Immigrant Survivor Housing Issues
| Publication year | 2018 |
| Pages | 37 |
| Citation | Vol. 87 No. 8 Pg. 37 |
Immigrant Survivor Housing Issues
by Jenna Christophel
Overview: this article addresses various legal regulations surrounding housing undocumented immigrants in the U.S.
1. Federal Preemption and Renting to Undocumented Immigrants
In the United States, federal preemption is the invalidation of a state law that conflicts with federal law. Preemption issues are centrally concerned with whether Congress has manifested an express or implied intent that its federal legislation be exclusive in nature, trumping any conflicting state law by virtue of the Supremacy Clause of the Constitution. The preemption doctrine requires a clear and manifest expression that Congress wills its federal legislation to oust any corresponding state law. If such a congressional intent is not identified, a presumption exists in favor of states exercising their police powers to regulate a determined subject.[1]
With regard to housing undocumented immigrants, federal law makes no distinction by immigration status. "The doctrine of federal preemption in the immigration context is in a condition of unending flux, leaving the state and local political actors in a position of doctrinal uncertainty [2] Federal preemption in immigration was addressed in Arizona v. U.S.[3]There, the Supreme Court of the United States implied that removal procedures constitute federally preempted legislative subjects, but did not provide any clarity as to the actual extent of federal preemption in the immigration context.[4]
Operating within this legal grey area, states, cities and municipalities across the United States have undertaken efforts to regulate the effects of undocumented immigration on housing. Legal consequences of renting or leasing to an undocumented immigrant vary greatly. In some of these jurisdictions renting to an undocumented immigrant is punishable by the imposition of a fine, while elsewhere renting to undocumented immigrants is a criminal offense.[5] In contrast, other areas have left the issue of undocumented immigrant renting completely unregulated.
2. Application of Federal Preemption in Prominent Immigration Caselaw
After Arizona v. U.S., the Eighth Circuit became one of the first courts to examine the issue of renting to undocumented immigrants in Keller v. City of Fremont.[6] This case dealt with a city ordinance from Fremont, Nebraska that limited hiring and providing rental housing to "illegal aliens" and "unauthorized aliens," as defined in the ordinance. The ordinance was challenged on the grounds that: (1) the ordinance was unconstitutional because it violated the Equal Protection, Due Process, and Commerce Clauses of the United States' Constitution; (2) it was federally preempted under the Immigration Reform and Control Act (IRCA); and (3) it violated various state and federal laws.[7] There, the Eighth Circuit held that federal immigration laws and regulations did not preempt the city ordinance that made it unlawful for an undocumented immigrant to rent a property without possessing an occupancy license, which could only be granted to U.S. citizens or documented immigrants. The court arrived at its conclusion after examining basic principles of the federal preemption doctrine, as well as the opinion of the U.S. Supreme Court in Arizona v. U.S.[8]
Shortly after the Eighth Circuit issued its opinion, the Fifth and Third Circuits took an opposite approach, holding city ordinances similar in nature to the one examined in Keller[9] were preempted by federal immigration law. The Fifth...
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