United States v. Hernandez-Calvillo

Appellate Case: 19-3210 Document: 010110710106 Date Filed: 07/13/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 13, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 19-3210
JOSE FELIPE HERNANDEZ-
CALVILLO,
Defendant - Appellee.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 19-3211
MAURO PAPALOTZI,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:16-CR-20097-CM-5/6)
_________________________________
James I. Pearce, Attorney, Appellate Section, Criminal Division, Department of Justice,
Washington, D.C. (Stephen R. McAllister, United States Attorney, and James A. Brown,
Assistant United States Attorney, Topeka, Kansas; and Brian C. Rabbitt, Acting Assistant
Attorney General, and Robert A. Zink, Acting Deputy Assistant Attorney General,
Criminal Division, Department of Justice, Washington, D.C., with him on the briefs), for
Plaintiff - Appellant.
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Mark C. Fleming of Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts
(Robert N. Calbi of Law Offices of Robert N. Calbi, Kansas City, Missouri; Daniel T.
Hansmeier, Appellate Chief, and Melody Brannon, Federal Public Defender, Kansas
Federal Public Defender, Kansas City, Kansas; Eric L. Hawkins and Kevin R. Palmer of
Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts; and Thomas G.
Sprankling of Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, California, with
him on the brief), for Defendants - Appellees.
_________________________________
Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
MORITZ, Circuit Judge.
_________________________________
This appeal involves the constitutionality of a federal immigration statute that
makes it a crime to encourage or induce a noncitizen 1 to reside in the United States,
knowing or recklessly disregarding that such residence violates the law. 8 U.S.C.
§ 1324(a)(1)(A)(iv). After a jury convicted Jose Hernandez-Calvillo and Mauro
Papalotzi (collectively, Appellees) of conspiring to commit this crime, they
challenged the statute as overbroad under the First Amendment and successfully
moved to dismiss the indictment on that basis. The government appeals.
We affirm. Section 1324(a)(1)(A)(iv)’s plain language targets protected
speech, and neither the government’s nor the dissent’s proposed limiting construction
finds support in the statute’s text or surrounding context. And when properly
construed, the statute criminalizes a substantial amount of constitutionally protected
speech, creating a real danger that the statute will chill First Amendment expression.
1
Consistent with Supreme Court practice, except when directly quoting
statutory language, we “use[] the term ‘noncitizen’ as equivalent to the statutory term
‘alien.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020).
2
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For these reasons, we conclude that § 1324(a)(1)(A)(iv) is substantially overbroad,
and the district court properly dismissed the indictment.
Background2
Appellees’ convictions stem from their role in an alleged scheme to employ
noncitizens in the drywall-installation business. At the heart of the operation was
Jose R. Torres Drywall, a company run by Jose Torres-Garcia with the help of two
other individuals, Marcos Stubbs and Isaac Gallegos. Despite what its name might
suggest, Torres Drywall did no drywall work. Its true business was to act as a
“financial intermediary” between construction companies and subcontracted
construction crews primarily composed of noncitizens. App. vol. 3, 378. In a
nutshell, the companies hired the crews for drywall projects and paid for the work by
writing checks to Torres Drywall, whose operators in turn cashed the checks for the
leaders of each crew (in exchange for a cut of the wages) so the leaders could pay
their crew members. Torres Drywall also supplied the crews with insurance
documents that the companies required before hiring the crews. Appellees each led
construction crews that were paid by Torres Drywall for work performed for Keith
Countess’s drywall company, Plaster Masters, L.C.
Based on this scheme, a grand jury indicted Appellees, another crew leader,
Stubbs, Gallegos, Plaster Masters, and Countess on several federal immigration
2
Because this appeal arises from a motion to dismiss an indictment, we take
these facts from the indictment. See United States v. Todd, 446 F.3d 1062, 1067 (10th
Cir. 2006); United States v. Sharpe, 438 F.3d 1257, 1258–59 (11th Cir. 2006)
(applying same standard to posttrial motion).
3
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crimes.3 The first count alleged that the defendants conspired to encourage or induce
noncitizens to reside in the United States. See 8 U.S.C. § 1324(a)(1)(A)(iv)
(punishing any 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”), (v)(I) (proscribing
“conspiracy to commit any of the preceding acts”). The remaining counts alleged
specific instances of encouraging or inducing particular noncitizens to reside in the
United States, or of aiding and abetting such encouragement or inducement, in
violation of § 1324(a)(1)(A)(iv) and (v)(II).4 The indictment did not allege that any of
the noncitizens encouraged or induced to reside in the United States by this scheme
were members of Appellees’ crews. The government separately charged Torres-
Garcia for his role in the scheme.
Only Appellees went to trial. The government dismissed the case against
Plaster Masters. And the other individual defendants—Stubbs, Gallegos, Countess,
the other crew leader, and Torres-Garcia—all pleaded guilty in exchange for
favorable sentencing recommendations and agreeing to testify at Appellees’ trial.
3
This indictment marked the government’s second attempt to prosecute these
individuals and crimes. The first time around, the district court dismissed the charges
against all defendants on speedy-trial grounds. The government initially appealed
that dismissal but later abandoned the appeal, opting instead to refile a new
indictment.
4
The indictment included eight counts under these provisions, five of which
the government voluntarily dismissed before trial.
4
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At trial, Appellees proposed a jury instruction to define what it means to
“encourage” or “induce” someone to unlawfully reside in the United States. The
government opposed the instruction, arguing that the jury could give those terms
their ordinary meaning based on its own understanding. The district court agreed,
rejecting the instruction. And when, during deliberations, the jury requested “a
different/further definition or clarification of ‘intentionally induced or encouraged,’”
the district court declined, instead instructing the jury to “use [its] collective
judgment and experience to decide the issues.” App. vol. 3, 464.
Ultimately, the jury found Appellees guilty of conspiring to encourage or
induce but not guilty of the three individual counts of encouraging or inducing.
Before sentencing, Appellees moved to dismiss the conspiracy count on First
Amendment overbreadth grounds.5 Specifically, they argued that the object of the
conspiracy—encouraging or inducing noncitizens to reside in the United States under
§ 1324(a)(1)(A)(iv)—is facially unconstitutional because it proscribes a substantial
amount of protected speech. The district court agreed and granted the motion,
vacating Appellees’ convictions and dismissing the indictment. The government
appeals.
5
Before trial, Appellees had moved to dismiss the indictment on the related
ground that § 1324(a)(1)(A)(iv) is unconstitutionally vague. The government did not
object to Appellees adding the overbreadth argument in their posttrial motion, and
the district court found good cause to consider the motion. See Fed. R. Crim. P.
12(c)(3).
5
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Analysis
The sole issue before us is a facial constitutional challenge to
§ 1324(a)(1)(A)(iv), which we refer to as subsection (A)(iv). Ordinarily, success on
such a challenge requires a showing that the statute at issue could never be applied in
a permissible, constitutional manner; all potential applications of the statute must be
unconstitutional. See United States v. Stevens, 559 U.S. 460, 472 (2010). But this
requirement is relaxed somewhat when, as here, a litigant attacks a statute as
overbroad under the First Amendment. Id. at 473. In that context, the party asserting
the facial challenge need only show that “a substantial number of [the statute’s]
applications are unconstitutional, judged in relation to the statute’s plainly legitimate
sweep.”6 Id. (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S.
442, 449 n.6 (2008)). Put more concretely, to prove a statute’s overbreadth (and thus
its facially invalidity), the challenger must show that it “prohibits a substantial
amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008).
Here, the government disputes the district court’s determination that
subsection (A)(iv) is substantially overbroad. To resolve this dispute, we proceed in
two steps. First, we “construe the challenged statute,” because “it is impossible to
determine whether a statute reaches too far without first knowing what the statute
6
This relaxed standard for First Amendment overbreadth claims allows
litigants to challenge a statute even if it may be applied constitutionally as to them.
See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). They may do so because,
although “their own rights of free expression are [not] violated,” “the statute’s very
existence may cause others not before the court to refrain from constitutionally
protected speech or expression.” Id.6
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covers.” Id. at 293. Second, we consider “whether the statute, as we have construed
it, criminalizes a substantial amount of protected expressi[on].” Id. at 297. At both
steps, our review is de novo. See United States v. Friday, 525 F.3d 938, 948 (10th
Cir. 2008) (reviewing dismissal de novo because district court based its decision on
interpretation of governing criminal statutes); United States v. Brune, 767 F.3d 1009,
1015 (10th Cir. 2014) (reviewing First Amendment overbreadth claim de novo).
I. Statutory Construction
When assessing an overbreadth challenge, the usual rules of statutory
construction apply. See Brune, 767 F.3d at 1022. As when interpreting any statute,
we start with the statute’s plain language and “assume that the legislative purpose is
expressed by the ordinary meaning of the words used.” United States v. Torres-
Laranega, 476 F.3d 1148, 1157 (10th Cir. 2007) (quoting FTC v. Kuykendall, 466
F.3d 1149, 1154 (10th Cir. 2006)). We also consider the context in which the words
appear in the overall statutory scheme. See Brune, 767 F.3d at 1022. If applying these
tools produces “serious . . . doubts” about the statute’s constitutionality, we “may
impose a limiting construction on [the] statute” that avoids the constitutional
problem. Stevens, 559 U.S. at 481 (first quoting FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 516 (2009); and then quoting Reno v. Am. Civ. Liberties Union, 521
U.S. 844, 884 (1997)). A limiting construction is appropriate, however, only if the
statute is “readily susceptible” to one; we cannot “rewrite a . . . law to conform it to
constitutional requirements.” Id. (alteration in original) (quoting Reno, 521 U.S. at
884–85). Further, because we presume that Congress drafts constitutional legislation,
7
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invalidation requires “a plain showing that Congress has exceeded its constitutional
bounds.” United States v. Morrison, 529 U.S. 598, 607 (2000).
Subsection (A)(iv), the provision challenged as overbroad here, makes it a
crime to “encourage[] or induce[] 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.”7 § 1324(a)(1)(A)(iv). The district court
adopted the Ninth Circuit’s interpretation of this language from United States v.
Sineneng-Smith, which considered an overbreadth challenge similar to the one
Appellees raise here. 910 F.3d 461, 467 (9th Cir. 2018).8 There, at the first step in the
overbreadth analysis, the Ninth Circuit held that no “reasonable reading of the statute
can exclude [protected] speech” from its ambit. Id. Put differently, the Ninth Circuit
7
Notably, the statute punishes encouraging or inducing a noncitizen to reside
in the United States even though such residence generally is not a criminal act. See
Arizona v. United States, 567 U.S. 387, 407 (2012).
8
Although Sineneng-Smith invalidated subsection (A)(iv) as overbroad, the
Supreme Court reversed on procedural grounds, holding that the Ninth Circuit abused
its discretion by considering the constitutional issue sua sponte. See United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1578, 1581–82 (2020). The Court remanded with
instructions to reconsider the appeal based on the issues presented by the parties, id.
at 1582, and the Ninth Circuit ultimately affirmed the defendant’s convictions
without reaching the overbreadth question, United States v. Sineneng-Smith, 982 F.3d
766, 776 n.3, 777 (9th Cir. 2020), cert. denied, 142 S. Ct. 117 (2021). Despite the
Court’s reversal, we may consider the Ninth Circuit’s initial overbreadth analysis to
the extent we find it persuasive. See Simes v. Huckabee, 354 F.3d 823, 829 n.4 (8th
Cir. 2004) (finding that “rationale underlying” Ninth Circuit decision later vacated by
Supreme Court “on other grounds” “remain[ed] persuasive”). Moreover, when
presented with the same overbreadth issue in a later case, the Ninth Circuit again held
the statute overbroad, specifically relying on its prior “thorough analysis” in
Sineneng-Smith, which it found “persuasive on the overbreadth issue.” United States
v. Hansen, 25 F.4th 1103, 1107 (9th Cir. 2022), petition for reh’g en banc filed (9th
Cir. May 4, 2022).
8
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determined that subsection (A)(iv) “is only susceptible to a construction that affects
speech.” Id. at 479. It primarily based that view on the statute’s introductory verbs,
“encourage[]” and “induce[],” § 1324(a)(1)(A)(iv), which can ordinarily refer to
“speech, or conduct, or both,” Sineneng-Smith, 910 F.3d at 475.
The government maintains that the Ninth Circuit (and thus the district court)
misread subsection (A)(iv) because the statute does not use the words encourage and
induce in their ordinary sense; instead, the government asserts, it uses them as
synonyms for the criminal-law concepts of facilitation (also known as aiding or
abetting) and solicitation. In other words, the government reads subsection (A)(iv) as
targeting those who facilitate or solicit others to engage in certain illegal immigration
activity—specifically, unlawfully “com[ing] to, enter[ing], or resid[ing] in the United
States.”9 § 1324(a)(1)(A)(iv). And to the extent that a person could facilitate or solicit
this activity using speech, the government says, the First Amendment would not
protect such speech. See Stevens, 559 U.S. at 468 (listing “speech integral to criminal
conduct” among categories of unprotected speech); Williams, 553 U.S. at 298. We
consider each argument in turn.
A. The Meaning of Encourage and Induce
The government begins by noting that encourage and induce may sometimes
refer to criminal facilitation or solicitation. For example, the government highlights
9
Appellees contend that the government did not present this interpretation in
the district court and has therefore waived it on appeal. Because we conclude the
government’s argument “fails on the merits,” “[w]e need not opine on the waiver
issue.” United States v. Wells, 873 F.3d 1241, 1250 (10th Cir. 2017).
9
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that Black’s Law Dictionary’s criminal-law definition of encourage refers readers to
the entry for aid and abet, a term that is itself synonymous with the term criminal
facilitation. Encourage, Aid and Abet, Black’s Law Dictionary (11th ed. 2019). The
government also points to a federal statute that uses induce as one of several verbs to
describe the crime of “[s]olicitation to commit a crime of violence.” 18 U.S.C.
§ 373(a) (making it a crime to “solicit[], command[], induce[], or otherwise
endeavor[] to persuade [another] person” to commit violent felony (emphasis
added)).
Yet the government’s position puts the cart before the horse: Our construction
of subsection (A)(iv)’s terms begins with their ordinary meaning, not their
specialized meaning in criminal law. See United States v. Thomas, 939 F.3d 1121,
1123 (10th Cir. 2019) (“As a general rule, we interpret a word or phrase in a
statute . . . in accordance with its ordinary, everyday meaning.”).10 And the ordinary
meanings of encourage and induce encompass both conduct and speech. Indeed,
dictionary definitions from around the time Congress enacted subsection (A)(iv) use
broad language that could refer either to actions or verbal expression. See Brune, 767
10
To be sure, not every case is “a plain[-]meaning case,” particularly if the
relevant language involves a term of art with a long “legal lineage.” Hall v. Hall, 138
S. Ct. 1118, 1125 (2018). But as we explain in more detail above, the ordinary
meaning controls in this context because the government’s term-of-art definition
“plainly do[es] not fit.” Thomas, 939 F.3d at 1125 (quoting Johnson v. United States,
559 U.S. 133, 139–40 (2010)). Notably, our adherence to this interpretive principle
tracks the government’s position below, where the government urged the district
court not to define encourage because the jury could “give the word its ordinary
meaning.” App. vol. 2, 303.
10
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F.3d at 1022 (“An inquiry into a statutory term’s meaning must consider the ordinary,
contemporary meaning at the time Congress enacted the statute.”). For example,
encourage simply means “[t]o give courage to: inspire with courage, spirit, or hope:
hearten,” “to spur on: stimulate, incite,” or “to give help or patronage to: foster.”
Webster’s Third New International Dictionary 747 (Philip Babcock Gove ed. 1961).
The definition of induce is similarly broad: “to move and lead (as by persuasion or
influence),” “to inspire, call forth, or bring about by influence or stimulation.” Id. at
1154. Based on these expansive definitions, then, subsection (A)(iv) covers not only
conduct, but also speech—“one can encourage or induce with words, or deeds, or
both.”11 Sineneng-Smith, 910 F.3d at 473; see also Hansen, 25 F.4th at 1107 (finding
Sineneng-Smith “persuasive on the overbreadth issue” and merely “add[ing] . . .
thoughts reinforcing that conclusion of overbreadth”); Int’l Bhd. of Elec. Workers,
11
The government does not meaningfully dispute that encourage and induce
ordinarily encompass both conduct and speech. Tellingly, the government avoids
citing definitions of encourage from nonlegal dictionaries, instead noting that such
dictionaries use encourage when defining abet (a word found nowhere in subsection
(A)(iv)). But as Appellees note, “the mere fact that ‘abet’ can be defined as
‘encourage’ does not mean that ‘encourage’ only means ‘abet.’” Aplees. Br. 22.
What’s more, the dictionaries the government cites to define abet—including
Webster’s Third, cited above—support Appellees’ position that encourage
encompasses speech. See, e.g., Webster’s New International Dictionary of the
English Language 843 (2d ed. 1950) (encourage means “1. [t]o give courage to; to
inspire with courage, spirit, or hope; to raise the confidence of; to animate; hearten,”
and “2. [t]o embolden, incite, or induce as by inspiration, recommendation, etc.;
hence, to advise”). The same is true of the government’s sole nonlegal definition of
induce. See Webster’s New World College Dictionary 742 (5th ed. 2014) (defining
induce to mean “to lead on to some action” or “to bring on; bring about”).
11
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Loc. 501 v. NLRB, 341 U.S. 694, 701–02 (1951) (“The words ‘induce or encourage’
are broad enough to include in them every form of influence and persuasion.”).
Other language in § 1324 confirms that Congress used encourage and induce in
their ordinary sense, not in their more limited and specialized criminal-law sense. For one
thing, if Congress intended this specialized meaning, there would be a potential overlap
between subsections (A)(iii) (“conceals, harbors, or shields from detection” a noncitizen)
and (A)(iv) (“encourages or induces an alien to come to, enter, or reside in the United
States”). See United States v. Smith, 756 F.3d 1179, 1187 (10th Cir. 2014) (noting
“our duty to give effect, if possible, to every clause . . . of a statute” and “reluctan[ce]
to treat statutory terms as surplusage in any setting” (quoting Duncan v. Walker, 533
U.S. 167, 167 (2001))). And crucially, the very next subsection makes it a crime to
“aid[] or abet[]” any of the offenses proscribed in the preceding subsections, including
subsection (A)(iv). § 1324(a)(1)(A)(v)(II). This explicit reference to aiding and abetting
shows that Congress knows how to draft a facilitation provision. Yet it used entirely
different language in subsection (A)(iv), and we generally presume that “different
meanings [are] intended” when Congress uses “certain language in one part of [a] statute
and different language in another.”12 Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9
12
This presumption is especially strong here given the historical progression
of the two provisions. Congress added the aiding-and-abetting provision decades
after adding the encourage-or-induce language in subsection (A)(iv). Compare
Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 274(a)(4), 66 Stat.
163, 228–229, with Omnibus Consolidated Appropriations Act of 1997, Pub. L. No.
104-208, Div. C., Tit. II, Subtit. A., § 203(b)(1), 110 Stat. 3009, 3009–565. The
government’s interpretation would require us to accept that Congress inexplicably
used two different phrases in two neighboring subsections to refer to the same
12
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(2004) (quoting 21 Singer, Statutes and Statutory Construction § 46.06 (6th rev. ed.
2000)). Disregarding this presumption would render the aiding-and-abetting provision
redundant in subsection (A)(iv) cases because that provision (according to the
government) already covers aiding and abetting. See Hansen, 25 F.4th at 1108–09 (noting
that “§ 1324(a)(1)(A) already includes an aiding[-]and[-]abetting provision,” which
“strongly suggests that subsection [A](iv) should not also be read as an
aiding[- and[- abetting provision”). Though not dispositive, this redundancy provides yet
another “clue as to the better interpretation of [the] statute.” Rimini St., Inc. v. Oracle
USA, Inc., 139 S. Ct. 873, 881 (2019).
Further, subsection (A)(iv) bears no resemblance to other facilitation-or-
solicitation statutes. In each of the government’s examples of such statutes, the
drafters included the terms encourage or induce among various other verbs that
convey facilitation or solicitation. Consider the federal accomplice-liability statute
cited by the government: It applies to anyone who “aids, abets, counsels, commands,
induces[,] or procures” the commission of a federal crime. 18 U.S.C. § 2(a)
(emphasis added). Likewise, the dozens of state statutes the government cites
similarly include encourage or induce among a string of other facilitation-or-
concept and added the second even though the first already did all or much of the
work of the second. Or, as Appellees put it, this interpretation would require us to
accept that “Congress intended to criminalize aiding and abetting aiding and
abetting.” Aplee. Br. 22. This absurd result further undermines the government’s
interpretation. Cf. Sunshine Haven Nursing Operations, LLC v. U.S. Dep’t of Health
& Hum. Servs., 742 F.3d 1239, 1250 (10th Cir. 2014) (discussing preference for
avoiding interpretations that produce absurd results).
13
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solicitation verbs. See, e.g., Colo. Rev. Stat. §§ 18-1-603 (treating anyone who “aids,
abets, advises, or encourages” another person to commit offense as principal
(emphasis added)), 18-2-301(1) (providing that solicitation occurs when someone
“commands, induces, entreats, or otherwise attempts to persuade another person . . .
to commit a felony” (emphasis added)). In each sample statute, the verbs
accompanying encourage or induce narrow their “multiple and wide-ranging
meanings” under the noscitur a sociis canon, “which counsels that a word is given
more precise content by the neighboring words with which it is associated.”
Williams, 553 U.S. at 294; see also id. at 294–95 (construing verb string “advertises,
promotes, presents, distributes, or solicits” as “hav[ing] a transactional connotation,”
even though promotes and presents are susceptible to broader definitions “[w]hen
taken in isolation,” because accompanying verbs ruled out those broader,
nontransactional definitions). But that canon doesn’t apply here because there are no
neighboring verbs in subsection (A)(iv) that narrow the meaning of encourage and
induce. See Hansen, 25 F.4th at 1108 (concluding that “noscitur a sociis does not
apply” to subsection (A)(iv) because “[e]ncourage and induce are not part of a series
of words that shed additional light on their meaning”); United States v. Franklin, 785
F.3d 1365, 1369 (10th Cir. 2015) (concluding that “a list of two words” is “too short
for application of the canon of noscitur a sociis”). The government cites no statute—
and our own research reveals none—in which the words encourage or induce appear
14
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by themselves (or together) as substitutes for facilitation or solicitation, casting
further doubt on the government’s interpretation.13
Moreover, subsection (A)(iv)’s substantive coverage exceeds what one would
expect to find in a statute proscribing facilitation or solicitation. Both facilitation and
solicitation generally require some underlying criminal conduct; facilitating or
soliciting civilly unlawful activity is not enough. See 2 LaFave, Subst. Crim. L.
§ 11.1 (3d ed.) (stating that offender must solicit another person “to commit a
crime”); id. § 13.3(c) (explaining that accomplice liability does not attach “[i]f the
acts of the principal . . . are found not to be criminal”). Yet some of the activity that
subsection (A)(iv) prohibits a person from encouraging or inducing—namely,
“resid[ing] in the United States,” § 1324(a)(1)(A)(iv)—is not a crime. See Arizona v.
United States, 567 U.S. 387, 407 (2012) (“As a general rule, it is not a crime for a
removable [noncitizen] to remain present in the United States.”). Facilitation and
solicitation also typically require a specific intent that the other party commit the
underlying offense. See 2 LaFave, Subst. Crim. L. § 11.1 (noting requirement that
13
On the other hand, as Appellees point out, a different immigration statute
expressly conveys facilitation or solicitation by including encourage and induce
among a string of other verbs that includes aid and abet. See 8 U.S.C.
§ 1182(a)(6)(E)(i) (“Any 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.”); Marquez-Reyes v. Garland, No. 17-71367,
2022 WL 2127237, at *7 (9th Cir. June 14, 2022) (construing encourage in
§ 1182(a)(6)(E)(i) to cover solicitation and facilitation in part because, unlike in
§ 1324(a)(1)(A)(iv), term appears among verb string that triggers noscitur a sociis
canon). This strengthens our conclusion that Congress knows how to draft a
facilitation-or-solicitation statute and did not do so in subsection (A)(iv).
15
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solicitor “inten[d] that another person commit [the] crime”); id. § 13.2 (explaining
that accomplice must not only assist principal but must do so “with the intent thereby
to promote or facilitate commission of the crime”). Not so with subsection (A)(iv):
Its sole state-of-mind element relates to the defendant’s knowledge that a
noncitizen’s “coming to, entry, or residence” violates the law.14 § 1324(a)(1)(A)(iv).
That Congress omitted these hallmarks of facilitation and solicitation—specific intent
and resulting criminal conduct—bolsters our conclusion that subsection (A)(iv) uses
encourage and induce in their ordinary, speech-encompassing sense. See Hansen, 25
F.4th at 1109 (rejecting government’s interpretation of subsection (A)(iv) as
aiding-and-abetting statute in part because “the elements necessary for an
aiding[-]and[-]abetting conviction . . . require that the government prove elements not
contained in subsection[A](iv)”).
Ultimately, subsection (A)(iv) cannot bear the government’s limiting
construction.15 The ordinary meanings of encourage and induce encompass both
14
In fact, a 1986 amendment to subsection (A)(iv) eliminated a requirement
that the offender “willfully and knowingly” encourage or induce the unlawful
conduct. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603,
§ 112(a), 100 Stat. 3359, 3381–82.
15
We decline to address the government’s alternative limiting construction,
borrowed from DelRio-Mocci v. Connolly Properties Inc., 672 F.3d 241 (3d Cir.
2012), that the defendant’s encouragement or inducement must be “substantial.” Rep.
Br. 13. The government waived this limiting construction by raising it for the first
time in its reply brief. See United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir.
2019). And even if we exercised our discretion to consider the government’s waived
argument, we would reject it because the Third Circuit’s approach adds a
“substantiality” requirement found nowhere in the statutory text. See Exby-Stolley v.
Bd. of Cnty. Commissioners, 979 F.3d 784, 971, 810 (10th Cir. 2020) (en banc)
(rejecting interpretation that “added language to the [statute’s] plain text” because
16
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conduct and speech, and nothing in the statutory language or surrounding context
suggests that Congress gave those terms a narrower meaning akin to the criminal-law
concepts of facilitation and solicitation.
The novel limiting construction devised by the dissent fares no better. Unlike
the government, the dissent reads subsection (A)(iv) as targeting only the solicitation,
but not the facilitation, of criminal violations of immigration law.16 To arrive at this
interpretation, the dissent essentially concludes that Congress must have used
encourage and induce to convey the criminal-law concept of solicitation (and all its
associated requirements) because subsection (A)(iv) is a criminal statute. But all the
textual clues discussed above—especially the absence of any accompanying verbs
suggesting a narrower meaning of encourage and induce—make clear that Congress
used the broader, ordinary meaning of those terms. Accepting the dissent’s reading,
such interpretations are “generally impermissible”), cert. denied 141 S. Ct. 2858(2021).
16
The dissent’s attempt to distance itself from the government’s view—that
subsection (A)(iv) also reaches facilitation—is understandable, albeit unsuccessful. If
the words “encourages or induces” cover facilitation, then the dissent’s argument
(like the government’s) runs into the roadblock created by Congress’s prohibition of
facilitation (aiding and abetting) in § 1324(a)(1)(A)(v)(II). See discussion supra pp.
12–13. The dissent tries to avoid this tension by broadly declaring the facilitation
component of the government’s interpretation “unpersuasive given the language’s
clear support for solicitation.” Dissent 10. But the natural extension of the dissent’s
suggestion that Congress used encourage and induce only in their criminal-law sense
would require that subsection (A)(iv) also cover facilitation. See Black’s Law
Dictionary (10th ed. 2014) (defining encourage as synonymous with aid and abet,
and aid and abet as synonymous with criminal facilitation). The dissent cannot have
it both ways: Either the verbs in subsection (A)(iv) are limited to their criminal-law
definitions and thus encompass both solicitation and facilitation, or they are not so
limited and thus encompass far more conduct than solicitation and facilitation.
17
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then, would require replacing the phrase “encourages or induces” with the term
“solicits.” Because both the dissent and the government “rewrite” the statute’s plain
language, we reject those approaches and conclude that subsection (A)(iv) is not
“readily susceptible” to a limiting construction. Stevens, 559 U.S. at 481 (quoting
Reno, 521 U.S. at 884).
B. Protected Speech
Our conclusion that subsection (A)(iv) reaches at least some speech does not
end the analysis, of course, because the First Amendment does not protect all kinds
of speech. Indeed, the Supreme Court has long recognized several “narrowly limited”
categories of unprotected speech, “the prevention and punishment of which . . . raise
[no] [c]onstitutional problem.” Stevens, 559 U.S. at 469 (quoting Chaplinsky v. New
Hampshire, 315 U.S. 568, 571–72 (1942)). These categories include “obscenity,
defamation, fraud, incitement, and speech integral to criminal conduct.” Id. at 468
(citations omitted). The government invokes the last category, arguing that any
speech covered by subsection (A)(iv) is unprotected because it is “integral to criminal
conduct.” Aplt. Br. 36 (quoting Stevens, 559 U.S. at 468).
But based on our construction of subsection (A)(iv), this narrow category does
not cover all the speech the statute can reach. As we explained earlier, subsection
(A)(iv) prevents a person from encouraging or inducing a noncitizen to “reside in the
United States,” § 1324(a)(1)(A)(iv), even though such residence is not a crime. See
Arizona, 567 U.S. at 407. It is thus possible under subsection (A)(iv) to punish
speech encouraging an act that is only civilly unlawful. So in at least some cases, the
18
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narrow category of unprotected “speech integral to criminal conduct” will not
apply.17 Stevens, 559 U.S. at 468 (emphasis added).
Notably, subsection (A)(iv)’s language is also broad enough to sweep in even
protected “abstract advocacy of illegality.”18 Williams, 553 U.S. at 298–99; see also
Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) (“The mere tendency of
speech to encourage unlawful acts is not a sufficient reason for banning it.”). Again,
subsection (A)(iv) does not require specific intent that a noncitizen commit unlawful
immigration conduct. Nor does it require that such unlawful conduct ever occurs—
simply encouraging someone to come to, enter, or reside in the United States (either
knowing or recklessly disregarding that person’s unlawful status) violates subsection
(A)(iv), regardless of whether the noncitizen actually comes to, enters, or resides in
17
We reject the government’s suggestion that this category of unprotected
speech includes speech integral to unlawful activity of any kind, civil or criminal.
The Supreme Court has described the category as covering only speech integral to
“criminal conduct.” Stevens, 559 U.S. at 468. Indeed, the case first recognizing this
category confirms its limited application to speech “used as an integral part of
conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice
Co., 336 U.S. 490, 498 (1949) (emphasis added). The government supports its
contrary view with cases involving a different category of unprotected expression—
“[o]ffers to engage in illegal transactions.” Williams, 553 U.S. at 297; see also
Pittsburg Press Co. v. Pittsburgh Comm’n on Hum. Relations, 413 U.S. 376, 387–88
(1973) (upholding ordinance barring newspaper from publishing advertisements for
transactions that were unlawful under both civil and criminal laws). No one argues
that this transactional category applies here, so the government’s reliance on these
cases is misplaced.
18
The First Amendment protects such advocacy so long as it is neither
“directed to inciting or producing imminent lawless action” nor “likely to incite or
produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).
The government does not suggest that this exception would apply to speech
advocating the illegal immigration conduct subsection (A)(iv) proscribes.
19
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the United States. So the statement to a noncitizen, “I encourage you to [reside in the
United States],” would support a conviction under subsection (A)(iv), even if the
noncitizen takes no action in response to the encouragement. Williams, 553 U.S. at
300.
In sum, applying ordinary principles of statutory construction, we conclude
that subsection (A)(iv) proscribes at least some protected speech. Next, we consider
whether the statute, “as we have construed it,” proscribes so much protected speech
that it violates the First Amendment. Id. at 297.
II. Overbreadth
Although subsection (A)(iv) criminalizes some protected speech, the provision
is facially overbroad only if it criminalizes “a substantial amount of protected
speech.” Williams, 553 U.S. at 292 (emphasis added). Or, in more practical terms, “a
substantial number of instances [must] exist in which [subsection (A)(iv)] cannot be
applied constitutionally.” N.Y. State Club Ass’n, Inc. v. City of New York, 487 U.S. 1,
14 (1988). That number 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. So to
assess subsection (A)(iv)’s overbreadth, we must compare its “legitimate and
illegitimate applications.”19 Harmon v. City of Norman, 981 F.3d 1141, 1153 (10th
19
The government contends that in making this comparison, we should only
consider applications of subsection (A)(iv) that would also implicate a sentencing
enhancement that applies when the defendant commits the offense “for the purpose of
commercial advantage or private financial gain.” § 1324(a)(1)(B)(i). Although the
indictment and jury instructions use language from this enhancement, the
enhancement does not apply to Appellees’ offense—conspiracy to violate subsection
20
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Cir. 2020) (quoting 1 Smolla & Nimmer on Freedom of Speech, § 6:6). We may
invalidate subsection (A)(iv) as overbroad only if this comparison reveals “a realistic
danger that the statute . . . will significantly compromise recognized First
Amendment protections of parties not before [us].” N.Y. State Club Ass’n, 487 U.S. at
11 (quoting Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789,
801 (1984)).
We start by assessing subsection (A)(iv)’s constitutionally permissible
applications. The government maintains that subsection (A)(iv) covers a wide range
of “significant real-world criminal activity.” Aplt. Br. 32. It points to criminal
activity related to (1) procuring and providing fraudulent documents to noncitizens,
(2) helping noncitizens enter the United States, (3) luring noncitizens for unlawful
work, and (4) smuggling activities.
But for each of the government’s examples, as Appellees note, other statutes
independently—and more narrowly—proscribe these activities. For instance, various
statutes criminalize and punish document fraud. See 18 U.S.C. § 1546 (criminalizing
creation, dissemination, and use of fraudulent immigration documents); 8 U.S.C.
§ 1324c (punishing immigration document fraud); 18 U.S.C. § 1546 (addressing
(A)(iv), in violation of subsection (A)(v)(I). See § 1324(a)(1)(B)(i) (applying
enhancement to violations of subsections “(A)(ii), (iii), or (iv)”). And at any rate, a
conspiracy charge already carries a ten-year maximum sentence—the same length as
the enhancement. See § 1324(a)(1)(B)(i). The enhancement is therefore not an
element of Appellees’ crimes, as it does not “alter[ their] statutory sentencing range.”
United States v. Cassius, 777 F.3d 1093, 1097 (10th Cir. 2015) (emphasis omitted).
Accordingly, the enhancement does not factor into our assessment of subsection
(A)(iv)’s overbreadth.
21
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“[f]raud and misuse of visas, permits, and other documents”). What’s more, even
without subsection (A)(iv), the government could secure those prosecutions under
subsection (A)’s remaining provisions, which criminalize “bring[ing],”
“transport[ing],” “mov[ing],” “conceal[ing],” “harbor[ing],” or “shield[ing]”
noncitizens from detection. § 1324(a)(1)(A)(i)–(iii); see, e.g., United States v.
Martinez-Candejas, 347 F.3d 853, 854 (10th Cir. 2003) (describing § 1324(a)(1)(A)
as “proscrib[ing] a broad range of interrelated [noncitizen] smuggling activities,
including bringing in, transporting, harboring, [and] encouraging to enter or reside”).
The Ninth Circuit noted as much in Hansen, explaining that many legitimate
applications of subsection (A)(iv) are “encompassed by the other subsections of
[§] 1324(a)(1)(A), leaving subsection [A](iv)’s plainly legitimate sweep little
independent work to do.” Hansen, 25 F.4th at 1109. The availability of these
alternative prosecutorial tools dilutes the force of subsection (A)(iv)’s legitimate
applications. See Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589,
609 (1967) (“The breadth of legislative abridgment must be viewed in the light of
less drastic means for achieving the same basic purpose.” (quoting Shelton v. Tucker,
364 U.S. 479, 488 (1960))); cf. also Younger v. Harris, 401 U.S. 37, 51 (1971) (“[I]t
is well settled that [a] statute can be upheld if the effect on speech is minor in relation
to the need for control of the conduct and the lack of alternative means for doing so.”
(emphasis added)).
When asked at oral argument to identify an example of unprotected,
proscribable speech or conduct that could only be prosecuted under subsection
22
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(A)(iv), the government pointed to United States v. Kalu, 791 F.3d 1194 (10th Cir.
2015), Sineneng-Smith, and this case. But these examples only prove subsection
(A)(iv)’s redundancy.
The first two examples both involved a host of additional charges on top of a
subsection (A)(iv) offense. In Kalu, the government secured convictions on 89 counts
for mail fraud (18 U.S.C. § 1341), visa fraud (18 U.S.C. § 1546), forced labor (18
U.S.C. § 1589), trafficking in forced labor (18 U.S.C. § 1590), money laundering (18
U.S.C. § 1956), and encouragement and inducement under subsection (A)(iv). 791
F.3d at 1197. The government did not explain what aspect of the conduct in Kalu
might have gone unpunished if not for subsection (A)(iv). And in Sineneng-Smith,
besides the subsection (A)(iv) convictions, the government also obtained convictions
for mail and tax fraud.20 See 910 F.3d at 468 & n.2. If anything, Kalu and Sineneng-
Smith display the vast array of enforcement tools available to the government.
So does this case, the government’s final example of conduct proscribed solely
by subsection (A)(iv). Here too, the government secured convictions for other
crimes—another crew leader pleaded guilty to hiring a noncitizen in violation of 8
U.S.C. § 1324a(a)(1)(A), and Torres separately pleaded guilty to conducting an
unlicensed money-transmitting business in violation of 18 U.S.C. 1960. Instead of
focusing on these convictions, the government points to Appellees’ particular
20
Similarly, in the more recent Ninth Circuit decision striking down
subsection (A)(iv) as overbroad, the government independently convicted the
defendant of mail- and wire-fraud offenses. Hansen, 25 F.4th at 1105.
23
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conduct, arguing that only subsection (A)(iv) “cover[s] their participation in a
scheme designed to pay and putatively insure unlawfully present [noncitizens].” Rep.
Br. 6. But the government has prosecuted similar conduct as “conceal[ing],
harbor[ing], or shield[ing] from detection” under subsection (A)(iii). E.g., United
States v. Ye, 588 F.3d 411, 417 (7th Cir. 2009) (concluding that government showed
defendant’s “inten[t] to prevent the government from detecting” noncitizens in part
with evidence that defendant “paid [them] in cash”); cf. also Edwards v. Prime, Inc.,
602 F.3d 1276, 1299 (11th Cir. 2010) (finding, in racketeering action, sufficient
evidence of underlying subsection (A)(iii) violation based in part on evidence that
defendants “paid [noncitizens] in cash in order to conceal, harbor, and shield the[m]
from detection”).21
And even if no other statute covers Appellees’ conduct, the number of
potential illegitimate applications of subsection (A)(iv)—explored below—far
outnumber the legitimate applications involving such conduct. Thus, the
government’s three examples ultimately offer little support for the claim that
subsection (A)(iv) covers “significant real-world criminal activity.” Aplt. Br. 32.
On the other side of the ledger, we are convinced that many of subsection
(A)(iv)’s potential applications involve protected speech. As Appellees note, the
21
Notably, the indictment here alleges that the conspirators, including
Appellees, used Torres Drywall’s services “to maintain a stable of undocumented
[noncitizen] workers who, because they are unlawfully present in the United
States, . . . cannot easily open and maintain accounts at U.S. financial institutions,
and therefore must be paid in cash to maintain their residence in the United States.”
App. vol. 3, 385.
24
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statute punishes “any words spoken in encouragement of a[] . . . noncitizen’s
continued residence in the United States, so long as the speaker knows or recklessly
disregards the noncitizen’s immigration status.” Aplees. Br. 39. And recall that, as
we noted when interpreting the statute, the defendant’s encouraging words need not
have any effect on the listener. Plus, the statute’s sole exception—which permits
religious organizations to encourage noncitizens who already reside in the United
States to volunteer as “a minister or missionary,” § 1324(a)(1)(C)—is even narrower
than the exception in the statute invalidated as overbroad in Stevens. See 559 U.S. at
477–78 (noting exception in federal statute criminalizing animal-cruelty depictions
for speech having “serious religious, political, scientific, educational, journalistic,
historical, or artistic value” (quoting 18 U.S.C. § 48 (2010)). All other
encouragement and inducement is covered.
It is reasonable to conclude that vast amounts of protected speech would be
swept up in a “criminal prohibition of [such] alarming breadth.” Stevens, 559 U.S. at
474. The statute makes it a crime, for example, to tell a family member who has
overstayed his or her visa, “I encourage you to reside in the United States”; to “tell[]
a tourist that she is unlikely to face serious consequences if she overstays her tourist
visa”; or to inform a noncitizen “about available social services.” Hansen, 25 F.4th at
1110. And an immigration attorney could face prosecution for “providing certain
legal advice to [noncitizens].” Id. Although impossible to quantify with exact
precision, these “commonplace statements” are “likely repeated countless times
across the country every day.” Hansen, 25 F.4th at 1110. As a result, subsection
25
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(A)(iv) is surely “violated scores of times daily.”22 City of Houston v. Hill, 482 U.S.
451, 466 (1987); see also id. at 467 (concluding that challenged ordinance was
substantially overbroad because it was “susceptible of regular application to
protected expression”).
The government downplays these examples as “fanciful hypotheticals,”
emphasizing the lack of actual prosecutions involving protected speech.23 Aplt. Br.
36 (quoting Williams, 553 U.S. at 301). But actual prosecutions are not required to
prove a statute’s overbreadth. See N.Y. State Club Ass’n, 487 U.S. at 14 (requiring
showing of substantial overbreadth “from the text of [the challenged law] and from
actual fact that a substantial number of instances exist in which the [l]aw cannot be
applied constitutionally” (emphasis added)); Broadrick, 413 U.S. at 612 (balancing
“the possible harm to society in permitting some unprotected speech to go
unpunished” against “the possibility that protected speech of others may be muted
and perceived grievances left to fester because of the possible inhibitory effects of
22
We accordingly disagree with the Fourth Circuit’s cursory, unexplained
view—expressed in an unpublished opinion—that “[a]lthough there may be some
instances in which” subsection (A)(iv) proscribes protected speech, those instances
do not amount to “a substantial amount of such speech.” United States v. Tracy, 456
F. App’x 267, 272 (4th Cir. 2011) (unpublished).
23
The dissent similarly faults our reliance on what it views as “fanciful
hypotheticals.” Dissent 3 (quoting Williams, 553 U.S. at 301). This criticism falls
flat, however, given the dissent’s recognition that the statute covers these scenarios if
our reading of the statute is correct. See id. at 12 (arguing that there is “no reason to
rely on these ‘fanciful hypotheticals’” because subsection (A)(iv), when narrowly
construed as a solicitation provision, does not reach them (quoting Williams, 553
U.S. at 301)). Indeed, the dissent acknowledges that if our broad reading is correct,
“then the natural, almost inevitable result of the second step is the conclusion that the
statute is overbroad.” Id. at 4.
26
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overly broad statutes” (emphases added)). The First Amendment “does not leave us
at the mercy of noblesse oblige,” and we will not “uphold an unconstitutional statute
merely because the [g]overnment promise[s] to use it responsibly.”24 Stevens, 559
U.S. at 480. And in any event, the examples above are not so fanciful considering the
government’s prosecution in United States v. Henderson, 857 F. Supp. 2d 191 (D.
Mass. 2012).
In Henderson, the government brought a subsection (A)(iv) charge against a
federal immigration official for encouraging her housekeeper, a noncitizen, to remain
in the United States by “advis[ing] the [housekeeper] generally about immigration
law.” 857 F. Supp. 2d at 193. This advice included the statement, “[I]f you leave[,]
they won’t let you back.” Id. at 196. When questioned by the trial judge about
subsection (A)(iv)’s scope at a hearing, the prosecutor “contended that an
immigration lawyer would be prosecutable” under subsection (A)(iv) “if he [or she]
advised a[] [noncitizen] client to remain the country because if the [noncitizen] were
to leave[, that person] could not return to seek adjustment of status.” Id. at 203. The
prosecutor took this position even though the immigration lawyer would be advising
the client on “how to pursue entirely legal processes.” Id. at 204.
The government counters that Henderson does not count as an actual
prosecution for protected speech because the colloquy with the trial judge was about
24
French for “nobility obligates,” noblesse oblige refers to “the obligation of
honorable, generous, and responsible behavior associated with high rank or birth,” or,
as applied in this situation, the obligation of federal prosecutors to act responsibly.
Merriam-Webster’s Collegiate Dictionary 840 (11th ed. 2003).
27
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a hypothetical immigration lawyer. But in Henderson itself, the government relied on
speech (the statement “if you leave[,] they won’t let you back”) to support the
conviction. Id. at 196. Henderson thus supplies evidence both of a speech-based
prosecution under subsection (A)(iv) and of the “realistic danger” that the
government may pursue such prosecutions in the future. N.Y. State Club Ass’n, 487
U.S. at 11 (quoting Taxpayers for Vincent, 466 U.S. at 801).
As a final matter, the government’s emphasis on the dearth of subsection
(A)(iv) prosecutions and convictions based solely on protected speech rings hollow.
In the government’s view, because “immigration advocacy groups and service
providers openly engage” in the activities from our earlier examples, they
“evident[ly] belie[ve] that they have been free to do so.” Rep. Br. 12. And so, the
government maintains, their ongoing open engagement proves subsection (A)(iv) has
not chilled their activities.
Yet even if the government’s current use of subsection (A)(iv) to prosecute
pure speech is sporadic, that fact does not, by itself, prove that subsection (A)(iv)
does not prohibit or chill protected speech. After all, the government could still use
an overbroad statute to prosecute defendants and obtain convictions in the future.
And subsection (A)(iv)’s mere existence may chill speech now and in the future. See
Broadrick, 413 U.S. at 612 (“[A] statute’s very existence may cause others not before
the court to refrain from constitutionally protected speech or expression.”). That
some groups and individuals may persist in constitutionally protected speech despite
fear of prosecution says nothing about those who do not because of their fear of
28
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prosecution. See id. (explaining that First Amendment overbreadth challenges may
stem from “a judicial prediction or assumption that the statute’s very existence may
cause others . . . to refrain from constitutionally protected speech or expression”).
In the end, the comparison of subsection (A)(iv)’s constitutional and
unconstitutional applications is one-sided. Based on the government’s examples, the
statute mostly (if not entirely) proscribes conduct already made criminal by other
statutes. We are therefore not convinced that invalidating subsection (A)(iv) would
deprive the government of a critical enforcement tool or leave wide swaths of
criminal conduct unpunished. And as much as there are some legitimate applications
of subsection (A)(iv), they pale in comparison to the illegitimate ones. The statute’s
plain language is “susceptible of regular application to protected expression,”
reaching vast amounts of protected speech uttered daily. Hill, 482 U.S. at 466. For
these reasons, we hold that subsection (A)(iv) is substantially overbroad under the
First Amendment.25 Accordingly, we affirm the dismissal of the indictment.
25
Appellees do not argue that any other part of § 1324 is overbroad.
Accordingly, because “the unconstitutional language” in subsection (A)(iv) “is
severable from the remainder of the statute,” we leave the remainder of § 1324 intact.
Citizens for Responsible Gov’t State Pol. Action Comm. v. Davidson, 236 F.3d 1174,
1194 (10th Cir. 2000).
29
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United States v. Hernandez & United States v. Papalotzi, Nos. 19-3210 & 19-3211
BALDOCK, J., dissenting,
The Court makes this case much harder than it need. If we consider an ordinary,
common-sense definition of the words “encourage” and “induce” together with the
Supreme Court’s instructions for overbreadth cases, 8 U.S.C. § 1324(a)(1)(A)(iv) is a
solicitation statute and nothing more. To be sure, the Government overplays its hand by
suggesting it also encompasses facilitation. Nevertheless, that is an inadequate reason for
us to declare the statute unconstitutionally overbroad when it is otherwise subject to a
reasonable and constitutional construction.
Overbreadth cases require us to balance inherently contradictory interests. On the
one hand, we seek to vindicate important First Amendment rights and avoid chilling
protected speech. United States v. Williams, 553 U.S. 285, 292 (2008). On the other hand,
we are conscious of the “obvious harmful effects” associated with unnecessarily
invalidating laws. Id. Reflecting this latter concern, the Supreme Court describes
overbreadth as “strong medicine” and has expressed a preference for us to avoid
constitutional problems by subjecting statutes to reasonable limiting constructions. Id. at
293; New York v. Ferber, 458 U.S. 747, 769 n.24 (1982).
The statute at issue today is readily susceptible to such a construction. When
reasonably construed, § 1324(a)(1)(A)(iv) makes it a crime to solicit criminal violations of
immigration law. Accordingly, the statute necessarily requires the perpetrator to
specifically intend to solicit an act that he knows is such a criminal violation or be in
reckless disregard of the fact. See, e.g., Intent: Specific Intent, Black’s Law Dictionary
Appellate Case: 19-3210 Document: 010110710106 Date Filed: 07/13/2022 Page: 31
(10th ed. 2014) (listing solicitation as a specific intent crime at common law). Under this
reading, the statute is not unconstitutionally overbroad because any speech criminalized by
it is “integral to criminal conduct” and unprotected by the First Amendment. United States
v. Stevens, 559 U.S. 460, 468 (2010). The Court, however, insists on declaring the statute
overbroad. Because I believe our decision erroneously invalidates the statute, I respectfully
dissent.
I.
Let us begin by providing some context on the overbreadth analysis. We start with
the principle that “[i]nvalidation for overbreadth is ‘strong medicine’ that is not to be
‘casually employed.’” Williams, 553 U.S. at 293 (cleaned up) (quoting LAPD v. United
Reporting Publ’g Corp., 528 U.S. 32, 39 (1999)). The Supreme Court has repeatedly
warned us against cavalier applications of the doctrine and “vigorously enforced the
requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but
also relative to the statute’s plainly legitimate sweep.” Id. at 292 (citing Bd. of Trs. of
SUNY v. Fox, 492 U.S. 469, 485 (1989); Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973)). The Supreme Court’s guidance on statutory construction, as it applies in cases of
alleged overbreadth, reflects this principle. For example, we must presume that every
statute Congress enacts is constitutional. See United States v. Morrison, 529 U.S. 598, 607
(2000); see also United States v. Carel, 668 F.3d 1211, 1216 (10th Cir. 2011). We therefore
approach cases like this one with a certain reluctance to invalidate the statute. Only in
cases where it is abundantly clear that the statute cannot comport with the Constitution’s
2
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requirements will we resort to invalidating a statute as overbroad. See Williams, 553 U.S.
at 293.
Further reflecting this principle is the Supreme Court’s instruction that we should,
whenever possible, find reasonable limiting constructions for the challenged statutory
meaning that may save the provision from invalidation. Crowell v. Benson, 285 U.S. 22,
62 (1932); Ferber, 458 U.S. at 769 n.24. This, of course, is predicated on the requirement
that “the statute is subject to such a limiting construction.” Ferber, 458 U.S. at 769 n.24.
The Supreme Court has cautioned us that we “may impose a limiting construction on a
statute only if it is ‘readily susceptible’ to such a construction” and that we cannot “rewrite
a law to conform it to constitutional requirements.” Stevens, 559 U.S. at 481 (cleaned up)
(quoting Reno v. ACLU, 521 U.S. 844, 884–85 (1997)). We nevertheless retain a relatively
wide avenue to reinterpret statutes. See id. (distinguishing between rewriting and
reinterpreting a statute). Finally, although the task of evaluating overbreadth challenges is
necessarily abstract, we must not, as this Court does, rely on “fanciful hypotheticals” as
our justification for invalidating a statute. Williams, 553 U.S. at 301 (noting “the tendency
of our overbreadth doctrine to summon forth an endless stream of fanciful hypotheticals”);
United States v. Sineneng-Smith (Sineneng-Smith II), 140 S. Ct. 1575, 1586 (2020)
(Thomas, J., concurring) (same).
II.
Next, let us proceed to the overbreadth analysis as it applies to § 1324(a)(1)(A)(iv).
As this Court correctly explains, overbreadth analysis consists of two steps. “The first step
in overbreadth analysis is to construe the challenged statute” so that we “know[] what the
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statute covers.” Williams, 553 U.S. at 293. Then, at the second step, we examine “whether
the statute, as we have construed it, criminalizes a substantial amount of protected
expressi[on].” Id. at 297. As a practical matter, however, the first step does most of the
analytical work. If we construe the statute broadly, as this Court does, then the natural,
almost inevitable result of the second step is the conclusion that the statute is overbroad.1
See, e.g., United States v. Sineneng-Smith (Sineneng-Smith I), 910 F.3d 461 (9th Cir. 2018),
vacated, 140 S. Ct. 1575 (2020). On the other hand, if we construe the statute narrowly,
as the Supreme Court tells us to, then the Court is more likely to find that the statute passes
muster. Cf. Williams, 553 U.S. at 297; United States v. Yung, 37 F.4th 70 (3d Cir. 2022).
In this case, the outcome is largely determined by how the Court construes two words:
“encourage” and “induce.”
This Court makes two fundamental mistakes in its construction of
§ 1324(a)(1)(A)(iv).2 First, it misinterprets the meaning of the words “encourage” and
1
The Court views this statement as the dissent recognizing that if the Court’s reading of
§ 1324(a)(1)(A)(iv) is correct, then the statute would be overbroad. See Slip Op. at 26
n.23. It is worth noting, however, that the Court’s criticism of the dissent likewise does
not suggest that if my reading is correct, then the statute would pass constitutional muster.
See id. at 17–18, 26 n.3. The disagreement between the opinions therefore reflects two
fundamentally different views of the statute. Today, the Court rejects my reading of
§ 1324(a)(1)(A)(iv) just as I think it is clear that the Court’s reading is incorrect and fails
to comply with the Supreme Court’s instructions.
2
The root of these errors is the Court’s decision to rely on two questionable cases from the
Ninth Circuit, Sineneng-Smith I, 910 F.3d 461 and United States v. Hansen, 25 F.4th 1103(9th Cir. 2022). Sineneng-Smith I is a cautionary tale of judicial misadventure. There, the
Ninth Circuit manufactured an overbreadth challenge to § 1324(a)(1)(A)(iv) sua sponte
and invalidated it. See Sineneng-Smith I, 910 F.3d at 467–69. The Supreme Court
repudiated that decision because the Ninth Circuit “departed so drastically from the
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“induce.” Second, it erroneously concludes that § 1324(a)(1)(A)(iv) covers both civil and
criminal violations of immigration law.
As the Court correctly notes, “[t]he starting point in interpreting a statute ‘must be
the language employed by Congress, and we assume that the legislative purpose is
expressed by the ordinary meaning of the words used.’” FTC v. Kuykendall, 466 F.3d
1149, 1154 (10th Cir. 2006) (quoting Hain v. Mullin, 436 F.3d 1168, 1176 (10th Cir. 2006)
(en banc) (Briscoe, J., dissenting)). “But no statute is an island unto itself.” United States
v. Brune, 767 F.3d 1009, 1022 (10th Cir. 2014). We therefore look at the context of the
broader statutory scheme. Id. In doing so, we should not lose sight of the statutory purpose.
See Exby-Stolley v. Bd. of Cty. Comm’rs, 979 F.3d 784, 798 (10th Cir. 2020) (en banc)
(recognizing that examining statutory purpose “is one of the traditional ‘tools’ of statutory
construction”).
Section 1324(a)(1)(A)(iv) makes it a crime to “encourage[] or induce[] 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.” What does it
principle of party presentation as to constitute an abuse of discretion.” Sineneng-Smith II,
140 S. Ct. at 1578. Nevertheless, the Court emphasized the extreme nature of finding a
statute overbroad and questioned the Ninth Circuit’s use of hypotheticals. Id. at 1581
(“Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in
the District Court, and that this Court has repeatedly warned that ‘invalidation for First
Amendment overbreadth is strong medicine that is not to be casually employed.’”
(emphasis added) (cleaned up) (quoting Williams, 553 U.S. at 293)). Undeterred, the Ninth
Circuit resurrected Sineneng-Smith I by substantially adopting its reasoning in the recent
Hansen decision. See Hansen, 25 F.4th at 1107. This Court in turn relies extensively on
Hansen to support its decision. Because of this symbiosis, Hansen is wrong for the same
reason the Court’s decision is wrong—it fundamentally misconstrues the statute.
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mean to “encourage” and “induce”? An ordinary definition of the word “encourage” might
be, as the Court suggests, “[t]o give courage to: inspire with courage, spirit, or hope:
hearten.” Slip Op. at 11 (quoting Webster’s Third New International Dictionary 747
(Philip Babcock Gove ed., 1961)). But that definition is somewhat vague. In keeping with
the principles of statutory construction, we should strive to find a more precise definition
of the word that still comports with its ordinary meaning. We can find such a definition in
the very same dictionary: “to spur on: stimulate: incite.” Webster’s Third New
International Dictionary, supra, at 747. Likewise, the Court defines “induce” as “to move
and lead (as by persuasion or influence)” and “to inspire, call forth, or bring about by
influence or stimulation.” Slip. Op. at 11 (quoting Webster’s Third New International
Dictionary, supra, at 1154). The Court omits, however, a more precise definition between
the two: to “prevail upon: influence, persuade.” Webster’s Third New International
Dictionary, supra, at 1154.
Armed with these commonplace, more precise definitions, we can begin to consider
their specific meaning within the statute. In doing so, we must remember that
§ 1324(a)(1)(A)(iv) is a criminal statute. The first question we must ask, then, is what does
it mean to “spur on: stimulate: [or] incite” in the criminal context? Id. at 747. We can state
it succinctly: for the purposes of § 1324(a)(1)(A)(iv), to “encourage” is “to incite to action.”
Encourage, Black’s Law Dictionary (10th ed. 2014). As for “induce,” what does it mean
to “prevail upon: influence, [or] persuade” someone? Webster’s Third New International
Dictionary, supra, at 1154. It means to “entic[e] or persuad[e] another person to take a
certain course of action.” Inducement, Black’s Law Dictionary (10th ed. 2014). Based on
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these definitions, the words “encourage” and “induce” are analogous to the word “solicit,”
which when ordinarily defined means “to move to action.” Webster’s Third New
International Dictionary, supra, at 2169.
Equating “encourage” and “induce” with “solicit” is consistent with the remainder
of § 1324(a)(1)(A)(iv)’s language. After all, the statute makes the “coming to, entry, or
residence . . . in violation of law” the object of the crime. The act described in the statute
is inherently one of solicitation because it requires the perpetrator to “encourage[] or
request[] another person to engage in specific conduct that would constitute such crime”
“with the purpose of promoting or facilitating its commission.” Model Penal Code
§ 5.02(1) (Am. Law Inst. 1985).
With this understanding, the meaning of § 1324(a)(1)(A)(iv) falls into sharp relief.
Certain principles necessarily accompany the concept of a solicitation statute. Chief among
them is the mens rea requirement. It is a generally held principle at common law that
solicitation statutes carry a specific intent requirement. See Intent: Specific Intent, Black’s
Law Dictionary (10th ed. 2014) (“At common law, the specific-intent crimes were . . .
solicitation.”); 2 Wayne R. LaFave, Substantive Criminal Law § 11.1(c) (3d ed. Dec. 2021
Update); Model Penal Code § 5.02(1) (“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
or an attempt to commit such crime or would establish his complicity in its commission or
attempted commission.”); see also 18 U.S.C. § 373(a) (“Whoever, with intent that another
person engage in conduct constituting a felony . . . solicits . . . .” (emphasis added)). That
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is, the perpetrator must intend “to accomplish the precise criminal act [he] is later charged
with,” in this case that the target of the solicitation carry out the act in question. See Intent:
Specific Intent, Black’s Law Dictionary (10th ed. 2014).
This Court should apply this principle to § 1324(a)(1)(A)(iv) and read it as imposing
a specific intent requirement. Were Congress to impose a general intent requirement, as
this Court’s reading of the statute implies, it would almost certainly criminalize some form
of protected speech because the speaker would only need to intend to speak, rather than
intend to induce a criminal act. And Congress has a clear pattern of imposing a specific
intent requirement when criminalizing forms of speech so as not to infringe upon the First
Amendment. See, e.g., 18 U.S.C. § 1001 (making it a crime to “knowingly and willfully”
lie to or mislead a government entity); 18 U.S.C. § 1621 (requiring a defendant to “willfully
. . . state[] or subscribe[] any material matter which he does not believe to be true” to be
convicted of perjury). Conceptually, that pattern makes perfect sense—imposing a specific
intent requirement avoids the problem of targeting protected speech because the mens rea
requirement ensures that the speech is “integral to criminal conduct” or fraudulent. See
Stevens, 559 U.S. at 468; see also United States v. Alvarez, 567 U.S. 709, 733 (2012)
(Breyer, J., concurring in the judgment) (“[T]he Court emphasizes mens rea requirements
that provide ‘breathing room’ for more valuable speech by reducing an honest speaker’s
fear that he may accidentally incur liability for speaking.”).
Other principles of statutory construction also support reading § 1324(a)(1)(A)(iv)
as a solicitation statute. For example, the Supreme Court recognizes that some principles
of criminal law are so well established that Congress does not need to specifically reference
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them in statutory language. See Morissette v. United States, 342 U.S. 246, 261–62 (1952).
Because solicitation is inexorably linked with a requirement of specific intent, Congress
does not necessarily need to state that specific intent is required so long as it makes clear
that the statute criminalizes solicitation. See id. But even if the statute’s mens rea
requirement is ambiguous, such “ambiguity concerning the ambit of criminal statutes
should be resolved in favor of lenity.” Rewis v. United States, 401 U.S. 808, 812 (1971)
(citing Bell v. United States, 349 U.S. 81, 83 (1955)); see also Model Penal Code § 2.02(3)
(“When the culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts purposely, knowingly or
recklessly with respect thereto.”). Here, resolving the ambiguity in favor of lenity entails
imposing the strongest mens rea requirement available—namely specific intent. It also
happens to be the logical choice for a solicitation statute.3
That leads us to the Court’s second error. According to the Court,
§ 1324(a)(1)(A)(iv) makes it a crime to encourage or induce both civil and criminal
violations of immigration law. Slip Op. at 15. Based on this conclusion, the Court reasons
that the statute cannot be a solicitation statute because, as a general matter, solicitation
statutes only make it a crime to encourage or induce criminal violations. See id. at 15–16.
But once again, the Court ignores its obligation to consider a reasonable limiting
construction that could avoid this issue entirely. See Ferber, 458 U.S. at 769 n.24. As
3
Although this reading of § 1324(a)(1)(A)(iv) is the best one available to the Court, it need
not be. A limited construction of a statute only needs to be “plausible” because a plausible
constitutional reading of a statute is preferrable to a “better” one that is overbroad. Yung,
37 F.4th at 79–80.
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Professor Eugene Volokh persuasively argued in an amicus brief, the statute’s phrase “in
violation of law” refers to criminal violations of immigration law such as illegal entry into
the United States in violation of 8 U.S.C. § 1325(a), and residing in the United States after
having been deported in violation of 8 U.S.C. § 1326(c). Br. of Prof. Eugene Volokh as
Amicus Curiae in Supp. of Plaintiff-Appellee at 3–6, Sineneng-Smith I, 910 F.3d 461 (No.
15-10614).
Granted, the Government does not endorse this interpretation of the statute. The
Government argues § 1324(a)(1)(A)(iv) encompasses acts of facilitation in addition to acts
of solicitation. See Br. of Appellant 20–29. That argument is unpersuasive given the
language’s clear support for solicitation. The Government also appears to attempt—
perhaps with the objective of finding the broadest interpretation of § 1324(a)(1)(A)(iv) that
could pass constitutional muster—to construe the statute as only having a “general criminal
intent” requirement (whatever that is) and points us to cases from several of our sister
Circuits that it claims support such a conclusion. Id. at 28–29. The Government’s reliance
on these cases, however, is misplaced. One of them, United States v. He, 245 F.3d 954(7th Cir. 2001), supports the conclusion that the statute imposes a specific intent
requirement.4 Another case the Government cites, United States v. Zayas-Morales, 685
4
The Seventh Circuit implicitly endorsed the idea that § 1324(a)(1)(A)(iv) has a specific
intent requirement in He, 245 F.3d 954. There, the court considered the appropriateness of
a supplemental jury instruction given by the district court in a case where the defendant
had been charged under § 1324(a)(1)(A)(iv). The jury instruction in question stated:
“‘[E]ncourage’ means to knowingly instigate, help or advise. ‘Induce’ means to knowingly
bring on or about, to affect, cause or to influence to an act or course of conduct.” Id. at
957. The district court also expressly rejected the idea that § 1324(a)(1)(A)(iv)
encompasses aiding and abetting. Id. The Seventh Circuit held that the “instruction was a
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F.2d 1272 (11th Cir. 1982), addresses a previous version of the statute and arguably does
more to confuse the distinction between specific intent and general intent than clarify it.5
Lastly, United States v. Nguyen, 73 F.3d 887 (9th Cir. 1995), addresses neither
§ 1324(a)(1)(A)(iv) specifically nor solicitation. The Government’s decision to present
unpersuasive arguments does not justify our decision to invalidate a statute that is plainly
salvageable through an alternative and equally reasonable construction. Yung, 37 F.4th at
79–80 (choosing a “plausible” narrow reading of a statute over a “better” broader reading
to preserve its constitutionality).
In the end, how should this Court construe the statute? We can answer that question
easily—§ 1324(a)(1)(A)(iv) makes it a crime to solicit criminal violations of immigration
law. Under this reading, § 1324(a)(1)(A)(iv) imposes two clearly defined and narrow
requirements. First, the perpetrator must specifically intend to “encourage[]” or “induce[]”
(whether by speech or conduct) a criminal violation of immigration law.
§ 1324(a)(1)(A)(iv). Second, the perpetrator must have knowledge or a reckless disregard
of the factual circumstances that would make the underlying act of the other person a
correct statement of the law.” Id. at 959. Thus, the Seventh Circuit’s reading of
§ 1324(a)(1)(A)(iv) as requiring a defendant to “knowingly” “encourage” or “induce,” is
analogous to a reading of specific intent.
5
Zayas-Morales stated that a subsection of a prior version of § 1324 required “general
criminal intent.” 685 F.2d at 1276. The Eleventh Circuit relied on Morrissette to read this
mens rea requirement into the then-applicable § 1324(a)(1). See id. at 1276–78. The
Eleventh Circuit did not specify what it meant by “general criminal intent,” and one of the
footnotes in the case appears to confuse general intent and specific intent requirements.
See id. at 1277 n.5. In any event, we need not wade into this confusion because the case
does not address the applicable form of the statute.
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criminal violation of immigration law. Id. As such, any speech subject to prosecution
under § 1324(a)(1)(A)(iv) falls squarely within what the Supreme Court recognizes is
speech “integral to criminal conduct,” a category that is not protected by the First
Amendment. Stevens, 559 U.S. at 468.
The Court’s concerns about criminalizing innocent civil violations of immigration
law are therefore misplaced. The relative encouraging the family member to commit a
civil violation of immigration law by overstaying a visa need not fear § 1324(a)(1)(A)(iv).
Slip Op. at 25. Even the case of an immigration lawyer “providing certain legal advice to
[noncitizens],” id. at 25 (alteration in original) (quoting Hansen, 25 F.4th at 1110), falls
outside the statute’s reach. An immigration attorney would only face prosecution under
§ 1324(a)(1)(A)(iv) if he knowingly or recklessly solicited a client to commit a criminal
violation of immigration law—an act that is not afforded protection under either the First
Amendment or the attorney-client privilege. Stevens, 559 U.S. at 468; Clark v. United
States, 289 U.S. 1, 15 (1933). This Court has no reason to rely on these “fanciful
hypotheticals” or declare § 1324(a)(1)(A)(iv) unconstitutionally overbroad. Williams, 553
U.S. at 301.
Today’s decision endorses an unjustifiable application of the overbreadth doctrine.
The Court construes § 1324(a)(1)(A)(iv) in a way that sets the statute up for failure. Having
done so, it rejects reasonable alternative interpretations and declares the statute
unconstitutionally overbroad.
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III.
Outcomes like the one the Court reaches today are inevitable under the overbreadth
doctrine. After all, the doctrine rejects the idea that as-applied challenges are sufficient to
vindicate First Amendment rights. See Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)
(“The assumption that defense of a criminal prosecution will generally assure ample
vindication of constitutional rights is unfounded in such cases.”). Instead, “[i]t allows a
litigant without a legal injury to assert the First Amendment rights of hypothetical third
parties, so long as he has personally suffered a real-world injury.” Sineneng-Smith II, 140
S. Ct. at 1587 (Thomas, J., concurring). When courts are allowed to stray into the world
of hypotheticals, results are only limited by judges’ imaginations. These issues, however,
are for the Supreme Court to consider. Despite the inherent flaws in the overbreadth
doctrine, we are bound by it. Even with those flaws, we still could have reached a different
conclusion in this case by properly following the guidance we have received from the
Supreme Court. Ultimately, responsibility for our failure to follow those instructions rests
with us. For the foregoing reasons, I respectfully dissent.
13