Fifth Circuit Clears Path for Texas Harboring Law

SAN ANTONIO (CN) – Two Texas landlords and a legal aid group did not prove a credible threat of prosecution under a state law that makes it a felony to harbor undocumented immigrants, the Fifth Circuit ruled Thursday.

A three-judge Fifth Circuit panel overturned a federal injunction that blocked state officials from enforcing Texas House Bill 11. The 2015 law made it a third-degree felony to “harbor” an immigrant, punishable by two to 10 years in prison and a $10,000 fine.

“Because there is no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes ‘harboring…that person from detection,’ we reverse the injunction,” U.S. Circuit Judge Jerry E. Smith wrote for the panel.

The two plaintiff homeowners challenged the law as unreasonable and unconstitutional. They said they rely on income from their rental properties to pay their mortgages and support themselves.

The third plaintiff, Jonathan Ryan, is executive director of the Refugee and Immigrant Center for Education and Legal Services, or RAICES. RAICES provides free and low-cost services to refugees and short-term shelters for refugees who bond out of immigration prisons.

In their original complaint filed in San Antonio federal court last January, all three said they feared criminal prosecution under the state’s harboring law. In April, a federal judge granted their motion for a preliminary injunction, finding that their preemption arguments were likely to succeed on the merits.

But Thursday’s Fifth Circuit ruling found they lacked standing because they failed to show the law would subject them to prosecution.

State officials maintained that the plaintiffs are not violating the law and therefore face no credible threat of prosecution. They also argued that the statute applies to people or entities that hide illegal aliens from authorities, not to those who “merely shelter them.”

“In sum, plaintiffs cannot demonstrate a credible threat of prosecution,” Judge Smith wrote.

The plaintiffs’ attorney Nina Perales with the Mexican American Legal Defense and Education Fund said Thursday afternoon that she considers today’s ruling “a positive result.”

“The court ruled that our clients are not harboring the undocumented immigrants that they serve,” Perales said in a statement to Courthouse News. “The Fifth Circuit provided us with a narrow definition of harboring that will prevent Texas law enforcement officers from arresting humanitarian workers and landlords for simply providing shelter and conducting business with undocumented immigrants.”

Texas Attorney General Ken Paxton said the appeals court ruling will allow the state “to fight the smuggling of humans and illegal contraband.”

“Not just on the border, but throughout Texas,” he said.