For Immediate Release

January 23, 2020

Contact: Sirine Shebaya, Executive Director:

This week, the National Immigration Project of the National Lawyers Guild (NIPNLG) and immigration legal organization partners filed an amicus brief at the U.S. Supreme Court in the case of Evelyn Sineneng-Smith v. United States, a landmark case concerning encouraging any noncitizen to remain in the U.S.

The government’s interpretation of the statute in this case punishes as a felony any statement urging or persuading an undocumented noncitizen to enter or remain in the country—even legal advice from an immigration attorney, or a plea from a grandmother to her grandson not to abandon her. That prohibition is unconstitutionally overbroad.

“Under the government’s interpretation of this statute, legal advice attorneys are ethically obligated to give their noncitizen clients would be subject to prosecution,” said Sirine Shebaya of NIPNLG. “Aggressive enforcement of this statute would further undermine the ability of immigrants to get competent legal advice where they desperately need it, and would jeopardize lawyers and other immigration service providers who are simply trying to carry out their responsibilities to the people they serve.”

The question before the Supreme Court is whether this ‘encouragement provision,’ the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain in violation of of 8 U.S.C. § 1324(a) is unconstitutional. The brief argues that, even under the narrowest limiting construction offered by the government, the statute purports to criminalize vast quantities of immigration advice, including competent, accurate, and ethical legal advice provided by immigration attorneys.

“On its face, this statute purports to criminalize everyday advice that immigration lawyers give to noncitizen clients, even if that advice is completely accurate,” said William Perdue of Arnold & Porter. “It also appears to punish advice by religious leaders, social workers, and other advocates who work with noncitizens. Under the First Amendment, that is unconstitutional.”

Along with NIPNLG, the Immigrant Defense Project, the National Immigration Law Center, the American Immigration Lawyers Association, the National Immigrant Justice Center, Tahirih Justice Center, the Northwest Immigrant Rights Project, the City Bar Justice Center, ASISTA, Freedom Network USA, LatinoJustice PRLDEF, and Just Futures Law are co-signers on the brief.

Amici are being represented by the firm of Arnold & Porter Kaye Scholer, LLP.

The brief will soon be posted here »