    Case: 16-50519   Document: 00513887269   Page: 1   Date Filed: 02/23/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                              No. 16-50519                    February 23, 2017
                                                                Lyle W. Cayce
                                                                     Clerk


DAVID CRUZ; VALENTIN REYES; JONATHAN RYAN;
BISHOP ENRIQUE SAN PEDRO OZANAM CENTER, INCORPORATED,

                                        Plaintiffs−Appellees,

versus

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.




               Appeal from the United States District Court
                    for the Western District of Texas
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                                     No. 16-50519
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 in-
             vestigator; 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 spe-
                    cial investigator; or
                    (B) flee from a person the actor knows is a peace officer
                    or special investigator attempting to lawfully arrest or

       1Act of May 23, 2011, 82nd Leg., R.S., ch. 223, § 2, sec. 20.05, 2011 Tex. Gen. Laws
799, 799.
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                                       No. 16-50519
                    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 per-
sons regardless of immigration status. The other two plaintiffs, Jonathan
Ryan and Bishop Enrique San Pedro Ozanam Center, Incorporated (“the Oza-
nam 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 assis-
tance to people in need, including illegal aliens. The Ozanam Center is a home-
less shelter in Brownsville, Texas, that houses persons regardless of immigra-
tion 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



       2Act of May 28, 2015, 84th Leg., R.S., ch. 333, § 14, sec. 20.05, 2015 Tex. Gen. Laws
1508, 1514 (codified at Tex. Penal Code § 20.05).
       3 HB 11 also created an offense for “continuous smuggling of persons” (HB 11 § 15(a)
(codified at Tex. Penal Code § 20.06) (“A person commits an offense if, during a period that is
10 or more days in duration, the person engages two or more times in conduct that constitutes
an offense under Section 20.05.”)) and deemed both “smuggling of persons” and “continuous
smuggling of persons” to be prosecutable as “organized criminal activity” if committed “with
the intent to establish, maintain, or participate in a combination or in the profits of a com-
bination or as a member of a criminal street gang” (HB 11 § 16(a)(17) (codified at Tex. Penal
Code § 71.02(a))).
       4 Because we dismiss on standing, we reach none of the substantive issues. One or
more parties who have standing are therefore not precluded from bringing these or other
claims, on whose merits we express no opinion.
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                                     No. 16-50519
injunction to prevent defendants from enforcing HB 11’s anti-smuggling provi-
sions. 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 fail-
ure 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, 134 S. Ct. 2334, 2341 (2014) (footnote omitted) (quoting Lujan



      5  Defendants’ brief claims appellate jurisdiction under 28 U.S.C. § 1291(a)(1), but
there is no such subsection.
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                                  No. 16-50519
v. Defenders of Wildlife, 504 U.S. 555, 560 (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 defen-
dant’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 (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 (1979)
(quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)).

      Here, standing is reduced to a question of statutory interpretation. The
statute says that a person cannot “knowingly . . . encourage[] or induce[] a per-
son 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 “pecuni-
ary 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

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                                        No. 16-50519
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 main-
tain 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 to-
gether. 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


       6 More specifically, according to the plaintiffs’ brief, Cruz and Reyes “have rented to
undocumented immigrants and intend to rent to undocumented immigrants in the future.”
Ryan’s refugee center “provides free and low-cost legal services to underserved immigrant[s].”
The Ozanam Center “provides . . . shelter and . . . housing . . . regardless of . . . immigration
status.”
       7 Although concluding that Section 14(a)(2) applies to plaintiffs, the court noted that
plaintiffs would lack standing if defendants’ interpretation of the statute is correct.
       8 Texas courts aim to give effect to legislative intent, and they “rely on the plain mean-
ing of the text as expressing legislative intent.” Tex. Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d 628, 635 (Tex. 2010) (citation omitted). See Wright v. Ford Motor Co.,
508 F.3d 263, 269 (5th Cir. 2007) (citations omitted) (“When we interpret a Texas statute, we
follow the same rules of construction that a Texas court would apply—and under Texas law
the starting point of our analysis is the plain language of the statute.”).
       9“[H]arboring an illegal alien” is “[t]he act of providing concealment from detection by
law-enforcement authorities or shelter, employment, or transportation to help a noncitizen
remain in the United States unlawfully, while knowing about or recklessly disregarding the
noncitizen’s illegal immigration status.” BLACK’S LAW DICTIONARY 831 (10th ed. 2014).
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                                       No. 16-50519
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” super-
fluous, 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 de-
tection” by failing to report them to authorities after learning of their immigra-
tion status. But, as defendants note, there is a middle ground between actively
hiding someone and reporting him to law enforcement.

       This court interprets the words “harbor, shield, or conceal,” which appear
in a federal immigration statute, to mean that “something is being hidden from
detection.” United States v. Varkonyi, 645 F.2d 453, 456 (5th Cir. Unit A May
1981). 11 We recently reaffirmed our understanding of that language in Villas
at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 529 (5th Cir.



        Texas courts “presume the Legislature selected language in a statute with care and
       10

that every word or phrase was used with a purpose in mind.” Tex. Lottery Comm’n,
325 S.W.3d at 635 (citations omitted).
       11Like the Texas statute, the federal statute includes the phrase “from detection.”
But the placement of “from detection” in the federal statute suggests it may not be modifying
“harbor.” It imposes penalties on anyone who
       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, conceals, harbors, or shields
       from detection, or attempts to conceal, harbor, or shield from detection, such
       alien in any place, including any building or any means of transportation . . . .
8 U.S.C. § 1324(a)(1)(A)(iii). Nevertheless, we read the federal statute as a prohibition on
hiding aliens from authorities rather than as a prohibition against housing them.
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                                        No. 16-50519
2013) (en banc). Although our precedent is not binding on Texas courts when
interpreting Texas statutes, it is reasonable to assume that the legislature was
aware of these decisions. 12 A number of other circuits have interpreted similar
language to suggest that something is being hidden from detection. 13

       Furthermore, defendant McCraw stated in an affidavit that his agency
“would not investigate, file criminal charges, or otherwise engage in enforce-
ment activity” against plaintiffs for “harboring” illegal aliens. As the district
court observed, McCraw’s statement “does not bind county prosecutors or local
law enforcement officers who may choose to enforce section 20.05.” 14 Neverthe-
less, DPS has a major role in the administration of HB 11, and testimony from


       12 At issue in Varkonyi and Villas at Parkside was 8 U.S.C. § 1324, the statute from
which HB 11’s “harboring . . . from detection” phrasing is drawn (though the language is not
identical). Texas courts presume that when the legislature adopts statutory language from
another jurisdiction, it does so with the full knowledge of how that language has been inter-
preted by courts in that jurisdiction. See Tex. Dep’t of Pub. Safety v. Gilbreath, 842 S.W.2d
408, 412 (Tex. App.―Austin 1992, no writ) (“When the legislature adopts a statute from
another jurisdiction it is presumed that the legislature intended to adopt the settled construc-
tion given to the statute by the courts of that jurisdiction.”) (citing State v. Wiess, 171 S.W.2d
848 (Tex. 1943)).
       13  See United States v. McClellan, 794 F.3d 743, 751 (7th Cir. 2015) (“[H]arboring
‘connot[es] . . . deliberately safeguarding members of a specified group from the authorities,
whether through concealment, movement to a safe location, or physical protection.’”) (quoting
United States v. Costello, 666 F.3d 1040, 1044 (7th Cir. 2012)); United States v. Vargas-
Cordon, 733 F.3d 366, 382 (2d Cir. 2013) (“The mere act of providing shelter to an alien, when
done without intention to help prevent the alien’s detection by immigration authorities or
police, is thus not an offense under § 1324(a)(1)(A)(iii).”); DelRio-Mocci v. Connolly Props.,
Inc., 672 F.3d 241, 246 (3d Cir. 2012) (“[T]o the extent that they simply rented apartments to
aliens not lawfully present, the Property Managers cannot be said to have committed the
crime of harboring.”); United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir. 2008) (“We agree
with the Fifth Circuit that the terms ‘shielding,’ ‘harboring,’ and ‘concealing’ under § 1324
encompass conduct ‘tending to substantially facilitate an alien’s remaining in the United
States illegally’ and to prevent government authorities from detecting the alien’s unlawful
presence.”) (quoting United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 (5th Cir. 1982)).
But cf. United States v. Acosta de Evans, 531 F.2d 428, 430 (9th Cir. 1976) (“We believe that
[Section 1324’s] purpose is best effectuated by construing ‘harbor’ to mean ‘afford shelter to’
and so hold.”) (footnote omitted).
       14Defendants make the colorable argument that there is no redressability because,
they contend, plaintiffs did not sue parties with enforcement power. Because we find no
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                                        No. 16-50519
its head confirming that plaintiffs would not be subject to prosecution under
HB 11 carries some weight.

       Two recent circuit court holdings support plaintiffs’ position. In Valle
del Sol Inc. v. Whiting, 732 F.3d 1006, 1015 (9th Cir. 2013), the court held that
a pastor who provided shelter and transportation to illegal aliens had standing
to challenge an Arizona statute that prohibited both transporting an illegal
alien and “conceal[ing], harbor[ing] or shield[ing] . . . an alien from detection.”
In dictum, the court noted that merely sheltering an alien would have been
enough to establish standing. Id. at 1017. In Georgia Latino Alliance for
Human Rights v. Governor of Georgia, 691 F.3d 1250, 1256–58 (11th Cir. 2012)
(“GLAHR”), the court held that an immigration lawyer who “regularly trans-
ports undocumented immigrants to and from court hearings, meets with immi-
grant clients in his law office, gives legal advice to undocumented immigrants
who wish to remain in Georgia, and helps undocumented immigrants to enter
Georgia for court business and hearings” had standing to challenge a statute
that criminalized transporting illegal aliens and “conceal[ing], harbor[ing] or
shield[ing] an illegal alien from detection.”

       But Valle del Sol and GLAHR are distinguishable from the present case.
They concerned statutes that are significantly different from HB 11, and in
both cases, the courts relied in part on statutory language not present in
HB 11. 15 Moreover, in Valle del Sol, the court interpreted 8 U.S.C. § 1324’s


standing, there is no need to decide redressability, about which we express no view.
       15  The statute in Valle del Sol made it unlawful for a person to “[c]onceal, harbor or
shield . . . an alien from detection” but also made it unlawful for a person to “[t]ransport or
move or attempt to transport or move an alien in this state, in furtherance of the illegal
presence of the alien in the United States” or “[e]ncourage or induce an alien to come to or
reside in this state” when that person knows or recklessly disregards the fact that the alien
is in the country illegally. Valle del Sol, 732 F.3d at 1013. The court found that the plaintiffs
had standing because they had provided “transportation and shelter” to illegal aliens. Id.
at 1015, 1018.
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                                       No. 16-50519
harboring language in a way that is inconsistent with this court’s more narrow
construction, pointing to a larger interpretive disagreement. 16

                                             III.
       In sum, plaintiffs cannot demonstrate a credible threat of prosecution.
On the state of this record, they have not hampered authorities from finding
any of the illegal aliens they rent to or serve, nor have they taken steps to help
the aliens evade “detection” by the authorities. 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 and RENDER a judgment of dismissal for want of
jurisdiction.




        The statute in GLAHR imposed criminal liability on any person who “knowingly and
intentionally transports or moves an illegal alien in a motor vehicle for the purpose of fur-
thering the illegal presence of the alien,” “knowingly conceals, harbors, or shields an illegal
alien from detection in any place in [Georgia],” or “knowingly induces, entices, or assists an
illegal alien to enter into [Georgia].” GLAHR, 691 F.3d at 1256. The court found that an
immigration lawyer had standing because he transported aliens, gave them legal advice on
how to stay in Georgia, and helped them enter Georgia for court business and hearings. Id.
at 1258.
       16See Valle del Sol, 732 F.3d at 1017 (suggesting that sheltering an alien in a church
would violate 8 U.S.C. § 1324).
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