UNITED STATES v. SINENENG-SMITH, ___ U.S. ___, No. 1967 (7 May 2020)

This case concerns a provision of the immigration laws, 8 U. S. C. §1324, which makes it a felony to encourage or induce an alien to enter or reside in the United States, knowing or in reckless disregard of the fact that such entry or residence violates the law. §1324(a)(1)(A)(iv). The crime has an enhanced penalty if done for the purpose of commercial advantage or private financial gain. §1324(a)(1)(B)(i).

The respondent Ms. Sineneng-Smith operated an immigration consulting firm. Most of her clients worked without authorization in the home health care industry in the U.S. between 2001 and 2008. She assisted her clients in applying for a “labor certification” that allowed certain aliens to adjust their immigration status to that of lawful permanent resident permitting them to live and work in the U.S. There was only a brief period-of-time for aliens to qualify for the labor certification. To qualify for the labor certification her clients had to be in the U.S. on December 21, 2000 and apply for certification before April 30, 2001. Ms. Sineneng-Smith knew her clients did not meet the application-filing deadline and knew that their applications could not put them on a path to lawful residence.   Nevertheless, she charged each client $5,900 to file an application with the Department of Labor and another $900 to file with the U. S. Citizenship and Immigration Services. In the aggregate, she collected more than $3.3 million from her unwitting clients. Ms. Sineneng-Smith was indicted for mail fraud, tax fraud, and for violating 8 U. S. C. §1324(a)(1)(A)(iv) by knowingly encouraging and inducing illegal aliens to remain in the U.S.  

In the district court, Ms. Sineneng-Smith argued that (i) she did not encourage or induce the aliens because they were already in the U.S.; (ii) as applied to her the statute is unconstitutionally vague and did not give her fair notice; (iii) application of the statute is a content-based restraint on her free speech; and (iv) the statute denied her constitutional right to petition the government by filing petitions for the labor certifications. The district court rejected these arguments. It is important to note that Ms. Sineneng-Smith did not contend that the statute was overly broad because it potentially trenched on the protected speech of others. She was convicted of filing false tax returns, mail fraud, and violating §1324(a)(1)(A)(iv). The tax and mail fraud counts were not at issue in the Supreme Court.  

In the Ninth Circuit Court of Appeals, Ms. Sineneng-Smith essentially repeated the arguments she earlier presented to the district court, but the court of appeals moved the case in a different direction. Instead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the court, including a question Sineneng-Smith never raised earlier: whether the statute of conviction is overbroad under the First Amendment. The 9th Circuit ultimately endorsed the invited amici’s arguments that the statute, §1324(a)(1)(A)(iv), is unconstitutionally overbroad. The government petitioned for review and the Supreme Court held that the 9th Circuit departed so drastically from the principle of party presentation as to constitute an abuse of discretion.  

In a unanimous decision, the Court held that no extraordinary circumstances justified the panel’s takeover of the appeal. Ms. Sineneng-Smith had raised a vagueness argument and other First Amendment arguments focusing on her own conduct, not that of others. Instead of addressing the controversy presented by the parties, the court of appeals projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, and even a grandmother’s plea to her alien grandchild to remain in the U.S. The Supreme Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” United States v. Williams, 553 U. S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999)). Although a court is “not hidebound by the precise arguments of counsel, the Ninth Circuit’s radical transformation of the case went well beyond the pale and abridged the party presentation doctrine. The Court vacated the 9th Circuit’s decision and remand the case for an adjudication of the appeal of the case as shaped by the parties rather than the case designed by the appeals court.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at [email protected].