Tuesday, October 7, 2008

LEADING CIVIL RIGHTS GROUPS FILE AMICUS BRIEF SEEKING TO PROTECT THE RIGHT TO HOUSING FOR LATINOS AND IMMIGRANTS

Last Wednesday, the Mexican American Legal Defense and Educational Fund (MALDEF), the American Civil Liberties Union (ACLU) Immigrants’ Rights Project, the ACLU of New Jersey, the Seton Hall Law School Center for Social Justice and Fried, Frank, Harris, Shriver & Jacobson LLP (Fried Frank) filed a “friend of the court” brief in the case Del Rio-Mocci v. Connolly Properties, Inc., in order to protect the right to housing for Latinos and other immigrants and to thwart anti-immigrant efforts to compel landlords to enforce federal immigration law. The brief was filed on behalf of leading organizations and institutions that represent the interests of, and provide services to, immigrant communities in New Jersey, including: the New Jersey Institution for Social Justice, the New Jersey Immigration Policy Network, the Latino Leadership Alliance of New Jersey, CATA – The Farmworkers’ Support Committee, the Asian American Legal Defense and Education Fund, the Latin American Legal Defense and Education Fund, and the American Civil Liberties Union of New Jersey (“amici”). The lawsuit, filed in the U.S. District Court in New Jersey by the Immigration Reform Law Institute (IRLI) – an organization that has sponsored a series of anti-immigrant municipal housing ordinances throughout the country – alleges that by renting apartments to undocumented immigrants, landlords are in violation of federal statutes which impose criminal penalties for harboring undocumented persons. In effect, plaintiffs are seeking to have federal law interpreted in a manner that will compel landlords to screen and investigate the immigration status of prospective tenants. “If successful, plaintiffs’ suit would criminalize ordinary landlord-tenant relationships, and inevitably result in impermissible discrimination against all Latinos, including U.S. citizens and legal residents, in New Jersey and throughout the country,” stated Cynthia Valenzuela, MALDEF’s Director of Litigation. “Latinos and others – regardless of nationality or immigration status – will face additional scrutiny when attempting to secure or maintain housing because landlords will be hesitant to rent to individuals they perceive to be immigrants based solely on race or language ability. This is a dangerous and unlawful precedent that would ripple far beyond New Jersey and create a national climate of fear and racial profiling in the provision of housing,” she added. Local anti-immigrant municipal housing ordinances have been consistently struck down by courts that found them to be plainly discriminatory and preempted by federal law. Since efforts to displace immigrants through unconstitutional local ordinances have been unsuccessful, IRLI now brings this suit that threatens to destabilize local communities and vulnerable populations by inducing the wrongful denial of housing to Latinos and other immigrants, creating fear in immigrant communities, and otherwise, sanctioning the wrongful denial of civil rights. “New Jersey’s immigrant service providers are deeply troubled by this effort to deprive immigrant families of a roof over their heads,” said Bassina Farbenblum, an attorney at Seton Hall’s Center for Social Justice. “This lawsuit is yet another misguided attempt by anti-immigrant groups to end-run state and federal anti-discrimination laws and deny immigrant men, women and children their basic human right to shelter.” “It's a huge stretch to claim that RICO, a law aimed at dismantling organized crime, stops landlords from renting to people they are legally allowed to rent to,” said ACLU of New Jersey Legal Director Ed Barocas. “The first attempts to run immigrants out of town failed in Hazleton, Pa., and Riverside, N.J., and this new backdoor attempt is no better.” “Landlords are neither qualified nor authorized to act as de facto immigration agents,” said ACLU Immigrants’ Rights Project attorney Eunice Lee. “They lack the skills and training to make immigration status determinations, and forcing them to do so will lead to wrongful denials of housing.” The amicus brief, filed by leading organizations on behalf of organizations that represent or provide services to immigrant communities, urges the court to reject the claims presented in this unprecedented case and argues that a determination in plaintiffs’ favor will impermissibly require landlords to engage in immigration status determinations, and will inevitably result in unlawful discrimination against immigrants (including U.S. citizens and lawful residents) in New Jersey and throughout the country.

KJ

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Wow, that's about the most conflating of legal and illegal immigration I've ever seen. Let's be honest--at bottom, all of these groups believe that even though a person, by law, is not supposed to be residing in the country, he should still have an absolute right to housing in that country. Such a contradictory policy makes no sense except to those who simply don't believe in the legitimacy of limited immigration and want the immigration law undermined. If you want a limited immigration system to succeed, employment and housing should be denied illegal aliens. Based on the pattern of their actions, some groups apparently do not want to deter anyone from illegally residing in the U.S. They are against everything which does and, conversely, favor any legislation which facilitates illegal residency. Based on a theory of preemption, they consistently claim they are against non-federal housing laws which require a landlord to take actions which would deny housing to an illegal alien. However, when a non-federal law, e.g., Calif. Civil Code § 1940.3, facilitates illegal residency, no protest whatsoever over the preemption legal issue then, let alone a lawsuit. And if there were a federal housing law requiring proof of legal residence a la Section 8, does anyone doubt they would still fight it tooth and nail?

Discrimination is a legitimate concern, of course, but you could have the most stringent safeguards against discrimination and they undoubtedly would still be against it--I guess on the logic that it ‘discriminates’ against non-legal residents. That's what immigration law inherently does so if that's your theory, you must be against immigration law in general. I respect some of the academics for admitting that opposition. You’re never going to see, e.g., the president of MALDEF, come out and say he believes what KJ does. Political legal groups obviously are disinclined to openly admit their motivation and aversion to the very concept of law intended to limit immigration. As lawyers, they want to maintain an image that they are just working within a system even if they really want to revolutionize the U.S. immigration system prescribed by law.

Posted by: Jack | Oct 8, 2008 4:37:41 PM

Jack brings up an interesting and arguable interpretation of immigration law when he asserts that, "Let's be honest--at bottom, all of these groups believe that even though a person, by law, is not supposed to be residing in the country, he should still have an absolute right to housing in that country. Such a contradictory policy makes no sense except to those who simply don't believe in the legitimacy of limited immigration and want the immigration law undermined. If you want a limited immigration system to succeed, employment and housing should be denied illegal aliens." I believe that perhaps Jack, while he as usual has used well reasoned logic to make his point, is perhaps missing the forest for the trees, and should take a step back to consider the bigger picture in both scope and context.

We are living in extraordinary times. Who could have imagined that this decade would see the horror of 9/11, and our decision to therefore invade Iraq and fight a 6 year plus war costing roughly a billion or so dollars a day? Who could have imagined the United States openly torturing prisoners of war in a secret facility in Cuba, and at other non-disclosed locations around the world? Who could have imagined that this decade would see the price of oil triple, and $4.00 per gallon gas prices in the United States? Who could have imagined that this decade would see the housing collapse that would see the possible toppling of the entire world's financial structure?

Indeed extraordinary problems call for extraordinary measures. Does not the $700,000,000,000 "bailout" of our banking system rise to the status of extraordinary measure? Similarly, the call for the "all of the above" strategy to curb our dependence on foreign oil to solve our energy crisis will be an extraordinary measure. I consider it an extraordinary measure that I have to stand in a long line to run my shoes through an x-ray machine if I want to take a flight to visit my mother.

I think that we should all be able to agree that the presence of the 12 - 20 million undocumented immigrants that the U.S. has allowed to accumulate for the past couple of decades in our country, constitutes an extraordinary problem. Certainly we can all agree that there exists no simple or easy answer that could fix this problem within the confines of our existing framework of immigration laws.

I think that in a decade that has brought us a host of non-traditional and extraordinary problems, calling for non-traditional and extraordinary measures of response, that our country should therefore be cognoscente of the obvious fact that the unprecedented undocumented immigration crisis that we face will require nothing short of an extraordinary solution to fix the problem. Certainly, some sort of CIR would be that extraordinary response.

I do not believe that advocates that are attempting to find a comprehensive solution to fix our broken immigration system are doing so for the purpose of "want(ing) the immigration law undermined." I sincerely believe that people of good faith are attempting to solve the problem, not exacerbate it.

I think that it is within the purview of academics to guide that search in such a way that the final solution falls within the nexus of sound legal justice policy and sound social justice policy. Therefore, let us not demonize these far-thinkers for their important contributions, but instead let us be open to the incorporation of their theories into the workable final and extraordinary solution that our times will require.

Posted by: Robert Gittelson | Oct 9, 2008 8:42:48 AM

Git, I have written before that it is not unreasonable to argue for an amnesty. It is kind of like the bank bailout in that corruption and neglect caused a problem to build over time resulting in sticky consequences, e.g., blended families. We agree that there are no perfect solutions once something reaches a certain point.

With the bank bailout, my priority is less the cleanup but to fix the system so that it will function going forward and not produce more of the same. That's also my priority with the immigration system with or without amnesty and I believe there needs to be housing deterrent measures, not just employment.

My proposition: the immigration law relates to presence. Housing is the most fundamental means to maintaining presence, even more than employment (not everybody works after all). They are so closely related that a law against presence should be accompanied by federal housing law consistent with it. Without such federal law, we are getting state laws which thwart the intent of the federal law. It is bad policy and bad for our legal system to have incongruous federal and state laws.

Such a verification is not unprecedented and already exists under Section 8. If we're going to establish a national employment verification system, why not have landlords use the same verification system that employers will? What's the difference? It would provide an additional layer of deterrence without the expense of an entirely independent system.

I don't deny that the groups I refer to want to change the system to what they honestly believe is better. I don't oppose the right of anyone to sue. I try not to demonize anyone for their honest belief, however radical. But I do feel there are plenty of people who simply do not want limiting measures of immigration to ever work. I base this belief on the fact that elements of the current system which are strongly opposed will be incorporated into the new system. I hear 'Stop the raids!', not 'Stop the raids until we get CIR!' Thus, I think it's reasonable to conclude that some of those calling for CIR will fight its enforcement measures the same way they do now. I use the word 'undermine' because I see a lack of frankness in that their stated support of enforcement measures frequently doesn't match their actions.

Posted by: Jack | Oct 9, 2008 5:59:12 PM

I congratulate Jack for illuminating the invisible elephant that has always been in this room; the question of pre-CIR vs. post-CIR enforcement measures. It is due to the abdication by Congress of their responsibility to address and pass CIR, that has led to the murky situation we find ourselves trying to navigate.

In the vacuum of a workable solution, states and federal enforcement branches have attempted to fill that vacuum with conflicting and confusing partial or patchwork fixes that are not only ill conceived, but are often at cross purposes. In trying to mesh together workable policy in a 2008 world, while using outdated 1986 legislation, I liken our present scenario to the "Gilligan's Island" approach to immigration policy. No matter how smart the professors was, he couldn't be expected to build an IPod out of coconuts.

Similarly, no matter how we tinker with the current immigration laws, absent the presence of judges that are willing to overstep their bounds, and legislate from the bench, we do not have laws that can adequately and justly address the real world problem of 12-20 million undocumented workers and societal members intertwined and inter meshed into the fabric of our society.

The best course of action pre-CIR would be for everyone to take a "time-out," until such time as a real fix, (Federal CIR), can be legally mandated. However, politicians being politicians, they can't help themselves, as so we have state and local legislation popping up right and left seeking to attack this problem at a local level, in effect kicking the can down the road.

The problem that this particular blog posting,(Leading Civil Rights Groups...), details, is that in a pre-CIR world, most enforcement measures, (ie: cracking down on "illegals"), that are properly suited to a post-CIR world, must be fought, contained and controlled, again, for the greater good, because they now do more harm than good.

Enforcement will play a key role in implementing controls on future illegal immigration post-CIR. Jack is correct to point out that certain extreme reform advocates will balk at the enforcement side of the post-CIR equation. Again, it will be the moderate majority that will be counted on to enact the final and passable CIR legislation. Nobody will get everything that they want, in the final compromise.

As to Jack's insistence on housing as well as workplace enforcement in a post CIR society, I concede that he has a point, but I need to add my caveat. Absent a crystal ball, I can't say for certain how the post CIR enforcement measure will ultimately work, and can only theorize. I suspect that the issue of unlawful discrimination will weigh heavily on this issue, and that is something that concerns me. I am also concerned about proper implementation of enforcement measures over time.

For example, after CIR is enacted and implemented, it will take a certain amount of time to allow for undocumented residents to file their application for legal presence, (Z visa or whatever they call it). That could be a year, 18 months, two years? Then the government will need time to review and consider these millions of applications. Another 2 years? More? Then we will have the issue of denials and appeals. There must and should be a right of appeal to any initial, (and in all likelihood somewhat hasty), initial denial. That too will take time. Therefore, certainly on that basis, any housing enforcement issues must be delayed for several years until the question of the legality of the millions of current residents can be properly and fully sorted out.

It also should be mentioned that the "attrition through enforcement" process will be de facto in place on the undocumented residents that for whatever reason, will not qualify for legalization under CIR. What do me do with them? Are they made to fend for themselves to find their way out of the country? Do we offer assistance for their safe and free return? That would be the humane approach. Absent a humane approach, will work site enforcement be sufficient? I would think that we should give work site enforcement a thorough chance to succeed before we implement more drastic and harsh measures, such as home site enforcement. And then, there will be the issue of blended families, where out of several people occupying a single dwelling, perhaps only one or a few of them are illegal. This will certainly lead to racial profiling, so that is a slippery slope to be sure.

I would contend that Jack's argument for home-site enforcement would be an unfortunate step and ratcheting up of enforcement that will hopefully never come to pass. I'm not saying that it is impossible that it could come to that in the future, I just am saying that I hope, pray, and,(with my fingers crossed), trust that it never will.

Posted by: Robert Gittelson | Oct 10, 2008 9:01:24 AM

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