From approximately 1990 to April 2008, Evelyn Sineneng-Smith (Respondent) owned and operated an immigration consulting firm in San Jose, California, with additional branches in Beverly Hills, California, Las Vegas, Nevada, and New York, New York.
Sineneng-Smith assisted mostly Filipino immigrants who worked unlawfully in the U.S. home healthcare industry, and who sought lawful permanent resident status. She aided clients with their applications for a Labor Certification which provided undocumented immigrants with a pathway to legal residency.
On April 30, 2001, the Labor Certification process expired, and undocumented immigrants who arrived in the U.S. after December 21, 2000 were ineligible to receive permanent residence through this channel.
Respondent was aware that the irregular migrants had already missed the statutory application-filing deadline. Regardless, Respondent continued to sign new retainer agreements and to advise her clients that she could help them obtain legal residency through the Labor Certification Process.
Respondent charged each migrant listed below over $6,000. Ultimately, Respondent earned more than $3.3 million by deceiving undocumented immigrants into believing that their residency in the U.S. would eventually be legitimized.
At least two of Respondent’s clients testified that they would have left the U.S. if Respondent had informed them that they could not obtain legal residence trough this program.
U.S. District Court for the Northern District of California
A jury found Sineneng-Smith guilty of Counts One through Six of the Superseding Indictment. At a separate hearing, Sineneng-Smith pled guilty to Counts Seven and Eight. The Government then withdrew Counts Nine and Ten, along with the Forfeiture Allegations.
Following the jury’s verdict, Sineneng-Smith moved for a judgment of acquittal, asserting that the Government’s evidence did not support the verdicts. The district (trial) court held that sufficient evidence supported the convictions for two of the three Encouraging/Inducing Illegal Immigration charges (Counts Two and Three), and two of the three Mail Fraud charges (Counts Five and Six). The district court conditionally granted the motion for a new trial as to Counts One and Four.
Sineneng-Smith appealed to the Ninth Circuit Court of Appeals, asserting that the charges should have been dismissed and that the evidence did not support the convictions.
United States Court of Appeals for the Ninth Circuit
Sineneng-Smith brought this appeal as to the convictions on Counts Two, Three, Five, and Six of the Superseding Indictment. She argued that the charges should have been dismissed because “(1) her conduct was not within the scope of [28 U.S.C. § 1324(a)(1)(A)(iv)]; (2) Subsection (iv) is impermissibly vague under the Fifth Amendment [of the U.S. Constitution]; and (3) subsection (iv) violated the First Amendment [of the U.S. Constitution] because it is a content-based restriction on her speech.” She also asserted that the evidence presented at trial did not support her convictions.
The Ninth Circuit Court of Appeals (the “9th Circuit”) named three amici (interested parties) (“’the Federal Defender Organizations of the Ninth Circuit (as a group)[,] the Immigrant Defense Project[,] and the National Immigration Project of the National Lawyers Guild”), inviting them to brief the following issues:
“1. Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem?
2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First Amendment or the Fifth Amendment, and if so, whether any permissible limiting construction would cure the constitutional vagueness problem?
3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any serious constitutional problems the Court might determine existed?”
The 9th Circuit addressed only the first question, holding that § 1324(a)(1)(A)(iv) was unconstitutionally overbroad.
Supreme Court of the United States
The Government petitioned the Supreme Court (SCOTUS) for review because the 9th Circuit judgment invalidated a federal statute, giving SCOTUS proper jurisdiction. SCOTUS granted the petition.
SCOTUS ultimately vacated the 9th Circuit judgment because “the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion.”
SCOTUS stated that the appeals panel intervened in Respondent’s appeal by ordering further briefing by the panel-appointed amici on issues selected by the panel, and allowing Respondent’s initial assertions to be subjugated. SCOTUS stated that while counsel for the parties were permitted to file supplemental briefs following the appointment of the amici, those briefs were limited to responses to the amicus/amici briefs. Furthermore, any amici were permitted to “brief such further issues as they . . . believe the law, and the record calls for.” Amici were granted 20 minutes for argument, while Respondent’s counsel were allocated only 10.
SCOTUS stated that “[i]n the panel’s adjudication, [Respondent’s] own arguments, differently directed, fell by the wayside” in the face of the panel’s own theories about the case.
SCOTUS further stated that there were no extraordinary circumstances that would justify the 9th Circuit panel’s “takeover of the appeal.” Respondent raised vagueness and First Amendment arguments as they pertained to herself – not to the American population as a whole – and the 9th Circuit chose not to address these arguments. Instead, they raised their own constitutional question regarding the statutes at issue.
SCOTUS concluded that the 9th Circuit’s judgment should be vacated, and the case should be remanded for reconsideration of Respondent’s intended appeal.
18 months imprisonment on each of Counts Two, Three, Five, Six, Seven and Eight, all Counts to run concurrently. Three years supervised release on each of Counts Two, Three, Five and Six, and one year on Counts Seven and Eight, all Counts to run concurrently.
Migrants 2 through 7.
Convictions on Counts related to this migrant were vacated by the district court.
Counts Two and Five related to this migrant, who was defrauded out of $7,145 by Sineneng-Smith
Counts Three and Six related to this migrant, who was defrauded out of $6,995 by Sineneng-Smith
Defrauded out of $7,995 by Sineneng-Smith.
Defrauded out of $6,995 by Sineneng-Smith
Defrauded out of $6,995 by Sineneng-Smith
Defrauded out of $7,425 by Sineneng-Smith
Encouraging and Inducing Illegal Immigration for Private Financial Gain
Title 8, United States Code, Section 1324(a)(1)(A)(iv) & B(i)
Counts One of Superseding Indictment (Trial Court), related to Migrant 1.
Encouraging and Inducing Illegal Immigration for Private Financial Gain
Title 8, United States Code, Section 1324(a)(1)(A)(iv) & B(i)
Counts Two and Three of Superseding Indictment (Trial Court), related to Migrants 2 and 3.
Mail Fraud
Title 18, United States Code, Section 1341
Counts Four Superseding Indictment (Trial Court), related to Migrant 1.
Mail Fraud
Title 18, United States Code, Section 1341
Counts Five and Six of Superseding Indictment (Trial Court), related to Migrants 2 and 3.
Willfully Subscribing to a False Tax Return
Title 26, United States Code, Section 7206(1)
Any person who
(1) Declaration under penalties of perjury
Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that. Is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . .
Shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 3 years, or both, together with the costs of prosecution.
Counts Seven and Eight of Superseding Indictment (Trial Court)
Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity
Title 18, United States Code, Section 1957
Counts Nine and Ten of Superseding Indictment (Trial Court).
Criminal Forfeiture Allegations as to: Facilitating Property; Mail Fraud Proceeds; and Money Laundering Proceeds
Title 18, United States Code, Section 982(a)(6)(A)(ii)(II); Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section 2461(c); and Title 18, United States Code, Section 982(a)(1), respectively.
Counts Nine and Ten of Superseding Indictment (Trial Court).
U.S. District Court for the Northern District of California, 10 Cr. 414 (RMW): Superseding Indictment; Verdict Form; Minute Entry re: guilty plea; Order re: Motion for Acquittal; Sentencing Transcript; Judgment.
U.S. Court of Appeals for the Ninth Circuit, 15-10614 Judgment.
Supreme Court of the United States, 19-67 Opinion. https://www.supremecourt.gov/opinions/19pdf/19-67_n6io.pdf
https://www.scotusblog.com/case-files/cases/united-states-v-sineneng-smith/
Title 8 of the United States Code, Section 1324(a)(1)(B)(i) considers profiting off of inducing the encouragement of a migrant’s unlawful stay in the U.S. to be an aggravating circumstance, and therefore enhances potential penalties to which a perpetrator may be subjected.
This matter raises an additional question: does deceiving migrants into remaining in a country, where they are already living unlawfully, constitute an aggravated smuggling offense?
The Respondent deceived migrants into staying in the country illegally in order to exploit them out of their money for Respondent’s own person financial gain. One could argue that this exploitation constitutes an aggravated smuggling offense, regardless of whether or not the migrants were in transit at the time of the offense. Respondent was aware of the migrants’ positions of vulnerability as undocumented people, and knew that the migrants were depending on Respondent to help them achieve legal residence. There is testimony by at least two of the migrants that it was Respondent’s lies that kept the migrants from leaving the country. Her actions – her statements to the migrants and behaviours implying legitimate efforts to achieve legality for her clients – directly resulted in undocumented migrants remaining in the United States. But for those actions, the migrants may have returned to their home countries.
Furthermore, this case provides an example of judicial overreach and its checks in the U.S. American judicial system. SCOTUS reaffirmed that a United States Court may not recast a judicial matter in order to address its own notions. The Respondent’s actions reflected her intention that her appeal addressed the statutes in question as they specifically applied to her, and no one else. The 9th Circuit’s co-optation of the appeal, absent an extraordinary circumstance, comprised unconstitutional overreach by the appeals panel.