United States v. Sineneng-Smith, No. 15-10614 (9th Cir. 2020)
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On remand from the Supreme Court, the Ninth Circuit affirmed defendant's convictions on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i)). Defendant, who operated an immigration consulting business, continued to sign retainer agreements and inform clients that they could obtain green cards via a labor certification program under Section 245i of the Immigration and Nationality Act, which defendant knew had expired.
The panel rejected defendant's contention that the conduct charged is beyond the scope of Subsection (A)(iv) and held that the fact that engaging in the underlying section 245i process may have yielded some legitimate benefit to defendant's clients does not detract from her culpability under Subsection (A)(iv). The panel also held that defendant did not lack fair notice that her conduct violated the law and her prosecution did not violate due process; the Subsection (A)(iv) charges against defendant were not impermissibly vague, and the district court did not err by refusing to dismiss them; and, because defendant's conduct was not protected by the First Amendment, the district court did not err by denying her motion to dismiss the charges on First Amendment grounds. Finally, the panel held that the evidence was sufficient to establish that defendant encouraged or induced her clients to remain in the United States.
Court Description: Criminal Law. On remand from the Supreme Court, the panel affirmed convictions on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain (8 U.S.C. §§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i)), in a case in which the defendant, who operated an immigration consulting firm, continued to sign retainer agreements and inform clients that they could obtain green cards via a labor certification program under Section 245i of the Immigration and Nationality Act, which the defendant knew had expired. The panel rejected the defendant’s argument that Subsection (A)(iv) is limited to conduct involving fraud, false documents, or fraud against the government; and held that the fact that engaging in the underlying § 245i process may have yielded some legitimate benefit to the defendant’s clients does not detract from the defendant’s culpability under Subsection (A)(iv). Rejecting the defendant’s contention that she lacked fair notice that her conduct violated the law, the panel wrote that the charged conduct fell within the plain meaning of the statute. The panel wrote that the fact that the government approved numerous labor certification and I-140 alien-worker petitions for the defendant’s clients did not deprive her of fair notice that her representations to the clients covered by the UNITED STATES V. SINENENG-SMITH 3 charges—knowingly misleading them into believing that the approved petitions could lead to permanent residence and thereby encouraging them to remain illegally in the country—constituted unlawful encouragement. The panel rejected the defendant’s contention that interpreting Subsection (A)(iv) to prohibit the charged conduct renders the statute impermissibly vague as applied to her. The panel also rejected the defendant’s contention that the charged conduct was protected by the Free Speech and Petition Clauses of the First Amendment. Rejecting the defendant’s challenge to the sufficiency of the evidence, the panel held that a rational trier of fact could have found beyond a reasonable doubt that the defendant, who provided two clients with the false hope that their retention of her services for each step in the § 245i labor certification process could lead to permanent residency, encouraged them to remain in the United States in violation of Subsection (A)(iv).
This opinion or order relates to an opinion or order originally issued on December 4, 2018.
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