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By
JOAN FRIEDLAND
Immigration
Policy Director
This past July a federal judge struck
down two anti-immigrant ordinances that were adopted by the city of
Hazleton, Pennsylvania, in the fall of 2006. The Illegal Immigration
Relief Act Ordinance (IIRA) and the Tenant Registration Ordinance (RO)
include provisions that would penalize businesses that employ
“unauthorized aliens” by suspending their licenses, a “harboring”
provision that prohibits renting housing to certain immigrants, and
provisions requiring occupants of rental units to obtain an occupancy
permit that, in turn, requires “proof of legal citizenship and/or
residency.” The ruling was issued after a two-week trial that took
place in March 2007.
The plaintiffs in the lawsuit were individual immigrants
(including landlords, tenants, and business owners), a social services
agency, the Hazleton Hispanic Business Association, and the Pennsylvania
Statewide Latino Coalition. The lawsuit attracted national attention
because anti-immigrant forces considered the Hazleton ordinances to be
“model” legislation that could be imitated and adopted elsewhere across
the country. Hazleton’s mayor, Lou Barletta, was vocal in his intent to
drive undocumented immigrants out of town. Many jurisdictions that were
considering adopting or had adopted similar ordinances were awaiting the
outcome of the Hazleton litigation, fearing the expense of defending
against similar lawsuits.
In his decision striking down the ordinances, the judge
delivered an understated but stinging rebuke to the city:
Whatever frustrations
officials of the City of Hazleton may feel about the current state of
federal immigration, the nature of the political system in the United
States prohibits the City from enacting ordinances that disrupt a
carefully drawn federal statutory scheme. Even if federal law did not
conflict with Hazleton’s measures, the City could not enact an ordinance
that violates rights the Constitution guarantees to every person in the
United States, whether legal resident or not. The genius of our
Constitution is that it provides rights even to those who invoke the
least sympathy from the general public. In that way, all in this nation
can be confident of equal justice under its laws. Hazleton, in its zeal
to control the presence of a group deemed undesirable, violated the
rights of such people, as well as others within the community. Since
the United States Constitution protects even the disfavored, the
ordinances cannot be enforced.
The Employment Ordinance
The IIRA ordinance bans employment of “unauthorized aliens” in
Hazleton. It requires employers to collect employee “identification
papers” and submit them to the city’s Code Enforcement Office, which in
turn is to verify with the federal government whether the employee is
unauthorized. It also provides that an employee fired by an employer
that continues to employ “unlawful” workers has a private right of
action against the employer for engaging in an “unfair business
practice.”
The judge agreed with the plaintiffs’ argument that the
ordinance is preempted by federal law. (For an analysis of the
principles of preemption, see NILC’s
Facts about Federal Preemption.)
It is expressly preempted because the Immigration Reform and Control Act
of 1986, which created a complex legislative scheme regarding employment
of unauthorized workers, contains a provision prohibiting states and
localities from passing laws regarding their employment, and the
Hazleton ordinance does not fit within an exception for state and local
laws dealing with licensing.
The judge also ruled that the employment provisions are
preempted under the concept of implied preemption because the
Hazleton scheme would conflict with federal legislation and interfere
with congressional objectives, and because Congress “occupies the field
to the exclusion of state law.”
The plaintiffs also had challenged the employment ordinance on
due process grounds, arguing that the ordinance denies both employers
and employees notice and an opportunity to be heard. The judge found
that employees might not even know when their immigration status had
been challenged, and that employers would not know what information they
might need for a hearing. Moreover, Pennsylvania courts — cited by the
Hazleton ordinance as the final level of hearing for both employers and
employees — have no authority to determine non–U.S. citizens’
immigration status.
The judge also rejected the private right of action provision of
the employment ordinance on state law grounds, concluding that it
exceeds Hazleton’s authority under, and conflicts with, state law.
The Tenancy Provisions
Both the IIRA and the RO contain tenancy provisions. Under a
provision of the IIRA, renting to an “illegal alien” could constitute
the crime of harboring an undocumented noncitizen. The IIRA provides
that if a business or resident files a harboring complaint against a
landlord, the Code Enforcement Office is to obtain “identity data” from
the landlord and contact the federal government to verify the tenant’s
immigration status. A landlord found to be harboring an undocumented
person could face suspension of his or her rental license as well as
fines. Under the RO, renters are required to prove “legal citizenship
and/or residency” in order to obtain an occupancy permit from the Code
Enforcement Office. Landlords who rent to tenants who have not obtained
an occupancy permit may be fined.
The lawsuit’s plaintiffs argued that these provisions are in
conflict with federal law and therefore preempted. In agreeing with the
plaintiffs, the judge noted the complexity of immigration law. Many
categories of noncitizens without proof of legal status are nonetheless
permitted to live and work in the U.S. Many are in the process of
obtaining legal status or do not have documents to show what their
status is. The federal government does not try to remove every
noncitizen who could be subject to removal or has been ordered removed;
and often, for any number of reasons, including the fact that certain
countries either will not accept the return of their nationals or do not
have a functioning government, the U.S. government is unable to remove
noncitizens who have been ordered removed.
The judge also found that the ordinances’ tenancy provisions
conflict with federal law, because they require Code Enforcement
officials — rather than an immigration judge — to determine whether
tenants are in the U.S. legally.
In addition, the judge rejected the tenancy ordinances on due
process grounds. Under the ordinances’ provisions, tenants are not
entitled to any notice before being evicted, nor would landlords know
what “identity data” was required to verify a noncitizen’s immigration
status. As he did regarding the employment-related ordinance, the judge
determined that a Pennsylvania court could not provide judicial review
for landlords or tenants, since the state court could not determine a
tenant’s immigration status.
Finally, the judge found that the tenancy provisions violate 42
USC sec. 1981, which gives “all persons” the same rights to enforce
contracts as “white citizens.”
Rejected Claims
The judge rejected the plaintiffs’ claim that the IIRA denies
them equal protection of the law, concluding that they had not proved
discriminatory intent and that the challenged ordinances do not
implicate a fundamental right or use a suspect classification. He also
concluded that he did not have sufficient information to decide whether
the ordinances violate the plaintiffs’ privacy rights under the U.S. and
Pennsylvania constitutions. Further, he rejected the plaintiffs’ claims
under the Fair Housing Act. Finally, the judge concluded that the
tenancy provisions do not violate the state Landlord and Tenant Act.
Conclusion
The city of Hazleton reportedly has filed an appeal to the Third
Circuit Court of Appeals and has vowed to fight the case to the U.S.
Supreme Court if necessary. The city and anti-immigrant groups such as
the Minutemen are seeking funds to pay for the appeal. Should the
plaintiffs prevail in the end, the city likely will be ordered to pay
the plaintiffs’ attorney’s fees, which could amount to millions of
dollars.
The Hazleton decision was a decisive victory for immigrant and
civil rights. But anti-immigrant forces have learned from every legal
loss and have tried to tailor new provisions to accommodate court
rulings against them. Immigrant advocates will likely have to continue
to fight against the adoption of new anti-immigrant ordinances and to
challenge them in court when they are adopted.
Lozano et al. v. City of Hazleton, 2007 U.S. DIST. LEXIS 54320
(M.D. Pa. July 26, 2007).
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