Few lawyers would accuse the Immigration and Nationality Act of being well drafted. The current law was enacted in 1952, but includes bits and pieces dating back to the founding era, along with major new features that are not always well integrated into the whole. In addition to evoking memories of a time when congressional relief for unauthorized migrants was more possible, United States v. Sineneng-Smith offers a master class in interpreting a creaky, complex statutory structure.
Put simply, the issue is this. 8 U.S.C. § 1324(a)(1)(A)(iv) imposes criminal penalties on 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 in is or will be in violation of law.”
Is this, as the government argues with the support of a single amicus brief, a narrow provision prohibiting criminal solicitation and aiding and abetting? Or is it, as the U.S. Court of Appeals for the 9th Circuit found and a range of amici argue, a constitutionally overbroad statute criminalizing a wide range of protected expression, including political speech, attorney representation, charitable and religious counseling, support and outreach, and grandmothers urging their foreign-born grandchildren not to leave them?