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Arizona Immigration Law Chucked on Appeal

(CN) - Arizona's vague and poorly written statute that makes harboring and transporting illegal immigrants a crime is not only "unintelligible" but also pre-empted by federal law, the 9th Circuit ruled Tuesday.

The federal appeals court in San Francisco upheld a preliminary injunction against the law, which is being challenged by Phoenix's Southside Presbyterian Church, the Border Action Network, Arizona South Asians for Safe Families, the Coalicion de Derachos Humanos, and dozens of other groups and individuals.

Part of S.B. 1070, the state's controversial set of laws meant to combat illegal immigration - key portions of which the U.S. Supreme Court enjoined last year - the statute at issue, § 13-2929, states that "It is unlawful for a person who is in violation of a criminal offense to" transport illegal immigrants within the state or harbor them from the authorities, among other things.

The plaintiffs claimed that the statute was preempted by federal law, just as many of the provisions of S.B. 1070 were found to be. U.S. District Judge Susan Bolton agreed and issued a preliminary injunction.

On appeal, the state argued that the plaintiffs lacked standing to challenge the law, but the 9th Circuit found that many of the plaintiffs had a legitimate fear of prosecution that would likely hinder their missions to provide care and comfort to the poor and homeless, some of whom are illegal migrants, and to drive parishioners and others to "school, court, and doctor's appointments."

After ruling that the plaintiffs could sue, the three-judge appeals panel found that the statute as written makes no sense, and is therefore void, regardless of its alleged attempts to play in the federal field.

"As currently drafted, the statute is incomprehensible to a person of ordinary intelligence and is therefore void for vagueness," wrote Judge Richard Paez for the panel.

The phrase that dooms the rest of the statute is "in violation of a criminal offense," according to the panel.

"Arizona makes no claim that 'in violation of a criminal offense' makes any sense as written," Paez wrote. "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.' There is only a common understanding of the words 'violation' and 'offense,' and those meanings applied to this phrase create a nonsensical result."

Even if the statute were written more clearly, it is preempted by federal law, the panel further found, setting up a brief dissent by Judge Carlos Bea.

"The provision, however it is interpreted, is preempted by federal law and thus invalid under the Supremacy Clause," Paez wrote.

But Bea argued that the panel, after finding the law too vague to stand, should have stopped there.

Neither Arizona Gov. Jan Brewer nor Attorney General Tom Horne immediately returned requests for comment.


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