The Tenth Circuit struck down a federal law that makes it illegal to encourage noncitizens to enter or live in the United States. They stated that the law is unconstitutional, as it would violate the First Amendment right to free speech. U.S. Circuit Judge Moritz agreed with a lower court’s decision to invalidate the law, which makes it a crime to encourage any noncitizen to enter and/or live in the U.S. while knowing that this activity would be against U.S. law.

This comes in response to a federal government appeal that challenged this lower court’s decision to dismiss an indictment against an unnamed company. The company acted as an intermediary between construction companies and groups of primarily noncitizens working as subcontracted construction crews. The government claimed that the company had encouraged noncitizen workers to enter the U.S. in violation of immigration law. The jury of a subsequent trial found two individuals guilty of conspiring to encourage or induce, but not guilty of three other counts of encouraging or inducing. These two individuals avoided conviction and indictment by arguing that the object of the alleged conspiracy was unconstitutional and violated their First Amendment right to free speech.

The Tenth Circuit judge explained that the verbiage of “encourage” and “induce” encompasses conduct and speech, and nothing in the law gave those terms a narrower meaning referring specifically to criminal activity. She also added that the law did not specify that a noncitizen encouraged to enter and/or reside in the United States would be committing any immigration-related crime or any crime at all. The law would criminalize the encouraging of any noncitizen to enter and/or reside in the United States, regardless of if the noncitizen actually did so or not. It could also potentially criminalize immigration attorneys for providing legal advice to noncitizens.

Circuit Judge Baldock, the sole dissenter, stated that he thought the court was making the case unnecessarily complicated. He claimed that the law in question could be considered a solicitation statute, given the use of common-sense definitions of “encourage” and “induce” and the Supreme Court’s instructions for overbreadth cases.

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