The Supreme Court Hears Case That Could Criminalize Those Who Help Undocumented Immigrants
Asian American and other immigrant advocacy groups are already feeling the impact
May 7, 2020 Update: In an unanimous ruling, the U.S. Supreme Court said the Ninth Circuit should not have raised the overbreadth of the statutory provision when the parties did not do so. The Court has sent the case back down to the Ninth Circuit. Advancing Justice | AAJC will continue to monitor and provide updates.
By Eri Andriola and Mary Tablante
In the never-ending news cycle, we are unfortunately aware of constant attacks on immigrants and heightened anxiety in immigrant communities, but now the Supreme Court is getting ready to hear a case that could impact immigrants’ rights advocates, social services organizations, and anyone who provides assistance to immigrants.
Know Your Rights workshops, providing health care services and emergency funds for undocumented immigrants and families, and social media posts supporting pro-immigrant legislation are all examples of routine activities that immigrants’ rights and social service organizations engage in. They’re also the actions that could be labeled criminal if the Supreme Court delivers an unfavorable ruling in this case. These organizations have a vital role in keeping their communities educated and safe, but a little-known statutory provision makes it a crime to “encourage or induce” individuals to remain in the United States unlawfully.
Recently, Asian Americans Advancing Justice | AAJC, along with 33 other immigrants’ rights advocates and service providers, filed an amicus brief in United States v. Sineneng-Smith to urge the Court to strike down this federal statute. Advancing Justice | AAJC asserts that the vague statute chills First Amendment rights that guarantee free speech and expression and has the potential to negatively impact the everyday work of immigrants’ rights advocates and service providers who often assist undocumented individuals, their families, and their communities. In December 2018, the Ninth Circuit agreed it was unconstitutional because it is overbroad and infringes on free speech. The government filed a petition asking the Supreme Court to review, and the Court agreed to take up this case.
“The statute potentially criminalizes the simple words — spoken to a son, a wife, a parent, a friend, a neighbor, a co-worker, a student, a client — ‘I encourage you to stay here,’” wrote Judge A. Wallace Tashima when striking down the law in the United States Court of Appeals for the Ninth Circuit in San Francisco.
The overbroad nature of this law could impact community-based, advocacy, and social services organizations in countless ways. Here are just a few stories on the impact from three organizations who joined our amicus brief: Asian Services in Action, Inc. (ASIA), Chinese-American Planning Council (CPC), and RAICES.
Asian Services in Action, Inc. (ASIA) provides Asian American immigrant families with access to health, legal, and social services. One example of a service they provided was when a family with an undocumented child visited ASIA’s health clinic to seek vaccinations that are necessary for their child to enroll in public school. The medical provider was aware of and concerned about violating the statute at issue, so ASIA referred the family to a private pharmacy that had a higher cost. The family was fortunately able to receive help from a good Samaritan but their generosity in this instance might have exposed them to prosecution under this overbroad law.
The Chinese-American Planning Council serves more than 60,000 individuals of all ages across New York City. Among the several services they offer are after school programs, adult education, family support, and senior services. Recently, CPC offered support to immigrant families by helping local high school students with their college applications. Some of their parents disclosed to CPC, that their children did not have lawful status, a fact that some of the students were not aware. these students found out that they were undocumented, which came as a shock. In response, CPC engaged additional staff to provide legal support and referrals to social services. According to this vague law, CPC has the potential of being criminalized simply for offering to help students continue their education.
RAICES in San Antonio, Texas is another prominent organization that supports immigrant and refugee communities through legal services, resource connections, and education. One of the projects that staff and volunteers work on is the Bus Station Project, which gives immigrants a warm welcome after they are released from Customs and Border Protection custody and Immigration and Customs Enforcement detention centers. RAICES then offers information on next steps in the immigration process. This project seeks to empower immigrants of any status, but because of the murkiness of the language being challenged in this case, there is fear and uncertainty as to what activity is lawful or not when it comes to “encouraging” undocumented immigrants in this manner.
The Supreme Court heard oral arguments in United States v. Sineneng-Smith on February 25, 2020. For immigrants’ rights advocates and service providers, and the immigrant families who depend on them, we need the Court to strike down this overly broad and vague statute and protect our First Amendment rights.
Immigrants already face many hardships and barriers. We should not be making it even more difficult for them to access necessary resources that are provided by organizations that work to empower immigrant communities. We should strive to make this a country where everyone has a chance and opportunity to thrive.
Eri Andriola is the litigation staff attorney at Asian Americans Advancing Justice | AAJC. Mary Tablante is the digital strategies manager at Advancing Justice | AAJC.