Ban on encouraging illegal US immigration ‘unconstitutional’

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A US appeals court has ruled that a federal law making it a crime to ‘encourage or incite’ non-US citizens to enter and live in the USA illegally is ‘unconstitutional’ because it could hinder free speech. 


In a 2 – 1 decision, the 10th US Circuit Court of Appeals said that the law, which is part of a wider statute that prohibits human smuggling, ‘criminalizes vast amounts of protected speech’ – for example, urging family members to remain in the US after their US visas expire or informing non-US citizens about social services available to them.

Circuit Judge, Nancy Moritz, said: “Although impossible to quantify with exact precision, these commonplace statements are likely repeated countless times across the country every day.”


Court backs Kansas federal judge

The Court of Appeals ruling supports a judgement made by a Kansas federal judge who recently dismissed indictments accusing two men of violating the law by helping to operate a scheme to employ immigrants in the US illegally in construction jobs, according to a report published by Reuters.

The US Department of Justice (DoJ) has not yet commented on the ruling concerning the two men, nor have the lawyers of the defendants, Mauro Papalotzi and Jose Felipe Hernandez-Calvillo.

The law currently imposes criminal penalties on anyone who ‘encourages or incites immigrants to come to the US and live in the country illegally, knowing or in reckless disregard of the fact that such entry or residence is or will be in violation of US immigration laws’.

The latest ruling in the 10th US Circuit Court of Appeals has created a divide with the 4th Circuit, which upheld the law back in 2011. 

In 2018, the 9th Circuit described the law as ‘unconstitutional’. However, in 2020, the Supreme Court ruled that the 9th Circuit ‘did not have the authority to address the issue because the defendant in the case had not raised it’.

In the recent case, the DoJ insisted that the law does not use the words ‘encourage’ and ‘induce’ in the ordinary sense, but rather as synonyms for criminal facilitation. 


US Constitution

However, Moritz, accompanied by Circuit Judge Scott Matheson, said that there was ‘no guarantee that the law could not be used to punish an array of speech protected under the 1st Amendment of the US Constitution’.

In dissent, Circuit Judge Bobby Baldock said that ‘despite the law’s broad wording, it necessarily requires that a defendant intended to solicit conduct that violates US immigration laws. “That speech is integral to criminal conduct, and is not protected by the 1st Amendment,” Baldock argued.

News of the ban on encouraging illegal immigration being unconstitutional follows a US Supreme Court ruling that will allow Biden to end the controversial, Trump-era Remain in Mexico policy.

Biden has being trying to scrap the ‘Remain in Mexico’ policy since the start of his administration. The Supreme Court ruled 5 – 4 in Biden’s favor, and stated that US immigration law gives the Biden administration discretion to end the controversial Remain in Mexico policy. can help with US employment-based visas

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