United States v. Evelyn Sineneng-Smith

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-10614
Plaintiff-Appellee,
D.C. No.
v. 5:10-cr-0414-RMW

EVELYN SINENENG-SMITH,
Defendant-Appellant. OPINION

On Remand from the Supreme Court of the United States

Filed December 8, 2020

Before: A. Wallace Tashima, Marsha S. Berzon, and
Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Tashima
2 UNITED STATES V. SINENENG-SMITH

SUMMARY*

Criminal Law

On remand from the Supreme Court, the panel affirmed
convictions on two counts of encouraging and inducing an
alien to remain in the United States for the purposes of
financial gain (8 U.S.C. §§ 1324(a)(1)(A)(iv) and
1324(a)(1)(B)(i)), in a case in which the defendant, who
operated an immigration consulting firm, continued to sign
retainer agreements and inform clients that they could obtain
green cards via a labor certification program under
Section 245i of the Immigration and Nationality Act, which
the defendant knew had expired.

The panel rejected the defendant’s argument that
Subsection (A)(iv) is limited to conduct involving fraud, false
documents, or fraud against the government; and held that the
fact that engaging in the underlying § 245i process may have
yielded some legitimate benefit to the defendant’s clients
does not detract from the defendant’s culpability under
Subsection (A)(iv).

Rejecting the defendant’s contention that she lacked fair
notice that her conduct violated the law, the panel wrote that
the charged conduct fell within the plain meaning of the
statute. The panel wrote that the fact that the government
approved numerous labor certification and I-140 alien-worker
petitions for the defendant’s clients did not deprive her of fair
notice that her representations to the clients covered by the

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. SINENENG-SMITH 3

charges—knowingly misleading them into believing that the
approved petitions could lead to permanent residence and
thereby encouraging them to remain illegally in the
country—constituted unlawful encouragement.

The panel rejected the defendant’s contention that
interpreting Subsection (A)(iv) to prohibit the charged
conduct renders the statute impermissibly vague as applied to
her. The panel also rejected the defendant’s contention that
the charged conduct was protected by the Free Speech and
Petition Clauses of the First Amendment.

Rejecting the defendant’s challenge to the sufficiency of
the evidence, the panel held that a rational trier of fact could
have found beyond a reasonable doubt that the defendant,
who provided two clients with the false hope that their
retention of her services for each step in the § 245i labor
certification process could lead to permanent residency,
encouraged them to remain in the United States in violation
of Subsection (A)(iv).

COUNSEL

Daniel F. Cook, Bodega Bay, California, for Defendant-
Appellant.

Susan B. Gray, Assistant United States Attorney; J. Douglas
Wilson, Chief, Appellate Section; United States Attorney’s
Office, San Francisco, California; Elizabeth D. Collery,
Attorney, Criminal Division; John P. Cronan, Principal
Deputy Assistant Attorney General; Kenneth A. Blanco,
Acting Assistant Attorney General; United States Department
of Justice, Washington, D.C.; for Plaintiff-Appellee.
4 UNITED STATES V. SINENENG-SMITH

Mark C. Fleming and Megan E. Barriger, Wilmer Cutler
Pickering Hale & Dorr LLP, Boston, Massachusetts; Beth C.
Neitzel, Wilmer Cutler Pickering Hale & Dorr LLP,
Washington, D.C.; for Amici Curiae Immigrant Defense
Project, and National Immigration Project of the National
Lawyers Guild.

Annie Hudson-Price and Mark Rosenbaum, Public Counsel,
Los Angeles, California, for Amicus Curiae Public Counsel.

Stephen R. Sady, Chief Deputy Federal Public Defender; Lisa
Ma, Research and Writing Attorney, Portland, Oregon;
Carmen A. Smarandoiu, Assistant Federal Public Defender,
San Francisco, California; for Amicus Curiae Federal
Defender Organizations of the Ninth Circuit.

Lee Rowland, Cecillia D. Wang, Anand Balakrishnan, ACLU
Foundation, New York, New York; Christine Patricia Sun,
American Civil Liberties Union Foundation of Northern
California, Inc.; for Amici Curiae American Civil Liberties
Union, and American Civil Liberties Union of Northern
California.

Eugene Volokh, Scott & Cyan Banister First Amendment
Clinic, UCLA School of Law, Los Angeles, California, as
Amicus Curiae.

Elliott Schulder, Tina M. Thomas, Nicole Y. Roberts,
Covington & Burling LLP, Washington, D.C.; Robin
Wechkin, Sidley Austin LLP, Seattle, Washington; for
Amicus Curiae National Association of Criminal Defense
Lawyers.
 UNITED STATES V. SINENENG-SMITH 5

Dennis J. Herrera, City Attorney; Christine Van Aken, Chief
of Appellate Litigation; Yvonne T. Mere, Chief of Complex
and Affirmative Litigation; Molly M. Lee and Matthew S.
Lee, Deputy City Attorneys; Office of the City Attorney, San
Francisco, California; for Amicus Curiae City and County of
San Francisco.

Stephen W. Manning, Innovation Law Lab, Portland, Oregon;
Kari Hong, Boston College Law School, Newton,
Massachusetts; for Amici Curiae Oregon Interfaith
Movement for Immigrant Justice, Causa Immigrant Rights
Coalition of Oregon, Catholic Charities of Oregon, and
Immigration Counseling Services of Oregon.

Emily T. Kuwahara, Crowell & Moring LLP, Los Angeles,
California; Harry P. Cohen and Gary A. Stahl, Crowell &
Moring LLP, New York, New York; Noor Taj, Crowell &
Moring LLP, Washington, D.C.; Niyati Shah, John C. Yang,
Asian Americans Advancing Justice | AAJC, Washington,
D.C.; for Amicus Curiae Asian Americans Advancing
Justice | AAJC.
6 UNITED STATES V. SINENENG-SMITH

OPINION

TASHIMA, Circuit Judge:

INTRODUCTION

This case is back before us on remand from the Supreme
Court. See United States v. Sineneng-Smith, 140 S. Ct. 1575
(2020). Evelyn Sineneng-Smith appeals her convictions on
two counts of encouraging and inducing an alien to remain in
the United States for the purposes of financial gain, in
violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and
1324(a)(1)(B)(i).1 She contends that the district court erred
by denying her motion to dismiss these charges, and that the
evidence at trial was insufficient to establish her guilt beyond
a reasonable doubt. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.

FACTS AND PROCEDURAL HISTORY

I. Factual Background

Sineneng-Smith operated an immigration consulting firm
in San Jose, California. As part of her work, Sineneng-Smith
counseled foreign nationals, mostly natives of the Philippines
who were employed without authorization in the home health
care industry in the United States, on applying for and

1
Sineneng-Smith was also convicted of filing false tax returns, in
violation of 26 U.S.C. § 7206(1), and mail fraud, in violation of 18 U.S.C.
§ 1341. Sineneng-Smith did not appeal the tax fraud convictions, and we
affirmed the mail fraud convictions in a memorandum disposition, United
States v. Sineneng-Smith, 744 F. App’x 498 (9th Cir. 2018). The tax and
mail fraud convictions were not affected by the Supreme Court’s mandate.
 UNITED STATES V. SINENENG-SMITH 7

obtaining employment-based visas, including permanent
resident employment-based visas (“green cards”).

A. The § 245i Labor Certification Program

Prior to December 21, 2000, Section 245i of the
Immigration and Naturalization Act, 8 U.S.C. § 1255(i),
permitted certain aliens who had entered the country illegally,
accepted unauthorized work, or overstayed their tourist visas,
to seek an employment-based adjustment of their immigration
status and obtain green cards through the Ҥ 245i Labor
Certification” process. See 8 C.F.R. § 245.10. Obtaining a
green card through this process involved three sequential
steps: (1) obtaining labor certification approval from the
United States Department of Labor (“DOL”); (2) obtaining
alien worker approval (“I-140 approval”) from the United
States Customs and Immigration Service (“CIS”); and
(3) applying for legal permanent residence. Aliens seeking to
obtain permanent residence via § 245i Labor Certification
were not entitled to work in the United States until the end of
the process when they received their green card.

The § 245i Labor Certification process expired on April
30, 2001, and aliens who arrived in the United States after
December 21, 2000, were not eligible to receive permanent
residence through the program. See Esquivel-Garcia v.
Holder, 593 F.3d 1025, 1029 n.1 (9th Cir. 2010). But
ineligible aliens could nevertheless continue to apply for
labor certification at step one and I-140 approval at step two.
Completing these two steps would give the alien a priority
date and a place in line if Congress ever changed the law and
reopened eligibility for adjusted legal status at step three.
However, without further congressional action, an alien who
8 UNITED STATES V. SINENENG-SMITH

completed steps one and two would be standing in line for a
closed door.

Sineneng-Smith knew that the § 245i Labor Certification
program had expired. Nevertheless, between 2001 and 2008,
she continued to sign retainer agreements and inform clients
whom she knew to be ineligible under § 245i that they could
obtain green cards via Labor Certification.

B. Guillermo and Esteban

Amelia Guillermo and Hermansita Esteban are natives of
the Philippines. They entered the United States separately on
tourist visas in November 2001 and April 2002, respectively,
and were thereafter offered employment as caregivers. In
April 2002, Sineneng-Smith met with Guillermo and had her
sign an agreement to retain Sineneng-Smith’s services “for
purposes of [Sineneng-Smith] assisting [Guillermo] (alien),
to obtain permanent residence through Labor Certification.”
In May 2002, Esteban also signed a functionally identical
retainer agreement. Neither Sineneng-Smith nor her
employees, however, explained the § 245i Labor Certification
process to Guillermo or Esteban, or informed either that,
because she entered the United States after December 21,
2000, she was ineligible for lawful permanent residence
through Labor Certification. On the contrary, Esteban was
told that Sineneng-Smith’s office was trustworthy and had
worked with many people whose petitions, which Esteban
understood to mean applications for green cards, had been
approved. Both aliens began working after retaining
Sineneng-Smith, and Esteban did not extend her then-
unexpired tourist visa, because she thought that a petition had
been filed to legalize her status.
 UNITED STATES V. SINENENG-SMITH 9

After the initial meetings in 2002, and until 2008,
Sineneng-Smith periodically sent Guillermo and Esteban
copies of “leniency letters” addressed to state and federal
agencies, which requested that the agencies allow each alien
“to remain in the United States at least during the process of
the application for Labor Certification” because “[t]his alien
is taking steps to legalize his/her immigration status in the
United States.” Sineneng-Smith also periodically sent “status
letters” to each alien, which advised her to “[p]lease be
patient and cooperate with us so that we will be successful in
obtaining your permanent residency in the United States. The
State and Federal Governments will reward your patience
later.”

DOL approved Guillermo’s and Esteban’s labor
certification petitions on May 5, 2007, and June 18, 2007,
respectively. On those same dates, Sineneng-Smith mailed
second retainer agreements to each alien, providing for an
additional fee for assistance in obtaining I-140 approval from
CIS. Along with the new retainer agreements, Sineneng-
Smith included a “premium processing” chart that showed a
path from the step one labor certification, to the step two I-
140 petition, to a step three “work permit” and “green card.”
The chart stated “[i]f no 245i [w]ait 5 or more years until
Congress passes a new law,” but Guillermo and Esteban both
testified at trial that they did not know what “245i” meant.
Esteban also received another chart that described “the road
to obtaining permanent residence,” and contained more
references to § 245i, which Esteban also did not understand.

Guillermo testified that if she had been told that she could
not obtain a green card through the § 245i Labor Certification
process, she would have returned to the Philippines, but she
stayed because Sineneng-Smith and her associates told her
10 UNITED STATES V. SINENENG-SMITH

that she could work. Esteban similarly testified that she
would not have stayed in the United States if she had known
she could not get a green card.

II. Procedural History

On July 14, 2010, a grand jury returned a superseding
indictment charging Sineneng-Smith with, as relevant to this
appeal, three counts of violating 8 U.S.C. § 1324(a)(1)(A)(iv)
(“Subsection (A)(iv)”) and § 1324(a)(1)(B)(i) (“Subsection
(B)(i)”). Subsection (A)(iv) prohibits “encourag[ing] or
induc[ing] 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 in violation of the law.”
Subsection (B)(i) imposes additional penalties if “the offense
was done for the purpose of commercial advantage or private
financial gain.” The indictment charged, as to each § 1324
count, that the violation occurred on the dates that Guillermo,
Esteban, and another alien (Oliver Galupo) executed the
retainer agreement for Sineneng-Smith to file an I-140
petition at step two of the § 245i process.

Before trial, the district court denied Sineneng-Smith’s
motion to dismiss the immigration counts, rejecting her
arguments that: (1) her conduct as charged was not within
the scope of Subsection (A)(iv); (2) Subsection (A)(iv) is
impermissibly vague under the Fifth Amendment; and
(3) Subsection (A)(iv), as applied to Sineneng-Smith’s
activities, violates the First Amendment because it is a
content-based restriction on her speech.
 UNITED STATES V. SINENENG-SMITH 11

After a twelve-day trial, the jury found Sineneng-Smith
guilty on all three counts of violating Subsections (A)(iv) and
(B)(i). Sineneng-Smith then moved for a judgment of
acquittal pursuant to Federal Rule of Criminal Procedure
29(c), renewing the arguments from her motion to dismiss
and further contending that the evidence adduced at trial did
not support the verdicts. The district court concluded that
sufficient evidence supported the convictions for the two
§ 1324 counts relating to Guillermo and Esteban, but that
sufficient evidence did not support the conviction for the
§ 1324 count relating to Galupo.

Sineneng-Smith timely appealed, again arguing that the
immigration charges should have been dismissed for the
reasons asserted in her motion to dismiss, and that the
evidence did not support the convictions. We then reversed
Sineneng-Smith’s immigration convictions, holding that
Subsection (A)(iv) was unconstitutionally overbroad in
violation of the First Amendment. See United States v.
Sineneng-Smith, 910 F.3d 461 (9th Cir. 2018).

The Supreme Court granted the government’s petition for
certiorari, United States v. Sineneng-Smith, 140 S. Ct. 36
(2019) (mem.), and vacated and remanded “the case for
reconsideration shorn of the overbreadth inquiry.” Sineneng-
Smith, 140 S. Ct. at 1582. We now affirm Sineneng-Smith’s
convictions for encouraging or inducing an alien to illegally
reside in the United States, in violation of § 1324(a)(1)(A)(iv)
and § 1324(a)(1)(B)(I)
12 UNITED STATES V. SINENENG-SMITH

ANALYSIS

I. The Denial of Sineneng-Smith’s Motion to Dismiss the
Charges under Subsection (iv)

A. Standard of Review

We review de novo the district court’s denial of a motion
to dismiss the indictment. United States v. Tomsha-Miguel,
766 F.3d 1041, 1048 (9th Cir. 2014). The district court’s
construction of a statute is reviewed de novo. United States
v. Frega, 179 F.3d 793, 802 n.6 (9th Cir. 1999).

B. The Scope of § 1324(a)(1)(A)(iv)

Sineneng-Smith first argues that the district court erred by
denying her motion to dismiss the indictment because the
conduct charged is beyond the scope of Subsection (A)(iv).
She contends that her conduct was not unlawful under the
statute because it did not involve fraud, false documents, or
bribery, and because the aliens could obtain a legitimate
benefit from engaging in the § 245i Labor Certification
process, even if they were not ultimately eligible for
permanent residence. We are unpersuaded on all counts.

As an initial matter, Sineneng-Smith’s arguments are all
premised on a fundamental mischaracterization of the charges
in the superseding indictment. She alleges that she was
prosecuted solely for being hired to file putatively lawful I-
140 petitions on behalf of Guillermo and Esteban’s
employers. However, as the district court correctly noted,
Sineneng-Smith was actually prosecuted for entering into
retainer agreements with aliens, knowingly misrepresenting
to them that her efforts through the § 245i Labor Certification
 UNITED STATES V. SINENENG-SMITH 13

process would, for a price, enable them to become legal
permanent residents, and misleading them about their ability
to work lawfully in the United States while they waited for
the process to be completed. We agree with the district court
that the charged conduct is forbidden by Subsection (A)(iv).

Subsection (A)(iv) proscribes “encourag[ing] or
induc[ing] an alien to . . . reside in the United States, knowing
or in reckless disregard of the fact that such . . . residence is
or will be in violation of law.” We have previously defined
“encourage” as “to inspire with courage, spirit, or hope . . . to
spur on . . . to give help or patronage to,” United States v.
Thum, 749 F.3d 1143, 1148 (9th Cir. 2014) (quoting United
States v. He, 245 F.3d 954, 960 (7th Cir. 2001)), and have
indicated that a defendant’s encouragement or inducing must
be knowing, see United States v. Yoshida, 303 F.3d 1145,
1149–51 (9th Cir. 2002). Nothing in the statutory language
or our case law supports Sineneng-Smith’s argument that
encouragement or inducing is unlawful under Subsection
(A)(iv) only if it is accomplished by unlawful means, entails
fraud against the government or the use of false documents,
or bribery, or provides no legitimate benefit to an alien.

Sineneng-Smith points to several out-of-circuit
decisions—notably United States v. Ndiaye, 434 F.3d 1270,
1298 (11th Cir. 2006) (defendant encouraged alien by
improperly supplying a Social Security number) and United
States v. Oloyede, 982 F.2d 133, 135–37 (4th Cir. 1993) (per
curiam) (defendant encouraged aliens by providing false
documents for citizenship applications)—to support her
contention that there is a fraud or false documents limitation
to Subsection (A)(iv). Her efforts are unavailing. Although
Ndiaye and Oloyede involved defendants who used false
documents or provided illegitimate benefits to aliens, neither
14 UNITED STATES V. SINENENG-SMITH

case limited the scope of Subsection (A)(iv) to such factual
scenarios. See, e.g., Oloyede, 982 F.2d at 137
(“‘encouraging’ relates to actions taken to convince the
illegal alien to … to stay in this country”). We previously
analyzed both cases when construing the meaning of
“encourage” under Subsection (A)(iv), and noted merely that
the opinions “demonstrate[ that] a defendant encourages an
illegal alien to reside in the United States when the defendant
takes some action to convince the illegal alien to stay in this
country, or to facilitate the alien’s ability to live in this
country indefinitely.” Thum, 749 F.3d at 1148 (internal
citations, quotation marks, and alterations omitted) (emphasis
added). Moreover, we can discern no principled reason for
reading a fraud or false document limitation into the statute.

As to importing a false documents limitation into
Subsection (A)(iv), we note that the 1985 Senate Judiciary
Committee Report on the Immigration Reform and Control
Act indicates that the purpose of a related statute, 18 U.S.C.
§ 1546, is to “enable[] the prosecution of procurers and
purveyors of false, altered, or fraudulently obtained
documents and the aliens who use such documents to remain
in the United States in violation of the law”. S. Rep. No. 99-
132, at 31 (1985). Reading a false documents element into
Subsection (A)(iv) would therefore render § 1546
superfluous. See Yates v. United States, 135 S. Ct. 1074,
1086 (2015) ([C]ourts are to “resist[] a reading of [a statute]
that would render superfluous an entire provision passed in
proximity as part of the same Act.”).

Sineneng-Smith’s suggestion that only fraud against the
government may be prosecuted under Subsection (A)(iv)
fares no better. Again, there is nothing in the statute
suggesting such a limitation. We therefore reject Sineneng-
 UNITED STATES V. SINENENG-SMITH 15

Smith’s argument that the scope of Subsection (A)(iv) is
limited to conduct involving fraud, false documents, or fraud
against the government.

Finally, we reject the argument that the charged conduct
was outside the scope of Subsection (A)(iv) because
Sineneng-Smith lawfully provided Guillermo and Esteban
with a legitimate benefit—namely, a place in line if Congress
changed the law and expanded eligibility for adjustment of
status—by pursuing the § 245i Labor Certification process on
their behalf. Neither the language of Subsection (A)(iv) nor
our previous constructions of the statute requires that a
defendant’s encouragement be accomplished by means of an
illegitimate process or involve only illegitimate benefits. See
Thum, 749 F.3d at 1148. Furthermore, the gravamen of the
encouragement offense was that Sineneng-Smith encouraged
Guillermo and Esteban to stay in the United States in
violation of the law by misleading them about the full extent
of the benefits they might realistically expect from engaging
in the § 245i Labor Certification process. The fact that
engaging in the underlying § 245i process may have yielded
some legitimate benefit to Guillermo and Esteban does not
detract from Sineneng-Smith’s culpability under Subsection
(A)(iv).

C. Lack of Fair Notice

Sineneng-Smith also contends that she lacked fair notice
that her conduct violated the law because the instant case
involved a novel construction of the statute and no prior case
law supported the statutory construction underlying the
government’s prosecution. We disagree. “[D]ue process bars
courts from applying a novel construction of a criminal
statute to conduct that neither the statute nor any prior
16 UNITED STATES V. SINENENG-SMITH

judicial decision has fairly disclosed to be within its scope.”
United States v. Lanier, 520 U.S. 259, 266 (1997). “[T]he
touchstone is whether the statute, either standing alone or as
construed, made it reasonably clear at the relevant time that
the defendant’s conduct was criminal.” Id. at 267 (emphasis
added). Although previously reported Subsection (A)(iv)
cases involved distinguishable fact patterns, Sineneng-
Smith’s prosecution did not violate due process because, as
noted above, the conduct charged fell with the plain meaning
of the statute standing alone, including the meaning of
“encourag[ed]” as construed in Thum, 749 F.3d at 1148. See
Lanier, 520 U.S. at 267.

Also unavailing is Sineneng-Smith’s contention that her
reasonable reliance on DOL and CIS’s issuance of numerous
labor certification and I-140 approvals for her clients
deprived her of fair notice that her conduct was criminal
under Subsection (A)(iv). This argument relies on the same
mischaracterization of the charges that we have previously
rejected. Because the charged conduct— knowingly
misleading aliens into believing that the approved petitions
could lead to permanent residence and thereby encouraging
them to remain illegally in the country—was clearly covered
under Subsection (A)(iv), the fact that DOL and CIS
approved the labor certification and I-140 petitions did not
deprive Sineneng-Smith of fair notice that her representations
to Guillermo and Esteban constituted unlawful
encouragement.

D. Vagueness

We also find unavailing Sineneng-Smith’s contention that
interpreting Subsection (A)(iv) to prohibit the conduct
charged in the indictment renders the statute impermissibly
 UNITED STATES V. SINENENG-SMITH 17

vague as applied to her.2 “In an as-applied challenge, a
statute is unconstitutionally vague if it fails to put a defendant
on notice that his conduct was criminal.” United States v.
Harris, 705 F.3d 929, 932 (9th Cir. 2013) (cleaned up).
Misleading an alien with false hope about her ability to obtain
a green card falls within the plain meaning of Subsection
(A)(iv)’s proscription against encouraging an illegal alien to
remain in the United States in violation of the law, and an
ordinary person would have understood that such conduct is
prohibited by the statute. As such, the Subsection (A)(iv)
charges against Sineneng-Smith were not impermissibly
vague, and the district court did not err by refusing to dismiss
them.

E. First Amendment Free Speech and Petition Clause
Protections

Sineneng-Smith next contends that the immigration
charges in the indictment should have been dismissed because
the conduct charged therein was protected by the Free Speech
and Petition Clauses of the First Amendment. These
arguments, which rely yet again on the faulty premise that she
was prosecuted for being hired to file I-140 petitions, lack
merit. Sineneng-Smith was prosecuted for a course of
conduct that involved misrepresentations made to convince
Guillermo and Esteban to retain her services as an
immigration consultant. To the extent that Sineneng-Smith
was specifically prosecuted for her speech, First Amendment
protections generally do not extend to “false claims that are
made to effect a fraud or secure moneys or other valuable
considerations.” United States v. Alvarez, 567 U.S. 709, 723

2
Sineneng-Smith’s briefing raised only the question of whether
Subsection (A)(iv) was vague as applied to her conduct.
18 UNITED STATES V. SINENENG-SMITH

(2012). Furthermore, these representations to Guillermo and
Esteban did not fall under the protections of the Petition
Clause because “the right to petition is generally concerned
with expression directed to the government seeking redress of
a grievance,” Borough of Duryea, Pa. v. Guarnieri, 564 U.S.
379, 388 (2011), not with expression directed to a private
individual regarding a government petition.

Because Sineneng-Smith’s own conduct, as charged in the
indictment, was not protected by the First Amendment,3 we
conclude that the district court did not err by denying
Sineneng-Smith’s motion to dismiss the charges on First
Amendment grounds.

II. The Sufficiency of the Evidence as to Encouragement
or Inducing under Subsection (iv).

Sineneng-Smith also contends that the evidence was
insufficient to establish beyond a reasonable doubt that, on
the dates charged in the indictment, she encouraged or
induced Guillermo or Esteban to remain in the United States.

A. Standard of Review

We review the denial of a motion for acquittal based on
insufficiency of the evidence de novo. See United States v.
Suarez, 682 F.3d 1214, 1218 (9th Cir. 2012). We determine
whether “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could

3
We express no opinion about whether Subsection (A)(iv) is
facially overbroad in violation of the First Amendment. See Sineneng-
Smith, 140 S. Ct. at 1582 (“we vacate the Ninth Circuit's judgment and
remand the case for reconsideration shorn of the overbreadth inquiry”).
 UNITED STATES V. SINENENG-SMITH 19

have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Nevils, 598 F.3d 1158,
1163–64 (9th Cir. 2010) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)) (emphasis in original).

B. Elements of the Offense

To sustain the Subsection (A)(iv) charges, the government
was required to prove that Sineneng-Smith knowingly
(1) “encourage[d] or induce[d],” (2) “an alien to come to,
enter, or reside in the United States,” (3) “knowing or in
reckless disregard of the fact that such coming to, entry, or
residence is or will be in violation of law.” To prove a
violation of Subsection (B)(i), the government also needed to
show that “the offense was done for the purpose of
commercial advantage or private financial gain.” 8 U.S. C.
§ 1324(a)(1)(B)(i).

Sineneng-Smith challenges the sufficiency of the
evidence only as to the first element, claiming that the
evidence was legally insufficient to establish that she
encouraged Guillermo or Esteban to reside in the United
States on the dates charged, respectively, in Counts 2 and 3
of the indictment. We disagree.

C. Evidence at Trial

The evidence at trial showed that, in 2002, Sineneng-
Smith entered into retainer agreements with Guillermo and
Esteban, which stated that the purpose of hiring Sineneng-
Smith was “to obtain permanent residence through Labor
Certification.” The evidence also established that, from 2002
through 2008, Sineneng-Smith periodically sent copies of
“leniency letters” to Guillermo and Esteban that requested
20 UNITED STATES V. SINENENG-SMITH

leniency from state and federal agencies in allowing each
alien “to remain in the United States at least during the
process of the application for Labor Certification,” because
she was “taking steps to legalize []her immigration status in
the United States.” The government also introduced evidence
showing that, during the same time frame of 2002–2008,
Sineneng-Smith also periodically sent Guillermo and Esteban
“status” letters that requested them to “be patient and
cooperate with us so that we will be successful in obtaining
permanent residency.” Additionally, the government
established, as charged in the indictment, that on May 5,
2007, and June 18, 2007, Guillermo and Esteban,
respectively, signed retainer agreements for Sineneng-
Smith’s assistance in obtaining I-140 approvals; these retainer
agreements were accompanied by documents that referenced
receiving a “work permit” and “green card” and purported to
show Guillermo and Esteban “the road to obtaining
permanent residence” through the Labor Certification
program.

Sineneng-Smith provided the jury with evidence that
completing steps one and two of the § 245i Labor
Certification process could have benefited Guillermo and
Esteban because they could receive a place in line if Congress
changed the law to give them eligibility for permanent
residence through the § 245i Labor Certification program.
However, both Guillermo and Esteban testified at trial that
they did not understand the intricacies of § 245i eligibility, no
one informed them that they were ineligible for green cards
under § 245i, and they would not have remained in the United
States had Sineneng-Smith not given them the impression that
they were eligible to obtain permanent residence through the
Labor Certification process.
 UNITED STATES V. SINENENG-SMITH 21

D. Analysis

The evidence as a whole showed that Sineneng-Smith had
ongoing professional relationships with both Guillermo and
Esteban, and that at numerous times during those
relationships—including, specifically, on the dates charged in
the indictment—Sineneng-Smith took some action to provide
these individuals with the false hope that their retention of her
services for each step in the § 245i Labor Certification
process could lead to permanent residency. Viewing the
evidence in the light most favorable to the prosecution, we
conclude that a rational trier of fact could have found beyond
a reasonable doubt that Sineneng-Smith encouraged
Guillermo and Esteban to remain in the United States in
violation of Subsection (A)(iv).

When she provided them with the retainer agreements,
she bolstered their false hope that using her services to file I-
140 petitions would be another step on the road to obtaining
permanent residency.

CONCLUSION

For all of the foregoing reasons, the judgment of the
district court as to Sineneng-Smith’s convictions under
8 U.S.C. §§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i) is
AFFIRMED.