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CA10 on First Amendment, INA Sec. 274: US v. Hernandez-Calvillo

July 13, 2022 (1 min read)

US v. Hernandez-Calvillo

"This appeal involves the constitutionality of a federal immigration statute that makes it a crime to encourage or induce a noncitizen to reside in the United States, knowing or recklessly disregarding that such residence violates the law. 8 U.S.C. § 1324(a)(1)(A)(iv). After a jury convicted Jose Hernandez-Calvillo and Mauro Papalotzi (collectively, Appellees) of conspiring to commit this crime, they challenged the statute as overbroad under the First Amendment and successfully moved to dismiss the indictment on that basis. The government appeals. We affirm. Section 1324(a)(1)(A)(iv)’s plain language targets protected speech, and neither the government’s nor the dissent’s proposed limiting construction finds support in the statute’s text or surrounding context. And when properly construed, the statute criminalizes a substantial amount of constitutionally protected speech, creating a real danger that the statute will chill First Amendment expression. ... The statute’s plain language is “susceptible of regular application to protected expression,” reaching vast amounts of protected speech uttered daily. Hill, 482 U.S. at 466. For these reasons, we hold that subsection (A)(iv) is substantially overbroad under the First Amendment. Accordingly, we affirm the dismissal of the indictment."

[Hats off to Mark C. Fleming of Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts (Robert N. Calbi of Law Offices of Robert N. Calbi, Kansas City, Missouri; Daniel T. Hansmeier, Appellate Chief, and Melody Brannon, Federal Public Defender, Kansas Federal Public Defender, Kansas City, Kansas; Eric L. Hawkins and Kevin R. Palmer of Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts; and Thomas G. Sprankling of Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, California, with him on the brief), for Defendants - Appellees!]