Under This Law, Encouraging Undocumented Immigrants to Seek Shelter Could Be a Crime

As wildfires raged across Northern California last week, Sen. Kamala Harris (D-Calif.) took to Twitter to encourage those in need to seek shelter, even if they didn’t have lawful immigration status.

Senator Harris’s desire to protect all her constituents is admirable. It also may be a crime.

A section of the federal Immigration and Naturalization Act states that any person who “encourages or induces” a non-citizen to “come to, enter, or reside” in this country in violation of the law is guilty of a felony, and may be imprisoned for up to five years. For a person to be found guilty, the prosecution must show that the person knew or recklessly disregarded the fact that the non-citizen’s action was unlawful. Harris’s tweet arguably “encouraged” undocumented immigrants to “reside” in the country. That’s precisely the type of speech a zealous federal prosecutor could target for criminal sanction under this law.

Senator Harris is in good company. Other potential “criminals” include:

  • A woman who tells her undocumented housekeeper that she should not depart the U.S. or else she won’t be allowed back in. (A former U.S. Customs and Border Protection official stood trial in just such a case.)
  • A university president who publishes an op-ed arguing that DACA recipients should consider her campus to be a “sanctuary” after their deferred action expires.
  • A community organization that announces its shelters and soup kitchens are open to homeless undocumented youth in their area.

This law clearly oversteps the First Amendment, which does not allow the government to criminalize these kinds of speech. The Supreme Court has stated clearly: “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” That’s why the ACLU yesterday submitted an amicus brief to the U.S. Court of Appeals for the Ninth Circuit arguing that this law is unconstitutional.

The government can only prohibit “unprotected” speech, like incitement to violence or speech that itself constitutes a crime, like harassment. Speech “encouraging” immigration violations does not qualify. This makes the law we challenged “presumptively unconstitutional,” because it regulates the content of things we can say.

The ACLU filed its brief in a criminal case against Evelyn Sineneng-Smith, an immigration consultant from San Jose, California. Ms. Sineneng-Smith was convicted in 2013 for filing labor applications for clients she knew were not eligible for green cards at the time. Despite the fact that all the information Ms. Sineneng-Smith filed was accurate — including disclosure of the fact that her clients had been in the country illegally for years — she was convicted of “encouraging or inducing” her clients to remain in the U.S. She has appealed her conviction.

Our brief argues that the First Amendment protects the right of an individual — whether Evelyn Sineneng-Smith or Sen. Kamala Harris — to speak their mind on this hotly debated, sensitive subject without fear of prosecution. This includes speaking with and advocating for undocumented individuals who must navigate the complex web of U.S. immigration law. With this anti-encouragement law on the books, the only sure way to avoid prosecution for such speech is self-censorship.

Now, as ever, immigration is an issue of enormous public concern and controversy, especially given the hostile stance of the Trump administration and some state officials toward immigrant communities. For those in our communities who are undocumented immigrants, or whose loved ones are undocumented immigrants, there is nothing more important than speaking on these issues. The last several months have demonstrated precisely how movements for immigrant justice rely on robust political speech: organizing rallies against deportation, speaking to undocumented people about how to avoid being separated from their families, and more.

Freedom of speech is at the foundation of these efforts, and we must strive to keep it that way.

View comments (33)
Read the Terms of Use

Anonymous

Dakota, no one is being prosecuted for urging uninvited foreigners to seek cover during national disasters. Look at the wording. That was thrown in as an example of what someone "COULD" be prosecuted for. Its unlikely that they would and even if they did its extremely unlikely they'd actually get convicted.

Anonymous

If they're ILLEGAL and are seeking shelter where they're expecting more aid from the US TAXPAYER then arrest them as the worthless CRIMINALS that they are and ship them back to where they belong - OUT OF THE USA ASAP!!!!!

Anonymous

On point!

Yo yo

I dont see why people keep saying everybody have rights what rights do the American people have who committ felonies do their time have their voting rights stripped from them can't get a job bc of a background check tell me what rights they have see our politicians are fighting for the wrong things they have forgotten the American people and trying to give rights to people who aren't citizens the last time I checked most of these country's have military,police and a president hell we have gang violents here to so why are we so quick to help others who just want to come let them make their country strong and protest there not here this is why I could not vote Clinton for president I feel that the Democrats have turned on the American citizen and its a shame.

Re YOYO

Hey sorry you’re a felon and can’t vote. There is a reason felons can’t vote. It’s because they committed crimes against the people at the federal level that prove you can’t be trusted to make sound choices.

Get it! You’re a fucking criminal that can’t be trusted. You spent heavy federal time in prison and can’t be trusted with your fucked up brain.

Before all you liberal crim8nals dog me look it up. Far Less than .01% of the US population is ineligible to vote because of federal convictions. STOP YOUR FUCKING BICHIN OR BACK TO SOLITARY! Child molester.

Anonymous

Felons get punished

Anonymous

If they're ILLEGAL and are seeking shelter where they're expecting more aid from the US TAXPAYER then arrest them as the worthless CRIMINALS that they are and ship them back to where they belong - OUT OF THE USA ASAP!!!!!

Anonymous

"...hostile stance of the Trump administration and some state officials toward immigrant communities."
ILLEGAL immigrant communities!

Anonymous

If they're ILLEGAL and are seeking shelter where they're expecting more aid from the US TAXPAYER then arrest them as the worthless CRIMINALS that they are and ship them back to where they belong - OUT OF THE USA ASAP!!!!!

Anonymous

I don't know where some of you get your info.
The military is NOT mostly "minorities". Visit any military base. (22 years Air Force)

Pages

Stay Informed