Late last year, the U.S. Court of Appeals for the Ninth Circuit concluded that this offense violates the First Amendment because it punishes a substantial amount of protected conduct.The anti-smuggling crime, Immigration and Nationality Act § 274(a)(1)(A)(iv), 8 U.S.C. § 1324(a)(1)(A)(iv), targets anyone 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 is or will be in violation of law.” Anyone convicted of this offense is punishable by up to ten years imprisonment if “the offense was done for the purpose of commercial advantage or private financial gain.”Advocates challenging the smuggling crime’s constitutionality point to the risk that attorneys and other advocates will find themselves under a prosecutor’s glare for counseling migrants about their legal options.

The Eleventh Circuit reversed the convictions on the § 1324(a)(1)(A)(ii) counts as well as harboring counts of the indictment.United States v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010)A prosecution under 8 U.S.C. § 1324(a)(1)(A)(i) for bringing an illegal alien into the country requires some proof that the defendant participated in bringing the alien into the country. Simply providing a phony stamp for his passport that would have assisted him in getting a job was not sufficient evidence to prosecute the defendant under this statute.

Circuit. However, the district court and the Ninth Circuit both declined to stay the district court proceedings while the interlocutory appeal was pending. Today, in a 5-4 decision authored by Justice Kavanaugh, the Court held that district courts’ proceedings must be placed on hold during interlocutory appeals under the FAA. While the FAA itself is silent on the matter, the Court applied its Griggs precedent to conclude that a stay was required “[b]ecause the question on appeal is whether the case belongs in arbitration or instead in the district court,” which means “the entire case is essentially ‘involved in the appeal.’” Justice Jackson filed a dissenting opinion, joined by Justices Sotomayor and Kagan in full, and Justice Thomas in part.View the Court'sdecision.United States v. Hansen, No. 22-179: This criminal law case addressed whether a statute that forbids “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States” is unconstitutionally overbroad. 8 U.S.C. § 1324(a)(1)(A)(IV). Helaman Hansen was charged and convicted under § 1324 for his role in a scheme to deceive hundreds of noncitizens by claiming he could secure them citizenship through “adult adoption.” The Ninth Circuit overturned the conviction, agreeing with Hansen that the statute violated the First Amendment. Today, in a 7-2 opinion authored by Justice Barrett, the Court overruled the Ninth Circuit and held that because § 1324 only forbids purposeful solicitation and facilitation of specific acts, the law is not unconstitutionally overbroad. The decision was based on the Court’s interpretation of the “encourage or induce” language in the statute and its conclusion that Congress included these terms in a “specialized, criminal-law sense” which narrowly applies to the solicitation of unlawful acts. Justice Jackson filed a dissenting opinion joined by Justice Sotomayor.View the Court'sdecision.

In addition to federal immigration law violations, mistakes made during ICE investigations can also lead to charges against companies and their executives. For example, when facing federal scrutiny, companies and their executives should rely on an experienced ICE investigation attorney to help them avoid prosecution for offenses such as:Lying to a Federal Agent (18 U.S.C. Section 1001) – Making false statements to federal agents during an ICE investigation can lead to prosecution under 18 U.S.C. Section 1001. Under this federal law, falsifying, concealing, or covering up any material fact can lead to statutory fines and up to five years of federal imprisonment.Obstruction of Justice (18 U.S.C. Section 1519) – Falsifying, concealing, covering up, or destroying corporate records during an ICE investigation is also a federal criminal offense. Under 18 U.S.C. Section 1519, personnel accused of these acts can face statutory fines and up to 20 years behind bars.Harboring Illegal Immigrants (8 U.S.C. Section 1324) – Companies and individuals that attempt to protect illegal immigrants from ICE can face prosecution under 8 U.S.C. Section 1324 (in addition to facing prosecution under this statute for other immigration-related offenses). Violations of Section 1324 carry statutory fines and up to five years of incarceration.6. Voluntarily Providing Records Too Early Can Be DangerousFor companies that comply, voluntarily providing records to ICE that demonstrate compliance can be a highly effective defense strategy. However, companies need to be extremely careful to avoid voluntarily providing records to ICE too early.The decision to voluntarily provide records to ICE needs to be based on facts, not assumptions. If company leaders think their I-9 compliance program is effective when this is not the case, making a voluntary disclosure could amount to confessing. As a result, before providing any records to ICE, companies should work with their outside counsel to thoroughly evaluate their compliance e

Notwithstanding, she collected $3.3 million from her clients for these untoward services.In turn, she was charged with violating 8 U.S.C. § 1324, which makes it illegal to "encourag[e] or induc[e] 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." The penalty is enhanced if the crime is "done for the purpose of commercial advantage or private financial gain."

Notwithstanding, she collected $3.3 million from her clients for these untoward services.In turn, she was charged with violating 8 U.S.C. § 1324, which makes it illegal to "encourag[e] or induc[e] 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." The penalty is enhanced if the crime is "done for the purpose of commercial advantage or private financial gain."

In United States v. Khalil, No. 15-3819 (2d Cir. May 16, 2017)(Calabresi, Wesley, Lohier), the Second Circuit reversed the defendant’s conviction for transporting an alien within the United States for profit in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and § 1324(a)(1)(B)(i). It did so based on the Government’s failure to put forward sufficient evidence at trial to establish that Khalil transported an alien “in furtherance of” the alien’s illegal stay in the United States.

. v. Richard D., 410 U. S. 614 (1973), in which the Court concluded that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.”The decision is a narrow one that, according to Justice Kavanaugh, might not apply if the federal sovereign totally abandoned prosecutions. However narrow, though, many observers who see everything the Court’s majority does as being political might be surprised that a large majority of the Court has held in favor of the Biden administration in this case.The last case we’ll review today, United States v. Hansen, also has to do with immigration, but it is fundamentally a First Amendment case.Hansen was a scammer who falsely promised hundreds of noncitizens that they could successfully pursue U.S. citizenship through a phony program of “adult adoption.” He made about $2 million bilking immigrants in this scheme. The government charged Hansen with, inter alia, violating 8 U. S. C. §1324(a)(1)(A)(iv), which forbids “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 [activity] is or will be in violation of law.” Following his conviction, Hansen appealed, arguing that the statute’s clause iv was unconstitutionally overbroad. Reversing the Ninth Circuit, the Supreme Court, in an opinion by Justice Barrett (with Justices Jackson and Sotomayor the only dissenters), held that because §1324(a)(1)(A)(iv) forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law, the clause is not unconstitutionally overbroad. A court will hold a statute facially invalid under the overbreadth doctrine if the law “prohibits a substantial amount of protected speech” relative to its “plainly legitimate sweep.” However, that requires a case-by-case review. Here, Congress is held to have used “encourage” and “induce” in clause iv, not in a general sense that might be problem

Since no charge is filed, the new regulations essentially substitute “filing of the charge” with “open[ing] an investigation” to clear any confusion. In other words, the new regulations state that IER must only open an investigation into the alleged discriminatory act within 180 days of the unfair action to satisfy 8 U.S.C. § 1324(d)(3). While this is similar to the time frame allowed for an employee to report an act to IER, the same additional time deadlines associated with filing a complaint in an employee-initiated investigation don’t apply to IER in a self-initiated investigation.

aw defines “citizenship or immigration status” as “citizenship of any person or the immigration status of any person who is not a citizen of the United States.”The law does not expressly ban employers from checking the citizenship or immigration status of current and prospective employees for lawful purposes, such as to comply with the Immigration Reform and Control Act of 1986 (IRCA), which prevents employers from knowingly hiring undocumented immigrants, or individuals who are not authorized to be employed in the United States. Under the IRCA, if an employer knows that a certain job candidate does not have work authorization for U.S. employment, the employer cannot, by law, hire such job candidate. Thus, employers are permitted to take adverse actions against individuals where obligated to do so by law.Other Similar Federal, State, and Local LawsThis new law, while significant in New York, is mirrored in other jurisdictions. On the federal level, the Immigration and Nationality Act, 8 USC § 1324(b), which the U.S. Department of Justice enforces, bans employers from discriminatory hiring or termination based on an individual’s citizenship status.The New York City Human Rights Law (NYCHRL) also prohibits New York City employers from discriminating based on a person’s perceived or actual “alienage and citizenship status” (wherein “alienage” is interchangeable with “immigration status”). The NYCHRL is more generous to individuals than the new state law, as it penalizes employers for discriminating against an individual based on both their actual and perceived immigration or citizenship status. While the New York City Commission on Human Rights has published enforcement guidance for the New York City law, the state has not issued an enforcement guidance from the state on its new law.Looking beyond New York, last August, Illinois amended the Illinois Human Rights Act (IHRA) to make it unlawful for employers to discriminate against employees and job applicants due to their “work author