J. MARQUEZ-REYES V. MERRICK GARLAND, No. 17-71367 (9th Cir. 2022)
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Petitioner petitioned for review of a decision of the Board of Immigration Appeals (“BIA”) denying his request to administratively close his removal proceedings. An immigration judge ordered Petitioner 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. Petitioner now argues that the “encouraged” component of the alien-smuggling statute, 8 U.S.C. Section 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.
The Ninth Circuit denied his petition. The court rejected Petitioner’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 court explained that, even if it had doubt about its interpretation, the canon of constitutional avoidance would militate in its favor. Next, the court rejected Petitioner’s argument that section 1182(a)(6)(E)(i) is unconstitutionally vague. The court 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. Finally, the court 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.
Court Description: 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 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
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