- Respondent Sineneng-Smith ran an "immigration consulting firm" in California. Her alien clients worked (without employment authorization) in health care.
- Although she knew that her clients could not meet the April 30, 2001, deadline for filing an application for a labor certification (required for section 245(i) relief), she charged each client $5,900 to file an application with the Department of Labor and another $900 to file with U. S. Citizenship and Immigration Services. For her services, she collected more than $3.3 million from her unwitting clients.
- For these offenses, she was charged criminally with three counts under section 274(a) (1)(A)(iv) of the INA, and convicted at the district court level on two of those counts.
- She appealed that conviction to the Ninth Circuit, making the same arguments that she had previously made to avoid conviction on those counts at the district court. The Ninth Circuit heard arguments in that case, submitted the matter for a decision, and then filed an order requesting amicus briefing (including by three named amici), including on an issue that had not been raised by the parties — whether section 274(a)(1)(A)(iv) was unconstitutionally overbroad.
- The parties were limited in their supplemental briefs to the issues raised by amici.
- The Ninth Circuit subsequently held that section 274(a)(1)(A)(iv) of the INA was unconstitutionally overbroad in violation of the First Amendment, an issue that the court itself had originally raised.
- In a unanimous opinion, written by Justice Ruth Bader Ginsburg, the Supreme Court held that the Ninth Circuit panel's decision was a departure from the principle of party presentation so drastic that it constituted an abuse of discretion. That principle provides that it is up to the parties, not the courts, to frame the issues for the court's decision — the court itself is supposed to be just a neutral arbiter of those matters.
- In a stinging rebuke, the Supreme Court vacated the Ninth Circuit's opinion and remanded the matter to the circuit court "for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties."
The Supreme Court took a swipe yesterday at the Ninth Circuit's handling of a case that involved a violation of section 274(a)(1)(A)(iv) of the Immigration and Nationality Act (INA) ("Bringing in and Harboring Certain Aliens"). In football terms, that decision was a tackle of the Ninth Circuit for its judicial activism, not a punt on the constitutionality of the statute.
The case in question, U.S. v. Sineneng-Smith, involved an individual who ran an "immigration consulting firm" in California. Her clients, primarily Filipino nationals, worked (without employment authorization) in health care. Between 2001 and 2008, respondent "assisted her clients in applying for a 'labor certification' that once allowed certain aliens to adjust their status to that of lawful permanent resident", specifically section 245(i)(1)(B)(ii) of the INA.
By way of brief background, section 245(a) of the INA allows an alien to adjust status to that of lawful permanent resident if the alien has been admitted or paroled into the United States and is eligible for an immigrant visa that is available to the applicant when the application is filed. Adjustment is an exception to the rule that an alien in the United States who is the beneficiary of an approved visa petition must travel abroad to pick up an immigrant visa and reenter the United States as a lawful permanent resident.
Section 245(c) of the INA contains various other exceptions to this rule, including that adjustment of status under section 245(a) is generally not available to an alien who accepts unauthorized employment or who is in unlawful status at the time of filing an adjustment application, or has failed to maintain continuous lawful status since entry into the United States.
Section 245(i) provides a path to adjustment for certain applicants who fall within the aforementioned exceptions and pay a fine. Most relevant to this case, section 245(i)(1)(B)(ii) allows an alien who would be barred from adjustment to apply for that relief if the alien is a beneficiary of a labor certification that was filed with the Department of Labor (DOL) on or before April 30, 2001, and was in the United States on December 21, 2000.
The respondent in this case, however, knew that her clients could not meet the deadline for filing an application for a labor certification required for section 245(i) relief. As Justice Ruth Bader Ginsburg, writing for the unanimous Court, explained:
Nevertheless, she charged each client $5,900 to file an application with the Department of Labor and another $900 to file with the U. S. Citizenship and Immigration Services. For her services in this regard, she collected more than $3.3 million from her unwitting clients.
The respondent was charged with, among other things, three counts of violating section 274(a)(1)(A)(iv) of the INA, a charge that carries with it a fine and imprisonment for up to 10 years. That provision states:
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 ... shall be punished as provided in subparagraph (B).
That clause is among five that criminalizes various acts related to the bringing in or harboring of aliens; the last criminalizes conspiring or aiding and abetting any of the preceding four criminal acts.
Specifically, respondent was charged with encouraging or inducing aliens to reside in the United States, as well as with mail fraud (not at issue before the Supreme Court). At the district court level, respondent moved to dismiss the charges premised on section 274(a)(1)(A)(iv).
Specifically, she asserted that her conduct did not violate that provision, that this provision is impermissibly vague such that she did not know that her conduct was illegal, that this provision was an illegal "content-based restraint on her speech", and that her First Amendment rights to file applications on her clients' behalf had been violated.
The district court judge denied that motion, noting that with respect to the last points, "Sineneng-Smith does not accurately describe the charges against her." As the Supreme Court would later note: "Nowhere did she so much as hint that the statute is infirm, not because her own conduct is protected, but because it trenches on the First Amendment sheltered expression of others."
Sineneng-Smith was eventually convicted on, among other grounds, two counts of encouraging or inducing an alien to remain in the United States for the purpose of financial gain, in violation of section 274(a)(1)(A)(iv) of the INA, and appealed that decision to the Ninth Circuit.
Last April 18, the circuit court heard oral arguments on appeal by an individual who was convicted of inducing several aliens to stay in the United States illegally. The provision of law used to convict was a portion of the same law that covers smuggling, transporting, and harboring or shielding illegal aliens from detection: 8 U.S.C. Section 1324. The particular clause at play prohibits "encourag[ing] or inducing 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".
Exactly five months to the day after oral argument [and while the case was on submission for decision by the circuit court], the court entered an order, "inviting" the "Federal Defender Organizations of the Ninth Circuit (as a group), and the Immigrant Defense Project and the National Immigration Project of the National Lawyers Guild to file amicus [friend of the court] briefs" on, among other things, whether the law was either unconstitutionally broad or vague, or whether it infringes on a person's First Amendment free speech rights.
Note that the organizations specifically invited to submit briefs on those subjects are all tilted toward the defendant and toward open borders and immigrant advocacy. Being in a liberal (pardon the turn of phrase) mood, the court showed its magnanimity by adding that, "This order shall not preclude any other interested organizations or groups from filing amicus or amici briefs on either side." Such generosity of spirit!
After receiving a total of nine amicus briefs in response to that invitation (as well as supplemental briefs from respondent and the government, which were limited by the Ninth Circuit to responding to the amici's briefs), the Ninth Circuit subsequently held that the terms "encourage" and "induce" in section 274A(a)(1)(A)(iv) of the INA "criminalizes a substantial amount of constitutionally-protected expression", and is therefore "unconstitutionally overbroad in violation of the First Amendment."
The circuit court held that the first four provisions of section 274(a)(1)(A) of the INA were to be read so that there was no overlap with the conduct prohibited by each, concluding: "If encouraging or inducing cannot mean bringing, transporting, moving, concealing, harboring, or shielding, what is left?" Notably, the circuit court rejected a number of different examples of actions offered by the government that would violate 274(a)(1)(A)(iv) alone (including "duping foreign tourists into purchasing a fake 'visa extension'"), concluding that other clauses in section 274(a)(1)(A) covered the conduct the government posited, and that document fraud is covered by other statutes (a conclusion that I believe is in error, and with respect to the other statutes, an inapt non-sequitur).
Instead, the Ninth Circuit determined: "These few, unpersuasive examples ... do not convince us that 'encourage' and 'induce' can be read so as not to encompass speech, even though their plain meaning dictates otherwise." That included, the circuit court held, "a substantial amount of" constitutionally protected speech as opposed to what it deemed "the statute's narrow legitimate sweep". Accordingly, the Ninth Circuit concluded, section 274(a)(1)(A)(iv) was "unconstitutionally overbroad in violation of the First Amendment."
Significantly, however, Sineneng-Smith did not even make this argument (about the provision being void because it was unconstitutionally overbroad) until after the Ninth Circuit requested the supplemental briefing that Cadman referenced in his September 2017 post, and, in fact, the government had specifically argued before the circuit that she had waived that issue by failing to raise it earlier.
The government petitioned the Supreme Court to review that decision on appeal because it overturned a federal statute. Justice Ginsburg, writing for a unanimous Court, took the Ninth Circuit to the woodshed for its handling of the case.
She first noted that under our adversarial system of adjudicating civil and criminal cases, courts are supposed to follow the "principle of party presentation", meaning that it is up to the parties, not the courts, "to frame the issues for decision." The court's role, on the other hand, is to act as a "neutral arbiter" of the matters presented by the parties.
Where, in a criminal case, the defendant is representing him- or herself, there are occasional departures from this principle and, Justice Ginsburg noted, the principle itself is "supple", such that: "There are no doubt circumstances in which a modest initiating role for a court is appropriate." (Emphasis added.)
Speaking plainly, however, she held "this case scarcely fits that bill," concluding that: "No extraordinary circumstances justified the panel's takeover of the appeal."
Specifically, the Court noted that Sineneng-Smith had raised her own vagueness and First Amendment arguments, "homing in on her own conduct, not that of others". Instead of addressing these arguments and others made by the parties, the Ninth Circuit "projected that [section 274(a)(1)(A)(iv) of the INA] might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother's plea to her alien grandchild to remain in the United States" on its own.
As an aside, Justice Ginsburg noted that Sineneng-Smith's counsel had actually "presented a contrary theory of the case in the District Court," and that the Supreme Court had "repeatedly warned that "invalidation for [First Amendment] overbreadth is 'strong medicine' that is not to be 'casually employed.'" Neither point was the basis for the Court's unanimous decision to vacate the circuit court's decision, however.
The reason the Supreme Court vacated the Ninth Circuit's decision was the fact that the circuit court itself had interjected the issue of the statute in question being overbroad, which was the basis of its own decision. Or, in the words of Justice Ginsburg, "a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit's radical transformation of this case goes well beyond the pale."
The Court held that the Ninth Circuit had "departed so drastically from the principle of party presentation as to constitute an abuse of discretion." Accordingly, in a stinging rebuke, it vacated the opinion of the Ninth Circuit, and remanded the matter "for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties."
In a concurrence, Justice Clarence Thomas wrote to express concerns about the overbreadth doctrine itself. Potentially positioning himself for a similar, future assault on the constitutional validity of section 274(a)(1)(A)(iv) (as well as other statutes), he asserted:
It appears that the overbreadth doctrine lacks any basis in the Constitution's text, violates the usual standard for facial challenges, and contravenes traditional standing principles. I would therefore consider revisiting this doctrine in an appropriate case.
Although some have argued otherwise, the Supreme Court's decision was not a "punt" on the question of whether section 274(a)(1)(A)(iv) is constitutionally overbroad, or not. That issue may be decided in a future matter, logically one that involves protected speech. Rather, the high court was tackling a plain case of judicial activism by a circuit panel that had moved far beyond its role as neutral arbiter. How plain? Just ask Cadman, or the "Notorious RBG".