Wednesday, July 24, 2013
As Dean Kevin Johnson blogged yesterday, the 5th Circuit held en banc in Villas at Parkside v. City of Farmers Branch that the city's Ordinance 2952 conflicts with federal immigration law and is thus preempted. (Download Fb_en_banc_decision).
Those who are familiar with the case know that Farmers Branch Ordinance 2952 exemplifies the extent to which property, immigration and criminal law intersect. (AALS recently hosted a workshop on the intersection of property and immigration law). Ordinance 2952 required individuals to obtain a license before renting an apartment or single-family housing. Under the ordinance, individuals declare whether they are US citizens or nationals; those who do not become subject to inquiries by the city in which the city's building inspector verifies with the federal government whether the individual is lawfully present in the US. Those individuals whom the federal government reports are present in the US lawfully lose their occupancy license. Ordinance 2952 also criminalized persons for renting housing without an occupancy license and landlords from knowingly renting housing to persons without a housing license. Additionally, Ordinance 2952 established judicial review of the revocation of licenses.
There were several opinions issued in this case and each offered a different preemption analysis. I summarize a few of them here (primarily the majority and concurring opinions) and hope to blog some more about the other opinions later.
Judge Higginson, writing for the majority in Villas at Parkside v. City of Farmers Branch, relies primarily on conflict preemption to opine that Ordinance 2952 is preempted. (Judge Higginson majority opinion was joined by Chief Judge Stewart, Davis, Southwick, and Haynes). In particular, Judge Higginson wrote that Ordinance 2952 conflicts with 8 USC 1324(a)(1)(A)(iii), the federal anti-harboring law, which makes it a felony to "harbor, shield or conceal" an undocumented noncitizen. The court noted that the federal anti-harboring law has been interpreted to mean that "something is being hidden from detection." By contrast, Ordinance 2952 does not require a landlord to know or recklessly disregard a renter's violation of federal immigration law or to shield a renter from detection. Indeed, the majority commented that by criminalizing a landord's decision to rent to a removable noncitizen, Ordinance 2952 obstructs the federal anti-harboring law, which requires removable noncitizens to provide the federal government with a reliable address "to guarantee and speed the removal process." Additionally, the court emphasized other ways in which Ordinance 2952 conflicts with the federal anti-harboring law, including the fact that the federal government has sole authority under the federal statute to prosecute, convict and sentence violators of the law. Moreover, the judicial review of the revocation of occupancy licenses (which would have included a determination of whether the occupant is lawfully present in the US) conflicted with the sole authority of federal government to "classify noncitizens."
Interestingly, Judge Higginson wrote a separate special concurrence in which he expresses the view that the ordinance was not field preempted. He explained that, "the Ordinance regulates the ability of non-citizens to obtain rental housing, and Congress has not determined that housing of non-citizens falls within its exclusive authority." That is, there was no specific "ousting" of historic police powers in this case. (He then cites in a footnote an article that I co-wrote with Pratheepan Gulasekaram in 2009, Sanctuary Policies & Immigration Federalism: A Dialectic Analysis, to note the complexity of applying Decanas v. Bica, 424 U.S. 351 (1976), in "sub-federal immigration regulation.")
Judge Reavley (joined by Judge Graves) concurred only in the judgment. Judge Reavley's opinion focused on field preemption. He explained that Congress's "framework for removal provided in the INA and the discretion allowed by that framework show that Congress has occupied the field of alien removal." What is particularly noteworthy from my perspective about Judge Reavley's opinion is that he pointed out the anti-Latino and anti-immigrant purpose of the Ordinance. He stated that "ordinance is surely offensive to immigrants and to our neighbors to the south" and noted that his "colleagues are silent about this." Indeed, he commented that the ordinance reminiscent of the "anti-Japanese fever" that existed in the 1940s. (To be sure, these comments fall squarely more under an equal protection analysis instead of preemption analysis).
Judge Dennis, joined by Judge Reavley, Prado and Graves, wrote that the "Ordinance is even more fundamentally flawed than" the majority acknowledged. Specifically, Judge Dennis opined that the the Ordinance was "preempted in all of its core provisions" (and not just the criminal offense and judicial review provisions of the Ordinance). Judge Dennis further stated the "regulat[ion of] the residence of noncitizens within the United States" is necessarily exclusive of infringement by state or local legislation."
Overall, the foregoing opinions underscore the different views about the application of the preemption doctrine in immigration law. I'll blog about the other opinions in a later post.