“Anyone not paranoid in this world must be crazy. . . .
Speaking
of paranoia, it's true that I do not know exactly who my enemies are. But that
of course is exactly why I'm paranoid.”
― Edward Abbey, Postcards from Ed: Dispatches and Salvos from an American Iconoclast
|
The Honorable Judge Wallace Tashima |
“[W]e cannot take the government’s word for how it will enforce a broadly written statute . . . any would-be speaker who has thought twice about expressing her views on immigration was not being paranoid.”
United States v. Sineneng-Smith, 2018 WL
6314287, at *11 (9th Cir. Dec. 4, 2018), decision available here.
Players: Important First Amendment decision by Judge Tashima, joined by Judges Berzon
and Hurwitz.
Huge win for, among many others, Chief Deputy
FPD Stephen Sady and R&W Attorney Lisa Ma, D. Oregon FPD, and Carmen
Smarandoiu, Appellate Chief, N.D. Cal FPD, for Amicus Curiae Federal Defender
Organizations of the Ninth Circuit.
Facts: Sineneng-Smith ran an immigration firm that assisted
clients applying for “Labor Certifications” and green cards. Id. at *2. Retention agreements
explained that the goal was to assist clients to “obtain permanent residence
through Labor Certification.” Id.
Unfortunately, that path to permanent residence ended, yet the retention
agreements for these aliens continued for seven years. Id.
Sineneng-Smith was charged with, among other
things, 8 USC § 1324(a)(1)(A)(iv) and § 1324(a)(1)(B)(i): “encouraging or
inducing an alien to reside in the country, knowing and in reckless disregard
of the fact that such residence is in violation of the law.” Id.
Her pretrial First Amendment motion to dismiss
was denied, and she was convicted after trial. Id. After the case was first argued on appeal, the panel invited amici briefing. Id.
Issue(s): “Section 1324(a)(1)(A)(iv) (‘Subsection (iv)’)
permits a felony prosecution of any person who ‘encourages or induces an alien
to come to, enter, or reside in the United States’ if the encourager knew, or
recklessly disregarded ‘the fact that such coming to, entry, or residence is or
will be in violation of law.’ We must decide whether Subsection (iv) abridges
constitutionally-protected speech. To answer this question, we must decide what
‘encourages or induces’ means.’” Id.
at *1.
Held: “We do not think
that any reasonable reading of the statute can exclude speech. To conclude
otherwise, we would have to say that ‘encourage’ does not mean encourage, and
that a person cannot ‘induce’ another with words. At the very least, it is
clear that the statute potentially criminalizes the simple words – spoken to a
son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I
encourage you to stay here.’ The statute thus criminalizes a substantial amount
of constitutionally-protected expression. The burden on First Amendment rights
is intolerable when compared to the statute’s legitimate sweep. Therefore, we
hold that Subsection (iv) is unconstitutionally overbroad in violation of the
First Amendment.” Id. at
*1.
Of Note: The government urged a “strained” interpretation of
“encourages or induce” in a bid to save the statute. Id. at *8. Channeling Justice Scalia, Judge Tashima rejects the
effort, and adopts a natural reading that would criminalize “encouraging statements”
protected by the First Amendment. Id.
Along the way, Judge Tashima relies on the great Stevens quote: ““[T]he First Amendment protects against the
Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute
merely because the Government promised to use it responsibly.” Id. at *11.
A terrific opinion (and an
important moment of legal history), Sineneng-Smith
merits a close read.
How to Use:
On appeal Sineneng-Smith raised a First Amendment challenge: the panel asked
for amicus briefing on an overbreadth
claim. The government pleaded for “plain error” review, arguing that the
overbreadth claim was waived because it was not raised in the initial appeal. Id. at *3. Judge Tashima rejects the government’s
scramble: “Because Sineneng-Smith has asserted a First Amendment claim
throughout the litigation, her overbreadth challenge ‘is – at most – a new
argument to support what has been a consistent claim.’” Id. at *3.
Use Sineneng-Smith
to brush back on the government’s pervasive “plain error” pitches.
For Further
Reading: As reported earlier, President Trump jumped the gun and erroneously lambasted the Ninth Circuit for an admirable asylum decision by NorCal District
Judge Jon S. Tigar (prompting an unprecedented defense by Chief Justice
Roberts). See “For Further Reading” available
here.
The Ninth has now caught up with the tweets. A three judge panel (two Republican-appointed judges, and one Democrat-appointed judge) has
unanimously denied the government’s motion for a stay of Judge Tigar’s decision. See article here.
(Although, as Chief Justice Roberts has explained, the party affiliation of a federal judge doesn't matter).
.
Labels: Appellate Waiver, First Amendment, Overbreadth, Plain Error, Tashima, Waiver