Is It a Crime to "Encourage" an Undocumented Immigrant to Stay?

Update (October 2026): The Ninth Circuit ruling described below no longer stands. In 2020, the Supreme Court threw it out because the appeals court had raised the free-speech issue on its own instead of deciding the issues the parties argued. United States v. Sineneng-Smith, 590 U.S. 371 (2020). Then in 2023, the Supreme Court upheld the law. It read "encourages or induces" narrowly, to cover only purposely soliciting or helping specific illegal acts. United States v. Hansen (2023). This post is kept for its history.

Helping someone sneak into the U.S. is clearly illegal. Advice or words of support are a harder question. In 2018, the Ninth Circuit held in United States v. Sineneng-Smith that a law banning "encouraging" someone to stay in the country illegally swept in too much free speech. As the update above explains, that ruling did not last, and today the law is read narrowly.

The Law and the Free Speech Concern

Under 8 U.S.C. § 1324(a)(1)(A)(iv) and § 1324(a)(1)(B)(i), it is a crime to "encourage or induce" an undocumented immigrant to come to or live in the U.S. Those words drew close scrutiny because they are so broad. Critics said the law, as written, could make it a crime simply to speak out in support of immigrants coming to the U.S.

Aiding Illegal Immigrants

The Department of Justice disagreed. It said the law covers only people who give real help to someone entering or staying illegally, not people who speak out about immigration policy. In the DOJ's view, the law was not meant to limit free speech and was not used to silence critics of immigration policy.

The Facts of the Case

In United States v. Sineneng-Smith, the defendant was convicted in 2015 of running a sham immigration consulting business. She took money from undocumented clients to file applications for programs they clearly did not qualify for.

She was also convicted of mail fraud, based on retainer agreements she mailed to clients to defraud them, and of filing false tax returns for her consulting business. The trial court sentenced her to 18 months in prison, a $15,000 fine, and three years of supervised release.

What the Ninth Circuit Decided

On appeal, the Ninth Circuit held that the "encourage or induce" part of the law was unconstitutionally overbroad, meaning it reached too much speech the First Amendment protects. In a 42-page opinion, the court rejected the government's position that it would enforce the law only selectively. Promises of selective enforcement, the court said, are no substitute for free speech protections.

The court was concerned that the law could reasonably be applied to a broad range of protected speech. Because it did not require any actual help or inducement, it made a very wide range of speech a crime. The government argued the law should be read to cover only acts, not speech, and the court rejected that argument too.

The court threw out her immigration convictions, kept her fraud and tax convictions, and sent the case back for resentencing in light of the vacated counts. As noted in the update above, the Supreme Court later vacated this ruling, and in Hansen it upheld the law.

How the Case Looked in 2018

When this post was first written in 2018, the Ninth Circuit had been especially vocal in opposing the Trump administration's immigration policies. It was an open question whether other circuits would follow, and the stage was set for the government to seek Supreme Court review. The original post also suggested that the political climate was likely shaping courts' willingness to take on these laws. The government did appeal, and the Supreme Court ruled as described in the update above.

If You Are Facing an Immigration-Related Federal Charge

Any federal criminal case that involves an alleged violation of immigration laws can be complicated, and for a non-citizen a conviction can also affect immigration status. Under Hansen, the government must show more than general words of support; it must show purposeful solicitation or help with specific illegal acts. Getting advice from a federal criminal defense attorney early, before talking with agents, is wise.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.