FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. GUADALUPE MARQUEZ-REYES,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 17-71367

Agency No.

A205-490-228

OPINION

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 aliensmuggling provision at section 1182(a)(6)(E)(i). MarquezReyes 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 crossreference 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, criminallaw 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 wideranging 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 MarquezReyes—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 MarquezReyes.

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 nonexpressive 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 prearrangement 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, MarquezReyes 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. CalderonSegura, 512 F.3d 1104, 1107 (9th Cir. 2008). Under rationalbasis 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 moralcharacter 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 CastroTum, 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, criminallaw” 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.