Metropolitan News-Enterprise


Wednesday, December 9, 2020


Page 1


Ninth Circuit:

Conviction Under Immigration Advice Law Was Valid

Panel Acted on Remand From U.S. Supreme Court; It Previously Held Statute Unconstitutional


By Sandra Hong, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed the conviction of a San Jose-based immigration consultant who charged each client more than $6,000 to file applications for obtaining lawful permanent resident status under a federal program she knew had expired, taking a fresh look at the case after its previous decision was reversed by the U.S. Supreme Court.

 The opinion on remand by Senior Circuit Judge A. Wallace Tashima affirms a judgment by Senior District Court Judge Ronald M. Whyte of the Northern District of California.

Whyte denied a motion for a judgment of acquittal following a jury’s July 30, 2013 conviction of Evelyn Sineneng-Smith on two counts of violating 18 U.S.C. §1324(a)(1)(A)(iv). That statute renders it a felony to encourage or induce a noncitizen “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 has been criticized for criminalizing the work of anyone assisting undocumented immigrants, including attorneys, social workers, or even family members.

Many of Sineneng-Smith’s clients were from the Philippines and worked without documentation in the home health care industry. She collected more than $3.3 million from clients who were promised a path to permanent resident status through a labor certification program under §245i of the Immigration and Naturalization Act.

The §245i program had expired in April 2001, but another labor certification process was available that involved obtaining approval through U.S. Customs and Immigration Service, called I-140 approval, for which Sineneng-Smith charged clients additional fees to apply.

Two of Sineneng-Smith’s clients, Amelia Guillermo and Hermansita Esteban, entered the U.S. in 2001 and 2002 on tourist visas and remained after being offered jobs as caregivers. In 2002, they both signed retainer agreements with Sineneng-Smith in order to obtain permanent residency through labor certification.

Neither was informed about the §245i process or that they were ineligible for permanent residence status through that program.

In 2007, the Department of Labor approved Guillermo’s and Esteban’s labor certification petitions, at which point Sineneng-Smith asked for additional fees under new retainer agreements to obtain I-140 approvals.

Both Guillermo and Esteban testified they would have returned to the Philippines had they understood that they would not be able to obtain green cards through the §245i process.

Sineneng-Smith was sentenced Dec. 14, 2015, to 18 months in prison and ordered to pay a $15,000 fine.

On appeal, Sineneng-Smith argued that her conduct did not fall within the scope of 18 U.S.C. §1324 and was protected by the First Amendment as the right to free speech and petition.

In a Dec. 4, 2018 opinion, also authored by Tashima, the Ninth Circuit reversed the convictions, holding the statute was unconstitutionally overbroad in violation of the First Amendment.

The U.S. Supreme Court granted the government’s petition for certiorari and on May 7 reversed and remanded. Justice Ruth Bader Ginsburg said in an opinion for a unanimous court:

“Here, the overbreadth challenge embraced by respondent on appeal relied entirely on the free speech rights of others—immigration lawyers, activists, clergy, and even grandmothers. This is not terribly surprising given that the overbreadth arguments were developed by amici organizations that represent some of these third parties, not by respondent herself…Although it appears respondent lacked standing on appeal to assert the rights of individuals not before the court, she did have standing to seek relief for alleged violations of her own constitutional rights, which she raised before the Ninth Circuit commandeered her appeal. On remand, the Court of Appeals will be well within the bounds of its Article III jurisdiction in considering these narrower arguments.”

Opinion on Remand

On remand, Tashima rejected all of Sineneng-Smith’s arguments, calling them flawed for “a fundamental mischaracterization of the charges” against her.

He wrote:

“She alleges that she was prosecuted solely for being hired to file putatively lawful I-140 petitions on behalf of Guillermo and Esteban’s employers. However, as the district court correctly noted, Sineneng-Smith was actually prosecuted for entering into retainer agreements with aliens, knowingly misrepresenting to them that her efforts through the §245i Labor Certification process would, for a price, enable them to become legal permanent residents, and misleading them about their ability to work lawfully in the United States while they waited for the process to be completed.”

He added:

“We agree with the district court that the charged conduct is forbidden by Subsection (A)(iv).”

Fraud Not Required

Tashima determined that nothing in the statutory language or case law supported the argument that the statute only prohibited conduct accomplished by fraud, the use false documents, or fraud against the government. Sineneng-Smith argued she was merely providing her clients Guillermo and Esteban a legitimate benefit under §245i Labor Certification and that such conduct fell outside the scope of the statute.

However Tashima said the legitimacy of a government certification process did not detract from the culpability of Sineneng-Smith’s conduct, which was encouraging her clients “to stay in the United State in violation of the law by misleading them about the full extent of the benefits they might realistically expect from engaging in the § 245i Labor Certification process.”

Tashima added that Sineneng-Smith had relied on numerous labor certification and I-140 approvals by the government did not deprive her of fair notice that her conduct violated §1324.

“This argument relied on the same mischaracterization of the charges that we have previously rejected. Because the charged conduct—knowingly misleading aliens into believing that the approved petitions could lead to permanent residence and thereby encouraging them to remain illegally in the country—was clearly covered under Subsection (A)(iv).…”

Tashima also dismissed Sineneng-Smith’s constitutional arguments on the same grounds: that her intentional misrepresentations made to Guillermo and Esteban for her own benefit were not protected as free speech or the right to petition.

“These arguments, which rely yet again on the faulty premise that she was prosecuted for being hired to file I-140 petitions, lack merit,” he said.

Judges Marsha S. Berzon and Andrew D. Hurwitz joined yesterday’s opinion, as they had in Tashima’s initial opinion.

The case is United States v. Sineneng-Smith, 15-10614.


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