Helaman Hansen started his own immigration advising service and began to charge individuals for his services in October of 2012. During the course of the program, Hansen would provide advice to undocumented immigrants on how to obtain United States citizenship. A key component of the program, at Hansen’s instruction, was that citizenship would be granted to undocumented immigrants if they were adopted by a United States citizen and completed some other tasks. However, immigrants cannot become U.S. citizens through adult adoption, and no immigrants had become citizens through Hansen’s program. Nonetheless, Hansen continued to charge individuals for this advice. In addition, Hansen encouraged at least two undocumented individuals to overstay their visas. Hansen provided his services to roughly 471 undocumented immigrants between October 2012 and January of 2016, with the immigrants’ costs ranging from $550 to $10,000 each and profits for Hansen exceeding one million dollars.
The Supreme Court granted certiorari on December 9, 2022. Oral arguments were held on March 27, 2023. On June 23, 2023, the Supreme Court upheld the law in a 7–2 vote, holding that it did not violate the First Amendment right to free speech.
STATUTORY INTERPRETATION OF § 1324(A)(1)(A)(IV)
The Government;’s Position
The United States argues that 8 U.S.C. 1324(a)(1)(A)(iv), which criminalizes “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States,” does not violate the First Amendment because it only bars the solicitation or facilitation of illegal acts. The United States notes that solicitation and facilitation of illegal acts is not protected by the First Amendment, because it is speech “integral to criminal conduct.” The United States maintains that, in the criminal law context, “encourage” and “induce” are terms of art, which have been historically understood to require active encouragement of specific acts. The United States specifically notes that “encourage” and “induce” are used in many state and federal statues to define clearly illegal crimes like solicitation, facilitation, and aiding and abetting. The United States further points out that Congress included “assist” and “solicit” in earlier versions of subsection (A)(iv). Thus, the United States reasons, the intent of Congress was to criminalize intentional solicitation and facilitation of illegal immigration, not speech addressed to the general public. The United States posits this interpretation is supported by subsection (A)(iv)’s requirement that defendants knew of or recklessly disregarded the fact that an immigrant’s entrance or continued presence in the U.S. was illegal. The United States asserts that this dovetails with the intent required for criminal accomplices. Finally, the United States argues reading § 1324 broadly would violate the principle of constitutional avoidance, under which states courts should, when possible, read statutes narrowly to avoid constitutional issues. Thus, the United States asserts, the Court should avoid raising First Amendment problems by interpreting subsection (A)(iv) as a statute about solicitation and facilitation, which are not protected by the First Amendment.
In opposition, Hansen alleges that § 1324(a)(1)(A)(iv) is not a solicitation or facilitation statute, because it sweeps broader than solicitation or facilitation and unconstitutionally encompasses protected First Amendment speech. Hansen emphasizes that, under Brandenburg v. Ohio, the First Amendment protects individuals who advocate lawbreaking in the abstract: the only exception is when speech is geared towards and likely to produce “imminent” illegal action. Hansen asserts that the United States cherrypicked its definitions of “encourage” and “induce,” and ignored the words’ obvious meanings. Hansen alleges that “encourage” and “induce,” by definition, include speech that merely influences people and makes it more likely they will stay in the United States. Thus, Hansen posits, subsection (A)(iv) criminalizes clearly protected speech, such as doctors telling patients that staying in the United States will make treatment easier. Hansen states that, when governments use “encourage” and “induce” to define other crimes, they usually pair them with other verbs to limit their meaning and provide context; by contrast, because subsection (A)(iv) uses “encourage” and “induce” alone, the words must be interpreted on their face. Hansen stresses that subsection (A)(iv) only requires knowledge or reckless disregard of an individual’s status, not knowledge or intent that an individual will break the law in the near future. Thus, Hansen cautions, § 1324 extends beyond Brandenburg’s exception, which requires both intent and imminence. Hansen further emphasizes that Congress chose to remove the intent requirement of “willfully or knowingly” encouraging or inducing from the statute in 1986—thus, the Court should not add back in a requirement Congress explicitly removed. Finally, Hansen states that constitutional avoidance only applies when there are two equally valid interpretations of a statute: because subsection (A)(iv) is clearly not a solicitation or facilitation statute, constitutional avoidance is inapplicable.