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HOW DOES RECENT FEDERAL IMMIGRATION LEGISLATION AFFECT HOUSING AND EMPLOYMENT: Lozano v. City of Hazelton

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by Danielle Beach-Oswald, Managing Partner at BOILA PC & Ivan Ariza, 3L Law Student at George Mason Law School and Intern at BOILA PC

As the nation continues to wait for comprehensive immigration reform from the federal government, state and local governments are attempting to regulate immigrants at an increasing rate. Legislation has emerged nationwide in the form of local laws and ordinances regulating immigrant access to housing, employment, education, and health care. On September 9, 2010 the Third Circuit decided Lozano v. City of Hazelton and held ordinances in the City of Hazelton, Pennsylvania attempting to regulate the employment and rental of housing to undocumented people were preempted by federal law and invalid under the Supremacy Clause.

The Hazelton ordinances prohibited businesses from hiring or continuing to employ undocumented workers, or from harboring undocumented tenants by leasing or renting to them. The ordinance would force landlords to evict undocumented tenants within five days, or face heavy daily fines. Employers deemed to have hired two or more undocumented employees would be required to implement the E-Verify system in order to regain their business license and avoid further fines. The law also allowed city residents to file complaints if any landlord or employer was not complying with the ordinance.

In the decision, the Third Circuit held the Hazelton ordinances were pre-empted by federal immigration laws such as the Immigration Reform and Control Act (IRCA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The court held the employment ordinance created a conflict pre-emption with IRCA, by creating more obstacles to the administration of IRCA regulations. The ordinance created broader regulations than IRCA and imposed stricter rules and penalties, directly conflicting with Congressional intent. The court also held the proper avenue for regulating the housing or residency of undocumented people was through the federal removal power. Thus, the Hazelton housing ordinance attempting to “regulate residency based solely on immigration status” was pre-empted by federal removal powers and the Supremacy Clause.

            The proliferation of similar laws nationwide has led to an increase in litigation and adjudication. The Courts of Appeal are currently split 2-2 on the issue. In 2009, the Ninth Circuit in Chicanos Por La Causa, Inc. v. Napolitano, ruled the Legal Arizona Workers Act, mandating employer’s use of E-Verify, was not pre-empted by federal law because it dealt with business licensing law. In Gray v. City of Valley Park, the Eighth Circuit held an ordinance, very similar to the City of Hazelton’s, was not pre-empted and did not violate due process or equal protection.  Thus, allowing local government to control immigration.

Conversely, in Chamber of Commerce v. Edmondson, the Tenth Circuit cited two district court decisions in holding an Oklahoma law was pre-empted by federal law.

The Supreme Court has agreed to hear the Chicanos Por La Causa case as the consolidated case of Chamber of Commerce v. Candelaria during the 2010 term. This Supreme Court decision will have a large impact on state and local governments attempts to pass anti-immigration laws in the form of housing and employment constraints. If the Supreme Court sides with the Third and Tenth Circuits by deciding the laws are pre-empted, local governments will have to wait for federal legislation for reform. If the Supreme Court upholds the decision in Chicanos Por La Causa, Inc., state and city legislatures can be expected to increase attempts at regulating immigration at the local level.

Filed under: Immigration Issues

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