Jackson, J., dissenting
is not an easy fit for the solicitation and facilitation role in which the majority has cast it.
This statute is fundamentally different from aiding-and-abetting liability and solicitation in other ways as well. As noted, aiding-and-abetting liability is a form of vicarious liability—i.e., a way in which a person becomes liable for the crimes of the principal. Likewise, for solicitation, “the punishment … is usually geared to … the punishment provided for the offense solicited.” Wharton’s §9:11; see, e.g., 18 U. S. C. §373(a) (providing, for example, punishment of “not more than one-half the maximum term of imprisonment … of the crime solicited”). But, notably, a person who violates the encouragement provision is not punished as if he were a principal of the underlying offense, nor does the prescribed punishment depend on the penalty for the underlying offense. So, for example, even if the underlying immigration offense is a civil violation, the person who encourages or induces that infraction could be punished by up to 10 years’ imprisonment for violating the encouragement provision. Unlike solicitation and facilitation, then, punishment for violation of the encouragement provision is not tied in any way to the punishment prescribed for the underlying offense.
It is also telling that aiding-and-abetting liability (but not solicitation) requires that the principal actually commit the underlying offense. 2 W. LaFave, Substantive Criminal Law §13.3(c) (3d ed. 2018) (“[T]he guilt of the principal must be established at the trial of the accomplice as a part of the proof on the charge against the accomplice”). Yet, the encouragement provision on its face does not require that a noncitizen actually enter or reside in the United States. *** For these reasons, none of the traditional tools of statutory interpretation makes the encouragement provision
