Cruz v. Abbott

• Decision Date: 23 February 2017
• Docket Number: No. 16-50519,16-50519
• Citation: 849 F.3d 594
• Parties: David CRUZ; Valentin Reyes; Jonathan Ryan; Bishop Enrique San Pedro Ozanam Center, Incorporated, Plaintiffs–Appellees, v. Greg ABBOTT, in His Official Capacity as Governor of the State of Texas; Steven C. McCraw, in His Official Capacity as Director of Public Safety; Cynthia Leon, In Her Official Capacity as Member of the Texas Public Safety Commission, Also Known as Cindy; Faith Johnson, in Her Official Capacity as Member of the Texas Public Safety Commission; Manny Flores, in His Official Capacity as Member of the Texas Public Safety Commission; Steven P. Mach, in His Official Capacity as Member of the Texas Public Safety Commission; Randy Watson, in His Official Capacity as Member of the Texas Public Safety Commission, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

849 F.3d 594

David CRUZ; Valentin Reyes; Jonathan Ryan; Bishop Enrique San Pedro Ozanam Center, Incorporated, Plaintiffs–Appellees,

v.Greg ABBOTT, in His Official Capacity as Governor of the State of Texas; Steven C. McCraw, in His Official Capacity as Director of Public Safety; Cynthia Leon, In Her Official Capacity as Member of the Texas Public Safety Commission, Also Known as Cindy; Faith Johnson, in Her Official Capacity as Member of the Texas Public Safety Commission; Manny Flores, in His Official Capacity as Member of the Texas Public Safety Commission; Steven P. Mach, in His Official Capacity as Member of the Texas Public Safety Commission; Randy Watson, in His Official Capacity as Member of the Texas Public Safety Commission, Defendants–Appellants.

No. 16-50519

United States Court of Appeals, Fifth Circuit.

Filed February 23, 2017

Nina Perales, Esq., Marisa Bono, John Paul Salmon, Mexican–American Legal Defense & Educational Fund, San Antonio, TX, for Plaintiffs–Appellees.

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Adam Nicholas Bitter, Esq., Assistant Attorney General, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendants–Appellants.

Before JOLLY, SMITH, and PRADO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendants, who are state officials, appeal a preliminary injunction against the enforcement of a Texas statute prohibiting the harboring of illegal aliens. Because the plaintiffs lack Article III standing, we reverse and render a judgment of dismissal.

I.

In 2015, Texas enacted legislation modifying a section of the Texas Penal Code that deals with human smuggling. Before the 2015 amendments, the Penal Code provided,

Sec. 20.05. SMUGGLING OF PERSONS. (a) A person commits an offense if the person intentionally uses a motor vehicle, aircraft, or watercraft to transport an individual with the intent to:

(1) conceal the individual from a peace officer or special investigator; or

(2) flee from a person the actor knows is a peace officer or special investigator attempting to lawfully arrest or detain the actor.^[1]

The 2015 amendments, part of House Bill 11 ("HB 11"), added a new basis of liability while limiting the statute's reach to those who smuggle persons with "the intent to obtain a pecuniary benefit." The Penal Code now provides,

Sec. 20.05. SMUGGLING OF PERSONS. (a) A person commits an offense if the person, with the intent to obtain a pecuniary benefit, knowingly:

(1) uses a motor vehicle, aircraft, watercraft, or other means of conveyance to transport an individual with the intent to:

(A) conceal the individual from a peace officer or special investigator; or

(B) flee from a person the actor knows is a peace officer or special investigator attempting to lawfully arrest or detain the actor; or

(2) encourages or induces a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection.^[2]

That text, which we refer to as HB 11 § 14(a), is the focus of this dispute.³

Plaintiffs claim that HB 11 exposes them to possible criminal liability. Two of them, David Cruz and Valentin Reyes, rent residential property to persons regardless of immigration status. The other two plaintiffs, Jonathan Ryan and Bishop Enrique San Pedro Ozanam Center, Incorporated ("the Ozanam Center"), provide social services to low-income individuals. Ryan is the Executive Director of the Refugee and Immigrant Center for Education and Legal Services ("RAICES"), which offers temporary shelter and legal assistance to people in need, including illegal aliens. The Ozanam Center is a homeless shelter in Brownsville, Texas, that houses persons regardless of immigration status. Ryan and the Ozanam Center expect the individuals they help to perform routine chores, such as sweeping the floor or taking out the trash.

Plaintiffs sued, claiming that the provisions are preempted by federal immigration law and violate the Fourteenth Amendment's Due Process and Equal Protection Clauses.⁴ Plaintiffs immediately moved for a preliminary injunction to prevent defendants from enforcing HB 11's anti-smuggling provisions. Defendants opposed the motion and moved to dismiss the complaint for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

At the hearing, the district court opined that plaintiffs' conduct "falls right in the heartland of this statute. I mean particularly the individual who rents to and admits that he rents to people that he knows are undocumented aliens.... He could be arrested tomorrow." The court instructed defendants to provide a statement explaining the statute's scope and whether it applied to plaintiffs. Defendant Steven McCraw, the Director of the Texas Department of Public Safety ("DPS"), responded that based on the facts in the pleadings, "DPS officials would not investigate, file criminal charges, or otherwise engage in enforcement activity pursuant to the present version of Section 20.05 of the Texas Penal Code against individuals engaged in such conduct."

The court dismissed the Fourteenth Amendment claims but granted a preliminary injunction on the ground that plaintiffs' preemption arguments were likely to succeed on the merits. Defendants filed this interlocutory appeal under 28 U.S.C. § 1292(a)(1).⁵

II.

The Constitution limits the jurisdiction of the federal courts to "Cases" and "Controversies." U.S. CONST. , Art III, § 2. "The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’ " Susan B. Anthony List v. Driehaus , ––– U.S. ––––, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (footnote omitted) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "To establish standing, a plaintiff must show: (1) it has suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury is fairly traceable to the defendant's conduct; and (3) a favorable judgment is likely to redress the injury." Hous. Chronicle Publ'g Co. v. City of League City , 488 F.3d 613, 617 (5th Cir. 2007).

To satisfy the injury-in-fact requirement, a plaintiff must allege an injury that is "actual or imminent, not conjectural or hypothetical." Whitmore v. Arkansas , 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (citation and internal quotation marks omitted). "An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Susan B. Anthony List , 134 S.Ct. at 2341 (citation and internal quotation marks omitted). But where a plaintiff "has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest ... and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.’ " Babbitt v. United Farm Workers Nat'l Union , 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (quoting Doe v. Bolton , 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) ).

Here, standing is reduced to a question of statutory interpretation. The statute says that a person cannot "knowingly ... encourage [ ] or induce[ ] a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection" in exchange for a "pecuniary benefit." HB 11 § 14(a)(2). Plaintiffs urge us to read "harboring ... from detection" to mean "house" or "shelter" and claim that the provision applies to anyone who "knowingly provid[es] shelter to undocumented immigrants" and receives a "pecuniary benefit" in return. Because the plaintiffs shelter persons without regard to immigration status (and therefore could well be harboring illegal aliens) in return for either money (in the case of the landlords) or labor (in the case of the social-service providers), they say that Section 14(a)(2) applies to them.⁶ The defendants counter that plaintiffs are not violating the statute and therefore face no credible threat of prosecution. Defendants maintain that the statute applies to persons or entities that hide illegal aliens from authorities, not to those who merely shelter them.⁷

We begin with the plain meaning of the statutory text.⁸ It is obvious from the structure that "harboring" and "from detection" must be read together. As used in the statute, "harboring" is a transitive verb—it requires an object, and its object is "that person." The phrase "from detection" modifies "that person." Therefore, "from detection" modifies and is an element of the offense of "harboring that person." Although the definition of "harbor" may be ambiguous in isolation,⁹ when paired with "from detection" it requires some level of covertness well beyond merely renting or providing a place to live.

Plaintiffs advance several theories. They note that though Section 14(a)(1) criminalizes flight from "a peace officer or special investigator," Section 14(a)(2) does not include similarly specific language. That is easily explained, however: The drafters of HB 11 modeled Section 14(a)(2) after 8 U.S.C. § 1324(a)(1)(A)(iii), which has the less-specific "from detection" wording. Section 14(a)(1), which predates HB 11, is not modeled on Section 1324.

Plaintiffs claim that "detection" does not necessarily mean detection by law-enforcement personnel. But that reading renders "from detection" superfluous, given that housing someone always conceals him from detection in the broadest sense of "detection," insofar as outsiders cannot perceive who is inside a given building.¹⁰ Plaintiffs reason that they "harbor" illegal aliens "from detection" by failing to report them to authorities after learning of their...