IRLI successfully represented the City of Fremont, Nebraska in defending against two federal lawsuits brought by the American Civil Liberties Union (“ACLU”) and Mexican American Legal Defense and Educational Fund (“MALDEF”) on behalf of illegal aliens, among other special interest groups and individuals, (collectively “Plaintiffs”) that challenged an ordinance passed by voters that prohibited the employment and harboring of illegal aliens in the city.
The federal District Court of Nebraska in Omaha upheld most of Fremont’s pioneering citizen enforcement law, enacted by popular referendum in 2010, against twin lawsuits engineered by the ACLU and MALDEF. Federal judge Laurie Smith-Camp upheld all of the employment provisions of the ordinance, which was designed with assistance from IRLI attorneys. Judge Smith-Camp also found that the City could lawfully require all renters to obtain occupancy permits and verify the immigration status/citizenship status of all renters. However, in a partial setback, the court narrowly enjoined the part of the ordinance which authorized the revocation of an occupancy license on the basis of that person’s unlawful immigration status.
The court explained that although Congress wanted and intended for cities to assist in identifying those aliens who are not lawfully in the country, taking the additional step of revoking occupancy licenses for unlawfully present aliens would conflict with Congress’ intent and thus be preempted. The court reasoned that by revoking the occupancy licenses of these individuals, the federal government would no longer be able to identify the address where the unlawfully present alien resides. The court also held that the revocation sanction violated the Fair Housing Act under a theory of “disparate impact”— that the law disproportionately affected Latinos and Hispanics because the Court believed that those groups made up the majority of illegal aliens.
The City appealed the adverse portion of the decision to the U.S. Court of Appeals for the Eighth Circuit. In the Eighth Circuit, the Plaintiffs argued that the ordinance was preempted, violated the federal Fair Housing Act (“FHA”), and violated state law. In a 2-1 decision, the Eighth Circuit ruled in favor of the City and reversed the lower court’s decision against the City on the renter’s provision.
First, the court held that the ordinance was not preempted as a regulation of immigration or preempted under field or conflict theories. As to “regulation of immigration” preemption, the court rejected the argument that a City could not pass a law that deters illegal aliens from remaining in a particular locality. The court explained that the Plaintiffs’ broad view of this preemption theory is not consistent with Supreme Court precedent and the court disagreed with the prior vacated opinions in Hazleton and Farmer’s Branch.
As to “field preemption,” the court rejected the arguments that the alien registration statutes and the harboring statute field preempted the ordinance. The court explained that the ordinance was different from the state alien registration laws field preempted in Hines or Arizona because the Fremont Ordinance is not a registration system. Instead, the ordinance requires all renters, not just aliens, to obtain an occupancy license and the ordinance does not apply to all aliens, because it excludes non-renters. The court also explained that merely requiring the provision of some basic information, even if some of that information would be included under the registration laws, “does not turn a local property licensing program into a preempted alien registration system.” The court also held that the alien harboring statute did not “field preempt” the ordinance because the anti-harboring statute was not the kind of “framework of regulation so pervasive . . . that Congress left no room for the States to supplement it.”
Finally, as to “conflict preemption,” the court rejected the argument that the ordinance interfered with the federal “removal system.” The Court explained that because the ordinance “does not ‘remove’ any alien from the United States (or even from the City), federal immigration officials retain complete discretion whether and when to pursue removal proceedings.” Furthermore, the ordinance only required City officials to query the federal government involving an alien’s immigration status, as opposed to attempting to determine whether an alien is “removable.”
The court also rejected the claim that the ordinance discriminates against Latinos under the FHA. The Keller Plaintiffs argued that the Ordinance would result in a “disparate impact” on Latinos because “enforcing the ordinance would result in a reduction of the Hispanic population in Fremont.” However, the court rejected that claim, explaining that the Plaintiffs made “no attempt to identify the ‘relevant population’ to be compared, other than citing statistics” regarding the City’s foreign-born population. The court concluded that it would be “illogical to impose FHA disparate impact liability” under this ordinance when the effect of such a holding would be to protect a group whose status, as unlawfully present aliens, is not protected by the FHA.
The Plaintiffs appealed the case to the U.S. Supreme Court who refused to hear the case.
Fremont Argues Against Supreme Court Reviewing Its Case, April 01, 2014
City of Fremont Ordinance Upheld, IRLI Wins in the Eighth Circuit, June 28, 2013
IRLI Defends City of Fremont in Eighth Circuit Oral Argument, December 18, 2012
IRLI Defends City of Fremont Ordinances in Eighth Circuit, July 11, 2012
Nebraska Federal Judge Issues Favorable Decision in Fremont Ordinance Case, March 26, 2012