MARY LOUISE KELLY, HOST:
At the Supreme Court today, two immigration cases - one centers on the advice given to illegal immigrants. In the other, a divided court ruled that the parents of a Mexican boy who was shot and killed by a Border Patrol agent cannot sue the officer. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In 2010, 15-year-old Sergio Hernandez and his friends were playing chicken at the U.S.-Mexican border, running up and touching the border fence and then running away and hiding. Video of the scene shows Sergio peeking out from behind a railroad trestle on the Mexico side as agent Jesus Mesa Jr. points a gun, fires three shots and kills the boy.
Today, the Supreme Court ruled that the boy's parents could not sue the agent for damages. The vote was 5-4, with the court's conservative justices refusing to allow damage suits for cross-border shootings and the court's liberal justices castigating the court majority for giving a free pass to, quote, "rogue actions" of law enforcement officers.
Following the opinion announcement, the court heard arguments in a very different immigration case - one involving the First Amendment. At issue was a statute that critics say makes it a crime for grandparents, ministers, lawyers and human rights activists to encourage or advise illegal immigrants to stay in the country.
The case involves the conviction of a California woman named Evelyn Sineneng-Smith, who ran an immigration consulting business in California that served mainly Filipino home health care workers. Between 2001 and 2008, she collected more than $3 million from clients applying for adjustment of their immigration status. The adjustment program, however, had ended in 2001, so the clients she applied for were not actually eligible for the adjustment. Sineneng-Smith was subsequently convicted of mail fraud, tax violations and also of illegally encouraging or inducing an alien to remain in the U.S.
It is the encouraging and inducing crime that was at issue today. The Ninth Circuit Court of Appeals threw out the conviction on those counts as a violation of the First Amendment free speech guarantee. And advocacy groups, from liberal to conservative, have urged the Supreme Court to do likewise. The defendant's lawyer, Mark Fleming, told the Supreme Court today that the statute is just too broad. As he put it later...
MARK FLEMING: It's so broad it doesn't ultimately matter that you even want the person to stay here. It doesn't ultimately matter whether the person actually stays here. All that's required is that you encourage somebody and that you know that they're here without lawful immigration status, and then you can go to federal prison for five years.
TOTENBERG: Inside the court, Fleming told the justices that the statute has historically not been used much. But the Trump administration, he said, has recently made it a focus of enforcement against U.S. citizens, quote, "for their prayer, for their speech and for their legal advice."
Justice Alito asked, what if a bullied and depressed teenager calls up a friend and says he's going to kill himself, and the friend says, I'm tired of hearing this from you; you're a coward. Why don't you just do it? Pull the trigger. Asked Alito, is that speech protected by the First Amendment? No, replied lawyer Fleming, because that is inciting imminent harm, and the Supreme Court has said that's not protected.
Defending the law, Assistant Solicitor General Eric Feigin took more incoming fire from an ideologically diverse set of justices. Chief Justice Roberts - what about a grandmother who urges her granddaughter who's here illegally to stay? Justice Kavanaugh - what about a charity that provides food to people here illegally? Justice Sotomayor - what about lawyers giving advice to people at the border or the employer who advises her housekeeper that if she goes home, she may not be able to return? Justice Gorsuch noted that being in the country illegally is not itself a crime, so why is encouraging someone to stay a crime? A decision in the case is expected by summer.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.