Marquez-Reyes v. Garland

• Decision Date: 14 June 2022
• Docket Number: 17-71367
• Citation: 36 F.4th 1195
• Parties: J. Guadalupe MARQUEZ-REYES, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

36 F.4th 1195

J. Guadalupe MARQUEZ-REYES, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 17-71367

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 11, 2020 Seattle, Washington

Filed June 14, 2022

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.

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

Dissent by Judge Berzon

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.

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), seeid.§ 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.

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, 120 S.Ct. 483, 145 L.Ed.2d 451(1999)(quotingNew York v. Ferber , 458 U.S. 747, 767, 102 S.Ct. 3348, 73 L.Ed.2d 1113(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, 93 S.Ct. 2908, 37 L.Ed.2d 830(1973);seeUnited States v. Sineneng-Smith , ––– U.S. ––––, 140 S. Ct. 1575, 1586–87, 206 L.Ed.2d 866(2020)(Thomas, J., concurring).

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, 93 S.Ct. 2908;seeFerber , 458 U.S. at 768–69, 102 S.Ct. 3348.

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(quotingUnited States v. Williams , 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650(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, 104 S.Ct. 2118, 80 L.Ed.2d 772(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, 128 S.Ct. 1830;accordWashington State Grange v. Washington State Republican Party , 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151(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)(quotingTaxpayers for Vincent , 466 U.S. at 800–01, 104 S.Ct. 2118 ).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, 128 S.Ct. 1830.Our analysis begins with the text.Hall v. United States Dep't of Agric. , 984 F.3d 825, 837(9th Cir.2020).Section 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, 109 S.Ct. 1597, 104 L.Ed.2d 29(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 alsoUnited 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, 85 S.Ct. 476, 13 L.Ed.2d 487(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 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);seeid. 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, 113 S.Ct. 1163, 122 L.Ed.2d 525(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)));...