Amicus Curiae Brief — United States, Petitioner v. Helaman Hansen

Supreme Court briefFeb 24, 2023

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No. 22-179

IN THE

Supreme Court of the United States

___________

UNITED STATES,

HELAMAN HANSEN,

___________

Petitioner,

Respondent.

On a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

___________

BRIEF OF NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AND NATIONAL ASSOCIATION OF FEDERAL DEFENDERS AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

___________

JEFFREY T. GREEN

MARISA WEST

REBECCA BROOKS

SIDLEY AUSTIN LLP

1501 K Street N.W.

Washington, D.C. 20005

(202) 736-8000

STEPHEN R. SADY*

Amicus Committee

National Association

Of Federal Defenders

OREGON FEDERAL PUBLIC

DEFENDER’S OFFICE

101 S.W. Main Street

Suite 1700

Portland, OR 97204

(503) 326-2123

Steve_Sady@fd.org

Counsel for Amici Curiae

February 27, 2023

*Counsel of Record

XIAO WANG

MEREDITH R. ASKA

MCBRIDE

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Ave.

Chicago, IL 60611

NATHAN PYSNO

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1660 L Street, NW #12

Washington, D.C. 20036

(202) 461-7627

TABLE OF CONTENTS

Page

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

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

INTRODUCTION

AND

SUMMARY

ARGUMENT ......................................................

ARGUMENT .........................................................

THIS

COURT’S

CONTRASTING

DECISIONS

FREE

SPEECH

COALITION AND WILLIAMS PROVIDE A

TEMPLATE FOR AFFIRMING THE

NINTH CIRCUIT .........................................

A. In Free Speech Coalition, the Court Affirmed the Ninth Circuit’s Holding That

an Overbroad Child Pornography Statute

Infringed on First Amendment Rights ......

B. In Williams, The Court Upheld Congress’s

Rewrite of the Child Pornography Statute

Because its Definitional Specificity Protected Against Overbreadth .......................

C. In Packingham, the Court Followed Free

Speech Coalition, Emphasizing the Importance of Free Speech on the Internet ...

II.

SUBSECTION (iv)’s PLAIN MEANING

COVERS BROAD EXPANSES OF PROTECTED SPEECH .......................................

A. The Natural Meaning of the Text Covers

Numerous Everyday Situations .................

B. Subsection (iv)’s Overbreadth Directly Affects Legitimate Activities of Law Firms

and Public Defenders Representing

Noncitizens .................................................

III.

JUDICIAL CONSTRUCTION CANNOT

SAVE THE OVERBROAD STATUTE .........

iii

IV.

THE COURT’S DUE PROCESS VAGUENESS DOCTRINE SUPPORTS THE

NINTH CIRCUIT’S FINDING OF FIRST

AMENDMENT OVERBREADTH ................

THE GOVERNMENT’S CLAIM THAT

SUBSECTION (iv) IS ESSENTIAL TO IMMIGRATION ENFORCEMENT IS BELIED BY ITS REDUNDANCY AND RELATIVELY INFREQUENT USE ......................

CONCLUSION .....................................................

TABLE OF AUTHORITIES

CASES

Page

62 Cases, More or Less, Each Containing Six

Jars of Jam v. United States,

340 U.S. 593 (1951) ...................................

Arizona v. United States,

567 U.S. 387 (2012) ................................... 14, 19

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002) ........................... 3, 7, 11, 12

Baggett v. Bullitt,

377 U.S. 360 (1964) ....................... 12, 13, 14, 24

Bostock v. Clayton Cnty.,

140 S. Ct. 1731 (2020) ...............................

City of Chicago v. Morales,

527 U.S. 41 (1999) ................................ 22, 23, 27

Coates v. City of Cincinnati,

402 U.S. 611 (1971) ................................... 5, 23

Colautti v. Franklin,

439 U.S. 379 (1979), abrogated on other

grounds by Dobbs v. Jackson Women’s

Health Org., 142 S. Ct. 2228 (2022) .........

F.C.C. v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) ...................................

Free Speech Coalition v. Reno,

198 F.3d 1083 (9th Cir. 1999), aff'd sub

nom. Ashcroft v. Free Speech Coalition,

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

Gentile v. State Bar of Nevada,

501 U.S. 1030 (1991) ........................... 16, 25, 27

Gozlon-Peretz v. United States,

498 U.S. 395 (1991) ...................................

Grayned v. City of Rockford,

408 U.S. 104 (1972) ............................... 5, 22, 24

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) .......................................

TABLE OF AUTHORITIES—continued

Page

Int’l Bhd. of Elec. Workers v. NLRB,

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

Johnson v. United States,

576 U.S. 591 (2015) ...................................

Kolender v. Lawson,

461 U.S. 352 (1983) .............................. 24, 25, 27

Lanzetta v. New Jersey,

306 U.S. 451 (1939) ................................... 13, 22

Leatherman v. Tarrant Cnty. Narcotics

Intel. & Coordination Unit,

507 U.S. 163 (1993) ...................................

Lee v. United States,

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

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) ...................................

NAACP v. Button,

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

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) .................................

New York v. Ferber,

458 U.S. 747 (1982) ...................................

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) ............................... 9, 10

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ...................................

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ........ 14, 15, 22, 23, 24, 26

Smith v. Goguen,

415 U.S. 566 (1974) ................................... 22, 24

State v. Melchert-Dinkel,

844 N.W.2d 13 (Minn. 2014) .....................

United States v. Alvarez,

567 U.S. 709 (2012) ...................................

TABLE OF AUTHORITIES—continued

Page

United States v. Delgado-Ovalle,

No. 13-20033-07-KHV, 2013 WL 6858499

(D. Kan. Dec. 30, 2013) .............................

United States v. Evans,

333 U.S. 483 (1948) ...................................

United States v. L. Cohen Grocery Co.,

255 U.S. 81 (1921) ....................................

United States v. Sineneng-Smith,

No. 19-67, 2020 WL 907832 (U.S. Oral.

Arg. 2020) ..................................................

United States v. Stevens,

559 U.S. 460 (2010) ........................... 4, 9, 13, 19

United States v. Strandlof,

746 F. Supp. 2d 1183 (D. Colo. 2010),

reversed, 667 F.3d 1146 (10th Cir. 2012),

vacating reversal and reinstating district

court dismissal of information, 684 F.3d

962 (10th Cir. 2012) ..................................

United States v. Williams,

553 U.S. 285 (2008) ....... 3, 4, 7, 8, 12, 13, 18, 22

Vill. of Hoffman Ests. v. Flipside, Hoffman

Ests., Inc., 455 U.S. 489 (1982) ............ 4, 22, 25

Young v. Am. Mini Theatres, Inc.,

427 U.S. 50 (1976) .....................................

STATUTES

8 U.S.C. § 1101(a)(15) ..................................

8 U.S.C. § 1182(a)(9)(A)(ii) ...........................

8 U.S.C. § 1182(a)(9)(B)(i) ............................

8 U.S.C. § 1229b(b) .......................................

8 U.S.C. § 1324(a)(l)(A)(iv) ........................... 2–31

18 U.S.C. § 704(b) .........................................

18 U.S.C. § 3006A.........................................

vii

TABLE OF AUTHORITIES—continued

Page

Act of Feb. 5, 1917, ch. 29, § 5,

39 Stat. 879 ...............................................

Act of Feb. 26, 1885, ch. 164, § 3,

23 Stat. 333 ...............................................

Child Pornography Prevention Act of 1996,

104th Cong. § 3 (1996) ..............................

Pub. L. No. 82-414, § 274,

66 Stat. 163, (1952) ...................................

U.S.S.G. § 2B1.1 ...........................................

U.S.S.G. § 2L1.1 ...........................................

U.S.S.G. § 3D1.2(d) ......................................

U.S.S.G. § 3D1.4 ...........................................

OTHER AUTHORITIES

H. Comm. on the Judiciary, 82d Cong.,

Hearings Before the President’s Comm’n

on Immigr. and Naturalization (Comm.

Print 1952).................................................

U.S. Sent’g Comm’n, Commission Datafiles,

https://www.ussc.gov/research/datafiles/c

ommission-datafiles ..................................

INTEREST OF AMICI CURIAE 1

The National Association of Criminal Defense Lawyers (NACDL) is a nonprofit, voluntary professional

bar association that works on behalf of criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. The

NACDL was founded in 1958. It has a nationwide

membership of direct and affiliate members. The

NACDL is the only nationwide professional bar association for public defenders and private criminal defense lawyers. The NACDL is dedicated to advancing

the proper and efficient administration of justice and

files numerous amicus briefs each year in federal and

state courts addressing issues of broad importance to

criminal defendants, criminal defense lawyers, and

the criminal justice system.

The members of the National Association of Federal

Defenders (NAFD) provide representation pursuant to

18 U.S.C. § 3006A to persons accused of federal crimes

who lack financial means to hire private counsel. The

NAFD members advocate on behalf of the criminally

accused, with the core mission of protecting the constitutional rights of their clients and safeguarding the integrity of the federal criminal justice system. Attorneys, investigators, and other NAFD personnel regularly work on behalf of individuals who are charged

with immigration crimes or who are charged with nonimmigration crimes and have immigration notifications lodged against them.

1 No counsel for any party authored this brief in whole or in

part, and no other entity or person made any monetary contribution toward the preparation and submission of this brief. Pursuant to Supreme Court Rule 37.2 & 37.3, all parties received notice

of amici curiae’s intent to file this brief.

The NACDL and NAFD have a profound interest in

assuring that 8 U.S.C. § 1324(a)(l)(A)(iv)—the criminal statute prohibiting activity that can be construed

as “encourag[ing] or induc[ing]” a noncitizen to reside

in the United States unlawfully—be declared unconstitutional so that ordinary advocacy and humane interactions with clients and their families and friends

will not be not chilled or, if undertaken, criminalized.

Amici are concerned that the statutory provision at issue in this case, 8 U.S.C. § 1324(a)(l)(A)(iv), offends

core principles protected by the First Amendment and

the Due Process Clause.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Acts of kindness, gestures of solidarity, and words of

advice—particularly advice about paths toward legal

status—all may be prosecuted under the overbroad

and vague provision at issue in this case. By seeking

to uphold the provision, the government opens the

door for the force of the government to be leveled

against all kinds of words or deeds that support people

in need. The First Amendment and the Due Process

Clause do not tolerate a criminal statute with meanings so uncertain and susceptible to overbroad and arbitrary enforcement.

Under 8 U.S.C. § 1324(a)(l)(A)(iv) (Subsection (iv)),

any person who “encourages or induces an alien to

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

or in reckless disregard of the fact that such coming to,

entry, or residence is or will be in violation of law” commits a felony punishable by up to five years in prison.

Subsection (iv)’s terms have broad application, tying

criminal culpability to any statement or act that “encourages or induces” undocumented noncitizens to enter the United States—or, even more problematic for

interactions of members of the NACDL and NAFD

with their noncitizen clients, to remain in the country

once they are already here. Not only is Subsection (iv)’s

scope unduly broad, but also the precise contours of its

broad reach are impossible to pin down. Accordingly,

in addition to criminalizing activity protected by the

First Amendment in violation of the overbreadth doctrine, Subsection (iv) also violates the Due Process

Clause’s void-for-vagueness doctrine.

This Court has already provided a template for holding that Subsection (iv) violates the prohibition on

overbroad and vague criminal laws that chill speech.

In Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002), this Court affirmed the Ninth Circuit’s invalidation of a child pornography statute as overbroad under the First Amendment. The statute in Free Speech

Coalition suffered the same combination of overbreadth and vagueness as Subsection (iv).

In contrast, in United States v. Williams, this Court

approved the child pornography statute—but only after Congress corrected its overbreadth, providing definitional sections and context that limited the meaning

of statutory terms, rather than relying on “wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.” 553 U.S.

285, 306 (2008). The contrast between the original

statute in Free Speech Coalition and its successor in

Williams shows why this Court should hold Subsection

(iv) unconstitutional, leaving Congress to write any remedial definitions preventing the statute from chilling

the exercise of rights protected by the First Amendment.

Even more so than the statute in Free Speech Coalition, Subsection (iv) suffers from overbreadth and

vagueness. Justice Scalia’s example in Williams of “abstract advocacy” protected under the First

Amendment—“I encourage you to obtain child pornography[,]” Williams, 553 U.S. at 300—is the same kind

of “abstract advocacy” swept in under the language of

Subsection (iv). “[E]ncourages or induces” covers such

a broad range of speech that ordinary people have no

way of knowing what the provision outlaws and what

it permits, thereby chilling legitimate speech. The

broad language is especially problematic in the context

of legal representation because lawyers and legal staff

routinely interact with clients and their families and

friends who cannot be encouraged to remain in the

United States under Subsection (iv)

Nor is the overbreadth problem solved by clever interpretation. Reading the statute to mean something

other than its plain words would violate the separation

of powers because rewriting the statute to narrow its

scope would constitute a serious invasion of the legislative domain and sharply diminish Congress’s incentive to fix the law, as it did after Free Speech Coalition.

See United States v. Stevens, 559 U.S. 460, 481 (2010)

(“To read [the statute] as the Government desires requires rewriting, not just reinterpretation.”). And judicial construction would not resolve the chilling effect

of the statutory words on ordinary people.

This Court’s Due Process Clause jurisprudence has

established that vagueness issues are especially acute

in the First Amendment context. Vill. of Hoffman Ests.

v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 499

(1982) (“If, for example, the law interferes with the

right of free speech or of association, a more stringent

vagueness test should apply.”). Although vagueness

was not included in the question presented, aspects of

this Court’s vagueness jurisprudence provide context

supporting overbreadth under the First Amendment.

First, this Court has held unconstitutional statutes

that, like Subsection (iv), depend on third persons’

reactions to what the defendant does. See Coates v.

City of Cincinnati, 402 U.S. 611, 614 (1971) (invalidating a statute that criminalized “annoying” conduct because “[c]onduct that annoys some people does not annoy others”). Second, the inherent malleability of Subsection (iv)’s broad terms affords prosecutors and law

enforcement officers unrestrained discretion and

therefore invites arbitrary and selective enforcement.

Grayned v. City of Rockford, 408 U.S. 104, 108‒09

(1972). Third, Subsection (iv)’s vagueness fails “to ensure that ambiguity does not chill protected speech.”

F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239,

253‒54 (2012).

Lastly, the government in its petition claims that invalidation of Subsection (iv) “will continue to be a substantial impediment to the nationwide administration

of the immigration laws.” Pet. 23. But the statute is

not often prosecuted. When it is, it almost always accompanies other charges that more clearly and specifically cover the prohibited conduct—as in the present

case. Holding Subsection (iv) unconstitutional does not

impede enforcement of immigration laws.

For these reasons, the Court should find that Subsection (iv)’s overbreadth and vagueness render the

statute facially unconstitutional. By doing so, the

Court can avoid criminalizing a vast pool of potential

speech that creates special risks of chilling protected

conduct of criminal defense lawyers, investigators, and

staff whose obligation is to zealously represent persons

who are noncitizens.

ARGUMENT

I. THIS COURT’S CONTRASTING DECISIONS IN

FREE SPEECH COALITION AND WILLIAMS

PROVIDE A TEMPLATE FOR AFFIRMING

THE NINTH CIRCUIT.

This Court’s decisions in Free Speech Coalition and

Williams provide before-and-after pictures that illustrate why Subsection (iv) is unconstitutionally overbroad. Like the statute in Free Speech Coalition, Subsection (iv)’s plain text covers conduct and speech protected by the First Amendment. Unlike the amended

statute in Williams, Subsection (iv) lacks the definitional sections and “narrowing context” that would

clarify the otherwise uncertain meaning of broad statutory language. This Court should follow the template

those cases provide, striking down Subsection (iv)’s

criminalization of language that “encourages or induces” noncitizens as overbroad and leaving the task

of any rewriting of the statutory language to Congress.

A. In Free Speech Coalition, the Court Affirmed the Ninth Circuit’s Holding That an

Overbroad Child Pornography Statute Infringed on First Amendment Rights.

In the Child Pornography Prevention Act of 1996,

Congress criminalized “any visual depiction, including

any photograph, film, video, picture, or computer or

computer-generated image or picture,” that “is, or appears to be, of a minor engaging in sexually explicit

conduct.” H.R. 4123, 104th Cong. § 3 (1996). The Ninth

Circuit held that the statute, by criminalizing images

that “appear to be” of a minor, violated the First

Amendment for its overbreadth and the Due Process

Clause for its vagueness. Free Speech Coalition v.

Reno, 198 F.3d 1083, 1094 (9th Cir. 1999), aff'd sub

nom. Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002). This Court affirmed based on First Amendment overbreadth, holding that a statute is invalid if

it criminalizes “lawful speech as the means to suppress

unlawful speech.” 535 U.S. at 255.

This Court recognized an exception to First Amendment rights for child pornography in New York v. Ferber, 458 U.S. 747 (1982), but required consideration

not only of how much protected speech is criminalized,

but also whether the statute chills the free exercise of

speech and activities protected by the First Amendment. Free Speech Coalition, 535 U.S. at 255 (“The

overbreadth doctrine prohibits the Government from

banning unprotected speech if a substantial amount of

protected speech is prohibited or chilled in the process.”). The statute was not saved by an affirmative

defense imposing a burden on the defendant to prove

the material was lawful. Id. at 255‒56. Because the

First Amendment required “a more precise restriction”

than provided in the statute, it was unconstitutionally

overbroad, so the Court had no need to address the

statute’s vagueness. Id. at 258.

B. In Williams, The Court Upheld Congress’s

Rewrite of the Child Pornography Statute

Because its Definitional Specificity Protected Against Overbreadth.

The Court spoke in Free Speech Coalition, and Congress heard the message, rewriting the statute to address the areas of vagueness and overbreadth. When

the new statute was challenged, this Court upheld it,

finding that, after “Congress went back to the drawing

board,” the amended statute’s clarifications and definitional provisions rendered it constitutionally valid.

Williams, 553 U.S. at 289, 307. Five new express provisions saved the statute: 1) an actual knowledge requirement that applied to each element of the statute;

2) a narrow meaning, derived from context, of the

terms “promotes” and “presents;” 3) a shift in focus

onto the subjective belief of the defendant rather than

the subjective belief of others; 4) a mens rea that applies regardless of whether a reasonable person would

have that state of mind; and 5) a narrow and explicit

description of the required actus reus. Id. at 293‒98.

In finding the amended statute neither overbroad

nor vague, this Court credited the steps Congress took

to define its scope after its predecessor version was declared unconstitutional. Between Free Speech Coalition and Williams, Congress “responded with a carefully crafted attempt to eliminate” the constitutional

problems the Court had identified in the earlier statue.

Id. at 307. This Court explained the legislative narrowing that saved the successor statute from both an

overbreadth and a vagueness challenge, especially the

sections defining “sexually explicit conduct” and “the

commonsense canon of noscitur a sociis” used to limit

the otherwise broad meaning of “promotes” and “presents.” Id. at 293–94; see also Holder v. Humanitarian

Law Project, 561 U.S. 1, 20‒21 (2010) (noting that

“Congress also took care to add narrowing definitions

to the material-support statute over time,” which “increased the clarity of the statute’s terms”).

The five key provisions that saved the rewrite in Williams are not present here. Rather, “encourages” and

“induces” appear by themselves and without definition, retaining their broad, nebulous meaning. As the

Court noted in Williams, the First Amendment invalidates statutes whose terms’ meanings depend on

“wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.”

Williams, 553 U.S. at 306.

C. In Packingham, the Court Followed Free

Speech Coalition, Emphasizing the Importance of Free Speech on the Internet.

This Court’s protection of speech in Free Speech Coalition is in the mainstream of this Court’s First

Amendment jurisprudence. This Court recently addressed overbreadth concerns, citing to Free Speech

Coalition, where a statute implicated free speech on

the Internet. Packingham v. North Carolina, 137 S.

Ct. 1730, 1735–37 (2017). In doing so, the Court recognized that First Amendment rights in “a street or a

park” extend to the “vast democratic forums of the Internet in general, and social media in particular.” Id.

at 1735 (citing Reno v. ACLU, 521 U.S. 844, 868

(1997)). Broadly worded statutes reach protected

speech, both traditional and as enhanced by social media. The “plainly legitimate sweep” of a statute like

Subsection (iv) remains narrow, while an ever more

“substantial number of its applications are unconstitutional.” Stevens, 559 U.S. at 473 (citation omitted).

In Packingham, the Court concluded that a statute

prohibiting sex offenders from accessing social networking websites was unconstitutionally overbroad

because the statute was not narrowly tailored to avoid

burdening substantially more speech than necessary

to further the government’s legitimate interests. 137

S. Ct. at 1736. The Court applied Free Speech Coalition

to emphasize that the seriousness of the matter addressed by the statute did not diminish the need to

limit the statute’s scope. Id. As in Williams, the Court

emphasized that a narrower statute could legitimately

criminalize speech—“the First Amendment permits a

State to enact specific, narrowly tailored laws”—but

the law in question generally barred access to the Internet. Id. at 1737.

The Court in Packingham also referenced the “vast

democratic forums of the Internet” as one of the most

important places for the exchange of views in the modern era. Id. at 1735 (quoting, ACLU, 521 U.S. at 868).

“In short, social media users employ these websites to

engage in a wide array of protected First Amendment

activity on topics ‘as diverse as human thought.’” Id.

(quoting ACLU, 521 U.S. at 852). Subsection (iv)’s

overbreadth implicates the expanded town hall of social media. Does “friending” or “liking” on Facebook encourage or induce residence when the person friended

or liked may be undocumented? Does blogging or commenting against enforcement of immigration laws constitute a felony by encouraging individual aliens to remain in the country without documents? What about

signing an online petition in support of lawful status

for certain individuals or categories of undocumented

persons? Packingham reinforces the need for narrow

definitions to avoid infringing on First Amendment

rights.

II. SUBSECTION (iv)’s PLAIN MEANING COVERS

BROAD EXPANSES OF PROTECTED SPEECH.

“[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as

taking their ordinary . . . meaning . . . at the time

Congress enacted the statute.’” New Prime Inc. v.

Oliveira, 139 S. Ct. 532, 539 (2019) (quoting Wisconsin

Central Ltd. v. United States, 138 S. Ct. 2067, 2074

(2018) (quoting Perrin v. United States, 444 U.S. 37, 42

(1979)). The ordinary meaning of “encourages or induces” implicates broad ranges of conduct and speech,

especially in the context of legal representation.

A. The Natural Meaning of the Text Covers Numerous Everyday Situations.

Taking the statutory terms at face value, a vast

range of protected speech and conduct could amount to

encouragement or inducement, especially when tied to

“residing in” the United States. Would soup kitchen

managers or low-income shelters or church groups

that serve a hot meal on a winter’s day, knowing that

undocumented noncitizens are among their clientele,

be liable for encouragement? 2 Would a volunteer who

provides a group of undocumented immigrants with

English language tutoring “encourage” them to remain

in the country? Would a good Samaritan who refers a

person to a soup kitchen or provides clothing or shelter

potentially commit a crime? These acts broadcast a

message of care and compassion that may inspire undocumented immigrants to stay in the country. Such

activities by schools, health clinics, and religious organizations, and virtually any other actual assistance

to or expressions of support for undocumented immigrants, could constitute felonies.

2 During previous oral argument, the government conceded in

response to Justice Kavanaugh’s soup kitchen hypothetical that

such charitable efforts “might violate the statute.” United States

v. Sineneng-Smith, No. 19-67, 2020 WL 907832, *8–9 (U.S. Oral.

Arg. 2020). The government claimed that the Court need not

worry because 8 U.S.C. § 1621 exempted humanitarian efforts,

but that statute is limited to state and local governments. Further, Free Speech Coalition found that potential defenses were inadequate to protect First Amendment rights. 535 U.S. at 255–56;

see also United States v. Delgado-Ovalle, No. 13-20033-07-KHV,

2013 WL 6858499, at *7 (D. Kan. Dec. 30, 2013) (The courts

equating “encourage” with “help” “could potentially result in the

prosecution of soup kitchen managers, low-income shelters, and

immigration attorneys giving advice to undocumented residents

about their options to remain in the United States and pursue

citizenship.”).

The commonly understood and dictionary meanings

of “encourages” and “induces” chill the activities of normal people who could be prosecuted under the text’s

plain meaning. Subsection (iv)—by its plain terms and

scope—criminalizes protected speech. This Court in

Williams cited the statement “I encourage you to obtain child pornography” as an example of speech that

the government could not constitutionally regulate.

Williams, 553 U.S. at 300; see Free Speech Coalition,

235 U.S. at 253–54 (“Without a significantly stronger,

more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct.”) (emphasis

added). Worse yet, the very threat of prosecution under Subsection (iv) deters people from exercising their

free speech rights. The only sure way to avoid prosecution under the statute is self-censorship. Clergy, teachers, doctors, friends, and family members who might

otherwise speak or write about immigration-related issues will “‘steer far wide[] of the unlawful zone.” Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (quoting

Speiser v. Randall, 357 U.S. 513, 526 (1958)). As a result, “the free dissemination of ideas may be the loser.”

Id. at 379 (citation omitted).

The ordinary meaning of Subsection (iv) also burdens associational rights under the First Amendment.

Given the indefiniteness of “encourages or induces,”

Subsection (iv) interferes with the freedom to engage

in association of beliefs and ideas in support of undocumented immigrants. See NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 460 (1958) (noting “the close

nexus between the freedoms of speech and assembly.”).

The provision can be read to criminalize working with

organizations and interest groups dedicated to promoting the goals and rights of noncitizens. The First

Amendment does not allow the freedoms of speech and

association to be so inhibited, especially when it comes

to matters of public debate and discourse such as immigration. The overbreadth and vagueness doctrines

protect people who might otherwise forfeit speech and

association in response to a criminal statute with such

a nebulous standard for guilt.

As this Court recognizes, difficulty in “determin[ing]

whether the incriminating fact . . . has been proved” is

not what invalidates a statute; instead, the question is

whether it is impossible to determine “precisely what

that [incriminating] fact is.” Williams, 553 U.S. at 306.

The endless array of cases that are prosecutable under

Subsection (iv) illustrates its indeterminacy about

what kind of facts are incriminating. From the outset,

Subsection (iv) was obviously unclear. In 1952, testimony by then-Attorney General James P. McGranery

expressed concerns that Section 274—the 1952 encouragement provision—was vague, needed to be

“clarified,” and was “seriously inadequate.” H. Comm.

on the Judiciary, 82d Cong., Hearings Before the President’s Comm’n on Immigr. and Naturalization 1350–

51 (Comm. Print 1952) (statement of the Hon. James

P. McGranery, Att’y Gen. of the United States).

Government assurances of narrow enforcement do

not insulate the statute from its unconstitutionality.

“[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse

oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it

responsibly.” Stevens, 559 U.S. at 480. Promises of fair

enforcement “do not neutralize the vice of a vague

law.” Baggett, 377 U.S. 373. “It is the statute, not the

accusation under it, that prescribes the rule to govern

conduct and warns against transgression.” Lanzetta v.

New Jersey, 306 U.S. 451, 453 (1939). Allowing prosecutors to “shap[e] a vague statute’s contours through

their enforcement decisions” would transfer to them a

job that belongs to Congress. Sessions v. Dimaya, 138

S. Ct. 1204, 1228 (2018) (Gorsuch, J., concurring).

B. Subsection (iv)’s Overbreadth Directly Affects Legitimate Activities of Law Firms and

Public Defenders Representing Noncitizens.

Another peril of Subsection (iv)’s overbroad and

vague language is its stifling effect on constitutionallyprotected legal advice and representation. This hits

home for the NACDL and NAFD. Criminal defense

lawyers, investigators, and other legal professionals

whose practice intersects with immigration issues can

avoid prosecution “only by restricting their conduct to

that which is unquestionably safe.” Baggett, 377 U.S.

at 372. 3 On one side, a rock: attorneys must be able to

advise clients unencumbered by fear of recrimination,

consistent with the professional and ethical duty to

their clients to provide zealous advocacy. On the other

side, a hard place: Subsection (iv) criminalizes any behavior that could be construed as encouraging an undocumented client to come to, enter, or reside in the

United States unlawfully.

Defense attorneys are constantly working in the

mixed field of immigration and criminal law. Lawyers

represent defendants, witnesses, and victims who,

along with their families, are typically already residing in this country and need legal advice to navigate

an exceptionally complex area of the law. See Arizona

3 The Court has recognized the interconnected nature of criminal defense and immigration matters. See Dimaya, 138 S. Ct. at

1213 (“[W]e have observed that as federal immigration law increasingly hinged deportation orders on prior convictions, removal proceedings became ever more intimately related to the

criminal process.”) (internal quotation marks and citation omitted).

v. United States, 567 U.S. 387, 395 (2012) (“Federal

governance of immigration and alien status is extensive and complex.”). And the stakes for these clients

are exceptionally high. See Dimaya, 138 S. Ct. at 1213

(noting, in the void-for-vagueness context, the “grave

nature of deportation,” a “‘drastic measure’ often

amounting to lifelong ‘banishment or exile’”); Lee v.

United States, 137 S. Ct. 1958, 1968 (2017) (“preserving the client’s right to remain in the United States

may be more important to the client than any potential

jail sentence”).

Basic to such advice are the immigration rules pertaining to rights lost by failing to establish continuous

presence in the United States, the risks of inadmissibility by leaving the country, and the chances for adjustment of status while present. See, e.g., 8 U.S.C.

§§ 1229b(b), 1182(a)(9)(A)(ii) & 1182(a)(9)(B)(i). Specifically, in the course or representing an undocumented client, a lawyer may inform a client that relief

from removal may be available if he or she can establish continuous presence; advise clients about the risks

involved with leaving the United States, including the

possibility of triggering grounds of inadmissibility;

and share a professional opinion with a client about

the strength of the case. A lawyer providing advice on

these subjects could have concerns, or even decline to

present advice to clients, for fear of facing criminal

prosecution for encouraging clients to stay in the country in violation of civil immigration laws.

Criminal defense lawyers are also directly at risk because of three non-immigrant benefits that often apply

to persons unlawfully present in the United States and

enmeshed in the criminal justice system: the S-visa for

potential witnesses with information valuable to the

government; the T-visa for victims of severe forms of

human trafficking; and the U-visa for nonimmigrant

victims of crimes. 8 U.S.C. § 1101(a)(15)(S), (T), and

(U). The infinite permutations of needed advice to witnesses, victims, defendants, and their family members

implicate what could easily be considered encouraging

or inducing a person known to be unlawfully in the

country to stay by providing truthful and warranted

advice.

In Gentile v. State Bar of Nevada, this Court highlighted the effects of a state attorney discipline rule

barring extrajudicial statements that leaves “the lawyer [with] no principle for determining when his remarks pass from the safe harbor . . . to the forbidden[.]”

501 U.S. 1030, 1049 (1991). Given the breadth and imprecision of Subsection (iv), an ethical attorney who

seeks to practice within the bounds of professional responsibility by honestly discussing the legal consequences of any proposed course of conduct with a client

may still be held liable—or nevertheless be chilled—

for conduct that approximates encouragement.

Criminal defense lawyers are but one group whose

work is undermined and harmed by the operation of

Subsection (iv). Other professionals will experience

similar difficulties in discerning where impermissible

encouragement begins and ends. A priest might encourage a new noncitizen parishioner to return on future Sundays. A doctor might ask an undocumented

patient to schedule a follow-up appointment. Teachers

and other state employees who interact with migrant

children and their families might encourage attendance in school, enrolling in college, and other improvements in living conditions. These professionals face

ethical dilemmas when their words risk running afoul

of Subsection (iv).

Nor should this Court accept the government’s assertion that a “financial gain” enhancement defeats

Mr. Hansen’s overbreadth argument. After all, an

enhancement does nothing to change the underlying

elements of the offense. The differing penalties for enhanced and unenhanced violations are irrelevant to

overbreadth and vagueness, instead illustrating the

statute’s extensive breadth in normally covering activity involving no remuneration. The predicate offense is

the same either way, and the penalty enhancement

merely represents an aggravated version of the basic

Subsection (iv) crime. The government is correct that

“a specific penalty is a prerequisite to enforcement.”

Br. 48 (citing United States v. Evans, 333 U.S. 483, 495

(1948)). But Evans is inapposite. In that case, the statute proscribed two types of conduct and provided a

penalty for only one. Here, the situation is flipped: the

statute proscribes one type of conduct and provides

two penalty ranges, depending upon the presence of an

aggravating fact—financial gain. And that very case

warned against the kind of grasping interpretation the

government urges, saying as we say: “It is better for

Congress, and more in accord with its function, to revise the statute than for us to guess at the revision it

would make.” Evans, 333 U.S. at 495.

Despite the government’s protestations, United

States v. Alvarez, 567 U.S. 709 (2012), fully supports

the Ninth Circuit’s decision in the present case. Br.

47–48. In Alvarez, the defendant lied about his military service, which constituted a misdemeanor, and received an enhanced sentence under the Stolen Valor

Act of 2005 for lying about earning the Congressional

Medal of Honor. Alvarez, 567 U.S. at 713–14. This

Court reversed the conviction, not because of the enhancement but because criminalizing a certain kind of

lie impinged on free speech rights. Id. at 717–23. The

Court had no reason to reach the relevance of penalty

enhancements—the charged version of the statute was

unconstitutional. Indeed, the Court abrogated the

Tenth Circuit case that upheld the statute in a prosecution that did not involve the Congressional Medal of

Honor enhancement. Id. at 714; see United States v.

Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010), reversed, 667 F.3d 1146 (10th Cir. 2012), vacating reversal and reinstating district court dismissal of information, 684 F.3d 962 (10th Cir. 2012).

As in Alvarez and the present case, it is the unenhanced offense that infringes on the First Amendment,

requiring that both the base and its enhanced version

be invalidated. Alvarez, like the Free Speech Coalition

and Williams pairing, provides a before-and-after illustration: the Stolen Valor Act of 2005 violated the

First Amendment, so Congress—not the Judicial

Branch—rewrote the statute as the Stolen Valor Act of

2013, addressing directly the First Amendment concerns by eliminating the “falsely represents himself”

language and substituting conventional fraud language in 18 U.S.C. § 704(b). As in Alvarez, the Court

should invalidate the statute for infringing on First

Amendment rights, leaving to Congress any rewrite of

the statute in light of its constitutional infirmity.

III. JUDICIAL CONSTRUCTION CANNOT SAVE

THE OVERBROAD STATUTE.

The government attempts to narrow the meaning of

“encourages or induces” by invoking aiding-and-abetting or criminal solicitation provisions. However, this

proposal defies basic principles of statutory interpretation. Subsection (iv) lacks a definitional provision

limiting the meaning of “encourages or induces.” Likewise, the provision does not provide context for application of the canon of noscitur a sociis. In Williams,

this Court applied the canon when considering

whether “promotes” and “presents” were impermissibly vague. Williams, 553 U.S. at 294 (assigning a narrower meaning to “presents” and “promotes,”

otherwise susceptible to “wide-ranging meanings,”

where the law listed them with “distributes,” “advertises,” and “solicits”). But here, unlike the statutory

provision in Williams, “encourages” and “induces” appear by themselves and without definition—retaining

their broad, nebulous meaning.

In cases outside the context of Subsection (iv), this

Court and others have given the statutory terms “encourages” or “induces” a much broader meaning than

what the government proposes here. See, e.g., Int’l

Bhd. of Elec. Workers v. NLRB, 341 U.S. 694, 701–02

(1951) (‘‘The words ‘induce or encourage’ are broad

enough to include in them every form of influence and

persuasion.’’); State v. Melchert-Dinkel, 844 N.W.2d

13, 23–24 (Minn. 2014) (holding that the words “encourages” and “advises” must be severed from state

statute that prohibits encouraging, advising, or assisting another person’s suicide because “the common definitions of ‘advise’ and ‘encourage’ broadly include

speech that provides support or rallies courage”). “To

read [Subsection (iv)] as the Government desires requires rewriting, not just reinterpretation.” Stevens,

559 U.S. at 481. 4

The government asserts that the legislative history

indicates that Subsection (iv)’s broad terms actually

refer to criminal solicitation and facilitation. That assertion lacks merit. With direct aiding-and-abetting

language

the

adjacent

subsection

4 Subsection (iv) lacks another important feature of criminal

aiding-and-abetting and solicitation statutes: the conduct assisted in those statutes must be a criminal offense, not just a civil

infraction. Inchoate crimes require commission of a crime by another, but Subsection (iv) applies to both criminal and civil violations of the immigration laws. “As a general rule, it is not a crime

for a removable alien to remain present in the United States.”

Arizona, 567 U.S. at 407.

(§ 1324(a)(1)(A)(v)), the government provides no reason why, if such language were intended, Congress

would not have used such language in Subsection (iv).

“Where Congress includes particular language in one

section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or exclusion.” Gozlon-Peretz v. United States,

498 U.S. 395, 404 (1991) (quoting Russello v. United

States, 464 U.S. 16, 23 (1983)). “Expressio unius est exclusio alterius.” Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 168

(1993).

The history that the government presents here is inapt, citing earlier immigration laws as the direct precursors of Subsection (iv). Br. 4–7. However, the government’s version of the statutory history glosses over

Subsection (iv)’s non-linear development, as its scope

became broader and much less defined over time. In

particular, the provision that Congress enacted in

1952 as part of the Immigration and Nationality Act

(INA) deviated from earlier immigration laws in 1885

and 1917, which targeted only the use of contract labor

to draw immigrants into the country. See Act of Feb.

26, 1885, ch. 164, § 3, 23 Stat. 333 (prohibiting ‘‘knowingly assisting, encouraging or soliciting the migration

or importation of any alien . . . to perform labor or service of any kind under contract or agreement”); Act of

Feb. 5, 1917, ch. 29, § 5, 39 Stat. 879 (prohibiting “induc[ing], assist[ing], encourag[ing], or solicit[ing] the

importation of migration of any contract laborer . . .

into the United States”). The 1952 provision, on the

other hand, became untethered from a focus on labor

contractors. See Pub. L. No. 82-414, § 274, 66 Stat.

163, 228–29 (1952).

The 1952 amendments also removed the words “assist” and “solicit” that might have narrowed the meaning of the otherwise vague standard of encouragement.

The current version of Subsection (iv), as amended in

1986, applies not only to encouraging unlawful entry

by undocumented noncitizens without reference to

contract labor; it further criminalizes encouraging

those who are already in the country to continue to “reside” unlawfully. Subsection (iv), broader in scope and

cut loose from its specific contract-labor application,

bears little resemblance to the 1885 and 1917 statutes

on which the government relies.

The government invokes the constitutional-avoidance canon in urging this Court to adopt a narrower

construction of Subsection (iv). The problem, though,

is that the government’s reading of the provision as a

conventional criminal prohibition on facilitating or soliciting illegal activity simply inserts different words

into the statute. That reading also has no basis in Subsection (iv)’s statutory history. The government’s proposed reading thus replaces “encourages or induces”

with two verbs that Subsection (iv) plainly lacks: “solicits” and “facilitates.”

Rewriting the text of Subsection (iv) in this manner

violates separation of powers principles. Bostock v.

Clayton Cnty., 140 S. Ct. 1731, 1738 (2020) (“If judges

could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and

our own imaginations, we would risk amending statutes outside the legislative process reserved for the

people’s representatives.”); see 62 Cases, More or Less,

Each Containing Six Jars of Jam v. United States, 340

U.S. 593, 596 (1951) (“After all, Congress expresses its

purpose by words. It is for us to ascertain—neither to

add nor to subtract, neither to delete nor to distort.”).

If Congress wanted “encourage” and “induce” to carry

a similar meaning to facilitate and solicit, it could use

those terms or, at least, define “encourage” and “induce” accordingly, rather than leaving prosecutors, police, jurors, and judges to guess. “It is for the people,

through their elected representatives, to choose the

rules that will govern their future conduct.” Dimaya,

138 S. Ct. at 1227 (Gorsuch, J., concurring). Therefore,

this Court should find Subsection (iv) invalid rather

than strain to write alternative text.

IV. THE COURT’S DUE PROCESS VAGUENESS

DOCTRINE SUPPORTS THE NINTH CIRCUIT’S FINDING OF FIRST AMENDMENT

OVERBREADTH.

This Court’s vagueness doctrine should inform its

assessment of First Amendment overbreadth. A criminal statute runs afoul of the Due Process Clause for

its vagueness when it (1) fails to provide sufficient notice that would enable ordinary people to understand

what conduct it prohibits; or (2) encourages arbitrary

and discriminatory enforcement. Grayned, 408 U.S. at

(1972). Subsection (iv)’s terms implicate both interests. Where “a statute’s literal scope [reaches] expression sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of specificity

than in other contexts.” Smith v. Goguen, 415 U.S. 566,

573 (1974); accord Vill. of Hoffman Ests., 455 U.S. at

498–99.

The purpose of the fair notice element of the void-forvagueness doctrine “is to enable the ordinary citizen to

conform his or her conduct to the law.” City of Chicago

v. Morales, 527 U.S. 41, 58 (1999); see also Lanzetta,

306 U.S. at 453 (“No one may be required at peril of

life, liberty or property to speculate as to the meaning

of penal statutes.”). A criminal law provides inadequate notice where the meaning of its terms depends

on “wholly subjective judgments without statutory

definitions, narrowing context, or settled legal meanings.” Williams, 553 U.S. at 306. “[T]he [vagueness]

doctrine is a corollary of the separation of powers—requiring that Congress, rather than the executive or judicial branch, define what conduct is sanctionable and

what is not.” Dimaya, 138 S. Ct. at 1212. Subsection

(iv)’s expansive terms establish few parameters, creating intolerable doubt about what the law intends to

criminalize.

An important element of Subsection (iv)’s imprecision is its subjectivity. The statute’s dependence on the

subjective reactions of a judge or jury to a defendant’s

conduct—was an individual encouraged or induced?—

results in unconstitutional vagueness. In United

States v. L. Cohen Grocery Co., for example, the Court

held that a prohibition on “unjust or unreasonable

rate[s] or charge[s]” was unconstitutionally vague because assessment of whether charges were “unjust or

unreasonable” was left entirely to the “estimation of

the court and jury.” 255 U.S. 81, 89 (1921). The Court

likewise struck down an ordinance that criminalized

behaving in a manner “annoying to persons passing

by” because “[c]onduct that annoys some people does

not annoy others,” as conduct or words that “encourages or induces” some people does not others, leaving

the law without specifying any standard of conduct at

all. Coates, 402 U.S. at 612–14. And in Morales, the

Court invalidated a statute that prohibited loitering

“with no apparent purpose,” because it improperly left

“‘it to the courts to step inside and say who could be

rightfully detained, and who should be set at large.’”

527 U.S. at 60–61 (quoting United States v. Reese, 92

U.S. 214, 221 (1876)).

Subsection (iv)’s failure to specify an explicit mens

rea standard for “encourages or induces” exacerbates

the notice problem. A statute’s constitutionality under

the vagueness doctrine is “closely related” to whether

it contains a mental requirement. See Colautti v.

Franklin, 439 U.S. 379, 395 (1979), abrogated on other

grounds by Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) (“Because of the absence of a

scienter requirement in the provision . . . the statute is

little more than ‘a trap for those who act in good

faith.’”) (quoting United States v. Ragen, 314 U.S. 513,

524 (1942)). Further, Subsection (iv) only imposes a

knowing or reckless disregard standard to whether an

unauthorized immigrant’s entry or residence “will be

in violation of law.” Subsection (iv)’s lack of an explicit,

heightened scienter requirement contributes to the

law’s failings in meeting the demand of fair notice.

“The hazard of being prosecuted for knowing but guiltless behavior nevertheless remains.” Baggett, 377 U.S.

at 373.

The inherent subjectivity and imprecise terms of

Subsection (iv) are doubly problematic because they

create risk that charging decisions will be based on the

whims of law enforcement officials. The vagueness

doctrine requires that criminal laws “establish minimal guidelines to govern law enforcement.” Kolender

v. Lawson, 461 U.S. 352, 358 (1983) (citation omitted).

The concern is that “[v]ague laws invite arbitrary

power.” Dimaya, 138 S. Ct. at 1223 (Gorsuch, J., concurring); see also Grayned, 408 U.S. at 108–09 (“A

vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on

an ad hoc and subjective basis.”). The indeterminate

nature of what behavior might rise to the level of “encourages or induces” grants police and prosecutors unrestrained discretion, creating risk of unguided enforcement under the statute. This risk amounts to “a

denial of due process.” Goguen, 415 U.S. at 576 (finding a state law void for vagueness where its prohibition

on treating an American flag “contemptuously” permitted selective enforcement). Vagueness concerns are

especially pronounced here, where:

•

The statute threatens criminal punishment.

Vill. of Hoffman Ests., 455 U.S. at 498–99

(“The Court has . . . expressed greater tolerance of enactments with civil rather than

criminal penalties because the consequences

of imprecision are qualitatively less severe.”).

•

Criminal defense lawyers and staff are potential targets under the statute. Gentile, 501

U.S. at 1051 (“The inquiry is of particular relevance when one of the classes most affected

by the regulation is the criminal defense bar,

which has the professional mission to challenge actions of the state.”).

•

The statute not only creates the potential for

arbitrary treatment of individuals but also

provides a potential tool for discriminatory

enforcement against disfavored classes.

Kolender, 461 U.S. at 360 (vague statute provided potential tool for “harsh and discriminatory enforcement”).

In Gentile, this Court emphasized the special interest in avoiding vagueness when a law potentially affects criminal defense lawyers because of their vital

role in serving as a check on law enforcement, both

through their speech and through their actions defending clients. 501 U.S. at 1051 (noting that the sanctioned attorney “succeeded in preventing the conviction of his client, and the speech in issue involved criticism of the government”). Subsection (iv) similarly affects criminal defense lawyers and immigration attorneys who often defend against state action and possible instances of governmental overreach. A law as

imprecise as Subsection (iv) invites selective treatment of these individuals. Subsection (iv) can be

wielded against “particular groups deemed to merit

[prosecuting officials’] displeasure.” Papachristou v.

City of Jacksonville, 405 U.S. 156, 170 (1972) (quoting

Thornhill v. Alabama, 310 U.S. 88, 97–98 (1940)).

The concern about arbitrary enforcement should apply with special force in the context of immigration,

which raises the stakes of discriminatory treatment.

With such unfettered discretion, executive branch enforcement officials could in theory wield that power to

target individuals who are allied with or who support

specific groups of undocumented noncitizens based on

race, religion, or national origin, all under the guise of

controlling illegal immigration. Members of the criminal defense bar, who frequently advocate on behalf of

minority communities and help them secure access to

the courts to vindicate their rights, could end up bearing the brunt of enforcement under Subsection (iv).

See NAACP v. Button, 371 U.S. 415, 434 (1963) (declaring a state law unconstitutional where it risked

“smothering’’ efforts to pursue litigation on behalf of

minorities).

The facial vagueness of Subsection (iv) supports its

invalidation for overbreadth under the First Amendment. As with this Court’s grant of the facial vagueness challenge to the residual clause of 18 U.S.C. § 16’s

definition of “crime of violence,” as incorporated into

the Immigration and Nationality Act, Subsection (iv)

should be stricken, whether or not some underlying

conduct would fall within the scope of a constitutional

statute. See Dimaya, 138 S. Ct. at 1211; Johnson v.

United States, 576 U.S. 591, 602 (2015) (finding the residual clause of the Armed Career Criminal Act unconstitutionally vague without considering its application

to the petitioner, and noting that the Court’s ‘‘holdings

squarely contradict the theory that a vague provision

is constitutional merely because there is some conduct

that clearly falls within the provision’s grasp”). “The

question is not whether discriminatory enforcement

occurred [in the case] . . . but whether [the law] is so

imprecise that discriminatory enforcement is a real

possibility.” Gentile, 501 U.S. at 1051.

Vague statutes that implicate substantial First

Amendment interests are facially invalid. See

Kolender, 461 U.S. at 358 n.8 (affirming the validity of

facial vagueness challenges if the law “reaches a substantial amount of constitutionally protected conduct”)

(cleaned up); Morales, 527 U.S. at 55 (same); see also

Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 60

(1976) (noting that a facial vagueness challenge may

proceed where the statute has a substantial “deterrent

effect” on protected expression). And as demonstrated

above, Subsection (iv)’s standardless language and its

potential for arbitrary enforcement impose a chilling

effect on First Amendment liberties.

V. THE GOVERNMENT’S CLAIM THAT SUBSECTION (iv) IS ESSENTIAL TO IMMIGRATION

ENFORCEMENT IS BELIED BY ITS REDUNDANCY AND RELATIVELY INFREQUENT

USE.

The government's claim that Subsection (iv) is a necessary component of immigration enforcement rests on

mistaken assumptions. The narrow area of actual

crime included in Subsection (iv)’s overbroad language

is covered by other statutes, the statute is not often

utilized, and the provision makes little to no difference

in sentencing.

Subsection (iv) involves relatively infrequent prosecutions that can easily be charged under other statutes. For the five years between fiscal years 2017 and

2021, according to United States Sentencing Commission data, only 197 cases could be identified as having

at least one count of conviction specifically under Subsection (iv). 5 Of those, over half came from the Southern District of Florida. At the same time, there were

zero such convictions reported from the District of Arizona and the District of New Mexico, with very few

from the other border districts of the Southern District

of California, the Western District of Texas, and the

Southern District of Texas.

In a separate analysis of the subset of cases from the

Southern District of Florida using the Public Access to

Court Electronic Records (PACER), the Subsection (iv)

charge appears to be usually used in the context of

maritime smuggling (from the territorial waters or the

high seas), which could be prosecuted under either the

smuggling or transportation subsections, sometimes

with specific aiding-and-abetting counts under Subsection (v). From searching PACER in other districts

with convictions under Subsection (iv), the pattern is

the same: underlying conduct usually fits a more specific statute or aiding-and-abetting the specific offense.

In contrast to the relatively few cases identified under Subsection (iv), the Sentencing Commission data

5 The data used for this analysis were extracted from the U.S.

Sentencing Commission’s “Individual Offender Datafiles” spanning fiscal years 2017 to 2021. The Commission’s “Individual Offender Datafiles” are publicly available for download on its website.

U.S.

Sent’g

Comm’n,

Commission

Datafiles,

https://www.ussc.gov/research/datafiles/commission-datafiles.

While Commission data might undercount the number of Subsection (iv) cases, because many entries lack a recorded subsection,

this number stands in stark contrast to the 10,633 cases identified as having at least one count of conviction under Subsection

(ii), and the over 1,140 cases identified as having at least one

count of conviction under Subsection (iii) during the same time

period.

reflect that the true immigration crimes covered by the

subsections of § 1324 that address smuggling, harboring, and transportation (all of which include accomplice liability) were prosecuted in 16,674 cases nationally during the same five years. The Subsection (iv)

cases appear to almost always involve conduct that can

be prosecuted under other subsections of § 1324. To

the extent that fraud and profit are involved, as in the

present case, the broad mail and wire fraud statutes,

as well as the specific statutes governing immigration

fraud, cover the potential conduct. Striking Subsection

(iv), rather than impairing immigration enforcement,

would simply remove a redundant provision that, as a

practical matter, does nothing to secure our borders.

Further, the seldom-used and redundant statute,

when prosecuted, does not alter outcomes under the

Sentencing Guidelines. Under U.S.S.G. § 2L1.1, the

Sentencing Commission sets out the base offense level

and specific offense characteristics related to smuggling, transporting, and harboring aliens. Although

Appendix A to the Guidelines Manual generally references § 1324(a), the guideline does not appear to address Subsection (iv). In any event, under the grouping

rules, accompanying counts would run any punishment concurrently with other immigration offenses.

U.S.S.G. § 3D1.2(d). And if the accompanying counts

included fraud under U.S.S.G. § 2B1.1 or other higher

guidelines, the effect would be negligible under

U.S.S.G. § 3D1.4. Aside from redundancy, Subsection

(iv) has little to no practical effect at sentencing.

The Court should strike the statute as overbroad, in

violation of the First Amendment, with no concern

that such action would impair our Nation’s enforcement of immigration laws.

CONCLUSION

Subsection (iv)’s First Amendment overbreadth affords too little notice to individuals about what it criminalizes and grants too much discretion to law enforcement, thereby chilling and punishing protected words

and conduct. The court of appeals’ judgment should be

affirmed.

Respectfully submitted,

JEFFREY T. GREEN

MARISA WEST

REBECCA BROOKS

SIDLEY AUSTIN LLP

1501 K Street NW

Washington, DC 20005

(202) 736-8000

STEPHEN R. SADY*

Amicus Committee

National Association

Of Federal Defenders

OREGON FEDERAL PUBLIC

DEFENDER’S OFFICE

101 S.W. Main Street

Suite 1700

Portland, OR 97204

(503) 326-2123

Steve_Sady@fd.org

XIAO WANG

MEREDITH R. ASKA

MCBRIDE

NORTHWESTERN SUPREME

COURT PRACTICUM

NATHAN PYSNO

375 East Chicago Ave.

NATIONAL ASSOCIATION

Chicago, IL 60611

OF CRIMINAL DEFENSE

LAWYERS

1660 L Street, NW #12

Washington, D.C. 20036

(202) 461-7627

Counsel for Amici Curiae

February 27, 2023

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.