enacting wholesale proscriptions against religious charities providing food,

clothing, medical supplies, and other humanitarian

aid to people in need, simply because those people

lack immigration status. To do so would require

amici to violate a core tenet of their faith and undermine the very message of welcome that motivates

their work.

21

The breadth of the Encouragement Provision’s

sweep is only further highlighted by its narrow “minister or missionary” exception. That exception provides that “[i]t is not a violation of” the Provision for

a religious organization “to encourage . . . an alien

who is present in the United States to perform the vocation of a minister or missionary . . . as a volunteer

who is not compensated,” except for room and board,

so long as “the minister or missionary has been a

member of the denomination for at least one year.” 8

U.S.C. § 1324(a)(1)(C). The existence of the exception

serves only to underscore that the Encouragement

Provision is so broad it would otherwise criminalize a

religious organization’s mere invitation to a volunteer

missionary who is already residing in the United

States. And the exception’s narrow application confirms that the Encouragement Provision reaches

practically all religiously motivated activity that is

not expressly exempted, including the conduct highlighted above. See Andrus v. Glover Constr. Co., 446

U.S. 608, 616–617 (1980) (“Where Congress explicitly

enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in

the absence of evidence of a contrary legislative intent.”). As such, it potentially runs afoul of the longunderstood autonomy afforded to religious institutions to determine their own affairs. See, e.g., Kedroff

v. St. Nicholas Cathedral of Russian Orthodox Church

in N. Am., 344 U.S. 94, 116 (1952) (noting that the

Court’s Free Exercise jurisprudence “radiates . . . a

spirit of freedom for religious organizations, an independence from secular control or manipulation—in

short, power to decide for themselves, free from state

interference, matters of church government as well as

those of faith and doctrine”).

22

The Encouragement Prohibition thus threatens to

chill a substantial amount of amici’s protected speech

and expressive activity. To avoid running afoul of the

law, amici would have to close their doors to those

seeking assistance upon learning, or even strongly

suspecting, that the individuals lack lawful status.

That is antithetical to amici’s religious mission. The

Government cannot force religious humanitarian organizations to discriminate against the undocumented in violation of their personal and religious beliefs, just as it cannot “forc[e] a student to pledge allegiance, or forc[e] a Jehovah’s Witness to display the

motto ‘Live Free or Die.’” Rumsfeld v. Forum for

Acad. & Institutional Rights, Inc., 547 U.S. 47, 62

(2006); see Roberts v. U.S. Jaycees, 468 U.S. 609, 622

(1984) (“An individual’s freedom to speak, to worship,

and to petition the government . . . could not be vigorously protected from interference by the State [if] a

correlative freedom to engage in group effort toward

those ends were not also guaranteed.”).

B. The Government’s Reading of the Encouragement Provision Is Implausible and

Still Chills Amici’s Protected Expression

The Court “must presume that [the] legislature

says in a statute what it means and means in a statute what it says.” Dodd v. United States, 545 U.S.

353, 357 (2005) (alteration in original) (quotation

omitted). The Encouragement Provision, by its own

terms, means that anyone who inspires, emboldens,

or helps noncitizens remain in the country without

lawful status faces a potential felony prosecution.

That possibility impermissibly chills amici’s protected

speech and expressive activity.

23

The Government, for its part, attempts to narrow

the reach of the Encouragement Provision to assure

the Court that it would never prosecute preachers for

their sermons or charities for handing out food and

clothing. But as Respondent explains, see Br. for

Resp’t 19–22, the Government’s reading of the statute

is less an alternative interpretation than it is a wholesale rewrite of the statute. As discussed above, the

Government’s interpretation conflicts with the plain

text of the statute, so it cannot be correct. Regardless,

even under the Government’s implausible construction, the statute would still chill amici’s speech and

expressive activities.

The Government argues that the Encouragement

Provision reaches only direct facilitation or solicitation of another’s illegal activity. Br. for United States

(“U.S. Br.”) 18–22. Yet even it concedes that the Provision is broader than an ordinary facilitation or solicitation statute. For one thing, the Government

maintains that the provision criminally punishes the

facilitation of civil immigration violations. See U.S.

Br. at 41–44. Thus, the Encouragement Provision

makes no distinction between encouraging likely remediable civil violations (e.g., encouraging a noncitizen without status to remain in the country where doing so may improve his or her ultimate chance of obtaining legal status), and encouraging criminal or obviously un-remediable civil violations. The Government also has conceded, as it must, that the Encouragement Provision does not require any specific intent to violate immigration law—instead, it merely

requires showing that the defendant’s encouraging

statements were “in reckless disregard” of whether

the intended recipient is in the country unlawfully.

24

See U.S. Br. at 25; 8 U.S.C. § 1324(a)(1)(A)(iv).

Taken together, the Government’s reading would

still render the Encouragement Provision an exceptionally broad criminal offense. Whereas ordinary facilitation or solicitation offenses criminalize only encouraging a specific criminal offense with the intent

to facilitate its commission, see Wayne R. LaFave, 2

Substantive Criminal Law § 11.1 (3d ed. 2017) (solicitation); id. § 13.2 (accomplice liability), the Encouragement Provision would, on the Government’s view,

criminalize encouraging a civil infraction with reckless disregard for whether the offense results. Moreover, whether it would actually constitute a civil offense for an immigrant to remain is particularly uncertain in this context, given that immigration status

is often fluid and enforcement is often a matter of

“broad [executive] discretion” based on the “equities

of [each] individual case.” Arizona v. United States,

567 U.S. 387, 395–96 (2012). The severe criminal consequences attending such a sweeping solicitation offense is all but certain to chill amici’s protected speech

and activity.

Consider that many amici offer consultations to

individuals with and without lawful status, and that

such consultations sometimes include descriptions or

assessments of immigration benefits that flow from

continuing to reside in the United States without status. For example:

•

For non-lawful permanent residents to become

eligible for cancellation of removal (“non-LPR

cancellation”) they must maintain continuous

physical presence in the country for at least ten

25

years. See 8 U.S.C. § 1229b(b)(1)(A). See generally Akwasi Agyei v. Holder, 729 F.3d 6, 15

(1st Cir. 2013) (describing non-LPR cancellation). If someone who has resided in the country without status for nine and a half years

were to seek counsel through one of amici’s programs, the attorney may advise the individual

that, if they remain a few more months, they

would potentially become eligible for non-LPR

cancellation.

•

In a similar vein, amici might advise someone

without status that her U.S. citizen child could

sponsor her permanent residency should she

remain until the child reaches a certain age.

Or more simply, amici might inform an individual with a removal order of the risks involved

with providing DHS an updated change of address form, or other actions and behavior that

may increase the chance of imminent removal.

•

As discussed supra at 11, individuals eligible

for U or T visas, as a practical matter, must remain in the United States during the pendency

of related criminal proceedings to be eligible to

seek lawful immigration status. Likewise,

those eligible for SIJ status must stay in the

country until the conclusion of family court proceedings. In counseling such individuals, amici

would likely advise them of those requirements, which in the vast majority of cases

means the applicant must remain without status in the United States in order to remain eligible for acquiring status.

•

And even where someone has an existing order

26

of removal, legal avenues to lawful status may

be available. For instance, CLINIC has successfully challenged dozens of in abstenia removal orders issued to families from El Salvador, Guatemala, and Honduras that had valid

asylum claims. See Denied a Day in Court: The

Government’s Use of In Absentia Removal Orders Against Families Seeking Asylum,

CLINIC (Apr. 16, 2018), https://cliniclegal.org/resources/removal-proceedings/deniedday-court-governments-use-absentia-removalorders-against.

Such advice is unquestionably protected by the

First Amendment. See supra Part I.B. Yet it is not

difficult to see how any of the hundreds of religious

organizations and groups that offer such free advice

and consultation face a realistic danger of prosecution

under the Government’s necessarily expansive reading of the Encouragement Provision. Whether or not

the attorney explicitly advises the immigrant to remain, the effect of accurately describing the immigrant’s legal options would undoubtedly have the

same effect. Because the purported solicitation offense lacks any purpose requirement, and the underlying offense need not be criminal, the Government

could plausibly argue that amici’s accurate legal advice facilitates the commission of a civil offense (e.g.,

continuing to “reside” unlawfully).

And the Encouragement Provision, even as construed by the Government, would still present an intolerable risk of criminalizing amici’s religious advocacy, counseling, and humanitarian services. For instance:

27

•

If a religious leader directly encourages an undocumented immigrant to “stay” in the United

States to be close to her U.S. citizen children or

grandchildren for whom she may be the sole

caregiver, or to continue working here as the

primary breadwinner for her family, this would

still be prohibited under the Government’s

reading of the statute.

•

Providing an undocumented immigrant with

food, clothing, and physical shelter—as many

sanctuary congregations do—would, in the

Government’s view, still “assist” the immigrant

with committing the civil offense of remaining

in the United States without documentation.

•

Driving a congregant to a medical appointment

or a legal client to an asylum interview would

still help the individual remain in the United

States.

•

Helping undocumented students obtain religious scholarships for college would undoubtedly “induce” or “encourage” those students to

remain in the United States.

That is more than enough to chill amici’s expressive and religious activities. Violation of the Encouragement Provision carries a hefty penalty—a felony

conviction, a fine, and up to five years imprisonment

for the baseline offense. 8 U.S.C. § 1324(a)(1)(B)(ii).

For those providing legal services, a conviction would

almost certainly lead to disbarment. The “opprobrium and stigma of a [potential] criminal conviction”

combined with “[t]he severity of criminal sanctions” is

practically certain to cause amici “to remain silent rather than communicate even arguably unlawful

28

words [or] ideas.” Reno, 521 U.S. at 872 (emphasis

added).

The Government does not refute the risk of prosecution under any of the scenarios described above. In

response to the Ninth Circuit’s legitimate concerns

about the statute’s broad sweep, the Government offers the threadbare assurance that merely encouraging another to unlawfully reside in the United States

does not fall within the statute—e.g., “[j]ust as a teenager does not . . . solicit marijuana possession merely

by saying to a friend ‘I encourage you to try smoking

pot,’ a grandmother does not violate [the Encouragement Provision] merely by saying to her grandson

whose visa has expired, ‘I encourage you to stay.’”

U.S. Br. at 35. But the Government offers no reasoning or legal citation to support this declaration. It

fails to explain why such speech (and other, similar

speech) cannot possibly fall within the Encouragement Provision, as the Government has construed it.

Instead, the Government simply insists that its

reading would not reach abstract advocacy, and that

solicitation offenses must generally be directed at specific noncitizens. See U.S. Br. at 34–35 (contending

that “[t]he hypothetical scenarios that the Ninth Circuit invented are . . . misplaced because” “[f]acilitation and solicitation laws like [the Encouragement

Provision] are ordinarily understood not to prohibit

abstract or generalized advocacy,” and because the

Provision requires “that any inducement or encouragement be directed to a particular identifiable alien

or aliens”). But that does not solve the constitutional

problem. The grandmother who encourages her

grandson to stay in the United States in violation of

the law is not engaged in “abstract advocacy”; she is

29

encouraging a particular, known individual. Thus,

even if generalized advocacy is not covered under the

Government’s construction, amici’s one-on-one religious advice and legal counsel would be—it involves

specific advice offered to particular undocumented individuals. The same goes for many of the services

that amici offer, which are provided to specific immigrants that amici know are, or are likely to be, undocumented.

There is also nothing to the Government’s contention that the Court must limit its focus to Encouragement Provision offenses committed for the purpose of

commercial advantage or financial gain. See U.S. Br.

36. The statute establishes a baseline offense for anyone who commits a “violation of” the Encouragement

Provision, regardless of motivation.

8 U.S.C.

§ 1324(a)(1)(B)(ii). Various enhancements can increase the maximum term of imprisonment, but they

are not elements of the baseline offense. Regardless,

while many amici provide legal services to immigrants for free, some also provide services at reduced

cost. Thus, in instances where an amicus accepts a

minimal fee for legal services, it would still be at risk

of prosecution if it provided the types of counseling

discussed above.

Finally, the Government seeks to get out from under the weight of these scenarios by arguing that

there are no real-world examples of it pursuing these

types of prosecutions. U.S. Br. 32. But the Government has already attempted to prosecute humanitarian workers offering food and water to migrants crossing the border. See, e.g., Teo Armus, After Helping

Migrants in the Arizona Desert, an Activist Was

Charged With a Felony. Now, He’s Been Acquitted.,

30

Wash. Post (Nov. 21, 2019), https://www.washingtonpost.com/nation/2019/11/21/arizona-activist-scottwarren-acquitted-charges-helping-migrants-crossborder/. And the Department of Justice has identified

“all conduct proscribed pursuant to 8 U.S.C. § 1324”—

which includes the Encouragement Provision—as a

high prosecution priority. See Memorandum from the

Attorney General 1 (Apr. 11, 2017), available at

https://www.justice.gov/opa/press-release/file/956841/download.

Indeed, the Government’s own attorneys acknowledged that it could prosecute an attorney for providing accurate legal advice to an immigrant that would

encourage or induce the immigrant to remain in the

United States. In United States v. Henderson, 857 F.

Supp. 2d 191 (D. Mass. 2012), “[t]he government

[took] the position that giving illegal aliens advice to

remain in the United States while their status is disputed

constitutes

felonious

conduct

under

§ 1324(a)(1)(A)(iv) because it constitutes encouragement or inducement under the statute.” Id. at 203.

There is little doubt, in light of this history, that the

Encouragement Provision threatens amici’s work

with the realistic danger of prosecution, thereby

chilling amici’s speech.

Indeed, the Government does not seriously attempt to persuade this Court that no “realistic danger” of prosecution exists under its newly crafted solicitation crime. Rather, the Government’s position

boils down to a single belated plea to trust that it will

not abuse its discretion and pursue protected speech

and religious expression that plainly falls within the

statute. But the Government’s eleventh-hour com-

31

mitment to noblesse oblige is irrelevant; it cannot defeat the realistic danger created by the Encouragement Provision itself, even accepting the Government’s own implausible interpretation. The statute

simply sweeps too broadly to be allowed to stand.

32

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

JEREMY GIRTON

ANTON METLITSKY

SAMUEL LEHMAN

(Counsel of Record)

VIVAAN NEHRU

ametlitsky@omm.com

O’MELVENY & MYERS LLP O’MELVENY & MYERS LLP

1625 Eye Street, NW

Times Square Tower

Washington, DC 20006

7 Times Square

New York, NY 10036

(212) 326-2000

Attorneys for Amici Curiae

January 22, 2020