Sunday, February 13, 2022

US v. Hansen, No. 17-10548 (2-10-22)(Gould w/McKeown & Restani). It isn’t everyday one gets the 9th to declare a statute unconstitutional. AFPD Carolyn Wiggins (Cal E Sacramento) and the ACLU et al did so here. The statute is 8 USC 1324(a)(1)(A)(iv), which criminalizes encouraging or inducing an alien to reside in the United States. The 9th held the statute was facially overbroad, and so vacates the two convictions.

The 9th analyzes the statute and agrees with defendant it encompasses substantial protected speech related to immigration. The 9th rejected the gov’t’s argument the statute is narrowly construed to prohibit speech integral to criminal conduct, specifically solicitation and aiding and abetting. The 9th adopted the reasoning of a prior opinion, US v. Sineneng-Smith, 910 F.3d 461,485 (9th Cir. 2018)(Sineneng-Smith I), because, while it was vacated by the Supremes on other grounds, 140 S. Ct 1575 (2020), its analysis is still persuasive. The panel here goes through the statute. It finds a plain legitimate sweep, but the statute also sweeps in substantial protected free speech related to immigration. For example, encouragement for an undocumented immigrant to reside in the United States is protected. There are other examples, such as advice in the face of natural disasters, legal advice, advising about social services, or the consequences of overstaying a visit. The expanse of legitimate speech is far greater than the narrow legitimate criminal conduct. The government’s promise to use it only legitimately is unpersuasive.

The other convictions -- the defendant conducted mail and wire fraud through a program touting adult adoption for undocumented immigrants -- were affirmed in a memo.

Congrats to AFPD Wiggins and the ACLU.

The decision is here:


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