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.
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, ___ U.S. ___, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012).
The subject of this appeal is Ariz.Rev. Stat. § 13-2929, which was contained in section 5 of S.B. 1070. Section 13-2929 attempts to criminalize
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 to sections 3, 5(C), and 6, concluding that those three provisions were preempted by federal law. Arizona v. United States, ___ U.S. ___, 132 S.Ct. 2492, 2510, 183 L.Ed.2d 351 (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. 1070
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 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).
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,
Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (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.
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, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (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.2000) (quoting Babbitt, 442 U.S. at 298, 99 S.Ct. 2301)).
Santiago has established a credible threat of prosecution under this statute, which she challenges on constitutional grounds.
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.
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 practically identical provisions.
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
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.
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.
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 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, 102 S.Ct. 1114, 71 L.Ed.2d 214 (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.
"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, 92 S.Ct. 2294, 33 L.Ed.2d 222 (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, 92 S.Ct. 2294); see also United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (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.
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).
"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, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). "Such a provision simply has no core." Vill. of Hoffman Estates, 455 U.S. at 495 n. 7, 102 S.Ct. 1186 (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 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
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."
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, 93 S.Ct. 2908, 37 L.Ed.2d 830 (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 Civil Rights Research Council v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (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, 109 S.Ct. 2893, 106 L.Ed.2d 195 (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 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
"[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.
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, 120 S.Ct. 2288, 147 L.Ed.2d 352 (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, 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 ...
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, 120 S.Ct. 2288. 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, 61 S.Ct. 399, 85 L.Ed. 581 (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, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976).
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, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)) (internal quotation marks and citations omitted) (alterations in original). But see United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (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 policy is integral to the federal government's ability to manage foreign relations:
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 "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:
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
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,
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 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, 724 F.3d at 317 (quoting GLAHR, 691 F.3d at 1264).
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, 61 S.Ct. 399). 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, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971)); see
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, 120 S.Ct. 2288. 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 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:
GLAHR, 691 F.3d at 1266;
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 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
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, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
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., ___ U.S. ___, 132 S.Ct. 1204, 182 L.Ed.2d 101 (2012)). Therefore, the district court did not abuse its discretion in holding that plaintiffs established the elements necessary to grant a preliminary injunction.
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 and, in the alternative, preempted by federal law. The district court's partial grant of plaintiffs' motion for a preliminary injunction is
Partial Concurrence and Partial Dissent by Judge BEA.
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 1029. 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, ___ U.S. ___, 131 S.Ct. 2729, 180 L.Ed.2d 708
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.
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 years would be sufficient to give notice of this element's meaning to the "person of ordinary intelligence." Hunt, 638 F.3d at 712.
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.
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 in the United States in violation of law." Lozano, 724 F.3d at 314. "`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).
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, 110 S.Ct. 792, 107 L.Ed.2d 887 (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.