Illegal Encouragement: The Federal Statute That Makes It Illegal to “Encourage” Immigrants to Come to the United States and Why It Is Unconstitutionally Overbroad

Abstract

Section 1324(a)(1)(A)(iv) of Title 8 of the United States Code makes it illegal to “encourage” an alien to come to or reside in the United States. Since that section’s 1986 amendment, the circuits have struggled to adopt a consistent definition for “encourage.” Though some circuits have adopted a broad definition, the Third Circuit has explicitly taken a different route, applying a narrower construction. In addition to these different constructions, the two circuits that addressed the potential overbreadth issue of this subsection have reached contrary conclusions. This Note argues that this provision is facially unconstitutional under the overbreadth doctrine. Applying the analysis from Brandenburg v. Ohio, this Note first argues that the statute regulates protected speech, specifically advocacy speech. The statute’s application criminalizes a substantial number of defendants who are engaging in this protected speech, and thus the statute is overly broad. Finally, this Note suggests that the statute be redrafted by Congress to include stronger words, such as “urge” and “facilitate,” and carve out a special exception for immigrants with remediable claims. These solutions would bring the statute back within the realm of constitutionality.