Between a rock and a hard place: landlords, latinos, anti-illegal immigrant ordinances, and housing discrimination

Vanderbilt Law Review

Volumn 62, Issue 1, 2009, Pages 55-125

  Oliveri, Rigel C ^a  

^a UNIVERSITY OF MISSOURI   (United States)

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EID: 62449207057     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (509)

1. Editorial, Mayberry I.N.S., CHI. TRIB., Oct. 16, 2006, at A18.
2. JEFFREY S. PASSEL, PEW HISPANIC CENTER, THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN tHE U.S. 2 (2006), http://pewhispanic.org/files/reports/61.pdf.
3. See, e.g., Hiroshi Motomura, Federalism, International Human Rights, and Immigration Exceptionalism, 70 U. COLO. L. REV. 1361, 1365 (1999) (noting the increase in state and local involvement in immigration law);
4. Huyen Pham, The Private Enforcement of Immigration Laws, 96 GEO. L.J. 777, 785-96 (2008) (describing private enforcement of immigration laws in the areas of employment, housing, and transportation);
5. Cristina M. Rodriguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567, 569 (2008) (noting the rise of state and local efforts to control immigration);
6. Peter Spiro, Learning to Live With Immigration Federalism,
7. CONN. L. REV. 1627, 1640-42 (1997) (observing the dramatic expansion of the role played by states and localities in immigration law and policy).
8. Not every AII ordinance contains all of these types of provisions, but all contain some combination of the above. There are many other state laws that could fall under the description of "Anti-Illegal Immigrant" legislation, including those which limit eligibility for in-state tuition and require proof of legal residency in order to obtain a driver's license. Because this Article focuses on municipal ordinances, these state laws will not be addressed in any significant detail.
9. See generally Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 787 (2008);
10. Michael A. Olivas, Immigration-Related State and Local Ordinances: Preemption, Prejudice, and the Proper Role for Enforcement, 2007 U. CHI. LEGAL F. 27;
11. Pham, supra note 3;
12. Rodríguez, supra note 3;
13. Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57;
14. Spiro, supra note 3.
15. Two notable exceptions are Pham, supra note 3, at 785-96,
16. and Kristina M. Campbell, Local Illegal Immigration Relief Act Ordinances: A Legal, Policy, and Litigation Analysis, 84 DENV. U. L. REV. 1041, 1041-45 (2007).
17. Both discuss the various types of provisions. Their treatment of the housing issues, while good, is brief and only accounts for a fraction of each paper. Peter Schuck also addresses the substantive policy issues surrounding state action on immigration-related matters, but he focuses only on employer sanctions, employment-based admissions, and cooperative law enforcement. Schuck, supra note 5, at 64.
18. San Bernardino, Cal., Illegal Immigration Relief Act Ordinance (proposed April 2006), available at http://firecoalition.com/downloads/San- Bernardino-Illegal-Immigration-Ordinance.doc. During the 1990s, some states passed what might be considered precursors to these AII ordinances. The most well known of these state laws is California's Proposition 187, a ballot initiative which eliminated most public benefits for unauthorized immigrants and forbade their attendance at public schools. 1994 Cal. Legis. Serv. Prop. 187 (West) (approved Nov. 8, 1994), overturned in significant part by League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 786-87 (C.D. Cal. 1995).
19. Illegal Immigration Relief Act Ordinance, supra note 7.
20. Ashley Powers, Petition Would Force Vote on Illegal Immigrant Curbs, L.A. TIMES, Apr. 27, 2006, at B4;
21. James Sterngold, San Bernardino Seeking "Relief": Struggling City's Proposal Targets Illegal Immigrants, S.F. CHRON., Jun. 11, 2006, at A4.
22. Hazleton, Pa., Ordinance 2006-18, Illegal Immigration Relief Act Ordinance (July 13, 2006), available at http://clearinghouse.wustl.edu/ detail.php?id=5472 (hereinafter Hazleton Ordinance).
23. The Fair Immigration Reform Movement maintains a database of AII ordinances, available at http://www.immigrantsolidarity.org/Documents/ Nov06OverviewLocalOrdinances/ OverviewofRecentLocalImmigrationOrdinancesandResolutions.pdf (last visited Jan. 22, 2009).
24. Farmers Branch, Tex., Ordinance 2903 (May 22, 2007), available at http://www.ci.farmers-branch.tx.us/sites/default/files/Ordinance%20No%202903. pdf [hereinafter Farmers Branch Ordinance];
25. Cherokee County, Ga., Ordinance 2006-03 (Dec. 5, 2006), available at http://clearinghouse.wustl.edu/chDocs/public/IM-GA-0001-0003.pdf [hereinafter Cherokee County Ordinance];
26. Valley Park, Mo., Ordinance 1715 (Sept. 26, 2006), available at http:/clearinghouse.wustl.edu/chDocs/public/IM-MO-0001-0009.pdf [hereinafter Valley Park Ordinance 1715],
27. amended by Valley Park, Mo., Ordinance 1721 (Feb. 14, 2007), available at http://clearinghouse.wustl.edu/chDocs/public/IM-MO-0001- 0015.pdf [hereinafter Valley Park Ordinance 1721];
28. Escondido, Cal., Ordinance 2006-38, available at http://clearinghouse.wustl.edu/chDocs/public/IM-CA-0001-0002.pdf [hereinafter Escondido Ordinance];
29. Riverside, N.J., Ordinance 2006-16, Illegal Immigration Relief Act Ordinance, amended by Riverside, N.J., Ordinance 2006-19, available at http://clearinghouse.wustl.edu/chDocs/public/IM-NJ-0001-0005.pdf,
30. and Riverside, N.J., Ordinance 2006-26, available at http://clearinghouse.wustl.edu/chDocs/public/IM-NJ-0001-0006.pdf [hereinafter Riverside Ordinance 2006-26]. Because these six ordinances are the most well documented and because they are fairly representative of the ordinances that have been passed around the country, they will be the primary focus of this Article.
31. 496 F. Supp. 2d 477, 484 (M.D. Pa. 2007).
32. See, e.g., Julia Preston, City's Immigration Restrictions Go On Trial, N.Y. TIMES, Mar. 13, 2007, at A13 (describing Hazleton litigation as "a test case about the power of cities to crack down on illegal immigration").
33. At the time of this writing, Hazleton was appealing the case to the U.S. Court of Appeals for the Third Circuit. American Civil Liberties Union of Pennsylvania, Challenge to Hazleton's Anti-Immigrant Ordinance, http://www.aclupa.org/issues/immigrantsrights/hazleton/index.htm (last visited Jan. 1, 2009).
34. As of this writing, the status of the AII ordinances in the five other municipalities in which litigation occurred is as follows: Valley Park: Gray v. City of Valley Park, No. 4:07CV00881-ERW, 2007 WL 2303952, at *1 (E.D. Mo. Aug. 8, 2007) (dismissing housing-related aspects of the case), and Reynolds v. City of Valley Park, No. 4:06CV01487-ERW, 2006 WL 3331082, at *9 (E.D. Mo. Nov. 15, 2006) (involving a housing ordinance that the city amended in July 2007, removing all reference to immigration, and case was dismissed as moot in August 2007);
35. Cherokee County: Robert Stewart, Inc. v. Cherokee County, No. l:07-cv-00015-TCB (N.D. Ga. filed Jan. 4, 2007) (entering consent order for permanent injunction against ordinance), available at http://clearinghouse.wustl.edu/chDocs/public/IM-GA-0001-9000.pdf;
36. Escondido: Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1060 (S.D. Cal. 2006) (entering a temporary restraining order in November 2006, which lead city to voluntarily withdraw ordinance on December 14, 2006);
37. Riverside: Riverside Coal. of Bus. Pers. & Landlords v. Township of Riverside, No. l:06-cv-05521-RMB-JS (D.N.J. filed May 11, 2007) (involving an ordinance that the city repealed in September 2007, after which plaintiffs agreed to dismiss the case), available at http://clearinghouse.wustl.edu/ chDocs/public/IM-NJ-0001-9000.pdf, and Assembly of God Church Riverside v. Township of Riverside, No. l:06-cv-03842-RMB-AMD (D.N.J. filed Nov. 2, 2007) (following the repealed ordinance in September 2007, plaintiffs filed a summary judgment motion and request for attorneys' fees), available at http://clearinghouse.wustl.edu/chDocs/public/IM-NJ-0002-9000.pdf;
38. Farmers Branch: Villas at Parkside Partners v. City of Farmers Branch, Nos. 3:06-CV-2371-L, 3:06-CV-2376-L, 3:07-CV-0061-L, 2007 WL 1836844, at *5 (N.D. Tex. June 26, 2007) (denying city's motion to dismiss without prejudice), and Villas at Parkside Partners v. City of Farmers Branch, Nos. 3:06-CV-2371-L, 3:07-CV-0061-L, 2008 WL 2201980, at *19 (N.D. Tex. May 28, 2008) (granting plaintiff's motion for partial summary judgment and entering permanent injunction).
39. While the case was pending, Farmers Branch enacted a new version of its AII ordinance, Ordinance 2952 (Jan. 22, 2008), available at http://www.ci.farmers-branch.tx.us/sites/default/files/Ordinance%20No%202952. pdf, which cures many of the deficiencies noted in the court's June 2007 order.
40. The new ordinance was challenged by the ACLU and the Mexican American Legal Defense and Education Fund, and a preliminary injunction was granted. See Press Release, ACLU, Farmers Branch, Texas Anti-Immigrant Ordinance Is Blocked While Challenge Continues (Sept. 22, 2008), available at http://www.aclu.org/immigrants/discrim/36876prs20080922.html. The Farmers Branch City Council, which plans to appeal, has declared that the ordinance is not to take effect pending the outcome of the litigation.
41. Hazleton Ordinance, supra note 10, § 5(B)(1). This language is similar to the language commonly used in municipal ordinances for the reporting of suspected violations of the property maintenance code. Other ordinances with similar complaint procedures include those enacted by Cherokee County, Escondido, Riverside, and Valley Park.
42. Id. § 5(A)(3) (landlord must provide information within three days);
43. see also Cherokee County Ordinance, supra note 12, § 18-504(c) (within five days);
44. Valley Park Ordinance 1715, supra note 12, § 5(A)(3) (within three days);
45. Riverside Ordinance 2006-26, supra note 12, § 166-5(A)(3) (within three days).
46. Hazleton Ordinance, supra note 10, § 5(B)(3). As discussed in Section III.B.3 infra, there is no federal database in existence which is capable of quickly verifying the legal status of every person in the United States - citizen and noncitizen, immigrant and non-immigrant visitor - for the purpose of determining whether they can enter into a residential lease.
47. Cherokee County Ordinance, supra note 12, § 18-504(d) (five days);
48. Valley Park Ordinance 1715, supra note 12, § 5(B)(4) (five days);
49. Hazleton Ordinance, supra note 10, §5(B)(4) (five days);
50. Escondido Ordinance, supra note 12, § 16E-2(d) (ten days);
51. Riverside Ordinance 2006-26, supra note 12, § 166-5(B)(4) (seven days).
52. Hazleton Ordinance, supra note 10, § 5(B)(4).
53. Id. § 5(B)(8) (imposing $250 fine per violation). Other municipalities imposed similar or harsher penalties. Farmers Branch Ordinance, supra note 12, § 6 (imposing a fine of $500 per violation);
54. Valley Park Ordinance 1715, supra note 12, § 5(B)(8) (imposing $250 fine per violation);
55. Escondido Ordinance, supra note 12, § 16E-2(g) (imposing a fine of up to $1,000 per day by referring to the penalties permitted under Escondido Municipal Code 16-249);
56. Riverside Ordinance 2006-26, supra note 12, § 166-5(B)(7)(imposing a fine of at least $1,000 and up to $2,000 per offense).
57. Hazleton Ordinance, supra note 10, § 5(A)(2).
58. There appears to be a discrepancy here, as the ordinance gives the landlord five days to cure the violation before his rental license is suspended, but only one day before the fines start accruing. Compare id. § 5(A)(2), with id. § 5(B)(4).
59. Id. § 5(A)(3).
60. Escondido Ordinance, supra note 12, § 16E-2(h) (referring to the penalties permitted under Escondido Municipal Code 16-249, which allows for imprisonment for up to six months);
61. Riverside Ordinance 2006-26, supra note 12, § 166-5(B)(7) (allowing for a term of imprisonment not to exceed 90 days).
62. Hazleton Ordinance, supra note 10, § (5)B(9).
63. It is not clear what information the landlord must provide to the City in order for the landlord-initiated verification to take place, but presumably it is similar to the information that the landlord must supply in response to a complaint.
64. Valley Park Ordinance 1721, supra note 12, § 2(a).
65. Id.
66. Id.
67. Hazleton, Pa., Ordinance 2006-13 § 7(b)(1) (Aug. 15, 2006), available at http://clearinghouse.wustl.edu/detail.php?id=5472.
68. Id. § 7(b)(1)(g).
69. Hazleton has another ordinance, 2006-40, that amends the complaint procedure ordinance, 2006-18, which states, "At no point shall any City official attempt to make an independent determination of any alien's legal status, without verification from the federal government." Hazleton, Pa., Ordinance 2006-40 § 7(E) (Dec. 13, 2006), available at http://clearinghouse.wustl.edu/detail.php?id=5472. In light of this, it appears that such a query would be submitted to the federal government.
70. Farmers Branch Ordinance, supra note 12, § 3(B).
71. Id. § 3(B)(4)(ii).
72. See Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 771 (N.D. Tex. 2007) ("[B]efore a landlord can even enter into a lease or rental agreement, the landlord must take the necessary first step of requiring the submission of documentation related to citizenship or immigration status.").
73. See, e.g., Hazleton Ordinance, supra note 10, § 10(b) (imposing a fine of $1,000 for each occupant who lacks a permit, plus $100 per day for each day that the landlord is out of compliance).
74. Villas at Parksíde Partners v. City of Farmers Branch, Nos. 3:06-CV-2371-L, 3:06-CV-2376-L, 2008 WL 2201980, at *5-13 (N.D. Tex. May 28, 2008) (issuing permanent injunction against local ordinance on federal preemption grounds);
75. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 530-33 (M.D. Pa. 2007) (enjoining local ordinance permanently as preempted by federal law);
76. Reynolds v. City of Valley Park, No. 06-CC-3802, 2007 WL 857320 (Mo. Cir. Ct. St. Louis County Mar. 12, 2007) (enjoining ordinance because it conflicted with state landlord tenant law and because the penalties it imposed were greater than municipalities of its class could impose under state law),
77. Hazleton, 496 F. Supp. 2d at 521-25. Statutory field preemption exists when Congress has manifested the intent to clearly occupy the field through legislation, leaving no room for states to legislate, even when such state legislation would be harmonious with the federal statute. De Canas v. Bica, 424 U.S. 351, 356-58 (1976).
78. 8 U.S.C. § 1324(a)(l)(A)(iii) (2000).
79. Black's Law Dictionary defines "Harboring an Illegal Alien" as "the act of providing concealment from detection by law-enforcement authorities or shelter, employment, or transportation to help a noncitizen remain in the United States unlawfully, while knowing about or recklessly disregarding the noncitizen's illegal immigration status." BLACK'S LAW DICTIONARY 733 (8th ed. 2004) (emphasis added).
80. Compare United States v. Acosta De Evans, 531 F.2d 428, 430 (9th Cir. 1976) (construing "harbor" to mean "afford shelter to"), and United States v. Lopez, 521 F.2d 437, 441 (2d Cir. 1975) (broadly interpreting the term "harboring" to include "providing of shelter to"), with Susnjar v. United States, 27 F.2d 223, 224 (6th Cir. 1928) (holding that the defendant must have acted with intent to shield the undocumented immigrant from detection).
81. Pham, supra note 3, at 792.
82. See, e.g., Escondido Ordinance, supra note 12, § 16E-l(a) (incorporating harboring language).
83. Id.;
84. see also Hazleton Ordinance, supra note 10, § 2(E) (citing the federal harboring provision, stating that "the provision of housing to illegal aliens is a fundamental component of harboring");
85. Valley Park Ordinance 1715, supra note 12, § 2(E) (same);
86. Cherokee County Ordinance, supra note 12, § 1, ¶ 8 (same);
87. Riverside Ordinance 2006-26, supra note 12, § 166-2(F) (same).
88. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 525-29 (M.D. Pa. 2007). Conflict preemption occurs when subfederal governments are free to legislate because Congress has not preempted the field, but something about the legislation conflicts with federal law. See De Canas v. Bica, 424 U.S. 351, 358 n.5 (1976) (explaining when conflicting law is preempted).
89. Hazleton, 496 F. Supp. 2d at 533. "[T]here is no assurance that a [person] subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen. In light of the discretionary federal power to grant relief from deportation, a State cannot realistically determine that any particular undocumented [person] will in fact be deported until after deportation proceedings have been completed." Plyler v. Doe, 457 U.S. 202, 226 (1982).
90. For example: (1) aliens who have completed an application for asylum or withholding of removal; (2) aliens who have filed an application for adjustment of status to lawful permanent resident; (3) aliens who have filed an application for suspension of deportation; (4) aliens paroled into the United States temporarily for emergency reasons or reasons deemed strictly in the public interest; (5) aliens who are granted deferred action as "an act of administrative convenience to the government." 8 C.F.R. § 274a. 12(c) ¶¶ 8-11, 14 (2008).
91. For example, relief from removal may be obtained by spouses and other relatives of U.S. citizens, 8 U.S.C. §§ 1154, 1229b (2000), victims of domestic violence, id. § 1229b(b)(2),
92. and those seeking protection from persecution or torture under the Convention Against Torture, id. § 1231(b)(3);
93. 8 C.F.R. § 208.16-18. Additionally, the U.S. Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien: (1) has been an alien lawfully admitted for permanent residence for not less than 5 years; (2) has resided in the United States continuously for 7 years after having been admitted in any status; and (3) has not been convicted of any aggravated felony. 8 U.S.C. § 1229b.
94. Hazleton, 496 F. Supp. 2d at 525-29.
95. Id. The court also raised Due Process concerns because of the lack of a hearing or meaningful appeals procedure under the scheme set forth in the ordinance. Id. at 537-38.
96. Nos. 3:06-CV-2371-L, 3:07-CV-0061-L, 2008 WL 2201980, at *19 (N.D. Tex. May 28, 2008).
97. Id.
98. Id. at *9.
99. Id. at *7.
100. Id. at *7-10.
101. Id. at*ll-13.
102. 424 U.S. 351, 351 (1976).
103. De Canas held that the "[p]ower to regulate immigration is unquestionably exclusively a federal power." Id. at 354.
104. De Canas defined "regulation of immigration" as "a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id. at 355;
105. see also Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 (1948) ("The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization."). Because the power to regulate immigration is plenary, any state statute deemed a regulation of immigration must be struck down without the need for the court to look to the doctrines of field and conflict preemption. See De Canas, 424 U.S. at 354 (explaining breadth of federal power).
106. Farmers Branch, 2008 WL 2201980, at *13.
107. The court also found that the ordinance violated Due Process because it was impermissibly vague. Specifically, the ordinance failed to adequately inform the landlords who were subject to it about what acts were prohibited because of its confused descriptions of the meaning of "eligible immigration status" and lack of guidance with respect to documentation requirements. Id. at * 16-17.
108. Indeed, Farmers Branch recently enacted a new version of its ordinance, Ordinance 2952, that fixes the drafting problems which led the court to determine that the ordinance impermissibly regulated immigration. Specifically, the new ordinance removes all references to the standards for eligibility for housing assistance set forth by HUD. Farmers Branch Ordinance 2952 (Jan. 22, 2008), available at http://www.ci.farmers-branch.tx.us/sites/default/ files/Ordinance%20No%202952.pdf.
109. Courts have recently broken with Hazleton in holding that the employment provisions of AII ordinances, which the Hazleton court found to be field preempted, are not preempted by federal law. See Arizona Contractors Ass'n, Inc. v. Candelaria, Nos. CV07-02496, CV07-02518, 2008 WL 343082, at *6-7 (D. Ariz. Feb. 7, 2008) (finding state statute not preempted);
110. Gray v. City of Valley Park, No. 4:07CV00881, 2008 WL 294294, at *9-12 (E.D. Mo. Jan. 31, 2008) ("The statute at issue is such a licensing law, and therefore is not expressly preempted by the federal law.").
111. It should be noted that both of the laws at issue made suspension or revocation of business licenses the only sanction for offending employers, and that IRCA contains an express exception from preemption for "licensing and similar laws." 8 U.S.C. § 1324a(h)(2) (2000).
112. Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 145-46 (1963) (holding that partial congressional superintendence of a field does not foreclose ability of state to impose its own regulations, particularly when such regulation was part of the state's police power). Longstanding doctrine holds that states and municipalities have the police power to regulate housing through land use and zoning. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386-95 (1926).
113. Currently, virtually every municipal and county government in the country exercises these powers, and the majority of all housing-related decisions are made by local governments. See Tim Iglesias, Housing Impact Assessments: Opening New Doors for State Housing Regulation While Localism Persists, 82 OR. L. REV. 433, 437 (2003) ("[L]ocal governments make most of the important housing decisions. They largely decide what housing will be developed, how much of it, what kind, and where.").
114. Village of Belle Terre v. Boraas is perhaps the strongest endorsement of this municipal power. 416 U.S. 1, 1 (1974).
115. The case involved a group of six unrelated college students who sought to live together in Belle Terre, N.Y. Id.
116. They challenged a village zoning ordinance that limited the entire village to single-family occupancy. Id.
117. The Court deferred to the Village's authority to use its zoning power to address "family needs," and guarantee families a safe, quiet "sanctuary" away from the noise, traffic, and filth that come with higher density population. Id. at 9 (concluding that it is a permissible goal "to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people").
118. This power will give way to constitutional concerns such as family privacy if it is exercised in such a way as to prevent people who are related from living with one another. See Moore v. City of East Cleveland, 431 U.S. 494, 512 (1977) ("[T]he municipality is constitutionally powerless to abridge ... the freedom of personal choice of related members of a family to live together.").
119. This case is discussed infra at notes 187-88 and accompanying text. Other common examples of "human zoning" are the restrictions that some municipalities and states place on where sex offenders can live. Currently, some twenty states and over 400 local governments have zoning ordinances which limit where registered sex offenders can live. MARCUS NIETO & DAVID JUNG, CALIFORNIA RESEARCH BUREAU, THE IMPACT OF RESIDENCY RESTRICTIONS ON SEX OFFENDERS AND CORRECTIONAL MANAGEMENT PRACTICES: A LITERATURE REVIEW 21 (2006), available at http://www.library.ca.gov/crb/06/08/06-008.pdf. These ordinances typically prevent a sex offender from living within a certain distance from schools, day care centers, playgrounds, or parks. Such ordinances have routinely been upheld by courts.
120. Florida Lime & Avocado Growers, 373 U.S. at 143.
121. Courts have refused to find conflict preemption in cases where preemption seemed much more plausible than in the AII situation. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) (holding that Federal Atomic Energy Act did not preempt state tort action against nuclear power company);
122. Florida Lime & Avocado Growers, 373 U.S. at 142-43 (holding that a federal law prescribing standards for the maturity of Florida avocados did not preempt a California statute that required a stricter standard for avocados grown in California).
123. Cristina Rodriguez refers to this as the "de facto obsolescence of federal exclusivity." Rodriguez, supra note 3, at 576.
124. A growing body of scholarship argues against a strict focus on preemption, either as a practical or as a constitutional matter. See Huntington, supra note 5, at 792 (arguing that the Constitution allows immigration authority to be shared among levels of government);
125. Rodriguez, supra note 3, at 596 ("[C]ourt decisions that reject state and local efforts outright as ultra vires, instead of approaching potential preemption questions narrowly, thwart what should be an ongoing dialogue about these issues at the state and local levels.");
126. Schuck, supra note 5, at 64 (arguing against federal exclusivity as a functional matter);
127. cf. Olivas, supra note 5, at 35 (having previously made the case against subfederal attempts to enforce immigration law, shifting his argument to say that such efforts are bad as a matter of public policy, and will lead to a degradation of enforcement efforts at all levels).
128. Peter Schuck refers to the general tendency of federal programs to rely on state and local involvement as the "federalist default arrangement," Schuck, supra note 5, at 65, and notes that "the movement toward devolution is extremely powerful," Peter Schuck, Some Federal-State Developments in Immigration Law, 58 N.Y.U. ANN. SURV. AM. L. 387, 387 (2002).
129. Spiro, supra note 3, at 1628-39. Spiro refers to this as the "steam-valve" theory of immigration federalism. He argues that in many cases immigrant-rights supporters might prefer to let individual states impose restrictions on immigrants rather than force a situation where frustrated citizens in one state press for tough nationwide measures.
130. 8 U.S.C. § 1324a(a)-(h) (2000).
131. Id. § 1612(b)(1).
132. Id. § 1357(g).
133. Id. There is a good deal of scholarship on whether such agreements are constitutionally permissible and/or sound public policy. Compare Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. CIN. L. REV. 1373, 1409-12 (2006) (arguing such agreements should be subject to a balancing test between strict scrutiny and rational basis),
134. Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965, 987-91 (2004) (arguing the immigration power is an exclusively federal power that must be exercised uniformly),
135. and Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084, 1095 (2003) (arguing that enforcement of federal immigration rules is "reserved for federal officials"),
136. with Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 ALB. L. REV. 179, 199 (2005) (arguing such agreements are constitutional).
137. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988) (noting that governmental classifications based on race or national origin are given "the most exacting scrutiny").
138. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973).
139. Technically, of course, all people living in the United States today, with the exception of "pure-blooded" Native Americans, can trace their ancestry back to another country. Juan Perea, Los Olvidados: On the Making of Invisible People, 70 N.Y.U. L. REV. 965, 988 (1995) ("[T]he truth is that every American has an ancestry, traced far enough back in time, that began in another place or nation.").
140. See JOE R. FEAGIN, RACIAL AND ETHNIC RELATIONS 11-12 (3d ed. 1989) (discussing the meaning of "ethnic group"). There is a frequent overlap between national origin and race. For example, "Asian" is considered a racial category, but specific subgroups within this category, such as Korean or Vietnamese, are described in terms of national origin. Thus, discrimination against a Korean will frequently be classified as discrimination based on both race and national origin. The designation of Latino (or Hispanic), in contrast, refers only to a national origin group. Latinos can be of any race.
141. This has led some scholars to call for a re-imagining of national origin-based discrimination as discrimination based on ethnic traits. See, e.g., Stephen M. Cutler, A TraitBased Approach to National Origin Claims Under Title VII, 94 YALE L.J. 1164, 1164 (1985) (calling the current approach "virtually meaningless" and suggesting courts should "consider the heterogeneity that exists within a single national origin group");
142. Juan Perea, Ethnicity and Prejudice: Reevaluating "National Origin" Discrimination Under Title VII, 35 WM. & MARY L. REV. 805, 809 (1994) ("The increasingly visible Latino, African-American, and Asian populations of this country invite reexamination of Title VII of the Civil Rights Act of 1964 and its adequacy as a legal tool for redressing the present and future forms of discrimination likely to be experienced in a more diverse workforce." (citation omitted)).
143. Perea, supra note 78, at 806.
144. The more manifest these ethnic traits are, and the more they distinguish a person from "mainstream" America, the more likely they are to serve as a basis for discrimination. Neil Gotanda also uses an apt term, "racialized foreignness," which applies to particular groups who have had culturally embedded racial profiles constructed for them, implying foreignness and unassimilability. Neil Gotanda, Comparative Racialization: Racial Profiling and the Case of Wen Ho Lee, 47 UCLA L. REV. 1689, 1698-1703 (2000). A rich literature exists on the racialization of ethnicity and national origin, which is outside the scope of this Article.
145. See Robert S. Chang & Keith Aoki, Centering the Immigrant in the Inter /National Imagination, 10 LA RAZA L.J. 309, 311 (1998) (noting that some immigrants "remain perpetual foreigners" (citation omitted));
146. Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CAL. L. REV. 1241, 1258 (1993) (remarking that "many non-Asian Americans persist in thinking of Asian Americans as foreign");
147. Pat K. Chew, Asian Americans: The Reticent Minority and Their Paradoxes, 36 WM. & MARY L. REV. 1, 33-38 (1994) (noting how Asian Americans' physical appearance and immigration history has affected how they are perceived as foreigners);
148. Neil Gotanda, Other Non-Whites in American Legal History: A Review of Justice at War, 85 COLUM. L. REV. 1186, 1188 (1985) (referring to the "persistence of the view that even American-born non-Whites were somehow 'foreign' ");
149. Kevin R. Johnson, The New Nativism, in IMMIGRANTS
150. Kevin R. Johnson, Racial Hierarchy, Asian Americans and Latinos as '"Foreigners,"' and Social Change: Is Law the Way to Go?, 76 OR. L. REV. 347, 352-58 (1997) (discussing the treatment of Asian and Latino immigrants in the United States);
151. Perea, supra note 76, at 988-98 (discussing the role the "national origin" concept plays in the identity of immigrants as outsiders).
152. Professor Chang describes an incident in which he tried to cross the border to the United States after a brief visit to Canada. Chang, Toward an Asian American Legal Scholarship, supra, at 18. Even though all that was required at that time for a U.S. citizen to re-enter was a valid driver's license, the border guard insisted on seeing Chang's passport. Id.
153. The guard obviously imposed more stringent requirements upon Chang because he thought of Chang as foreign, while he allowed Caucasian drivers to cross the border with only a driver's license. Id.
154. See WASH. POST/KAISER FAMILY FOUND./HARVARD UNIV. SURVEY PROJECT, NATIONAL SURVEY ON LATINOS IN AMERICA 98 (2000), http://www.kff.org/kaiserpollsAoader.cfm?url=/ commonspot/security/getfile.cfm&PageID=13509 (finding fifty-seven percent of respondents believed that the majority of Latinos immigrating to the United States in the previous decade were illegal immigrants).
155. The actual percentage of those illegally present was twenty-five percent. Michael A. Fletcher, Poll Finds Latinos are Objects of Negative Perceptions, NEWARK STAR-LEDGER, May 29, 2000, at A7.
156. A 1993 survey revealed a similar disparity. See Joe R. Feagin, Old Poison in New Bottles, in IMMIGRANTS OUT!, supra note 80, at 13-43 (describing the 1993 survey in which two-thirds of respondents believed that most immigrants enter the United States illegally, while the actual percentage entering illegally is twenty-five percent).
157. See Ann M. Simmons, Latinos in New Orleans Suburb Feel Slighted, L.A. TIMES, Sept. 20, 2005, at All (describing FEMA's failure to provide emergency housing to legal Latino residents of severely damaged housing complex after Hurricane Katrina, and quoting FEMA official as saying that "part of the problem with the Hispanic community is that if you are illegal, you cannot apply for housing").
158. Linda Krieger provides a thorough analysis of this phenomenon and its significance for civil rights law in her influential article, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1186-1217 (1995).
159. A number of studies in the social psychology literature have demonstrated the tendency of the human brain to categorize and stereotype. See, e.g., Richard D. Ashmore & Frances K. Del Boca, Conceptual Approaches to Stereotypes and Stereotyping, in COGNITIVE PROCESSES IN STEREOTYPING AND INTERGROUP BEHAVIOR 1, 1-12 (David. L. Hamilton ed., 1981) (discussing the history of stereotype research and theory);
160. Henri Tajfel & A.L. Wilkes, Classification and Quantitative Judgment, 54 BRIT. J. PSYCHOL. 101, 104, 113 (1963) (describing experiment in which subjects exaggerated some differences across groups, but minimized differences within groups);
161. W. Edgar Vinacke, Stereotypes as Social Concepts, 45 J. SOC. PSYCHOL. 229, 229 (1957) (recognizing the "considerable body of research" that had accumulated on the nature of stereotypes).
162. Lu-in Wang, Race as Proxy: Situational Racism and Self-Fulfilling Stereotypes, 53 DEPAUL L.REV. 1013, 1044-45 (2004).
163. See Arnd Florack, Martin Scarabis & Herbert Bless, When Do Associations Matter? The Use of Automatic Associations Toward Ethnic Groups in Person Judgments, 37 J. EXPERIMENTAL SOC. PSYCHOL. 518, 518 (2001) (noting that most studies of automatic associations toward ethnic groups revealed "a clear ethnic bias");
164. see also Nilanjana Dasgupta, Implicit Ingroup Favoritism, Outgroup Favoritism, and Their Behavioral Manifestations, 17 SOC. JUST. RES. 143, 147-48 (2004) (discussing research on ingroup favoritism);
165. Samuel L. Gaertner & John P. McLaughlin, Racial Stereotypes: Associations and Ascriptions of Positive and Negative Characteristics, 46 SOC. PSYCHOL. Q. 23, 28 (1983) (reporting experiment in which Caucasian subjects were discovered to be more likely to ascribe positive characteristics to Caucasians than African-Americans).
166. The tendency to make favorable assumptions about one's own group is present even when assignment to groups is arbitrary. See Marilynn B. Brewer, In-Group Bias in the Minimal Intergroup Situation: A Cognitive-Motivational Analysis, 86 PSYCHOL. BULL. 307, 308 (1979) (discussing study where subjects were randomly assigned to an "X-group" and "Y-group" and judged members of their own group more favorably).
167. Nancy Cantor & Walter Mischel, Prototypicality and Personality: Effects on Free Recall and Personality Impressions, 13 J. RES. PERSONALITY 187, 196-202 (1979) (describing the results of an experiment in which the subjects recalled more information about persons matching a personality type than those that did not).
168. This phenomenon is typically referred to as "recall bias." Cf. Mark Snyder, On the Self-Perpetuating Nature of Social Stereotypes, in COGNITIVE PROCESSES IN STEREOTYPING AND INTERGROUP BEHAVIOR, supra note 83, at 190 ("Stereotypes influents and guide the remembering and interpretation of the past in ways that support and bolster current stereotyped interpretations of other people.").
169. See Nancy Cantor & Walter Mischel, Traits as Prototypes: Effects on Recognition Memory, 35 J. PERSONALITY & SOC. PSYCHOL. 38, 45 (1978) (describing experiment in which twenty-six students were placed in group sessions and were presented slides that described a fictional character and the students expressed "confidence that they had seen nonpresented but conceptually related material").
170. See, e.g., Patricia G. Devine, Stereotypes and Prejudice: Their Automatic and Controlled Components, 56 J. PERSONALITY & SOC. PSYCHOL. 5, 12 (1989) (reporting a study suggesting that when an individual's ability to consciously monitor stereotype activation is precluded, both those with high self-reported prejudice and those with low self-reported prejudice "produce stereotypecongruent or prejudice-like responses");
171. John F. Dovidio et al., On the Nature of Prejudice: Automatic and Controlled Processes, 33 J. EXPERIMENTAL SOC. PSYCHOL. 510, 517-18 (1997) (reporting study in which "White participants responded faster to positive words following a White prime than following a Black prime and faster to negative words following a Black [prime] than following a White prime," despite the participants' self-reported level of racial bias);
172. Daniel T. Gilbert & J. Gregory Hixon, The Trouble of Thinking: Activation and Application of Stereotypic Beliefs, J. PERSONALITY & SOC. PSYCHOL. 509, 510-11 (1991) (reporting experiment in which subjects applied stereotypes in their descriptions of either a Caucasian or Asian female assistant when they were asked to describe the assistant while quickly completing another task);
173. Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 PSYCHOL. REV. 4, 15-16 (1995) (discussing implicit race and gender stereotyping and defining "implicit stereotype" as "the introspectively unidentified (or inaccurately identified) traces of past experience that mediate attributions of qualities to members of a social category").
174. See Devine, supra note 88, at 12 (reporting study in which subjects with low levels of self-reported bias displayed levels of bias similar to those with high levels of self-reported bias);
175. Dovidio et al., supra note 88, at 518 (reporting experiment that "offers further evidence of implicit evaluation biases that may not be predicted from self-report measures of prejudice");
176. Gilbert & Hixon, supra note 88, at 515 (discussing experiment that suggests social interaction causes individuals "to become cognitively busy and thus reduces the likelihood that their stereotypes about each other will be activated");
177. Greenwald & Banaji, supra note 88, at 15 (discussing the results of a study on racial bias in which bias "occurred similarly for subjects who scored high and for ones who scored low on a direct (i.e., standard self-report) measure of race prejudice"). Unconscious bias is measured by using the Implicit Association Test, in which subjects are asked to make rapid determinations about whether particular concepts should be paired with particular attributes. Anthony G. Greenwald, Debbie E. McGhee & Jordan K.L. Schwartz, Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J. PERSONALITY & SOC. PSYCHOL. 1464, 1465-66 (1998).
178. Longer response times for associating a racial or ethnic group with positive traits and/or short response times for making a negative association is considered indicative of bias. Id.;
179. see also Bernd Wittenbrink, Charles M. Judd & Bernadette Park, Evidence for Racial Prejudice at the Implicit Level and Its Relationship with Questionnaire Measures, 72 J. PERSONALITY & SOC. PSYCHOL. 262, 264 (1997) (reporting experiment designed to examine the relationship between implicit and explicit associations of Caucasians toward African-Americans).
180. This phenomenon is referred to as "aversive racism." Sam L. Gaertner & John F. Dovidio, The Aversive Form of Racism, in PREJUDICE, RACISM, AND DISCRIMINATION 61, 61-63 (John F. Dovidio & Sam L. Gaertner eds., 1986).
181. Devine, supra note 88, at 15-16;
182. Gaertner & Dovidio, supra note 90, at 67-68.
183. There are two main categories of noncitizens who may be legally present in the United States. Non-immigrant visitors, who usually travel to the United States using visas, are permitted to reside in the United States for specific periods of time and for specific purposes, such as working for a particular employer or attending school. 8 U.S.C. § 1101(a)(15)(F), (H), (M) (2000). Immigrants, on the other hand, are people who desire to remain in the United States permanently. This group includes Permanent Resident Aliens (who are permitted to live and work in the United States indefinitely), Conditional Permanent Residents (who must petition to become Permanent Residents), and asylum-seekers and refugees (who enter the country without documents to establish legal status and must take steps to legalize their presence). Id. §§ 1101(a)(20), 1157-1158.
184. See, e.g., Pham, supra note 3, at 782 (noting that there is no "one definitive document that establishes legal presence"). A review of the U. S. Citizenship and Immigration Services website reveals that there are currently no less than seventy-five types of non-immigrant visas. U.S. Citizenship and Immigration Services, http://www.uscis.gov/portal/site/uscis (last visited Jan. 1, 2009). Some visitors may not possess visas because they come from countries that participate in the State Department's Visa Waiver Program; currently, there are twenty-seven countries that participate in this program. Visa Waiver Program, U.S. Dep't of State, Bureau of Consular Affairs, http://http://travel.state.gov/visa/temp/without/without-1990.html (last visited Jan. 1, 2009). In addition, certain immigrants may also be initially present under visas, such as family-based or employment-based visas. There are at least nine different visas for immigrants, as well as the Permanent Resident Card (also known as an Alien Registration Receipt Card, and commonly referred to as a "Green Card"), which is given to noncitizens who establish Permanent Resident Alien status, and the Conditional Permanent Resident Card, which is similar to a Permanent Resident Card but with a two-year expiration period. Immigration Classifications and Visa Categories: Immigrants, U.S. Citizenship and Immigration Services, http://www.uscis.gov/portal/site/uscis (last visited Jan. 1, 2009) (search "immigration classifications and visa categories"; access third result of search).
185. See U.S. GEN. ACCOUNTING OFFICE, REP. NO. GGD-99-33, ILLEGAL ALIENS: SIGNIFICANT OBSTACLES TO REDUCING UNAUTHORIZED ALIEN EMPLOYMENT EXIST 10 (1999) [hereinafter 1999 GAO REPORT], available at http://www.gao.gov/archive/1999/gg99033.pdf (noting that fraudulent employment eligibility documents are widely available due to large-scale counterfeiting);
186. Thomas C. Green & Ileana M. Ciobanu, Deputizing-and then Prosecuting-America's Businesses in the Fight Against Illegal Immigration, 43 AM. CRIM. L. REV. 1203, 1206-07 (2006) (arguing that counterfeit documents are the main reason for IRCA's failure to prevent the hiring of unauthorized workers).
187. See Campbell, supra note 6, at 1052-53 (discussing housing);
188. Matthew Parlow, A Localist's Case for Decentralizing Immigration Policy, 84 DENV. U. L. REV. 1061, 1072 (2007) (recognizing that AII ordinances may violate the rights of U.S. citizens and legally admitted aliens);
189. Pham, supra note 3, at 822-24 (noting that employers may discriminate because they do not understand the law);
190. cf. Valerie L. Barth, Comment, Anti-Immigrant Backlash and the Role of the Judiciary: A Proposal for Heightened Review of Federal Laws Affecting Immigrants, 29 ST. MARY'S L.J. 105, 113 (1997) (noting that the majority of victims of the discriminatory backlash that followed the passage of California's Proposition 187 were U.S. citizens or legal immigrants, not the illegal immigrants targeted by the initiative).
191. 8 U.S.C. § 1324(a) (2000).
192. See, e.g., S. REP. No. 99-132, at 9, 104, 109 (1986) (Sens. Kennedy and Simon stating their concerns about increased levels of discrimination against "foreign looking or foreign sounding individuals");
193. H.R. REP. No. 99-682(I), at 68 (1986), as reprinted in 1986 U.S.C.C.A.N. 5649, 5672 (reporting that witnesses at various congressional hearings expressed concerns that employer sanctions would "cause extensive employment discrimination against Hispanic-Americans and other minority group members");
194. Linda Sue Johnson, Comment, The AntiDiscrimination Provision of the Immigration Reform and Control Act, 62 TUL. L. REV. 1059, 1071 (1988) ("One of the most serious flaws of employer sanctions is that they will result in massive discrimination not only against documented aliens, but also against United States citizens of Hispanic origin and other minorities." (citation omitted)).
195. As discussed later in this Section, while national origin is a protected characteristic under the Fair Housing Act, the statute contains no such protection against alienage discrimination.
196. U.S. GEN. ACCOUNTING OFFICE, REP. No. GGD-90-62, IMMIGRATION REFORM: EMPLOYER SANCTIONS AND THE QUESTION OF DISCRIMINATION 39 (1990) [hereinafter 1990 GAO REPORT].
197. Id. at 8. Of course, this figure does not account for those employers who may have been discriminating on the basis of ethnic trait or alienage all along, and thus the actual amount of discrimination on these bases was undoubtedly higher.
198. U.S. COMM'N ON IMMIGR. REFORM,U.S. IMMIGRATION POLICY: RESTORING CREDIBILITY 80 (1994). This practice, known as "document abuse," is specifically prohibited. 8 U.S.C. § 1324b(a)(6) (2000).
199. See, e.g., Parlow, supra note 95, at 1071 (recognizing that some of the motivating factors behind AII are "unsavory);
200. Kenneth Juan Figueroa, Note, Immigrants and the Civil Rights Regime: Parens Patriae Standing, Foreign Governments and Protection from Private Discrimination, 102 COLUM. L. REV. 408, 416 (2002) (arguing that immigrants of manifest ethnicity are likely to be targets of hostilities based on racial, ethnic, and cultural prejudice, as well as prejudice based on alienage);
201. Alex Kotlowitz, Our Town, N.Y. TIMES, Aug. 5, 2007, § 6 (Magazine), at 33 (noting that in one jurisdiction contemplating an AII ordinance, the controversy "often seems less about illegal immigration than it does about whether new immigrants are assimilating quickly enough");
202. cf. Marlin W. Burke, Reexamining Immigration: Is It a Local or National Issue?, 84 DENV. U. L. REV. 1075, 1076-77 (arguing that much of the debate about illegal immigration is generally motivated by fear "that the racial, religious, and social make-up of our country is threatened" by immigration from Latin America).
203. See Johnson, The New Nativism, supra note 80, at 179-80 (describing how support of early anti-illegal immigrant measures often masked nativist opposition to all foreigners, or people believed to be foreigners).
204. Kristen Hinman, Valley Park to Mexican Immigrants: "Adios, Illegals!", RIVERFRONT TIMES (St. Louis), Feb. 28, 2007, at 1.
205. In this article, the Mayor goes on to refer to Mexicans as "beaners" and "wetbacks," and to describe how he first became a proponent of AII laws when a Mexican family-all of whom were legally present in the United States-moved in next door to his sister. Id.
206. See James Sterngold, San Bernardino Seeking "Relief", S.F. CHRON., June 11, 2006, at A4 ("When," the councilman is quoted as asking, "does it become my America?").
207. Verified Complaint for Declaratory & Injunctive Relief at 8, Vazquez v. City of Farmers Branch, No. 3-06CV2376-R (N.D. Tex. filed Dec. 26, 2006), available at http://clearinghouse.wustl.edu/ch.Docs/public/IM-TX-0001- 0001.pdf.
208. See, e.g., id. (quoting an AII ordinance proponent as saying, "There's unemployment partly because of the Hispanics. The lady who took my job is Hispanic, and she's bilingual," and another as saying, "The education system is tanking, health care has gone through the roof, everybody is bilingual.");
209. Ellen Barry, City Vents Anger at Illegal Immigrants, L.A. TIMES, July 14, 2006, at A1 (quoting a Hazleton waitress who describes being reprimanded by customers who heard her speak Spanish and being told by a customer that he wanted Immigration to "take away the Mexicans"). In Hazleton, a Latino opponent of the AII ordinance received racist hate mail calling him "[s]ubhuman spic scum," and stating "[i]f it is brown, flush it down." Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 510 (M.D. Pa. 2007).
210. The reporter had to be escorted from the rally by police for his own protection. Hazleton, 496 F. Supp. 2d at 510.
211. See, e.g., Rosita Johnson, Vigil, Lawsuits Challenge N.J. Town's Anti-Immigrant Law, PEOPLE'S WEEKLY WORLD, Aug. 22, 2006 (describing how a Latino prayer vigil opposing Riverside's AII ordinance was met by counter-demonstrators who displayed a Confederate flag with the motto "The South Will Rise Again" and chanted "Go home!"), available at http://www.pww.org/article/articleview/9722/;
212. Michael Powell & Michelle Garcia, Pa. City Puts Illegal Immigrants on Notice, WASH. POST, Aug. 22, 2006, at A3 (describing how whites who attended a Hazleton City Council meeting on the AII ordinance chanted "hit the road, Jack" at the Latinos present).
213. 42 U.S.C. §§ 3601-3619, 3631 (2000).
214. Id. § 3604(a).
215. For a thorough discussion of this subsection and its application to different housing scenarios, see ROBERT G. SCHWEMM, HOUSING DISCRIMINATION LAW AND LITIGATION §§ 13:1-13:16 (2007);
216. Rigel C. Oliveri, Is Acquisition Everything? Protecting the Rights of Occupants Under the Fair Housing Act, 43 HARV. C.R.-C.L. L. REV. 1, 4-5 (2008).
217. 42 U.S.C. § 3604(b).
218. For a thorough discussion of this subsection and its application to different housing scenarios, see SCHWEMM, supra note 112, §§ 14:1-14:3;
219. Oliveri, supra note 112, at 5-10.
220. For a thorough discussion of this subsection and its application to different housing scenarios, see SCHWEMM, supra note 112, §§ 15:1-15:13;
221. Oliveri, supra note 112, at 10-11;
222. Robert G. Schwemm, Discriminatory Housing Statements and § 3604(c): A New Look at the Fair Housing Act's Most Intriguing Provision, 29 FORDHAM URB. L.J. 187, 213-16 (2001).
223. 42 U.S.C. § 3604(d) (2000).
224. For a thorough discussion of this subsection and its application to different housing scenarios, see SCHWEMM, supra note 112, §§ 16:1-16:2.
225. 42 U.S.C. § 3617 (2000).
226. See 24 C.F.R. § 100.400(c) (2008) (interpreting 42 U.S.C. § 3617).
227. 24 C.F.R. § 100.400(c)(5).
228. Id. § 100.400(c)(l)-(2).
229. Id. § 100.400(c)(3)-(4).
230. For a thorough discussion of this subsection and its application to different housing scenarios, see SCHWEMM, supra note 112, §§ 20:1-20:6;
231. Oliveri, supra note 112, at 11-12.
232. See, e.g., Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290, 1298-1308 (11th Cir. 1998) (employee);
233. Sofarelli v. Pinellas County, 931 F.2d 718, 721-23 (11th Cir. 1991) (house mover);
234. Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir. 1975) (employee);
235. People Helpers Found., Inc. v. City of Richmond, 789 F. Supp. 725, 731-33 (E.D. Va. 1992) (nonprofit housing provider);
236. People Helpers Found., Inc. v. City of Richmond, 781 F. Supp. 1132, 1133-36 (E.D. Va. 1992) (same).
237. 42 U.S.C. § 3604 (2000).
238. See, e.g., Martinez v. Partch, No. 07-cv-01237, 2008 WL 113907, at *2 (D. Colo. Jan. 9, 2008) (dismissing plaintiff's federal housing discrimination claims alleging her rental application was denied solely on the basis of her citizenship status);
239. Corwin v. B'Nai B'Rith Senior Citizen Hous., Inc., 489 F. Supp. 2d 405, 409 (D. Del. 2007) ("The prohibition of discrimination based on 'national origin' does not prohibit discrimination on the grounds of citizenship.");
240. Espinoza v. Hillwood Square Mut. Ass'n, 522 F. Supp. 559, 568 (E.D. Va. 1981) (interpreting 42 U.S.C. § 3604(a) to "prohibit discrimination on the basis of national origin, but not alienage discrimination").
241. In fact, the Farmers Branch city ordinance specifically noted that the FHA does not contain any protection for alienage in its preamble. Farmers Branch Ordinance, supra note 12, pmbl. ("WHEREAS, the Fair Housing Act does not prohibit distinctions based solely on a person's citizenship status."). It should be made clear that everyone, regardless of alienage or legal status, is protected by the FHA's prohibition against national origin discrimination, and undocumented status does not deprive a person of the ability to vindicate her rights in a court of law. Cf. Mathews v. Diaz, 426 U.S. 67, 77 (1976) (finding that unlawful immigrants are entitled to constitutional protection from deprivation of life, liberty, and property without due process of law, as afforded to them by the Fifth and Fourteenth Amendments);
242. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 498-99 (M.D. Pa. 2007) (finding that unlawful immigrants still retain Due Process rights under the Fourteenth Amendment). Thus, an undocumented person has a cause of action under the FHA if she suffers housing discrimination on the basis of her Mexican national origin, but not if she is discriminated against because she is undocumented or because she is not a U.S. citizen.
243. A Reconstruction-era statute designed to protect the right to enter into contracts (including residential leases), 42 U.S.C. § 1981, offers some protection against alienage-based housing discrimination. However, this statute does not provide a complete solution. For one thing, muddled precedent and uncertain legislative history make it less than clear whether § 1981, which was originally intended to prohibit public acts of discrimination based on race, should be interpreted to prohibit private acts of alienage discrimination. See Aaron M. Danzig, Note, The Scope of 42 U.S.C. § 1981: Protection Against Private Alienage Discrimination, 11 GEO. IMMIGR. L.J. 527, 528-29 (1997) (noting circuit split on whether § 1981 prohibits private alienage discrimination);
244. Angela M. Ford, Comment, Private Alienage Discrimination and the Reconstruction Amendments: The Constitutionality of 42 U.S.C. § 1981, 49 U. KAN. L. REV. 457, 459 (2001) (noting multiple disagreements among courts and unclear legislative history for both the original 1870 Act and the 1991 amendments).
245. Compare Murtaza v. N.Y. City Health & Hosps. Corp., No. 97-CV-4554, 1998 WL 229253, at *10 (E.D.N.Y. Mar. 31, 1998) (holding that § 1981 does not apply to alienage discrimination),
246. and Rios v. Marshall, 530 F. Supp. 351, 360-61 (S.D.N.Y. 1981) (same), with Nagy v. Balt. Life Ins. Co., No. 99-1859, 2000 WL 718391, at *5 (4th Cir., June 5, 2000) (holding that § 1981 applies to acts of alienage discrimination by private parties), Anderson v. Conboy, 156 F.3d 167, 169 (2d Cir. 1998) (same), Duane v. Geico, 37 F.3d 1036, 1042-43 (4th Cir. 1994) (same), Martinez v. Partch, No. 07-cv-01237, 2008 WL 113907, at *2 (D. Colo. Jan. 9, 2008) (same), Chacko v. Tex. A&M Univ., 960 F. Supp. 1180, 1191 (S.D. Tex. 1997) (same), Cheung v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 913 F. Supp. 248, 251 (S.D.N.Y. 1996) (same), and Doe v. Edgar, No. 88 C 579, 1989 WL 91805, at *6 (N.D. III. Aug. 4, 1989) (same). The weight of this authority points in favor of such coverage. Even if § 1981 is clearly held to prohibit private alienage discrimination, it is still an inferior tool to the FHA. The most significant weakness is that disparate impact theory is not available for cases brought under § 1981. See Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 386 (1982) (holding that § 1981 only applies to intentional discrimination and not to "practices that merely result in a disproportionate impact on a particular class"). As discussed in the following paragraphs, disparate impact theory is often the most viable theory for bringing a national origin case, because national origin discrimination frequently takes the form of discrimination based on non-protected but related characteristics such as legal status, language, or ethnic traits.
247. A person who emigrates from another country (as opposed to having ancestors who did so) is not a U.S. citizen unless she has been naturalized, and any noncitizen must have some type of legal status which permits her to be in the United States.
248. Espinoza, 522 F. Supp. at 568 (allowing plaintiffs to proceed on the theory that alienage discrimination was a pretext for national origin discrimination and had a disparate impact on national origin minorities).
249. See SCHWEMM, supra note 112, §§ 10:4-10:6 (discussing disparate impact claims, and discriminatory effect claims generally, and their requirements when brought under the FHA).
250. Although the Supreme Court has never officially endorsed the use of the disparate impact theory in a fair housing case, there are several reasons to believe that the theory is a valid one in this context. First, the Supreme Court has endorsed disparate impact as a theory in Title VII cases, based on similar statutory language. See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) ("[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability.").
251. Second, many federal courts of appeal have endorsed the use of the theory in housing cases, and in two such cases, the Supreme Court denied certiorari. Mountain Side Mobile Estates P'ship v. Sec'y of Urban Hous. & Dev., 56 F.3d 1243, 1250-51 (10th Cir. 1995);
252. Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252, 270 n.20 (1st Cir. 1993);
253. Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1036 (2d Cir. 1979);
254. Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977), cert. denied, 434 U.S. 1025 (1978);
255. Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 146 (3d Cir. 1977);
256. United States v. City of Black Jack, 508 F.2d 1179, 1185 (8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975);
257. United States v. Pelzer Realty Co., 484 F.2d 438, 443 (5th Cir. 1973). Third, this trend was well underway, with numerous high-profile cases such as those listed above endorsing disparate impact theory at the time Congress significantly amended the FHA in 1988. Presumably, if Congress had disagreed with this trend it would have clarified the statute to eliminate disparate impact.
258. See SCHWEMM, supra note 112, § 10:5, at 10-40 ("At this justification stage, the dispositive issue is whether the defendant's practice 'serves, in a significant way, the legitimate employment goals of the employer.' "). It is difficult to imagine what legitimate business reason a landlord would have for refusing to rent to, say, a lawful permanent resident simply because she was not a U.S. citizen, however it is possible that one could be articulated.
259. See Véles v. Lindow, No. CV-96-20245, 2000 WL 1807851, at *1 (9th Cir. Nov. 1, 2000) (upholding summary judgment for defendant landlord who had an admitted policy of refusing to rent to non-English speakers).
260. Id. (upholding summary judgment for defendant, where plaintiff failed to demonstrate that defendant's policy of not renting to non-English speakers had a disparate impact on Latinos, and where defendant offered legitimate reasons for instituting such a policy).
261. It is easier for defendants to provide legitimate business reasons for legal status discrimination and certain types of trait-based discrimination. For example, a landlord could argue that his refusal to rent to non-immigrant visitors who are in the United States on visas is based upon the fact that such people are virtually guaranteed to return to their home countries after a relatively short period of time. Thus, he could claim, he has a reasonable fear that such people are more likely to leave owing rent or to leave the property in poor condition and then abscond beyond his ability to recoup what he is owed. Like the defendants in Véles, a landlord who refuses to rent to people who cannot speak English could argue that he must be able to communicate with his tenants in order to do business with them. Id.
262. See Mathews v. Diaz, 426 U.S. 67, 78-79 (1976) (finding that many "constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other;
263. and the class of aliens is itself a heterogeneous multitude of persons with a wide-ranging variety of ties to this country"). The Court noted in Mathews that "[t]he whole of Title 8 of the United States Code, regulating aliens and nationality, is founded on the legitimacy of distinguishing between citizens and aliens. A variety of other federal statutes provide for disparate treatment of aliens and citizens." Id. at 79 n.12.
264. See Juliet Stumpf & Bruce Friedman, Advancing Civil Rights Through Immigration Law: One Step Forward, Two Steps Back?, 6 N.Y.U. J. LEGIS. & PUB. POL'Y 131, 132 (2002) (noting the tension between immigration law and civil rights law, and arguing that the consequences of expanding immigration law enforcement into the private realm include an increased potential for discrimination based on protected characteristics).
265. As discussed in Section III.B.3 infra, there is currently no single federal database for municipalities to use in order to verify a person's legal status in order to determine their eligibility to rent an apartment. The experience of those using the federal databases in place to verify employment eligibility, however, indicates that in some circumstances, delays could take weeks. See infra notes 254-55.
266. In other contexts, the desire to avoid bureaucratic requirements can justify a landlord's withdrawal from or refusal to participate in federal housing subsidy programs, even where such withdrawal has a disparate impact on minorities. See, e.g., Graoch Assocs. #33, L.P. v. Louisville/Jefferson County Metro Human Relations Comm'n., 508 F.3d 366, 377-78 (6th Cir. 2007) (involving landlord's withdrawal from Section 8 voucher program of the federal Subsidized Housing Program);
267. Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 300-01 (2d Cir. 1998) (involving apartment manager's refusal to lease apartment to prospective, disabled residents because of their desire to utilize Section 8 subsidies).
268. Cf. Johnson, supra note 97, at 1072-73 (arguing that statutory penalties encourage employers to "play it safe" by refusing to hire people who look or sound like aliens);
269. see also 1990 GAO REPORT, supra note 99, at 38 (describing discriminatory reactions by employers trying to avoid sanctions under IRCA).
270. See, e.g., HUD v. Joseph, Fair Housing-Fair Lending Eep. (P-H) ¶ 25,072 (HUD A.L.J. 1994) (finding landlord violated § 3604(b) by requiring credit checks for black applicants but not for white applicants);
271. HUD v. Jerrard, Fair Housing-Fair Lending Rep. (P-H) ¶ 25,005 (HUD A.L.J. 1990) (same).
272. Indeed, the Farmers Branch ordinance appears to require landlords to make this assessment. Farmers Branch Ordinance, supra note 12.
273. Cf. 1999 GAO REPORT, supra note 94, at 6 (indicating that confusion about how to determine eligibility and the prevalence of counterfeit documents led to employment discrimination against national origin minorities);
274. Johnson, supra note 97, at 1072 (noting that employers who have any doubt about the legitimacy of a person's documents are likely to refuse to hire the person). Recall that such situations - with uncertain norms and conflicting obligations - are precisely the sort of scenarios in which unconscious bias is likely to result in discriminatory behavior. See supra note 89 and accompanying text.
275. 893 F. Supp. 1051, 1055 (M.D. Fla. 1995). It should be noted that there is some disagreement over whether existing residents of housing can bring claims under § 3604(b) of the Fair Housing Act. While it had long been assumed that such claims were cognizable under that portion of the statute, a recent decision in the Seventh Circuit, Halprin v. Prairie Single Family Homes, held otherwise. 388 F.3d 327, 329 (7th Cir. 2004) ("The Fair Housing Act contains no hint either in its language or its legislative history of a concern with anything but access to housing.").
276. The Fifth Circuit has followed suit. See Cox v. City of Dallas, 430 F.3d 734, 745 (5th Cir. 2005) (holding that, in a claim of discriminatory provision of services, § 3604(b) is inapplicable where the service was not connected to the sale or rental of a dwelling).
277. For a discussion of this controversy and the Halprin and Cox decisions, see generally Oliveri, supra note 112;
278. Robert G. Schwemm, Cox, Halprin, and Discriminatory Municipal Services Under the Fair Housing Act, 41 IND. L. REV. 717 (2008);
279. Aric Short, Post-Acquisition Harassment and the Scope of the Fair Housing Act, 58 ALA. L. REV. 203 (2006).
280. See Schwemm, supra note 115, at 215-16.
281. 274 F. Supp. 2d 1129, 1141-43 (C.D. Cal. 2003), aff'd, 84 F. App'x 801 (9th Cir. 2003).
282. 44 F.3d 553, 557 (7th Cir. 1995);
283. see also Soules v. HUD, 967 F.2d 817, 824 (2d Cir. 1992) (noting in dicta that "there is simply no legitimate reason for considering a [housing] applicant's race" (internal quotation marks omitted)).
284. In 1972 HUD adopted a set of "Advertising Guidelines for Fair Housing," in which it set forth phrases and terms that might constitute a § 3604(c) violation if used in a discriminatory context. These included terms such as "restrictive," "integrated," and "white home." These Guidelines were issued in the form of a Regulation in 1980, but removed by HUD from the Code of Federal Regulations in 1996 because HUD stated that it wished to provide such guidance in a different format. Thus far, HUD has failed to do so, and its original Guidelines remain a source of useful guidance in applying § 3604(c).
285. For a thorough discussion of discriminatory indicators and the HUD Guidelines, see SCHWEMM, supra note 112, at §§ 15:3, 15:5.
286. See, e.g., Hinman, supra note 104, at 1: The ink was hardly dry on the [Valley Park] ordinance when some residents ... began making anonymous calls to the St. Louis County Police Department, asking them to investigate certain homes for illegals. Officers responded by knocking on a handful of doors - sometimes late at night - and asking Hispanics to furnish proof of legal residency in the United States.
287. See, e.g., Hazleton, Pa., Ordinance 2007-6, § 4(B)(2) (Mar. 21, 2007), available at http://www.aclupa.org/downloads/hazletonord607. pdf.
288. See WASH. POST/KAISER FAMILY FOUND ./HARVARD UNIV. SURVEY PROJECT, supra note 81. For information on anti-Latino sentiment in areas with AII ordinances, see supra notes 102-09 and accompanying text. Of course, any national origin minority group that has recently arrived in large numbers, thus causing a backlash from the existing residents, may be targeted.
289. 42 U.S.C. § 3617 (2000). Similarly, the complainants may be liable for violating § 3617, particularly if they file multiple complaints. See, e.g., HUD v. Simpson, Fair Housing-Fair Lending Rep. (P-H) ¶ 25,082 (HUD A.L.J. 1994), 1994 WL 497538, at *4-6, 14 (Sept. 9, 1994) (finding a couple violated § 3617, in part, by repeatedly filing complaints against their Peruvian neighbor with the local code enforcement authorities).
290. See, e.g., Guadalupe T. Luna, Immigrants, Cops and Slumlords in the Midwest, 29 S. ILL. U. L.J. 61, 77 (2005) (discussing the burdens that some landlords face when they rent to Latinos, in the form of increased targeting by city officials for housing code violations).
291. LEIGHTON KU, DONNA COHEN ROSS & MATT BROADDUS, CTR. ON BUDGET AND POLICY PRIORITIES, SURVEY INDICATES DEFICIT REDUCTION ACT JEOPARDIZES MEDICAID COVERAGE FOR 3 to 5 MILLION U.S. CITIZENS 1 (2006), http://www.cbpp.org/1-26- 06health.pdf.
292. Id.;
293. see also William R. Tamayo, When The "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 19 n.126 (1995) (describing how, after the employer sanctions were created by the IRCA in 1986, it was noted that low-income African-Americans were negatively affected because they were less likely to have documents verifying their citizenship).
294. Brief for San Diego Apartment Ass'n et al. as Amici Curiae Supporting Plaintiffs at 3, Garrett v. City of Escondido, 465 F. Supp. 2d 1043 (S.D. Cal. 2006) (No. 06-cv-2434-JAH-NLS), available at http://clearinghouse.wustl. edu/chDocs/public/IM-CA-0001-0005.pdf.
295. See Complaint ¶ 52, Stewart v. Cherokee County, No. l:07-cv-0015 (N.D. Ga. Jan. 4, 2007), available at http://clearinghouse. wustl.edu/chDocs/public/IM-GA-0001-0001.pdf; Complaint ¶ 67, Riverside Coal. of Bus. Persons & Landlords v. Township of Riverside, No. 1:06-cv-05521-RMB-JS (N.J. Sup. Ct. Oct. 18, 2006), available at http://clearinghouse.wustl.edu/chDocs/public/IM-NJ-0001-0001.pdf; Petition for Declaratory and Injunctive Relief ¶ 19(h), Reynolds v. City of Valley Park, No. 06-CC-03802 (Mo. Cir. Ct. St. Louis County Sept. 22, 2006), available at http://clearinghouse.wustl.edu/chDocs/public/IM-MO-0001-0003.pdf.
296. Section 3604(b) requires that the discriminatory terms and conditions occur "in connection with the sale or rental of housing." 42 U.S.C. § 3604(b) (2000).
297. As a result, courts and commentators (me included) have concluded that this subsection, as a general matter, can only be violated by someone who has some degree of control over another person's housing situation. Most of the time, this person will necessarily be a homeseller, housing provider, or other housing professional (such as a real estate agent). See Oliveri, supra note 112, at 42 (observing that, barring unique circumstances, § 3604(b) will not apply to someone who is neither a housing provider nor professional, and citing cases in support). This situation presents an exception to the general rule, however, because the AII ordinances put municipal employees in control of the terms and conditions by which a person may obtain rental housing.
298. Section 3604(c) requires that the statement be made "in connection with the sale or rental of housing." 42 U.S.C. § 3604(c). As with § 3604(b), discussed in the previous note, the argument could be made that only people who are themselves engaged in the sale or rental of housing are capable of making statements "in connection with the sale or rental of housing." See Oliveri, supra note 112, at 44-45.
299. Courts, however, have generally taken a broad view of this requirement. See, e.g., United States v. Space Hunters, Inc., 429 F.3d 416, 424 (2d Cir. 2005) (refusing to limit § 3604(c) to property owners or their agents);
300. Mayers v. Ridley, 465 F.2d 630, 649 (D.C. Cir. 1972) (applying § 3604(c) to the municipal Recorder of Deeds under the theory that he is engaged in the commercial real estate market). But see Woodward v. Bowers, 630 F. Supp. 1205, 1209 (M.D. Pa. 1986) (finding that Recorder is not engaged in the sale or rental of housing, and so is not covered by § 3604(c)). In this case, it is likely a court would find that the AII ordinances make the statements of municipal employees sufficiently connected to the rental of housing to fall under § 3604(c).
301. 558 F.2d 1283 (7th Cir. 1977).
302. The level of intentionality that suffices to satisfy this prong is much less than that required to prove a violation under 42 U.S.C. § 1983 or some other statute that requires intentional discrimination. This is because the whole theory of disparate impact is premised on the notion that the policy or practice at issue was not undertaken for discriminatory reasons. The Arlington Heights formulation merely uses incidental evidence of purposeful discrimination as one factor that indicates the disparate impact is impermissible. Similarly, the absence of evidence of intentional discrimination satisfies this prong, but is not in and of itself sufficient to vitiate the plaintiff's case. Id. at 1292.
303. Id. at 1290-93.
304. See supra notes 102-09 and accompanying text.
305. Compare Arlington Heights, 558 F.2d at 1293: [I]f the defendant is a governmental body acting outside the scope of its authority or abusing its power, it is not entitled to the deference which courts must pay to legitimate governmental action.
306. On the other hand, if the defendant is a governmental body acting within the ambit of legitimately derived authority, we will less readily find that its action violates the Fair Housing Act. (citation omitted), with Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 939 (2d Cir. 1988) (stating that "a defendant must present bona fide and legitimate justifications for its action with no less discriminatory alternatives available"), aff'd per curiam, 488 U.S. 15 (1988).
307. Hazleton, Pa., Ordinance 2006-18, § 2(C) (Sept. 12, 2006), available at http://clearinghouse.wustl.edu/chDocs/public/IM-PA-0001- 0010.pdf. In addition, Hazleton's Mayor made a number of statements indicating that his primary motivation in supporting the ordinance was the increase in crime that illegal immigrants had caused in Hazleton. Barry, supra note 107.
308. Lozano v. City of Hazleton, 459 F. Supp. 2d 332, 336 (M.D. Pa. 2006).
309. Similarly, Valley Park declared that it needed to pass its AII ordinance because "[i]llegal immigration leads to higher crime rates, subjects our hospitals to hardship and legal residents to substandard quality of care, contributes to other burdens on public services, increasing their costs and diminishing their availability to legal residents, and diminishes our overall qualify [sic] of life and provides concerns to the security and safety of the homeland." Valley Park Ordinance 1715, supra note 12, § 2(C).
310. However, prior to enacting the ordinance, the City Council conducted no research into the size of Valley Park's population of immigrants or illegal immigrants. At the same time, there was no evidence that crime had increased or that schools were overcrowded. Hinman, supra note 107, at 1.
311. See Farmers Branch Ordinance, supra note 12, pmbl. ("WHEREAS, in response to the widespread concern of future terrorist attacks following the events of September 11, 2001, landlords and property managers throughout the country have been developing new security procedures to protect their buildings and residents").
312. For perspective, all nineteen of the terrorists who perpetrated the September 11 attacks entered the United States legally using various types of visas, and thus would not have been barred from renting an apartment by any of the AII ordinances. See NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, Entry of the 9/11 Hijackers into the United States, Staff Statement No. 1, available at http://www.9-llcommission.gov/staff- statements/staff-8tatement-l.pdf.
313. See infra Section III.B.2.
314. 844 F.2d 926, 933-37 (2d Cir. 1988), aff'd on other grounds per curiam, 488 U.S. 15 (1988).
315. See SCHWEMM, supra note 112, § 10:7, at 10-57 (noting that it is unlikely that these two methods of analysis will produce substantially different results).
316. It should be emphasized that, while housing is not a "right" in this country, see infra Section III.A.2, all residents of the United States do have the right not to be discriminated against because of protected characteristics when obtaining housing. Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3619, 3631 (2000).
317. Using 2005 data, it has been estimated that there are approximately 3.1 million U.S.-born children in families headed by undocumented immigrants (referred to as "unauthorized families"). PASSEL, supra note 2, at 8. Mixed status families "represent about one-third of all unauthorized families and five out of six of unauthorized families with children." Id.
318. E.g. Vemonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995) ("Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental aspects of self-determination - including even the right of liberty in its narrow sense....").
319. A real estate agent in a community that passed an AII ordinance observed a large number of Latino families moving out of the area and commented: "This is not something that only affects the undocumented, because in the same family, it's so common to have some people who are citizens, some people who are residents, and some who are undocumented. And those with papers are going to do whatever is necessary to protect those without." N.C. Aizenman, New Fear Leads Both Legal, Illegal Latinos to Leave Pr. William, WASH. POST, Oct. 22, 2007, at Al.
320. It is estimated that in 2005 there were about 1.8 million undocumented children under the age of eighteen living in the United States (approximately sixteen percent of the total undocumented population at that time). PASSEL, supra note 2, at 8.
321. 457 U.S. 202 (1982).
322. See id. at 205 (describing legal effect of Texas statute at issue).
323. See id. at 220 (finding the statute is "directed against children, and [that it] imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control.").
324. Id. at 220 (citation omitted).
325. Id. at 230 ("If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here.").
326. Id. at 221 ("Public education is not a 'right' granted to individuals by the Constitution."). Even the dissenting Justices believed that the Texas law was unwise and unduly punitive.
327. Id. at 242 (Burger, C.J., dissenting): Were it our business to set the Nation's social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children-including illegal aliens - of an elementary education. I fully agree that it would be folly-and wrong-to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language.
328. See id. at 227 n.22 ("A State may not... accomplish what would otherwise be prohibited by the Equal Protection Clause, merely by defining a disfavored group as nonresident.... Appellants have not shown that the families of undocumented children do not comply with established standards by which the State historically tests residence.");
329. see also id. at 240 n.4 (Powell, J., concurring) ("Of course a school district may require that illegal alien children, like any other children, actually reside in the school district before admitting them to the schools. A requirement of de facto residency, uniformly applied, would not violate any principle of equal protection.").
330. One year after Plyler, the Supreme Court grappled with the issue of determining the legitimacy of domicile in Martinez v. Bynum, 461 U.S. 321 (1983).
331. In Martinez, a boy who was a U.S. citizen sought to establish a domicile with his adult sister (also a U.S. citizen) in Texas so that he could attend public school there. Id. at 322-23.
332. The boy's parents were Mexican citizens who resided in Mexico. Id. The sister was not, and did not intend to become, her brother's legal guardian. Id. As a result, the Court found that the boy was not legitimately domiciled in Texas and therefore not entitled to a tuition-free public education. Id. at 325.
333. Plyler, 457 U.S. at 227 n.22.
334. See id. at 227 (finding the asserted state prerogative of denying undocumented resident children free education services "solely on the basis of their undocumented status" insufficient to justify denying them the right to that education).
335. See id. at 226 ("To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation.").
336. See id. at 215 (confirming that the Equal Protection Clause secures equally all rights and obligations imposed by a state on the basis of "presence" within that state).
337. A more recent example of this is the phenomenon of states that grant in-state tuition to undocumented residents who attend their public universities. See Ragini Shah, Sharing the American Dream: Towards Formalizing the Status of Long-Term Resident Undocumented Children in the United States, 39 COLUM. HUM. RTS. L. REV. 637, 670-73 (2008) (noting that "ten states... currently allow undocumented students access to in-state tuition rates").
338. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (parallel citations omitted);
339. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) ("The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause....");
340. Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1972) (holding that the interest of parents in the religious upbringing of their children trumps state interest in requiring children to attend school);
341. Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that a state cannot presumptively presume unwed fathers to be unfit parents consistently with their interests under the Due Process Clause);
342. Ginsberg v. New York, 390 U.S. 629, 639 (1968) ("[C]onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.");
343. Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965);
344. Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (holding the marital relationship to be within a "zone of privacy created by several constitutional guarantees").
345. Moore, 431 U.S. at 498.
346. In Moore, a city's single-family zoning ordinance defined family in such a way as to prevent a grandmother from living with her son and two grandsons, because the boys were cousins as opposed to brothers. Id. at 496-97.
347. The Court (with Justice Powell writing for a plurality and Justice Stevens concurring) struck down the ordinance. Id. at 506.
348. The plurality determined that because the ordinance intruded on the Fourteenth Amendment rights of privacy and familial association, strict scrutiny, rather than rational basis review, was appropriate. Specifically, the plurality reasoned: When a city undertakes such intrusive regulation of the family,... the usual deference to the legislature is inappropriate. This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Id. at 499 (internal citations omitted).
349. The city's stated purposes for the ordinance-reducing traffic, parking congestion, and the burden on the schools-failed, in light of the fact that the ordinance as written was not narrowly-tailored to address these problems. Id. at 500 & n.7.
350. See supra Section II.A.
351. The argument could be made, of course, that illegal immigrants are by definition legally prohibited from residing in the United States and therefore have no right to obtain housing in any particular area. Id.
352. This is true; however, as discussed previously, illegal immigrants are not the only people affected by AII housing restrictions. See supra Section III.A.l.b.
353. See, e.g., Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 110-11 (1979) (noting that discriminatory practices may alter the racial composition of neighborhood causing multiple "harms flowing from the realities of a racially segregated community").
354. The President's National Advisory Commission on Civil Disorders, commonly referred to as "the Kerner Commission," was tasked to report on the conditions leading up to the mass riots in American cities in the summer of 1967. Exec. Order No. 11,365, 32 Fed. Reg. 11,111 (July 29, 1967).
355. The Commission found that a major cause of the unrest was widespread racial segregation in housing. REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 1, 5, 118-20 (1968).
356. This segregation, which amounted to a "system of apartheid," was in large part the result of housing discrimination that kept blacks confined to urban centers while allowing whites to spread out into the suburbs. Id. at 118-20, 215-25.
357. The Commission warned that America was rapidly becoming "two societies, one black, one white-separate and unequal," and it concluded that this trend was the single biggest social challenge facing America in the modern era. Id. at 1;
358. see also DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID 8 (1993) (asserting that residential segregation "is the institutional apparatus that supports other racially discriminatory processes and binds them together into a coherent and uniquely effective system of racial subordination").
359. See, e.g., Gladstone, 441 U.S. at 110-11 (finding that de facto segregation would likely create numerous collateral harms in the property market and that "school segregation is linked closely to housing segregation").
360. See id. at 111-15 (holding the deprivation of the benefits of racially-integrated housing to be sufficient to constitute a "distinct and palpable injury" to parties suing on behalf of entire community to create standing to sue the parties allegedly responsible).
361. But see Warth v. Seldin, 422 U.S. 490, 508 n.18 (1975) (arguing somewhat facetiously that if people are dissatisfied with exclusionary zoning laws they should not "overlook the availability of the normal democratic process").
362. See Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 STAN. L. REV. 1115, 1126, 1128 (1996) ("Local governments, in short, are place-based polities organized on the principle of residency.... Only rarely the subject of litigation, the connection between boundaries and the structure of local governments is virtually axiomatic: Boundaries typically determine such crucial issues as the electorate for local elections....");
363. Richard Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841, 1866-67 (1994) (noting that residency has long been a definitive element of local polities and that the Supreme Court has required the franchise to be extended to all "bona fide residents").
364. See Ford, supra note 197, at 1874 (noting that exclusionary policies, by definition, "exclude 'outsiders' from the political processes of the locality").
365. This results in what Ford refers to as the "tautology of community self-definition." Id. at 1861-64.
366. See Briffault, supra note 197, at 1142 (arguing that by drawing boundaries and limiting local government franchise to those within the boundaries, municipal governments are able to tailor policy more closely to the peculiar political desires of those insiders, and attract primarily potential settlers with similar desires, and further noting that one early reason for local government incorporation was racial exclusion).
367. Ford, supra note 197, at 1871 ("The 'democratic process' that produces and legitimates exclusionary zoning is thus very questionable: in many cases, the only significant vote that will be taken on the exclusionary ordinance is the first vote.").
368. See Richard Briffault, The Contested Right to Vote, 100 MICH. L. REV. 1506, 1526 (2002) ("[A] handful of school districts permit aliens whose children are in school to vote in community school board elections, and at least one locality permits aliens to vote in municipal elections. With these exceptions, however, resident aliens are unenfranchised, even at the state and local level." (citation omitted)).
369. See, e.g., Randal C. Archibold, Immigrants Take to U.S. Streets in Show of Strength, N.Y. TIMES, May, 2, 2006, at A1 (describing hundreds of thousands of immigrants in multiple cities participating in rallies as part of a national campaign during which non-naturalized immigrants would not participate in any economic activities).
370. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 BYU L. REV. 1139, 1155-56 (noting the political power noncitizens can wield through various organizations).
371. See, e.g., Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972) (finding standing under the Fair Housing Act because "the whole community" is a victim of discriminatory housing practices (quoting 114 CONG. REC. 2706 (1968) (statement of Sen. Javits))).
372. Fair Housing Act of 1968, 42 U.S.C. § 3601(a)(l)(A)(i) (2000).
373. Id. § 3602(i)(l).
374. Thus, the standing requirements under the FHA are merely those required by Article III of the Constitution-that the plaintiff has suffered "a minima of injury in fact." Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982).
375. The prudential limitations on standing-the prohibition on a plaintiff raising another person's legal rights, the rule barring adjudication of generalized grievances, and the requirement that the plaintiff's complaint fall within the zone of interests protected by the law involved-are not applicable in cases brought under the FHA. See id. ("[C]ourts... lack the authority to create prudential barriers to standing in suits brought under [the Fair Housing Act]."). These limitations, in addition to deficiencies in Article III standing, were found to prevent community members from challenging an exclusionary zoning ordinance in Warth v. Seldin, a case brought pursuant to the Fourteenth Amendment and Reconstruction-era civil rights statutes but would not have prevented claims under the FHA. 422 U.S. 490, 513-14 (1975).
376. 409 U.S. at 207-08.
377. Id. at 210-12.
378. Id. at 211 (quoting 114 CONG. REC. 2706 (1968) (statement of Sen. Javits)).
379. In Gladstone, Realtors v. Village of Bellwood the Court allowed a municipality and four of its residents to bring a FHA claim against a realty company, in which they alleged that the company's practice of steering whites and blacks into different neighborhoods was destroying the racially integrated character of a twelve- by thirteen-block residential neighborhood. 441 U.S. 91, 93-95, 115 (1979).
380. The plaintiffs' injuries consisted of "the loss of social and professional benefits" that accrue from living in an integrated community, as well as the economic injury caused by declining property values. Id. at 115.
381. The Court rejected the defendant's argument that a residential neighborhood could not constitute the same type of "community" as the apartment complex at issue in Trafficante. Id. at 113-14;
382. see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 377-78 (1982) (recognizing the ability of community members to challenge housing discrimination under the FHA, but requiring the relevant "community" to be narrowly defined to include only those areas affected by the discriminatory conduct).
383. 504 U.S. 555, 560 & n.1 (1992) (requiring, as an "irreducible constitutional minimum of standing," a "particularized" and "actual or imminent" injury to a legally protected interest specifically occurring to the plaintiff "in a personal or individual way").
384. See, e.g., Ken Belson & Jill P. Capuzzo, Towns Rethink Laws Against Illegal Immigrants, N.Y. TIMES, Sept. 26, 2007, at A1 (reporting that, within months following a New Jersey township's passage of AII ordinances, "hundreds, if not thousands, of immigrants from Brazil and Latin American countries had fled").
385. See, e.g., id. (describing the significant negative social, economic, and legal impacts on communities following the passage of AII ordinances).
386. Id.
387. See Iglesias, supra note 62, at 442 (describing the significant ramifications of being deprived of adequate housing in myriad areas).
388. Id. at 440.
389. Justin D. Cummins, Recasting Fair Share: Toward Effective Housing Law and Principled Social Policy, 14 LAW & INEQ. 339, 342-51 (1996) (noting that housing is closely linked to employment and educational opportunities, access to health care and financial capital, and access to mentoring and information networks).
390. Iglesias, supra note 62, at 442;
391. see also Manuel Mariano Lopez, Su Casa No Es Mi Casa: Hispanic Housing Conditions in Contemporary America, 1949-1980, in RACE, ETHNICITY, AND MINORITY HOUSING IN THE UNITED STATES 127, 127 (Jamshid A. Momeni ed., 1986) (arguing that "housing provides a setting for one's entire social existence," and that being "ill-housed" can cause deprivations in health, safety, and transportation, which can then lead to disadvantages in employment, education opportunities and economic stability).
392. Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 STAN. L. REV. 1115, 1127-28 (1996).
393. A long line of cases recognizes the significance of the home in American law and society. See, e.g., Frisby v. Schultz, 487 U.S. 474, 484 (1988) (finding the protection of residential privacy to be a significant government interest);
394. Carey v. Brown, 447 U.S. 455, 471 (1980) (noting that "[t]he State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society," and "[p]reserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value");
395. Gregory v. Chicago, 394 U.S. III, 125 (1969) (Black, J., concurring) (describing the unique nature of the home as "the last citadel of the tired, the weary, and the sick").
396. There are also a number of cases in Fourth Amendment jurisprudence that emphasize the importance of the home, far too many to be cited to here. See, e.g., Payton v. New York, 445 U.S. 573, 586 (1980) (noting that under Fourth Amendment law, searches and seizures inside a home with no warrant are presumptively unreasonable).
397. See Universal Declaration of Human Rights art. 25 ("Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services."); International Covenant on Economic, Social and Cultural Rights art. 11 (containing similar language).
398. Burt Neuborne, State Constitutions and the Evolution of Positive Rights, 20 RUTGERS L.J. 881, 886-87 (1989) (describing failed litigation efforts at the national level). Commentators continue to advance arguments for making housing a positive right, often by looking either to state constitutions or to international human rights norms.
399. See generally, e.g., Curtis Berger, Beyond Homelessness: An Entitlement to Housing, 45 U. MIAMI L. REV. 315, 317 (1990-91) (suggesting a coalition between the government and the private sector to create a national entitlement to housing);
400. Robert Doughten, Filling Everyone's Bowl: A Call To Affirm a Positive Right to Minimum Welfare Guarantees and Shelter in State Constitutions to Satisfy International Standards of Human Decency, 39 GONZ. L. REV. 421, 423 (2003-04) (contending that such rights should be found by looking to international human rights norms);
401. Florence Wagman Roisman, Establishing a Right to Housing: A General Guide, 25 CLEARINGHOUSE REV. 203, 203-04 (1991) (discussing programs in several states aimed at providing homes to the homeless);
402. Rob Rosenthal & Maria Foscarinis, Responses to Homelessness: Past Policies, Future Directions, and a Right to Housing, in A RIGHT TO HOUSING: FOUNDATION FOR A NEW SOCIAL AGENDA 316, 317-19 (Rachel G. Bratt et al. eds., 2006) (discussing local efforts to address the problem);
403. Bradley R. Haywood, Note, The Right to Shelter as a Fundamental Interest Under the New York State Constitution, 34 COLUM. HUM. RTS. L. REV. 157, 157 (2002) (arguing that a right to shelter can be found in New York's State Constitution).
404. Of course, the notion of a positive right to shelter has critics as well. See, e.g., Robert C. Ellickson, The Untenable Case for an Unconditional Right to Shelter, 15 HAEV. J.L. & PUB. POL'Y 17, 17, 24-25 (1992) (arguing that housing conditions in countries that recognize a right to shelter are poor, and that the guarantee of such a right will undermine the incentives of the poor to work).
405. Lindsey v. Normet, 405 U.S. 56, 74 (1972) (although recognizing "the importance of decent, safe, and sanitary housing," holding that the Constitution does not guarantee access to any particular type of housing);
406. Williams v. Barry, 708 F.2d 789, 793 (D.C. Cir. 1983) (Bork, J., concurring) ("No one has plausibly maintained that there is a constitutional... right to city-provided shelter.").
407. 42 U.S.C. § 1441 (2000).
408. This was essentially the situation in Lindsey, 405 U.S. 56, in which the plaintiffs were tenants who sought to challenge Oregon's landlord-tenant law, which prevented them from withholding rent in response to the landlord's failure to provide basic maintenance. Addressing the plaintiffs' argument that this statute deprived them of their fundamental right to decent shelter, the Court specifically held that the Constitution does not recognize "the right of a tenant to occupy the real property of his landlord beyond the term of his lease without the payment of rent or otherwise contrary to the terms of the relevant agreement." Id. at 74. To find otherwise, the Court reasoned, would likely violate the Takings Clause of the Fifth Amendment. Id. Thus, the Supreme Court's main judicial pronouncement foreclosing any Constitutional right to housing is itself limited to the proposition that there is no such right to free housing.
409. In San Bernardino competing groups faced off in an angry confrontation at the courthouse while a judge heard the issue of whether to allow the AII measure to be placed on the ballot. Kelly Rayburn, "Illegal Immigration Relief Act" Not Likely to Appear on Ballot, INLAND VALLEY DAILY BULL. (Ontario, Cal.), Jun. 27, 2006, available at http://www.dailybulletin.com/news/ci-3983764.
410. After the initiative's chief proponent told one Latino activist "Tour mother can go [bleep] herself," the activist slapped him in the face and was arrested for battery. Id.;
411. see also Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 508-10 (M.D. Pa. 2007) (describing atmosphere of fear and hostility that surrounded Hazleton's AII ordinance, including threatening letters sent to one ordinance opponent);
412. Barry, supra note 107 (describing how police were required to keep groups of white and Latino demonstrators apart as the Hazleton City Council voted on its AII ordinance, and noting that Hazleton Mayor Lou Barletta wore a bullet-proof vest to the vote);
413. Toni Callas, Riverside Council Approves Anti-Illegal Immigration Crack-Down, PHILA. INQUIRER, July 27, 2006, at B1 (describing Riverside City Council meeting where AII ordinance was approved, which was marked by "jeers, screams, and shouting matches" and from which police escorted several people);
414. Dianne Solís, Moving on in Farmers Branch, DALLAS MORNING NEWS, May, 14, 2007, at 1A (describing how the Mayor of Farmers Branch had his home vandalized after coming out against the AII ordinance, and how the Department of Justice had to send election monitors when the ballot initiative was voted on).
415. One could argue that such feelings were preexisting and would only be exacerbated by a regime that divests all decisions from the locality. See Rodríguez, supra note 3, at 639 ("[P]reempting local laws that aim to exclude immigrants will not make for a better integration environment, because the sentiments behind the preempted ordinances are likely to remain and fester.").
416. Nevertheless, in many of the cases to receive press coverage, the introduction of the ordinance seems to be the catalyst for the rancor. See, e.g., Hazleton, 496 F. Supp. 2d at 510 n.31 (M.D. Pa. 2007) (noting that the AII ordinance "apparently had the effect of increasing racial tension in the City");
417. Kotlowitz, supra note 102 (noting that the AII ordinance in one jurisdiction "has turned neighbor against neighbor").
418. See, e.g., Campbell, supra note 6, at 1044 ("The targeting of 'illegal aliens' that brought suspicion on anyone who might be suspected of not being lawfully present because of their skin color made non-white residents of Hazleton-citizen and noncitizen alike-fearful of being subject to harassment and singled out as a nuisance, a public burden, or worse-a criminal."). According to one Latino business owner in Riverside, N.J., "The ordinance almost authorizes a vigilante-type attitude. Everyone lives in fear." Press Release, ACLU, Businesses Sue Riverside Over Vague, Discriminatory Anti-Immigrant Ordinance (Oct. 18, 2006), available at http://www.aclu.org/immigrants/discrim/27107prs20061018.html.
419. See supra notes 104-106.
420. See supra note 7.
421. Barth, supra note 95, at 113-14.
422. Nancy Cervantes, Sasha Khokha & Bobbie Murray, Hate Unleashed: Los Angeles in the Aftermath of Proposition 187, 17 CHICANO- LATINO L. REV. 1, 8-9 (Fall 1995).
423. It is true that every state has a landlord-tenant law that governs many of the rights and obligations of the parties to a lease, and state and federal civil rights laws apply to prevent discrimination. Nevertheless, these are complaint-driven legal mechanisms-they will not be triggered unless and until someone invokes them.
424. At most, renting an apartment creates an ongoing relationship based on the different interests the landlord and the tenant have in the same piece of property.
425. Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324a (2000).
426. In this regard, market-rate private rental housing can be contrasted with subsidized or affordable housing, which is extremely scarce in most places and which is not the focus of this Article.
427. Plyler v. Doe, 457 U.S. 202, 228 (1982) ("The dominant incentive for illegal entry into the State of Texas is the availability of employment....");
428. Pham, supra note 3, at 810 ("Experts agree that employment is the most important factor drawing undocumented immigrants to the United States....").
429. See Plyler, 457 U.S. at 228 ("[F]ew if any illegal immigrants come to this country ... in order to avail themselves of a free education.");
430. Stephen H. Legomsky, Immigration, Federalism, and the Welfare State, 42 UCLA L. REV. 1453, 1465 (1995) (finding "no empirical evidence that significant numbers of people immigrate to the United States for public education or for welfare, although admittedly it does not follow that the sudden termination of either health services or public education would not spur some immigrants to leave or discourage others from coming"). Indeed, the fact that unauthorized people are prevented from receiving most welfare and health care benefits belies the contention that these are pull factors.
431. Pham, supra note 3, at 791 ("No one argues that the availability of housing is a pull factor, drawing undocumented immigrants to the United States.").
432. Hazleton Mayor Louis Barletta made clear that the purpose of that city's ordinance was to "get rid of the illegal people," emphasizing, "It's this simple: They must leave." Michael Powell & Michele Garcia, Pa. City Puts Illegal Immigrants on Notice, WASH. POST, Aug. 22, 2006, at A03 (emphasis in original).
433. Cherokee County, Ga., Ordinance 2006-03 § 1, ¶¶ 4-5 (2006);
434. see also Escondido, Cal., Ordinance 2006-38 § 1, ¶ 3 (2006) (containing identical language);
435. Riverside, N.J., Ordinance 2006-16 § 166-2(I)-(J) (2006) (amended by Ordinances 2006-19, 2006-26) (describing how unscrupulous landlords who rent to unauthorized people typically charge them excessive rent, which leads to overcrowding conditions, which then cause fire, health, and public safety hazards).
436. Nothing in federal law prevents unauthorized immigrants from owning homes. Unauthorized immigrants are often able to apply for credit and open bank accounts using the Individual Taxpayer Identification Number ("ITIN") issued by the IRS, which allows undocumented people to pay taxes in lieu of a Social Security Number. It is not uncommon for banks (including large lenders such as Citibank and Bank of America) to use ITINs in making mortgage loans to undocumented people. See Kenneth R. Harney, Should Taxpayer ID Be Enough for a Loan?, SAN JOSE MERCURY-N EWS, Feb. 24, 2007, at RE8 (discussing a proposed bill that would prohibit home loans to anyone without a social security number);
437. Miriam Jordan, Loans to Illegals Seen as Sturdy, CHI. SUN-TMES, Oct. 14, 2007, at S8 (noting that, even with the credit crunch, this type of loan is still made frequently and has a lower default rate than other types of loans);
438. Juan Antonio Lizama, Documents Can Help Illegal Immigrants Get Accounts, RICHMOND TIMES-DISPATCH, Sept. 16, 2007, at A14 (noting that some banks will give loans without verifying an immigrant's status, so long as he has a reliable source of identification);
439. Rick Rothacker, Mortgages for Illegal Immigrants: Goal of Attracting Hispanic Market Also Creates Window for Segment, CHARLOTTE OBSERVER, July 29, 2007, at 1D (arguing that banks are making this type of loan in an effort to attract the Hispanic market);
440. see also Calvin Bellamy, Serving the Under-Served: Banking for Undocumented Immigrants, AM. IMMIGR. LAW FOUND., Mar. 30, 2007, available at http://www. immigrationpolicy.org/index.php?content=P20070416 (discussing the potential benefits of this type of loan to an under-served group). A number of states have so-called "alien land laws," which restrict noncitizens from owning property in a variety of ways. Early versions of these laws focused in a direct and discriminatory way on race and national origin. For example, California passed a law that essentially prohibited only noncitizens of Japanese origin from owning property. Such obviously discriminatory laws have since been repealed. Today, the vast majority of such laws are not targeted at aliens per se, but at non-resident aliens and/or corporations, or at alien ownership of resources such as agricultural fields or industrial sites.
441. For a discussion of alien land laws, their history, and their current iterations, see generally Ronald L. Bell & Jonathan D. Savage, Note, Our Land is Your Land: Ineffective State Restriction of Alien Land Ownership, 13 J. MARSHALL L. REV. 679 (1980);
442. William B. Fisch, State Regulation of Alien Land Ownership, 43 MO. L. REV. 407 (1978);
443. James A. Fretcher, Note, Alien Landownership in the United States: A Matter of State Control, 14 BROOK. J. INT'L L 147 (1988);
444. James R. Mason, Jr., Note, "Pssst, Hey Buddy, Wanna Buy a Country?" An Economic and Political Policy Analysis of Federal and State Laws Governing Foreign Ownership of United States Real Estate, 27 VAND. J. TRANSNAT'L L. 453 (1994);
445. Fred L. Morrison, Limitations on Alien Investment in American Real Estate, 60 MINN. L. REV. 621 (1976).
446. See supra Section III.A.l.a.
447. This is in contrast with employment and receipt of public benefits, for which only limited categories of lawful immigrants and non-immigrant visitors are eligible. As discussed below, there are specialized databases for making such eligibility determinations, although these have serious flaws. See infra notes 245-52.
448. After Farmers Branch approved the latest version of its AII ordinance, a spokesperson for the U.S. Citizenship and Immigration Services was quoted as saying: "There is no database where the city or anyone can pick up the phone and give alienage, like yes this person is legal or no that person isn't legal; there is no such database." Annabelle Garay, Suburb Passes New AntiImmigrant Rule, USA TODAY, Jan. 22, 2008 (quoting Maria Elena Garcia-Upson), available at http://www.usatoday.com/news/nation/2008-01- 22-1094435090-x.htm. It was for this reason that Escondido, California stipulated to a permanent injunction of its AII housing provision. See Statement Regarding City of Escondido Actions Approving Stipulation for Final Judgment and Permanent Injunction 1 (Dec. 13, 2006) (noting that "the lack of an assured federal database to determine the status of individuals for housing purposes" was a "serious problem"), available at http://www.ci.escondido.ca.us/immigration/Statement.pdf.
449. Congress authorized the development of the Basic Pilot program in 1996, through the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), §§ 401-405, Pub. L. 104-208, codified as a note to 8 U.S.C. § 1324a (2000). Currently, participation in the Basic Pilot/E-Verify system is voluntary, and only a fraction of employers do so. See NAT'L IMMIGR. LAW CTR., BASIC PILOT/E-VERIFY NOT A MAGIC BULLET 1 (2008), http://www.nilc.org/immsemplymnt/ircaempverif/e- verify-nomagicbullet-2008-01-04.pdf [hereinafter NOT A MAGIC BULLET] (noting that fewer than one percent of U.S. employers take part in the voluntary system).
450. NOT A MAGIC BULLET, supra note 246, at 1.
451. Id.
452. Information about SAVE and E-Verify is available at the U.S. Customs and Immigration Service's website, www.uscis.gov. The National Crime Information Center also maintains an "Immigration Violators File," which is the primary nationwide law enforcement database queried regularly by local law enforcement officials. Jeff Sessions & Cynthia Hayden, The Growing Role for State & Local Law Enforcement in the Realm of Immigration Law, 16 STAN. L. & POL'Y REV. 323, 325 (2005).
453. However, this database is limited to people who have received final orders of deportation and have absconded, which is only a small fraction of the total illegal immigrant population, id. at 325 n.4 (noting that of the roughly 10 million illegal immigrants in the United States in 2004, there were approximately 400,000 absconders), and even this database is incomplete, id. at 325 n.5 (noting that of the 400,000 absconders believed to be in the United States as of 2004, only 38,587 had been entered into the IVF database).
454. WESTAT, FINDINGS OF THE WEB BASIC PILOT EVALUATION (2007) [hereinafter 2007 Audit], available at http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf;
455. U.S. GOV'T ACCOUNTABILITY OFFICE, PUBL'N No. GAO-05-813, IMMIGRATION ENFORCEMENT: WEAKNESSES HINDER EMPLOYMENT VERIFICATION AND WORKSITE ENFORCEMENT EFFORTS (2005) [hereinafter 2005 GAO REPORT], available at http://www.gao.gov/new.items/ d05813.pdf.
456. 2007 Audit, supra note 250, at 97.
457. Problems in Current Employment Verification and Worksite Enforcement System: Hearings Before the Subcomm. on Immigration, Citizenship, Refugee, Border Security, and International Law of the H. Comm. on the Judiciary, 110th Cong. 6 (2007) (statement of Stephen Yale-Loehr) [hereinafter Yale-Loehr Testimony], available at http://judiciary.house.gov/hearings/April2007/ Yale-Loehr070424.pdf.
458. Complaint ¶ 25, Am. Fed'n of Labor v. Chertoff, No. C 07-04472 CRB, 2007 WL 2972952 (N.D. Cal. 2007) (filed Aug. 28, 2007).
459. It is estimated that the SSA database contains more than 17 million discrepancies. SOCIAL SEC. ADMIN., OFFICE OF THE INSPECTOR GEN., CONGRESSIONAL RESPONSE REP. No. A-08-06-26100, ACCURACY OF THE SOCIAL SECURITY ADMINISTRATION'S NUMIDENT FILE 5 (2006), available at http://www.ssa.gov/oig/ADOBEPDF/A- 08-06-26100.pdf. An estimated 4.8 million records for noncitizens who are work authorized, and 248,560 for naturalized U.S. citizens contain discrepancies that may result in inaccurate employment eligibility results when the database is queried. Id. at 9, 11.
460. When an employer's records do not match the SSA's records, the SSA sends the employer a "no-match" letter notifying them of the discrepancy. 20 C.F.R. § 422.120(a) (2008). In 2007, the DHS passed a rule that would require employers receiving such letters to take immediate action against the referenced employees. See Am. Fed'n of Labor v. Chertoff, 552 F. Supp. 2d 999, 1003-04 (N.D. Cal. 2007) (explaining that employers may not simply disregard these notices). In October of 2007 a federal district court judge enjoined enforcement of the rule because of concerns over the accuracy of the database. Id. at 1015.
461. Illinois Act, Pub. L. No. 095-0138 § 12(a) (amending the Illinois Right to Privacy in the Workplace Act, 820 ILL. COMP. STAT. 55/1, et seq.). The federal government challenged the law. Complaint, United States v. Illinois (C.D. III. filed Sept. 24, 2007), available at http://www.dhs.gov/xlibrary/assets/US-v-Illinois-Complaint- 092407-to-File.pdf.
462. In response, Illinois agreed to halt the enforcement of the law, and both parties requested that the lawsuit be stayed in order to give the Illinois General Assembly the chance to override the law. See Stephen Franklin, Deal On Verifying Workers Reached: Illinois Won't Block Checks of Legal Status, CHI. TRIB., Dec. 18, 2007, at A3.
463. Yale-Loehr Testimony, supra note 252, at 6 (noting that the verification process can take two weeks or longer for noncitizens); 2005 GAO REPORT, supra note 250, at 23-24 (noting that fifteen percent of queries required manual verification, and that of these, some took as long as two weeks to resolve).
464. Basic Employment Verification Pilot Memorandum of Understanding art. II, § C, ¶ 8 (2006), available at http://www.uscis.gov/files/ article/MOU.pdf.
465. 2007 Audit, supra note 250, at 100-01.
466. U.S. CENSUS BUREAU, GENERAL HOUSING CHARACTERISTICS (2000), available at http://factfinder.census. gov/servlet/QTSubjectShowTablesServlet?-lang=en&-ts=249054700826 (select "QT-H1. General Housing Characteristics").
467. U.S. CENSUS BUREAU, HOUSEHOLD POPULATION AND HOUSEHOLD TYPE BY TENURE (2000), available at http://factfinder.census.gov/servlet/QTTable?-bm=y&-geo- id=01000US&-qr-name=DEC-2000-SFl-U-QTH3&-ds-name=DEC-2000-SFl-U.
468. See supra Section II.B.2.a.
469. This figure represents a snap shot of the rental population at any given time, and cannot be used to make an estimate of the number of verifications that would be required annually. Obviously, some people remain in rental housing for more than one year, in which case their status presumably would not have to be re-verified. However, others may enter into shortterm leases and may move during the year, in which case their status would have to be verified more than once in a single year. This also does not take into consideration the verifications that would need to occur in response to complaints, if such a mechanism were contained in a federal policy.
470. By way of comparison, it is estimated that making a dial-in version of the Basic Pilot system mandatory for all 8.4 million employers in the United States would cost the federal government, employers, and employees about $11.7 billion total per year, with employers bearing most of the costs. 2005 GAO REPORT, supra note 250, at 29. An expert who testified about the ramifications of making the E-Verify Program mandatory for all employers, stated that "expanding Basic Pilot in its current state and requiring participation by all 8.4 million employers would be a bureaucratic nightmare." Yale-Loehr Testimony, supra note 252, at 6.
471. National origin, race, and religion have long been the characteristics most clearly protected by modern civil rights laws. TRACEY MCCARTNEY & SARA PRATT, THE FAIR HOUSING ACT: 35 YEARS OF EVOLUTION 1 (2008), http://www.fairhousing.com/include/media/pdf/ 35years.pdf.
472. They were the original protected characteristics in Title VII and in the FHA (which was modeled to some degree on Title VII). Id.
473. There was little separate discussion of national origin in the legislative history of either statute, most likely because race and national origin were seen as having significant overlap. Raechel L. Adams, Comment, English-Only in the Workplace: A New Judicial Lens Will Provide More Comprehensive Title VII Protection, 47 CATH. U. L. REV. 1327, 1330-32 (1998). Sex was not added to the FHA until 1972, and disability and familial status were not added until 1988. MCCARTNEY & PRATT, supra, at 3-4.
474. Joe R. Feagin, White Supremacy and Mexican Americans: Rethinking the "Black-White Paradigm," 54 RUTGERS L. REV. 959, 975-76 (2002);
475. Rachel F. Moran, What if Latinos Really Mattered in the Public Policy Debate?, 85 CAL. L. REV. 1315, 1322-23 (1997).
476. In response to an influx of Chinese immigrants during the mid-part of the 1800s, municipalities in California enacted zoning laws that directly discriminated against them. Joel Kosman, Toward an Inclusionary Jurisprudence: A Reconceptualization of Zoning, 43 CATH. U. LAW. REV. 59, 63 (1993).
477. When these laws were struck down, the municipalities passed faciallyneutral ordinances that were nevertheless targeted at the Chinese, and which were struck down by the Supreme Court. See Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886) (describing San Francisco ordinance regulating laundries that was applied only to Chinese immigrants). Nonetheless, municipalities continued to pass "Chinese laundry" ordinances into the 1930s. David E. Bernstein, Lochner, Parity, and the Chinese Laundry Cases, 41 WM. & MARY L. REV. 211, 230 (1999).
478. For a discussion of racially-restrictive zoning ordinances, see Oliveri, supra note 112, at 59-62.
479. The Supreme Court struck down racially-restrictive zoning laws in 1917. Buchanan v. Warley, 245 U.S. 60 (1917). Despite this, municipalities continued to pass such laws, which continued to be struck down, for another thirteen years. See City of Richmond v. Deans, 281 U.S. 704, 704 (1930) (affirming the Fourth Circuit's holding that struck down a racially-restrictive zoning ordinance in Virginia);
480. Harmon v. Tyler, 273 U.S. 668, 668 (1927) (reversing the Louisiana Supreme Court's ruling in favor of a zoning ordinance that racially discriminated against African-Americans).
481. Ambler Realty Co. v. Vill. of Euclid, 297 F. 307, 313 (N.D. Ohio 1924), rev'd, 272 U.S. 365 (1926).
482. U.S. DEPT. OF HOUSING & URBAN DEV., HOUSING DISCRIMINATION SURVEY FINAL REPORT 3-5 (2002). This was the researchers' best estimate. Id.
483. Their upper-bound estimate was that Latinos would be discriminated against 52.7% of the time. Id.
484. NAT'L FAIR HOUSING ALLIANCE, 2004 FAIR HOUSING TRENDS REPORT 3 (2004).
485. Robert G. Schwemm, Why Do Landlords Still Discriminate (And What Can Be Done About It)?, 40 J. MARSHALL L. REV. 455, 477 n.119 (2007) (describing testing in various cities that showed rates of discrimination at 66%, 65%, and 52%).
486. Researchers use an Index of Dissimilarity ("ID") to compute how segregated a particular racial or ethnic group is from other groups. LEWIS MUMFORD CTR., ETHNIC DIVERSITY GROWS, NEIGHBORHOOD INTEGRATION LAGS BEHIND (2001), available at http://mumford.albany. edu/census/WholePop/WPreport/pagel.html. Values of forty to fifty are considered moderate. Id. In 2000, Latinos had an ID value of 51.5 from non-Latino whites. Id.
487. Troublingly, while the ID value for African-Americans and whites has been steadily declining in the last twenty years, the ID values for Latinos have remained essentially unchanged. Id.
488. See, e.g., Feagin, supra note 264, at 979-80 (describing how, in cities from New York to California, discriminatory building code enforcement has been used to target Latinos);
489. Yale Rabin, Expulsive Zoning: The Inequitable Legacy of Euclid, in ZONING AND THE AMERICAN DREAM: PROMISES STILL TO KEEP 101-20 (Charles M. Haar & Jerold S. Kayden eds., 1989) (documenting cases in which cities displaced thousands of black and Latino residents using "urban renewal" after the minority neighborhoods had been deliberately blighted through overzoning and lack of municipal services);
490. Carla Dorsey, Note, It Takes a Village: Why Community Organizing is More Effective than Litigation Alone at Ending Discriminatory Housing Code Enforcement, 12 GEO. J. ON POVERTY L. & POL'Y 437, 441-58 (2005) (describing attempts by several cities to condemn, destroy, and redevelop predominantly Latino areas);
491. Luna, supra note 151, at 72-77 (describing pattern of Midwestern municipalities enacting restrictive occupancy codes in order to keep out Latinos and enforcing housing codes against Latinos in a discriminatory and abusive manner);
492. Feagin, supra note 264, at 979-80 (describing how, in cities from New York to California, discriminatory building code enforcement has been used to target Latinos);
493. Paul F. Cuadros, Suburban Housing Inspectors Crack Down on Latinos, CHI. REP. (Sept. 1995), available at http://www.chicagoreporter.com/issue/index.php?issueId=289 (describing how communities in the Chicago suburbs used occupancy restrictions and housing codes to target Latino immigrants).
494. Luna, supra note 151, at 67-68.
495. Herminia L. Cubillos, Fair Housing and Latinos, 2 LA RAZA L.J. 49, 59 (1988).
496. Id.
497. Id.
498. Id. at 50-51.
499. In an ideal world, Congress would still remain sensitive to the reality that local governments do the lion's share of the work of accommodating and assimilating immigrant populations. Congress could perhaps make funding available to such communities so that they can undertake housing rehabilitation programs, comprehensive planning, and other measures designed to successfully absorb a population of newcomers. The City of Santa Ana, California provides an exemplary case study of how municipalities can use their land-use and redevelopment powers to respond to influxes of immigrant groups without discriminating against or marginalizing them. See, e.g., Stacy Harwood & Dowell Myers, The Dynamic of Immigration and Local Governance in Santa Ana: Neighborhood Activism, Overcrowding, and Land-Use Policy, 30 POL'Y STUDIES J. 70, 70-91 (2002) (analyzing the City of Santa Ana's use of land-use policy to promote urban revitalization and bring substandard housing up to code).
500. As discussed supra, note 127, 42 U.S.C. § 1981 provides some protection against alienage discrimination, but is an imperfect remedy.
501. In the absence of clear guidance from the Supreme Court, Congress should also specify that private acts of housing discrimination based on alienage are prohibited by § 1981.
502. At least one municipality to pass a housing AII ordinance, Farmers Branch, specifically noted the fact that the FHA has no protection for alienage in the preamble to its ordinance. See Farmers Branch, Tex., Ordinance 2892 (Nov. 13, 2006), available at http://www.aclu.org/pdfs/immigrants/ farmersbranch-ordinance.pdf ("WHEREAS, the Fair Housing Act does not prohibit distinctions based solely on a person's citizenship status....").
503. For temporary (non-immigrant) visitors who are present on student or work visas, an argument could be made that landlords should be able to limit lease terms to the length of time that a tenant is legally permitted to remain in the country, because temporary visitors are subject to deportation after their time expires. However, visas may be extended or new visas may be issued, and until these things happen there is no way to determine how long a visa holder will be permitted to remain in the United States.
504. N.Y. CITY ADMIN. CODE § 8-107(5).
505. CAL. CIV. CODE § 1940.3(b) (West 2007).
506. Id. § 1940.3(a).
507. See Frank D. Russo, California Becomes First State to Prohibit Landlords From Asking About Tenants' Immigration Status, CAL. PROGRESS REP., Oct. 12, 2007, available at http://www.californiaprogressreport.com/2007/10/california-beco.html (discussing the passage of California's law and its widespread support).
508. Future scholarship should examine whether the new law has an effect on the overall level of housing discrimination against Latinos and other national origin minorities in California, and whether it appreciably affects housing quality and overcrowding.
509. Admittedly, Peter Spiro's "steam valve" theory of immigration federalism cautions against such top-down measures. Peter J. SpIro, Learning to Live With Immigration Federalism, 29 CONN. L. REV. 1627, 1628-39 (1997).