https://www.law360.com/immigration/articles/1272443/justices-fleeting-unanimity-in-free-speech-immigration-case

Justices’ Fleeting Unanimity In Free Speech Immigration Case

By Paul Schmidt

Law360 (May 11, 2020, 6:09 PM EDT) —

Paul Schmidt

On May 7, the U.S. Supreme Court‘s so-called Bridgegate decision got the attention, but the decision released that day in U.S. v. Sineneng-Smith is also notable.

In a unanimous decision by Justice Ruth Bader Ginsburg, the court pummels a panel of the U.S. Court of Appeals for the Ninth Circuit for overreaching on a constitutional overbreadth issue not argued by the parties below.

Observers expecting a blockbuster resolution of the tension between the First Amendment and criminal sanctions for “inducing or encouraging” extralegal immigration undoubtedly were disappointed.

Nevertheless, I find three significant takeaways from the ruling in Sineneng-Smith.

First, an ideologically fractured court desperately seeks common ground on something relating to immigration enforcement.

Second, the judicial restraint preached by Justice Ginsburg in her opinion conflicts with the U.S. attorney general’s use of the immigration courts to advance his restrictionist policy agenda.

Third, and ironically, Justice Clarence Thomas’ concurring opinion calls not for judicial restraint, but solicits a conservative judicial assault on the overbreadth doctrine that generally protects individuals from government overreach.

Facts

Evelyn Sineneng-Smith, a California immigration lawyer, filed labor certification applications for clients to help them get U.S. green cards. She charged each client more than $6,000, netting $3.3 million.

Smith knew that particular path to a green card involving filing for labor certification and adjusting status without leaving the country had been eliminated by statute, except for those in the country on Dec. 21, 2000, who had applied for a labor certification before April 30, 2001.

Smith’s clients did not satisfy that grandfathering criteria. However, Smith apparently did not tell them that the applications they paid her to file could not lead to successful adjustments of status.

A criminal prosecution followed which included, but was not limited to, charges that Smith had unlawfully induced or encouraged her clients to reside in the U.S. in violation of law. Smith, represented by counsel, argued at trial that the criminal statute penalizing inducing or encouraging unlawful immigration did not apply to her specific situation of filing immigration applications for clients.

She also asserted that interpreting the statute to include her particular situation as a lawyer representing clients seeking immigration status would violate the right to petition and free speech clauses of the First Amendment, specifically as applied to her.

She did not claim that all applications of the criminal inducing or encouraging unlawful immigration statute were unconstitutional under the First Amendment.

A U.S. District Court for the Northern District of California rejected all of Smith’s defenses and convicted her on the inducing or encouraging charge, as well as some additional charges of filing false tax returns and mail fraud that were not contested by the time the case reached the Supreme Court.

Smith appealed her encouraging-or-inducing conviction to the Ninth Circuit.

Ninth Circuit Proceedings

On appeal, Smith advanced the same statutory and constitutional arguments, based on the specifics of her situation, that had failed at trial.

The Ninth Circuit panel basically pushed aside both Smith’s and government counsel. Instead, they appointed three amici — friends of the court — principally to argue the case. According to Justice Ginsburg, this essentially made bystanders out of counsel for the actual parties.

Even more egregiously says Justice Ginsburg, the panel reframed and restated the issues for the amici to address. Instead of the narrow issues argued by the parties on the specific facts of the case, the panel posited three new and much broader issues.

The first was “whether the statute of conviction is overbroad or likely overbroad under the First Amendment.”

Faced with a new theory of the defense suggested by the panel itself, Smith’s lawyer, who was allowed but not required to participate in the supplemental briefing by the amici, merely adopted the amici’s overbreadth argument without discussion.

The panel then overturned Smith’s conviction solely on the basis that the statute was overbroad under the First Amendment.

The solicitor general petitioned the court which took the case because it invalidated a federal statute on constitutional grounds.

The court reversed and remanded, instructing the panel to ditch the overbreadth issue and concentrate on the narrower issues relating to Smith’s specific conduct under the statute, as actually argued by the parties at trial and on appeal to the Ninth Circuit.

Analysis

Misleading “Togetherness”

The court’s unanimous rebuke of the panel below provides insight without much useful guidance. It probably could, and should, have been a two sentence, unsigned vacate and remand, referencing the court’s previous jurisprudence on the essential role of cases and controversies in Article III judging.

Notwithstanding some commentators touting the number of unanimous decisions, this court is riven by a deep ideological split between five conservative GOP-appointed justices moving sharply right and four moderate to liberal Democrat-appointed justices trying to hold the line on important individual rights in the face of government overreach.

Nowhere has this gap been more apparent than in the executive’s aggressive efforts to rewrite, and effectively annihilate, previous American immigration laws and human rights policies.

The court’s recent 5-4 decision vacating a stay in Wolf v. Cook County illustrates this. There, five conservative justices accepted the solicitor general’s invitation to interfere with litigation in the U.S. District Court for the Northern District of Illinois, involving the administration’s rewrite of the so-called public charge rules applicable to immigrants.

The majority’s failure to even explain its decision earned an unusually sharp rebuke from Justice Sonia Sotomayor. Unlike this case that involves one individual, the administration’s rule changes, green-lighted by Cook County, have been cited as deterring many individuals legally in the country from seeking medical advice in this pandemic.

So much for judicial restraint as a norm. Here, by contrast, the justices bridged the gap only by finding a common enemy in the panel below. Don’t expect this agreement to carry over into the merits of more controversial immigration issues.

Immigration Courts Don’t Follow This Standard

My colleagues, former mmigration judges Jeffrey Chase and Susan Roy, pointed me to the dissonance between the court’s admonitions here and the attorney general’s legislate-by-decision approach to the immigration courts.

Both former Attorney General Jeff Sessions and Attorney General William Barr eagerly have reached down into the immigration court system they respectively controlled to implement restrictive immigration policies by precedent decision without invitation from the actual parties to litigation.

In two of the best known instances, Sessions acted unilaterally to change established rules concerning domestic violence asylum claims for women and to eradicate nearly four decades of precedent allowing judges to administratively close low priority or dormant cases on their burgeoning dockets.

Notwithstanding their expressed concerns about uninvited judicial activism, the court has effectively overlooked the glaring operational and constitutional problems embedded in an immigration “court” system run by the chief prosecutor. Will they pay attention when future litigants raise this disconnect?

Justice Thomas’ Ironic Concurrence

Justice Thomas’ concurring opinion attacks the overbreadth doctrine and solicits future challenges to it, presumably from right-wing advocates and activist conservative judges who agree with him.

Right-wing activists like Thomas customarily harken back wistfully to the golden age of American jurisprudence when the exclusively white, male, nearly 100% Christian federal judiciary was perfectly happy to look the other way and bend the rules to favor ruling elites.

Those disfavored were often African Americans, women, children, the poor and others who weren’t part of the club. How would Justice Thomas himself have fared in the past world he longs to re-create?

Conclusion

The substantive constitutional issue unanimously ducked by the court might eventually reappear, particularly if Justice Thomas has his way. But, don’t expect repeats of the court’s manufactured harmony in more controversial aspects of the administration’s attacks on the rights and humanity of migrants, like, for example the Deferred Action for Childhood Arrivals case.

I also wonder if this court can continue ignoring the glaring constitutional deficiencies and clear biases in the current immigration court system, defects they would never accept from any Article III judges?

Paul Wickham Schmidt is an adjunct professor at Georgetown University Law Center. He is a retired U.S. immigration judge, and a former chair and judge at the U.S. Board of Immigration Appeals.

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Many thanks and much appreciation to my good friends and “Round Table” colleagues Judge Jeff Chase and Judge Sue Roy for their ideas and contributions to this article.

Due Process Forever!

PWS😎

05-12-20