San Francisco, CA
In December 2018, the Ninth Circuit Court of Appeals overturned the conviction of a former immigration consultant who had been found guilty of encouraging and inducing immigrants to stay in the United States illegally. The court declared that the federal law barring such behavior was “constitutionally overbroad” and encroached on rights protected by the First Amendment.
Evelyn Sineneng-Smith is a former immigration consultant from San Jose, California, whose business claimed to help natives of the Philippines living in the U.S. and working illegally in home health care obtain work authorization and, ultimately, permanent residence.
Contrary to Sineneng-Smith’s claims, the process for obtaining permanent residence through work authorizations had expired in 2001, meaning that any of her clients who arrived in the U.S. after December 2000 were ineligible to pursue permanent residence by obtaining work authorization.
In 2013, Sineneng-Smith was convicted of two counts of violating immigration law, as well as two counts of tax and mail fraud. Her conviction stemmed from a federal law that levies criminal penalties against people who encourage or induce immigrants to stay in the country illegally. Sineneng-Smith violated this statute repeatedly between 2001 and 2008, according to the court ruling, through her misleading business practices. In 2015, she was sentenced to 18 months in prison and a $15,000 fine, according to The Hill.
Sineneng-Smith was originally tried in U.S. District Court for Northern California, and she appealed to the Ninth U.S. Circuit Court of Appeals in San Francisco, which heard oral arguments on the case in April 2017.
In its ruling, the appeals court noted that, despite being aware of this, Sineneng-Smith continued operating her business and telling her clients they would eventually be able to obtain green cards (permanent residence permits). By doing so, she misled those she pledged to help.
“At least two of Sineneng-Smith’s clients testified that they would have left the country if Sineneng-Smith had told them that they were not eligible for permanent residence,” according to the appeals court ruling.
Appeals court overturns Sineneng-Smith’s conviction, calling law ‘unconstitutionally overbroad’
In December 2018, the Ninth Circuit Court of Appeals ruled that the broadness of the law in question violated the First Amendment: The statute criminalized significant swaths of protected speech in its goal to penalize a “narrow band of legitimately prohibited conduct and unprotected expression,” according to the ruling, written by Judge A. Wallace Tashima. If enforced, Tashima wrote, the broad criminalization risked chilling Free Speech.
“Criminalizing expression like this threatens almost anyone willing to weigh in on the debate,” Tashima wrote.
Though Sineneng-Smith argued the federal statute constituted a content-based and viewpoint-discriminatory restriction on speech, the appeals court declined to engage with that question, bypassing it by declaring the law overly broad.
“We follow the Supreme Court’s lead in assessing the statute’s overbreadth before engaging in the strict scrutiny analysis that would follow if we concluded that [the law] was a content-based restriction on speech,” Tashima wrote.
Nevertheless, Sineneng-Smith’s two convictions under the statute were overturned. But the court upheld the tax and mail fraud convictions. Sineneng-Smith, who remained free on bond during the appeals process, will be re-sentenced on her remaining convictions.
Prepared by Maya Gandhi ’20
Uploaded February 25 , 2019