On July 26, 2013, a Federal District court issued an opinion that may once and for all answer the question as to whether local governments can enforce laws that relate to the immigration status of individuals. The case is Lozano v. City of Hazleton.
Hazleton, PA has for years been attempting to prohibit the employment and housing of unauthorized aliens. The city had previously appealed a District court injunction against enforcement of the ordinances. On appeal by the City, the United States Supreme Court remanded the case for reconsideration based on the doctrine of Federal preemption regarding state treatment of unauthorized aliens.
The city ordinance required legal immigration status of anyone as a precondition to seeking rental housing within the city. Occupants of rental housing 18 or older were required to obtain an occupancy permit indicating “proof of legal citizenship and/or residency.” Landlords faced fines and even imprisonment if the permitted violations of the occupancy permit.
The court had previously held that the ordinances were “attempts to regulate residence based solely on immigration status.” As stated by the court, “Deciding which aliens may live in the United States has always been the prerogative of the Federal government.” The court ruled that the Federal Immigration and Naturalization Act (INA), which preempts state attempts to regulate residence on the basis of immigration status, preempted the local ordinance. The court also ruled that the local ordinance interfered with discretion enjoyed by the Federal government, and the control over, the removal process, which has substantial foreign policy implications.
In its decision, the Third Circuit noted, “Congress has not banned persons who lack lawful status or proper documentation from obtaining rental or any other type of housing in the United States. Hazleton’s decision to impose this ‘distinct, unusual and extraordinary burden…upon aliens’ impermissibly intrudes into the realm of federal authority.” Hazleton is seeking to achieve “its own immigration policy,” one that will certainly result in “unnecessary harassment of some aliens…whom Federal officials determine should not be removed.”
The court also indicated that the city’s ordinances, as they impacted the rights of foreign country’s nationals, could create foreign policy and humanitarian issues. The court also dismissed the city’s argument that it was engaged in “concurrent enforcement” of the INA, because the city’s efforts actually impair Federal regulatory interests.
The city had actually called the act of renting to unauthorized aliens ‘harboring,’ but, as stated by the court, “harboring” has a different meaning in Federal law from what the city found in simple landlord-tenant relationships. The court defines ‘harboring’ as conduct ‘tending to substantially facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting the alien’s unlawful presence.” According to the court, renting an apartment would not, in and of itself, prevent the government from detecting the presence of an unauthorized alien, and thus it would probably not constitute ‘harboring’ for purposes of the INA.
A number of other localities (notably Farmers Branch, TX) have used methods similar to Hazleton in an effort to restrict access to housing and other opportunities to unauthorized aliens. In all cases, federal courts have held that immigration status is solely within the purview of the federal government