N.D.Tex.: Anti-immigrant housing law preempted, vague

A Texas federal district court permanently enjoined a local ordinance imposing immigration status verification requirements on landlords. Villas at Parkside Partners v. City of Farmers Branch, 2008 WL 2201980 (N.D. Tex. May 28, 2008) (Nos. 3:06-CV-2371-L, 3:06-CV-2376-L, 3:07-CV-0061-L).

The court held that the ordinance was an impermissible local regulation of immigration and thus preempted, and that it was void for vagueness. The court declined to sever the offending provisions, saying this “would require the court to engage in the legislative function of redrafting the Ordinance.” 

                The Farmers Branch ordinance incorporated regulations enacted by the Department of Housing and Urban Development (HUD) for public housing, imposing the HUD requirements on owners of all apartment complexes. See 24 CFR §5.504. Landlords were to “request and review original documents of eligible citizenship or immigration status” for all residents, and deny housing to anyone whose status was not established. Landlords could be fined up to $500 for each day of occupancy without verification. The court issued a preliminary junction last year. Villas at Parkside Partners v. City of Farmers Branch, 496 F.Supp.2d 757 (N.D. Tex. Jun 19, 2007). The court earlier ruled that landlords had standing to sue, but never addressed the existence of a cause of action for preemption. In affirming its earlier decision, the court deemed “inapposite,” subsequent decisions upholding verification requirements for employers, saying that those decisions they relied on explicit federal statutory language that permitted licensing laws related to employment, but not housing. See Gray v. City of Valley Park, 2008 WL 294294 (E.D. Mo. Jan. 31, 2008) (summary here); Ariz. Contractors Ass’n v. Candelaria, 2008 WL 343082 (D. Ariz. Feb. 7, 2008) (summary here).

                The court noted that “only the federal government may issue a ‘regulation of immigration,’ which the [Supreme Court] defined as ‘a determination of who should or should not be permitted into the country, and the conditions under which [they] may remain.” De Canas v. Bica, 424 U.S. 351 (1976). Any state or local regulation of immigration that is not equivalent to federal law preempted. The court held that the application of HUD eligibility regulations to all the city’s apartments was an impermissible regulation of immigration, because 1) by extending the rules to all apartments, the ordinance was a de facto regulation of who could live in the city, and 2) the HUD regulations exclude some legal residents, such as students and other temporary residents. Accordingly, “because the Ordinance relies on or adopts HUD regulations, certain legal noncitizens will be excluded from renting an apartment in Farmers Branch.”

                Additionally, while the city characterized the ordinance as “no more than a system of recordkeeping that is intended to assist the federal government in its enforcement of immigration laws,” it was “unmistakably clear” that its purpose  was “to prevent illegal immigrants from renting apartments in Farmers Branch.” Because the ordinance “burdens private citizens and city officials with making immigration status decisions based upon a scheme that does not adopt federal immigration standards,” it was preempted.

                The court also found “the Ordinance's vagueness with regard to the meaning of ‘eligible immigration status’ and the lack of specificity with regard to the documentation requirements require the conclusion that the Ordinance is void for vagueness” under the Due Process Clause. In particular, the court noted that it was not clear whether the documentation requirements would be based on HUD requirements or on forms designated as acceptable by Immigration and Customs Enforcement (ICE). It is not clear whether the vagueness problems presented by the ordinance may also apply to some extent to the HUD regulations themselves. Both the ordinance’s criminal penalties, and the city’s lack of clarity about whether it relies on HUD or ICE documents, may provide grounds for distinction.

                Although the ordinance included a severability clause, the court held that salvaging it from preemption would require “a line-by-line revision of the Ordinance” that “clearly frustrates the city’s original legislative intent.” Moreover, stripping the offending provisions would result in “even more uncertainty and confusion,” aggravating the vagueness problem.

                Finally, the court found that the threat of fines and criminal penalties on landlords, and the creation of “uncertainty with regard to legal aliens documentation sufficient under the Ordinance,” outweighed the merely “abstract and hypothetical injury” identified by the city, and merited a permanent injunction.