Published on: Thursday, May 7, 2020

In United States v. Sineneng-Smith, No. 19-67 (May 7, 2020), the United States Supreme Court vacated and remanded the Ninth Circuit's decision holding that 8 USC SS 1324(a)(1)(A)(iv)--which prohibits "inducing or encouraging" unauthorized immigration--is constitutionally overbroad under the First Amendment.

Sineneng-Smith assisted clients working without authorization in the US to file applications for a certain labor certificate program that she knew her clients could not meet because of the long-passed statutory filing deadline.  She was convicted of two counts of SS1324(a)(1)(A)(iv) and (B)(i).  The district court rejected her arguments, which she also advanced on appeal, that the statute did not cover her conduct, and if it did, they violated the Petition and Free Speech Clause of the First Amendment.  On appeal, a Ninth Circuit panel raised the issue of whether the statute was unconstitutionally overbroad, an issue not raised by the parties, and asked three amici to brief the issue. The parties were invited but not required to brief this issue.  After the Ninth Circuit held the statute was unconstitutionally overbroad, the government sought Supreme Court review because the court invalidated a federal statute.


Justice Ginsburg delivered the unanimous opinion of the Court, which did not address the merits of whether the federal criminal statute was unconstitutional.  Instead, the Court said:

[W]e now hold that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. We therefore vacate the Ninth Circuit's judgment and remand the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.

The briefing on the merits is available on the Supreme Court's website here.