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Kansas Judge Throws Out Convictions Of Undocumented Immigrants, Ruling In Favor Of Free Speech

File photo
The Robert J. Dole Federal Courthouse in Kansas City, Kansas, where a judge vacated the convictions of two men found guilty of 'encouraging' illegal immigrants to stay in the U.S.

In a major ruling with implications for employers of undocumented immigrants, a federal judge in Kansas said a law making it a crime to "encourage" or "induce" such immigrants to live in the United States is unconstitutional.

U.S. District Judge Carlos Murguia's ruling concerned a law passed by Congress in 1952 and amended several times since. It authorizes up to five years in prison for anyone who "encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law."

The statute tacks on another five years to the sentence if the defendant acted "for the purpose of commercial advantage or private financial gain."

The two defendants in the case were Jose Felipe Hernandez-Calvillo and Mauro Papalotzi, undocumented immigrants from Mexico who worked for Plaster Masters, a drywall company in Lawrence, Kansas. The company and its principal owner, Keith L. Countess, were also indicted for violating the statute. Countess pleaded guilty to a reduced misdemeanor charge in 2017 and received probation.  

"The important thing, other than the First Amendment issue, is that the government was using this (law) to charge people who did nothing more than make a job available to an undocumented person, whether or not they had direct knowledge that the person was undocumented," said Hernandez-Calvillo’s attorney, Tom Bradshaw.

"The statute requires that when you 'encourage' or 'induce,' you know the person was here illegally. But the government has played loose with that."

Murguia found that the federal statute violates the First Amendment because it criminalizes protected speech.

His decision came after a jury in August 2018 found Hernandez-Calvillo and Papalotzi guilty of conspiracy to violate the law.

But just a few weeks later, in a similar case, the 9th U.S. Circuit Court of Appeals in San Francisco found the law violated the First Amendment, saying it was "unconstitutionally overbroad” because it "criminalizes a substantial amount of protected expression."

Although decisions by the 9th Circuit are not binding on federal judges in Kansas, Murguia said he found the 9th Circuit’s decision persuasive.  

"The court adopts (the 9th Circuit's) analysis in full and agrees that (the law) on its face is overbroad under the First Amendment," Murguia said in ruling from the bench following a brief hearing on Wednesday. 

Murguia then threw out the convictions of Hernandez-Calvillo and Papalotzi, who were among six individuals charged in 2016 with multiple counts of violating the law. The others pleaded guilty to misdemeanors in 2017.

The government is likely to appeal Murguia's decision to the 10th U.S. Circuit Court of Appeals, which covers Kansas. A decision by the 10th Circuit overturning Murguia's ruling would create a conflict between two federal circuits, setting the stage for a possible Supreme Court decision to resolve the issue.

Jim Cross, a spokesman for the U.S. Attorney for the District of Kansas, said in an email that his office "is evaluating the judge’s ruling at this time" and had not made a decision about its next step.

As an example of the type of speech the law could criminalize, Bradshaw told Murguia that it would have allowed the government to prosecute a New York congressman for saying in a radio interview that he would allow undocumented immigrants to stay in the United States.

U.S. Rep. Adriano Espaillat (D-N.Y.) made the statement last month in an interview with National Public Radio’s Steve Inskeep. Bradshaw introduced a transcript of the interview as evidence in the case.  

Asked by Inskeep whether people facing deportation orders should be allowed to stay in the U.S., Espaillat said, "I would like for them to have their process in a real way, but not in a midnight raid. I would like them to stay. I think that they're here, many of them, contributing to the economy. And, of course, we're not — most of them are families, by the way, and most of them are women with children. So we would like for them to stay, yeah." 

Kansas City attorney Robin Fowler, who represented Countess, the owner of the drywall company, lauded Murguia's ruling, saying he thought it would stand up on appeal.

The two defendants whose convictions Murguia threw out on Wednesday could still be deported, although the government has not initiated deportation proceedings against them.

Bradshaw said his client is raising a son who was born in the United States and just graduated from high school.

Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.

Dan Margolies has been a reporter for the Kansas City Business Journal, The Kansas City Star, and KCUR Public Radio. He retired as a reporter in December 2022 after a 37-year journalism career.
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