The United States Supreme Court recently agreed to decide the constitutionality of a federal law criminalizing migrant smuggling. United States v. Sineneng-Smith, No. 19-67. Late last year, the U.S. Court of Appeals for the Ninth Circuit concluded that this offense violates the First Amendment because it punishes a substantial amount of protected conduct.
The anti-smuggling crime, Immigration and Nationality Act § 274(a)(1)(A)(iv), 8 U.S.C. § 1324(a)(1)(A)(iv), targets anyone who “encourages or induces 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 law.” Anyone convicted of this offense is punishable by up to ten years imprisonment if “the offense was done for the purpose of commercial advantage or private financial gain.”
Advocates challenging the smuggling crime’s constitutionality point to the risk that attorneys and other advocates will find themselves under a prosecutor’s glare for counseling migrants about their legal options. There is some basis for concern because the respondent, Evelyn Sineneng-Smith, operated an immigration-consulting firm. Her work on behalf of clients brought her to the attention of authorities, leading to her conviction under § 1324(a)(1)(A)(iv) plus two counts of mail fraud under 18 U.S.C. § 1341. Though it appears that Sineneng-Smith was misleading her clients, advocates for migrants are urging the Supreme Court to find the smuggling statute unconstitutional out of fear that prosecutors are interpreting it so broadly that it encompasses entirely legitimate advocacy.
I was surprised to see the Solicitor General request the Court’s intervention because this is a little-used crime. A recent analysis of federal prosecution revealed that roughly five percent of all immigration crime cases centered on smuggling. In fiscal year 2018, only 4,840 smuggling cases were concluded by prosecutors, a fraction of the 99,479 criminal cases concluded that year for all immigration matters, the Bureau of Justice Statistics reported. Similarly, convicted smugglers don’t make up very much of the federal prison population. From 2000 to 2016, there were never more than 2,434 people in federal prison because of a smuggling conviction.
Importantly, § 1324(a)(1)(A)(iv) is only one of four crimes frequently defined as categorized as smuggling offenses. I’ve never seen data broken out by each subsection of § 1324(a)(1)(A), but my suspicion is that the offense for which Sineneng-Smith was convicted is unlikely to be the most commonly prosecuted of these four options. Instead, I suspect that subsection (i), focusing on bringing a migrant into the United States outside a port of entry, and subsection (ii), transporting a migrant, are more common. Despite being a minor player in past immigration crime prosecutions, the Solicitor General described § 1324(a)(1)(A)(iv) as “an important tool for combatting alien smuggling and other similar conduct that knowingly causes or significantly contributes to individual aliens violating the immigration laws.”
The Supreme Court’s decision to hear this case is also fascinating. Typically, the Court weighs in when a sharp conflict has developed among the lower courts about the proper interpretation of a statute. Here there is little to no split among the circuit courts. In the government’s petition for certiorari, the Solicitor General took the position that the Ninth Circuit’s decision conflicts with the Third Circuit’s interpretation in DelRio-Mocci v. Connolly Props. Inc., 672 F.3d 241 (3d 2012). In DelRio, the Third Circuit concluded that § 1324(a)(1)(A)(iv) “prohibit[s] a person from engaging in an affirmative act that substantially encourages or induces an alien lacking lawful immigration status to come to, enter, or reside in the United States where the undocumented person otherwise might not have done so.”
For her part, Sineneng-Smith claims that there is no circuit split. DelRio, Sineneng-Smith points out, isn’t about the First Amendment, as is the Ninth Circuit’s analysis. Instead, the Third Circuit weighed in on a private lawsuit claiming that an apartment property management company violated the Racketeer Influenced and Corrupt Organizations Act. To claim that the circuits are in conflict is nothing more than an “attempt to conjure a limited circuit split.”
Whatever the Supreme Court’s motivation, its decision to grant certiorari means that it will soon clarify the First Amendment’s role in criminalizing some migration activity—and perhaps expose other attorneys and advocates to criminal liability.