Immigration at the Supreme Court: United States v. Hansen

An immigration case is once again before the Supreme Court in the case United States v. Hansen.  This case involves a fairly unknown provision of immigration law, and how it collides with a Constitutional Amendment we don’t often see implicated in the immigration world: the First Amendment.

The law at issue in the case is 8 U.S.C. § 1324(a)(1)(A)(iv) which prohibits a person from encouraging or inducing a noncitizen to come to, enter, or reside in the United States knowing or in reckless disregard for the fact that such coming to, entry, or residence would be unlawful.  These are not cases that are typically brought except in extreme circumstances—for example, Mr. Hansen was defrauding noncitizens, promising citizenship through “adult adoption,” and essentially stealing their money— but the questions it raises do merit some looking into, including what the limitation on this speech could mean for anyone from family members, to acquaintances, to even immigration lawyers.

Mr. Hansen is challenging his conviction under this law, stating that it is unconstitutional on its face.  This means that he is stating that the law is unconstitutional as it is written, and so the whole law should be struck down, because it prohibits a substantial amount of speech that should be protected by the First Amendment.  The argument is, by having that speech penalized by this law, at least as it is written even if there is an argument that it is not how it is enforced, there is a chilling effect on that speech.  He posits a number of hypothetical situations where, by the plain language of the law, fairly normal interactions would be implicated, such as an immigration lawyer counseling someone who has no basis to remain in the U.S. legally that an avenue may open up in the future.

On the government’s side, they argue that laws prohibiting certain types of speech are on the books already and are entirely lawful.  Think, for example, solicitation of prostitution.  They state that “encourage or induce” should be interpreted narrowly to mirror these laws that we already have and live by.  They push back on the hypotheticals, stating that there must be a realistic danger that the law would be applied in such a way.  In large part, the government argues that Mr. Hansen simply has failed to show that the law has the impacts he says it has.

Oral argument was heard on the case at the end of March, and now we await the Court’s decision.  While this law may not be one that gets much press, and is not one that we often see applied except in extreme circumstances, the outcome of this case will reach far beyond the context of immigration law.