Two employees of a Lawrence business were convicted of conspiring to “encourage or induce” undocumented immigrants to reside in the U.S. But the 10th U.S. Circuit Court of Appeals found that the federal statute “criminalizes a substantial amount of constitutionally protected speech.”
A federal appeals court has found unconstitutional a statute making it a crime to encourage or induce a noncitizen to reside in the United States.
In a 2-1 decision on Wednesday, the 10th U.S. Circuit Court of Appeals upheld a lower court ruling finding the statute to be overbroad under the First Amendment.
The appeals court decision, written by Judge Nancy Moritz, found that the statute “criminalizes a substantial amount of constitutionally protected speech, creating a real danger that the statute will chill First Amendment expression.”
At least for now, the decision means that the law is not enforceable in the 10th Circuit, which covers Kansas, Oklahoma, Colorado, Utah, New Mexico and Wyoming.
Origins of the case
The case has stretched out over more than seven years. It sprung from the March 2015 indictment of a Lawrence, Kansas, drywall contractor and other defendants who were charged with money laundering, bank fraud and harboring undocumented workers.
The government claimed they were part of a scheme to convert more than $13 million in payroll checks into cash, in order to pay crews of undocumented workers installing drywall in the Kansas City metropolitan area.
Several defendants pleaded guilty in return for light sentences. But two construction crew leaders, Jose Felipe Hernandez-Calvillo and Mauro Papalotzi, chose to go to trial. A jury of 12 women found them guilty of conspiring to encourage or induce someone to unlawfully reside in the U.S.
U.S. District Judge Carlos Murguia, however, threw out their convictions after agreeing with their argument that the statute was unconstitutional on its face because it prohibited “a substantial amount” of protected speech.
In a fortuitous bit of timing, the Ninth U.S. Circuit Court of Appeals found the same statute unconstitutional around the same time. (The U.S. Supreme Court in 2020 reversed the Ninth Circuit decision on procedural grounds.)
Although decisions by the Ninth Circuit are not binding on federal judges in Kansas, Murguia said he found the Ninth Circuit’s decision persuasive.
“We had filed a pretrial motion saying that the statute was unconstitutional and vague, but since no circuit had spoken out yet, the judge denied our motion,” said Kansas City lawyer Robert Calbi, who represented Papalotzi.
“But now that the Ninth Circuit had made a decision, we had some circuit backing and we filed a motion to dismiss the indictment based on that. And the judge agreed with us and dismissed the indictment.”
The U.S. Attorney’s office, which prosecuted the case, could ask all of the judges on the 10th Circuit to rehear the matter. Alternatively, it could seek review before the U.S. Supreme Court.
A spokeswoman for the U.S. Attorney’s office in Kansas said it would have no comment.
First Amendment concerns
The statute in question is part of the Immigration and Nationality Act that was passed 70 years ago. It authorizes up to five years in prison for 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.”
The statute tacks on another five years to the sentence if the defendant acted “for the purpose of commercial advantage or private financial gain.”
The Trump administration prosecuted numerous individuals under the law, although the defendants in this case were indicted before Trump became president.
At issue in the 10th Circuit case was whether Congress intended the terms “encourage” or “induce” to be read narrowly as criminal solicitation, or more broadly, in which case the statute would potentially criminalize protected speech under the First Amendment.
Like the Ninth Circuit, the 10th Circuit found that Congress intended the terms to be read broadly. As such, it said, the terms covered a substantial amount of protected speech.
For example, Moritz wrote, the statute would make it a crime to tell a family member who overstayed their visa, “I encourage you to reside in the United States.”
Likewise, it would make it a crime to tell a tourist that she is unlikely to face serious consequences if she overstays her tourist visa. And it would make it a crime to inform noncitizens about social services that might be available to them.
Similarly, Moritz wrote, an immigration attorney could face prosecution under the statute for providing legal advice to noncitizens.
Finally, she noted that the statute mostly prohibited conduct already made criminal by other statutes.
“We are therefore not convinced that invalidating [the statute] would deprive the government of a critical enforcement tool or leave wide swaths of criminal conduct unpunished,” Moritz wrote.
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