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Ninth Circuit Votes Not to Rehear Alien-Smuggling Case
Bumatay Pens Dissent to Order Denying En Banc Hearing; Eight Others Also Favor Further Consideration
Of Decision to Invalidate Statute Criminalizing Encouragement of Illegal Presence in U.S.
By a MetNews Staff Writer
An order filed yesterday in the Ninth U.S. Circuit Court of Appeals denies a rehearing en banc of a three-judge panel’s Feb. 10 opinion declaring unconstitutional a statute criminalizing conduct promoting the illegal entry of aliens into the U.S., sparking a derisive dissent by Judge Patrick J. Bumatay, joined in, in whole or in part, by seven colleagues, and bolstered by a separate dissenting opinion.
“This case was an obvious candidate for en banc review,” the dissenter insisted.
The Feb. 10 opinion was authored by Judge Ronald M. Gould and was joined in by Judge M. Margaret McKeown and by Jane A. Restani, a judge of the U.S. Court of International Trade, sitting by designation. It invalidated the conviction of Helaman Hansen on two counts of violating 8 U.S.C. §1324, the alien-smuggling statute the panel invalidated as unconstitutionally overbroad restriction on speech.
It provides that 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,” doing so for financial gain, commits a felony.
February Opinion
Gould wrote:
It is clear that subsection (iv) covers a substantial amount of protected speech. Many commonplace statements and actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States. For example, the plain language of subsection (iv) covers knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States.’ Such a statement is protected by the First Amendment.”
He added:
“Hansen and amici provide numerous other examples of protected speech prosecutable according to the plain text of the statute, including encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa,” or providing certain legal advice to undocumented immigrants.”
$1.8 Million Swindle
The conviction of Hansen of other offenses—12 counts of mail fraud and three counts of wire fraud—was upheld in a contemporaneously filed memorandum opinion. Hansen operated a scam which netted him more than $1.8 million, received from at least 471 aliens whom he convinced they would become citizens through his services in arranging an adoption of them.
In yesterday’s dissent, Bumatay protested:
“Freedom of speech is a core principle in our constitutional republic. but § 1324(a)(l)(A)(iv) is no threat to that guarantee. Based on text, history, and structure, the provision prohibits only criminal solicitation and aiding and abetting. But instead of following the statute’s clear meaning, we contort its scope and then imagine ways the misconstrued law might cover protected speech. We then wipe away the whole provision under the overbreadth doctrine—the nuclear option of First Amendment jurisprudence.”
2018 Opinion
He noted that the Ninth Circuit in United States v. Sineneng-Smith, decided in 2018, invalidated the same statute. There, Senior Judge Wallace Tashima said:
“At the very least, it is clear that the statute potentially criminalizes the simple words—spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client—‘I encourage you to stay here.’
“The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment.”
Bumatay commented that in 2020, the U.S. Supreme Court “quickly rebuked our handiwork and unanimously vacated our decision.” He noted that the nation’s high court was “mostly concerned with our egregious violation of the party-presentation principle in that case”—by invalidating a federal statute on its own initiative—but noted the opinion, by Justice Ruth Bader Ginsberg (now deceased), quotes a 2008 decision as admonishing that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’ ”
Ginsberg remarked, sarcastically, “[n]evermind” that the defendant’s lawyer “had presented a contrary theory of the case in the District Court.” Bumatay, borrowing her spelling and tone, remarked:
“Rather than take the hint, we again strike down the same statutory provision. Nevermind that the law is perfectly consistent with the First Amendment under proper principles of statutory interpretation. Nevermind that the canon of constitutional avoidance commands us not to construe a statute in breach of the Constitution when we don’t have to. And nevermind that the Court disfavors the invalidation of statutes under the overbreadth doctrine.”
Meaning of Words
Bumatay maintained that the statute in issue “is just an ordinary criminal solicitation and aiding-and-abetting provision,” explaining:
“When Congress used the terms ‘encourage’ and ‘induce’ in § 1324(a)(l)(A)(iv), it was not legislating in a vacuum. Rather, it enacted the provision against the backdrop of those words having settled meaning in the criminal law. For hundreds of years, both terms were historically bound up with liability for criminal complicity. So it’s clear Congress was targeting those types of crimes— solicitation (when the underlying crime isn’t committed) and facilitation (when the underlying crime is committed)— when enacting § 1324(a)(l)(A)(iv). The text, history, and structure of § 1324 confirms this.”
Recommended Approach
He went on to say:
“Rather than force the statute into a direct collision with the Constitution, we should have taken the more textually appropriate road and read § 1324(a)(l)(A)(iv) as a solicitation and facilitation provision. Under this interpretation, the law easily survives First Amendment scrutiny and there is no reason to reach the overbreadth doctrine. But even if this law reaches some speech, it is a poor candidate for overbreadth invalidation.”
Judge Daniel P. Collins wrote a brief dissent in which he asserted that facial invalidity does not appear.
Gould added an opinion concurring in the decision against an en banc rehearing in which he berates “[t]he Judge Bumatay dissent’s belabored reasoning.” He said the Supreme Court’s “only holding in Sineneng-Smith was that the panel violated the party-presentation principle”; that the statute says “encourages or induces” which he accuses Bumatay in rewriting as “aids, abets, or solicits”; and that the dissenter ignored Supreme Court precedent on the facial overbreadth doctrine.
Although the Feb. 10 opinion remands for resentencing, Gould noted that Hansen was sentenced to 20 years in prison for the fraud crimes and 10 years in prison for violating §1324, with the terms to run concurrently.
Apparently using the verb “join” as noun connoting a person who joins, he said in a footnote:
“I do not seek joins in this concurrence.”
Signing the opinion by Bumatay, a nominee of Republican President Donald Trump, were other appointees of that president, Judges Kenneth Kiyul Lee, Lawrence VanDyke, and Mark J. Bennett and, partially agreeing, Daniel Bress and Mark J. Bennett; also signing the opinion were Judges Consuelo M. Callahan and Sandra S. Ikuta, appointees of Republican President George W. Bush. Collins is a Trump appointee.
Gould and McKeown were placed on the court by President Bill Clinton, a Democrat.
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