Tuesday, October 8, 2013
In Valle del Sol Inc. v. Whiting, the Ninth Circuit, in an opinion by Judge Paez (and joined in full by Judge Noonan) today affirmed the district court’s grant of a preliminary injunction in an action challenging Arizona Revised Statutes § 13-2929, which attempted to criminalize the harboring and transporting of unauthorized aliens within the state of Arizona. See Download Whiting. This is one of a number of laws passed by the Arizona Legislature, including S.B. 1070, designed to bolster enforcement of the immigration laws.
The panel first held that an individual plaintiff, pastor Luz Santiago, and the organizational plaintiffs had standing to challenge the law. The court determined that Santiago had established a credible threat of prosecution and that the organizational plaintiffs had shown that their missions had been frustrated and their resources diverted as a result of § 13-2929.
The court also 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.
Consequently, the court 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. He contended that, because his case was resolved on other grounds, namely vagueness, the court should not have reached the federal preemption issue.