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United States v. Hernandez-Calvillo.

No. 19-3210. 7/13/2022. D.Kan. Judge Moritz. Constitutionality of Federal Immigration Statute—Encouraging or Inducing a Noncitizen to Reside in the United States—First Amendment Overbreadth.

July 13, 2022

A grand jury indicted appellees based on their role in an alleged scheme to employ noncitizens in the drywall installation business. They were charged with several federal immigration crimes, the first of which alleged that they conspired to encourage or induce noncitizens to reside in the United States in violation of 8 USC § 1324(a)(1)(A)(iv). The remaining counts alleged specific instances of encouraging or inducing particular noncitizens to reside in the United States. At trial, the jury found appellees guilty of conspiring to encourage or induce but not guilty of the three individual counts of encouraging or inducing.

Before sentencing, appellees moved to dismiss the conspiracy count on First Amendment overbreadth grounds. The district court granted the motion, concluding that the statute is facially unconstitutional because it proscribes a substantial amount of protected speech. The government appealed.

The sole issue before the Tenth Circuit was the facial constitutional challenge to subsection (A)(iv). The Tenth Circuit stated that when a litigant contends that a statute is overbroad under the First Amendment, the litigant must show that a substantial number of the statute’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.

Subsection (A)(iv) makes it a crime to “encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of the law.” The Tenth Circuit gave the terms “encourage” and “induce” their ordinary meaning and rejected the government’s assertion that the terms may sometimes refer to criminal facilitation or solicitation. The ordinary meanings of the terms encompass both conduct and speech. The substantive scope of subsection (A)(iv) exceeds what one would find in a statute proscribing facilitation or solicitation. In particular, some of the activity that the statute prohibits a person from encouraging or inducing, namely residing in the United States, is not a crime.

Second, the government argued that any speech covered by subsection (A)(iv) was unprotected because it was integral to criminal conduct. The Tenth Circuit concluded, however, that this narrow category does not cover all of the speech the statute could reach. It is thus possible under subsection (A)(iv) to punish speech encouraging an act that is only civilly unlawful, along with protected “abstract advocacy of illegality.” A statement to a noncitizen, “I encourage you to [reside in the United States]” would support a conviction under subsection (A)(iv), even if the noncitizen took no action in response.

Third, although the statute criminalizes some protected speech, the provision is facially overbroad only if it criminalizes a substantial amount of protected speech. The Tenth Circuit agreed with appellees that other statutes independently, and more narrowly, proscribe the criminal activities. On the other side of the ledger, the Tenth Circuit concluded that many of subsection (A)(iv)’s potential applications involve protected speech. Actual prosecutions are not required to show a statute’s overbreadth. On balance, a comparison of constitutional and unconstitutional applications is one-sided, and the statute’s plain language is susceptible of regular application to protected expression, reaching vast amounts of protected speech uttered daily.

The Tenth Circuit therefore affirmed the dismissal of the indictment.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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