NO. 11-275

In the

Supreme Court of the United States ________________

BENJAMIN BLUMAN, ET AL.,

Appellants,

v.

FEDERAL ELECTION COMMISSION,

Appellee. ________________

On Appeal from the United States District Court

for the District of Columbia ________________

BRIEF OF AMICI CURIAE THE ILLINOIS 

COALITION FOR IMMIGRANT AND REFUGEE 

RIGHTS AND THE NATIONAL IMMIGRANT 

JUSTICE CENTER IN SUPPORT OF APPELLANTS

________________

VIET D. DINH

 Counsel of Record

ERIN E. MURPHY

NICHOLAS J. NELSON

BANCROFT PLLC

1919 M Street, NW, Suite 470

Washington, DC 20036

vdinh@bancroftpllc.com

(202) 234-0090

Counsel for Amici Curiae the Illinois Coalition for 

Immigrant and Refugee Rights and the National 

Immigrant Justice Center

October 3, 2011
TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 6

I. There is No Meaningful Constitutional 

Distinction Between Aliens Classified as 

“Permanent Residents” Under the INA and 

Other Foreign Citizens Residing in this 

Country................................................................. 6

A. “Permanent” Residence Has Never Been 

Regarded as a Relevant Constitutional

Status............................................................... 6

B. Many “Nonimmigrant” Residents Have 

Just As Strong A Connection To This 

Country As Many “Immigrants.”.................. 11

II. The District Court Failed to Apply The 

Narrow Tailoring Analysis Required under 

Strict Scrutiny, and Failed to Recognize that 

§ 441e is not Narrowly Tailored. ....................... 18

A. The District Court at Best Subjected 

§ 441e to a “Close Fit” Requirement, Not 

Narrow Tailoring........................................... 18

B. Section 441e Is Not Narrowly Tailored to 

Target Only and All Speech With Foreign 

Influence ........................................................ 21

CONCLUSION......................................................... 25
ii

TABLE OF AUTHORITIES

CASES

Board of Trustees of State University of New 

York v. Fox,

492 U.S. 469 (1989) .............................................. 19

Carey v. Brown,

447 U.S. 455 (1980) .............................................. 24

Church of the Lukumi Babalu Aye, Inc. v. City of 

Hialeah,

508 U.S. 520 (1993) .............................................. 23

Citizens United v. FEC,

130 S. Ct. 876 (2010) ...............................2, 3, 19, 22

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) .............................................. 24

Denver Area Educ. Telecommc’ns Consortium, 

Inc. v. FCC,

518 U.S. 727 (1996) .............................................. 19

Edenfield v. Fane,

507 U.S. 761 (1993) .............................................. 19

FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986) .................................. 18, 19, 21

Florida Bar v. Went for It, Inc.,

515 U.S. 618 (1995) .............................................. 20

Fong Yue Ting v. United States,

149 U.S. 698 (1893) ............................................ 2, 7

Harisiades v. Shaughnessy,

342 U.S. 580 (1952) ................................................ 2

Karnuth v. United States,

279 U.S. 231 (1929) .............................................. 10
iii

Katebi v. Ashcroft,

396 F.3d 463 (1st Cir. 2005)................................. 16

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) .............................................. 20

Martinez-Aguero v. Gonzalez,

459 F.3d 618 (5th Cir. 2006) .................................. 7

Posadas de P.R. Assocs. v. Tourism Co. of P.R.,

478 U.S. 328 (1986) .............................................. 20

Romanishyn v. Att’y Gen.,

455 F.3d 175 (3d Cir. 2006).................................. 11

Savorgnan v. United States,

338 U.S. 491 (1950) ................................................ 7

Simon & Schuster, Inc. v. Members of N.Y. State 

Crime Victims Bd.,

502 U.S. 105 (1991) .............................................. 24

United States ex rel. Stapf v. Corsi,

287 U.S. 129 (1932) .............................................. 10

United States ex rel. Turner v. Williams,

194 U.S. 279 (1904) ................................................ 7

United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803 (2000) .............................................. 19

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) ............................................ 2, 7

Werblow v. United States,

134 F.2d 791 (2d Cir. 1943).................................. 10

STATUTES

8 C.F.R. § 101.3 ........................................................ 16

8 C.F.R. § 204.2(a).................................................... 16
iv

8 C.F.R. § 208.14(e).................................................. 11

8 C.F.R. § 209.1(a).................................................... 11

8 C.F.R. § 209.1(b).................................................... 11

8 C.F.R. § 209.2. ....................................................... 11

8 C.F.R. § 214.1(a)...................................................... 6

8 C.F.R. § 214.15(g).................................................. 12

8 C.F.R. § 214.2(e)(5)................................................ 14

8 C.F.R. § 214.2(e)(19)(i) .......................................... 14

8 C.F.R. § 214.2(e)(19)(ii)......................................... 14

8 C.F.R. § 214.2(e)(20)(iii)........................................ 14

8 C.F.R. § 214.2(h)(13)(iii)(A)............................. 14, 15

8 C.F.R. § 214.2(h)(16)(i).......................................... 14

8 C.F.R. § 214.2(k)(8) ............................................... 12

8 C.F.R. § 214.2(k)(10)(i).......................................... 12

8 C.F.R. § 214.2(l)(12)(i)........................................... 14

8 C.F.R. § 214.2(l)(16) .............................................. 14

8 C.F.R. § 214.2(o)(10).............................................. 15

8 C.F.R. § 214.2(o)(13).............................................. 14

8 C.F.R. § 214.2(p)(12) ............................................. 15

8 C.F.R. § 214.2(p)(15) ............................................. 14

8 C.F.R. § 214.2(r)(1).......................................... 14, 15

8 C.F.R. § 214.2(r)(15).............................................. 14

8 C.F.R. § 214.2(r)(5).......................................... 14, 15

8 C.F.R. § 214.2(r)(6).......................................... 14, 15
v

8 C.F.R. § 214.6(h)(iv) .............................................. 14

8 C.F.R. § 216.6(e).................................................... 14

8 C.F.R. § 299.1 ........................................................ 16

8 U.S.C. § 1101(a)(15) .................................... 6, 10, 12

8 U.S.C. § 1101(a)(20) ................................................ 6

8 U.S.C. § 1101(a)(42) .............................................. 13

8 U.S.C. § 1157(a)..................................................... 11

8 U.S.C. § 1158(c)(2)................................................. 11

8 U.S.C. § 1159(a)(2) ................................................ 12

8 U.S.C. § 1203(b)..................................................... 16

8 U.S.C. § 1227(a)(2) ................................................ 16

10 U.S.C. § 504(b)(2) ................................................ 17

26 U.S.C. § 7701(b)(3)(A) ........................................... 7

Chinese Exclusion Act of 1882,

22 Stat. 58............................................................... 8

Chinese Exclusion Act of 1902,

32 Stat. 176............................................................. 8

Emergency Quota Act of 1921,

42 Stat. 5................................................................. 9

Immigration Act of 1875,

18 Stat. 477............................................................. 8

Immigration Act of 1891,

26 Stat. 1084........................................................... 8

Immigration Act of 1903,

32 Stat. 1213........................................................... 9

Immigration Act of 1907,

34 Stat. 898............................................................. 8
vi

Immigration Act of 1917,

39 Stat. 874............................................................. 9

Immigration Act of 1924,

43 Stat. 153........................................................... 10

Immigration and Nationality Act,

66 Stat. 163 (1952) ........................................... 2, 10

Naturalization Act of 1795,

1 Stat. 414............................................................... 8

Naturalization Act of 1798,

1 Stat. 566............................................................... 8

Presidential Determination No. 2007-1,

71 Fed. Reg. 64,435 (Oct. 11, 2006) ..................... 12

Presidential Determination No. 2008-1,

72 Fed. Reg. 58,991 (Oct. 2, 2007) ....................... 12

Presidential Determination No. 2008-29,

73 Fed. Reg. 58,865 (Sept. 30, 2008).................... 12

Presidential Determination No. 2009-32,

74 Fed. Reg. 52,385 (Sept. 30, 2009).................... 12

Other Authorities

Anita U. Hattiangadi, et al.,

Non-Citizens in Today’s Military, 

http://www.cna.org (last visited Oct. 2, 2011) ..... 17

Black’s Law Dictionary

(4th ed. 1957).......................................................... 7

Black’s Law Dictionary

(8th ed. 2004).......................................................... 7

H.R. 7864, 54th Cong.

(1st Sess. 1896)....................................................... 9

H.R. Rep. No. 54-1597 (1896) .................................... 9
vii

H.R. Rep. No. 64-1291 (1917) .................................... 9

Margaret D. Stock, Ten Things That 

Immigration Lawyers Should Know About the 

Army’s New Non-Citizens Recruiting Program,

14-6 Bender’s Immigr. Bull. 1 (Mar. 15, 2009), 

http://www.entrylaw.com ..................................... 18

Nancy Rytina, Population Estimates: Estimates 

of the Legal Permanent Resident Population in 

2009, http://www.aila.org..................................... 17

Randall Monger & James Yankay, U.S. Legal 

Permanent Residents: 2010, 

http://www.dhs.gov............................................... 17

Randall Monger and Macreadie Barr, Annual 

Flow Report: Nonimmigrant Admissions to the 

United States: 2009, http://www.dhs.gov............. 12

Randall Monger and Megan Mathews, Annual 

Flow Report: Nonimmigrant Admissions to the 

United States: 2010, http://www.dhs.gov............. 15

U.S. Dep’t of Justice Exec. Office for 

Immigration Review, Office of Planning, 

Analysis & Technology, Immigration Courts 

Asylum Statistics, 2007–2010, 

http://www.justice.gov .......................................... 12

United States Dep’t of Defense, Military 

Accessions Vital to Nat’l Interest Recruitment 

Pilot, http://www.defense.gov............................... 17

Veto Message of President Grover Cleveland, 

Mar. 2, 1897,

http://www.presidency.ucsb.edu ............................ 9
INTEREST OF AMICI CURIAE

Amicus Curiae the Illinois Coalition for 

Immigrant and Refugee Rights (ICIRR) is a coalition 

of 130 community neighborhood advocacy 

organizations that promotes the rights of refugees 

and immigrants to full and equal participation in the 

civic, cultural, social, and political life of our diverse 

society.

Heartland Alliance’s National Immigrant Justice 

Center (NIJC) is a nonprofit organization accredited 

by the Board of Immigration Appeals to provide 

immigration assistance. NIJC represents, among 

others, asylees, refugees, survivors of domestic 

violence, victims of human trafficking, and 

nonimmigrant fiancées and spouses of U.S. citizens; 

all of whom reside permanently in the United States 

in nonimmigrant status.

The speech restriction challenged here, 2 U.S.C. 

§ 441e, applies to all foreign nationals except for 

those designated “permanent residents.” This 

sweeping prohibition not only imposes an 

impermissible restriction on the First Amendment 

rights of individuals amici serve, but by its very 

existence lends credence to the erroneous but 

prevalent view that foreign nationals living within 

our borders are not entitled to the protections of the 

Constitution. Amici therefore have a strong interest 

in Appellants’ constitutional challenge to § 441e.1

 1 This brief was not written in whole or in part by counsel for 

any party, and no person or entity other than amici, their

members, and their counsel has made a monetary contribution 

to the preparation and submission of this brief. Pursuant to 

this Court's Rule 37.2, ICIRR provided notice of its intent to file 
2

SUMMARY OF ARGUMENT

This case presents the Court with the 

opportunity to clarify two crucial issues regarding 

the First Amendment rights of aliens. First, the 

Court can confirm that aliens present in the United 

States are protected by the First Amendment as 

soon as they have “developed sufficient connection 

with this country to be considered part of [the 

national] community,” United States v. VerdugoUrquidez, 494 U.S. 259, 265 (1990); that at a 

minimum this includes all aliens who, like 

Appellants here, are lawfully and voluntarily 

present in the United States, cf. Fong Yue Ting v. 

United States, 149 U.S. 698, 724 (1893); and that the 

same constitutional levels of scrutiny apply to 

restrictions on such persons’ speech as would apply 

to speech by similarly situated U.S. citizens. See 

Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1952). 

Second, assuming arguendo that the Constitution 

would permit intrusion into the political speech of 

some non-citizens, see Citizens United v. FEC, 130 S. 

Ct. 876, 911 (2010) (reserving “the question whether 

the Government has a compelling interest in 

preventing foreign individuals or associations from 

influencing our Nation’s political process”), the Court 

can clarify that the constitutional line is not 

conveniently coterminous with what the 

Immigration and Nationality Act (“INA”), 66 Stat. 

163 (1952), defines as “nonimmigrants,” and that by 

adopting this definition as the basis for its speech 

restrictions, § 441e therefore fails strict scrutiny. 

 

this brief to counsel of record for all parties more than 10 days 

before the filing. All parties consent to the filing.
3

“Laws that burden political speech are subject to 

strict scrutiny, which requires the Government to 

prove that the restriction furthers a compelling 

interest and is narrowly tailored to achieve that 

interest.” Citizens United, 130 S. Ct. at 898 (internal 

quotation marks omitted). The district court 

recognized this rule in name, Jurisdictional 

Statement Appendix (“J.S. App.”) 9a, but ignored it 

in application. Appellants have pointed out that the 

district court relied almost exclusively on rational 

basis cases in finding a compelling government 

interest in excluding foreign voices from political 

discourse. Jurisdictional Statement (“J.S.”) 9. Amici

will focus on the district court’s failure to ensure 

that the prohibition is narrowly tailored to the 

supposed governmental interest. 

Even assuming a compelling governmental 

interest in “preventing foreign influence over the 

U.S. political process,” J.S. App. 13a, the district 

court made no effort to determine whether § 441e’s 

prohibition reaches only those non-citizens whose 

speech would reflect “foreign influence.” Instead, it 

accepted as “narrowly tailored” for strict scrutiny 

purposes the statutory line in the INA

distinguishing “lawful permanent residents” from 

other aliens lawfully admitted and residing in the 

United States. United States citizens residing 

abroad, foreign citizens visiting the United States, 

foreign citizens lawfully residing in the United 

States, and even some United States citizens 

residing in the U.S. all bear some degree of “foreign 

influence” in their speech. Distinguishing between 

“lawful permanent residents” and other lawful 

residents may well serve certain administrative 
4

purposes—say, facilitating pre-admission 

inspections—but it cannot support the kind of 

narrow tailoring that strict scrutiny constitutional 

analysis requires.

For one thing, strict scrutiny requires more than 

mere conjecture that “lawful permanent residents

can be viewed as more similar to citizens than they 

are to temporary visitors.” J.S. App. 19a. In many 

contexts, the INA’s designation of certain aliens as 

“permanent residents” stems from factors that bear

little resemblance to ordinary notions of “residence.” 

At the very least, narrow tailoring analysis requires 

a court to test its assumption that lawful permanent 

residents are indeed quasi-citizens and to ask 

whether other alien residents are likewise “more 

similar to citizens than visitors.” J.S. App. 19a.

The history and nature of the distinction between 

“permanent” residents and other foreign nationals 

reveals it unfit to bear the heavy constitutional 

weight the district court placed on it. The statutory 

category of “permanent” residents was coined by 

Congress in the 1920s, and an examination of its 

contours shows that they have much more to do with 

administrative convenience and political expedience 

than with the actual strength and permanence of a 

foreign citizen’s connections with this country. As a 

result, the INA and implementing regulations 

expressly contemplate that many thousands of 

foreign citizens are admitted to this country on 

technically “nonpermanent” visas despite having the 

entirely legitimate expectation of living here for the 

rest of their lives, or for many years. With respect to 

refugees in particular, the statutory scheme plainly 

contemplates that persons admitted as 
5

nonpermanent residents will remain in the United 

States indefinitely and later be converted to 

permanent resident status as a matter of course. By 

contrast, even persons approved for “permanent” 

residence remain citizens of foreign nations and are 

free to move back home after a much shorter time in 

this country than is spent by many “nonpermanent” 

residents. 

In any event, narrow tailoring under strict 

scrutiny, as opposed to close fit under intermediate 

scrutiny, requires a court to be more exacting in its 

demand that the prohibitory means match the policy 

ends. Criminalizing the speech of all persons who 

happen not to carry a green card simply sweeps too 

broadly. It assumes that all alien nonimmigrants, 

however transient or permanent, are infused with 

“foreign influence”—exactly the kind of overinclusive 

generalization that narrow tailoring under strict 

scrutiny seeks to weed out. 
6

ARGUMENT

I. THERE IS NO MEANINGFUL CONSTITUTIONAL 

DISTINCTION BETWEEN ALIENS CLASSIFIED AS 

“PERMANENT RESIDENTS” UNDER THE INA AND 

OTHER FOREIGN CITIZENS RESIDING IN THIS 

COUNTRY.

In determining that § 441e satisfies strict 

scrutiny, the district court assumed that the 

distinction between permanent and nonpermanent 

residents is so great that nonpermanent residents 

are entitled to lesser constitutional protections than 

permanent residents. See, e.g., J.S. App. 22a (noting 

that extending the ban to permanent residents 

“would raise substantial questions”). This 

assumption is flatly wrong: that distinction cannot 

withstand scrutiny, let alone strict scrutiny, with 

respect to many “nonpermanent” residents.

A. “Permanent” Residence Has Never 

Been Regarded as a Relevant 

Constitutional Status.

The INA distinguishes between “permanent 

residents,” also known as “immigrants,” who are 

exempted from § 441e, and “nonimmigrants.” See 8 

U.S.C. § 1101(a)(15) & (20). Lengthy portions of the 

INA and related regulations are devoted to 

describing the nonimmigrant classes and the 

particular rules that apply to them. See id.; 8 C.F.R. 

§ 214.1(a).

This distinction between “immigrant” and 

“nonimmigrant” aliens—or in other words, between 

“permanent” resident aliens and others—has no

Constitutional roots. In defining the scope of First 
7

Amendment rights, this Court has recognized that, 

while aliens outside the country cannot claim First 

Amendment protections, United States ex rel. Turner 

v. Williams, 194 U.S. 279, 292 (1904) the 

Constitution protects “aliens residing in the United 

States for a shorter or longer time,” Fong Yue Ting,

149 U.S. at 724 (emphasis added).2 Indeed, the 

Court has noted that the applicability of 

constitutional rights held by “the people” does not 

depend on residence at all, but rather on whether a 

particular alien is within “a class of persons who are 

part of [our] national community or who have 

otherwise developed sufficient connection with this 

country to be considered part of that community.” 

Verdugo-Urquidez, 494 U.S. at 265. In VerdugoUrquidez, for purposes of this analysis the Court 

ignored the foreign residency of the alien in 

question. Id. at 262; cf., e.g., Martinez-Aguero v. 

Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006) (foreign 

national’s authorized once-a-month visits and 

“acquiescence in the U.S. system of immigration 

 2 As commonly understood, of course, having a “residence” in 

the United States does not require that an individual be a 

“permanent” resident. See, e.g., Black’s Law Dictionary 1335 

(8th ed. 2004) (defining “residence” as “[t]he act or fact of living 

in a given place for some time”); Black’s Law Dictionary 1473 

(4th ed. 1957) (defining “residence” as “[a] factual place of 

abode” or “[l]iving in a particular locality,” and “reside” as 

“[l]ive, dwell, abide, sojourn, stay, remain, lodge”); Savorgnan 

v. United States, 338 U.S. 491, 504–05 & n.24 (1950)

(contrasting “residence” with “permanent residence,” in the 

context of a denaturalization statute). Indeed, the government 

itself recognizes as much when it suits its purposes. See, e.g., 

26 U.S.C. § 7701(b)(3)(A) (deeming an alien present in the 

United States for half the days in a tax year a “resident” for 

income tax purposes). 
8

constitute her voluntary acceptance of societal 

obligations, rising to the level of ‘substantial 

connections’”).

Instead, the distinction between “permanent” and 

“nonpermanent” residents is purely a statutory one, 

and of relatively recent vintage. For nearly a 

century after the adoption of the Constitution, 

Congress did little to regulate the admission of 

aliens to this country.3 Congress did not begin

forbidding the admission of certain classes of persons 

until the late 19th century and, even then, with 

minor exceptions,4 made no distinctions based on a

foreign citizen’s intended length of stay in this 

country. See, e.g., Immigration Act of 1875, ch. 141, 

§ 3, 18 Stat. 477, 477 (excluding criminals and 

prostitutes); Immigration Act of 1891, ch. 551, § 1, 

 3 Early Congresses required persons wishing to be 

naturalized as citizens to declare in advance their intention to 

do so, but imposed no similar requirement with respect to 

incoming aliens’ intended length of stay. See, e.g., 

Naturalization Act of 1795, ch. 20, § 1, 1 Stat. 414, 414; 

Naturalization Act of 1798, ch. 54, § 1, 1 Stat. 566, 566–67.

4 See, e.g., Chinese Exclusion Act of 1882, ch. 126, § 3, 22 

Stat. 58, 59 (permitting excluded aliens to come ashore 

temporarily if they were bound for a foreign port but made an 

emergency landing in the United States); Chinese Exclusion 

Act of 1902, ch. 641, § 3, 32 Stat. 176, 177 (temporary 

admission for workers in exhibitions or concessions); 

Immigration Act of 1903, § 19, 32 Stat. 1213, 1218 (suspension 

of deportation for cooperating witnesses); Immigration Act of 

1907, ch. 1134, § 2, 34 Stat. 898, 898–99 (admission for those in 

immediate and continuous transit through the United States); 

Immigration Act of 1917, ch. 29, § 3, 39 Stat. 874, 876–77

(permitting otherwise-barred “travelers for curiosity and 

pleasure” or persons in continuous transit).
9

26 Stat. 1084, 1084 (excluding persons likely to 

become public charges, persons with contagious 

diseases, and polygamists); Immigration Act of 1903, 

ch. 1012, § 2, 32 Stat. 1213, 1214 (excluding the ill 

and disabled, persons unable to support themselves, 

beggars, and others); id., §§ 38–39, 32 Stat. at 1221–

22 (excluding anarchists and revolutionaries); 

Immigration Act of 1917, ch. 29, § 3, 39 Stat. 874, 

875–76 (excluding alcoholics, illiterates, and persons 

from a large region of Asia).5

Only after Congress decided in the 1920s to start 

imposing restrictions on the number of aliens it 

would accept from certain countries did Congress

begin to comprehensively distinguish between 

“immigrants” (who would count toward the quota for 

their country of origin) and persons merely visiting 

or passing through (who would not). See Emergency 

Quota Act of 1921, ch. 8, 42 Stat. 5 (establishing 

 5 Indeed, in the late 1800s and early 1900s the political 

branches considered and rejected various bans on incoming 

foreigners who did not intend to stay permanently. See, e.g.,

H.R. Rep. No. 54-1597, at 1 (1896) (recommending legislation 

preventing aliens from “com[ing] to the United States with no 

intention of making this country their permanent abode”). One 

such bill was vetoed in 1897 by President Grover Cleveland, 

who in his veto message deemed the restriction “illiberal, 

narrow, and un-American.” Veto Message of President Grover 

Cleveland, Mar. 2, 1897, available at http://www.presidency.

ucsb.edu/ws/index.php?pid=70845&st=&st1=#ixzz1ZZSrTrTR. 

(discussing H.R. 7864, 54th Cong., at § 4 (1st Sess. 1896)) 

Decades later, a House Report criticized a similar bill as “of 

apparently but slight practical value,” noting that “its 

enforcement would necessitate the accurate ascertainment of 

the intention of the persons thereby affected.” H.R. Rep. No. 

64-1291, at 3 (1917).
10

quota system). Thus, for example, the Immigration 

Act of 1924 excluded from “immigrant” status 

persons coming to this country as government 

officials, tourists or business visitors, aliens in 

continuous transit through the country, seamen, and 

treaty traders. Immigration Act of 1924, ch. 190, § 3, 

43 Stat. 153, 154–55. 

As this Court recognized, the statutory category 

of “immigrants” that Congress created included

many aliens who would not ordinarily be regarded as 

“residents” of the United States at all, let alone 

“permanent” ones. See Karnuth v. United States,

279 U.S. 231, 242–43 (1929) (“The term [‘immigrant’ 

in the 1924 Act] thus includes every alien coming to 

this country either to reside permanently or for 

temporary purposes, unless he can bring himself 

within one of the [statute’s nonimmigrant] 

exceptions.”). Thus, although the term “lawfully 

admitted for permanent residence” developed as a 

means of referring to those admitted under 

“immigrant” status, see United States ex rel. Stapf v. 

Corsi, 287 U.S. 129, 132–33 (1932); Werblow v. 

United States, 134 F.2d 791, 792 (2d Cir. 1943); INA, 

ch. 477, § 101(a)(20), 66 Stat. at 169, that term 

plainly included persons who had not designated the 

United States their indefinite permanent residence. 

The INA, which was enacted in 1952 and (as 

amended) remains the governing statute in the 

immigration field, followed the same approach of 

designating as “immigrants” all aliens save those 

who fall within statutory exceptions. See 8 U.S.C. 

§ 1101(a)(15).
11

B. Many “Nonimmigrant” Residents 

Have Just As Strong A Connection 

To This Country As Many 

“Immigrants.”

Since their first enactment, the statutory 

“nonimmigrant” categories have hypertrophied both 

in number and in complexity, producing reams of 

regulations making classifications that have little or 

nothing to do with how permanently an alien intends

to remain in the United States. As a result, a great 

many people who are permitted by the current 

immigration scheme to live in this country 

indefinitely, or for many years, are nevertheless 

technically categorized as “nonpermanent,” and thus 

come within § 441e’s bans on political speech.

In many cases, Congress has decided to permit 

aliens to live in this country permanently, but has 

required them to wait for years to obtain technical 

“immigrant” status due to limitations on the number 

of permanent visas available. A prime example is 

the case of persons admitted as refugees or who are 

granted asylum after their arrival. Such persons are 

not designated “permanent residents” under the INA

and have no guarantee of obtaining that technical 

status. See 8 U.S.C. §§ 1157(a), 1158(c)(2); 8 C.F.R. 

§§ 209.1(a) & (b), 209.2. Yet both groups are entitled 

by law to apply for permanent resident status after 

having lived here for one year. See 8 C.F.R. § 209. 

Moreover, those who obtain asylum are typically 

authorized to remain in the United States 

indefinitely, see 8 C.F.R. § 208.14(e); refugees who

may also remain in this country indefinitely, 

perhaps for years, while their applications for 

permanent residency are pending, see Romanishyn v. 
12

Att’y Gen., 455 F.3d 175, 182 (3d Cir. 2006). If a 

refugee is granted permanent residence, the grant is 

retroactive to the date of his or her arrival. 8 U.S.C. 

§ 1159(a)(2). Similarly, while non-citizen spouses, 

fiancé(e)s, and children of citizens or lawful 

permanent residents are not automatically granted 

“permanent resident” status, tens of thousands of 

them are authorized to reside and work in this 

country indefinitely until an immigrant visa becomes 

available. See, e.g., 8 U.S.C. § 1101(a)(15)(K), (V); 8 

C.F.R. §§ 214.2(k)(8), (10)(i), 214.15(g). These groups 

are not negligible in size: from 2007 through 2010, 

the President authorized the admission of 310,000

refugees to the United States,6 and approximately 

40,000 persons were granted asylum.7 In the same 

period, nearly 250,000 people were admitted as 

spouses or children of U.S. citizens or permanent 

residents.8

 6 Presidential Determination No. 2009-32, 74 Fed. Reg. 

52,385 (Sept. 30, 2009); Presidential Determination No. 2008-

29, 73 Fed. Reg. 58,865 (Sept. 30, 2008); Presidential 

Determination No. 2008-1, 72 Fed. Reg. 58,991 (Oct. 2, 2007); 

Presidential Determination No. 2007-1, 71 Fed. Reg. 64,435 

(Oct. 11, 2006).

7 U.S. Dep’t of Justice Exec. Office for Immigration Review, 

Office of Planning, Analysis & Technology, Immigration Courts 

Asylum Statistics, 2007–2010, available at http://www.justice.

gov/eoir/efoia/foiafreq.htm (follow links for “FY2010,” “FY2009,” 

“FY2008,” and “FY2007”).

8 See Randall Monger and Megan Mathews, Annual Flow 

Report: Nonimmigrant Admissions to the United States: 2010

(“2010 Flow Report”), p. 5 Table 3, http://www.dhs.gov/xlibrary/

assets/statistics/publications/ni_fr_2010.pdf; Randall Monger 

and Macreadie Barr, Annual Flow Report: Nonimmigrant 

Admissions to the United States: 2009 (“2009 Flow Report”), p. 
13

The legal status of these persons is purely a 

matter of administrative classification, and bears no 

relation to their actual intention or likelihood to 

make this country their permanent home. The 

district court’s suggestion that such people are mere 

“temporary visitors” with only a “short-term interest 

in the national community,” whose speech may be 

restricted by Congress in the interest of “minimizing 

foreign . . . influence,” J.S. App. 19a, thus is 

inconsistent with reality. That is particularly true 

with respect to refugees: such individuals must show 

that they are “unable or unwilling to return to, and 

. . . unable or unwilling to avail [themselves] of the 

protection of, [their home] countr[ies] because of 

persecution or a well-founded fear of persecution.” 8 

U.S.C. § 1101(a)(42). The notion that those who 

come to the United States for the express purpose of 

escaping persecution by their own government are 

likely to then support some “foreign” interest—

presumably that of their persecutor—in U.S.

elections is nothing short of absurd. Even if it could 

be assumed that refugees may seek to influence U.S.

elections to help their former countrymen escape the 

same persecution, speech aimed at encouraging the 

United States to help end persecution by foreign 

governments is hardly the kind of “foreign influence” 

the government might have a compelling interest in 

suppressing.

Other immigration categories reflect the same

congressional intent to ultimately permit 

nonimmigrants to live in the United States on a 

 

3 Table 1, http://www.dhs.gov/xlibrary/assets/statistics/

publications/ni_fr_2009.pdf.
14

permanent basis. Many immigration regulations 

permit a foreign citizen to have a “dual intent”—

entering the country as a nonimmigrant, but 

simultaneously applying for permanent residence 

while residing here in that “temporary” status. See, 

e.g., 8 C.F.R. § 214.2(e)(5), (h)(16)(i), (l)(16), (o)(13), 

(p)(15), and (r)(15). These individuals (and their 

families) are authorized to live and work in the 

United States, often for years at a time with 

indefinite renewals, and may—with the 

government’s blessing—attempt to become 

permanent residents while they do so. See, e.g., 8 

C.F.R. §§ 214.2(e)(19)(i)–(ii), (20)(iii), 214.6(h)(iv), 

216.6(e). Many of these “nonpermanent” residents

therefore come to this country hoping and planning

to stay for the rest of their lives, as a practical 

matter residing here every bit as permanently as 

those designated “permanent residents” and 

ultimately making a seamless transition to formal 

permanent resident status. The district court’s 

conclusion that speech by such persons somehow 

poses the threat of “foreign influence,” in a way that 

the speech of nominally “permanent residents” does 

not, cries out for this Court’s correction.

Other immigration provisions contemplate that 

foreign citizens may establish a permanent home in 

this country through a series of legal “temporary” 

stays, interrupted every five to seven years by oneyear sojourns abroad. See, e.g., 8 C.F.R. 

§ 214.2(h)(13)(iii)(A), (l)(12)(i), (r)(1), (r)(5)–(6). 

Again, individuals repeatedly admitted on this 

“temporary” basis will often develop vastly stronger 

connections with the United States than with any 

foreign nation. Under the district court’s reasoning, 
15

these individuals, whose permanent homes are in 

the United States and who have lived here and plan 

on remaining here for the majority of their lives, “by 

definition have only a short-term interest in the 

national community” such that there is a compelling 

government interest in criminally punishing them

for engaging in political speech. Pl’s. App. 19a. This 

is unsupportable.

Millions of other foreign citizens come to the 

United States on long-term “nonimmigrant” visas 

that permit them to remain in this country for years 

at a time, under circumstances that provide no basis 

for suspicion of their intentions in seeking to 

exercise First Amendment rights. See, e.g., 8 C.F.R. 

§§ 214.2(h)(13)(iii)(A) (persons in “specialty 

occupations”), (o)(10) (persons with “extraordinary 

abilities”), (p)(12) (athletes), (r)(1), (r)(5)–(6)

(religious workers), 214.6 (citizens of NAFTA 

countries). For example, from 2007–2010, nearly 

one million persons from NAFTA countries were 

admitted in multi-year and often infinitely 

renewable network statuses. See 2009 Flow Report 

at 4, Table 2; 2010 Flow Report at 5, Table 3. These 

individuals are authorized to live here and work 

here, and to bring their families with them while 

they do so. See 8 C.F.R. § 214.6. 

Far from the mere “temporary visitors” the 

district court dismissed them as, “nonpermanent” 

resident aliens thus live and work side by side with 

American citizens; they buy or rent houses; they pay 

taxes; they send their children to school and 

extracurricular programs; and they participate in 

neighborhood or community organizations—in short, 

they do all of the ordinary things a member of our 
16

national community does.9 Conversely, foreign 

nationals with “immigrant” status are not 

necessarily any more “permanent”—such individuals 

remain citizens of foreign countries and typically 

remain free to return home to those countries, and 

they can and often do forfeit or relinquish their 

immigrant status. See, e.g., 8 U.S.C. § 1227(a)(2)

(providing for deportation of foreign nationals, 

including permanent residents, who commit certain 

crimes); 8 C.F.R. § 299.1 (providing form for 

voluntary abandonment of permanent residence); 

Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005)

(immigrant who travels abroad without intention to 

return to United States “as soon as practicable” 

abandons permanent residence).10 Thus, just as 

very little prevents many “nonpermanent” residents 

from effectively making the United States their 

home, nothing prevents “permanent” residents from 

maintaining significant ties to their home countries.

Although the district court emphasized that 

“permanent” residents “may . . . serve in the United 

 9 And of course, “nonpermanent” resident aliens experience 

various major life events in the United States such as changing 

jobs and getting married. Some of these events, for example, 

marriage to a U.S. citizen, or working for a U.S. employer who 

petitions on their behalf, may lead to permanent residence. 

See, e.g., 8 U.S.C. § 1203(b); 8 C.F.R. § 204.2(a). 

10 Indeed, the class of “permanent residents” includes such 

persons as the children of high-ranking foreign diplomatic 

officials born in the United States—including the offspring of 

representatives of regimes that are decidedly not our allies. 8 

C.F.R. § 101.3. Needless to say, political speech by such 

persons—which is permitted by § 441e—brings to bear an 

obvious “foreign influence.” 
17

States military,” J.S. App. 19a, that distinction adds 

little to the analysis because it is grounded in the 

same statutory distinction between “immigrants” 

and “nonimmigrants.” In any event, of the estimated 

12.5 million permanent resident aliens in the United 

States,11 only 35,000—far less than one percent—are 

serving in the active military,12 and the district 

court offered no explanation of how mere statutory 

eligibility for service might somehow lessen the 

“foreign” nature of the speech of aliens who do not 

choose to serve.13

 11 Nancy Rytina, Population Estimates: Estimates of the Legal 

Permanent Resident Population in 2009, available at

http://www.aila.org/content/default.aspx?docid=33709.

12 Anita U. Hattiangadi, et al., Non-Citizens in Today’s 

Military, http://www.cna.org/centers/marine-corps/selectedstudies/non-citizens-brief (last visited Oct. 2, 2011). Although 

these numbers do not include permanent residents who are 

former service members, the yearly number of persons accepted 

for permanent residency also vastly outstrips the yearly 

number of enlistments by permanent-resident aliens. Compare 

Randall Monger & James Yankay, U.S. Legal Permanent 

Residents: 2010, p. 1, available at http://www.dhs.gov/xlibrary/

assets/statistics/publications/lpr_fr_2010.pdf (more than 1 

million people became permanent residents in 2010), with 

United States Dep’t of Defense, Military Accessions Vital to 

Nat’l Interest Recruitment Pilot, available at http://www.

defense.gov/news/mavni-fact-sheet.pdf (8000 yearly enlistments 

by permanent residents).

13 Nor is it true that nonimmigrants are categorically 

ineligible for military service. Otherwise-ineligible persons 

may be permitted to enlist “vital to the national interest,” 10 

U.S.C. § 504(b)(2) and in recent years many nonimmigrants 

have enlisted under that provision. See Margaret D. Stock, Ten 

Things That Immigration Lawyers Should Know About the 

Army’s New Non-Citizens Recruiting Program, 14-6 Bender’s 
18

II. THE DISTRICT COURT FAILED TO APPLY THE 

NARROW TAILORING ANALYSIS REQUIRED UNDER 

STRICT SCRUTINY, AND FAILED TO RECOGNIZE

THAT § 441E IS NOT NARROWLY TAILORED.

The district court did not so much as 

acknowledge the highly relevant facts just described. 

In fact, the court engaged in very little inquiry at all 

into the characteristics of “nonimmigrant” residents 

such as Appellants, before categorizing them as 

“temporary visitors” who present such a risk of 

“foreign influence” that the government may 

criminally punish their political speech. J.S. App. 

19a–20a. In so doing, the district court not only 

failed to apply in fact the strict scrutiny analysis 

that it acknowledged in theory, but also reached the 

wrong constitutional conclusion regarding the 

threatening nature of political speech by the 

thousands of “nonimmigrant” foreign citizens who 

make this country their home. 

A. The District Court at Best Subjected 

§ 441e to a “Close Fit” Requirement, 

Not Narrow Tailoring.

Under strict scrutiny, “government must curtail 

speech only to the degree necessary to meet the 

particular problem at hand, and must avoid 

infringing on speech that does not pose the danger 

that has prompted regulation.” FEC v. Mass.

Citizens for Life, Inc., 479 U.S. 238, 265 (1986) 

 

Immigr. Bull. 1 (Mar. 15, 2009), available at 

http://www.entrylaw.com/images/stock_mavni_2-22-09.pdf.

Nonimmigrants eligible for military service have included 

doctors in the United States on a J-1 visa, such as Appellant 

Steiman here. Stock, supra, p. 4.
19

(“MCFL”). “If a less restrictive alternative would 

serve the Government’s purpose, the legislature 

must use that alternative.” United States v. Playboy 

Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). Indeed, 

“there must be some basis in the record, in 

legislative findings or otherwise, establishing the 

law enacted as the least restrictive means.” Denver 

Area Educ. Telecommc’ns Consortium, Inc. v. FCC, 

518 U.S. 727, 807 (1996) (plurality opinion). 

Accordingly, under strict scrutiny this Court has 

consistently held that even if many or most 

applications of a speech restriction arguably are 

justified by a compelling government interest, the 

First Amendment still prohibits its enforcement in 

the those applications that are not. MCFL, 479 U.S. 

at 264; cf. Citizens United, 130 S. Ct. at 911.

By contrast, when government regulates lessprotected forms of speech, such as commercial 

speech, the Court has made it clear that the 

restriction “need only be tailored in a reasonable 

manner to serve a substantial state interest.” 

Edenfield v. Fane, 507 U.S. 761, 767 (1993). As the 

Court observed in Board of Trustees of State 

University of New York v. Fox, regulations rarely if 

ever fail this intermediate level of scrutiny if they go 

“only marginally beyond what would adequately 

have served the government interest. To the 

contrary, almost all of the restrictions [struck down 

under this standard] have been substantially 

excessive, disregarding far less restrictive and more 

precise means.” 492 U.S. 469, 479 (1989) (internal 

quotation marks omitted). Thus, under this lower 

level of scrutiny the Court has upheld speech 

restrictions notwithstanding arguments that the 
20

restrictions were considerably more over- or 

underinclusive than would be permissible under 

strict scrutiny. E.g., Florida Bar v. Went for It, Inc., 

515 U.S. 618, 632-33 (1995) (interest in privacy and 

reputation of the legal profession warranted 

regulation of direct-mail solicitations by lawyers 

following injury or death; state was not required to 

regulate only mail to persons who were most likely 

to be disturbed because they suffered more serious 

injuries); Posadas de P.R. Assocs. v. Tourism Co. of 

P.R., 478 U.S. 328, 342-43 (1986) (interest in 

“reducing demand for games of chance” justified 

restrictions on casino advertising, despite lack of 

similar restrictions on advertising for other forms of 

gambling).14

Although the district court stated that it was 

applying strict scrutiny, J.S. App. 8a–9a, in reality it 

at best applied this second, more relaxed, form of 

scrutiny. Having found a compelling government 

interest in “preventing foreign influence over the 

U.S. political process,” J.S. App. 13a, the district 

court then concluded with little analysis that the 

INA’s distinction between “permanent residents” 

and other foreign citizens exactly coincides with the 

dividing line as to whose speech is sufficiently 

“foreign” to be prohibited. Citing no evidence other 

than “permanent” residents’ eligibility for military 

service, the district court found them to be “more 

 14 Even under intermediate scrutiny, the Court has often 

struck down laws as simply prohibiting too much speech. E.g., 

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 561-67 (2001). As 

is explained in the Jurisdictional Statement, § 441e cannot 

properly survive even the intermediate scrutiny that the 

district court (on a generous reading) applied.
21

similar to citizens than they are to temporary 

visitors.” J.S. App. 19a. Concomitantly, the district 

court categorized “nonimmigrant” residents as 

“temporary visitors” without any inquiry into the 

actual terms on which such persons are permitted to 

reside in this country, and without any explanation 

of how that label could be used to describe the many 

“nonimmigrants” lawfully living in this country for 

years. J.S. App. 19a. Indeed, notwithstanding the 

narrow tailoring that strict scrutiny plainly requires,

the district court went so far as to say that 

“Congress may proceed piecemeal in an area such as 

this.” J.S. App. 20a.

Thus, based on little more than the actual words 

of the statute, the district court simply accepted that 

the INA’s categorization is in some rough sense a 

sufficient approximation of the class of non-citizens

whose political speech involves so much “foreign 

influence” that the government may prohibit it. This 

might—barely—suffice under a relaxed form of 

intermediate scrutiny. It clearly does not comport 

with the narrow-tailoring analysis required by this 

Court’s strict scrutiny precedents. This alone 

requires reversal.

B. Section 441e Is Not Narrowly 

Tailored to Target Only and All 

Speech With Foreign Influence.

Had the district court properly applied a strict 

scrutiny analysis, it could not have reached the 

result that it did. This case is markedly similar to 

MCFL, in which this Court considered a restriction 

on corporate political speech that purportedly was 

justified by “Congress’ concern that organizations 
22

that amass great wealth in the economic 

marketplace not gain unfair advantage in the 

political marketplace.” 479 U.S. at 263. Applying 

strict scrutiny, the Court concluded that it need not 

decide “whether that concern is adequate to support 

application of [the speech restriction] to commercial 

enterprises,” because it unquestionably did not

support regulation of the respondent in that case—a 

non-profit advocacy corporation with no 

shareholders, which did not take donations from 

business corporations or labor unions. Id.; see also 

Citizens United, 130 S. Ct. at 911 ((finding corporate 

speech restrictions unjustified by “shareholderprotection interest” because, inter alia, “the statute 

is overinclusive because it covers all corporations, 

including nonprofit corporations and for-profit 

corporations with only single shareholders”).15

Much like in MCFL, the Court need not decide 

whether the government interest in “preventing 

foreign influence” that might justify some

applications of § 441e; for example, the Court need 

not decide whether the statute might 

constitutionally be applied to the broad class of 

nonimmigrant foreign citizens who come to this 

country on truly short-term visits and retain homes 

elsewhere. The question before this Court, and the 

question the district court answered neither 

sufficiently nor correctly, is whether Congress swept 

too broadly when it included within its restrictions 

individuals like Appellants, who actually reside here 

 15 The Court later rejected in Citizens United the argument 

that the interest at stake in MCFL was a compelling one.
23

and have deeper attachments to this country than 

most “nonimmigrants,” Plainly, it did.

There is no persuasive evidence that foreign 

citizens who are approved to reside in the United 

States, oftentimes indefinitely, present any greater 

danger of imposing “foreign influence” than do the 

“permanent resident” aliens whose speech the 

district court (rightly) suggested cannot be 

restricted. While the Court need not chart the 

precise outer boundaries of the class of foreign 

citizens whose political speech may not 

constitutionally be curtailed while they are in the 

United States, it should affirm that, at a minimum, 

the government has no compelling government 

interest (or even an important one) in prohibiting 

speech by persons who have lawfully established 

their primary, full-time residence here.16

Moreover, because a great number of 

“nonimmigrant” residents pose no greater threat of 

“foreign influence” than do many “permanent 

resident” aliens, see supra, Part I.B, § 441e’s express 

exemption for the latter group confirms that there 

can be no genuine compelling interest in prohibiting 

speech by the former. “[A] law cannot be regarded as 

protecting an interest of the highest order . . . when 

it leaves appreciable damage to that supposedly vital 

interest unprohibited.” Church of the Lukumi 

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 

547 (1993) (internal quotation marks omitted). 

 16 This case also does not present the necessity of precisely 

defining “residency” for First Amendment purposes, since 

whatever the exact definition may be, plaintiffs here obviously 

satisfy it, having both lived here for lengthy periods. See J.S. 5.
24

Under any level of review, this Court has long 

rejected the notion that a proffered government 

interest can justify a speech restriction if other 

speech—or even non-speech matters—implicating 

the same interest are left unregulated. See City of 

Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 

424-25 (1993) (ban on newsrack distribution of 

commercial publications not justified by interest in 

aesthetics, where unregulated newspapers 

implicated the same interest); Simon & Schuster, 

Inc. v. Members of N.Y. State Crime Victims Bd., 502 

U.S. 105, 119–20 (1991) (internal quotation marks 

omitted) (rejecting justification of “ensuring that 

criminals do not profit from storytelling about their 

crimes before their victims have a meaningful 

opportunity to be compensated for their injuries,” 

where the government had not justified “a 

distinction between this expressive activity and any 

other activity in connection with its interest in 

transferring the fruits of crime from criminals to 

their victims”); Carey v. Brown, 447 U.S. 455, 464-65 

(1980) (“State’s interest in residential privacy” could 

not justify ban on residential picketing that 

exempted labor picketing).

If the district court’s judgment is allowed to 

stand, Congress will have the power to eliminate 

crucial Amendment rights—and, quite possibly, 

other constitutional rights—of persons who have 

made their lives in the United States by the simple 

expedient of passing a statute labeling such persons 

“nonpermanent” residents. To treat with so little 

respect the rights of people we have invited to this 

country is consistent with neither the constitutional
25

traditions nor the historical roots of the United 

States.

CONCLUSION

For the reasons stated herein, this Court should 

grant plenary consideration and reverse the 

judgment of the district court.

Respectfully submitted,

October 3, 2011

Viet D. Dinh

 Counsel of Record

Erin E. Murphy

Nicholas J. Nelson

BANCROFT PLLC

1919 M Street, NW,

Suite 470

Washington, DC 20036

vdinh@bancroftpllc.com

(202) 234-0090

Counsel for Amici Curiae

the Illinois Coalition for 

Immigrant and Refugee 

Rights and the National 

Immigrant Justice Center