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AZ's 'Unintelligible' Immigrant Harboring Statute Voided

By William Peacock, Esq. | Last updated on

Another of Arizona's oft-criticized and oft-litigated immigration statutes has been voided by the court, pending any further appeals.

The section at issue in this appeal, § 13-2929, deals with transporting, concealing, harboring, or shielding an unauthorized alien from detection and applies to "a person who is in violation of a criminal offense." Last year, a district court judge enjoined enforcement of the statute, holding that the plaintiffs had established a high probability of success on their claims that the statute was unconstitutionally vague and preempted by federal laws.

Void for Vagueness

The law falls on mere grammar, it seems, as the majority cited the plain text of the statute, as well as the defined terms in the statute and the dictionary, to determine that the text was actually "unintelligible."

The plain terms of the statute limit its application to "a person who is in violation of a criminal offense," and "offense" is defined both by statute (in a long winded-way) and the dictionary (in a more concise manner, both for "offense" and "criminal offense") as the action of violating the law.

In other words, the statute applies to a person who is in "violation of a violation of the law."

Nonsensical, unintelligible, and void for vagueness.

Preemption, With Dissent

If that wasn't enough (and according to the partial dissent, it was, making preemption analysis superfluous and improper), the majority also held that the state statute overlapped with, and was preempted by, federal immigration laws.

"§ 13-2929 conflicts with the federal scheme by divesting federal authorities of the exclusive power to prosecute these crimes," which becomes an issue where federal authorities decline to prosecute in light of federal enforcement priorities.

The state statute also neglects to make certain exemptions, such as religious activities, provided for by Congress in federal statutes. (One of the plaintiffs here, appropriately, showed standing through caring for her congregation, which is eighty percent illegal immigrants.)

Further Appeals?

Perhaps the panel's eagerness to address preemption was triggered by Arizona's resilience. Other portions of SB1070 were appealed all the way to the Supreme Court, and one wouldn't be surprised to see this case appealed further as well. Why wait for a remand, or for state legislatures to fix their grammatical error, when you can handle preemption today? (Oh yeah, judicial restraint. Sorry Judge Bea.)

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