Recent Developments in State and Local Law

The legal controversy over screening prospects for their immigration status is not so much an issue under the FHA as it is under other federal, state, and local laws.

The legal controversy over screening prospects for their immigration status is not so much an issue under the FHA as it is under other federal, state, and local laws.

The absence of federal immigration reform is among the factors leading local governments to address the issue in their communities, according to a 2007 study, “Division and Dislocation: Regulating Immigration through Local Housing Ordinances,” by the Immigration Policy Center, a division of the American Law Foundation. The study's author, Jill Esbenshade, associate professor of sociology at San Diego State University, noted that, as of March 2007, more than 100 city or county governments in 28 states had proposed, debated, or adopted ordinances targeting undocumented immigrants. (To find the 2007 study, see “Resources” on p. 4).

Many included prohibitions against renting to or employing undocumented immigrants, or adopting English as the official language of the local government. Of the 104 measures considered or adopted, the study reported that 43 included rental restrictions alone or as part of broader initiatives.

Wherever adopted, implementation of anti-immigration ordinances affecting rental housing has been halted by litigation. Nevertheless, the ordinances have had an impact, according to Esbenshade, who reported that “some communities have experienced a decline in their rental markets.”

In the Courts

The wave of restrictive ordinances began in April 2006 with a ballot initiative in San Bernardino, Calif., that, among other restrictions, sought to ban undocumented immigrants from renting or leasing property in the city. Though blocked by a court ruling, the ordinance became a model for communities across the country.

HAZELTON, PA.: Since 2000, Hazelton has experienced a rapid increase in population, many of whom are Latino immigrants. To combat what it viewed as problems created by the presence of “illegal aliens,” Hazelton adopted a series of ordinances beginning in July 2006.

Among the measures was an ordinance prohibiting 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 alien's having come into, entered, or remained in the United States in violation of law.

It provided for a complaint procedure in which a Hazelton 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 city also adopted a “tenant registration ordinance,” which required tenants to get an occupancy permit from the city, necessitating each tenant to prove that he or she was a citizen or lawful resident. Under that provision, an owner that allowed an applicant without an occupancy permit to occupy a rental unit also faced stiff fines.

A number of individuals and groups sued the city, seeking a court order to prevent the ordinances from becoming effective. They argued that the ordinances were unconstitutional because they conflicted with federal immigration law and violated owners’ and applicants’ due process rights. The groups also alleged that the ordinances violated the Fair Housing Act's protections based on race and national origin, because of a likely discriminatory effect on those of Latino descent.

In July 2007, the federal court in Pennsylvania ruled that the ordinances were unconstitutional, and issued an order permanently preventing the law from taking effect. The court ruled that the ordinances violated the Constitution's Supremacy Clause, which generally invalidates any state or local law that conflicts with federal law. The federal government, in various ways, may allow undocumented aliens to remain in the country, the court said.

The Hazelton ordinance, which prevented all undocumented aliens from living in the city, conflicted with the federal immigration system, and was therefore invalid. The registration provisions directly conflicted with federal law, which provides that only immigration judges, not city officials, are empowered to determine whether those seeking occupancy permits are in the country legally.

The court also ruled that the ordinances violated both applicants’ and owners’ due process rights under the Constitution: the right to a notice and the opportunity to be heard.

The court rejected the challenge to the law that was based on the Fair Housing Act. The groups presented expert testimony that the ordinances were likely to increase discrimination in housing—particularly against those of Latino descent. The ordinances had never gone into effect, so the court couldn't find a fair housing violation based on its predicted effect. The ruling leaves the door open to a future challenge on those grounds if similar ordinances are implemented in Hazelton or elsewhere [Lozano v. City of Hazelton, July 2007].

FARMERS BRANCH, TEXAS: In May 2007, voters in Farmers Branch, Texas, approved an ordinance that required owners and property managers to verify applicants’ immigration status as a prerequisite to entering into a lease or rental arrangement. The ordinance was modeled on HUD's regulations outlining restrictions on federal housing subsidies to noncitizens. It set out the types of documentation required, and owner/property manager obligations regarding reviewing and retaining documentation.

In June 2007, the federal court in Texas banned the ordinance, pending further court proceedings. The ruling is not a final decision. The court found that the owners and residents of apartment complexes, among others who had brought the suit, were likely to succeed in proving the ordinance was unconstitutional following a full-blown trial.

The Texas court ruled that the Farmers Branch ordinance adopted the HUD regulations for limiting housing subsidies to noncitizens as its standard for residency. Because HUD's regulations barred housing assistance to several classes of noncitizens who were in the country lawfully, the Farmers Branch ordinance would exclude certain legal noncitizens from living there. Because the ordinance conflicted with federal immigration law, the court ruled that it was likely to be found unconstitutional.

Furthermore, the court ruled that the ordinance required owners to determine immigration status. Thus, private citizens and city officials would make immigration status decisions based on a scheme that did not adopt federal immigration status [Villas at Parkside Partners d/b/a Villas Parkside v. City of Farmers Branch, June 2007].

CALIFORNIA: On Oct. 10, 2007, Gov. Arnold Schwarzenegger signed Assembly Bill 976, which prohibits local governments from adopting local laws requiring owners to check prospects’ immigration status. The measure, sponsored by the Apartment Association of California Southern Cities, makes California the first state in the country to expressly stop anti-immigrant ordinances at the local level, according to the ACLU.

The new law, which goes into effect Jan. 1, 2008, goes further by prohibiting owners and property managers from imposing similar restrictions on their own. It provides that no owner or its agent shall:

Make any inquiry regarding or based on the immigration or citizenship status of a resident, applicant, occupant, or prospective occupant of residential rental property; or

Require that any resident, applicant, occupant, or prospective occupant of the rental property make any statement, representation, or certification concerning his or her immigration or citizenship status.

The law states that under federal law, owners can request information or documentation necessary to determine or verify an applicant's financial qualifications, or an applicant's or prospective occupant's identity.

“Cities do not have the authority to form their own foreign policy. Only the federal government can determine the legal status of any citizen,” according to a statement by Assemblymember Charles Calderon (D-Montebello), the bill's sponsor. “Local ordinances like the one adopted by the City of Escondido place landlords under serious liability whether they comply with the ordinance or fail to comply with the ordinance. Landlords do not want to be immigration officers; they simply want to make a living.”