Jackson, J., dissenting
that Congress’s removal of the primary mens rea requirement was deliberate. And, when this deliberate choice is considered alongside the history of the provision’s significant expansions, there is ample cause to think that Congress intended a substantive change in meaning.
C
Other features of the encouragement provision (beyond its plain text and historical development) also suggest that Congress did not mean for the statute to be construed in accordance with established characteristics of solicitation or aiding and abetting. These features further highlight the poor fit between this statute and the narrow solicitation/aiding-and-abetting box into which the majority tries to squeeze Congress’s broad language.
Recall that, in 1986, Congress made it a crime to encourage or induce a noncitizen not just to “come to” or “enter” the United States, but also to “reside” in this country. 100 Stat. 3382; supra, at 8–9.[1] As the majority notes, while it is a crime for a noncitizen to enter the United States illegally, it is generally not a crime—just a civil violation—to remain in the United States without lawful status, such as when a noncitizen overstays a visitor or student visa. See Arizona v. United States, 567 U. S. 387, 407 (2012); see ante, at 19. Thus, the encouragement provision on its face
- ↑ As a side note: Congress’s addition of “reside” might seem to sweep in speakers who encouraged or induced noncitizens “who were already unlawfully present in the U. S. to continue that unlawful presence.” 40 F. 4th 1049, 1073, n. 1 (CA9 2022) (Collins, J., dissenting from denial of reh’g en banc). But as Judge Collins explained, the provision is “most naturally read” to reach only “those who encourage or induce particular [noncitizens] to acquire an unlawful presence or residence that they do not already have.” Ibid. After all, “[o]ne does not normally speak of ‘inducing’ another to do what he or she is already doing.” Ibid. And the principle of noscitur a sociis counsels in favor of such an understanding, given that “the first two listed verbs (‘come to’ and ‘enter’) plainly refer to such an acquisition.” Ibid.
