Immigration Reform and Fair Housing

July 24, 2012
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Q: Does the Supreme Court’s recent decision in Arizona v. United States have fair housing implications?

A: The latest ruling by the U.S. Supreme Court in the battle over immigration reform—Arizona v. United States—didn’t address housing restrictions. But the decision is likely to affect courts reviewing the dozens of other state and local immigration measures that do affect rental housing providers.

Federal fair housing law doesn’t list citizenship or immigration status among its protected characteristics. But the law does list national origin—as well as race, color, and religion—any and all of which may apply to immigrant populations, depending on their country of origin, and their ethnic, racial, and religious background. So it’s key to understand how to navigate through the uproar over immigration to ensure that your community fully complies with fair housing law when dealing with recent immigrants.

Furthermore, HUD has increased its enforcement efforts, stating that “HUD will work with communities to prevent housing discrimination and promote immigrant integration into the broader society.”

Citizenship Not a Protected Class

The Fair Housing Act doesn’t ban discrimination based solely on a person’s citizenship status, according to a 2003 HUD memo, which said that “asking housing applicants to provide documentation of their citizenship or immigration status during the screening process would not violate the Fair Housing Act.”

State and local laws, however, may say otherwise. California bans inquiry into an applicant’s immigration status. And New York City goes further by adding “alienage or citizenship status” among characteristics protected under its fair housing law. So, in California it would be discriminatory to ask for information about a rental applicant’s immigration status or right to be in the United States. In New York City, the rental owner could not ask for the applicant’s country of citizenship or whether he’s a U.S citizen. So check with your attorney to find out what your state and local laws say, before adopting a policy requiring applicants to document their citizenship.

A leasing policy of screening out immigrants—whether in the country legally or illegally—could leave your community vulnerable to a discrimination claim. Refusing to rent to non-U.S. citizens could also violate other federal civil rights laws. Bear in mind that there are many people who are permanent legal residents of the United States (those with “Green Cards”); although they aren’t U.S. citizens, they have nearly all the same rights as U.S. citizens and may lawfully live and work in the United States.

Arizona A.G. Advises Housing Providers

The Supreme Court’s ruling in the Arizona case doesn’t address what housing providers should—or shouldn’t do. In fact, Arizona Attorney General Tom Horn issued an advisory to assurehousing providers that the Arizona law doesn’t change or apply to current fair housing laws. In an advisory, Horn said that the law “provides no legal authority for, nor does it require, landlords and property managers to inquire about a potential or existing tenant’s immigration or citizenship status.” Nor does the law require housing providers to report known or suspected undocumented persons to law enforcement authorities, he said. “Procedures to screen potential and existing tenants for citizenship and immigration status may violate prohibitions on national origin housing discrimination.”

Nevertheless, the Arizona ruling is important because the same arguments have been raised in other lawsuits involving state and local laws that directly affect rental housing providers. For example, in 2011, Alabama adopted the strictest immigration law in the nation, intended to “attack every aspect of an illegal immigrant’s life,” according one legislator. However, in separate rulings last year, courts invalidated two of the law’s housing-related provisions.

Several local governments across the country have also enacted ordinances aimed specifically at keeping illegal immigrants out of rental housing. For the most part, federal courts have invalidated the ordinances, ruling that such local ordinances are illegal under, and preempted by, federal law.

For a review of some of these recent cases, and an explanation of how fair housing laws apply to immigrant groups, see the Coach’s August lesson, “How to Ensure Fair Housing Compliance When Dealing with Recent Immigrants,” available on our homepage. The lesson offers four rules to help you avoid potential problems that could lead to discrimination claims. Also, you can download HUD’s recent FAQs on Immigration Status and Housing Discrimination at:http://portal.hud.gov/hudportal/documents/huddoc?id=12ImmigrationFAQ.PDF.