40 F.4th 1049
9th Cir.2022Background
- Helaman Hansen ran a fraudulent adult-adoption scheme; he was convicted of multiple fraud counts and two counts under 8 U.S.C. § 1324(a)(1)(A)(iv) for "encouraging or inducing" two specific aliens to overstay visas; the panel affirmed the other fraud convictions but reversed the two subsection (iv) convictions as facially overbroad.
- The Ninth Circuit panel (Hansen, 25 F.4th 1103) held subsection (iv) unconstitutional under the First Amendment overbreadth doctrine and reversed the two §1324(iv) convictions; rehearing en banc was denied.
- Judge Gould wrote a concurrence in the order denying rehearing en banc defending the panel’s overbreadth analysis and criticizing Judge Bumatay’s dissent for rewriting subsection (iv) and misapplying precedent (including misreading Sineneng-Smith).
- Judge Bumatay (joined by several judges) dissented from the denial of rehearing en banc, arguing subsection (iv) should be construed as a solicitation/aiding-and-abetting statute (drawing on history, structure, and mens rea), so it is consistent with the First Amendment and not substantially overbroad.
- Judge Collins also dissented, emphasizing constitutional avoidance and the narrowing effect of the commercial-gain enhancement (§1324(a)(1)(B)(i)), arguing that, so construed, the statute’s legitimate sweep far exceeds any overbreadth.
Issues
| Issue | United States' Argument | Hansen's Argument | Held |
|---|---|---|---|
| Whether §1324(a)(1)(A)(iv) is facially overbroad under the First Amendment | The statute criminalizes encouraging/inducing illegal entry/residence in ways that reach a substantial amount of protected speech and thus is overbroad | Subsection (iv) targets solicitation/aiding-and-abetting of specific illegal entry/residence and therefore falls outside First Amendment protection | Panel: §1324(a)(1)(A)(iv) is facially overbroad; two convictions reversed; rehearing en banc denied (concurrence and dissents recorded) |
| Proper meaning of "encourages or induces" in §1324(iv): broad ordinary meaning vs. criminal-term-of-art (solicitation/facilitation) | Argued by panel majority: ordinary/dictionary meaning sweeps broadly and captures protected speech in many hypothetical contexts | Argued by dissents: terms are longstanding criminal terms of art that signify solicitation or aiding-and-abetting; historical and statutory context supports narrowing | Held by panel: majority applied a common-meaning overbreadth analysis and found substantial protected speech within the statute’s reach; dissents urged narrow criminal-law reading but en banc rehearing denied |
| Application of the canon of constitutional avoidance (narrow construction) | Panel: no plausible, readily available narrowing construction that avoids overbreadth in the statute’s plain terms | Dissents: constitutional avoidance supports construing §1324(iv) as limited to solicitation/facilitation (and, in Hansen’s case, to acts for commercial advantage), which would avoid First Amendment problems | Court (panel): declined to adopt the narrow construction; dissents argued avoidance required it, but rehearing en banc was denied |
| Effect of Sineneng‑Smith and circuit conflict / precedential landscape | Government urged that Sineneng‑Smith vacatur concerned panel-process error and did not decide merits; argued no binding Supreme Court merits holding invalidating §1324(iv) | Dissents argued Sineneng‑Smith and historical precedent counsel restraint and narrower interpretation; also contended Hansen creates or conflicts with other circuits | Held: Sineneng‑Smith vacated an earlier Ninth Circuit merits decision on party‑presentation grounds; panel relied on established overbreadth doctrine (and Tenth Circuit later reached similar result), rehearing en banc denied (no circuit-wide override) |
Key Cases Cited
- United States v. Hansen, 25 F.4th 1103 (9th Cir. 2022) (panel opinion reversing two §1324(a)(1)(A)(iv) convictions as facially overbroad)
- United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020) (Supreme Court vacated Ninth Circuit decision for departure from party-presentation principle; did not decide overbreadth merits)
- United States v. Williams, 553 U.S. 285 (2008) (solicitation of illegal transactions and speech integral to criminal conduct are unprotected)
- United States v. Stevens, 559 U.S. 460 (2010) (discussion of overbreadth as "strong medicine")
- Rosemond v. United States, 572 U.S. 65 (2014) (aiding-and-abetting liability and assistance by words or acts)
- Lees v. United States, 150 U.S. 476 (1893) (Congress may punish those who assist in introduction of excluded aliens)
- United States v. Hoy, 330 U.S. 724 (1947) (interpreting "induce" in immigration statute as solicitation/facilitation)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (elements that increase statutory maximum must be found by jury)
- Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021) (recent Supreme Court reliance on facial overbreadth doctrine)