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8 U.S.C. 1324(a)(1)(A)(iv), which established the crime of encouraging or inducing an alien to reside in the United States for private financial gain, is overbroad and unconstitutional

California

,

USA

8 U.S.C. § 1324(a)(1)(A)(iv), which establishes the crime of encouraging or inducing an alien to reside in the U.S. for private financial gain, is overbroad and unconstitutional In United States v. Hansen, No. 17-10548 (9th Cir. 2022), the appellant argued that the District Court improperly denied his motion to dismiss his convictions for two counts of encouraging or inducing an alien to reside in the United States for financial gain under 8 U.S.C. § 1324(a)(1)(A)(iv) [“subsection (iv)”] because the statute is unconstitutional. The First Amendment provides protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere The Ninth Circuit Court of Appeal explained that there are two situations in which a facial overbreadth challenge can succeed: (1) when a party establishes that there is no set of circumstances under which the statute is valid or that the statute lacks any plainly legitimate sweep; and, (2) where a substantial number of the statute’s applications are unconstitutional when judged in relation to the statute’s plainly legitimate sweep. Subsection (iv) covered a substantial amount of protected speech, and its plainly legitimate sweep was narrow and paled in comparison The government argued that the statute was limited to speech integral to criminal conduct, specifically, solicitation and aiding and abetting, but the Court found that the statutory text did not support this reading of subsection (iv). The Court interpreted the statute as prohibiting someone from (1) inspiring, helping, persuading, or influencing; (2) through speech or conduct; (3) one or more specified aliens; (4) to come to or reside in the United States in violation of civil or criminal law. The Court also noted that § 1324(a)(1)(A)(v)(II) contained a separate provision for aiding and abetting, and therefore implied that Congress intended for the provisions to have different meanings.The Court rejected the government’s argument that actual prosecutions showed its narrow interpretation of the statute. Previous prosecutions do not change the plain meaning of a statute and the Court noted that the government had carried out at least one troubling prosecution under subsection iv. The Court explained that it would not uphold an unconstitutional statute merely because the government promised to use it responsibly.The Court found there was a realistic danger that subsection (iv) would chill and foreclose legitimate speech relating to immigration law. Disposition The Court vacated the appellant’s convictions under subsection (iv) and remanded the case to the District Court for resentencing.

April 14, 2022
United States v. Hansen, No. 17-10548 (9th Cir. 2022)
Federal Courts (9th Circuit)