Metropolitan News-Enterprise


Wednesday, October 9, 2013


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Court Upholds Injunction Against Arizona Law on Harboring Aliens




An Arizona law that makes it a crime for certain persons to harbor or transport unauthorized aliens is unconstitutional, and its enforcement was properly enjoined by a lower court, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

“We conclude that the statute as written is void for vagueness under the Due Process Clause because one of its key elements—being ‘in violation of a criminal offense’—is unintelligible,” Judge Richard Paez wrote for the court. “We also find that the provision, however it is interpreted, is preempted by federal law and thus invalid under the Supremacy Clause.”

The judges affirmed the preliminary injunction issued a year ago by U.S. District Judge Susan R. Bolton of the District of Arizona, who said the plaintiffs—a pastor and several civic, labor, immigrant’s rights, and business groups—had established a probability of prevailing on their claims that Arizona Revised Statutes § 13-2929 was unconstitutionally vague and is preempted by federal law.

SB 1070

The section is part of SB 1070, the controversial anti-immigration law that has been challenged in other cases, both by private plaintiffs and the federal government. Four provisions of the legislation were previously enjoined in a suit by the government, which challenged § 13-2929 not on preemption grounds, but on the ground that it violated the dormant Commerce Clause and the grant of immigration authority to Congress.

The latter challenge was rejected by the district judge, so the harboring statute went into effect with other non-enjoined provisions in July 2010. The Ninth Circuit affirmed the injunction obtained by the federal government, and the Supreme Court in United States v. Arizona, 132 S. Ct. 2492 (2012), affirmed as to three of the four provisions.

Following the Supreme Court’s ruling, the plaintiffs in the case ruled on yesterday renewed their previously denied motion for a preliminary injunction against the harboring statute, which Bolton granted on the grounds of both field and conflict preemption.

On appeal, the state contended that the plaintiffs lacked standing, that the statute was constitutional, and that the state’s interests in enforcing the law were so strong that the issuance of a preliminary injunction was an abuse of discretion.

Paez said the individual plaintiff, Luz Santiago, had established standing by alleging that she intended to provide transportation and shelter to unauthorized aliens as part of her religious duties, and that she feared prosecution under the law as a result. And the organizational plaintiffs, the appellate jurist said, had shown that the law interferes with their missions and forced them to divert resources that would otherwise be spent elsewhere into studying and complying with the law.

Unduly Vague

On the merits, Paez said the law is unduly vague because it specifically applies to “a person who is in violation of a criminal offense” and prohibits any such person from transporting, concealing, or harboring an alien or shielding an alien from detection, “if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of the law.”

The phrase “in violation of a criminal offense” makes no sense, the judge said, because it translates to “in violation of a violation of a law.”

The state, he explained, acknowledges that the law makes no sense, but argued that the court can treat the language as if it read “in violation of a criminal offense.” But the court cannot assume that’s what the legislature meant, Paez reasoned, and it is not the court’s job to rewrite Arizona’s law.

In any event, the judge went on to say, the law is preempted because Congress has preempted the field of regulating the harboring, transporting, and concealment of persons in the country illegally, including the extent of state authority. Specifically, Paez noted, federal law allows state and local law enforcement to arrest violators of the relevant federal laws, but does not authorize state criminal prosecutions.

In addition, he wrote, conflict preemption exists because the Arizona law “conflicts with the federal scheme by divesting federal authorities of the exclusive power to prosecute these crimes” and also because it criminalizes some activities that are not prohibited by federal law, including inducing unauthorized aliens to travel from state to state within the United States,

Senior Judge John Noonan concurred in the opinion. Judge Carlos Bea concurred in part, saying he would affirm on vagueness grounds and ignore the preemption issue.

The case is Valle Del Sol v. Whiting, 12-17152.


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