USA V. HELAMAN HANSEN, No. 17-10548 (9th Cir. 2022)

Court Description: Criminal Law The panel denied on behalf of the court a petition for rehearing en banc in a case in which the panel’s opinion, which vacated convictions on two counts of encouraging or inducing an alien to reside in the United States for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), held that subsection (iv) is overbroad and unconstitutional because its narrow legitimate sweep pales in comparison to the amount of First Amendment protected expression it encompasses. Judge Gould concurred in the order denying rehearing en banc. He wrote that Judge Bumatay’s dissent seeks to rewrite subsection (iv) by conducting a so-called textual analysis that fails to analyze the text of subsection (iv) itself; analyzes additional words not in that section, such as “aiding,” “abetting,” and “solicitation,” to support the conclusion it advocates; misreads the opinion, the record, § 1324 itself, and precedent; conjures up parades of horribles belied by its own citations; introduces arguments the Government’s Petition for Rehearing did not make; and asks this court improperly to disregard Supreme Court precedent regarding the applicability of the facial overbreadth doctrine. Noting that Judge Collins’s dissent does not criticize the Supreme Court’s existing doctrine of facial overbreadth but urges that the panel misapplied that doctrine, Judge Gould wrote that the application of a rule of law that is agreed upon does not normally warrant en banc or other further review; UNITED STATES V. HANSEN 3 and that in view of the defendant’s fifteen remaining counts of conviction and the fact that few convictions for deplorable conduct rely only on subsection (iv), there is not “exceptional importance” to further review the two counts of conviction that were reversed under the facial overbreadth doctrine. Judge Bumatay—joined by Judges Callahan, Ikuta, R. Nelson, Lee, VanDyke, Bennett (in all except Part III-A), and Bress (in Parts I, II, and III-B)—dissented from the denial of rehearing en banc. He wrote that the panel (1) misread the statute by blindly relying on lay-dictionary definitions to reach an overly broad interpretation of the law instead of following the established principle of looking to the settled meaning of the statutory terms to understand that § 1324(a)(1)(A)(iv) is an ordinary solicitation and aiding- and-abetting statute and poses no free-speech concerns; (2) improperly invoked the surplusage canon to disregard § 1324(a)(1)(A)(iv) as a solicitation and aiding-and-abetting statute; (3) failed to respect the constitutional avoidance canon; and (4) shouldn’t have pulled the trigger on overbreadth invalidation—a remedy of last resort—even if the provision could conceivably reach some protected speech. Dissenting from the denial of rehearing en banc, Judge Collins concluded that (1) under the canon of constitutional avoidance, the court can and should interpret the statute as being limited to soliciting and facilitating the unlawful entry of, or the unlawful taking up of residence by, specific aliens; and (2) so construed, the statute is not facially unconstitutional. He wrote that facial invalidation is particularly inappropriate here, given that the defendant was convicted of an aggravated version of § 1324(a)(1)(A)(vi) offense, one that required the Government to prove the 4 UNITED STATES V. HANSEN additional fact that Hansen acted “for the purpose of commercial advantage or private financial gain.” 8 U.S.C. § 1324(a)(1)(B)(i).

This opinion or order relates to an opinion or order originally issued on February 10, 2022.