Conservative judges urge Supreme Court to revive law making it a crime to encourage undocumented immigrants to stay in the U.S. – San Francisco…

Nine conservative U.S. appeals court judges called Monday for the Supreme Court to overrule their colleagues and uphold a federal law that made it a crime to encourage or persuade an undocumented immigrant to remain in the United States.

Under the 1985 law, anyone who encourages or induces an unauthorized immigrant to enter or live in the U.S., knowing or in reckless disregard of the fact that the immigrants presence is illegal, is guilty of a felony punishable by up to 10 years in prison. In a case from Sacramento, the Ninth U.S. Circuit Court of Appeals ruled 3-0 in February that the law violates freedom of speech because it could be used against a wide range of innocent statements, like advising someone about available social or legal services.

On Monday, the appeals court said a majority of its 29 judges had rejected the governments request for a new hearing before a larger panel. Nine judges dissented and indicated the U.S. Supreme Court should take up the case and reaffirm the law.

The ruling invalidates a 70-year-old alien smuggling law, Judge Patrick Bumatay wrote, referring to an earlier version of the law. He contended the current law prohibits only criminal solicitation, not innocent encouragement, and that the court had managed to contort its scope and then imagine ways the misconstrued law might cover protected speech.

Judges Sandra Ikuta, Consuelo Callahan, Ryan Nelson, Kenneth Lee, Lawrence VanDyke, Mark Bennett and Daniel Bress signed Bumatays dissent. Judge Daniel Collins, in a separate dissent, said the court should have interpreted the law more narrowly to avoid any conflict with the First Amendment.

All the dissenters were appointed by Republican presidents, who have chosen 13 of the courts 29 active judges. The Ninth Circuit, the largest U.S. appeals court, handles federal cases from California and eight other Western states.

The case involved Helaman Hansen, who ran a Sacramento business from 2012 to 2016 falsely offering citizenship to hundreds of migrants who went through adoption ceremonies.

Hansen was convicted in 2017 of two counts of violating the law and sentenced to 20 years in prison. In its February ruling, the Ninth Circuit upheld his separate conviction for defrauding the immigrants, which also carried a 20-year sentence, but said the law that banned encouraging or inducing unauthorized migrants to stay in the U.S. was unconstitutional.

Many commonplace statements and actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States, Judge Ronald Gould wrote in the 3-0 ruling.

Statements like I encourage you to stay here, or telling a tourist they are unlikely to be deported simply for overstaying a visa, are likely repeated countless times across the country every day and are protected by the First Amendment, said Gould, an appointee of former President Bill Clinton. He said the law might be used legitimately to punish smuggling unauthorized immigrants or aiding their illegal entry, but not to criminalize speech that encourages them to enter or remain in the U.S.

Attorney Vera Eidelman of the American Civil Liberties Union, which took part in the challenge to the law, said the courts action Monday helps ensure that everyone can speak freely, from concerned Americans who criticize or warn about ICE (Immigration and Customs Enforcement) raids to pro bono attorneys who host free legal clinics for undocumented immigrants.

But Bumatay said Monday that the terms encouraging and inducing have been interpreted by courts for centuries as complicity in the commission of a crime.

He said the ruling creates a split between federal appeals courts, often a basis for Supreme Court review. But those splits refer to rulings that a court publishes as precedents for future cases and as Gould noted Monday, the only ruling to find the law constitutional was a 2011 decision by the Fourth Circuit in Richmond, Va., which specified that it set no future precedent. The Tenth Circuit in Denver issued a published, precedential ruling this month that found the law invalid and cited the Ninth Circuit case as authority.

Bumatays authorities for interpreting the language of the laws included the 17th-century British jurist Sir Matthew Hale, also cited by Supreme Court Justice Samuel Alito as a source of the reasoning in his June 24 Supreme Court decision that found no constitutional right to abortion. Hale, as commentators have noted, also endorsed a husbands right to rape his wife and sentenced three women to death for witchcraft.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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Conservative judges urge Supreme Court to revive law making it a crime to encourage undocumented immigrants to stay in the U.S. - San Francisco...