Legal Docket – Immigration, fraud, and terrorism


NICK EICHER, HOST: Let’s get going now on today’s Legal Docket. I’ll kick things off with a decision handed down earlier this month. The case is called Kansas v Garcia.

It asked what seemed a simple question: Can states prosecute someone, a, who is in the United States illegally, and, b, who uses stolen Social Security numbers to get a job? 

The answer, in a 5-4 decision, is yes, with conservative justices making up the majority.

REICHARD: The conflict over this had to do with the federal form I-9. This is the document employers and the government use to verify identity and authorization to work in the United States. 

A law that governs I-9 says prosecutors cannot use the form for purposes other than for specified crime enforcement. So three noncitizens convicted of identity theft argued that prosecutors broke that law by using I-9 information against them. 

Kansas Attorney General Derek Schmidt had the winning argument in October when the court heard the case:

SCHMIDT: Our laws apply in all settings, to all people, citizen and alien alike. Respondents were convicted because they stole other people’s personal information with intent to defraud. But in Respondents’ view, these state criminal laws that govern everybody else do not apply to them.

EICHER: Key to the decision is that Kansas relied on information from the state form. That although the same info was on the federal form, that didn’t taint its use. And that federal law does not “preempt” state law in this case. 

What this means is it’s more likely that states will use their criminal laws to go after unauthorized workers.

REICHARD: On to oral arguments, and we have three cases today, so hang on to your seat. We’re moving fast. 

First up, a provocative question: Do you have the right to encourage someone to break U.S. immigration laws?

Think about the word, “encourage.” What exactly does that mean? In this case, the federal law in question makes it a felony for any person, in the words of the statute, “to encourage or induce an undocumented alien to illegally enter or remain in the United States for the purpose of commercial advantage or financial gain.”

Sounds clear enough. 

Yet Chief Justice John Roberts posed a scenario to Assistant to the Solicitor General, Eric Feigin, who argued in support of the law:

ROBERTS: Well, let’s suppose a grandmother whose granddaughter is in the United States illegally tells the granddaughter, you know, “I hope you will stay, because…I will miss you, things will not get better if you go back, so I encourage you to stay.”  That would be illegal under the statute, right?

FEIGIN: It would not be illegal under the statute, Your Honor, and here’s why …

EICHER: Feigin explained that sort of communication does not cross the line. Criminal complicity requires something more: something like making money off an unlawful venture. Not a grandma and her granddaughter talking to one another.

The facts in this case, though, aren’t that simple. 

The main character here is Evelyn Sineneng-Smith. She’s an American citizen, and had been an immigration consultant in California who eventually got in trouble with the law.

For example, she billed clients thousands of dollars for paperwork to obtain legal residence, even though the time to do that had already expired.

REICHARD: The focus of the case before the Supreme Court deals with  statements she made encouraging people here illegally to stay. A jury found her guilty of violating the law against it.

But her lawyer argues the law is so over broad it’s unconstitutional.

And most of the justices seemed sympathetic to that argument. Listen to Justice Sonia Sotomayor question Feigin, lawyer for the government defending the law:

SOTOMAYOR: Mr. Feigin, what in reading this statute would give an average person notice of all of the limitations you’re suggesting to us?  Because …seems to me that all of the examples that were raised earlier, the hospital that’s treating … an illegally present child with a disease, the church who provides worship to illegal aliens, to the common reader of those words would be a violation of the statute. 


FEIGIN: Well, Your Honor, I don’t think that is the standard this court applies, if someone is ignorant of what those words mean in the context of the criminal law.

This is another one of those disputes that could be resolved by Congress employing clearer language. 

The lawyer for Sineneng-Smith went for the close and for victory, asking the justices to do Congress a favor and just add a few words, to limit the law to a solicitation of criminal conduct with specific intent.

Chief Justice Roberts pointed to a procedure for that:

ROBERTS: Would we have to get that passed by the Senate and House — (Laughter) — and then signed by the President before we could put that many changes to the statute? 


FLEMING: Absolutely, Mr. Chief Justice. 
And the fact that you would need to do that in order for it to be constitutional is a good indication that Congress did not mean for the statute to be read that way …

OK, case two. I’ll keep it very brief. 

In this one, two fraudsters solicited money to build a cancer treatment center. They raked in nearly $20 million from investors. But they never constructed the building.

The Securities and Exchange Commission sued, and a court ordered they return the $20 million to investors. The fraudsters dispute the way SEC went about all this in a process known as disgorgement. 

Now, honestly, that takes some chutzpah given what they did. 

But in the abstract, I think the court may agree and wind up trimming SEC’s toolbox at least a little. My sense is the justices will order the agency to go after the money instead by using methods specified in the statute.

Okay, final case today, argued back in late February. 

Here are the facts: 600 people sued for injuries arising from truck bomb explosions outside U.S. embassies in Kenya and Tanzania in 1998. The attacks killed 200 and injured thousands. Authorities later found al-Qaeda responsible for the bombings. 

The main player here is the nation of Sudan, because that country provided sanctuary to Islamic terror groups during that time. So victims sued Sudan starting in 2001 under a law called the Foreign Sovereign Immunities Act. That law allows U.S. courts to handle litigation against foreign nations that are designated as sponsors of terror, as Sudan was and still is. 

But Sudan didn’t show up in court to defend itself, so the lower court in 2014 entered a default judgment of more than $10 billion. That included a good chunk of punitive damages, about 40 percent of it.

So now Sudan is speaking up, and trying to make the case that the Foreign Sovereign Immunities Act doesn’t allow for punitive damages for terror acts that happened before 2008. And the reason is because 2008 is the year Congress authorized punitive damages under that law. 

Lawyer for Sudan, Christopher Curran, also tried to distance his client from the bombings.

CURRAN: I note that the D.C. Circuit concluded that the evidence at the default hearing failed to show that Sudan either specifically intended or directly advanced the 1998 embassy bombings.

Lawyer for the victims, Matthew McGill, argued culpability is not in doubt.

MCGILL: If fairness is the issue here, then Sudan surely should lose. The State Department had designated Sudan as a state sponsor of terrorism in 1993, but Sudan continued to shelter Osama Bin Laden even as he issued fatwahs calling for attacks on U.S. interests.

Yet generally speaking unless Congress explicitly makes a law retroactive, the presumption is that it isn’t. 

Justice Alito wondered why not make Congress use those simple magic words, “apply retroactively?”

McGill answered that’s not how the court looked at this problem in the past, and every reason to think Congress meant to expand relief to terror victims.

Justice Alito also questioned the logic behind separating out damages specifically designated for compensation and those designated for punishment: compensatory versus punitive. 

Listen to this exchange with Assistant to the Solicitor General Erica Ross, who also argued in support of the victims and retroactive application of punitive damages:

ALITO: I mean, is the idea that if a — if a foreign state is going to sponsor terrorism, it might think, well, you know, if we’re going to be liable for compensatory damages, it’s worth our while, but if we’re going to get hit with punitive damages, well, that’s going to stop us? Is that the —  the thinking of the U.S. Government?

ROSS: I don’t think that that’s the thinking of the U.S. Government, Justice Alito.

Ross going on to explain she thinks this case merits a more lenient interpretation. 

Finally, have a listen to this clip of Justice Neil Gorsuch. 

As an aside, I’m reading his book, A Republic, If You Can Keep It, and in the book he talks about how he strives to bring civility to every interaction.

So I wanted to call your attention to an example of that genteel, un-rushed mannerism Justice Gorsuch strives to achieve. Here, he has a question for the lawyer representing Sudan.

GORSUCH: And this is just the heart of the matter, so take your time with it. There’s no rush. But I think this is the heart of the matter for me, and it sounds like it may be for some of my colleagues. If we agree that the cause of action is a new one and applies retroactively, and if we agree that compensatory damages apply retroactively, on what account  does it make sense to speak of punitive damages not also applying retroactively, given that it’s authorized by the same statute? 


CURRAN: Yeah, the answer to that  lies in this Court’s analysis of the Bradley case…


I see possibly five justices leaning in favor of the victims here. 

Still, there is something to the argument that we generally don’t apply penalties retroactively, because people don’t have notice of what’s prohibited. Justice Ruth Bader Ginsburg brought up that point specifically.

And that’s this week’s Legal Docket.


(AP Photo/J. Scott Applewhite, File) In this June 20, 2019 file photo, the Supreme Court is seen under stormy skies in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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