Court revives 'harboring' punishment
But appellate judges also rule simply renting to undocumented migrants is not concealment.
A federal appeals court ruled Thursday that Texas can once again enforce a 2015 state law that added criminal penalties for “harboring” or concealing immigrants who are in the United States illegally.
Ten months ago, Senior U.S. District Judge David Alan Ezra blocked Texas from enforcing the anti-harboring provision, which was part of a sweeping border security law known as House Bill 11.
Texas officials had long argued that the law created a new criminal offense that applied only to human traffickers and smugglers.
Ezra, however, said the law improperly placed a wider array of Texans at risk of jail time, including those who sued to block the harboring provision — two landlords, a homeless shelter in Brownsville and a legal-aid organization that serves Central and South Texas families who are in the country illegally.
On Thursday, the 5th U.S. Circuit Court of Appeals overturned Ezra’s ruling and dismissed the lawsuit, saying those who sued “cannot demonstrate a credible threat of prosecution.”
“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,” Judge Jerry Smith wrote for the three-judge panel.
The Mexican American Legal Defense and Educational Fund, which sued to challenge the harboring provision, was cautiously pleased with the ruling, even if it led to the lawsuit’s dismissal.
“The court ruled that our clients are not harboring the undocumented immigrants that they serve,” said Nina Perales, the organization’s vice president for litigation.
“The 5th 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,” Perales said.
“In these days of increased concern that state and local police will take up the duties of federal immigration agents, today’s ruling restricts Texas to only the most limited enforcement of the harboring statute,” she said.
Thursday’s ruling will allow Texas to enforce an HB 11 provision that made it a crime to encourage somebody to enter or remain in the country illegally by harboring or shielding them “with the intent to obtain a pecuniary benefit.”
By charging rent without verifying the immigration status of tenants, the landlords feared the law would apply to them. Likewise, the homeless shelter and legalaid organization, which operates two temporary shelters, feared running afoul of the “pecuniary benefit” restriction because they rely on residents to cook, clean and provide maintenance in exchange for housing.
In its ruling, the appeals court said that, while the term “harbor” can be ambiguous, the law also requires immigrants to be shielded from detection.
“It requires some level of covertness well beyond merely renting or providing a place to live,” the court said.
The appeals court also noted that Steve McCraw, director of the Texas Department of Public Safety, testified that his agency wouldn’t investigate, file charges or enforce the anti-harboring provision against landlords, social services agencies and similar organizations.
Although McCraw’s assurances aren’t binding on local police and prosecutors, the court acknowledged, “DPS has a major role in the administration of HB 11, and testimony from its head ... carries some weight.”
Texas Attorney General Ken Paxton praised the ruling, saying it “will allow the state to fight the smuggling of humans and illegal contraband by transnational gangs and perpetrators of organized crime, not just on the border, but throughout Texas.”