Circuit Court Split on Constitutionality of Local Anti-Immigrant Housing Ordinances (August 2013)
Underlying many anti-immigrant measures passed by states and cities in recent years is the policy goal of “enforcement by attrition” or “self-deportation.” The belief is that, by making daily existence for the unauthorized population as difficult as possible, they will decide to leave the U.S. of their own accord. Examples of such strategies include expanding local enforcement of federal immigration laws, criminalizing unlawful presence and unauthorized work, and restricting the ability of undocumented immigrants to attend school, obtain driver’s licenses, engage in business transactions, rent housing, and otherwise participate in society. Such anti-immigrant strategies fly in the face of Catholic social teaching on the fundamental right of all humans to decent living conditions including faith, family life, food, education, employment, health care, and housing. As Archbishop of Los Angeles and Chair of the United States Conference of Catholic Bishops’ Committee on Migration José Gómez wrote in Immigration and the Next America: Renewing the Soul of Our Nation:
Nobody ever forfeits his humanity or his right to be treated with dignity. No matter where he comes from or how he got here. No matter what kind of papers he has or doesn’t have. Even if he has broken a law, he is still a person, and he still has rights and dignity.
Starting in 2006, we witnessed localities across the U.S. -- from Hazelton, Pennsylvania and Riverside, New Jersey to Valley Park, Missouri and Escondido, California -- passing ordinances banning the rental of property to undocumented residents. What became of these attempts to force hardworking immigrants and their families to leave the cities they call home? Many of these discriminatory housing ordinances were challenged in court and several were subsequently reversed. This summer, three federal appeals courts have issued decisions in the legal challenges to restrictive rental policies in Fremont, Nebraska, Farmers Branch, Texas, and Hazelton, Pennsylvania.1 The outcomes were mixed. The 5th and 3rd Circuit Courts of Appeals prevented the cities of Farmers Branch and Hazelton, respectively, from enforcing restrictive rental prohibitions. However, the 8th Circuit permitted the Fremont housing ordinance to go into effect. The three recent circuit court decisions are summarized below.
1 In addition, last year the 11th Circuit found that Alabama’s state law criminalizing the harboring of an unlawfully present person by entering into a rental agreement with that person to be an untenable expansion of the federal harboring provision and, thus, preempted by federal law. United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012).
In light of the current circuit split resulting from divergent interpretations of federal law, the constitutionality of anti-immigrant housing regulations may be an issue that the U.S. Supreme Court would agree to address in the near future. For a map of the eleven circuits in the U.S. Circuit Court of Appeals system, click here  .
8th Circuit Allows Nebraska City to Restrict Housing Based on Immigration Status
On June 28, a three-judge panel of the 8th Circuit Court of Appeals upheld  a 2010 ordinance requiring anyone wishing to rent housing in Fremont, Nebraska to first obtain a permit from the city after proving their lawful presence in the U.S.2 In 2012, a lower court had temporarily prevented the provision from going into effect after finding that denying housing permits to the undocumented is discriminatory and interferes with federal law. The 8th Circuit disagreed and held that the rental provision is not preempted by federal law because it does not require local officials to determine whether an individual is removable from the U.S. but only mandates that city officials defer to the federal government’s determination of whether an undocumented renter is unlawfully present. Now that the 8th Circuit has reversed the lower court, the city of Fremont can begin enforcing the law on its residents. It is not yet clear whether the Plaintiffs in the case will petition for a rehearing of the full 8th Circuit.
2 Keller v. City of Fremont, 719 F.3d 931, (8th Cir. 2013).
3 Villas at Parkside Partners v. City of Farmers Branch, Texas, No. 10-10751, 2013 WL 3791664 (5th Cir. July 22, 2013).
In his dissenting opinion, 8th Circuit Judge Bright argued that the ordinance is unconstitutional because it conflicts with the federal government’s exclusive immigration authority to decide who may and may not reside in the U.S. According to Judge Bright, the law “prevents undocumented persons from renting in Fremont, which is tantamount to preventing them from living in the city at all.” He also pointed to the fact that all the other Circuit Courts that have ruled on this issue have found similar rental prohibitions to be in conflict with our federal system for removal of undocumented immigrants.
5th Circuit Finds Texas Housing Ordinance Unconstitutional
Less than a month after the 8th Circuit upheld the Nebraska city ordinance, the 5th Circuit reached a different decision  about a nearly identical provision attempting to prevent the undocumented from renting housing in Farmers Branch, Texas.3 On July 22, an en banc panel of the Fifth Circuit Court of Appeals struck down an immigration ordinance that would require prospective tenants to acquire a residential occupancy license after the city verified their lawful presence in the U.S. In addition to prohibiting landlords from renting to unauthorized immigrants, the ordinance would impose criminal penalties on both landlords and tenants. The court relied on the U.S. Supreme Court's 2012 decision invalidating key provisions of Arizona’s notorious SB 1070 to hold that the ordinance conflicted with federal immigration law in violation of the Supremacy Clause of the Constitution. Specifically, the court found that the ordinance conflicts with the federal government’s authority to arrest and detain people for possible unlawful presence as well as with the federal anti-harboring law, 8 USC 1324(a)(1)(A)(iii), which makes it a felony to harbor, shield, or conceal an undocumented immigrant. According to two judges who concurred in the judgment, the “purpose and effect” of the ordinance was “the exclusion of Latinos from the city of Farmers Branch.”
Pennsylvania Housing Ordinance Found Unconstitutional by 3rd Circuit
On July 26, the 3rd Circuit Court confirmed that Hazelton, Pennsylvania’s anti-immigrant housing ordinances were unconstitutional and upheld  the lower court’s rulings that had blocked the discriminatory laws from going into effect.4 One ordinance made legal immigration status a precondition to being able to enter into a lease and criminalized “harboring” an unauthorized immigrant by leasing or renting a dwelling unit to such an individual. A second ordinance required prospective tenants to obtain an occupancy permit which required proof of citizenship or legal residency. The court found that, operating together, the two ordinances attempted to regulate residence based solely on immigration status and effectively prohibited unauthorized immigrants from living in any rental housing in the city of Hazelton. According to the 3rd Circuit, these provisions are preempted by federal law both because the field of immigration is completely occupied by the federal government and because the requirements they impose upon immigrants conflict with federal law. It is worth noting that, in addition to finding the housing provisions of the ordinances unconstitutional, the court also found that the provision attempting to regulate the employment of unauthorized immigrants was pre-empted by federal immigration law.
4 Lozano v. City of Hazleton, No. 07-3531, 2013 WL 3855549 (3d. Cir. July 26, 2013).
5 Lozano v. City of Hazleton, 620 F.3d 170, 220–21 (3d Cir. 2010).
In conclusion, it is noteworthy that no new municipal ordinances preventing unauthorized immigrants from renting housing have been enacted since 2010. If the U.S. Supreme Court does decide to resolve the current split between the circuits, we can be hopeful the high court will adopt the sound reasoning articulated by the 3rd and 5th Circuits in finding such ordinances to be unconstitutional. In addition to preempting federal immigration law, such housing ordinances are clearly bad public policy. They have cost cities across the country substantial time and resources to defend against lawsuits. They divide communities and increase discrimination against individuals based on their perceived immigration status. As the 3rd Circuit wrote: “It is difficult to conceive of a more effective method of ensuring that persons do not enter or remain in a locality than by precluding their ability to live in it.”5 Archbishop Gómez reminds us that unauthorized presence is not a crime:
The fact is that most “illegals” are the people next door. They go to work every day. Their kids go to school with our kids. We sit next to them at church on Sunday. Most have been living in our country for five years or more. Two-thirds have been here for a least a decade.
Our Catholic commitment to care for the stranger includes the basic need for shelter and extends to all human beings regardless of their immigration status.
This document was prepared in August 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Jen Riddle at firstname.lastname@example.org  or (301) 565-4807.