Opinion of the Court
offense. But a prosecutor who tried to bring such a case would not succeed. Why? Because aiding and abetting implicitly carries a mens rea requirement—the defendant generally must intend to facilitate the commission of a crime. LaFave §13.2(b). Since “encourages or induces” in clause (iv) draws on the same common-law principles, it too incorporates them implicitly.[1]
Still, Hansen reiterates that if Congress had wanted to require intent, it could easily have said so—as it did elsewhere in clause (iv). The provision requires that the defendant encourage or induce an unlawful act and that the defendant “kno[w]” or “reckless[ly] disregard” the fact that the act encouraged “is or will be in violation of law.” §1324(a)(1)(A)(iv). Yet while Congress spelled out this requirement, it included no express mens rea element for “encourages or induces.” Indeed, Hansen continues, the statute used to require that the encouragement or inducement be committed “willfully or knowingly,” but Congress deleted those words in 1986. Brief for Respondent 30. Taken together, Hansen says, this evidence reflects that Congress aimed to make a defendant liable for “encouraging or inducing” without respect to her state of mind.
But there is a simple explanation for why “encourages or induces” is not modified by an express mens rea requirement: There is no need for it. At the risk of sounding like a broken record, “encourage” and “induce,” as terms of art, carry the usual attributes of solicitation and facilitation—including, once again, the traditional mens rea. Congress
- ↑ The Ninth Circuit believed that the Government’s “solicitation and facilitation” reading of clause (iv) would create impermissible surplusage with the aiding-and-abetting provision in clause (v)(II). 25 F. 4th 1103, 1108–1109 (2022). Hansen does not press that argument before this Court—for good reason. Clause (iv) criminalizes the aiding and abetting of an immigration violation, whereas clause (v)(II) prohibits the aiding and abetting of “any of the preceding acts.” In other words, clause (v)(II) applies to aiding and abetting a first-line facilitator. Another difference: Clause (iv) criminalizes not only facilitation, but solicitation too.
