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 …
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