Oliveri on Landlord-Tenant Issues and Anti-Illegal Immigrant Ordinances

Rigel Christine Oliveri (U. Missouri) has posted Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination on SSRN.  Here's the abstract:

In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.

This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants. Faced with penalties for renting to unauthorized immigrants, landlords have the clear incentive to screen their tenants' immigration status. However, given the difficulty of ascertaining legal status (and the absence of any reliable mechanism for doing so), landlords are instead likely to resort to short-cuts, such as refusing to rent to "foreign-seeming" people and discriminating based on accent, surname, appearance, or other ethnic markers. As a result, these restrictions are likely to (1) cause landlords to violate the federal Fair Housing Act, which prohibits discrimination on the basis of national origin, and (2) lead to discrimination against all ethnic minority groups whose members look or sound "foreign," regardless of their immigration or citizenship status. In addition to the violations of federal fair housing law that are likely to occur, there are significant public policy arguments against immigration-related housing restrictions.

Federal intervention is therefore necessary. Congress must act to prevent municipalities from enacting and enforcing such restrictions. Moreover, Congress must itself resist pressure to enact immigration-related housing restrictions as a matter of national policy. But this is not enough. Historic and current levels of housing discrimination against national origin minorities and immigrants indicate that these groups are already in need of greater protection, yet the law contains significant gaps in coverage. Both alienage and legal status remain permissible bases for discrimination under the Fair Housing Act. As long as this is the case, discrimination against national origin minorities who are citizens and legally present non-citizens is encouraged to continue. Thus, the Fair Housing Act should be amended to contain explicit protection for both alienage and legal status.

Ben Barros

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