By Jen Riddle
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 United States 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 measures fly in the face of Catholic social teaching on the fundamental right of all humans to decent living conditions, including family life, 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, cities across the United States – from Hazelton, Pennsylvania and Riverside, New Jersey to Valley Park, Missouri and Escondido, California – began 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 communities they call home? Many of these 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 local rental policies. The outcomes were mixed. The Fifth and Third Circuit Courts of Appeals prevented the cities of Farmers Branch, Texas and Hazelton, Pennsylvania from enforcing discriminatory rental prohibitions. However, the Eighth Circuit Court permitted a controversial Fremont, Nebraska housing ordinance to go into effect. Given the disagreement between the circuit courts, 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 Fremont, Nebraska to Restrict Housing Based on Immigration Status
On June 28, a three-judge panel of the Eighth 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 United States See Keller v. City of Fremont, 719 F.3d 931, (8th Cir. 2013). 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 Eighth 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 United States but only mandates that city officials defer to the federal government’s determination of whether an undocumented renter is unlawfully present. Now that the Eighth Circuit has reversed the lower court, the city of Fremont can begin enforcing the law on its residents.
In his dissenting opinion, Eighth 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 United States. 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.
Fifth Circuit Finds Texas Housing Ordinance Unconstitutional
Less than a month after the Eighth Circuit upheld the Nebraska city ordinance, the Fifth Circuit reached a different decision  about a nearly identical provision attempting to prevent the undocumented from renting housing in Farmers Branch, Texas. See Villas at Parkside Partners v. City of Farmers Branch, Texas, No. 10-10751, 2013 WL 3791664 (5th Cir. July 22, 2013). 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 United States. In addition to prohibiting landlords from renting to unauthorized immigrants, the ordinance imposed 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 Third Circuit
On July 26, the Third 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. See Lozano v. City of Hazleton, No. 07-3531, 2013 WL 3855549 (3d. Cir. July 26, 2013). 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.
In conclusion, it is encouraging 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 conflicting with 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. In the words of the Third Circuit: “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.” 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.