Jackson, J., dissenting
violate the immigration laws—while inserting a mens rea requirement for knowledge or reckless disregard of the noncitizen’s immigration status. See Immigration Reform and Control Act of 1986, §112(a), 100 Stat. 3381–3382. Simultaneously, and for the first time, Congress made it a crime to encourage or induce an unauthorized noncitizen not merely to enter the United States, but also to encourage or induce such a person to “reside” here unlawfully. Ibid.
Finally, in 1996, Congress crafted a separate penalty enhancement for certain kinds of violations. It raised the maximum punishment from 5 years to 10 years of imprisonment if the offender violates the encouragement provision “for the purpose of commercial advantage or private financial gain.” §1324(a)(1)(B)(i); see Illegal Immigration Reform and Immigrant Responsibility Act of 1996, §203(a), 110 Stat. 3009–565.
As these developments illustrate, Congress has repeatedly revisited the scope of the encouragement provision. And, in so doing, it has consistently expanded the reach and severity of this criminal law from its modest 1885 origins. Most notably, the particular amendments that Congress has made to the encouragement provision demonstrate its intent to specifically reject the pillars of the majority’s holding.
To reiterate: The terms “solicit” and “assist” appeared in the text of the statute between 1885 and 1952, at which point Congress removed them. Likewise, between 1952 and 1986, violating this statute required that the speaker “willfully or knowingly” encourage or induce a noncitizen to transgress the immigration laws. But in 1986, Congress deleted this primary mens rea requirement.
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The majority’s efforts to spin the encouragement provision’s enlightening enactment history in favor of the majority’s narrow interpretation are unavailing.
