Legal Update

Status of Immigration-Related Lawsuits

As we reported in the January 2008 issue of Fair Housing Coach, “What You Can and Can't Do When Checking Applicants' Immigration Status,” the courts have been busy reviewing constitutional challenges to local efforts to regulate illegal immigration through ordinances affecting rental housing. In rulings issued earlier this year, federal courts have struck down ordinances in Pennsylvania and Texas.

Hazleton, Pa.: In September 2010, the federal appeals court struck down two local ordinances that attempted to regulate employment—and the provision of rental housing—to illegal immigrants.

The housing ordinances included a measure that prohibited owners from “harboring” undocumented aliens. Harboring was defined as letting, leasing, or renting a dwelling unit to an illegal alien or permitting the occupancy of a dwelling unit by an “illegal alien” knowingly or in reckless disregard of the fact that the alien has come into, entered, or remained in the United States in violation of law. It provided for a complaint procedure where a Hazleton official, business, or resident could file a complaint. After undergoing a verification process, an owner had to “correct” the violation or face stiff fines and suspension of its rental license.

The second housing measure was a “tenant registration” ordinance, which required apartment dwellers to obtain an occupancy permit from the city—a process that required each resident to prove he or she was a citizen or lawful resident. Under that provision, an owner who allowed an applicant without an occupancy permit to occupy a rental unit also faced stiff fines.

In July 2007, the federal district court ruled that the ordinances were unconstitutional and issued an order permanently preventing the law from taking effect.

In September 2010, the federal appeals court upheld that decision, ruling that the ordinances violated the Constitution's Supremacy Clause. In other words, the housing provisions were in direct conflict with the federal government's exclusive authority to regulate who should or shouldn't be admitted into the country and the conditions under which a legal entrant may remain. The court acknowledged that the ordinances attempted to regulate the presence of aliens only within its city limits—not the entire country—but it didn't make a difference. To be meaningful, the federal government's exclusive control over residence in this country was just that—exclusive—if Hazleton could regulate it as it did here, then so could every other state or locality.

Furthermore, the housing provisions conflicted with the federal scheme—ordering the removal of people from Hazleton based on a snapshot of their current immigration status—rather than based on a federal order of removal as required under federal law. The court said that the ordinance either reflected a complete lack of understanding or a refusal to recognize the complexities of federal immigration law.

The anti-“harboring” provisions were also invalid. Although the city argued that its provisions simply mirrored the federal ban on harboring, the court said that the federal rule has never been interpreted so broadly as to encompass the typical landlord-tenant relationship.

The federal law criminalizes harboring an alien, knowing, or in reckless disregard of the fact that, the alien came to, or remains in, the United States in violation of the law. The law didn't define “harboring,” and the federal courts disagree about what it means. Several courts have ruled that harboring requires some conduct that helps conceal the alien from authorities. Consequently, the court said, “It is highly unlikely that a landlord's renting of an apartment to an alien lacking lawful immigration status could ever, without more, satisfy this definition of harboring. Renting a unit in the normal course of business is not in and of itself conduct that prevents the government from detecting an alien's presence.”

Although the federal government did not intend for aliens here unlawfully to be harbored, it never expressed an intent for them to go homeless. Common sense suggested that Hazleton felt the same way, so it appeared that the purpose of the ordinances was to ensure that aliens lacking legal immigration status live somewhere else. “It is this power to effectively prohibit residence based on immigration status that is so clearly within the exclusive domain of the federal government” [Lozano v. City of Hazleton, September 2010].

Farmers Branch, Texas: In March 2010, a federal court invalidated the third in a series of measures deigned to discourage illegal immigration and reduce its perceived costs in the city.

Under this version, the ordinance required anyone seeking residency in the city to obtain a residential occupancy license issued by the city's building inspector. To obtain the license, each occupant had to pay a fee and submit an application that included information about his country of citizenship. After the license was issued, the building inspector had to verify whether noncitizens were lawfully present in the country by submitting a verification request to the federal government. If the government reported that the occupant was not legally present in the United States, his occupancy license would be revoked, triggering the landlord's obligation to terminate the tenancy.

The court ruled that the ordinance was unconstitutional. Since it was a regulation of immigration, the ordinance was preempted under the Supremacy Clause because the authority to regulate immigration was exclusively a federal power. Federal law established an elaborate system for determining an individual's right to remain in the country, and the city did not have the authority to set up its own restrictions on an alien's residence in the city [Villas at Parkside Partners d/b/a Villas Parkside v. City of Farmers Branch, March 2010].