Criminalizing Immigrant Entrepreneurs (and Their Lawyers)

To escape the harsh conditions of work in agriculture or food processing plants, many undocumented immigrants turn to entrepreneurship for safer working conditions and better economic prospects. Transactional lawyers often help these entrepreneurs form limited liability companies or worker cooperatives. Unfortunately, this simple act might expose these lawyers to criminal liability. The Immigration Reform and Control Act of 1986 (IRCA) prohibits anyone from encouraging an undocumented person to reside in the United States. This prohibition has been construed to include everything from employing undocumented housekeepers to procuring falsified documents for citizenship applications, and some courts have even suggested that the encouragement restriction can reach legal advice. Although the Third, Fourth, Seventh, and Eleventh Circuits have construed IRCA's encouragement prohibition in a manner that avoids constitutional issues, the Ninth Circuit's decision in United States v. Sineneng-Smith found IRCA's encouragement prohibition unconstitutionally overbroad under the First Amendment. This Article argues that the courts that upheld the prohibition rewrote the statute, usurped the legislative authority of Congress, and ignored the chilling effect this statute has on wide swaths of protected and socially productive speech. On the other hand, the Ninth Circuit's decision signaled to lawyers and immigrant advocates that providing comfort, inspiration, or other forms of encouragement to undocumented people (including legal advice) will not be treated as a felony. By refusing to rewrite the statute, the Ninth Circuit's decision not only respects Congress's legislative authority, but it also represents sound policy by supporting undocumented entrepreneurship—a boon to the entrepreneur, the entrepreneur's family, and federal, state, and local economies