Brief filed: 01/22/2020
United States v. Sineneng-Smith
United States Supreme Court; Case No. 19-67
Decision below 910 F.3d 461 (9th Cir. Dec. 4, 2018)
8 U.S.C. § 1324(a)(1)(A)(iv)’s criminalization of a 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 it would be in violation of the law is unduly broad under the First Amendment. The prohibition also violates the void-for-vagueness doctrine under the Due Process Clause of the Fifth Amendment. “Encouragement” and “Inducement” are indefinite terms and depend on subjective determinations. This provides insufficient notice to the public and invites arbitrary and selective enforcement. The statute’s failure to specify a mens rea for “encourages or induces” exacerbates this problem. The statute would also chill First Amendment-protected speech.
Elliott Schulder, Covington & Burling LLP, Washington, DC; Nathan Pysno, NACDL, Washington, DC; Stephen R. Sady, Oregon Federal Public Defender, Portland, OR.