In United States v. Hanson, --- F4th ---, No. 17-10548 (9th Cir. 2022), the Court vacated convictions on two counts of encouraging or inducing an alien to reside in the United States for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), and remanding for resentencing.
The Court held that subsection (iv) is overbroad under the First Amendment and unconstitutional.
We []"interpret subsection (iv) as prohibiting someone from (1) inspiring, helping, persuading, or influencing, (2) through speech or conduct, (3) one or more specified aliens (4) to come to or reside in the United States in violation of civil or criminal law."
"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."
"[T]the government’s interpretation of subsection (iv)’s reach is subject to change and is irrelevant: 'the First Amendment protects against the government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it responsibly.'"
"We are mindful that invalidating subsection (iv) for overbreadth is 'strong medicine' that is not to be 'casually employed.' However, for the reasons we have set forth above, subsection (iv) is overbroad and unconstitutional."
