Ninth Circuit Defines "Encourage or Induce" in the Immigration Context and Finds Law Overbroad - Articles

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Posted by: Chelsea Bennett on Jan 23, 2019

The Ninth Circuit Court of Appeals recently held in United States v. Sineneng-Smith[i], that a law making it a felony to "encourage or induce" illegal entry or residence in the U.S. was overbroad in violation of the First Amendment. Sineneng-Smith ran a consulting firm in California that catered primarily to clients from the Philippines. She promised to help clients obtain permanent residence through the labor certification process, even though she knew that particular pathway to permanent residence was no longer possible. Sineneng-Smith was indicted on 10 counts, including mail fraud and three counts of violating 8 U.S.C. § 1324(a)(1)(A)(iv).

The subsection at issue in this case permits felony prosecution for "Any person who. . . encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law." 8 U.S.C. § 1324(a)(1)(A)(iv).

Sineneng-Smith's defense began by moving to dismiss the immigration counts of the indictment, arguing that the statute was both overly vague and content-based in violation of the First Amendment. The District Court denied her motion without addressing the First Amendment challenges, a 12-day trial ensued, and Sineneng-Smith was found guilty on all three counts of violating subsection (iv). She then moved for a judgment of acquittal, relying on the same arguments used in her motion to dismiss, and she was acquitted of one count.

On appeal to the Ninth Circuit, Sineneng-Smith relied yet again on her vagueness and content-based arguments. After hearing oral argument, the Ninth Circuit elected to open the issue for further briefing from the parties and interested amici. In outlining issues for briefing, the Ninth Circuit asked whether: (1) the statute was overbroad under the First Amendment and if any limiting instructions could cure the First Amendment problems; (2) the statute was void for vagueness and if any limiting instructions could cure the First Amendment problems; and (3) the statute contains an implicit mens rea element. The government sought the plain error standard of review, arguing that Sineneng-Smith had waived her overbreadth argument. However, the court reviewed the case de novo, claiming that Sineneng-Smith's reliance on First Amendment arguments in the District Court preserved an overbreadth argument.

The Ninth Circuit decided the case on overbreadth ground; and thus, it did not address the vagueness challenges. The Court began its analysis by defining what makes a statute overbroad: "In the First Amendment context . . . a law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.'"[ii] To determine if the statute was overbroad, the Court laid out a three-step process: (1) construe the statute; (2) ask whether the statute as construed restricts speech, and if so, whether that speech is protected; and (3) weigh the amount of protected speech that the statute restricts against the statute's legitimate sweep.

Defining "Encourage" and "Induce"

To construe the statute and determine what speech and/or conduct was covered, the Court had to determine the meaning of "encourage" and "induce." The government proposed a definition that one encourages or induces when one "knowingly undertakes a non-de-minimis act that could assist a specific alien in violating civil or criminal immigration laws." The Ninth Circuit found that to adopt this proposed definition would require re-writing the statute, a task reserved for the legislature. Instead, the Ninth Circuit adopted a definition of "encourage" and "induce" based on plain language and context. In the Ninth Circuit’s opinion, "encourage" means "to inspire with courage, spirit, or hope . . . to spur on . . . to give help or patronage to."[iii] Induce means "to lead (a person), by persuasion or some influence or motive that acts upon the will . . . to lead on, move, influence, prevail upon (any one) to do something."[iv] These common usage definitions could encompass speech, conduct, or both.

The Court addressed competing interpretations of "encourage" and "induce" by sister circuit courts. The Fourth Circuit found the terms were synonymous with aiding and abetting and that subsection (iv) did not prohibit a substantial amount of protected speech.[v] The Third Circuit read subsection (iv) to prohibit one "from engaging in an affirmative act that substantially encourages or induces an alien" to come, enter, or reside in the U.S. when the person otherwise might not have done so.[vi]

After defining the two critical terms, the Ninth Circuit ultimately paraphrased subsection (iv) as follows:

[T]o violate the subsection, a defendant must knowingly encourage or induce a particular alien – or group of aliens – to come to, enter, or reside in the country, knowing or in reckless disregard of whether doing so would constitute a violation of the criminal or civil immigration laws. As construed, 'encourage or induce' can mean speech, or conduct, or both, and there is no substantiality or causation requirement.[vii]

Subsection (iv) Restricts Protected Speech

In part two of its analysis, the Ninth Circuit explored whether the statute reaches protected speech and if so, whether the statute restricts a substantial amount of that speech.

The government argued the speech at issue was not protected, since it was similar to aiding and abetting. The Ninth Circuit analyzed relevant exceptions to the First Amendment, such as incitement and speech integral to criminal conduct. The Court found those doctrines did not apply to the speech involved with subsection (iv), since incitement generally concerns violence, rioting, and breach of the peace, and since the subsection at issue criminalizes more speech than just that which is integral to violations of immigration law. Further, in contrast to the aiding and abetting statute, subsection (iv) applies to both criminal and civil violations of immigration law. Aiding and abetting requires the accused assist or participate, and subsection (iv) merely requires encouragement. Aiding and abetting also requires the principal actually commit the underlying offense, whereas there is no such requirement in subsection (iv).

Since the differences between the subsection and aiding and abetting section abounded, and since the speech did not fit any exception to the First Amendment, the Ninth Circuit found that subsection (iv) restricts protected speech.

Subsection (iv) Restricts Too Much Protected Speech

After concluding the statute reaches protected speech, the Court went through a string of hypotheticals to determine if the statute reaches a substantial amount of protected speech. Examples of protected speech included a grandmother telling her grandson that she encourages him to stay in the U.S., general pro-immigrant advocacy on social media or to a gathered crowd, and an attorney who tells a client to stay in the U.S. while defending against removal. While the government countered that such instances have not and would not be subject to prosecution, the Court explained: "[T]he 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."[viii] Adding that "speech on public issues occupies the highest rung of hierarchy of First Amendment values,"[ix] the Court found subsection (iv) encompassed too much protected speech.  


In analyzing 8 U.S.C. § 1324(a)(1)(A)(iv), the Ninth Circuit adopted plain language definitions of "encourage" and "induce" and found that one could encourage or induce by either speech or action. The First Amendment protects speech involved in such encouraging or inducing. Because subsection (iv) penalizes a substantial amount of protected speech, it is unconstitutionally overbroad in violation of the First Amendment.

Elizabeth Patton is an Associate Attorney at the Law Offices of Sean Lewis. She is a 2018 graduate of Belmont University College of Law, where she served as the Executive Submissions Editor for the Belmont Law Review. Elizabeth developed her passion for immigration while a student at Samford University, where she studied International Relations and Latin American Studies. Elizabeth may be reached at

[i] United States v. Sineneng-Smith, 2018 WL 6314287 (9th Cir. Dec. 4, 2018).

[ii]United States v. Stevens, 559 U.S. 460 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, n. 6 (2008)).

[iii]See United States v. Thum,749 F.3d 1143, 1147 (9th Cir. 2014).

[iv]Induce, Oxford English Dictionary Online(3d ed. 2018).

[v]United States v. Tracy, 456 F. App'x 267, 268 (4th Cir. 2011) (per curiam).

[vi]DelRio-Mocci v. Connolly Props. Inc.,672 F.3d 241, 249 (3d Cir. 2012).

[vii]Sineneng-Smith at 30.

[viii]U.S. v. Stevens, 559 U.S. at 480. 

[ix]Sineneng-Smith at 40 (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011).