Valle del Sol V. Whiting

Arizona Revised Statutes § 13-2929 is void for vagueness and the section criminalizing the harboring and transporting of unauthorized aliens is invalid under the Supremacy Clause as it violates federal law.

This case arose form the controversial Arizona Senate Bill 1070 which passed immigration-related legislation in response to a growing number of unauthorized aliens in Arizona. Specifically, the case involves section 2(B) § 13-2929 of the Arizona Revised Statutes. In United States v. Arizona, the United States was enjoined with private plaintiff Pastor Luz Santiago ("Santiago") and various organizational plaintiffs in challenging the § 13-2929 on preemption grounds. The Supreme Court held that section 2(B) could be interpreted by Arizona courts in a way that survives constitutional scrutiny. After United States v. Arizona, Santiago and various organizational plaintiffs sought a preliminary injunction against § 13-2929 on field and conflict preemption grounds (different than the claim in Arizona). The district court granted the preliminary injunction after finding § 13-2929 was both field and conflict preempted by federal immigration law. Arizona appealed. The issues on appeal were the individual standing of Santiago, the organizational standing of the multiple plaintiffs, and federal law preemption. Regarding Santiago, the panel held that he had shown a credible threat of prosecution and thus met constitutional standing requirements. The panel also held that the organizational plaintiffs had standing as they were able to show that their missions were frustrated and their resources diverted as result of § 13-2929. Regarding preemption, the panel held that the statute was void for vagueness under the Due Process Clause as a key provision addressing the element of "being in violation of a criminal offense" was unintelligible. The panel further held that the statute was conflict preempted in that it conflicted with the immigration plan Congress had put into place, it conflicted by divesting federal authorities with the exclusive right to prosecute, it criminalized activity not covered by the federal harboring provision, and it swept more broadly than federal law by creating a new category of prohibited activities. For those reasons, the court affirmed the district court and found no abuse of discretion. AFFIRMED.