Encouraging illegal immigration has been ruled as a form of free speech that is protected under the First Amendment.
The ruling was handed down by a three-judge panel of the Ninth Circuit Court of Appeals, according to Politico.
The law that was struck down pre-dates the administration of President Donald Trump.
“Criminalizing expression like this threatens almost anyone willing to weigh in on the debate,” Judge A. Wallace Tashima wrote in his opinion. Tashima, an appointee of former President Bill Clinton, was supported by fellow Clinton appointee Marsha Berzon and Andrew Hurwitz, who was appointed by former President Barack Obama.
In his 42-page ruling, Tashima explained his reasoning.
“A speech addressed to a gathered crowd, or directed at undocumented individuals on social media, in which the speaker said something along the lines of ‘I encourage all you folks out there without legal status to stay in the U.S.! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization,’ could constitute inducement or encouragement under the statute,” he wrote.
“But, this general advocacy could not be considered incitement because there is no imminent breach of the peace. It would not be aiding and abetting or solicitation because it is general and is not advocating a crime. Instead, it is pure advocacy on a hotly debated issue in our society,” he added.
Tashina said the law could be construed to hold a grandmother in violation of it if she told her grandson to stay in the U.S. past the expiration date on his visa.
During a 2017 hearing in the case, Berzon foreshadowed the court’s rejection of the law.
“What is the limit of this statute?” she said then, according to Politico.
“If I have a neighbor and he’s illegal, and he comes to me and says, ‘Should I stay or should I leave? What should I do?’ and I say, ‘Stay, because they’re probably not going to find you,’ is that a crime? … Encourage is a pretty loose word; what does it mean?” she said.
Prosecutors had used the law to convict former immigration consultant Evelyn Sineneng-Smith, who encouraged illegal immigrants to apply for various government benefits they were ineligible to receive.
Sineneng-Smith was convicted on tax and mail fraud charges in addition to the law thrown out by the 9th Circuit this week. The other convictions were upheld by the 9th Circuit panel.
It was unclear if there would be an appeal. The Justice Department did not issue any comment on the ruling.
According to a press release from Immigration and Customs Enforcement at the time of her conviction, Sineneng-Smith “encouraged immigrants from the Philippines to overstay their tourist visas so they could work illegally in residential healthcare facilities.”
“Those who choose to undermine our nation’s legal immigration system will be held accountable for their actions,” said Tatum King, deputy special agent in charge of Homeland Security Investigations in San Francisco. “We will continue to work tirelessly with our law enforcement counterparts to investigate criminals who have no regard for the law and often disrupt the lives of innocent victims.”
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