J. Marquez-Reyes v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

J. GUADALUPE MARQUEZ-REYES, No. 17-71367
Petitioner,
Agency No.
v. A205-490-228

MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted December 11, 2020
Seattle, Washington

Filed June 14, 2022

Before: Marsha S. Berzon and Eric D. Miller, Circuit
Judges, and Sharon L. Gleason, * District Judge.

Opinion by Judge Miller;
Dissent by Judge Berzon

*
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2 MARQUEZ-REYES V. GARLAND

SUMMARY **

Immigration

Denying J. Guadalupe Marquez-Reyes’s petition for
review of a decision of the Board of Immigration Appeals,
the panel held that: 1) 8 U.S.C. § 1182(a)(6)(E)(i), the statute
that makes a noncitizen removable or ineligible for certain
relief due to alien smuggling, is not facially overbroad under
the First Amendment, is not unconstitutionally vague, and
does not violate equal protection; and 2) the agency did not
abuse its discretion in denying administrative closure.

Applicants for cancellation of removal must establish
that they have been “of good moral character,” for the
previous ten years, and section 1101(f)(3) defines “good
moral character,” to exclude anyone described in the alien-
smuggling provision at section 1182(a)(6)(E)(i). Marquez-
Reyes conceded that he “encouraged” his son to enter the
country illegally, and was found ineligible for cancellation
on that ground.

In challenging section 1182(a)(6)(E)(i) on First
Amendment grounds, Marquez-Reyes did not argue that he
engaged in protected speech (he did not say what he actually
said or did); rather, he argued that the section was facially
overbroad. The panel first analyzed the text of section
1182(a)(6)(E)(i), which renders inadmissible any alien who
“knowingly has encouraged, induced, assisted, abetted, or
aided any other alien to enter or to try to enter the United
States in violation of law.” Marquez-Reyes urged the court
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 MARQUEZ-REYES V. GARLAND 3

to apply the ordinary meaning of “encourage,” arguing that
this definition encompasses a wide range of protected
speech.

However, the panel held that “encouraged” here refers to
the narrower, criminal law sense of soliciting or aiding and
abetting criminal conduct. The panel explained that its
interpretation was supported by: 1) the structure of the
section—the other verbs in the provision connote complicity
in a specific criminal act and, by contrast, the broad meaning
of “encourage” that Marquez-Reyes advocated did not fit
naturally with those verbs; 2) the title of section —
“Smugglers”—and the fact that courts have interpreted
smuggling to require affirmative assistance; 3) the remainder
of the section—that the object of the encouragement must be
an alien’s entry “in violation of law” —and the fact that the
statute applies only when the conduct has been undertaken
“knowingly” (thus reinforcing that the statute targets
involvement in specific criminal conduct); and 4) prior cases
addressing section 1182(a)(6)(E)(i).

The panel rejected Marquez-Reyes’s contention that its
interpretation creates overlap with the other verbs in the
section, explaining that, because no interpretation could
avoid excess language here, the canon against superfluity
had limited force. Further, the panel explained that, even if
the panel had doubt about its interpretation, the canon of
constitutional avoidance would militate in its favor.

Next, the panel considered whether section
1182(a)(6)(E)(i) covers a substantial amount of protected
speech. The panel concluded that a significant portion of
speech that might fall within the statute’s scope is
unprotected. The panel explained that: 1) because the
section targets conduct that solicits, aids, or abets the
4 MARQUEZ-REYES V. GARLAND

commission of a federal crime, it has many legitimate
applications that do not involve speech at all (such as paying
smugglers); 2) to the extent that cases under the section have
involved speech, that speech was accompanied by some
affirmative act; and 3) it was telling that Marquez-Reyes was
unable to identify any instance in which a court has applied
the section in the manner that he advocated.

The panel also concluded that the statute does not reach
mere advocacy because it requires some specific intent to
facilitate the commission of another’s crime. The panel
distinguished this case from recent cases where this court
found the term “encourage” in other statutes to be facially
overbroad: United States v. Hansen, 25 F.4th 1103 (9th Cir.
2022), and United States v. Rundo, 990 F.3d 709 (9th Cir.
2021) (per curiam).

Next, the panel rejected Marquez-Reyes’s argument that
section 1182(a)(6)(E)(i) is unconstitutionally vague. The
panel concluded that his concession that he “encouraged” his
son’s unlawful entry foreclosed his facial challenge because
an individual who has engaged in conduct that is clearly
covered by a statute cannot complain of vagueness as
applied to others.

The panel also rejected Marquez-Reyes’s equal
protection challenge, which was based on the fact that
waivers of the alien-smuggling bar are available for certain
noncitizens seeking admission or adjustment of status, but
not for those seeking cancellation. Applying rational basis
scrutiny, the panel observed that (in a different context), this
court concluded that it was rational for Congress to allow
such waivers only to persons who have complied with
immigration laws, and not to those who entered without
inspection and then attempted to smuggle others.
 MARQUEZ-REYES V. GARLAND 5

Finally, the panel held that the agency did not abuse its
discretion in denying administrative closure, explaining that
the agency considered the applicable factors and explained
its conclusions. The panel also rejected Marquez-Reyes’s
reliance on a BIA case that was decided after the IJ’s
decision and noted that the BIA’s de novo review made any
error by the IJ harmless.

Dissenting, Judge Berzon wrote that the majority’s
holding is inconsistent with Rundo and Hansen and illogical
on its own terms. She also wrote that, construed in
accordance with its ordinary meaning, “encouraged”
includes a wide swath of constitutionally protected speech.
Judge Berzon explained that Rundo and Hansen have
demonstrated that a statutory provision that penalizes
“encouraging” someone to do something runs a serious risk
of chilling speech by covering a substantial amount of
protected speech, compared to its legitimate sweep. The
majority strained to avoid this problem by interpreting
“encouraged,” improbably, to cover only speech closely
connected to a crime—but, as Judge Berzon explained, not
closely enough to survive First Amendment invalidity.
Because, in Judge Berzon’s view, the majority’s approach
was an untenable statutory interpretation and also one
insufficient to save the statute from invalidity, she would
instead adopt Rundo’s solution and sever the word
“encouraged” from section 1182(a)(6)(E)(i).
6 MARQUEZ-REYES V. GARLAND

COUNSEL

Benjamin E. Stein (argued) and Henry Cruz, Rios & Cruz
P.S., Seattle, Washington, for Petitioner.

Craig A. Newell Jr. (argued), Trial Attorney; Emily Anne
Radford, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.

OPINION

MILLER, Circuit Judge:

J. Guadalupe Marquez-Reyes, a native and citizen of
Mexico, petitions for review of a decision of the Board of
Immigration Appeals denying his request to administratively
close his removal proceedings. An immigration judge
ordered Marquez-Reyes removed from the United States
after he admitted that he had committed acts that disqualified
him from obtaining cancellation of removal: He twice
“encouraged” his eldest son to enter the United States
illegally. Marquez-Reyes now argues that the “encouraged”
component of the alien-smuggling statute, 8 U.S.C.
§ 1182(a)(6)(E)(i), is unconstitutionally overbroad under the
First Amendment, that it is unconstitutionally vague, and
that it violates the equal-protection component of the Due
Process Clause. He also contends that the agency abused its
discretion in denying his motion for administrative closure.
Because Marquez-Reyes’s constitutional challenges lack
merit and the agency did not abuse its discretion, we deny
the petition.
 MARQUEZ-REYES V. GARLAND 7

I

Marquez-Reyes entered the United States without
inspection in 1998 and has lived here ever since. In 2013, the
government opened removal proceedings against him.
Marquez-Reyes conceded that he was removable but
requested cancellation of removal. At his final hearing,
however, Marquez-Reyes admitted that he was ineligible for
cancellation of removal because he had twice “encouraged”
his son (who is not a United States citizen) to enter the
country illegally, once in October 2010 and again in
February 2011. Marquez-Reyes did not say—and the record
does not otherwise reveal—just what he said or did by way
of encouragement. Nevertheless, the admission was legally
significant. Only those who have been “of good moral
character” for the previous ten years are eligible for
cancellation of removal. 8 U.S.C. § 1229b(b)(1)(B). But
“good moral character” is defined to exclude anyone
described in section 1182(a)(6)(E), see id. § 1101(f)(3); and
that provision, in turn, provides for the inadmissibility of any
alien who “knowingly has encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the
United States in violation of law,” id. § 1182(a)(6)(E)(i).

To avoid that statutory barrier, Marquez-Reyes asked the
immigration judge to administratively close his removal
proceedings for approximately five years so that he could
accrue the necessary time to become eligible for a finding of
“good moral character” and thereby qualify for cancellation
of removal. The immigration judge denied his request and
ordered him removed. The Board of Immigration Appeals
dismissed his appeal.
8 MARQUEZ-REYES V. GARLAND

II

We begin with Marquez-Reyes’s claim that section
1182(a)(6)(E)(i) is facially overbroad under the First
Amendment. We review de novo whether the statute is
constitutional. Ledezma-Cosino v. Sessions, 857 F.3d 1042,
1045–46 (9th Cir. 2017) (en banc).

Marquez-Reyes does not argue that he engaged in
constitutionally protected speech, such that applying the
statute to him would violate the First Amendment. He could
not make such an argument because he has carefully avoided
describing what his speech was, or even whether he engaged
in speech at all. Instead, all he has told us is that he
“encouraged” his son to enter the United States illegally—
and, as we will see, the parties disagree about what
“encouraged” means in section 1182(a)(6)(E)(i).

In most contexts, “a person to whom a statute may
constitutionally be applied may not challenge that statute on
the ground that it may conceivably be applied
unconstitutionally to others in situations not before the
Court.” Los Angeles Police Dep’t v. United Reporting
Publ’g Corp., 528 U.S. 32, 38 (1999) (quoting New York v.
Ferber, 458 U.S. 747, 767 (1982)). That rule reflects the
important constitutional principles “that under our
constitutional system courts are not roving commissions
assigned to pass judgment on the validity of the Nation’s
laws” and that ruling on the constitutionality of a statute is
“justified only out of the necessity of adjudicating rights in
particular cases between the litigants brought before the
Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610–11
(1973); see United States v. Sineneng-Smith, 140 S. Ct. 1575,
1586–87 (2020) (Thomas, J., concurring).
 MARQUEZ-REYES V. GARLAND 9

Nevertheless, the Supreme Court has recognized a
limited exception for certain First Amendment claims.
Under the doctrine of overbreadth, litigants may be
“permitted to challenge a statute not because their own rights
of free expression are violated, but because of a judicial
prediction or assumption that the statute’s very existence
may cause others not before the court to refrain from
constitutionally protected speech or expression.” Broadrick,
413 U.S. at 612; see Ferber, 458 U.S. at 768–69.

But the Court has repeatedly cautioned that “overbreadth
is ‘strong medicine’ that is not to be ‘casually employed.’”
Sineneng-Smith, 140 S. Ct. at 1581 (quoting United States v.
Williams, 553 U.S. 285, 293 (2008)). A statute is not
overbroad just because “one can conceive of some
impermissible applications.” Members of City Council of
L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984).
Instead, its overbreadth must “be substantial, not only in an
absolute sense, but also relative to the statute’s plainly
legitimate sweep.” Williams, 553 U.S. at 292; accord
Washington State Grange v. Washington State Republican
Party, 552 U.S. 442, 449 n.6 (2008). There must, in other
words, be “a realistic danger that the statute itself will
significantly compromise recognized First Amendment
protections of parties not before the Court.” Acosta v. City of
Costa Mesa, 718 F.3d 800, 811 (9th Cir. 2013) (quoting
Taxpayers for Vincent, 466 U.S. at 800–01). That standard
is not satisfied here.

A

We start by construing the statute, as “it is impossible to
determine whether a statute reaches too far without first
knowing what the statute covers.” Williams, 553 U.S. at 293.
Our analysis begins with the text. Hall v. United States Dep’t
of Agric., 984 F.3d 825, 837 (9th Cir. 2020). Section
10 MARQUEZ-REYES V. GARLAND

1182(a)(6)(E)(i) provides that “[a]ny alien who at any time
knowingly has encouraged, induced, assisted, abetted, or
aided any other alien to enter or to try to enter the United
States in violation of law is inadmissible.” The parties’
dispute turns on the meaning of “encouraged” in that list of
verbs.

The Immigration and Nationality Act does not define
“encouraged,” and normally, when a statute does not define
a term, we apply the term’s ordinary meaning. Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47
(1989). Marquez-Reyes urges us to do so here and to
construe “encourage” based on a dictionary definition:
“inspire with courage, spirit, or hope . . . spur on . . . give
help or patronage to.” Merriam Webster’s Collegiate
Dictionary 410 (11th ed. 2014); see also United States v.
Thum, 749 F.3d 1143, 1147 (9th Cir. 2014). That definition,
he observes, encompasses a wide range of constitutionally
protected speech, such as an alien’s ordinary conversations
with overseas relatives (“I wish you were here with me.”) or
public demonstrations supporting immigrant rights (“We
welcome all immigrants.”).

Sometimes, however, statutory context indicates that a
word is not used in its ordinary sense but instead carries a
technical or specialized meaning. See Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 73 (2012). The word “encouraged” has such a meaning
in criminal law, where it refers to solicitation or aiding and
abetting. See, e.g., Cox v. Louisiana, 379 U.S. 559, 563
(1965) (“A man may be punished for encouraging the
commission of a crime.”). Under the Model Penal Code, for
example, a person is guilty of criminal solicitation “if with
the purpose of promoting or facilitating its commission he
commands, encourages or requests another person to engage
 MARQUEZ-REYES V. GARLAND 11

in specific conduct that would constitute such crime.” Model
Penal Code § 5.02(1) (emphasis added). A number of States
have similar laws imposing criminal liability on those who
knowingly or purposefully “encourage” the commission of a
specific criminal act. See, e.g., Ariz. Rev. Stat. § 13-
1002(A); Haw. Rev. Stat. § 705-510(1); Idaho Code § 18-
2001; Mont. Code § 45-4-101(1); Wash. Rev. Code
§ 9A.08.020(3)(a)(i). Reflecting that understanding, Black’s
Law Dictionary defines “encourage” as “[t]o instigate; to
incite to action; to embolden; [or] to help,” with a cross-
reference to the definition for “aid and abet.” Black’s Law
Dictionary 667 (11th ed. 2019); see id. at 5 (defining “abet”
as “[t]o aid, encourage, or assist (someone), esp. in the
commission of a crime” (emphasis added)); Reves v. Ernst
& Young, 507 U.S. 170, 178 (1993) (“‘[A]id and abet’
‘comprehends all assistance rendered by words, acts,
encouragement, support, or presence.’” (quoting Black’s
Law Dictionary 68 (6th ed. 1990))); Nye & Nissen v. United
States, 168 F.2d 846, 854 (9th Cir. 1948) (“To ‘instigate’
means to aid, promote, or encourage the commission of an
offense. One of its synonyms is ‘abet.’” (citation omitted)).

The structure of section 1182(a)(6)(E)(i) convinces us
that Congress used “encourage” in that narrower, criminal-
law sense of solicitation or aiding and abetting. Specifically,
that interpretation is supported by the noscitur a sociis
canon, which instructs that “a word is known by the
company it keeps.” McDonnell v. United States, 136 S. Ct.
2355, 2368 (2016) (quoting Jarecki v. G.D. Searle & Co.,
367 U.S. 303, 307 (1961)); see Williams, 553 U.S. at 294
(“[A] word is given more precise content by the neighboring
words with which it is associated.”). The verbs that
accompany “encouraged”—namely, “induced, assisted,
abetted, or aided”—connote complicity in a specific criminal
act. “Aided” and “abetted,” in particular, describe textbook
12 MARQUEZ-REYES V. GARLAND

criminal facilitation; and “inducement,” likewise, is the
“enticement or urging of another person to commit a crime.”
Black’s Law Dictionary 926 (11th ed. 2019). The remaining
verb, “assisted,” is susceptible to “multiple and wide-
ranging meanings” when considered in isolation, but in
context, can reasonably be understood in a manner
consistent with the other verbs in the statute. See Williams,
553 U.S. at 294. By contrast, the broad meaning of
“encourage” that Marquez-Reyes advocates does not fit
naturally with those verbs.

Section 1182(a)(6)(E)’s title—“Smugglers”—further
supports our interpretation. See INS v. National Ctr. for
Immigrants’ Rts., Inc., 502 U.S. 183, 189 (1991) (“[T]he title
of a statute or section can aid in resolving an ambiguity in
the legislation’s text.”). In Tapucu v. Gonzales, 399 F.3d 736
(6th Cir. 2005), the Sixth Circuit noted that “smugglers”
refers to those who “import or export secretly contrary to law
. . . with a fraudulent intent.” Id. at 740 (emphasis omitted)
(quoting Webster’s Third New International Dictionary
2153 (2002)); see id. at 741–42 (collecting smuggling cases).
Based in part on the provision’s title, the court concluded
that section 1182(a)(6)(E)(i) requires “some form of
affirmative assistance in the alien’s illegal entry, something
more than merely driving to a border station and presenting
valid documents to customs officials.” Id. at 740. It would
be anomalous if the individuals hypothesized by Marquez-
Reyes—those who merely participate in pro-immigrant
rallies or suggest that their children come to the United
States—were “smugglers” under the statute “without
committing a single affirmative illicit act.” Id. at 741.

The remainder of section 1182(a)(6)(E)(i) reinforces our
conclusion that the statute targets involvement in specific
criminal conduct. Not just any “encouragement” is
 MARQUEZ-REYES V. GARLAND 13

prohibited: The object of the encouragement must be an
alien’s entry into the United States “in violation of law,”
indicating that the statute proscribes only conduct that aids
criminal activity. In addition, the statute applies only when
the conduct has been undertaken “knowingly.” The most
natural reading is that the scienter requirement imposed by
the word “knowingly” applies to “every element” of the
statute. See Williams, 553 U.S. at 294; see also Rehaif v.
United States, 139 S. Ct. 2191, 2196–97 (2019); United
States v. Meek, 366 F.3d 705, 721 (9th Cir. 2004). To sustain
a charge of inadmissibility, then, the government must prove
not only that the violator “knowingly encouraged, induced,
assisted, abetted, or aided” another alien to enter or try to
enter, but also that the violator knew the entry would be “in
violation of law.” This indicates that the statute covers the
intentional solicitation or facilitation of a specific crime, but
not political advocacy of the sort imagined by Marquez-
Reyes.

Our interpretation is consistent with prior cases
addressing section 1182(a)(6)(E)(i). Although we have not
specifically considered the meaning of “encouraged” in this
statute, we have recognized that the “alien smuggling
provisions of the [Immigration and Nationality Act] have
been generally analyzed as aiding and abetting statutes” and
that section 1182(a)(6)(E)(i), in particular, “imports” the
“traditional criminal law aiding and abetting doctrine.”
Altamirano v. Gonzales, 427 F.3d 586, 594 (9th Cir. 2005).
Consistent with that doctrine, in Altamirano, we held that
“[t]he plain meaning of this statutory provision requires an
affirmative act of help, assistance, or encouragement.” Id.
at 592; accord Tapucu, 399 F.3d at 742–43 (holding that an
alien is not inadmissible under section 1182(a)(6)(E)(i) if the
alien did not perform an affirmative act of assistance).
14 MARQUEZ-REYES V. GARLAND

Marquez-Reyes points to Thum, in which we noted that
“encourage” has a broad ordinary meaning. 749 F.3d
at 1147. But in that case, which involved a different
immigration statute, we ultimately concluded that the
statutory context foreclosed “reading ‘encourages’ . . . as
broadly” as its ordinary meaning might otherwise suggest—
a mode of analysis similar to the one we employ today. Id.

Marquez-Reyes also argues that our interpretation of
“encouraged” creates overlap with the other verbs in section
1182(a)(6)(E)(i). He is of course correct that “a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19,
31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174
(2001)). But some degree of statutory redundancy is not
unusual. See Marx v. General Revenue Corp., 568 U.S. 371,
385 (2013) (“The canon against surplusage is not an absolute
rule.”). And under any interpretation of section
1182(a)(6)(E)(i), some degree of redundancy is inevitable.
There is, for example, significant or complete overlap
between the terms “assisted” and “aided.” And “aided” and
“abetted” in the criminal context are “frequently used
interchangeably,” even if they are not entirely synonymous.
Black’s Law Dictionary 87 (11th ed. 2019) (quoting
1 Charles E. Torcia, Wharton’s Criminal Law § 29, at 181
(15th ed. 1993)). Because “no interpretation . . . avoids
excess language” in section 1182(a)(6)(E)(i), the canon
against superfluity has limited force here. Microsoft Corp. v.
I4I Ltd. P’ship, 564 U.S. 91, 106 (2011).

That is not to say that the list of verbs consists entirely
of synonyms or that we can ignore the canon against
superfluity altogether. But it suffices to observe that
“encouraged”—understood to encompass solicitation—has
 MARQUEZ-REYES V. GARLAND 15

at least some distinct applications from its neighboring
verbs. Imagine, for example, someone who promises to give
a job to an alien if he comes to the United States unlawfully.
That promise might not involve assisting—or aiding and
abetting—because it would play no role in helping the
individual actually cross the border; it would merely provide
benefits after the fact. See United States v. Innie, 7 F.3d 840,
852 (9th Cir. 1993) (“[B]eing an accessory after the fact is
clearly different from aiding and abetting.”). And it might
not constitute inducement if the person ultimately did not
enter the United States, as “induce” suggests a successful
effort to persuade someone to do something. See Webster’s
Third New International Dictionary 1154 (2002) (“to move
and lead (as by persuasion or influence)”). But it could
constitute encouragement.

Even if we had some doubt about our interpretation of
the word “encouraged,” the canon of constitutional
avoidance would militate in its favor. See Edward J.
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const.
Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an
otherwise acceptable construction of a statute would raise
serious constitutional problems, the Court will construe the
statute to avoid such problems.”). Under Marquez-Reyes’s
interpretation, section 1182(a)(6)(E)(i) would cover every
communication by an alien that has something to do with a
noncitizen’s decision to enter illegally—including, perhaps,
pro-immigration political advocacy. That interpretation
would raise serious constitutional questions, so even if we
thought it a permissible reading of the text, we would avoid
it in favor of the interpretation we announce today. See
Ferber, 458 U.S. at 769 n.24 (“When a federal court is
dealing with a federal statute challenged as overbroad, it
should, of course, construe the statute to avoid constitutional
16 MARQUEZ-REYES V. GARLAND

problems, if the statute is subject to such a limiting
construction.”); accord Broadrick, 413 U.S. at 613.

In sum, “encouraged” refers to soliciting or aiding and
abetting criminal conduct, and section 1182(a)(6)(E)(i)
therefore applies to the solicitation or facilitation of specific
unlawful activity—illegal entry or attempted entry into the
United States.

B

We now consider whether section 1182(a)(6)(E)(i)
covers a substantial amount of protected speech, “not only
in an absolute sense, but also relative to the statute’s plainly
legitimate sweep.” Williams, 553 U.S. at 292.

At the outset, we reject Marquez-Reyes’s suggestion that
we focus our analysis solely on “encouraged” to the
exclusion of the remaining verbs. In conducting the
overbreadth inquiry, we must determine whether the statute,
taken as a whole, reaches an impermissible quantum of
protected speech that far exceeds its legitimate sweep. See
Ferber, 458 U.S. at 769 n.24. Only then may we determine
whether the statute is “severable,” and if so, invalidate “only
the unconstitutional portion.” Id.; see United States v.
Kaczynski, 551 F.3d 1120, 1125 (9th Cir. 2009) (“A court
does not sever a statute prior to determining whether it is
facially valid.”).

“[A]s a general matter, the First Amendment means that
government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content.”
United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting
Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)). But the First
Amendment does not protect speech that is “used as an
integral part of conduct in violation of a valid criminal
 MARQUEZ-REYES V. GARLAND 17

statute.” Giboney v. Empire Storage & Ice Co., 336 U.S.
490, 498 (1949). Statutes that punish “conspiracy,
incitement, and solicitation” of crimes may reach at least
some speech but nevertheless survive facial First
Amendment scrutiny. See Williams, 553 U.S. at 298; see
also Cox, 379 U.S. at 563.

Section 1182(a)(6)(E)(i), as we interpret it, targets
conduct that solicits, aids, or abets the commission of a
federal crime. See 8 U.S.C. §§ 1325, 1326. It therefore has
many legitimate applications that do not involve speech at
all. See Virginia v. Hicks, 539 U.S. 113, 124 (2003) (noting
that an overbreadth challenge “[r]arely, if ever, will . . .
succeed against a law or regulation that is not specifically
addressed to speech or to conduct necessarily associated
with speech.”). That conclusion is not merely a theoretical
assessment of the statute’s scope; it is the product of
experience. The cases in which courts have upheld the
Board’s determination that an alien is removable under
section 1182(a)(6)(E)(i) overwhelmingly involve non-
expressive conduct, such as paying smugglers, procuring
fraudulent documents and presenting them to immigration
officials, or illegally transporting noncitizens across the
border. See Altamirano, 427 F.3d at 592–93 (collecting
cases); see also Tapucu, 399 F.3d at 741–42 (same).

To the extent that cases under section 1182(a)(6)(E)(i)
have involved speech, that speech was accompanied by
some “affirmative act of help, assistance, or encouragement”
that was either integral to an alien’s illegal entry or ancillary
to actions ordinarily understood as smuggling. Altamirano,
427 F.3d at 592; see also Moran v. Ashcroft, 395 F.3d 1089,
1091 (9th Cir. 2005) (involving an alien who told his wife
“he wanted her and their son to come to live with him in the
United States and he would be willing to help pay” for a
18 MARQUEZ-REYES V. GARLAND

smuggler, and then paid the smuggler based on a pre-
arrangement with his wife’s parents), overruled on other
grounds by Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009)
(en banc). Thus, a significant portion of any speech that
might fall within the statute’s scope is unprotected. See
Williams, 553 U.S. at 298. It is telling that Marquez-Reyes
is unable to identify any instance in which a court has applied
section 1182(a)(6)(E)(i) in the manner that he advocates.

We recognize that an “important distinction” exists
“between a proposal to engage in illegal activity and the
abstract advocacy of illegality,” the latter of which is
constitutionally protected. Williams, 553 U.S. at 298–99; see
Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (per
curiam). But the statute here proscribes intentional conduct
that solicits, aids, or abets a specific alien in an attempt to
enter the United States illegally. We have observed that “the
mens rea and actus reus required for solicitation are similar
to those required for aiding and abetting, conspiracy and
attempt.” United States v. Contreras-Hernandez, 628 F.3d
1169, 1173 (9th Cir. 2011) (quoting United States v.
Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir. 2006)). It
requires, in other words, “the specific intent to facilitate the
commission of a crime by someone else.” United States v.
Garcia, 400 F.3d 816, 819 (9th Cir. 2005). The statute
therefore does not reach mere abstract advocacy, as
Marquez-Reyes suggests.

In this respect, section 1182(a)(6)(E)(i) is considerably
different from 8 U.S.C. § 1324(a)(1)(A)(iv), which we
determined to be facially overbroad in United States v.
Hansen, 25 F.4th 1103 (9th Cir. 2022). Accord United States
v. Sineneng-Smith, 910 F.3d 461 (9th Cir. 2018), vacated,
140 S. Ct. 1575 (2020). Section 1324(a)(1)(A)(iv) makes it
a federal felony to “encourag[e] or induc[e] an alien to come
 MARQUEZ-REYES V. GARLAND 19

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.” In Hansen, we
emphasized that the words “encourage or induce” were not
“part of a series of words that shed additional light on their
meaning,” and we therefore held that the statute did not lend
itself to the application of noscitur a sociis that dictates our
interpretation of section 1182(a)(6)(E)(i) today. 25 F.4th at
1107–08. We found additional support for that conclusion in
the structure of the statute—in particular, in separate
provisions making it illegal to bring aliens into the country,
shield them from detection, or aid and abet those acts. Id.
at 1108–09; see 8 U.S.C. § 1324(a)(1)(A)(i)–(iii),
(a)(1)(A)(v)(II). Reasoning that “Congress intended for the
provisions to have different meanings,” we concluded that
those provisions “strongly suggest[ed] that subsection (iv)
should not also be read as an aiding and abetting provision”
and therefore we declined to adopt a narrow interpretation of
“encouraged.” Hansen, 25 F.4th at 1108–09.

We also emphasized that section 1324(a)(1)(A) was a
criminal prohibition on encouraging conduct—such as
residence in the United States without legal status—that was
not itself a crime. Hansen, 25 F.4th at 1110. By contrast,
section 1182(a)(6)(E)(i) applies only to illegal entry into the
United States, and its only sanction is ineligibility for certain
immigration benefits. While the “threat of criminal
prosecution is [not] a necessary condition for the
entertainment of a facial challenge,” Los Angeles Police
Dep’t, 528 U.S. at 39, the “concern that an overbroad statute
deters protected speech is especially strong where . . . the
statute imposes criminal sanctions,” Doe v. Harris, 772 F.3d
563, 578 (9th Cir. 2014).
20 MARQUEZ-REYES V. GARLAND

Our decision in United States v. Rundo, 990 F.3d 709
(9th Cir. 2021) (per curiam), is similarly unhelpful here
because it too involved the word “encourage” in a very
different statutory context. In that case, we considered a
provision of 18 U.S.C. § 2101(a)(2) that makes it a crime to
“encourage” a riot. Rundo, 990 F.3d at 716–17. Giving
“encourage” its ordinary meaning, we held the statute to be
facially overbroad. We discussed the meaning of
“encourage” only briefly, without considering whether it
could be limited to solicitation or aiding and abetting; the
surrounding statutory terms in section 2101(a)(2)—namely
“organize, promote . . . participate in, or carry on”—did not
lend themselves to such a reading. See id. at 717. By
contrast, as we have explained, the words surrounding
“encourage” in section 1182(a)(6)(E)(i) instead imply its
narrower, criminal-law meaning.

We need not decide whether section 1182(a)(6)(E)(i)
reaches only unprotected speech. It is enough to say that, to
the extent the statute may reach some protected speech, it is
not substantially overbroad relative to its legitimate sweep.
See Williams, 553 U.S. at 303 (rejecting facial overbreadth
challenge because, “[i]n the vast majority of its applications,
th[e] statute raise[d] no constitutional problems whatever”).
Nor do we foreclose future as-applied First Amendment
challenges to the statute. As we have already explained,
however, such a challenge is impossible in this case because
Marquez-Reyes has refused to disclose just what he said or
did to encourage his son to attempt to enter the country. We
are presented only with a facial overbreadth challenge, and
it is only that challenge that we reject today.

III

Marquez-Reyes next argues that section 1182(a)(6)(E)(i)
is unconstitutionally vague, in violation of the Fifth
 MARQUEZ-REYES V. GARLAND 21

Amendment’s Due Process Clause. He does not suggest that
the statute is vague as applied to his conduct. To the contrary,
he concedes that his actions—whatever they were—
involved encouraging unlawful entry and therefore fell
within the scope of section 1182(a)(6)(E)(i). Instead, he
presents a facial vagueness challenge. But his concession
forecloses that challenge as well because an individual who
“has engaged in conduct that is clearly covered” by a statute
“cannot complain of the vagueness of the law as applied to
the conduct of others.” Ledezma-Cosino, 857 F.3d at 1047
(quoting Holder v. Humanitarian Law Project, 561 U.S. 1,
19 (2010)).

In Kashem v. Barr, 941 F.3d 358, 377 (9th Cir. 2019),
we suggested that a party whose conduct is clearly covered
by a statute might be able to bring a facial vagueness
challenge in “exceptional circumstances,” such as when a
statute is “plagued by such indeterminacy that [it] might be
vague even as applied to the challengers.” Cf. Johnson v.
United States, 576 U.S. 591, 602–04 (2015). But this case
does not present such circumstances. Marquez-Reyes admits
that his actions are covered by the statute, and his vagueness
challenge therefore fails.

IV

Marquez-Reyes’s equal-protection challenge fares no
better. Under 8 U.S.C. § 1182(d)(11), when certain lawful
permanent residents and other aliens seek admission or
adjustment of status, the Attorney General has discretion to
waive the smuggling bar—that is, to excuse the conduct
covered by section 1182(a)(6)(E)(i)—so long as the
smuggling involves only a “spouse, parent, son, or
daughter.” But no such waiver is available for aliens seeking
cancellation of removal. Sanchez, 560 F.3d at 1030–32.
22 MARQUEZ-REYES V. GARLAND

Marquez-Reyes says that this disparate treatment violates
the equal-protection component of the Due Process Clause.

To establish an equal-protection violation, Marquez-
Reyes must show that he is “being treated differently from
similarly situated individuals.” Gonzalez-Medina v. Holder,
641 F.3d 333, 336 (9th Cir. 2011). Where, as here, there is
no assertion that the distinction “implicates fundamental
rights or involves a classification along suspect lines, only
rational basis scrutiny applies.” United States v. Calderon-
Segura, 512 F.3d 1104, 1107 (9th Cir. 2008). Under rational-
basis review, a legislative classification “comes to us bearing
a strong presumption of validity.” FCC v. Beach Commc’ns,
Inc., 508 U.S. 307, 314 (1993). Those “attacking the
rationality of the legislative classification have the burden
‘to negative every conceivable basis which might support
it.’” Id. at 315 (quoting Lehnhausen v. Lake Shore Auto
Parts Co., 410 U.S. 356, 364 (1973)). And our review is
particularly deferential where the classification involves an
exercise of Congress’s authority to regulate immigration:
“‘[O]ver no conceivable subject is the legislative power of
Congress more complete than it is over’ the admission of
aliens.” Kleindienst v. Mandel, 408 U.S. 753, 766 (1972)
(quoting Oceanic Navigation Co. v. Stranahan, 214 U.S.
320, 339 (1909)).

In Sanchez, we held that section 1182(d)(11) does not
permit the Attorney General to waive the smuggling bar for
applicants for cancellation of removal. 560 F.3d at 1030–32,
1034. While Sanchez did not involve an equal-protection
challenge, we nevertheless made clear that it was rational for
Congress to allow inadmissibility waivers only in certain
contexts. Specifically, in rejecting an argument that reading
the statute according to its terms would lead to an absurd
result, we reasoned that “[i]t is not irrational for Congress to
 MARQUEZ-REYES V. GARLAND 23

provide family unity waivers only to persons who have
complied with immigration laws by becoming lawful
permanent residents or to those seeking admission or
adjustment of status by applying for a visa, and not to aliens
who entered without inspection and then attempted to
smuggle others in after them.” Id. at 1033; see Abebe v.
Mukasey, 554 F.3d 1203, 1206 (9th Cir. 2009) (en banc)
(“[I]n the equal protection context . . . Congress’s treating
entering aliens differently from illegally present aliens
passes rational basis review.”); Taniguchi v. Schultz,
303 F.3d 950, 957–58 (9th Cir. 2002) (holding that 8 U.S.C.
§ 1182(h), which denied a waiver of deportation to lawful
permanent resident aggravated felons but not to other aliens,
did not violate equal protection). Marquez-Reyes has not
met his burden “to negative every conceivable basis which
might support” the legislative classification here.
Lehnhausen, 410 U.S. at 364. Accordingly, section
1182(d)(11) does not violate the equal-protection
component of the Due Process Clause.

V

Marquez-Reyes last argues that the agency abused its
discretion when it denied his request for administrative
closure. “Administrative closure is a procedure by which an
[immigration judge] or the BIA temporarily removes a case
from the active calendar or docket.” Gonzalez-Caraveo v.
Sessions, 882 F.3d 885, 889 (9th Cir. 2018). In Matter of
Avetisyan, 25 I. & N. Dec. 688 (B.I.A. 2012), the Board of
Immigration Appeals articulated a non-exhaustive list of
factors for immigration judges to consider when evaluating
a request for administrative closure. Those factors include:

(1) the reason administrative closure is
sought; (2) the basis for any opposition to
administrative closure; (3) the likelihood the
24 MARQUEZ-REYES V. GARLAND

respondent will succeed on any petition,
application, or other action he or she is
pursuing outside of removal proceedings;
(4) the anticipated duration of the closure;
(5) the responsibility of either party, if any, in
contributing to any current or anticipated
delay; and (6) the ultimate outcome of
removal proceedings (for example,
termination of the proceedings or entry of a
removal order) when the case is recalendared
before the Immigration Judge or the appeal is
reinstated before the Board.

Id. at 696.

Marquez-Reyes says that the immigration judge applied
the wrong legal standard by failing to consider that the
government did not articulate a reason for opposing
administrative closure. While the immigration judge did not
expressly weigh that fact, neither did he ignore the
opposition altogether or misstate the applicable test. Instead,
the immigration judge applied the five remaining Avetisyan
factors and explained that Marquez-Reyes was not pursuing
any sort of petition beyond the existing proceedings; that the
period of closure he requested—around five years—was
lengthy; that it was uncertain whether he would earn
discretionary cancellation of removal relief after those five
years; that he was responsible for his own ineligibility; and
that he was seeking closure for reasons that would
undermine the legislative purpose of the ten-year moral-
character requirement. We see no abuse of discretion in the
application of those factors.

Marquez-Reyes relies on Matter of W-Y-U-, 27 I. & N.
Dec. 17 (B.I.A. 2017), in which the Board held that “the
 MARQUEZ-REYES V. GARLAND 25

primary consideration for an Immigration Judge in
determining whether to administratively close or recalendar
proceedings is whether the party opposing administrative
closure has provided a persuasive reason for the case to
proceed and be resolved on the merits.” Id. at 18–20. That
decision, however, was issued after the immigration judge’s
decision in this case, so it was not then binding on the
agency. See Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1040
(9th Cir. 2007). (Our analysis is also unaffected by the
Board’s decision to overrule Avetisyan in Matter of Castro-
Tum, 27 I. & N. Dec. 271 (B.I.A. 2018), because the
Attorney General has since overruled Castro-Tum and
restored the Avetisyan standard. Matter of Cruz-Valdez, 28 I.
& N. Dec. 326 (Att’y Gen. 2021).)

In any event, the Board had the benefit of the
government’s subsequently provided rationale for its
opposition—Marquez-Reyes’s status as “an enforcement
priority”—and its de novo review made any error by the
immigration judge harmless. See Ghaly v. INS, 58 F.3d 1425,
1430 (9th Cir. 1995). The agency did not abuse its discretion
in determining that the proceedings should go forward.

PETITION DENIED.

BERZON, Circuit Judge, dissenting:

I respectfully dissent. The majority’s holding regarding
the meaning of “encouraged” in Section 212(a)(6)(E)(i) of
the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(E)(i), is inconsistent with recent case law and
illogical on its own terms. And construed in accordance with
its ordinary meaning, “encouraged” includes a wide swath
of constitutionally protected speech.
26 MARQUEZ-REYES V. GARLAND

1. Twice in the past two years, this Court has
invalidated statutory provisions that made it a crime to
“encourage” another person to do something. United States
v. Rundo, 990 F.3d 709, 720 (9th Cir. 2021), cert. denied,
142 S. Ct. 865 (2022); United States v. Hansen, 25 F.4th
1103, 1110–11 (9th Cir. 2022). Reviewing those provisions,
we recognized that the “government may restrict speech ‘in
a few limited areas,’ including . . . incitement[] and speech
integral to criminal conduct.” Hansen, 25 F.4th at 1109
(quoting United States v. Stevens, 559 U.S. 460, 468 (2010)).
But those exceptions to First Amendment protection are
narrowly defined. Beginning with incitement, “[t]he
constitutional guarantees of free speech and free press”
protect “advocacy of . . . law violation except where such
advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action.”
Rundo, 990 F.3d at 713 (emphasis added) (quoting
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per
curiam)). As for speech integral to criminal conduct, that
exception applies only “if the intent of the actor and the
objective meaning of the words used are so close in time and
purpose to a substantive evil as to become part of the
ultimate crime itself.” United States v. Freeman, 761 F.2d
549, 552 (9th Cir. 1985). In Rundo and Hansen, we
concluded that simply “encouraging” action either did not
qualify as, or was not limited to, incitement or speech
integral to criminal conduct. Rundo, 990 F.3d at 717;
Hansen, 25 F.4th at 1110. The statutory provisions at issue
therefore ran afoul of the First Amendment by prohibiting
too much protected speech. Rundo, 990 F.3d at 720; Hansen,
25 F.4th at 1110.

More specifically, Rundo addressed the Anti-Riot Act,
18 U.S.C. §§ 2101–2102. That statute provided, in relevant
part, that
 MARQUEZ-REYES V. GARLAND 27

[w]hoever travels in interstate or foreign
commerce or uses any facility of interstate or
foreign commerce . . . with intent . . . to
organize, promote, encourage, participate in,
or carry on a riot . . . and who either during
the course of any such travel or use or
thereafter performs or attempts to perform
any other overt act for [a specified purpose]
. . . [s]hall be fined under this title, or
imprisoned not more than five years, or both.

18 U.S.C. § 2101(a) (emphasis added). Consulting two
dictionaries, we found definitions for “encourage” that
included “[t]o instigate; to incite to action; to embolden; to
help[;] . . . to recommend, advise.” 990 F.3d at 717 (quoting
Encourage, Black’s Law Dictionary (11th ed. 2019);
Encourage, The Compact Oxford English Dictionary § 2(b)
(2d ed. 1991)). We held that “encourage,” so defined, did not
meet the test for incitement because it “fail[ed]
Brandenburg’s imminence requirement.” Id. Concluding
that the provision “criminalize[d] a substantial amount of
protected speech,” we “salvaged” the Anti-Riot Act by
severing the word “encourage” from it, as well as other
words that did not satisfy the incitement test. Id. at 720.

Hansen addressed a statute imposing criminal penalties
on “[a]ny person 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.” 8 U.S.C.
§ 1324(a)(1)(A). We observed that the “plain meaning[]” of
“encourage” is to “to inspire with courage, spirit, or hope . . .
to spur on . . . to give help or patronage to.” Hansen, 25 F.4th
at 1107–08 (alteration in original) (quoting United States v.
Thum, 749 F.3d 1143, 1147 (9th Cir. 2014)). The
28 MARQUEZ-REYES V. GARLAND

government maintained in Hansen, as it does here, that the
provision was “limited to speech integral to criminal
conduct, specifically solicitation and aiding and abetting.”
Id. at 1109. We rejected that argument, reasoning in part that
section 1324(a)(1)(A) contains a separate provision
penalizing aiding and abetting, so interpreting “encourages”
to mean “aids and abets” would make one of the provisions
“superfluous.” Id. (citing 8 U.S.C. § 1324(a)(1)(A)(v)(II)).

Hansen acknowledged that the “encourages” provision
“encompasse[d] some criminal conduct,” such as “procuring
and providing fraudulent documents and identification
information to unlawfully present aliens, assisting in
unlawful entry, misleadingly luring aliens into the country
for unlawful work, and smuggling activities.” Id. at 1109
(emphasis added). Considering those examples, we
concluded that the provision had a “relatively narrow
legitimate sweep.” Id. And it troubled us that “many of these
crimes seem also to be encompassed by the other subsections
of 1324(a)(1)(A), leaving subsection (iv)’s plainly legitimate
sweep little independent work to do.” Id.

In comparison, we concluded, the provision covered “a
substantial amount of protected speech,” including “[m]any
commonplace statements and actions.” Id. at 1110. For
example, the “plain language” of the provision covered
“knowingly telling an undocumented immigrant ‘I
encourage you to reside in the United States.’” Id. We
emphasized that that statement was “protected by the First
Amendment.” Id. As the Supreme Court explained in United
States v. Williams, 553 U.S. 285 (2008), such a statement is
protected “abstract advocacy.” Id. at 299–300 (giving the
example “I encourage you to obtain child pornography”).
Hansen offered several other examples of protected speech
covered by the “encourages” provision, including
 MARQUEZ-REYES V. GARLAND 29

“encouraging an undocumented immigrant to take shelter
during a natural disaster, advising an undocumented
immigrant about available social services, telling a tourist
that she is unlikely to face serious consequences if she
overstays her tourist visa, or providing certain legal advice
to undocumented immigrants.” Hansen, 25 F.4th at 1110.
Concluding that the “chilling effect” of the provision was
“substantial,” we invalidated it as overbroad. Id. at 1110–11.

2. The smuggling statute we interpret in this case
provides that “[a]ny alien who at any time knowingly has
encouraged, induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation
of law is inadmissible.” 8 U.S.C. § 1182(a)(6)(E)(i). The
majority opinion reads the word “encouraged” as limited to
its “criminal-law sense of solicitation or aiding and
abetting.” Majority Op. 11–12. By doing so, it parts ways
with Rundo and Hansen. To justify that departure, the
majority maintains—impermissibly in my view—that it can
save the statute’s unconstitutionality by construing
“encourage” not according to its ordinary English meaning
but as a legal term of art, equivalent to “solicitation or aiding
and abetting.” Id. This maneuver falters for several reasons.

As evidence that “encourage” has a “narrower, criminal-
law” meaning, the majority quotes the Model Penal Code’s
definition of criminal solicitation, which provides that a
person is guilty of solicitation to commit a crime “if with the
purpose of promoting or facilitating its commission he
commands, encourages or requests another person to engage
in specific conduct that would constitute such crime.”
Majority Op. 10–11 (emphasis in original) (quoting Model
Penal Code § 5.02(1)).

First, relying on the Model Penal Code definition of
“criminal solicitation” to define “encourage” is circular, as
30 MARQUEZ-REYES V. GARLAND

the definition uses the word “encourage”; it does not define
it, narrowly or otherwise. Telling us that solicitation includes
“encourag[ing] . . . another person to engage in specific
conduct that would constitute [a] crime” does not tell us what
“encourage” means, and it certainly does not tell us that
“encourage” equates to criminal solicitation. See Majority
Op. 14 (“‘[E]ncouraged’ [is] understood to encompass
solicitation”). And, of course, precisely because
“solicitation” is a common criminal law concept, one would
think that if Congress meant “solicited” in 8 U.S.C.
§ 1182(a)(6)(E)(i), it would have said “solicited,” not
“encouraged.”

Second, the Model Penal Code definition of criminal
solicitation the majority relies upon requires that the
encouragement relate to a specific crime, but it does not limit
the application of the term to conduct rather than speech.
And the Model Penal Code definition does not appear to
meet our case law’s narrow definition of “speech integral to
criminal conduct,” that is, speech in which “the intent of the
actor and the objective meaning of the words used are so
close in time and purpose to a substantive evil as to become
part of the ultimate crime itself.” Freeman, 761 F.2d at 552.
As we later explained in United States v. Sineneng-Smith,
910 F.3d 461 (9th Cir. 2018), vacated and remanded on
other grounds, 140 S. Ct. 1575 (2020):

In Freeman, we reviewed “convict[ions] on
fourteen counts of aiding and abetting and
counseling violations of the tax laws, an
offense under 26 U.S.C. § 7206(2).”
[Freeman, 761 F.2d] at 551. We held that the
defendant was entitled to a jury instruction on
a First Amendment defense as to twelve of
the counts because, at least arguably, the
 MARQUEZ-REYES V. GARLAND 31

defendant made statements about the
“unfairness of the tax laws generally.” Id. at
551–52. Conversely, the defendant was not
entitled to the First Amendment instruction
on the remaining two counts because the
defendant actually assisted in the preparation
of false tax returns. Id. at 552. We reasoned
that “[e]ven if the convictions on these [two]
counts rested on spoken words alone, the
false filing was so proximately tied to the
speech that no First Amendment defense was
established.” Id. As Freeman illustrates,
although some speech that aids or abets a
crime is so integral to the crime itself that it
is not constitutionally protected, other speech
related to criminal activity is not so integral
as to be unprotected.

Sineneng-Smith, 910 F.3d at 481 (first, third, and fourth
alterations in original).

In my view, our best hope of construing “encouraged” in
section 1182(a)(6)(E)(i) sufficiently narrowly to avoid the
constitutional problems identified in Rundo and Hansen
would be to hew more closely to our definition in Freeman
of “speech integral to criminal conduct.” In Freeman, we
concluded that the defendant’s speech was integral to
criminal conduct because he used speech to “actually assist[]
in the preparation of false tax returns.” Sineneng-Smith,
910 F.3d at 481. In other words, his “speech . . . aid[ed] or
abet[ted] a crime.” Id.

The problem is, if we were to interpret “encouraged” in
section 1182(a)(6)(E)(i) to mean “aided and abetted” or
“assisted” a crime, we would create a surplusage problem
32 MARQUEZ-REYES V. GARLAND

similar to the one we addressed in Hansen. See Hansen,
25 F.4th at 1109. Section 1182(a)(6)(E)(i) separately
penalizes “[a]ny alien who at any time knowingly has . . .
induced, assisted, abetted, or aided any other alien to enter
or to try to enter the United States in violation of law.” So if
we were to interpret “encouraged” narrowly enough to avoid
penalizing protected speech, we would arrive at a situation
in which nearly every example of speech or conduct that
“encouraged” another alien to enter the United States would
also “be encompassed by” the other verbs in section
1182(a)(6)(E)(i), leaving “encouraged” “little independent
work to do.” Hansen, 25 F.4th at 1109. As in Hansen, then,
I must conclude that section 1182(a)(6)(E)(i) is not “readily
susceptible” to a limiting construction that would avoid
penalizing too much protected speech. Id. at 1110 (quoting
Stevens, 559 U.S. at 481); see also id. at 1110–11 (“[W]e
will not rewrite a law to conform it to constitutional
requirements for doing so would constitute a serious
invasion of the legislative domain and sharply diminish
Congress’s incentive to draft a narrowly tailored law in the
first place.” (quoting Stevens, 559 U.S. at 481)).

I note that the majority could have interpreted
“encouraged” in 8 U.S.C. § 1182(a)(6)(E)(i) to require an
“affirmative act.” See Altamirano v. Gonzales, 427 F.3d 586,
592 (9th Cir. 2005). The majority hints at that interpretation
but does not adopt it. See Majority Op. 13, 17–18. The other
four verbs in the statute—induced, assisted, abetted, or
aided—all imply an action that makes it more likely that
another person will enter or try to enter the United States.
Invoking the canon of noscitur a sociis, we could read
“encouraged” likewise to require an affirmative act
increasing the likelihood of illegal entry or attempted entry
into the United States. See McDonnell v. United States, 579
U.S. 550, 568–69 (2016). This interpretation would likely
 MARQUEZ-REYES V. GARLAND 33

lead to a surplusage problem as well, but at least it would
eliminate the speech coverage issues the majority’s version
embraces.

Rundo and Hansen have demonstrated that a statutory
provision that penalizes “encouraging” someone to do
something runs a serious risk of chilling speech by covering
a substantial amount of protected speech, compared to its
legitimate sweep. The majority strains to avoid this problem
by interpreting “encouraged” in section 1182(a)(6)(E)(i),
improbably, to cover only speech closely connected to a
crime—but as I have explained, not closely enough to
survive First Amendment invalidity. And successfully
limiting “encouraged” in such a way would make it largely
redundant of the other verbs in the statute. Because I view
the majority’s approach as an untenable statutory
interpretation and also one insufficient to save the statute
from invalidity, I would instead adopt Rundo’s solution and
sever the word “encouraged” from section 1182(a)(6)(E)(i).
See Rundo, 990 F.3d at 720. If we take the government at its
word that, as used in section 1182(a)(6)(E)(i), “encouraged”
really is “limited to speech integral to criminal conduct,”
then excising “encouraged” from the provision would have
little, if any, effect, as the provision already covers speech or
conduct that “induced, assisted, abetted, or aided any other
alien to enter or to try to enter the United States in violation
of law.” 8 U.S.C. § 1182(a)(6)(E)(i). I therefore respectfully
dissent.