As published in the Immigration Daily on July 25, 2023
The Supreme Court on June 23, 2023 by 7 to 2 vote, Amy Coney Barrett writing for the majority in United States v. Hansen, No. 22-179 (US 2023) said that his acts of encouraging noncitizens to come to, enter or reside in the US illegally through a fraudulent adult adoption program were not protected by the First Amendment right of free speech. The Ninth Circuit had ruled favorably for Hansen saying that the statute criminalized even commonplace speech such as telling immigrants who are in the country illegally that “I encourage you to reside in the US” or advising them about available social services. But in a narrow ruling, Justice Barrett said that the provision “forbids only the intentional solicitation or facilitation of certain unlawful acts,” not including protected speech. In looking back on statutory history, she pointed out that then, as now, “encourage” had a specialized meaning that channeled accomplice liability, and when Congress later amended the provision, it added “induce”, which also carried solicitation and facilitation overtones. The question is what effect this ruling may have upon cases in which applicants for immigration such as parents of those who entered the US illegally in the past are now accused of alien smuggling –that they encouraged their children to illegally come to this country and are thus inadmissible to immigrate. The inadmissibility statute, 8 USC § 1182 (a)(6)(E)(i), INA § 212(a)(6)(E)(i), defines an alien smuggler as “[a]ny person who knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” It tracks closely with the Hansen punishment statute 8 USC § 1324(a)(1)(A)(iv), INA § 274(a)(1)(A)(iv) imposing criminal penalties for 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.” We have seen cases in the recent past in which parents have been denied immigrant visas and been required to seek waivers based upon consular officers’ suspicions that they encouraged or helped their child to illegally come to the States. This has even occurred in situations in which a widow explained that the assistance came from her dead husband only and where both parents vehemently denied ever assisting the son or daughter. Is there a Hansen argument here that USCIS and consular officers are precluded from using the alien smuggling provision for encouragement or inducement unless they have well-founded suspicions based on accomplice liability or solicitation and facilitation? In other words, that the people did more than verbally encourage individuals to enter the US illegally. The Hansen case was of interest to the Supreme Court because of its intersection with First Amendment rights, but that case involved a US citizen and not an alien. The Court earlier ruled in Kleindienst v. Mandel, 408 US 753 (1972) that noncitizens are not entitled to First Amendment protections. However, Justice Barrett made a clear ruling not based upon the First Amendment, but upon statutory interpretation, which should be just as applicable overseas to an alien as to a citizen of this country.