City’s immigration ordinance held preempted by 5th Circuit.


Villas at Parkside Partners v. City of Farmers Branch, Texas No. 10-10751 (5th Cir. July 22, 2013)

This is a consolidated appeal heard en banc with the central issue being whether municipal ordinances restricting rental housing based on immigration status is preempted by federal law.  In this 122 page opinion, the U.S. Court of Appeals for the Fifth Circuit held the ordinances are preempted.

The City of Farmers Branch passed Ordinance 2952 which regulated non-citizens who reside in the United’s States illegally. Farmers Branch sought to “prevent” such persons from renting housing in the city. The district court concluded, inter alia, that the Ordinance was conflict preempted under federal law and the City appealed.

Ordinance 2952 sets forth licensing provisions and criminal sanctions. The factual details and court analysis is very detailed and far beyond what can be summarized here. However, the main points are that the Ordinance requires individuals to obtain a license before occupying a rented apartment or single-family residence. The Ordinance’s criminal provisions prohibit persons from occupying a rented apartment or single-family residence without first obtaining a valid license and making a false statement of fact on a license application. For persons not declaring themselves citizens or nationals of the United States, no license shall be given.  Landlords who disagree with a revocation can appeal to state court.

Based on the U.S. Supreme Court’s analysis in Arizona v. United States, 132 S. Ct. 2492, 2498-99 (2012) the Fifth Circuit held Farmers Branch’s establishment of new criminal offenses based on the housing of non-citizens “disrupt[s] the federal [immigration] framework,” both by interfering with federal anti-harboring law and by allowing state officers to “hold[] aliens in custody for possible unlawful presence without federal direction and supervision.” The federal government is the principle charged with the removal process and since Class C misdemeanors can authorize arrest (just not confinement), such interferes with the federal government’s removal authority. The federal government also is the sole body to determine alien classifications. So, landlord appeals on revocation interferes with federal classification processes.

For any city with immigration ordinances containing criminal provisions or state law appeal provisions, this case is an exhausting but helpful read in determining ordinance viability.

If you would like to read this opinion click here.

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