I've written before about the case of Evelyn Sineneng-Smith, who was convicted in U.S. District Court for the Northern District of California for the crime of illegally encouraging or inducing the entry of aliens not entitled to do so under the immigration laws. The crime for which she was convicted was 8 U.S.C. Section 1324(a)(1)(A)(iv), "Bringing in and harboring certain aliens".
At the time I wrote in 2017, Sineneng-Smith had appealed her conviction to the Ninth Circuit Court of Appeals, arguing that this particular provision in the statute was unconstitutional because it infringed on her free speech rights. Sineneng-Smith, a self-styled "immigration consultant", was in business providing such counseling and the court record shows that she earned over $3 million in the process for her services. The Ninth Circuit, in its unique way, invited a host of amicus ("friend of the court") briefs on the issue, surely knowing that virtually every open-borders advocacy group in the country would pile onto such an invitation, which they did.
As I indicated in my prior blog, if the conduct-posing-as-free-speech for which Sineneng-Smith was convicted is protected, then the courts better start taking a close look at similar laws that criminalize other forms of encouraging illicit behavior such as inciting a riot, inducement to murder, ad infinitum. But, hey, this was the Ninth Circuit and about as surely as the moon follows the sun in the shift from day to night, those erudite solons of the bench did in fact ultimately rule that the provision was unconstitutional.
The federal government appealed to the Supreme Court (SCOTUS), its petition for certiorari was in due course granted, and this matter along with a host of other immigration-related cases now helps fill the SCOTUS docket to bursting at the expense of any number of other legitimate, non-immigration cases that might otherwise earn a hearing before the highest court. Such is the reality of our nation where immigration is concerned. Open borders advocates have learned how to weaponize the courts.
Along the way, at least one district court judge, facing trial of a defendant for violating the same criminal statute, threw the case out, citing the Ninth Circuit even though he was nowhere within the jurisdictional boundaries of the Ninth Circuit and therefore not bound to its dictates, particularly in a case with such a novel and untested theory of free speech rights.
Fast-forward now (I use the phrase "fast-forward" loosely) to 2019, two years after the filing of appeal with the Ninth Circuit, and a full nine years after Sineneng-Smith's conviction, and the case has been teed up for hearing at SCOTUS for this term. The government has filed its brief focusing on the long history of this provision of the immigration laws, noting that in other contexts, SCOTUS itself has reviewed the statute and found no defects.
In speaking to the case, Sineneng-Smith's attorney, Mark Fleming, is quoted by Law360 (mostly behind a paywall) as saying, "We look forward to explaining to the Supreme Court why our Constitution doesn't let the government lock someone up for giving advice, counseling, or comfort, regardless of immigration status". Well, you could have knocked me over with a feather. When non-attorneys provide legal advice for a fee — including immigration advice — they can be charged in virtually every state in the union with the offense of "practicing law without a license".
Using Fleming's view of the world as espoused in the Sineneng-Smith matter, then non-attorneys providing legal advice of any kind should also constitute protected speech. But where his livelihood is concerned, I'm sure he would find all kinds of reasons to explain why my analogy is inappropriate — after all, in the long descent of Western history from Cicero of Rome onward, if lawyers learn to be good at anything, it's the manipulation of words to bolster their arguments even when they have to spin like a top to maintain the facade of logical consistency.
The case will be heard this term and only time will tell whether or not the Court will uphold the statute. I'd like to think so, but Justice Gorsuch is an open question. It was not long ago that, joining with the liberal side of the SCOTUS bench, he eviscerated an immigration statute governing alien aggravated felons, stating in his opinion that the phrase "crime of violence" was unconstitutionally vague. I'm still puzzling over that one.