Valle Del Sol v. State of Arizona , 732 F.3d 1006 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALLE DEL SOL INCORPORATED; No. 12-17152
COALICION DE DERECHOS
HUMANOS; UNITED FOOD AND D.C. No.
COMMERCIAL WORKERS 2:10-cv-01061-
INTERNATIONAL UNION; BORDER SRB
ACTION NETWORK; JIM SHEE;
UNKNOWN PARTY, Named as Jane
Doe #3 in Amended Complaint; OPINION
JOHN DOE #1, proceeding under
pseudonym; LUZ SANTIAGO;
ARIZONA SOUTH ASIANS FOR SAFE
FAMILIES; JAPANESE AMERICAN
CITIZENS LEAGUE; LOCAL 5 SERVICE
EMPLOYEES INTERNATIONAL UNION;
SOUTHSIDE PRESBYTERIAN CHURCH;
TONATIERRA COMMUNITY
DEVELOPMENT INSTITUTE; C.M., a
minor; ASIAN CHAMBER OF
COMMERCE OF ARIZONA; SERVICE
EMPLOYEES INTERNATIONAL UNION;
ARIZONA HISPANIC CHAMBER OF
COMMERCE; PEDRO ESPINOZA;
MAURA CASTILLO; JOSE ANGEL
VARGAS,
Plaintiffs-Appellees,
v.
2 VALLE DEL SOL V. WHITING
MICHAEL B. WHITING; EDWARD G.
RHEINHEIMER; DAISY FLORES, Gila
County Attorney, in her official
capacity; RICHARD M. ROMLEY,
Maricopa County Attorney, in his
official capacity; MATTHEW J.
SMITH, Mohave County Attorney, in
his official capacity; BRADLEY
CARLYON, Navajo County Attorney,
in his official capacity; SAM
VEDERMAN, La Paz County
Attorney, in his official capacity;
KENNY ANGLE, Graham County
Attorney, in his official capacity;
DEREK D. RAPIER, Greenlee County
Attorney, in his official capacity;
DAVID W. ROZEMA, Esq., Coconino
County Attorney, in his official
capacity; BARBARA LAWALL, Pima
County Attorney, in her official
capacity; JAMES P. WALSH, Pinal
County Attorney, in his official
capacity; GEORGE SILVA, Santa Cruz
County Attorney, in his official
capacity; SHEILA S. POLK, Yavapai
County Attorney, in her official
capacity; JON R. SMITH, Yuma
County Attorney in his official
capacity; JOSEPH DEDMAN, JR.,
Apache County Sheriff, in his
official capacity; BILL PRIBIL,
Coconino County Sheriff, in his
official capacity; ROD ROTHROCK,
VALLE DEL SOL V. WHITING 3
Chief Deputy; JOHN R. ARMER, Gila
County Sheriff, in his official
Capacity; PRESTON J. ALLRED,
Graham County Sheriff, in his
official capacity; STEVEN N.
TUCKER, Greenlee County Sheriff, in
his official capacity; DONALD
LOWERY, La Paz County Sheriff, in
his official capacity; JOSEPH M.
ARPAIO, Maricopa County Sheriff,
in his official capacity; TOM
SHEAHAN, Mohave County Sheriff,
in his official capacity; KELLY
CLARK, Navajo County Sheriff, in
his official capacity; CLARENCE W.
DUPNIK, Pima County Sheriff, in his
official capacity; PAUL R. BABEU,
Pinal County Sheriff, in his official
capacity; TONY ESTRADA, Santa
Cruz County Sheriff, in his official
capacity; STEVE WAUGH, Yavapai
County Sheriff, in his official
capacity; RALPH OGDEN, Yuma
County Sheriff, in his official
capacity,
Defendants,
and
STATE OF ARIZONA; JANICE K.
BREWER,
Intervenor-Defendants – Appellants.
4 VALLE DEL SOL V. WHITING
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
April 2, 2013—San Francisco, California
Filed October 8, 2013
Before: John T. Noonan, Richard A. Paez,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge Paez;
Partial Concurrence and Partial Dissent by Judge Bea
SUMMARY*
Civil Rights
The panel affirmed the district court’s grant of a
preliminary injunction in an action challenging Arizona
Revised Statutes § 13-2929, which attempts to criminalize the
harboring and transporting of unauthorized aliens within the
state of Arizona.
The panel first held that an individual plaintiff, pastor Luz
Santiago, and the organizational plaintiffs had standing to
challenge Ariz. Rev. Stat. § 13-2929. The panel determined
that Santiago had established a credible threat of prosecution
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VALLE DEL SOL V. WHITING 5
and that the organizational plaintiffs had shown that their
missions had been frustrated and their resources diverted as
a result of § 13-2929.
The panel held that the statute as written was void for
vagueness under the Due Process Clause because one of its
key elements—being “in violation of a criminal
offense”—was unintelligible. The panel further held that the
provision which attempted to criminalize the harboring and
transporting of unauthorized aliens, however it was
interpreted, was preempted by federal law and thus invalid
under the Supremacy Clause. The panel concluded that the
district court did not abuse its discretion in holding that
plaintiffs established the elements necessary to grant a
preliminary injunction.
Concurring in part and dissenting in part, Judge Bea
stated that he concurred with the majority regarding standing
and the void for vagueness doctrine, as well as its holding that
the district court did not abuse its discretion in holding that
plaintiffs established the elements necessary to grant a
preliminary injunction. Judge Bea dissented from Part III of
the majority opinion, stating that because this case was
resolved on other grounds, namely vagueness, the court
should not have reached the preemption issue.
6 VALLE DEL SOL V. WHITING
COUNSEL
Kelly A. Kszywienski (argued), John J. Bouma and Robert A.
Henry, Snell & Wilmer L.L.P, Phoenix, Arizona; Joseph
Sciarrotta, Jr., Office of Governor Janice K. Brewer, Phoenix,
Arizona; Thomas C. Horne, Michael Tryon and Evan Hiller,
Office of the Attorney General for the State of Arizona,
Phoenix, Arizona, for Intervenor-Defendants–Appellants.
Omar C. Jadwat (argued) and Dror Ladin, American Civil
Liberties Union, New York, New York; Thomas A. Saenz,
Victor Viramontes and Nicholás Espiritu, Mexican American
Legal Defense and Educational Fund, Los Angeles,
California; Linton Joaquin, Karen C. Tumlin, Nora A.
Preciado, Melissa S. Keaney and Alvaro M. Huerta, National
Immigration Law Center, Los Angeles, California; Nina
Perales, Mexican American Legal Defense and Educational
Fund, San Antonio, Texas; Cecillia D. Wang, American Civil
Liberties Union, San Francisco, California; Chris Newman
and Jessica Karp, National Day Labor Organizing Network,
Los Angeles, California; Justin Cox, American Civil Liberties
Union, Atlanta, Georgia; Laboni Hoq, Maya Roy and
Carmina Ocampo, Asian Pacific American Legal Center, Los
Angeles, California; Daniel J. Pochoda, James Duff Lyall and
Kelly Joyce Flood, ACLU Foundation of Arizona, Phoenix,
Arizona; Marita Etcubañez and Jessica Chia, Asian American
Justice Center, Washington, D.C.; Stephen P. Berzon and
Jonathan Weissglass, Altshuler Berzon LLP, San Francisco,
California; Aaron Leiderman, Munger, Tolles & Olson LLP,
San Francisco, California; Daniel R. Ortega, Ortega Law
Firm, P.C., Phoenix, Arizona; Bradley S. Phillips, Joseph J.
Ybarra, Benjamin J. Maro, Lika C. Miyake and Margaret G.
Ziegler, Munger, Tolles & Olson LLP, Los Angeles,
California, for Plaintiffs-Appellees.
VALLE DEL SOL V. WHITING 7
Mark B. Stern (argued), Stuart F. Delery, John S. Leonardo,
Beth S. Brinkmann, Michael P. Abate, Benjamin M. Schultz,
Daniel Tenny and Jeffrey E. Sandberg, United States
Department of Justice, Washington, D.C., for Amicus Curiae
United States of America.
Lawrence J. Joseph, Washington, D.C, for Amicus Curiae
Eagle Forum Education & Legal Defense Fund.
Michael M. Hethmon and Garrett Roe, Immigration Reform
Law Institute, Washington, D.C.; Kris W. Kobach, Kobach
Law, LLC, Kansas City, Kansas, for Amicus Curiae
Immigration Reform Law Institute.
Stephen Nickelsburg, Carla Gorniak and Erin Louise Palmer,
Clifford Chance US LLP, Washington, D.C.; Henry L.
Solano, Wilson Elser Moskowitz Edelman & Dicker, Denver,
Colorado, for Amicus Curiae United Mexican States.
OPINION
PAEZ, Circuit Judge:
Plaintiffs challenge Arizona Revised Statutes § 13-2929,
which attempts to criminalize the harboring and transporting
of unauthorized aliens within the state of Arizona.1 The
1
We use the term “unauthorized aliens” to refer to aliens who have
entered or are present in the United States in violation of federal
immigration law. This is the same convention that Arizona uses through
out its briefs on appeal. The plaintiffs use the term “unauthorized
immigrant,” but, as the Third Circuit noted in Lozano v. City of Hazelton,
8 VALLE DEL SOL V. WHITING
district court granted the plaintiffs’ motion for a preliminary
injunction with respect to this provision on the basis that
§ 13-2929 is preempted by federal law. Arizona appealed.
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. We also find that the provision, however it is
interpreted, is preempted by federal law and thus invalid
under the Supremacy Clause. Therefore, we affirm the
district court’s grant of a preliminary injunction.
BACKGROUND
This case arises from the extensive litigation regarding
Arizona’s 2010 Senate Bill 1070 (“S.B. 1070”). S.B. 1070,
which is comprised of a variety of immigration-related
provisions, was passed in response to the growing presence
of unauthorized aliens in Arizona. The stated purpose of
S.B. 1070 is “to make attrition through enforcement the
public policy of all state and government agencies in
Arizona.” S.B. 1070 § 1. It does so by creating “a variety of
immigration-related state offenses and defin[ing] the
immigration-enforcement authority of Arizona’s state and
local law enforcement officers.” United States v. Arizona,
641 F.3d 339, 344 (9th Cir. 2011), aff’d in part, rev’d in part,
132 S. Ct. 2492 (2012).
The subject of this appeal is Ariz. Rev. Stat. § 13-2929,
which was contained in section 5 of S.B. 1070. Section 13-
No. 07-3531, 2013 WL 3855549 at *1 n.1 (3d. Cir. July 26, 2013), in the
context of a statute such as § 13-2929 the term “alien” is more precise.
VALLE DEL SOL V. WHITING 9
2929 attempts to criminalize2 transporting, concealing,
harboring, or attempting to transport, conceal, or harbor an
unauthorized alien, at least under certain circumstances. It
also seeks to criminalize inducing or encouraging an
unauthorized alien to come to or reside in Arizona. The full
relevant text of the provision is reproduced here:
A. It is unlawful for a person who is in
violation of a criminal offense to:
1. Transport or move or attempt to transport
or move an alien in this state, in furtherance
of the illegal presence of the alien in the
United States, in a means of transportation 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
law.
2. Conceal, harbor or shield or attempt to
conceal, harbor or shield an alien from
detection in any place in this state, including
any building or any means of transportation,
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
law.
3. Encourage or induce an alien to come to or
reside in this state if the person knows or
recklessly disregards the fact that such
2
As will be discussed in more detail, infra, the statute as written fails to
clearly criminalize any conduct.
10 VALLE DEL SOL V. WHITING
coming to, entering or residing in this state is
or will be in violation of law.
Ariz. Rev. Stat. § 13-2929(A). A violation of § 13-2929 is a
class one misdemeanor carrying a fine of at least one
thousand dollars. § 13-2929(F). A violation involving “ten
or more illegal aliens” is a class 6 felony carrying a minimum
fine of one thousand dollars for each alien involved. Id. The
only exemptions to the statute are for child protective service
workers, first responders, ambulance attendants, and
emergency medical technicians acting in their official
capacities. § 13-2929(E).
In order to place this appeal in context, we review some
of the procedural history of the relevant litigation surrounding
S.B. 1070. Before S.B. 1070 went into effect, both the
private plaintiffs in the instant case and the United States,
separately, filed suit challenging various provisions of the
bill. As a result of that litigation, the district court
preliminarily enjoined four provisions of S.B. 1070—sections
2(B), 3, 5(C), and 6—on preemption grounds. United States
v. Arizona, 703 F. Supp. 2d 980, 987 (D. Ariz. 2010). The
United States also challenged the provision that is the subject
of this appeal, Ariz. Rev. Stat. § 13-2929, not on the basis of
preemption, but on the grounds that it was an improper
regulation of immigration and violated the Dormant
Commerce Clause. The district court rejected this challenge
to § 13-2929. Id. at 1003–04. Therefore, § 13-2929 went
into effect on July 29, 2010.
Arizona appealed the district court’s preliminary
injunction. We affirmed, concluding that the provisions were
preempted by federal immigration law. Arizona, 641 F.3d at
366. The Supreme Court affirmed our decision with respect
VALLE DEL SOL V. WHITING 11
to sections 3, 5(C), and 6, concluding that those three
provisions were preempted by federal law. United States v.
Arizona, 132 S. Ct. 2492, 2510 (2012). With respect to
section 2(B), the Supreme Court reversed, concluding that the
provision may be interpreted by the Arizona courts in a
manner that survives constitutional scrutiny. Id. It left open
the possibility of further preemption and constitutional
challenges to section 2(B) as interpreted and applied. Id.After the Supreme Court’s decision in Arizona, the
plaintiffs in this case renewed their motion for a preliminary
injunction against section 2(B) of S.B. 10703 and Ariz. Rev.
Stat. § 13-2929. The district court denied the plaintiffs’
motion with respect to section 2(B), relying on the reasoning
provided by the Supreme Court in Arizona, which it
interpreted as providing “clear direction . . . that [s]ubsection
2(B) cannot be challenged further on its face before the law
takes effect.” The plaintiffs voluntarily dismissed their
appeal of that ruling.
The plaintiffs’ challenge to § 13-2929 differs from the
United States’ prior challenge because it is based on field and
conflict preemption. The district court granted the
preliminary injunction against § 13-2929, finding it both field
and conflict preempted by federal immigration law. Arizona
now appeals that ruling arguing that the plaintiffs do not have
standing to challenge § 13-2929, and, if they do, they cannot
3
The plaintiffs in this case sought a preliminary injunction enjoining
enforcement of section 2(B) on the basis of Equal Protection and Fourth
Amendment challenges to the provision, not brought by the United States
in its case, which focused solely on preemption. The plaintiffs also argued
that the record in this case, substantially more developed than the record
in Arizona, sufficiently established preemption notwithstanding the
Supreme Court’s decision in Arizona.
12 VALLE DEL SOL V. WHITING
demonstrate a likelihood of success on the merits or the other
non-merits elements required for injunctive relief.
STANDARD OF REVIEW
We review de novo questions of Article III justiciability,
including standing. Porter v. Jones, 319 F.3d 483, 489 (9th
Cir. 2003).
We review the district court’s grant of a preliminary
injunction for abuse of discretion. Sw. Voter Registration
Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003).
A court abuses it discretion when it applies an incorrect legal
rule or relies upon “a factual finding that [is] illogical,
implausible, or without support in inference that may be
drawn from the record.” United States v. Hinkson, 585 F.3d
1247, 1263 (9th Cir. 2009).
ANALYSIS
I. STANDING
On appeal, Arizona argues that neither the individual
plaintiff, Luz Santiago, nor the organizational plaintiffs have
standing to challenge § 13-2929. Since the question of
constitutional standing “is not subject to waiver,” we must
first “ensure that [a] plaintiff has Article III standing.”
Catholic League for Religious & Civil Rights v. City & Cnty.
of San Francisco, 624 F.3d 1043, 1065 (9th Cir. 2010)
(internal quotation marks omitted).
In order to demonstrate standing to seek injunctive relief
under Article III,
VALLE DEL SOL V. WHITING 13
a plaintiff must show that he is under threat of
suffering “injury in fact” that is concrete and
particularized; the threat must be actual and
imminent, not conjectural or hypothetical; it
must be fairly traceable to the challenged
action of the defendant; and it must be likely
that a favorable judicial decision will prevent
or redress the injury.
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). We
need only conclude that one of the plaintiffs has standing in
order to consider the merits of the plaintiffs’ claim. See
Comite de Jornaleros de Redondo Beach v. City of Redondo
Beach, 657 F.3d 936, 943–44 (9th Cir. 2011). Nonetheless,
we conclude that both Luz Santiago, the individual plaintiff,
and the organizational plaintiffs have standing to challenge
§ 13-2929.
A. Individual Standing of Luz Santiago
Luz Santiago is a pastor of a church in Mesa, Arizona,
whose congregation is eighty percent unauthorized aliens.4
She “provides transportation and shelter to members of her
congregation,” including those who are unauthorized aliens,
on a daily basis. In particular, she alleges that she often
drives congregants to school, court, and doctor’s
appointments. Importantly, she “provides shelter to persons
who seek sanctuary in her church.” In light of these
activities, Santiago alleges that she fears prosecution under
§ 13-2929. In denying Arizona’s motion to dismiss, the
4
The facts about Santiago’s congregation and her activities within the
church are drawn from the allegations in the complaint. Arizona does not
contest the validity of any of Santiago’s factual allegations.
14 VALLE DEL SOL V. WHITING
district court concluded that “Santiago’s allegations are
sufficient to demonstrate a reasonable likelihood that [Ariz.
Rev. Stat.] § 13-2929 could be enforced against her.” We
agree and therefore hold that Santiago has standing to
challenge § 13-2929.
It is well-established that, although a plaintiff “must
demonstrate a realistic danger of sustaining a direct injury as
a result of a statute’s operation or enforcement,” a plaintiff
“does not have to await the consummation of threatened
injury to obtain preventive relief.” Babbitt v. United Farm
Workers, 444 U.S. 289, 298 (1979) (internal quotation marks
omitted). Thus, Santiago need not await prosecution to
challenge § 13-2929. Id. (“[I]t is not necessary that [the
plaintiff] first expose himself to actual arrest or a prosecution
to be entitled to challenge [the] statute that he claims deters
the exercise of his constitutional rights.”) (internal quotation
marks omitted). “[I]t is ‘sufficient for standing purposes that
the plaintiff intends to engage in a ‘course of conduct
arguably affected with a constitutional interest’ and that there
is a credible threat that the provision will be invoked against
the plaintiff.’” Ariz. Right to Life Political Action Comm. v.
Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (quoting LSO,
Ltd. v. Stroh, 205 F.3d 1146, 1154–55 (9th Cir. 2002)
(quoting Babbitt, 442 U.S. at 298)).
Santiago has established a credible threat of prosecution
under this statute, which she challenges on constitutional
grounds.5 She alleges that she provides, and plans to continue
5
Arizona argues that Santiago does not have standing because she has
not been prosecuted, or directly threatened with prosecution, by authorities
in the past two years. But as discussed above, plaintiffs do not have to
await prosecution to challenge unconstitutional statutes. In Thomas v.
VALLE DEL SOL V. WHITING 15
to provide, shelter and transportation to her congregants, most
of whom are unauthorized aliens, on a daily basis. Her
actions, therefore, “fall within the plain language of [§ 13-
2929’s] prohibitions on transporting [and] harboring . . .
undocumented immigrants.” Ga. Latino Alliance for Human
Rights v. Gov. of Georgia, 691 F.3d 1250, 1258 (11th Cir.
2012) (holding that an immigration attorney providing
services to unauthorized aliens had individual standing to
bring a pre-enforcement challenge to a practically identical
provision in Georgia) [hereinafter GLAHR]. Because the
injury alleged—a credible threat of prosecution under § 13-
2929—is clearly traceable to § 13-2929, and can be redressed
through an injunction enjoining enforcement of that
provision, Santiago has standing to challenge it. Id. at 1260
(“Each injury is directly traceable to the passage of H.B. 87
[the cognate Georgia law] and would be redressed by
enjoining each provision.”).
Anchorage Equal Rights Commission, we held that we consider, as one of
the factors in “evaluating the genuineness of a claimed threat of
prosecution,” “whether the prosecuting authorities have communicated a
specific warning or threat to initiate proceedings.” 220 F.3d 1134, 1139
(9th Cir. 2000) (en banc). But we have never held that a specific threat is
necessary to demonstrate standing. See Cal. Pro-Life Council, Inc. v.
Getman, 328 F.3d 1088, 1094 (9th Cir. 2003) (“The district court’s
decision implied that absent a threat or at least a warning that California
might prosecute CPLC for its publications, CPLC could not possibly have
suffered an injury-in-fact sufficient to give it standing. . . . Our ruling in
Thomas did not purport to overrule years of Ninth Circuit and Supreme
Court precedent recognizing the validity of pre-enforcement challenges to
statutes infringing upon constitutional rights.”); see also Virginia v. Am.
Booksellers Ass’n, 484 U.S. 383, 393 (1988) (“The State has not suggested
that the newly enacted law will not be enforced, and we see no reason to
assume otherwise.”); Babbit, 442 U.S. at 302 (finding standing where the
plaintiff’s “fear of criminal prosecution . . . is not imaginary or wholly
speculative” even though the penalty “has not yet been applied and may
never be applied”).
16 VALLE DEL SOL V. WHITING
Arizona argues that Santiago has not established a
credible threat of prosecution for two reasons. First, Arizona
argues that § 13-2929 only punishes the transportation or
harboring of unauthorized aliens where the individual is
committing some other predicate criminal offense, and
Santiago has not alleged an intent to commit any other
criminal offense. For the reasons discussed below, infra at
section II, we do not believe that the text of the statute that
supposedly imposes this requirement—“in violation of a
criminal offense”—has any substantive content that would
make prosecution of Santiago any less likely. For the
purposes of our standing analysis, however, we use the
interpretation asserted by Arizona because it appears to be the
interpretation that Arizona law enforcement, which is charged
with enforcing the law, has adopted.6 If Santiago has alleged
a likelihood of violating § 13-2929 as interpreted by Arizona
law enforcement, then she has alleged a credible threat of
prosecution.
Thus, even assuming the statute includes a predicate
criminal offense requirement, Santiago has still alleged a
credible threat of prosecution. First, in violating § 13-2929,
Santiago will likely also be violating the federal harboring
statute, 8 U.S.C. § 1324, which also criminalizes the
harboring and transporting of unauthorized aliens with
6
See Arizona Peace Officer Standards & Training Board, Support Law
Enforcement and Safe Neighborhood Act Training Course 29 (“[B]efore
I go to the first section let me just tell you that all three sections of the
statute have a preliminary requirement. The person who is the suspect in
the case, who you are focused on, has to be in violation of a criminal law
at the time that they commit one of these three additional offenses [listed
in Ariz. Rev. Stat. § 13-2929].”).
VALLE DEL SOL V. WHITING 17
practically identical provisions.7 Notably, Arizona does not
contend that a violation of the federal harboring statute would
not satisfy the predicate criminal offense element. Second,
the breadth of the supposed predicate criminal offense
provision, which includes a violation of any federal or state
statute, defeats any claim that the provision narrows the scope
of the law sufficiently to deprive Santiago of standing. In
GLAHR, the Eleventh Circuit addressed an identical provision
in a similar statute and found the predicate criminal provision
too broad to have any constitutionally significant effect on the
likelihood of prosecution: “We do not agree with the State
officers that the probability of an officer’s finding of probable
cause for any violation of state or federal law is comparable
to the likelihood of the ‘sequence of individually improbable
events’ held to be speculative in Lyons.” 691 F.3d at 1259
(quoting Fla. State Conference of the NAACP v. Browning,
522 F.3d 1153, 1162 (11th Cir. 2008)). We agree with the
Eleventh Circuit.
Second, Arizona argues that Santiago has not alleged an
intent to violate § 13-2929 (or 8 U.S.C. § 1324 for purposes
of the predicate criminal offense element) because she has not
alleged an “inten[t] to assist [any] alien in violating the
federal immigration laws.” Arizona contends that the text in
§ 13-2929 (which mirrors 8 U.S.C. § 1324) that criminalizes
transporting an unauthorized alien “in furtherance of the
illegal presence of the alien in the United States” and the
harboring of an unauthorized alien “from detection” clearly
imposes a requirement that the individual actually intend to
help the alien violate the federal immigration laws. We
disagree.
7
Section 1324 only differs from § 13-2929 in two ways, discussed infra,
neither of which would apply Santiago’s alleged activities.
18 VALLE DEL SOL V. WHITING
Section 13-2929 does not clearly include an intent
requirement with respect to the “furtherance of illegal
presence” or shielding “from detection” elements of the
crime. The statute could be read to prohibit providing shelter
that shields an alien from detection by immigration officials
or transporting an alien in a manner that furthers his illegal
presence regardless of the individual’s intent. This is a
reasonable reading of the statute since the statute includes a
knowledge requirement with respect to the alien’s
immigration status. See Ariz. Rev. Stat. § 13-2929(A)
(criminalizing these acts only 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 Arizona legislature clearly knew how to include
a scienter requirement but chose not to phrase the statute to
impose a “purposefully” mens rea requirement with respect
to the “in furtherance of the illegal presence” or “from
detection” elements.8 Thus, an individual who knowingly or
recklessly provides transportation and shelter to unauthorized
aliens, as Santiago does, can allege a credible threat of
prosecution under § 13-2929 without alleging a specific intent
to assist an unauthorized alien in violating the federal
immigration laws.9
8
Although Arizona opines that the statute will be interpreted to impose
such a requirement, there is no evidence that this is anything more than a
litigation position. Arizona has not produced any evidence that Arizona
law enforcement or Arizona courts have interpreted or will interpret the
provision in this manner.
9
Arizona attempts to bolster its intent argument by referencing cases
where federal courts have interpreted the text of 8 U.S.C. § 1324 to
require an intent to assist aliens in violating the federal immigration laws.
See United States v. You, 382 F.3d 958, 966 (9th Cir. 2004) (approving a
jury instruction that requires the jury to find that the defendant acted with
VALLE DEL SOL V. WHITING 19
In any event, even if the statute does include an intent
requirement, Santiago’s statement that she “provides shelter
to persons who seek sanctuary in her church” would be
sufficient to allege that she intends to shield those persons
from detection.10 For the foregoing reasons, Santiago has
standing to challenge § 13-2929.
“the purpose of avoiding [the aliens’] detection by immigration
authorities”). The Arizona state courts are not, however, bound by federal
interpretations of federal law when interpreting their own state harboring
provision. Nor is the federal interpretation adopted in You entirely stable.
In United States v. Costello, the federal government argued that
“harboring” under 8 U.S.C. § 1324 should be defined broadly to include
a defendant who has allowed her boyfriend, an unauthorized alien, to live
with her. 666 F.3d 1040 (7th Cir. 2012). The government argued that
“harboring” simply meant “to house a person.” Id. at 1043. While the
Seventh Circuit ultimately determined that the statute should require more,
it cited to several other cases that have defined harboring more broadly to
include simple sheltering. Id. at 1049–50 (citing United States v. Acosta
de Evans, 531 F.2d 428, 430 (9th Cir. 1976) (“We believe that [the
purpose of the statute] is best effectuated by construing ‘harbor’ to mean
‘afford shelter to’ and so hold.”); United States v. Kim, 193 F.3d 567,
573–74 (2d Cir. 1999)).
Given the foregoing, there is a reasonable probability that Arizona
law enforcement and courts will interpret both the federal and state
statutes broadly and find that an individual violates § 13-2929 whenever
she knowingly or recklessly affords shelter to or transports an
unauthorized alien.
10
Sanctuary is commonly defined as a “place of refuge or asylum.”
Sanctuary, T he American Heritage Dictionary,
http://www.ahdictionary.com/word/search.html?q=sanctuary (last visited
Sept. 21, 2013).
20 VALLE DEL SOL V. WHITING
B. Organizational Standing
We also hold that the organizational plaintiffs have
standing to challenge § 13-2929. An organization has “direct
standing to sue [when] it show[s] a drain on its resources
from both a diversion of its resources and frustration of its
mission.” Fair Hous. Council of San Fernando Valley v.
Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)
(quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 905
(9th Cir. 2002)). An organization “cannot manufacture the
injury by incurring litigation costs or simply choosing to
spend money fixing a problem that otherwise would not
affect the organization at all. It must instead show that it
would have suffered some other injury if it had not diverted
resources to counteracting the problem.” La Asociacion de
Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083,
1088 (9th Cir. 2010).
Southside Presbyterian Church (“Southside”), Border
Action Network (“BAN”), and Arizona South Asians for Safe
Families (“ASASF”) have established standing under this
standard. The declaration provided by Southside’s pastor
establishes that (1) the church runs a homeless program and
“Samaritans” program, both of which offer transportation and
shelter to unauthorized aliens, and therefore reasonably fears
that its volunteers will be deterred from participating in light
of § 13-2929’s prohibitions and (2) it will be required to
divert resources to educate its members and counteract this
frustration of its mission. Likewise, BAN’s executive
director’s declaration establishes that, as part of its regular
activities, its staff buses members, many of whom are
unauthorized aliens, to various organizational functions.
Therefore, BAN reasonably fears that its staff will be subject
to investigation or prosecution under the statute and may be
VALLE DEL SOL V. WHITING 21
deterred from conducting these functions, which would
frustrate its organizational mission. Moreover, because of
BAN’s members’ overwhelming concerns about the effects
and requirements of S.B. 1070, BAN has been forced to
divert staff and resources to educating their members about
the law. Finally, ASASF’s answers to defendant’s
interrogatories show that it too has had to divert resources to
educational programs to address its members’ and volunteers’
concerns about the law’s effect.
We conclude that the organizational plaintiffs have
clearly shown that S.B. 1070, and § 13-2929 in particular, has
“perceptibly impaired” their ability to carry out their
missions. Havens Realty Corp. v. Coleman, 455 U.S. 363,
379 (1982); see also Lopez v. Candaele, 630 F.3d 775, 785
(9th Cir. 2010) (“[A]t the preliminary injunction stage, a
plaintiff must make a ‘clear showing’ of his injury in fact.”).
Many of the organizational plaintiffs’ core activities involve
the transportation and/or provision of shelter to unauthorized
aliens, and they have diverted their resources to address their
constituents’ concerns about the impact of § 13-2929.
Despite Arizona’s arguments that the organizational
plaintiffs’ statements of injury are too vague to sustain
standing, we have found organizational standing on the basis
of similar organizational affirmations of harm.11 See Fair
11
Arizona also argues that the organizations’ 2010 declarations can no
longer support a finding of standing because they are outdated. But as the
Court explained in Davis v. Fed. Election Comm’n, “[w]hile the proof
required to establish standing increases as the suit proceeds . . . the
standing inquiry remains focused on whether the party invoking
jurisdiction had the requisite stake in the outcome when the suit was
filed.” 445 U.S. 727, 734 (2008). Therefore, it is entirely appropriate for
us to consider the 2010 declarations in determining whether the
organizational plaintiffs had the requisite stake in the case when they filed
22 VALLE DEL SOL V. WHITING
Hous. Council of San Fernando Valley, 666 F.3d at 1219(finding standing at the preliminary injunction stage based on
FHC’s statements that it “investigated Roommate’s alleged
violations and, in response, started new education and
outreach campaigns targeted at discriminatory roommate
advertising”); see also Smith v. Pac. Props & Dev. Corp.,
348 F.3d 1097, 1105 (9th Cir. 2004) (finding standing where
an organization alleged that “in order to monitor the
violations and educate the public regarding the
discrimination, [it] has had . . . to divert its scarce resources
from other efforts . . . to benefit the disabled community in
other ways”). Because the organizational plaintiffs have
shown that their missions have been frustrated and their
resources diverted as a result of § 13-2929, they have
standing to challenge it.
their claim. Although Arizona is correct that “an actual controversy must
be extant at all stages of review, not merely at the time the complaint is
filed,” that inquiry goes to mootness rather than standing. See Friends of
the Earth, Inc. v. Laidlaw Envtl. Services, 528 U.S. 167, 190–92 (2000)
(discussing the important distinction between standing and mootness). A
case “becomes moot only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.” Chafin v. Chafin,
133 S. Ct. 1017, 1023 (2013) (internal quotation marks omitted); see also
San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1159 (9th
Cir. 2002) (“To establish mootness, a defendant must show that the court
cannot order any effective relief. Defendants claiming mootness must
satisfy a heavy burden of persuasion.” (internal citations and quotation
marks omitted)). Arizona has not shown, or attempted to show, that this
court could not order any effective relief. Therefore, its claims regarding
plaintiffs’ current stake in the case as opposed to their stake at the time of
filing are misplaced.
VALLE DEL SOL V. WHITING 23
II. VAGUENESS
“It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly defined.”
United States v. Backlund, 689 F.3d 986, 996 (9th Cir. 2012)
(quoting United States v. Kim, 449 F.3d 933, 941 (9th Cir.
2006) (quoting Grayned v. City of Rockford, 408 U.S. 104,
108 (1972))) (internal quotation marks omitted). A statute is
void for vagueness if it “fails to give a ‘person of ordinary
intelligence a reasonable opportunity to know what is
prohibited.’” Hunt v. City of Los Angeles, 638 F.3d 703, 712
(9th Cir. 2011) (quoting Grayned, 408 U.S. at 108); see also
United States v. Williams, 553 U.S. 285, 304 (2008). Where
a statute imposes criminal sanctions, “a more demanding
standard of scrutiny applies.” Id. at 712 (internal quotation
marks omitted); see also United States v. Harris, 705 F.3d
929, 932 (9th Cir. 2013) (“For statutes . . . involving criminal
sanctions the requirement for clarity is enhanced.” (internal
quotation marks omitted) (alteration in original)).
Section 13-2929 states that “[i]t is unlawful for a person
who is in violation of a criminal offense” to knowingly or
recklessly transport, conceal, harbor, or shield an
unauthorized alien. We conclude that the phrase “in violation
of a criminal offense” is unintelligible and therefore the
statute is void for vagueness.12
12
The plaintiffs did not originally raise this issue. But in order to
address the plaintiffs’ preemption claim, we must first interpret the
statute’s provisions. In attempting to do so, we are confronted with this
incomprehensible element of § 13-2929. Thus, we resolve the vagueness
issue because it is both “antecedent to . . . and ultimately dispositive of”
the appeal before us. Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990);
see also U.S. Nat’l Bank of Oregon v. Ind. Ins. Agents of Am., Inc.,
24 VALLE DEL SOL V. WHITING
An “offense” is defined by the Arizona criminal code as:
[C]onduct for which a sentence to a term of
imprisonment or of a fine is provided by any
law of the state in which it occurred or by any
law, regulation or ordinance of a political
subdivision of that state and, if the act
occurred in a state other than this state, it
would be so punishable under the laws,
regulations or ordinances of this state or of a
political subdivision of this state if the act had
occurred in this state.
Ariz. Rev. Stat. § 13-105. This accords with the common
usage of the word “offense” to mean “a breach of a law or
rule; an illegal act.” Offense, Oxford U.S. English
Dictionary, http://oxforddictionaries.com/definition/
american_english /offense (last visited Sept. 16, 2013).
Black’s Law Dictionary defines both “offense” and “criminal
offense” as “a violation of the law.” Offense, Black’s Law
Dictionary (9th ed. 2009). In sum, an offense is an action (or,
sometimes, inaction).13 And one cannot violate, or be in
violation of, an action. One can only violate an object, such
as a law or an agreement. See Violate, Oxford U.S. English
508 U.S. 439, 447 (1993) (stating that a court can rule on an antecedent
issue even if “the parties fail to identify and brief [it]”).
13
Although the Arizona criminal code does not define “criminal
offense” generally, the code does define “criminal offense” for purposes
of the crime victims’ rights chapter of the code. Ariz. Rev. Stat. tit. 13,
ch. 40. The definition—“conduct that gives a peace officer or prosecutor
probable cause to believe that a felony, a misdemeanor, a petty offense or
a violation of a criminal ordinance has occurred”—is also framed in terms
of conduct. Ariz. Rev. Stat. § 13-4401.
VALLE DEL SOL V. WHITING 25
Dictionary, http://oxforddictionaries.com/definition/
american_english/violate (defining four different meanings of
the verb “violate,” depending on the type of object—either a
“rule or formal agreement,” “someone’s peace, privacy, or
rights,” “something sacred,” or “someone”).
“In violation of an offense,” an element of § 13-2929,
thus translates to “in violation of a violation of the law,”
which is, of course, nonsensical. While “[s]tatutes need not
be written with ‘mathematical’ precision,” “they must be
intelligible.” Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th
Cir. 2000), amended 247 F.3d 903 (9th Cir. 2000) and
amended 260 F.3d 1159 (9th Cir. 2001). The “violation of an
offense” element of § 13-2929, which has no discernible
meaning, simply cannot meet this test.
“Outside the First Amendment context, a plaintiff alleging
facial vagueness must show that the enactment is
impermissibly vague in all its applications.” Humanitarian
Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1146 (9th
Cir. 2009) (internal quotation marks omitted). Therefore, a
statute is only facially void for vagueness if it “is vague ‘not
in the sense that it requires a person to conform his conduct
to an imprecise but comprehensible normative standard, but
rather in the sense that no standard of conduct is specified at
all.’” Alphonsus v. Holder, 705 F.3d 1031, 1042 (9th Cir.
2013) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 n.7 (1982)). “Such a
provision simply has no core.” Vill. of Hoffman Estates,
455 U.S. at 495 n.7 (emphasis in original); see e.g., Forbes,
236 F.3d at 1012 (concluding that the undefined terms
“experimentation,” “investigation,” and “routine” in the
statute were so ambiguous that the statute did not “establish
any ‘core’ of unquestionably prohibited activities”). Section
26 VALLE DEL SOL V. WHITING
13-2929 is exactly the type of statute that has “no core.” Id.
The element of being “in violation of a criminal offense” is
not simply an “imprecise but comprehensible normative
standard” but rather an incomprehensible element that
provides “no standard of conduct . . . at all.” Id. Therefore,
we hold that the statute is unconstitutionally vague. On this
basis, we affirm the district court’s injunction. Enyart v.
Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153,
1159 (9th Cir. 2011) (“We may affirm the district court on
any ground supported by the record.”).
Arizona makes no claim that “in violation of a criminal
offense” makes any sense as written. Nonetheless, Arizona
argues that we should substitute the phrase “in violation of a
law or statute” for “in violation of a criminal offense”
because this is the “common understanding” of the latter
phrase. But there is no common understanding of the strange
phrase “in violation of an offense.”14 There is only a common
14
Arizona attempts to establish this “common understanding” by
referring to a few cases across the circuits that it argues use the phrase
“violation of an offense.” But, as Arizona acknowledges, these cases
generally cross-reference a particular enumerated offense or set of
offenses. See, e.g., Marshall v. Columbia Lea Reg’l Hosp., 474 F.3d 733,
743 (10th Cir. 2007) (“If a person under arrest for violation of an offense
enumerated in the Motor Vehicle Code . . . .” (quoting N.M. Stat. Ann.
§ 66-8-111(A)). While the language in these off-handed cases is still
grammatically incorrect, the cross-references to specific statutorily created
offenses make clear the courts’ meaning in each of these cases. The
statute here provides no similar cross-reference. It does not, for example,
say “in violation of a criminal offense enumerated in the Arizona criminal
code.”
Even if these cases were not distinguishable on this ground, we doubt
that the use of this incomprehensible phrase by a few courts across the
VALLE DEL SOL V. WHITING 27
understanding of the words “violation” and “offense,” and
those meanings applied to this phrase create a nonsensical
result.
In the alternative, Arizona argues that we should interpret
the statute as they suggest because it is a possible limiting
construction that would save the statute. But the cases
Arizona relies upon are inapposite. They are cases where the
state provided a reasonable narrowing construction to
statutory language amenable to several interpretations. See,
e.g., Broadrick v. Oklahoma, 413 U.S. 601, 617 (1973) (“The
State Personnel Board, however, has construed [§] 818’s
explicit approval of ‘private’ political expression to include
virtually any expression not within the context of active
partisan political campaigning, and the State’s Attorney
General, in plain terms, has interpreted [§] 818 as prohibiting
‘clearly partisan political activity’ only.”); Law Students
Research Council v. Wadmond, 401 U.S. 154 (1971)
(accepting the state authorities’ limited construction of the
terms “form of the government of the United States,”
“belief,” and “loyalty” in approving a rule governing
admission to the New York State bar).
Here, Arizona asks us not to adopt a narrowing
construction, but rather to replace a nonsensical statutory
element with a different element. Rewriting the statute is a
job for the Arizona legislature, if it is so inclined, and not for
this court. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229,
249 (1989); see also Foti v. City of Menlo Park, 146 F.3d
629, 639 (9th Cir. 1998) (“Although we must consider the
City’s limiting construction of the ordinance, we are not
years would be sufficient to give notice of this element’s meaning to the
“person of ordinary intelligence.” Hunt, 638 F.3d at 712.
28 VALLE DEL SOL V. WHITING
required to insert missing terms into the statute or adopt an
interpretation precluded by the plain language of the
ordinance.”). The Arizona legislature knows how to write a
statute requiring the commission of a predicate criminal
offense and could have done so here. See, e.g., Ariz. Rev.
Stat. § 13-1508(A) (“A person commits burglary in the first
degree if such person or an accomplice violates the provisions
of either § 13-1506 or 13-1507 and knowingly possesses
explosives, a deadly weapon or a dangerous instrument in the
course of committing any theft or any felony.”) (emphasis
added); Ariz. Rev. Stat. § 13-2323(B) (“A person commits
assisting a human smuggling organization by committing any
felony offense, whether completed or preparatory, at the
direction of or in association with any human smuggling
organization.”) (emphasis added).
“[A]ny narrowing construction of a state statute adopted
by a federal court must be a reasonable and readily apparent
gloss on the language.” Planned Parenthood of Idaho, Inc.
v. Wasden, 376 F.3d 908, 925 (9th Cir. 2004). Exchanging
the words “a criminal offense” for the words “a law or
statute” is not a “readily apparent gloss” on the statute’s
language.15 As currently drafted, the statute is
15
In considering Arizona’s proposed revision to the statute, “we are
especially mindful of our uncomfortable position as a federal court
construing a state statute.” Planned Parenthood of Idaho, Inc., 376 F.3d
at 932. “When federal courts rely on a ‘readily apparent’ constitutional
interpretation, plaintiffs receive sufficient protection from unconstitutional
application of the statute, as it is quite likely nonparty prosecutors and
state courts will apply the same interpretation. Where federal courts apply
a strained statutory construction, however, the state courts and non-party
prosecutors, not bound by a federal court’s reading of a state statute, are
free to, and likely to, reject the interpretation and convict violators of the
statute’s plain meaning. The result is inadequate relief from
VALLE DEL SOL V. WHITING 29
incomprehensible to a person of ordinary intelligence and is
therefore void for vagueness.
III. PREEMPTION
Even were we to accept Arizona’s proposed interpretation
of § 13-2929, we conclude that the statute is also preempted
by federal law. See United States v. Johnson, 256 F.3d 895,
914 (9th Cir. 2001) (“Panels often confront cases raising
multiple issues that could be dispositive, yet they find it
appropriate to resolve several, in order to avoid repetition of
errors on remand or provide guidance for future cases. Or,
panels will occasionally find it appropriate to offer alternative
rationales for the results they reach.”). Our analysis is guided
by the Supreme Court’s most recent discussion of preemption
principles in Arizona, 132 S. Ct. at 2492, and the three out-of
circuit decisions finding nearly identical provisions in
Alabama, Georgia, and South Carolina preempted by federal
law. Therefore, we also affirm the district court’s order on
this additional ground.
A. Guiding Preemption Principles
The preemption doctrine stems from the Supremacy
Clause. It is a “fundamental principle of the Constitution []
that Congress has the power to preempt state law.” Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000).
There are “three classes of preemption”: express preemption,
field preemption and conflict preemption. United States v.
Alabama, 691 F.3d 1269, 1281 (11th Cir. 2012). “The first,
unconstitutional prosecution for plaintiffs who do not or cannot sue every
conceivable state prosecutor who could institute proceedings against
them.” Id.30 VALLE DEL SOL V. WHITING
express preemption, arises when the text of a federal statute
explicitly manifests Congress’s intent to displace state law.”
Id.; see also Arizona, 132 S. Ct. at 2500–01. Under the
second, field preemption, “the States are precluded from
regulating conduct in a field that Congress, acting within its
proper authority, has determined must be regulated by its
exclusive governance.” Arizona, 132 S. Ct. at 2501. Field
preemption can be “inferred from a framework of regulation
‘so pervasive . . . that Congress left no room for the States to
supplement it’ or where there is a ‘federal interest . . . so
dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject.’” Id. (quoting
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
Third, “even if Congress has not occupied the field, state
law is naturally preempted to the extent of any conflict with
a federal statute.” Crosby, 530 U.S. at 372. Conflict
preemption, in turn, has two forms: impossibility and obstacle
preemption. Id. Courts find impossibility preemption “where
it is impossible for a private party to comply with both state
and federal law.” Id. Courts will find obstacle preemption
where the challenged state law “stands ‘as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.’” Arizona, 132 S. Ct. at 2501(quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
Finally, any direct regulation of immigration—“which is
essentially a determination of who should or should not be
admitted into the country, and the conditions under which a
legal entrant may remain”—is constitutionally proscribed
because the “[p]ower to regulate immigration is
unquestionably exclusive federal power.” DeCanas v. Bica,
424 U.S. 351, 354–55 (1976).
VALLE DEL SOL V. WHITING 31
Analysis of a preemption claim “must be guided by two
cornerstones of [the Supreme Court’s] jurisprudence. First,
‘the purpose of Congress is the ultimate touchstone in every
pre-emption case.’ Second, ‘[i]n all pre-emption cases, and
particularly in those in which Congress has legislated . . . in
a field which the states have traditionally occupied, . . . we
start with the assumption that the historic police powers of
the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.”
Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)) (internal
quotation marks and citations omitted) (alterations in
original). But see United States v. Locke, 529 U.S. 89, 108
(2000) (“[A]n assumption of nonpre-emption is not triggered
when the State regulates in an area where there has been a
history of significant federal presence.” (internal quotation
marks omitted)).
B. § 13-2929 is Field Preempted
As discussed above, field preemption can be inferred
either where there is a regulatory framework “so pervasive
. . . that Congress left no room for the States to supplement it”
or where the “federal interest [is] so dominant that the federal
system will be assumed to preclude enforcement of state laws
on the same subject.” Arizona, 132 S. Ct. at 2501. As the
Supreme Court reiterated in Arizona, the federal government
has “broad, undoubted power over the subject of immigration
and the status of aliens.” Id. at 2498. This authority rests in
part on the federal government’s constitutional power to
“establish an uniform Rule of Naturalization,” U.S. Const.,
Art. I, § 8, cl. 4, but also rests significantly on “its inherent
power as a sovereign to control and conduct relations with
foreign relations.” Id. Federal control over immigration
32 VALLE DEL SOL V. WHITING
policy is integral to the federal government’s ability to
manage foreign relations:
Immigration policy can affect trade,
investment, tourism, and diplomatic relations
for the entire Nation, as well as the
perceptions and expectations of aliens in this
country who seek the full protection of its
laws. Perceived mistreatment of aliens in the
United States may lead to harmful reciprocal
treatment of American citizens abroad.
It is fundamental that foreign countries
concerned about the status, safety, and
security of their nationals in the United States
must be able to confer and communicate on
this subject with one national sovereign, not
the 50 separate States.
Id. (citations omitted). In light of this federal interest,
“[f]ederal governance of immigration and alien status is
extensive and complex.” Id. at 2499. It is within this context
that § 13-2929 must be analyzed.
In Arizona, the Court held that section 3 of S.B. 1070 was
field preempted. It held that the federal plan for alien
registration—which includes requirements for registration,
fingerprints, change of address reporting, and carrying proof
of registration and provides penalties for failure to
register—was a “single integrated and all-embracing system,”
designed as a “harmonious whole,” with “a full set of
standards . . . including the punishment for noncompliance.”
132 S. Ct. at 2501–02. Thus, it concluded that the federal
government “occupie[s] the field of alien registration” and
VALLE DEL SOL V. WHITING 33
“even complementary state regulation is impermissible.” Id.
at 2502.
Section 13-2929 attempts to regulate conduct—the
transportation and/or harboring of unauthorized aliens—that
the federal scheme also addresses. Federal law, as set forth
in 8 U.S.C. § 1324 prohibits a nearly identical set of activities
as § 13-2929. Section 1324 provides, in relevant part:
Any person who—
...
(ii) knowing or in reckless disregard of the
fact that an alien has come to, entered, or
remains in the United States in violation of
law, transports, or moves or attempts to
transport or move such alien within the United
States by means of transportation or
otherwise, in furtherance of such violation of
law;
(iii) knowing or in reckless disregard of the
fact that an alien has come to, entered, or
remains in the United States in violation of
law, conceals, harbors, or shields from
detection, or attempts to conceal, harbor, or
shield from detection, such alien in any place,
including any building or any means of
transportation;
(iv) encourages or induces an alien to come
to, enter, or reside in the United States,
knowing or in reckless disregard of the fact
34 VALLE DEL SOL V. WHITING
that such coming to, entry, or residence is or
will be in violation of law; or
...
shall be punished as provided in subparagraph
(B).
Id. § 1324 (a)(1)(A). The remainder of § 1324 outlines a
detailed set of graduated punishments for violations,
§ 1324(a)(1(B)(i)–(iv), (a)(2)(A)–(B), (a)(3)(A), (a)(4), (b),
prescribes special evidentiary rules, § 1324(b)(3), (d), and
mandates the creation of an educational program on the
penalties for harboring aliens, § 1324(3).
Section 1324 is also part of a larger federal scheme of
criminal sanctions for those who facilitate the unlawful entry,
residence, or movement of aliens within the United States.
See 8 U.S.C. § 1323 (penalizing transportation companies and
persons for bringing aliens to the United States without valid
passports and necessary visas or taking consideration
contingent upon an alien’s admission to the United States);
§ 1327 (penalizing those who aid or assist certain
inadmissible aliens to enter the country); § 1328 (penalizing
those who import aliens for immoral purposes). Aliens
themselves may also be criminally prosecuted for unlawful
entry or reentry into the United States. Id. § 1325 (penalizing
improper entry); § 1326 (penalizing unauthorized reentry
following removal).
Thus, the scheme governing the crimes associated with
the movement of unauthorized aliens in the United States,
like the registration scheme addressed in Arizona (and Hines),
provides “a full set of standards” designed to work as a
VALLE DEL SOL V. WHITING 35
“harmonious whole.” 132 S. Ct. at 2501.16 A version of
§ 1324 has been part of our “extensive and complex,”
Arizona, 132 S. Ct. at 2499, federal immigration scheme for
over a century. United States v. Sanchez-Vargas, 878 F.2d
1163, 1168 (9th Cir. 1989). Its slow evolution over time
demonstrates Congress’s intentional calibration of the
appropriate breadth of the law and severity of the punishment.
Id. at 1168–70. As we explained in Sanchez-Vargas, the
current version of § 1324 “now presents a single
comprehensive ‘definition’ of the federal crime of alien
16
Arizona argues that Gonzales v. Peoria, 722 F.2d 468 (9th Cir. 1983),
already resolved the question of whether federal law on harboring
unauthorized aliens is field preemptive. But Arizona is incorrect.
Gonzales addressed a distinct question from the one raised here. It
considered whether the criminal immigration statutes preempted local law
enforcement arrests for violations of those federal statutes. Within that
context, we wrote:
[T]his case does not concern that broad scheme [of
removal regulation], but only a narrow and distinct
element of it—the regulation of criminal immigration
activity by aliens. The statutes relating to that element
are few in number and relatively simple in their terms.
They are not, and could not be, supported by a complex
administrative structure. It therefore cannot be inferred
that the federal government has occupied the field of
criminal immigration enforcement.
Id. at 475. The foregoing analysis makes perfect sense within the context
of determining the authority of local law enforcement officers to arrest for
violations of the federal criminal immigration statutes. The federal
criminal immigration statutes rarely address the question of arrests and the
section that does explicitly allows for local law enforcement arrests. Thus,
the federal government did not occupy the field with respect to arrests for
violations of these statutes. Gonzales says nothing about whether the
statutory scheme is comprehensive with respect to the substantive
prohibitions of the federal criminal immigration statutes.
36 VALLE DEL SOL V. WHITING
smuggling—one which tracks smuggling and related
activities from their earliest manifestations (inducing illegal
entry and bringing in aliens) to continued operation and
presence within the United States (transporting and harboring
or concealing aliens).” Id. at 1169.
Moreover, in developing the scheme for prohibiting and
penalizing the harboring of aliens, Congress specifically
considered the appropriate level of involvement for the states.
Section 1324(c) allows state and local law enforcement
officials to make arrests for violations of § 1324. Congress
did not, however, grant states the authority to prosecute
§ 1324 violations, but instead vested that power exclusively
in the federal authorities. See 8 U.S.C. § 1329; 18 U.S.C.
§ 3231; see also GLAHR, 691 F.3d at 1258, 1264. Thus, “the
inference from these enactments is that the role of the states
is limited to arrest for violations of federal law.” GLAHR,
691 F.3d at 1264.
The Third, Fourth, and Eleventh Circuits, in cases
addressing similar statutes,17 all recently concluded that the
17
The Georgia law in GLAHR was virtually indistinguishable from the
provision challenged in this appeal. GLAHR, 691 F.3d at 1263. The
Alabama and South Carolina laws were very similar but arguably broader
because they did not include the “violation of a criminal offense” element.
United States v. South Carolina, 720 F.3d 518, 523 (4th Cir. 2013);
Alabama, 691 F.3d at 1277. However, as discussed, this element is
incomprehensible and, even under Arizona’s interpretation, the element
is illusory because a simultaneous violation of the federal harboring law
could suffice.
The City of Hazleton’s ordinance in the Third Circuit case made it
“unlawful for any person or business or entity that owns a dwelling unit
in the City to harbor an illegal alien in the dwelling unit, knowing or in
reckless disregard of the fact that an alien has come to, entered, or remains
VALLE DEL SOL V. WHITING 37
federal scheme on harboring is comprehensive and field
preemptive. Lozano, 2013 WL 3855549 at *14–15; South
Carolina, 720 F.3d at 531–32; Alabama, 691 F.3d at 1288;
GLAHR, 691 F.3d at 1267. Based on the foregoing—the
comprehensive nature of § 1324, its place within the INA’s
larger structure governing the movement and harboring of
aliens, and § 1324(c)’s explicit but limited provision for state
involvement—the Eleventh Circuit concluded that the INA
demonstrates an “overwhelmingly dominant federal interest
in the field.” GLAHR, 691 F.3d at 1264. Because Congress
has dominated the field and “adopted a calibrated framework
within the INA to address this issue,” the Eleventh Circuit
held that any “state’s attempt to intrude into this area is
prohibited.” Id.; see also Alabama, 691 F.3d at 1286 (“Like
the Georgia law at issue in GLAHR, we similarly conclude
that Alabama is prohibited from enacting concurrent state
legislation in this field of federal concern.”).
The Fourth Circuit came to the same conclusion. South
Carolina, 720 F.3d at 531 (“Sections 4(B) and (D) [South
Carolina’s challenged harboring and transportation
provisions] of the Act are field preempted because the vast
array of federal laws and regulations on this subject is ‘so
pervasive . . . that Congress left no room for the States to
supplement it.’” (quoting Arizona, 132 S. Ct. at 2501)).
Unsurprisingly, in addressing a law outlawing renting
housing to unauthorized aliens, the Third Circuit concurred:
“We agree with the Eleventh Circuit and other courts that
have held that ‘the federal government has clearly expressed
in the United States in violation of law.” Lozano, 2013 WL 3855549 at
*12. “‘Harboring’ is broadly defined to include ‘let[ting], leas[ing], or
rent[ing] a dwelling unit to an illegal alien.’” Id. (quoting The Illegal
Immigration Relief Act Ordinance § 5A(1)) (alterations in original).
38 VALLE DEL SOL V. WHITING
more than a ‘peripheral concern’ with the entry, movement,
and residence of aliens within the United States and the
breadth of these laws illustrates an overwhelming dominant
federal interest in the field.’” Lozano, 2013 WL 3855549 at
*14 (quoting GLAHR, 691 F.3d at 1264).18 We also agree.
C. Section 13-2929 is Conflict Preempted
A statute is conflict preempted where it “‘stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.’” Arizona, 132 S. Ct. at
2501 (quoting Hines, 312 U.S. at 67). We conclude that § 13-
2929 is conflict preempted because, although it shares some
similar goals with 8 U.S.C. § 1324, it “interfere[s] with the
careful balance struck by Congress with respect to” the
harboring of unauthorized aliens. Arizona, 132 S. Ct. at
2505. As Arizona reiterated, “a ‘[c]onflict in technique can
be fully as disruptive to the system Congress enacted as
conflict in overt policy.’” Id. (quoting Motor Coach
Employees v. Lockridge, 403 U.S. 274, 287 (1971)); see also
American Ins. Ass’n v. Garamendi, 539 U.S. 396, 427 (2003)
18
See also Garrett v. Escondido, 465 F. Supp. 2d 1043, 1056 (S. D. Cal.
2006) (finding that a harboring provision that prohibited leasing or renting
housing to unauthorized aliens raises “serious concerns in regards to field
preemption” based on 8 U.S.C. § 1324). But see Keller v. City of
Fremont, 719 F.3d 932 (8th Cir. 2013) (“We find nothing in an
anti-harboring prohibition contained in one sub-part of one subsection of
8 U.S.C. § 1324 that establishes a ‘framework of regulation so pervasive
. . . that Congress left no room for the States to supplement it,’ or evinces
‘a federal interest . . . so dominant that the federal system will be assumed
to preclude enforcement of state laws on the same subject.’” (quoting
Arizona, 132 S. Ct. at 2501)). In Keller, a divided panel upheld a housing
ordinance similar to the one challenged in Lozano. For the all the reasons
discussed above, we, along with the Third, Fourth, and Eleventh Circuits,
disagree with Keller’s analysis.
VALLE DEL SOL V. WHITING 39
(finding conflict preemption where the state sought “to use an
iron fist where the President ha[d] consistently chosen kid
gloves”); Crosby, 530 U.S. at 379 n.14 (“Identity of ends
does not end our analysis of preemption.”).
First, the provision of additional and different state
penalties under § 13-2929 for harboring unauthorized aliens
disrupts “the congressional calibration of force.” Crosby, 530
U.S. at 380. Like the additional and distinct penalties section
3 imposed in Arizona, “[t]his state framework of sanctions
creates a conflict with the plan Congress put in place.”
132 S. Ct. at 2503; see also GLAHR, 691 F.3d at 1267 (“The
end result of section 7 is to layer additional penalties atop
federal law in direct opposition to the Court’s direction in
Crosby.”).
Second, § 13-2929 conflicts with the federal scheme by
divesting federal authorities of the exclusive power to
prosecute these crimes. As discussed above, the current
federal scheme reserves prosecutorial power, and thus
discretion, over harboring violations to federal prosecutors.
By allowing state prosecution of the same activities in state
court, Arizona has conferred upon its prosecutors the ability
to prosecute those who transport or harbor unauthorized
aliens in a manner unaligned with federal immigration
enforcement priorities. In other words, “the State would have
the power to bring criminal charges against individuals for
violating a federal law even in circumstances where federal
officials in charge of the comprehensive scheme determine
that prosecution would frustrate federal policies.” Arizona,
132 S. Ct. at 2503; see also GLAHR, 691 F.3d at 1265 (“The
terms of section 7, however, are not conditioned on respect
for the federal concerns or the priorities that Congress has
explicitly granted executive agencies the authority to
40 VALLE DEL SOL V. WHITING
establish.”); Alabama, 691 F.3d at 1287 (same). Section 13-
2929 also gives state courts the power to interpret it,
unconstrained by how federal courts have interpreted the
scope of 8 U.S.C. § 1324.
As the Eleventh Circuit explained:
[I]nterpretation of [state harboring] crimes by
state courts and enforcement by state
prosecutors unconstrained by federal law
threaten the uniform application of the
INA. . . . Given the federal primacy in the
field of enforcing prohibitions on the
transportation, harboring, and inducement of
unlawfully present aliens, the prospect of fifty
individual attempts to regulate immigration-
related matters cautions against permitting
states to intrude into this area of dominant
federal concern.
VALLE DEL SOL V. WHITING 41
GLAHR, 691 F.3d at 1266;19 see also Arizona, 132 S. Ct. at
2501 (“If § 3 of the Arizona statute were valid, every State
could give itself independent authority to prosecute federal
registration violations, ‘diminish[ing] the [Federal
Government]’s control over enforcement’ and ‘detract[ing]
from the integrated scheme of regulation created by
Congress.’” (quoting Wisconsin Dep’t of Indus. v. Gould Inc.,
475 U.S. 282, 288–89 (1986))); see also Villas at Parkside
Partners v. City of Farmers Branch, No. 10-10751, 2013 WL
3791664 at *5 (5th Cir. July 22, 2013) (concluding that an
ordinance criminalizing renting housing to unauthorized
19
Arizona contends that the Eleventh Circuit erred in concluding that the
federal courts have exclusive jurisdiction to “interpret the boundaries of
federal law.” GLAHR, 691 F.3d at 1265. Arizona seemingly argues that
its state courts have concurrent jurisdiction over prosecutions under
8 U.S.C. § 1324. But that proposition is clearly foreclosed by 18 U.S.C.
§ 3231, which grants federal district courts exclusive jurisdiction over
federal crimes.
Although Arizona failed to so argue in its brief, the better argument
is presented by amicus. State courts do have concurrent jurisdiction over
civil RICO claims, which can include violations of 8 U.S.C. § 1324.
Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (“[S]tate courts have concurrent
jurisdiction over civil RICO claims.”); 18 U.S.C. § 1961(1)(F) (including
violations of § 1324 in the definition of “racketeering activity”). But even
this argument misses the mark. By passing a state statute criminalizing
harboring, Arizona has vested its courts with the power to define the
breadth and scope of its own prohibition on harboring unauthorized aliens,
an area of important federal concern, unconstrained by federal priorities.
Thus, although the text of the state and federal statutes is similar,
Arizona’s scheme may significantly differ in practice from the federal
scheme and thus disrupt the uniformity of the federal scheme. A state
court has concurrent jurisdiction over a civil RICO claim concerning a
violation of 8 U.S.C. § 1324. But the federal courts remain the ultimate
arbiters of the meaning of § 1324. The federal courts are not the ultimate
arbiters of the meaning of Arizona’s harboring statute. Therein lies the
difference.
42 VALLE DEL SOL V. WHITING
aliens is conflict preempted because it “giv[es] state officials
authority to act as immigration officers outside the ‘limited
circumstances specified’ by federal law” and “‘interfer[es]
with the careful balance struck by Congress’ with respect to
the harboring of non-citizens here contrary to law” (quoting
Arizona, 132 S. Ct. at 2505–06)).20 In sum, § 13-2929, as
interpreted by Arizona, “create[s] an obstacle to the smooth
functioning of federal immigration law, improperly place[s]
in the hands of state officials the nation’s immigration policy,
and strip[s] federal officials of the authority and discretion
necessary in managing foreign affairs.” South Carolina, 720
F.3d at 531.
The Arizona statute also conflicts with the federal scheme
by criminalizing conduct not covered by the federal harboring
provision. First, Congress explicitly provided a safe harbor
in § 1324 for certain religious activities. 8 U.S.C.
§ 1324(a)(1)(C). The Arizona law provides no such safe
harbor. Therefore, individuals could be prosecuted for
conduct that Congress specifically sought to protect through
the exemption. By seeking to punish conduct that Congress
chose not to punish, the Arizona statute clearly poses an
20
Indeed, the likelihood of differing enforcement priorities is far from
speculative. Under a current executive order, Arizona’s state policy is to
consider young people without official permanent legal status, but who
have been granted deferred action status by the federal government
under the Deferred Action for Childhood Arrivals initiative, to be
“unlawfully present aliens.” Executive Order 2012-06, “Re-Affirming
Intent of Arizona Law in Response to the Federal Government’s Deferred
Action Program,” (Aug. 15, 2012), available at http://azgovernor.gov/
dms/upload/EO_081512_2012-06.pdf. If the state applies this policy to
its enforcement of § 13-2929, it would authorize the prosecution of those
who transport or provide shelter to these young people despite the fact that
the federal government has chosen to allow them to stay, and work, in the
country.
VALLE DEL SOL V. WHITING 43
obstacle to the accomplishment of the “full purposes and
objectives of Congress,” Arizona, 132 S. Ct. at 2501, one of
which was to protect certain religious activities from
prosecution.
Second, § 13-2929(A)(3) criminalizes encouraging or
inducing an alien to come to or reside in Arizona. Section
1324 criminalizes encouraging or inducing an alien to come
to or reside in the United States but it does not penalize
encouraging or inducing aliens, already in the United States,
to travel from state to state or into any particular state.
Therefore, § 13-2929 sweeps more broadly than its federal
counterpart by adding a new category of prohibited activities.
In doing so, it disrupts the uniformity of the federal scheme
because some harboring activities involving unauthorized
aliens are now punishable in Arizona but not elsewhere.
Thus, in addition to disrupting the uniformity of enforcement
by federal authorities, § 13-2929 disrupts the substantive
uniformity of the harboring scheme. It does not “closely
track[ § 1324] in all material respects.” Chamber of
Commerce v. Whiting, 131 S. Ct. 1968, 1981 (2011).
For the foregoing reasons, even were we to adopt
Arizona’s interpretation of § 13-2929, it is conflict preempted
by federal law.
IV . Non-Merits Factors
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res.
Def. Council, 555 U.S. 7, 20 (2008).
44 VALLE DEL SOL V. WHITING
For the reasons discussed in section II and III, we
conclude that the plaintiffs are likely to succeed on the merits.
The district court did not abuse its discretion in its analysis of
the other non-merits factors. As discussed in section I,
Santiago has demonstrated a credible threat of prosecution
under the statute and the organizational plaintiffs have shown
ongoing harms to their organizational missions as a result of
the statute. Thus, the plaintiffs have established a likelihood
of irreparable harm. See GLAHR, 691 F.3d at 1269 (finding
a likelihood of irreparable harm because plaintiffs were
“under the threat of state prosecution for crimes that conflict
with federal law”); see also Arizona, 641 F.3d at 366 (“We
have ‘stated that an alleged constitutional infringement will
often alone constitute irreparable harm.’” (quoting Assoc.
Gen. Contractors v. Coal. For Econ. Equity, 950 F.2d 1401,
1412 (9th Cir. 1991))).
“‘[I]t is clear that it would not be equitable or in the
public’s interest to allow the state . . . to violate the
requirements of federal law, especially when there are no
adequate remedies available.” Arizona, 641 F.3d at 366(quoting Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d
847, 852–53 (9th Cir. 2009) vacated and remanded on other
grounds sub nom. Douglas v. Indep. Living Ctr. Of S. Cal.,
Inc., 123 S. Ct. 1204 (2012) ). Therefore, the district court
did not abuse its discretion in holding that plaintiffs
established the elements necessary to grant a preliminary
injunction.
CONCLUSION
We hold that the individual plaintiff and organizational
plaintiffs have standing to challenge Ariz. Rev. Stat. § 13-
2929. We further hold that § 13-2929 is void for vagueness
VALLE DEL SOL V. WHITING 45
and, in the alternative, preempted by federal law. The district
court’s partial grant of plaintiffs’ motion for a preliminary
injunction is AFFIRMED.
BEA, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority opinion’s holdings regarding
standing and the void for vagueness doctrine, as well as its
holding that “the district court did not abuse its discretion in
holding that plaintiffs established the elements necessary to
grant a preliminary injunction.” Op. at 44. I write separately
to address Part III of the majority’s opinion, from which I
respectfully dissent. Because this case is resolved on other
grounds, namely vagueness, I believe the court should not
reach the preemption issue. See Video Software Dealers
Ass’n v. Schwarzenegger, 556 F.3d 950, 953 (9th Cir. 2009)
aff’d sub nom. Brown v. Entm’t Merchants Ass’n,
131 S. Ct. 2729 (2011) (“Because we affirm the district court
on these grounds, we do not reach two of Plaintiffs’ [other]
challenges to the Act . . . .”).1 And the “cardinal principle of
1
The Plaintiffs in Video Software Dealers filed suit seeking to invalidate
a California statute, “which imposed restrictions and a labeling
requirement on the sale or rental of ‘violent video games’ to minors, on
the grounds that the Act violate[d] rights guaranteed by the First and
Fourteenth Amendments.” Video Software Dealers, 556 F.3d at 953. The
district court granted Plaintiffs’ motion for summary judgment,
invalidating the Act based on the Free Speech Clause and declining to
address Plaintiffs’ vagueness and Equal Protection arguments. Id. at 956.
On appeal, the Ninth Circuit affirmed the district court’s grant of summary
judgment to the Plaintiffs based on their Free Speech claim. Id. at 953.
Because the court resolved the case based on the Free Speech Clause, it
declined to address the Plaintiffs’ additional constitutional claims. Id.46 VALLE DEL SOL V. WHITING
judicial restraint” is that “if it is not necessary to decide more,
it is necessary not to decide more.” PDK Labs. Inc. v. DEA,
362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring
in part and concurring in the judgment), cited in Morse v.
Frederick, 551 U.S. 393, 431 (2007) (Breyer, J., concurring
in the judgment in part and dissenting in part).