• IRLI Staff

Lozano v. City of Hazleton

IRLI represented the City of Hazleton, Pennsylvania in a federal lawsuit brought by the American Civil Liberties Union (ACLU) and Puerto Rican Legal Defense and Education Fund (PRLDEF) on behalf of anonymous illegal aliens as well as landlords and businesses catering to unlawful aliens that challenged two Hazleton ordinances that prohibited business license holders from using unauthorized alien workers and landlords from knowingly renting properties to illegal aliens.

Hazleton enacted the laws because it had experienced a rapid increase in population during 2001-06, from approximately 23,000 to 30,000-33,000 residents, due in part to a significant influx of illegal aliens. Hazleton derives the majority of its tax revenues from a local income tax. However, the population increase was not accompanied by additional income tax revenues, because many of the new arrivals worked “off the books.” Consequently, the influx of illegal aliens overloaded the City’s budget. In addition to the fiscal costs, illegal aliens committed numerous crimes in Hazleton, including murder. In June 2006, the Mayor and City Council decided to exercise their authority, consistent with federal law, to take limited steps to discourage the employment and harboring of illegal aliens.

On October 31, 2006, the United States District Court for the Middle District of Pennsylvania granted the plaintiffs’ request for a Temporary Restraining Order. On July 26, 2007, the District Court issued an opinion and on August 7, 2007, the District Court issued a final order granting a permanent injunction against implementing the ordinances.

On August 23, 2007, Hazleton appealed the decision of the District Court to the United States Court of Appeals for the Third Circuit . On September 9, 2010, the Third Circuit affirmed the decision of the District Court but differed in its reasoning.

The Third Circuit held that the plaintiffs possessed standing to challenge the Ordinances generally, but did not have standing to challenge a severable private cause of action provision contained within the ordinances. In addressing the merits of the case, the Third Circuit held that the employment provisions of the ordinances to be conflict preempted. The Court found two principal conflicts. First, the Court held that the provisions disrupt a congressionally-struck balance between competing objectives. The Court held that Congress implicitly created a “careful balance” between deterring the employment of unauthorized aliens and preventing discrimination and minimizing burdens on employers. The Third Circuit contended that he employment ordinance upset this balance by placing too much emphasis on enforcement against employers who knowingly hire unauthorized aliens. Second, the Third Circuit held that the ordinance “coerces use of E-Verify,” which “contradict[s] congressional intent for E-Verify to remain fully voluntary for the vast majority of employers . . . .”

In reviewing the harboring provisions, the Third Circuit declined to apply the presumption against preemption. The Third Circuit held that field preemption had occurred and that the Ordinances intruded on the field by denying illegal aliens the opportunity to rent apartments in the City. The Third Circuit reasoned that “in essence” Hazleton was attempting to regulate the residence of aliens in the United States by “ensuring that persons do not enter or remain in a locality.” In addition, the Third Circuit held that the ordinances were conflict preempted because “unlawful immigration status does not lead instantly, or inevitably, to removal[,]” and because the City could not precisely “predict” whether the federal government would “initiate proceedings against a particular alien.” The Third Circuit surmised that the federal government “tacitly allows the presence of some aliens whose technical status remains ‘illegal.’ ”

Hazleton appealed to the U.S. Supreme Court. In May 2011, the Supreme Court vacated the Third Circuit’s holding and ordered the appeals court to reconsider its decision in light of the Supreme Court’s Chamber of Commerce v. Whiting recent decision.

On September 27, 2011, IRLI filed a brief on behalf of Hazleton with the Third Circuit explaining how the U.S. Supreme Court’s recent decision in Chamber of Commerce v. Whiting has invalidated the Third Circuit’s prior holding in the case. IRLI argued that the Third Circuit’s Opinion, which found both Hazleton’s employment and housing provisions preempted, could no longer stand after Whiting. The City argued that the Supreme Court had expressly approved of a similar employment law passed by Arizona, which was virtually non-distinguishable from the Hazleton employment ordinance. The Supreme Court clarified that there is an exceptionally high burden of proof a plaintiff must meet before a court could find a state or local immigration-related law preempted.

Also, the Arizona v. United States, 183 L. Ed. 2d 351, 376 (2012), decision gave strong support for city and state laws that rely upon communications between the federal and state or local officials regarding immigration status inquiries. First, the Supreme Court noted clear encouragement by Congress for state involvement in sharing immigration status and enforcement data: “Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to ‘communicate with the [Federal Government] regarding the immigration status of any individual . . . .”

Second, Arizona explained that Congress requires the Federal Government to answer requests for immigration status inquiries made by state and local officers: “Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or immigration status.” Id. at 376-77 (citing 8 U.S.C. §§ 1373(c); 1226(d)(1)(A)).

Finally, the Supreme Court explained that ICE (U.S. Immigration and Customs Enforcement) must respond even if local police interests and U.S. Department of Homeland Security (DHS) agency priorities differ: “[T]he [Arizona] officers must make an in inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. . . .Congress has done nothing to suggest it is inappropriate to communicate in these situations. Indeed, it has encouraged sharing of information about possible immigration violations.” 377 (citing 8 U.S.C. § 1357(g)(10)(A)).

The IRLI brief explains that the Hazleton ordinance was built on this doctrine of extensive cooperation and the required federal government response to local immigration status inquiries. Hazleton requires all individuals to submit information when obtaining an occupancy license in the City. After receiving a valid complaint, the City uses that information to verify the immigration status of that individual with the federal government—to which the Federal Government must respond.

Despite the Supreme Court’s Whiting decision, the Third Circuit ruled against Hazleton again. On October 24, 2013, the City appealed to the U.S. Supreme Court a second time. The Supreme Court denied its petition.

See also:

City of Hazleton v. Lozano listed as Scotusblog’s Petition of the Day, February 5, 2014

Hazleton Files Petition for Certiorari, October 22, 2013

IRLI Hazleton brief: US Supreme Court ruling in AZ v US supports local enforcement ordinances, July 27, 2012

IRLI Brief Explains the Impact of Chamber Of Commerce v. Whiting Filed in Third Circuit, September 27, 2011

IRLI Petitions US Supreme Court for Review in Hazleton Local Ordinances Case, December 10, 2010

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