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

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF IMMIGRATION REPRESENTATIVES AND

ORGANIZATIONS AS AMICI CURIAE IN SUPPORT OF

RESPONDENT

SIRINE SHEBAYA

MATTHEW VOGEL

KHALED ALRABE

NATIONAL IMMIGRATION

PROJECT OF THE NATIONAL LAWYERS GUILD

2201 Wisconsin Avenue

NW, Suite 200

Washington, DC 20007

(202) 617-9727

WILLIAM C. PERDUE

Counsel of Record

ALLON KEDEM

KOLYA D. GLICK

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Avenue, NW

Washington, DC 20001

(202) 942-5000

william.perdue@arnoldporter.com

AVISHAI D. DON

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

(212) 836-8000

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES............................................. ii

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

SUMMARY OF THE ARGUMENT ................................ 3

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

I. The Encouragement Provision Purports To

Criminalize Vast Quantities of Immigration

Advice ............................................................................. 5

A. The Statutory Text Is Broad ............................... 5

B. The Statute Purports To Criminalize

Common Immigration Advice by

Attorneys................................................................ 8

C. The Statute Also Purports To Criminalize

Lay Immigration Advice ..................................... 14

II. The Advice Threatened by the Encouragement

Provision Is Constitutionally Protected and

Practically Significant ................................................ 16

A. Immigration Advice Receives Strong

Constitutional Protection ..................................... 16

B. Advice About Physical Presence Is Crucial

to the U.S. Immigration System ....................... 19

III. The Government’s Limiting Constructions

Cannot Save the Encouragement Provision

from Overbreadth ....................................................... 21

CONCLUSION .................................................................. 30

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. United States,

567 U.S. 387 (2012) .................................... 7, 13, 19, 21

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002) ...................................................... 8

Baltazar-Alcazar v. I.N.S.,

386 F.3d 940 (9th Cir. 2004) ..................................... 20

Biwot v. Gonzales,

403 F.3d 1094 (9th Cir. 2005) ................................... 20

Bridges v. Wixon,

326 U.S. 135 (1945) .................................................... 20

Buckley v. Valeo,

424 U.S. 1 (1976) ........................................................ 25

Cal. Motor Transp. Co. v. Trucking Unlimited,

404 U.S. 508 (1972) .................................................... 17

Carranza v. I.N.S.,

277 F.3d 65 (1st Cir. 2002) ........................................ 19

Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Const. Trades Council,

485 U.S. 568 (1988) .................................................... 18

Fla. Bar v. Went For It, Inc.,

515 U.S. 618 (1995) .................................................... 17

(ii)

iii

Fong Haw Tan v. Phelan,

333 U.S. 6 (1948) ........................................................ 20

Gentile v. State Bar of Nev.,

501 U.S. 1030 (1991) .................................................. 17

Hunt v. Blackburn,

128 U.S. 464 (1888) .................................................... 19

Int’l Bhd. of Elec. Workers v. NLRB,

341 U.S. 694 (1951) ...................................................... 7

J.E.F.M. v. Lynch,

837 F.3d 1026 (9th Cir. 2016) ................................... 19

Lee v. United States,

137 S. Ct. 1958 (2017) ................................................ 20

Legal Servs. Corp. v. Velazquez,

531 U.S. 533 (2001) .................................................... 17

Massachusetts v. Oakes,

491 U.S. 576 (1989) .................................................... 27

Matters of Jaso & Ayala,

27 I.&N. Dec. 557 (BIA 2019) .................................... 9

Members of the City Council of the City of Los

Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984) .................................................... 29

Milavetz, Gallop & Milavetz, P.A. v. United

States,

559 U.S. 229 (2010) .................................................... 17

Minn. Voters All. v. Mansky,

138 S. Ct. 1876 (2018) ................................................ 25

iv

Ng Fung Ho v. White,

259 U.S. 276 (1922) .................................................... 20

Padilla v. Kentucky,

559 U.S. 356 (2010) .............................................. 19, 20

Pittsburgh Press Co. v. Pittsburgh Comm’n on

Human Relations,

413 U.S. 376 (1973) .................................................... 18

In re Primus,

436 U.S. 412 (1978) .................................................... 23

Regents of the Univ. of Cal. v. U.S. Dep’t of

Homeland Sec.,

908 F.3d 476 (9th Cir. 2018), cert. granted,

139 S. Ct. 2779 (2019) .......................................... 11, 12

Sang Seup Shin v. I.N.S.,

750 F.2d 122 (D.C. Cir. 1984) ................................... 19

Singh v. Gonzales,

499 F.3d 969 (9th Cir. 2007) ..................................... 19

United States v. Henderson,

857 F. Supp. 2d 191 (D. Mass. 2012)............. 15, 25-27

United States v. Stevens,

559 U.S. 460 (2010) .............................................. 16, 27

United States v. Williams,

553 U.S. 285 (2008) .................................................... 12

United Transp. Union v. State Bar of Mich.,

401 U.S. 576 (1971) .................................................... 16

v

Upjohn Co. v. United States,

449 U.S. 383 (1981) .................................................... 19

Virginia v. Hicks,

539 U.S. 113 (2003) .................................................... 25

Zadvydas v. Davis,

533 U.S. 678 (2001) .................................................... 13

Statutes

8 U.S.C.

§ 1101(a)(15)(S) .......................................................... 15

§ 1101(a)(15)(T) ............................................................ 9

§ 1101(a)(15)(U) ......................................................... 15

§ 1101(a)(27)(J) .......................................................... 11

§ 1101(a)(42)(A) ......................................................... 11

§ 1158 .......................................................................... 11

§ 1158(b) ..................................................................... 11

§ 1182(a)(9)(B) ........................................................... 14

§ 1182(a)(9)(B)(ii) ................................................... 7, 15

§ 1229b(b)(1) ................................................................ 9

§ 1229b(b)(1)(A) ........................................................... 9

§ 1229b(b)(2) .............................................................. 10

§ 1229b(b)(2)(A)(ii) .................................................... 10

§ 1254a ........................................................................ 10

§ 1254a(a).................................................................... 10

§ 1254a(b)(1) ............................................................... 10

§ 1254a(c)(1)(A) .......................................................... 10

§ 1324(a)(1)(A) ............................................................. 8

§ 1324(a)(1)(A)(iv) .......................................... 1, 5, 6, 28

§ 1324(a)(1)(A)(v) ....................................................... 15

§ 1324(a)(1)(B)(i) .................................................. 24, 28

§ 1324(a)(1)(B)(ii) ....................................................... 24

§ 1324(a)(1)(C) ............................................................. 8

vi

22 U.S.C.

§ 9003 .......................................................................... 14

Regulations

8 C.F.R. § 204.11(a) ......................................................... 11

8 C.F.R. § 214.11(g) ........................................................... 9

8 C.F.R. § 1292.1.............................................................. 16

Other Authorities

Cyrus Mehta, Supreme Court Agrees To Hear

Constitutionality of Smuggling Statute

That Could Impact Immigration Lawyers,

The Insightful Immigration Blog, Oct. 21,

2019, http://bit.ly/2MTVxOH ................................... 28

Dep't of Homeland Sec., Annual Flow Report:

Refugees and Asylees: 2017 at 7-8 (Mar.

2019), http://bit.ly/30tnZMO .................................... 12

Model Rule of Prof’l Conduct 1.4(b) (2019) .................... 7

Model Rule of Prof’l Conduct 2.1 (2019) ......... 7, 8, 22, 23

Restatement (Third) of the Law Governing

Lawyers § 94 (2000) .............................................. 7, 14

U.S. Citizenship and Immigration Servs.,

Form I-914 Applications for T

Nonimmigrant Status (Sept. 2019),

http://bit.ly/2N0y5zb ................................................. 12

vii

U.S. Dep't of Justice, Executive Office for

Immigration Review, Statistical Yearbook:

Fiscal Year 2018, http://bit.ly/2QTVt2r .................. 12

INTEREST OF AMICI CURIAE1

Amici are nonprofit immigration organizations with

a direct interest in opposing the criminalization of speech

advising noncitizens about their physical presence in this

country. Amici are concerned that the provision at issue

in this case, 8 U.S.C. § 1324(a)(1)(A)(iv) (Encouragement

Provision), criminalizes vast quantities of immigration advice, including competent, accurate, ethical advice provided by immigration attorneys.

The National Immigration Project of the National

Lawyers Guild (NIPNLG) is a national nonprofit organization providing support, referrals, and legal and technical assistance to attorneys, families, and advocates seeking to advance the rights of noncitizens. Since it began

tracking inquiries in 2003, NIPNLG has provided more

than 5,000 instances of direct technical assistance to attorneys nationwide.

The Immigrant Defense Project (IDP) is a nonprofit legal resource and training center that defends the

rights of noncitizens facing criminal prosecution or deportation. IDP supports immigration attorneys by consulting

on individual cases, offering trainings and mentorship opportunities, developing and disseminating legal strategies, and publishing written resources.

The National Immigration Law Center (NILC) is

the primary national organization exclusively dedicated to

defending and advancing the rights and opportunities of

low-income immigrants and their families. Among other

Amici affirm that no counsel for a party authored this brief

in whole or in part, and that no person other than the amici,

their members, or their counsel made a monetary contribution

intended to fund the brief’s preparation or submission. Counsel

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

this brief.

1

1

2

things, NILC offers trainings and resources to attorneys

and other advocates.

The American Immigration Lawyers Association

(AILA) is a national nonprofit association with more than

15,000 members, including lawyers and professors who

practice and teach in the field of immigration law. AILA

seeks to advance the administration of justice and the

practice of law pertaining to immigration, nationality, and

naturalization.

The National Immigrant Justice Center (NIJC) is

a national nonprofit organization that provides representation and legal advice to over 10,000 noncitizens and U.S.citizen family members every year.

The Tahirih Justice Center is the largest multi-city

direct services and policy advocacy organization specializing in assisting immigrant women and girls who survive

gender-based violence. Since its founding in 1997, Tahirih

has provided free legal and social services to more than

27,000 individuals.

The Northwest Immigrant Rights Project

(NWIRP) is a nonprofit legal organization dedicated to

the defense and advancement of noncitizens’ legal rights.

NWIRP provides community education, legal consultations, and direct representation to low-income immigrants

placed in removal proceedings, as well as other noncitizens seeking immigration benefits.

The City Bar Justice Center (CBJC) is a nonprofit

affiliate of the New York City Bar Association that serves

more than 20,000 low-income New Yorkers annually, including noncitizens seeking humanitarian immigration relief. CBJC provides free legal services; mobilizes pro

bono lawyers, law firms, and corporate legal departments;

educates the public; and impacts public policy.

ASISTA Immigration Assistance (ASISTA)

worked with Congress to create and expand routes to

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secure immigration status for survivors of domestic violence, sexual assault, and other crimes. ASISTA serves

as a liaison to federal immigration agencies and trains and

provides technical support to local law enforcement,

judges, attorneys, and other advocates working with immigrant crime survivors.

Freedom Network USA (FNUSA) is the largest alliance of human trafficking advocates in the United States.

FNUSA’s members include survivors of human trafficking and providers of legal and social services to trafficking

survivors in over forty cities. FNUSA’s members serve

over 2,000 trafficking survivors every year.

LatinoJustice PRLDEF is a national nonprofit civil

rights legal defense fund that advocates for and defends

the constitutional rights and equal protection of all Latinos under the law. LatinoJustice champions an equitable

society by advancing Latinx civil engagement, cultivating

leadership, and protecting civil rights and equality, including in the area of immigrants’ rights.

Just Futures Law (JFL) is a transformational immigration lawyering project that works to support the immigrant rights movement in partnership with grassroots organizations. JFL staff have decades of experience in

providing technical assistance, written legal resources,

and training for attorneys, advocates, and community

groups in various areas of immigration law.

SUMMARY OF THE ARGUMENT

The plain text of the Encouragement Provision purports to criminalize vast quantities of constitutionally protected immigration advice. By its terms, the statute prohibits any speech that “encourages or induces” a noncitizen to “come to, enter, or reside in the United States,

knowing or in reckless disregard” that the noncitizen’s

presence here “is or will be in violation of law.” The statute purports to apply across the board, even if the

4

defendant’s speech is truthful and non-misleading, and

even if the noncitizen’s physical presence violates only the

civil immigration laws.

As a result, the Encouragement Provision on its face

criminalizes enormous amounts of accurate, competent,

ethical legal advice by attorneys. There are many immigration benefits noncitizens may obtain only if they are

physically present in the United States, whether lawfully

or unlawfully. Noncitizens inside the United States also

have greater constitutional rights than noncitizens

abroad. A noncitizen’s physical presence also may affect

how immigration officials exercise their discretion. And

even if remaining in the United States is unlawful, leaving

may carry risks—both legal and otherwise—that a responsible attorney can and should advise about. For all of

these reasons, attorneys often may provide legal advice

that encourages or induces unlawful presence in apparent

violation of the Encouragement Provision.

And it is not just attorneys whose advice the Encouragement Provision threatens. Pastors, doctors, social service providers, and other professionals who counsel

noncitizens also risk potential prosecution. Even law enforcement officers and prosecutors who encourage or induce noncitizen witnesses to remain in this country to answer questions or testify in court—perhaps with the possibility of obtaining legal status later—face potential

criminal liability under the Encouragement Provision.

The advice purportedly criminalized by the Encouragement Provision is constitutionally protected and critical to the U.S. immigration system. Immigration advice

does not fall within any of the narrow categories of speech

this Court has excluded from First Amendment protection. Attorney advice in particular holds a special place in

our constitutional system. Immigration law is notoriously

complex, moreover, and deportation is a particularly severe sanction. Accurate, competent, ethical immigration

5

advice is crucial, both for noncitizens themselves and for

the proper functioning of our immigration system as a

whole.

The government offers several limiting constructions

in an attempt to narrow the Encouragement Provision’s

broad scope, but none eliminates the statutory text’s expansive criminalization of immigration advice. Even under the government’s reading, the Encouragement Provision chills vast quantities of immigration advice, by attorneys and others. For that reason alone, the statute is

overbroad and invalid under the First Amendment.

ARGUMENT

I.

The

Encouragement Provision

Purports

To

Criminalize Vast Quantities of Immigration Advice

The Encouragement Provision’s text is broad, and its

reach is sweeping. On its face, the statutory text criminalizes legal advice from attorneys—as well as advice

from pastors, doctors, community leaders, social workers,

police officers, and others. Whatever the Court determines is the Encouragement Provision’s legitimate scope,

it pales in comparison to the vast quantities of accurate,

ethical, constitutionally protected speech that the statute

chills.

A.

The Statutory Text Is Broad

The Encouragement Provision broadly prohibits any

person from “encourag[ing] or induc[ing] 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). As the jury instructions in this case

explain, the statute defines a crime with three basic elements:

First, the person identified in the count was an

alien. Second, the defendant encouraged or induced the alien to [come to, enter, or] reside in

6

the United States…. And third, the defendant

knew [or recklessly disregarded that] the alien’s [coming, entry, or] residence in the United

States was or would be in violation of the law.

J.A. 117. With respect to immigration advice in particular, three features of the Encouragement Provision bear

special emphasis.

First, falsity is not an element of the criminal offense

defined in the Encouragement Provision, nor is truth a

defense. See J.A. 35 (government’s acknowledgment to

district court that “intent to defraud” is not an element

under the Encouragement Provision). The statute accordingly prohibits encouragement and inducement even

if they take the form of truthful, non-misleading speech

about the legal or other consequences of coming to, entering, or residing in the United States.

To put it concretely, in order to obtain a conviction

under the Encouragement Provision in this case, the government was not required to prove that respondent misled or defrauded her clients. Nor would it have been a

defense had she genuinely believed that the labor certification program in question was still in effect at the relevant time. Indeed, even if respondent’s advice about the

labor certification program had been correct—if respondent had engaged in precisely the same conduct and speech

found by the jury, but did so before the program was discontinued rather than afterwards—she still fits within the

plain text of the Encouragement Provision. So long as advising a noncitizen about applying for a government program encourages or induces the noncitizen to be present

in this country unlawfully, it does not matter under the

Encouragement Provision if the program is entirely valid

and lawful.

Second, the Encouragement Provision covers encouraging or inducing any “violation of law,” whether criminal

or civil. 8 U.S.C. § 1324(a)(1)(A)(iv). The inclusion of civil

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violations substantially broadens the scope of what the

provision criminalizes. As this Court has noted, “[a]s a

general rule, it is not a crime for a removable alien to remain present in the United States.” Arizona v. United

States, 567 U.S. 387, 407 (2012). Yet by statute, a noncitizen is “unlawfully present in the United States” so long as

he or she is here (1) after the expiration of the period of

stay authorized by the Secretary of Homeland Security or

(2) without having been admitted or paroled. 8 U.S.C.

§ 1182(a)(9)(B)(ii). So if a noncitizen merely overstays a

tourist visa, for example, which is not a crime, the text of

the Encouragement Provision makes it a federal felony to

encourage or induce the tourist to remain here—even if

doing so is necessary for the tourist to obtain or seek lawful immigration status.

The Encouragement Provision’s extension to civil violations is particularly important for attorneys. “[A] lawyer acts appropriately for purposes of professional discipline so long as the lawyer reasonably believes that the

client can assert a nonfrivolous argument that the client’s

intended action will not constitute a crime or fraud or violate a court order.” Restatement (Third) of the Law Governing Lawyers § 94 (2000). And when a proposed course

of conduct is not criminal, fraudulent, or contumacious, attorneys are ethically obligated to “render candid advice”

that “explain[s] [the] matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Model Rules of Prof ’l Conduct 1.4(b), 2.1 (2019). The Encouragement Provision

thus purports to criminalize attorney advice that is not

just ethically permissible, but obligatory.

Third, the text of the Encouragement Provision admits of no relevant exceptions. “The words ‘induce or encourage’ are broad enough to include in them every form

of influence and persuasion.” Int’l Bhd. of Elec. Workers

v. NLRB, 341 U.S. 694, 701-702 (1951). The statute on its

8

face contains no exemption for truthful, non-misleading

immigration advice or any other category of speech with

recognized social value. Cf. Ashcroft v. Free Speech Coal.,

535 U.S. 234, 246 (2002) (striking down as overbroad a

statute that “prohibit[ed] speech despite its serious literary, artistic, political, or scientific value”). Nor does the

statutory text exempt advice that takes a particular form,

such as discussing the potential legal benefits of remaining in the United States. Cf. Model Rule of Prof ’l Conduct

1.2(d) (2019) (“A lawyer shall not counsel a client to engage … in conduct that the lawyer knows is criminal or

fraudulent, but … may discuss the legal consequences of

any proposed course of conduct with a client.”). And by

its terms, the Encouragement Provision applies to “[a]ny

person,” 8 U.S.C. § 1324(a)(1)(A), with no exception for attorneys or anyone else who might speak to noncitizens

about coming to, entering, or residing in this country.

The Encouragement Provision’s only exception allows a religious denomination to encourage or induce a

noncitizen minister to reside in the United States by paying their “basic living expenses.” Id. § 1324(a)(1)(C). By

negative inference, that narrow carve-out implies that the

statute applies in all other circumstances.

B. The Statute Purports To Criminalize Common

Immigration Advice by Attorneys

In prohibiting truthful speech that encourages or induces noncitizens to be present in the United States, in

violation of the civil immigration laws, without exception,

the Encouragement Provision purports to criminalize a

vast amount of competent, ethical advice by attorneys.

There are numerous circumstances in which a responsible

attorney might well offer advice that encourages or induces a noncitizen to be present in the United States unlawfully. Yet under the Encouragement Provision,

merely by complying with her ethical obligation to provide

9

full, competent advice, that attorney would risk prosecution for a federal felony.

To begin with, Congress and the Executive Branch

have authorized an array of lawful mechanisms for noncitizens to come to, enter, or reside in the United States.

Many of these mechanisms, however, contemplate a prior

period of physical presence that may well have been unlawful. Examples abound:

 Non-LPR Cancellation of Removal. Under 8

U.S.C. § 1229b(b)(1), the Attorney General may

“cancel removal of, and adjust to the status of an

alien admitted for permanent residence,” certain

noncitizens who are not already lawful permanent residents (LPRs). To be eligible for this relief, however, a non-LPR noncitizen must have

“been physically present in the United States for

a continuous period of not less than 10 years.” Id.

§ 1229b(b)(1)(A). A responsible immigration attorney therefore might well advise a client who

has lived in the United States for, say, nine years

that another year of unlawful residence could enable the client to seek lawful status. And cancellation of removal is available only to noncitizens

placed in removal proceedings, see Matters of

Jaso & Ayala, 27 I. & N. Dec. 557, 558 (BIA

2019), which generally presuppose an allegation

of unlawful presence.

 Trafficking Visas.

Under 8 U.S.C.

§ 1101(a)(15)(T), “victim[s] of a severe form of

trafficking in persons” may be eligible for socalled “T Visas” allowing them to remain in the

United States legally. But a trafficking victim

may not apply for a T Visa from outside the

United States: an applicant “must be physically

present in the United States[ ] … on account of

[human] trafficking.”

8 C.F.R. § 214.11(g).

10





Faced with a client who is present in the United

States unlawfully because she was trafficked, an

immigration attorney therefore might—indeed,

should—advise that continued presence is required to apply for a T Visa, even if that presence

is unlawful.

Temporary Protected Status. Under 8 U.S.C.

§ 1254a, the Attorney General may “designate”

certain foreign states where there is an “armed

conflict,” “environmental disaster,” or “extraordinary and temporary conditions … that prevent

aliens who are nationals of the state from returning to the state in safety.” Id. § 1254a(b)(1). Nationals of a designated state may receive “temporary protected status” (TPS), under which they

are not removable and may obtain authorization

to work in the United States and travel outside it.

See id. § 1254a(a), (f ). To be eligible for TPS,

however, a foreign national must have been “continuously physically present in the United States

since the effective date” of the designation and

must have “continuously resided in the United

States” since a date specified by the Department

of Homeland Security. Id. § 1254a(c)(1)(A). A responsible attorney therefore should advise a

noncitizen client who is a national of a designated

state—or of a state that could soon be designated—that remaining here, even unlawfully,

could enable the client to apply for TPS.

VAWA Cancellation of Removal. Noncitizens

who have been battered or subjected to extreme

cruelty by a U.S.-citizen or LPR spouse or parent

are eligible for cancellation of removal under the

Violence Against Women Act (VAWA). See 8

U.S.C. § 1229b(b)(2). To be eligible for VAWA

cancellation of removal, however, a noncitizen

11







must have “been physically present in the United

States for a continuous period of not less than 3

years.” Id. § 1229b(b)(2)(A)(ii). An immigration

attorney whose undocumented client is a victim

of spousal or parental abuse therefore should advise that remaining in the United States could

satisfy this physical presence requirement.

Asylum. Certain noncitizens who have a “wellfounded fear of persecution” in their country of

nationality or habitual residence may seek asylum. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b). With

certain exceptions, however, asylum is available

only to noncitizens who are “physically present”

or “arrive[ ] in the United States.” Id. § 1158(a).

An immigration attorney therefore might well

advise that physical presence here would enable

a noncitizen client to apply for asylum.

Special Immigrant Juvenile Status. Certain juvenile immigrants who are wards of state courts

because they have been abused, abandoned, or

neglected by a parent may apply for LPR status,

but only if they do so from within the United

States. See 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R.

§ 204.11(a). An immigration attorney therefore

might well advise an undocumented juvenile that

remaining in the United States is required to apply for special immigrant juvenile status.

DACA. As this Court is aware, under the Deferred Action for Childhood Arrivals (DACA)

program, certain noncitizens who came to the

United States before the age of sixteen may apply

for deferred action, whereby the government forbears from seeking removal for a designated period. See Regents of the Univ. of Cal. v. U.S.

Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir.

2018), cert. granted, 139 S. Ct. 2779 (2019). But

12

noncitizens may apply for DACA only if they are

“present” in the United States and have “continuously resided” here for at least five years. Id. at

490. An immigration attorney therefore might

well advise an eligible client that remaining here,

while unlawful, is necessary to apply for or renew

deferred action under DACA.

All of these immigration benefits reflect congressional or regulatory judgments that some noncitizens who

may be present in this country unlawfully should be allowed to seek authorization to stay. And these are just

some of the circumstances in which a competent, ethical

immigration attorney might advise a noncitizen client

about coming to, entering, or residing in the United States

in violation of the law.

The number of noncitizens who apply for these benefits, moreover, is enormous. During 2017 alone, for example, more than 250,000 noncitizens applied for asylum.

Dep’t of Homeland Sec., Annual Flow Report: Refugees

and Asylees: 2017 at 7-8 (Mar. 2019). 2 During fiscal year

2018, nearly 4,000 non-LPRs obtained cancellation of removal; the number of applications was of course substantially higher. See U.S. Dep’t of Justice, Executive Office

for Immigration Review, Statistical Yearbook: Fiscal

Year 2018 at 32.3 And during the same fiscal year, nearly

3,000 noncitizens applied for T Visas. See U.S. Citizenship

and Immigration Servs., Form I-914 Applications for T

Nonimmigrant Status, (Sept. 2019).4 These figures alone

are “substantial, not only in an absolute sense, but also

relative to the statute’s plainly legitimate sweep.” United

States v. Williams, 553 U.S. 285, 292 (2008). Indeed, they

are likely orders of magnitude greater than the total

2

Available at http://bit.ly/30tnZMO.

3

Available at http://bit.ly/2QTVt2r.

4

Available at http://bit.ly/2N0y5zb.

13

number of actual prosecutions ever brought under the

Encouragement Provision.

Furthermore, the circumstances in which responsible

attorneys might provide advice that runs afoul of the Encouragement Provision are not limited to the immigration

benefits described above. For example, “[i]t is well established that certain constitutional protections available to

persons inside the United States are unavailable to aliens

outside of our geographic borders.” Zadvydas v. Davis,

533 U.S. 678, 693 (2001) (citing cases). “[O]nce an alien

enters the country, the legal circumstance changes, for

the Due Process Clause,” for example, “applies to all ‘persons’ within the United States, including aliens, whether

their presence here is lawful, unlawful, temporary, or permanent.” Ibid. A competent immigration attorney therefore might well convey that it would be in a noncitizen client’s interest to assert a constitutional claim from inside

the United States rather than from abroad.

Similarly, a noncitizen’s physical presence in the

United States may affect the discretionary decisions immigration officials must make about whether and how to

apply the immigration laws in a given case. “Discretion in

the enforcement of immigration law embraces immediate

human concerns,” after all. Arizona, 567 U.S. at 396. And

“[t]he equities of an individual case may turn on many factors, including whether the alien has … long ties to the

community.” Ibid.

In addition to the potential legal benefits of physical

presence in the United States, moreover, responsible immigration attorneys also may counsel clients about the

risks, legal and otherwise, of physical presence outside

the United States. Voluntarily departing the United

States after a period of unlawful presence, for example,

can render a noncitizen inadmissible and unable to return

here for three or ten years, depending on the duration of

that unlawful presence. See 8 U.S.C. § 1182(a)(9)(B).

14

Leaving the United States with a child who is habitually

resident here could expose a noncitizen parent to a civil

suit under the Hague Convention on the Civil Aspects of

International Child Abduction. See 22 U.S.C. § 9003. And

remaining in or returning to another country may entail

any number of horrors: forced marriage, physical abuse,

discrimination, and persecution in myriad forms. Regardless of whether these risks could form the basis for a successful asylum claim, a competent attorney can—and

should—help her client weigh the real-world consequences of her actions. See Restatement (Third) of the

Law Governing Lawyers § 94 (2000) (“In counseling a client, a lawyer may address nonlegal aspects of a proposed

course of conduct, including moral, reputational, economic, social, political, and business aspects.”). The Encouragement Provision nevertheless threatens such attorney advice.

C.

The Statute Also Purports To Criminalize Lay

Immigration Advice

The Encouragement Provision’s criminalization of

immigration advice is not limited to advice given by attorneys. As a practical matter, noncitizens may seek and obtain guidance from a wide array of non-legal sources. If

that guidance encourages or induces a noncitizen to come

to, enter, or reside in this country unlawfully, those individuals, too, may be subject to prosecution under the Encouragement Provision.

A pastor, for example, could face federal felony

charges if he advises a trafficking victim who is unlawfully

present in the United States to remain here to contact an

attorney about applying for a T Visa. A priest runs a similar risk if he counsels an anxious noncitizen parishioner

to stay in the United States to avoid persecution in her

home country, or to fulfill a religious obligation to care for

her family here. The same goes for a doctor advising a

noncitizen to remain in this country to receive treatment,

15

or a social service provider who offers guidance to noncitizens fleeing domestic abuse or trafficking. Any of these

individuals could face prosecution, either under the Encouragement Provision itself or under the accompanying

conspiracy and aiding-and-abetting prohibitions in 8

U.S.C. § 1324(a)(1)(A)(v).

Even law enforcement officers could face criminal liability under the Encouragement Provision for encouraging or inducing a noncitizen to remain in the United States

unlawfully in order to answer questions pertinent to an

investigation, or to testify as a witness at trial. In fact,

Congress has facilitated precisely this kind of encouragement or inducement by allowing certain noncitizen crime

victims, witnesses, and informants who are helpful to law

enforcement to apply for so-called “U” or “S Visas.” See

8 U.S.C. § 1101(a)(15)(U), (S). Yet a noncitizen who remains here to help law enforcement nevertheless may be

“unlawfully present in the United States” up until the moment her stay has been formally authorized. Id.

§ 1182(a)(9)(B)(ii). Ironically, federal agents and prosecutors could easily run afoul of the Encouragement Provision in this way, including when investigating or prosecuting violations of the Encouragement Provision itself. See,

e.g., United States v. Henderson, 857 F. Supp. 2d 191, 204

n.6 (D. Mass. 2012) (witness in Encouragement Provision

prosecution “ha[d] been permitted to continue residing in

the United States in deferred status to permit her participation as a cooperating witness in this criminal proceeding”).

It is no answer that the government might, of its own

accord, hesitate before prosecuting a pastor, doctor, social

service provider, law enforcement officer, or prosecutor.

This Court has refused to “uphold an unconstitutional

statute merely because the Government promised to use

16

it responsibly.” United States v. Stevens, 559 U.S. 460,

480 (2010).5

II. The Advice Threatened by the Encouragement

Provision Is Constitutionally Protected and

Practically Significant

The immigration advice the Encouragement Provision purports to prohibit is not only vast in scope, but also

critical in both constitutional and practical significance.

Immigration advice receives strong protection under the

First Amendment. Immigration law is notoriously complex, moreover, and deportation is a severe penalty, making full and frank advice all the more crucial, both for

noncitizens themselves and for the proper functioning of

our immigration system as a whole.

A.

Immigration

Advice

Receives

Constitutional Protection

Strong

Like any other kind of speech, immigration advice is

presumptively protected by the First Amendment unless

it falls within one of the “well-defined and narrowly limited classes of speech” this Court has recognized as excluded from constitutional protection. Stevens, 559 U.S.

at 468-469 (quotation marks omitted).

Advice by attorneys in particular has a special place

in our constitutional system. This Court has “upheld the

commonsense proposition” that “attorneys” offering “advice or counsel”—including through nonprofit organizations similar to amici—are “protected by the First

Amendment.” United Transp. Union v. State Bar of

Mich., 401 U.S. 576, 580 (1971). Indeed, this Court has

afforded “speech by attorneys,” on “matters of legal

To the extent non-lawyers offer legal advice, amici do not condone the unauthorized practice of immigration law. The government can and does adequately combat unauthorized practice, however, by restricting legal representation to authorized individuals.

See 8 C.F.R. § 1292.1.

5

17

representation,” the “strongest protection our Constitution has to offer,” Fla. Bar v. Went For It, Inc., 515 U.S.

618, 634 (1995), and has taken care to confirm that restrictions on attorney advice do not “chill attorney speech

or inhibit the attorney-client relationship,” Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 247

(2010). The Court has even invalidated restrictions on the

permissible range of government-funded attorney advice

and advocacy because they “distort[ed] the legal system

by altering the traditional role of … attorneys.” Legal

Servs. Corp. v. Velazquez, 531 U.S. 533, 544 (2001).

The Encouragement Provision threatens other constitutional values, too. Any “serious and fundamental restriction on advocacy of attorneys” necessarily undermines “the functioning of the judiciary”—as well as any

administrative agency before whom the attorneys practice. Ibid. The First Amendment’s Petition Clause “extends to all departments of the Government,” Cal. Motor

Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510

(1972), and thus protects attorneys’ ability to submit visa

applications and other immigration papers on their clients’ behalf. And “[a]n attorney’s duties do not begin inside the courtroom door”—or, for that matter, the door to

any of the U.S. government’s numerous immigration

agencies. Gentile v. State Bar of Nev., 501 U.S. 1030, 1043,

(1991) (plurality op.). “[B]lanket rules” that, like the Encouragement Provision, “restrict[ ] speech of … attorneys” accordingly “should not be accepted without careful

First Amendment scrutiny.” Id. at 1056.

The government here suggests that the Encouragement Provision permissibly targets unprotected speech

because it prohibits only “speech integral to criminal conduct.” U.S. Br. 32 (quotation marks omitted). But that is

plainly wrong: as explained, the Encouragement Provision criminalizes the encouragement or inducement of

18

mere civil violations, such as a tourist who overstays her

visa. See supra, p. 7.

The government then switches tack, relying principally on Pittsburgh Press Co. v. Pittsburgh Commission

on Human Relations, 413 U.S. 376 (1973), for the notion

that speech is unprotected if it is integral to any illegality,

whether criminal or civil. See U.S. Br. at 41-42. But Pittsburgh Press involved employment advertisements—

“classic examples of commercial speech,” which under

then-existing doctrine was “unprotected by the First

Amendment.” 413 U.S. at 384-385. Immigration advice is

not commercial, as it does much “more than propose a

commercial transaction.” Id. at 385. The illegality in

Pittsburgh Press, moreover, could not have occurred

without facilitation by the newspaper defendant: the

newspaper published help-wanted ads under separate columns for male and female job-seekers, creating “an integrated commercial statement” that incorporated the

newspaper into the advertisers’ unlawful employment discrimination. Id. at 388. Attorneys and other advisors

merely provide information and counsel, which noncitizens are free to follow or disregard as they wish. Immigration advice thus is at least one step removed from

noncitizens’ civil immigration violations.

The government also cites two cases involving “picketing.” U.S. Br. at 42 (quotation marks omitted). But

picketing “is a mixture of conduct and communication” in

which a coercive “conduct element” often is “most persuasive.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.

& Const. Trades Council, 485 U.S. 568, 580 (1988) (quotation marks omitted). Immigration advice, by contrast, is

pure speech. As such, it is protected by the First Amendment.

19

B. Advice About Physical Presence Is Crucial to

the U.S. Immigration System

All aspects of our legal system depend on competent

advice and advocacy by trained professionals. Even outside the criminal context, this Court has long recognized

“the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and

skilled in its practice.” Hunt v. Blackburn, 128 U.S. 464,

470 (1888). “[S]ound legal advice or advocacy serves public ends,” the Court has explained, by “promot[ing]

broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449

U.S. 383, 389 (1981). This Court accordingly has taken

care not to restrict, but instead to “encourage full and

frank communication between attorneys and their clients.” Ibid.

The need for “full and frank legal advice,” id. at 392,

is particularly urgent in the area of immigration law. To

begin with, “[t]here are significant complexities involved

in … federal immigration law, including the determination whether a person is removable.” Arizona, 567 U.S.

at 409. “Immigration law … is a legal specialty of its own,”

Padilla v. Kentucky, 559 U.S. 356, 369 (2010), and the Immigration and Nationality Act and its accompanying regulations are “notoriously complicated”—“second only to

the Internal Revenue Code.” Singh v. Gonzales, 499 F.3d

969, 980 (9th Cir. 2007) (quotation marks omitted). The

Federal Reporter is replete with expressions of frustration by sitting federal judges who have noted the “Byzantine,” Carranza v. I.N.S., 277 F.3d 65, 68 (1st Cir. 2002),

“maze of immigration laws,” J.E.F.M. v. Lynch, 837 F.3d

1026, 1040 (9th Cir. 2016) (McKeown, J., concurring),

which have “aptly been compared to the labyrinth of ancient Crete,” Sang Seup Shin v. I.N.S., 750 F.2d 122, 130

(D.C. Cir. 1984) (Starr, J., dissenting). The contemporary

U.S. immigration system, in other words, contains

20

intricacies “that only a lawyer could navigate.” Biwot v.

Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005).

Furthermore, the ultimate consequence of violating

U.S. immigration law—deportation—is “particularly severe.” Lee v. United States, 137 S. Ct. 1958, 1968 (2017).

The “right to remain in the United States,” this Court has

recognized, “may be more important … than any potential

jail sentence.” Padilla, 559 U.S. at 368 (quotation marks

omitted). Deportation is “the equivalent of banishment,”

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), and “may

result … in loss of both property and life, or of all that

makes life worth living,” Ng Fung Ho v. White, 259 U.S.

276, 284 (1922). At a minimum, deportation “visits a great

hardship on [an] individual and deprives him of the right

to stay and live and work in this land of freedom.” Bridges

v. Wixon, 326 U.S. 135, 154 (1945).

These considerations apply with full force to the immigration advice threatened by the Encouragement Provision. The circumstances described above, in which U.S.

immigration law provides affirmative benefits to noncitizens who are physically present in the United States in

violation of the law, are by no means obvious or intuitive.

In order to identify what those benefits are and complete

the steps necessary to apply for them, most (if not all)

noncitizens will require assistance—often from an attorney. Applicants for immigration benefits must “weave together a complex tapestry of evidence and then juxtapose

and reconcile that picture with the voluminous, and not always consistent, administrative and court precedent.”

Baltazar-Alcazar v. I.N.S., 386 F.3d 940, 948 (9th Cir.

2004). That task can be challenging even for seasoned immigration attorneys, let alone for noncitizens untrained in

the law, many of whom may have limited proficiency in

English. Enabling attorneys to provide advice in this area

freely, without the looming possibility of a felony

21

prosecution under the Encouragement Provision, is both

a constitutional and practical imperative.

III. The Government’s Limiting Constructions Cannot

Save the Encouragement Provision from Overbreadth

The government offers a number of limiting constructions that seek to cabin the Encouragement Provision’s

broad scope. Those limiting constructions are dubious at

best, as respondent’s brief demonstrates. But even if the

government’s limiting constructions were feasible, they

would not eliminate the Encouragement Provision’s constitutional defects.

A. The government offers three relevant limiting

constructions, but under all three, the Encouragement

Provision still chills vast swaths of protected, accurate,

ethical immigration advice.

First, the government spills considerable ink arguing

that the Encouragement Provision is a “criminal complicity” statute that prohibits only “direct facilitation or solicitation of unlawful conduct by an identifiable alien.” U.S.

Br. 19, 25; see id. at 18-28. That argument again conflates

the encouragement of conduct that is “criminal” with the

encouragement of conduct that is merely “unlawful.” As

noted above, the Encouragement Provision threatens felony prosecution even for attorneys who advise their clients to remain in the United States after legal permission

has expired, which “is not a crime.” Arizona, 567 U.S. at

407; see supra p. 7.

In any event, the government never adequately explains how its understanding of “facilitation” and “solicitation” are relevantly different from the ordinary, plain

meaning of “encourage[ment]” and “induce[ment].” At

most, the government asserts that “[f ]acilitation and solicitation laws … are ordinarily understood not to prohibit

abstract or generalized advocacy of illegality.” U.S. Br.

34.

The government thus contends that the

22

Encouragement Provision “prohibits only acts … directed

at a specific alien or aliens, not the general public.” Id. at

24. But even if that contention were correct, and the Encouragement Provision did not criminalize abstract advocacy, its plain text still purports to criminalize accurate,

competent, ethical immigration advice given to individual

clients. By its nature, such advice is given to an identified

person to assist that person in deciding whether and how

to engage in a particular proposed course of conduct.

Second, the government asserts that, “just as a lawyer does not aid, abet, or solicit a crime if she tells a client

in good faith that a particular type of illegal conduct is

rarely prosecuted, a lawyer similarly does not violate [the

Encouragement Provision] if she tells a client who is present unlawfully that she is unlikely to be removed.” U.S.

Br. 35. The textual basis for that asserted limitation on

the statute is unclear. The government’s only cited authority is an oblique “Cf.” citation to Model Rule 1.2,

which provides that a lawyer “shall not counsel a client to

engage … in conduct that the lawyer knows is criminal or

fraudulent, but … may discuss the legal consequences of

any proposed course of conduct with a client.” Model Rule

of Prof ’l Conduct 1.2(d) (2019). The government fails to

explain what the Model Rules could possibly have to say

about the public meaning of the statutory phrase “encourage or induces.”

Regardless, this limiting construction removes remarkably little from the statute’s sweep. Professor Volokh argues that, if read as a criminal solicitation statute,

the Encouragement Provision would not prohibit “simply

explaining the likely consequences of a particular course

of action,” Br. of Prof. Eugene Volokh as Amicus Curiae

in Support of Neither Party at 14, but the government refrains from conceding even that much. The government

thus provides no assurance that it could not prosecute an

immigration attorney for advising a client that staying in

23

the country unlawfully would be necessary to allow the client to apply for non-LPR cancellation of removal, for example, or for a T Visa.

And even if the Encouragement Provision somehow

did not criminalize encouragement or inducement accomplished by candidly explaining the potentially beneficial

consequences of staying in this country unlawfully, the

statute still would chill advice that is accurate, ethical, and

constitutionally protected. The First Amendment protects “the opportunity to persuade to action, not merely to

describe facts.” In re Primus, 436 U.S. 412, 432 (1978).

And as explained, while it is unethical for a lawyer to advise a client to engage in a crime, fraud, or contempt of

court, it generally is not unethical to advise engaging in a

nonfraudulent, non-contumacious civil violation. See supra, pp. 7-8. “A client is entitled,” moreover, “to straightforward advice expressing the lawyer’s honest assessment.” Model Rule of Prof ’l Conduct 2.1 cmt. (2019). An

attorney who (outside the context of crime, fraud, or contempt) speaks only in conditional probabilities—declining

ever to say what course of action best fits the client’s

stated objectives—is a poor attorney indeed.

Elliptical counseling is particularly ill-suited to the

immigration context, which is high-stakes and notoriously

complex. Clients in this area need straightforward advice

about what to do. And it would be particularly strange to

fault an attorney for advising a noncitizen client about remaining in the United States in violation of the civil immigration laws, when those laws themselves condition numerous benefits on a noncitizen’s physical presence in the

United States.

Third, the government contends that the Encouragement Provision is limited “in the context of this case” by

the “financial-gain requirement” necessary to impose the

enhanced maximum penalty that respondent faced. U.S.

Br. 36. As an initial matter, that limitation on enhanced

24

punishment does nothing to narrow the scope of the Encouragement Provision itself: providing immigration advice could still be a felony, punishable by up to five years

of imprisonment, even if the motive for that advice were

non-financial. See 8 U.S.C. § 1324(a)(1)(B)(ii).

Even as to the enhanced-penalty version of the offense, moreover, there is no basis for the government’s

assurance that prosecution for protected speech is “highly

unlikely.” U.S. Br. 36. Private immigration attorneys,

like other professionals, routinely receive payment for

their services—often on a per-hour or per-matter basis—

and thus can be said to act “for the purpose of commercial

advantage or private financial gain,” 8 U.S.C.

§ 1324(a)(1)(B)(i). Even lawyers working with nonprofits

like amici sometimes charge a small fee. Indeed, while

the quality of advice respondent gave here may have been

deficient, there is no reason to think that her motivation

for giving it was different from that of any ordinary attorney.

B. The government also contends that, to the extent

the Encouragement Provision criminalizes competent,

ethical attorney advice or other constitutionally protected

speech, “[a]s-applied challenges” are “[ ]sufficient to address chilling concerns.” U.S. Br. 37. Not so. The Encouragement Provision is not a statute that merely “could

be read to cover some protected speech,” as the government understatedly suggests. Ibid. As explained, even

under the government’s limiting constructions, the statute’s plain terms criminalize vast swaths of everyday immigration advice, affecting many thousands of cases per

year. Any immigration attorney who advises a client falling into one of the categories described above could face a

choice between her legal obligation to avoid committing a

federal crime and her ethical duty to provide competent

advice. And “rather than undertake the considerable burden (and sometimes risk) of vindicating their rights

25

through case-by-case litigation,” many immigration attorneys and other advisors may “choose simply to abstain

from protected speech, harming not only themselves but

society as a whole.” Virginia v. Hicks, 539 U.S. 113, 119

(2003) (internal citation omitted). That prospect is precisely what the overbreadth doctrine is designed to prevent. See ibid. The government’s plea to adjudicate the

constitutionality of the Encouragement Provision only

through case-by-case as-applied challenges amounts to an

invitation to abdicate this Court’s role in upholding the

First Amendment.

The sheer volume of immigration advice the Encouragement Provision criminalizes, moreover, “foster[s] arbitrary and discriminatory application.” Buckley v. Valeo,

424 U.S. 1, 41 n. 48 (1976) (quotation marks omitted).

Even if individual attorneys and other speakers could ultimately mount as-applied First Amendment defenses

and avoid being convicted for protected speech, the mere

possibility of a felony prosecution is a powerful tool that

“carries with it the opportunity for abuse.” Minn. Voters

All. v. Mansky, 138 S. Ct. 1876, 1891 (2018) (brackets and

quotation marks omitted). This Court repeatedly has

“warn[ed] of the more covert forms of discrimination that

may result when arbitrary discretion is vested in some

governmental authority.” Ibid. (quotation marks omitted).

C. Finally, the government argues that a prosecution

under the Encouragement Provision for giving immigration advice is a “fanciful hypothetical[ ].” U.S. Br. 32 (quotation marks omitted). Far from it. For starters, the government itself has expressly argued that the Encouragement Provision criminalizes immigration advice by attorneys. As described by the district court in United States

v. Henderson:

In response to my questioning, the government

contended that an immigration lawyer would be

26

prosecutable [under the Encouragement Provision] if he advised an illegal alien client to remain in the country because if the alien were to

leave the alien could not return to seek adjustment of status. The government at argument

likened such advice to that of a criminal defense

lawyer who advises a client regarding the prospective robbery of a bank.

857 F. Supp. 2d at 203–204. Of course, the government’s

analogy was inapt: while “[t]he bank robbery example involves giving advice on how to commit a crime at a future

time,” “[t]he immigration lawyer” is “advising the client

about how to pursue entirely legal processes in seeking to

adjust her status.” Id. at 204. But it is striking—and

deeply troubling—that the government itself has insisted

to a federal court that accurate, ethical legal advice about

the physical presence required for an immigrant client to

adjust status is analogous to advice about how to commit

a violent felony.

Remarkably, the government here never disavows

the aggressive position it took in Henderson. To the contrary, at oral argument before the Ninth Circuit in this

case, the government described an attorney offering “free

legal advice” to an undocumented noncitizen as a “hard

case,” and pointedly declined to concede that such conduct

is not criminal under the Encouragement Provision. C.A.

Oral Arg. 1:00:10-1:01:00.

Rather than argue that the Encouragement Provision does not encompass competent, ethical attorney advice, the government instead observes that “Henderson

itself ” did not involve “an immigration lawyer’s advice to

a client.” U.S. Br. 33. True enough—the defendant in

Henderson was not an attorney. But the government’s

refusal to back away from the aggressive position it espoused there means that no immigration attorney can be

certain that her next case will not expose her to criminal

27

liability. And regardless, the government’s that’s-notthis-case non-response is cold comfort to pastors, social

service providers, and other non-lawyers who routinely

offer non-legal advice to undocumented noncitizens.

Moreover, the facts of Henderson should worry immigration attorneys. While not a lawyer, the defendant in

Henderson was the “Boston Area Port Director for

United States Customs and Border Protection, a position

at the highest regular civil service rank,” which gave her

“supervisory responsibility for the government in enforcing immigration laws.” Henderson, 857 F. Supp. 2d at

193–194. The defendant “employed a person she came to

learn was an illegal alien to clean her home from time to

time and, when asked, advised the cleaning lady generally

about immigration law practices and consequences,” including by cautioning her that “if you leave[,] they won’t

let you back.” Id. at 193, 196. While the district court described the prosecution as an “improvident invocation of

federal criminal felony process” and “overkill,” the government pursued it with “dogged consistency.” Id. at 193.

If the government is willing to treat one of its own officials

that way, there is little reason to believe it would stay its

hand in the case of immigration attorneys, whose professional position regularly entails opposing federal immigration enforcement efforts.

More fundamentally, the overbreadth doctrine is prospective in nature, serving to forestall an invalid statute

from “chill[ing] protected expression in the future.” Massachusetts v. Oakes, 491 U.S. 576, 583 (1989) (emphasis

added). The government cannot remedy that effect

merely by implying—not even clearly representing—that

it will not actually prosecute conduct that it has previously described, in open court, as criminal. “[T]he First

Amendment protects against the Government; it does not

leave us at the mercy of noblesse oblige.” Stevens, 559

U.S. at 480.

28

Furthermore, the Encouragement Provision’s

chilling effect is not some theoretical future possibility; it

is happening right now. The immigration bar has taken

note of the government’s arguments in this case, and is

actively discussing when and how immigration practitioners should self-censor the advice they give to clients so as

to avoid potential criminal prosecution under the Encouragement Provision. See, e.g., Cyrus Mehta, Supreme

Court Agrees To Hear Constitutionality of Smuggling

Statute That Could Impact Immigration Lawyers, The

Insightful Immigration Blog, Oct. 21, 2019.6 Amici are directly involved in these ongoing discussions.

Indeed, this very case shows that immigration attorneys’ fears about the Encouragement Provision are well

founded. For it takes only the slightest variation on the

facts to transform respondent’s case into precisely the

kind of prosecution the government derides as “fanciful.”

U.S. Br. 32, 36 (quotation marks omitted). Consider, for

example, a defendant who engages in the very same conduct and speech as respondent here, with just two differences: (1) instead of working as an “immigration consultant,” id. at 7, the defendant was an attorney; and (2) instead of advising clients about the labor certification program after it was discontinued, id. at 8, the defendant did

so in 2000—while the program was still operational. That

hypothetical defendant’s legal advice to her clients would

have been accurate, competent, and ethical; yet, under the

government’s interpretation, it would have been just as

criminal as what respondent did here. In the language of

the statute, the defendant would have, “for the purpose of

commercial advantage or private financial gain,” “encourage[d] or induce[d] an alien to … reside in the United

States, knowing … that such … residence is or will be in

violation of law.” 8 U.S.C. § 1324(a)(1)(A)(iv), (B)(i). The

6

Available at http://bit.ly/2MTVxOH.

29

defendant also would satisfy all three elements of the jury

instructions the government procured in this case. See

supra, pp. 5-6. Nothing in the government’s proffered

limitations would shield this attorney’s advice from the

Encouragement Provision’s broad sweep.

* * *

The Encouragement Provision is an unusual statute.

Amici are aware of no other provision in the U.S. Code

that purports to criminalize such vast quantities of truthful, non-misleading advice, by attorneys and others.

While the parties dispute various aspects of the Encouragement Provision’s scope, it is clear that, even under the

government’s narrowest limiting constructions, the statute chills staggering amounts of immigration advice that

is not only constitutionally protected but also critical to

the proper functioning of our immigration system. This

Court need look no further to find a “realistic danger” that

the Encouragement Provision “will significantly compromise recognized First Amendment protections of parties

not before the Court,” rendering the statute impermissibly overbroad on its face. Members of the City Council of

the City of Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, 801 (1984).

30

CONCLUSION

For the foregoing reasons, the Court should affirm

the judgment of the court of appeals.

Respectfully submitted.

SIRINE SHEBAYA

MATTHEW VOGEL

KHALED ALRABE

NATIONAL IMMIGRATION

PROJECT OF THE NATIONAL LAWYERS

GUILD

2201 Wisconsin Avenue

NW, Suite 200

Washington, DC 20007

(202) 617-9727

WILLIAM C. PERDUE

Counsel of Record

ALLON KEDEM

KOLYA D. GLICK

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Avenue, NW

Washington, DC 20001

(202) 942-5000

william.perdue@arnoldporter.com

AVISHAI D. DON

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

(212) 836-8000

JANUARY 2020