J. Marquez-Reyes v. Merrick Garland, 36 F.4th 1195

Background

J. Guadalupe Marquez‑Reyes, a Mexican national who entered without inspection in 1998, faced removal after proceedings opened in 2013.
At his final hearing he admitted (without describing specifics) that he twice “encouraged” his son to enter the U.S. illegally (2010 and 2011), rendering him ineligible for cancellation because the INA bars persons described in 8 U.S.C. § 1182(a)(6)(E)(i) from being "of good moral character."
Marquez‑Reyes sought administrative closure (≈5 years) to accrue the ten‑year good‑moral‑character period required for cancellation; the IJ denied the request and the BIA affirmed.
He petitioned for review arguing § 1182(a)(6)(E)(i) is facially overbroad under the First Amendment, unconstitutionally vague, violates equal protection, and the agency abused its discretion in denying administrative closure.
The Ninth Circuit (majority) affirmed: it read “encouraged” to mean solicitation/aiding and abetting, rejected the facial First Amendment and vagueness challenges, upheld rational‑basis equal‑protection review, and found no abuse of discretion; Judge Berzon dissented and would sever “encouraged.”

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
First Amendment overbreadth: Does § 1182(a)(6)(E)(i) criminalize substantially protected speech by using “encouraged”?	Marquez‑Reyes: “Encouraged” has ordinary broad meaning that covers protected advocacy and thus is facially overbroad.	Government: “Encouraged” must be read in statutory context as solicitation/aiding and abetting criminal conduct; statute targets unprotected speech or non‑speech conduct.	Court: “Encouraged” construed narrowly as solicitation/aiding and abetting; statute not substantially overbroad relative to legitimate scope.
Vagueness (Due Process): Is the smuggling provision impermissibly vague on its face?	Marquez‑Reyes: statute lacks sufficient clarity for ordinary persons.	Government: statute has mens rea and limits (knowingly; entry in violation of law) and is administrable.	Court: Vagueness challenge foreclosed—petitioner admits conduct clearly covered; facial vagueness fails.
Equal protection (Due Process): Does differential availability of smuggling‑waivers violate equal protection?	Marquez‑Reyes: waivers exist for some admission/adjustment applicants but not for cancellation applicants, creating invidious disparity.	Government: classification is immigration policy subject to deferential rational‑basis review and is rationally related to objectives (e.g., privileging those who complied with immigration laws).	Court: Applies rational basis and upholds the statutory scheme; no equal‑protection violation.
Administrative closure: Did the agency abuse discretion denying administrative closure?	Marquez‑Reyes: IJ failed to apply the correct standard and did not require government to justify opposition.	Government: IJ considered Avetisyan factors; BIA’s de novo review relied on government’s subsequent explanation (enforcement priority).	Court: No abuse of discretion; IJ considered factors and BIA’s de novo review made any IJ error harmless.

Key Cases Cited

United States v. Hansen, 25 F.4th 1103 (9th Cir. 2022) (invalidating an "encourage" provision in § 1324 as facially overbroad)
United States v. Rundo, 990 F.3d 709 (9th Cir. 2021) (holding Anti‑Riot Act language including “encourage” facially overbroad and severing the word)
Williams v. United States, 553 U.S. 285 (2008) (overbreadth standard and canon of construction requiring statutory interpretation before invalidation)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine limits and standing to bring facial First Amendment challenges)
Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005) (interpreting alien‑smuggling provisions as requiring an affirmative act of assistance)
Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005) (reading § 1182(a)(6)(E)(i) to require affirmative assistance and noting provision’s title “Smugglers”)
Ledezma‑Cosino v. Sessions, 857 F.3d 1042 (9th Cir. 2017) (standards for de novo review of constitutional claims)
Rehaif v. United States, 139 S. Ct. 2191 (2019) (mens rea principles applied to immigration/criminal statutes)
Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32 (1999) (standing limitations on facial challenges)