Tag Archive for: United States v. Hansen

Cyrus Mehta & Kaitlyn Box*

Reappraisal of the Encouragement Provision as Interpreted in United States v. Hansen under Trump’s Immigration Policies  

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In June 2023, the Supreme Court issued its decision in United States v. Helaman Hansen, a case that posed the question whether the federal criminal prohibition on encouraging or inducing unlawful immigration for commercial advantage or private financial gain in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) is unconstitutionally overbroad. As discussed in our first blog on the Hansen case, Helaman Hansen ran an organization called Americans Helping America Chamber of Commerce (“AHA”) that purported to  help undocumented immigrants become U.S. citizens through adult adoption. Hansen falsely advised these individuals that many undocumented immigrants had successfully become U.S. citizens through his program. In reality, it is not possible to obtain U.S. citizenship through adult adoption. Hansen was convicted of several counts of fraud in California, and was found to have violated INA §274(a)(1)(A)(iv)  because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions. He first moved to dismiss the two fraud counts that were based on a violation of INA §274(a)(1)(A)(iv)  on the ground that this provision is facially overbroad, void for vagueness, and unconstitutional as applied to him, but the district court denied his motion. 

Hansen then appealed to the Ninth Circuit, arguing in relevant part that INA §274(a)(1)(A)(iv) is facially overbroad under the First Amendment. The government argued that subsection (iv) was limited to speech integral to criminal conduct, specifically solicitation and aiding and abetting. The Ninth Circuit disagreed, holding that the provision prohibits a broad range of protected speech. One could violate INA §274(a)(1)(A)(iv)  merely by “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States’”, the court reasoned. The court held INA §274(a)(1)(A)(iv)  is unconstitutionally overbroad, and reversed Hansen’s convictions under this provision.  The government is seeking review of the Ninth Circuit’s decision at the Supreme Court, arguing in part that it has historically construed the “encourage” or “induce” language of INA §274(a)(1)(A)(iv)  very narrowly to prosecute those who engaged in serious criminal conduct. 

The same First Amendment overbreadth argument at issue in Hansen was addressed two years ago in United States v. Evelyn Sineneng-Smith. We discussed this case at length in our original blog post on Hansen, excerpts of which are reproduced here. United States v. Evelyn Sineneng-Smith involved an unauthorized practitioner who operated an immigration consulting firm in San Jose, California. Sineneng-Smith represented mostly natives of the Philippines who were unlawfully employed in the home health care industry and who sought to adjust their status to permanent residence through the filing of a labor certification by an employer.  These clients were not eligible to apply for adjustment of status in the United States under INA § 245(i) which expired on April 30, 2001 and they also did not appear to be grandfathered under this provision. Although Sineneng-Smith knew that her clients were not eligible under 245(i), she continued to sign retainer agreements with them and tell them that they could apply for green cards in the United States. At least two of the clients testified that they would have left the country if they were advised that they were not eligible to apply for permanent residence.

Sineneng-Smith was convicted by a jury on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i). She was also convicted on two counts of mail fraud in violation of 18 U.S.C. §1341. The Ninth Circuit reversed her convictions under INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) on the ground that “encourage” and “induce” under their plain meaning restrict vast swaths of protected expression in violation of the First Amendment despite the government countering that the statute only prohibits conduct and a narrow band of unprotected free speech. The court provided several examples of seemingly innocuous conduct that could constitute a criminal violation of the provision, including one that is especially troubling for immigration lawyers – an attorney telling her client that she should remain in the country while contesting removal, because, for example, non-citizens within the United States have greater due process rights than those outside the United States, and because as a practical matter, the government may not physically remove her until removal proceedings have been completed. The Supreme Court ultimately dismissed the case on other grounds, particularly for having departed from the party presentation principle. 

The Supreme Court ultimately upheld Hansen’s conviction, noting that, in order to challenge a law as overbroad, “[the] law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep”. The Court also rejected the idea that the encouragement provision is unconstitutionally overbroad. Justice Amy Coney Barrett, writing for the majority, acknowledged that the terms “encourage or induce” can have a broad meaning. However, the Court held that their usage in the encouragement provision is in the “specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation”, which also corresponds to the widespread understanding of these terms when the law was passed by Congress in 1885, and later modified in 1917. The Court also rejected Hansen’s argument that statutory revisions eliminating words like “assist” and “solicit” render the provision overbroad, stating: “Hansen believes these changes dramatically broadened the scope of clause (iv)’s prohibition on encouragement, but accepting that argument would require the Court to assume that Congress took a circuitous route to convey a sweeping — and constitutionally dubious — message. The better understanding is that Congress simply streamlined the previous statutory language”. 

The Court found that the encouragement provision “does not have the scope Hansen claims, so it does not produce the horribles he parades”. “To the extent that clause (iv) reaches any speech”, the Court determined, “it stretches no further than speech integral to unlawful conduct”. The majority opinion went on to state the “clause (iv) criminalizes speech that solicits or facilitates a criminal violation, like crossing the border unlawfully or remaining in the country while subject to a removal order.” Even if the encouragement provision does not apply as broadly as Hansen argued, even these applications could be problematic for immigration lawyers and advocates. Lawyers might advise their clients that they could apply for asylum or related relief, if they enter the United States at the border, for example, or that they can attempt to reopen a removal order if they remain in the United States. 

In her dissent, joined by Justice Sonya Sotomayor, Justice Ketanji Brown Jackson argued that the Court’s decision was an attempt to retroactively interpret as constitutional a provision is facially overbroad, stating: “If this Court is willing to redline Congress’s work to save it from unconstitutionality, it ‘sharply diminish[es] Congress’s incentive to draft a narrowly tailored law in the first place”. Justice Jackson also referenced the Ninth Circuit’s holding in Hansen v. United States that the provision was overbroad in her dissent. 

Although not considered by the Supreme Court in its decision, the previous Ninth Circuit case,   illustrates how easily an immigration lawyer could violate INA §274(a)(1)(A)(iv) by discussing even general immigration policies and consequences with undocumented clients. In United States v. Henderson, 857 F. Supp. 2d 191 (D. Mass. 2012), the government prosecuted a U.S. Customs and Border Patrol supervisor under this provision for “advis[ing her undocumented] cleaning lady generally about immigration law practices and consequences.” 857 F. Supp. 2d at 193. As Judge Bumatay points out in his dissent of the Ninth Circuit’s decision denying an en banc hearing,  the conduct at issue in Henderson may be more egregious than it first appears – the CBP supervisor knowingly engaged an undocumented employee and “coach[ed] the employee on how to evade immigration authorities while residing in the country”. Still, the Ninth Circuit majority in Hansen cited the example of Henderson being prosecuted for advising her cleaning lady about immigration law practices and consequences, and thus “makes plain the ability of subsection (iv) to chill speech.” 

A new Department of Education Final Rule that excludes organizations who have a “substantial illegal purpose” from qualifying as employers under the “public service loan forgiveness (PSLF)” program represents another effort by the Trump administration to target immigration lawyers and advocates. The final rule was published in response to a March 2025 Executive Order that directs the Secretary of Education to propose revisions to 34 C.F.R. 685.219, Public Service Loan Forgiveness Program to ensure that “individuals employed by organizations whose activities have a substantial illegal purpose shall not be eligible for public service loan forgiveness”. Among the “activities that have a substantial illegal purpose” enumerated in the executive order and final rule is “aiding or abetting violations of 8 U.S.C. 1325 or other Federal immigration laws”. A group of non-profit organizations including the American Immigration Council have already filed a lawsuit challenging the rule, arguing that it “will make it more difficult for employers in certain fields, such as advocacy on behalf of immigrants, to recruit and train employees, and will chill politically disfavored but legal activities by PSLF employers…The Rule is contrary to the PSLF statute, exceeds the Department’s regulatory authority, and violates the constitutional rights of nonprofits whose employees are statutorily eligible for PSLF.”

In our first blog on the Hansen case, we advised that practitioners can refrain from expressly advising or encouraging clients to remain in the U.S. in violation of the law, and instead outline both the adverse consequences and potential benefits of this course of action to clients. Immigration lawyers should also keep in mind that ABA Model Rule 1.2(d), which has analogs in many state rules of professional responsibility, states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” While it may be unlikely that an immigration lawyer advising an undocumented client to remain in the United States in order to become eligible for an immigration benefit down the road would be prosecuted under INA §274(a)(1)(A)(iv), but presenting the general consequences and benefits of remaining in the U.S. in violation of the law, as well as staying within the confines of ABA Model Rule 1.2(d), can offer practitioners some guidelines for avoiding potential liability. 

AILA and numerous other immigration organizations filed an amicus brief to the Supreme Court in Hansen v. United States that pointed out the troubling implications that the encouragement provision could have for immigration lawyers:

Elliptical counseling is particularly ill-suited to the immigration context, which is high-stakes and complex. Clients in this area need straightforward advice about what to do. And it would be especially strange to fault attorneys for advising noncitizen clients about remaining in the United States in violation of civil immigration laws, when those laws themselves condition numerous benefits on physical presence in the United States.

As we noted previously in a second blog that discusses the ethical issues raised by Hansen, a lawyer who hedges their  advice in conditional probabilities may be at risk of failing to provide competent representation. Even the government’s brief in United States v. Hansen assured that lawyers  will not be prosecuted if  they advise their clients that they are unlikely to be removed. This is in contrast to a lawyer strongly recommending that the undocumented client remain in the US in the hope of seeking a benefit in the future, and the government’s brief or the Supreme Court in its final decision did not provide any assurance that such advice would insulate the lawyer from prosecution under INA §274(a)(1)(A)(iv). The government offered the example of a lawyer advising a client in removal proceedings who has been released on bond to stay in the US but that was different from advising an undocumented client whose US citizen child will turn 21 in two years to remain in the US, which is when the parent would qualify for adjustment of status.

Some clients may be unable to interpret opaque advice from their lawyers, and a lawyer may not provide adequate representation in this scenario unless she gives the client a clearer recommendation.  ABA Model Rule 1.1 and some state analogs caution that “a lawyer shall provide competent representation”, the “shall” language leaving little room for error. Additionally, as noted above,  it may be necessary for an immigration lawyer to frankly advise an undocumented client to stay in the US in order to apply for a benefit like adjustment of status, a T visa, or DACA, which would be unavailable to the client if she left the country. It is difficult to imagine how a lawyer could provide competent representation to their client without outlining the immigration benefits that the client may be eligible for and advising them how to obtain them by remaining in the US.  INA §274(a)(1)(A)(iv) continues to chill the ability of the lawyer to provide such advice and thus inhibit competent representation. Operating within the contours of Rule 1.2(d) might impede rather than facilitate competent representation in the immigration context. The Supreme Court in in United States v. Hansen did not provide  more clarity, and the government’s assurance that they would not prosecute lawyers was under the Biden administration  would likely not hold under the Trump administration whose objective is to remove as many noncitizens from the US under the pretext that the US has been subjected to an alien invasion.  The White House Memo encouraging the prosecution and sanctioning of immigration lawyers  because they allegedly coach their clients to  “circumvent immigration policies enacted to protect our national security and deceive the immigration authorities and courts into granting them undeserved relief” further diminishes the assurances that the government provided in United States v. Hansen. Immigration lawyers will need to continue to carefully  operate within the framework of ABA Model Rule 1.2(d) even if it curbs their ability to provide competent representation to clients. 

(This blog is for informational purposes and should not be viewed as a substitute for legal advice). 

 

Cyrus Mehta

Will United States v. Hansen Come Back to Bite Trump?  

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By Cyrus D. Mehta and Kaitlyn Box*

Former President Trump was indicted on August 1, 2023 by Special Counsel Jack Smith for his efforts to overturn the 2020 elections. Although Trump believes his actions were protected by the First Amendment, a recent Supreme Court case involving an immigration statute, United States v. Hansen,  held that speech constituting fraud  is not protected under the First Amendment.  Will Hansen come back to bite Trump?

In two previous blogs, here and here, we have discussed the United States v. Hansen case, the central question of which was whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] 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” is unconstitutionally overbroad. Helaman Hansen, who ran an organization called Americans Helping America Chamber of Commerce (“AHA”) purporting to help undocumented immigrants become U.S. citizens through adult adoption, had been convicted of violating INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions.

Hansen’s convictions eventually were vacated by the Ninth Circuit, which held that the encouragement provision is overbroad and unconstitutional, as it prohibits a broad range of protected speech . Hansen and amici argued that the encouragement provision could punish even a lawyer who provides certain types of legal advice to a noncitizen, or an aide worker who advises an undocumented immigrant to take shelter in the U.S. during a natural disaster.  The government sought review by the Supreme Court, asserting among other arguments, that INA §274(a)(1)(A)(iv) is not facially overbroad because the terms “encourage” and “induce” in the encouragement provision are terms of art borrowed from criminal law that refer to specific and egregious conduct, namely facilitation and solicitation. The Supreme Court granted certiorari and, in its decision issued on June 23, 2023, held that the encouragement provision is not unconstitutionally overbroad because it uses “encourage or induce” “in its specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation”.

In our previous blogs, we noted the troubling implications that Hansen could have for immigration lawyers and their ability to effectively advise their clients, as the plain language of the statute could be read to prohibit an immigration lawyer from advising an undocumented client to remain in the U.S. to avail of an immigration benefit that would be unavailable to the client if he left the country. We also noted that immigration lawyers might choose to adopt a practice of advising clients only about the risks and benefits of remaining in the U.S., though giving elliptical advice of this kind might not always constitute competent representation. In its decision, however, the Supreme Court read the encouragement provision to narrowly apply only to intentional facilitation and solicitation. By making it clear that the encouragement provision “stretches no further than speech integral to unlawful conduct, which is unprotected”, the Supreme Court’s decision may alleviate, at least in part, concerns that upholding the provision would have a chilling effect on competent legal advice.

Hansen has recently come back into the spotlight in relation to Donald Trump’s August 1, 2023 indictment on four charges under federal statutes – conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct a federal proceeding, and conspiracy against rights – stemming from the administration’s efforts to overturn the results of the 2020 presidential election. Trump’s supporters, including his lawyer John Lauro, have portrayed the indictment as an attack on Trump’s First Amendment right to engage in political speech. As Walter Olson points out in a Cato Institute essay, the indictment itself outlines many of the false claims that Trump made in the context of the 2020 presidential election, but does not explicitly “punish the former president for speech or advocacy as such”. Moreover, the Constitution’s generous protections of political speech do not extend to all types of speech, including speech constituting fraud, as analyses of the indictment have noted.  The Supreme Court’s holding in Hansen makes clear that the First Amendment does not protect speech that facilitates the commission of crimes under federal statutes. Helaman Hansen, too, had been charged with criminal solicitation under INA §274(a)(1)(A)(iv) and the Supreme Court ultimately rejected the idea that his conduct was protected by the First Amendment. The Supreme Court in Hansen, quoting Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003), clearly noted that “the First Amendment does not shield fraud[.]” In an Election Law Blog post, Ciara Torres-Spelliscy observes that “…the Supreme Court […] treats fraud as a different and unprotected category that is outside of the First Amendment’s protections.”

The Trump administration was characterized by overwhelming negative views on immigrants and the promulgation of draconian immigration policies, many of which are analyzed in our prior blogs. In his remarks to the Executive Office for Immigration Review in 2017, then-Attorney General Jeff Sessions once made a reference to “dirty immigration lawyers”, indicating that the administration held immigration lawyers in contempt, as well. It is thus ironic that the same Supreme Court decision that could leave immigration lawyers vulnerable to prosecution has the potential to snare Trump himself, as well. Hansen is a rather double-edged decision – although it could have problematic aspects for immigration lawyers, it may by the same token prove useful in striking down any claims by Trump that the misinformation he spread in an attempt to fraudulently overturn the 2020 election is protected as First Amendment speech.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

United States v. Hansen: Supreme Court Once Again Agrees to Hear Constitutionality of a Smuggling Statute That Could Impact Immigration Lawyers

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By Cyrus D. Mehta and Kaitlyn Box*

On December 9, 2022, the Supreme Court granted certiorari in United States v. Helaman Hansen, a case that poses the question whether the federal criminal prohibition on encouraging or inducing unlawful immigration for commercial advantage or private financial gain in violation of  INA §274(a)(1)(A)(iv) is unconstitutionally overbroad. Helaman Hansen ran an organization called Americans Helping America Chamber of Commerce (“AHA”) that purported to  help undocumented immigrants become U.S. citizens through adult adoption. Hansen falsely advised these individuals that many undocumented immigrants had successfully become U.S. citizens through his program. In reality, it is not possible to obtain U.S. citizenship through adult adoption. Hansen was convicted of several counts of fraud in California, and was found to have violated INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions. He first moved to dismiss the two fraud counts that were based on a violation of INA INA §274(a)(1)(A)(iv) on the ground that this provision is facially overbroad, void for vagueness, and unconstitutional as applied to him, but the district court denied his motion.

Hansen then appealed to the Ninth Circuit, arguing in relevant part that INA §274(a)(1)(A)(iv) is facially overbroad under the First Amendment. The government argued that  that subsection (iv) was limited to speech integral to criminal conduct, specifically solicitation and aiding and abetting. The Ninth Circuit disagreed, holding that the provision prohibits a broad range of protected speech. One could violate 8 U.S.C. § 1324(a)(1)(A)(iv) merely by “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States’”, the court reasoned. The court held INA §274(a)(1)(A)(iv) is unconstitutionally overbroad, and reversed Hansen’s convictions under this provision.  The government is seeking review of the Ninth Circuit’s decision at the Supreme Court, arguing in part that it has historically construed the “encourage” or “induce” language of INA §274(a)(1)(A)(iv) very narrowly to prosecute those who engaged in serious criminal conduct.

The same First Amendment overbreadth argument at issue in Hansen was addressed two years ago in United States v. Evelyn Sineneng-Smith. We discussed this case at length in a previous blog, excerpts of which are reproduced here. United States v. Evelyn Sineneng-Smith involved an unauthorized practitioner who operated an immigration consulting firm in San Jose, California. Sineneng-Smith represented mostly natives of the Philippines who were unlawfully employed in the home health care industry and who sought to adjust their status to permanent residence through the filing of a labor certification by an employer.  These clients were not eligible to apply for adjustment of status in the United States under INA § 245(i) which expired on April 30, 2001 and they also did not appear to be grandfathered under this provision. Although Sineneng-Smith knew that her clients were not eligible under 245(i), she continued to sign retainer agreements with them and tell them that they could apply for green cards in the United States. At least two of the clients testified that they would have left the country if they were advised that they were not eligible to apply for permanent residence.

Sineneng-Smith was convicted by a jury on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i). She was also convicted on two counts of mail fraud in violation of 18 U.S.C. §1341. The Ninth Circuit reversed her convictions under INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) on the ground that “encourage” and “induce” under their plain meaning restrict vast swaths of protected expression in violation of the First Amendment despite the government countering that the statute only prohibits criminal conduct and a narrow band of unprotected free speech. The court provided several examples of seemingly innocuous conduct that could constitute a criminal violation of the provision, including one that is especially troubling for immigration lawyers – an attorney telling her client that she should remain in the country while contesting removal, because, for example, non-citizens within the United States have greater due process rights than those outside the United States, and because as a practical matter, the government may not physically remove her until removal proceedings have been completed. The Supreme Court ultimately dismissed the case on other grounds, particularly for having departed from the party presentation principle.

It remains to be seen how the Supreme Court rules in Hansen, but its decision could carry important implications for immigration lawyers. Given the striking breadth of INA §274(a)(1)(A)(iv), a lawyer telling an undocumented client simply “I encourage you to remain in the United States” – perhaps because the client would later become eligible to seek adjustment of status – could render her vulnerable to prosecution. The Ninth Circuit in Hansen provided numerous other examples of protected speech that could potentially be prosecutable according to the plain text of the statute, including encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to undocumented immigrants.

The Ninth Circuit considered a case that illustrates how easily an immigration lawyer could violate INA §274(a)(1)(A)(iv) by discussing even general immigration policies and consequences with undocumented clients. In United States v. Henderson, 857 F. Supp. 2d 191 (D. Mass. 2012), the government prosecuted a U.S. Customs and Border Patrol supervisor under this provision for “advis[ing her undocumented] cleaning lady generally about immigration law practices and consequences.” 857 F. Supp. 2d at 193. As Judge Bumatay points out in his dissent of the Ninth Circuit’s decision denying an en banc hearing,  the conduct at issue in Henderson may be more egregious than it first appears – the CBP supervisor knowingly engaged an undocumented employee and “coach[ed] the employee on how to evade immigration authorities while residing in the country”. Still, the majority  in Hansen cited the example of  Henderson being prosecuted for advising her cleaning lady about  immigration law practices and consequences, and thus “makes plain the ability of subsection (iv) to chill speech.” While the government has maintained that it will use INA §274(a)(1)(A)(iv) to prosecute persons who engage in the sort of criminal conduct that Hansen engaged in, this broad provision could also allow an overzealous prosecutor to go after a well meaning worker in a nonprofit who encourages an undocumented immigrant to take shelter during a natural disaster.

In the absence of clarity on how INA §274(a)(1)(A)(iv) could be applied to immigration lawyers advising their clients, practitioners can refrain from expressly advising or encouraging clients to remain in the U.S. in violation of the law, and instead outline both the adverse consequences and potential benefits of this course of action to clients. Immigration lawyers should also keep in mind that ABA Model Rule 1.2(d), which has analogs in many state rules of professional responsibility, states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” While it may be unlikely that an immigration lawyer advising an undocumented client to remain in the United States in order to become eligible for an immigration benefit down the road would be prosecuted under INA §274(a)(1)(A)(iv), but presenting the general consequences and benefits of remaining in the U.S. in violation of the law, as well as staying within the confines of ABA Model Rule 1.2(d), can offer practitioners some guidelines for avoiding potential liability.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.