| Last updated November 19, 2008 | |
An increasing number of states are passing local ordinances targeting undocumented immigrants. These laws range in severity and scope, but tend to penalize landlords who rent or lease their property to undocumented immigrants, business owners who hire immigrants, and immigrants themselves. Some people affected by the ordinance are challenging them in court. Developments By State | Additional Resources Arizona | California | Georgia | Indiana | Kentucky | LouisianaMassachusetts | Michigan | Missouri | New Jersey | New York | Oklahoma | Pennsylvania | Texas
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Developments By State
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Arizona
Day Laborers Oppose Cave Creek Anti-Solicitation Ordinance Day laborers in Cave Creek, Arizona, have filed suit in response to an anti-solicitation city ordinance. The ordinance, allegedly aimed at day laborers, bars individuals standing on or next to a street or highway from soliciting employment, business or contributions from passing drivers and even individuals in parked cars. The plaintiffs allege that the ordinance violates the First Amendment because it constitutes a content-based regulation of free speech by prohibiting specific methods of soliciting employment. The plaintiffs also assert that the ordinance is aimed at illegal immigrants based on public statements made by town officials. The suit, filed March 25, 2008, seeks injunctive and declaratory relief. On June 2, 2008, the district court issued a preliminary injunction order that found the anti-solicitation ordinance unconstitutional. The court reasoned that solicitation is a form of speech, and because the measure is content-based in that it bars only certain types of speech, it is unconstitutional. In the alternative, the court found that the ordinance is unconstitutional because it is not narrowly tailored to fit the local government's purported interest in promoting traffic safety. In addition, the court found that plaintiffs demonstrated a probability of irreparable harm. A scheduling conference will be held on August 22, 2008. Arizona Employers and Community Organizations Challenge State Law Penalizing Employers of Unauthorized Immigrants Arizona employers and community organizations brought suits to challenge a state law that prohibits employers from knowingly or intentionally employing an unauthorized immigrant. The Legal Arizona Workers Act requires employers to verify the employment eligibility of each employee through a federal verification program known as "E-Verify." Under this law, employers may have their business licenses suspended after a first violation, and permanently revoked after a second violation. The complaints allege, inter alia, that the law is preempted by federal law, deprives plaintiffs of property without due process of law, interferes with interstate commerce, and violates the Arizona Constitution. Plaintiffs seek declaratory and injunctive relief. On December 10, 2007, the court issued an order dismissing case numbers 07-1355 and 07-1684. The court reasoned that there was no justiciable case or controversy because plaintiffs did not intentionally or knowingly employ or have any plans to employ unauthorized persons and therefore there was no danger of enforcement. The court also found that plaintiffs did not name the proper defendants because the named state defendants, unlike county attorneys, were not authorized to enforce the challenged law. The court reasoned that plaintiffs would have standing to challenge the law based on the economic cost of E-Verify if they had sued the proper defendants. The plaintiffs filed an appeal at the Ninth Circuit Court of Appeals. On December 9 and 12, 2007, the same plaintiffs filed two additional suits in district court, case numbers, 07-2496 and 07-2518. These complaints raise primarily the same issues as the first two suits, however, they name county attorneys as defendants to address the court's concern about the proper defendants. On February 7, 2008, the court entered judgment in favor of the defendants. Plaintiffs then appealed to the Ninth Circuit. The Ninth Circuit consolidated the appeals in all the cases and heard the appeals on an expedited basis. On September 17, 2008, the Ninth Circuit issued its opinion. The court of appeals agreed with the district court that the Legal Arizona Workers Act was not preempted by federal law. The federal law provision at issue, 8 U.S.C. § 1324a(h)(2), preempts state sanctions for hiring unauthorized immigrants "other than through licensing and similar laws." The court reasoned that because the Act was a "licensing" law within the meaning of 8 U.S.C. § 1324a(h)(2), it was not expressly preempted. The court held further that the provision of the law requiring employers to use E-Verify is not expressly or impliedly preempted by federal policy. The court also found that the Act does not violate employers' due process rights. The court reasoned that employers have an opportunity to present evidence at a hearing in Arizona Superior Court in order to rebut the presumption of an employee's unauthorized status. The court noted that the statute has not yet been enforced, and that when the factual background is developed, other challenges to the Act may arise. On October 1, 2008, plaintiffs filed for a petition for rehearing. Arizona Employers for Immigration Reform (AEIR) have posted decisions, pleading, briefs, and other court documents in these cases at http://azeir.org/index2.asp. The ACLU also has posted a press release and court documents. California
Permanent Injunction Enjoins City of Escondido from Enforcing Ordinances The City of Escondido has agreed not to enforce an ordinance that targets landlords who rent to undocumented immigrants. Both parties asked the court to enter a final judgment and permanent injunction to prevent the Defendant City of Escondido from enforcing the Ordinance. The court issued the injunction and the City of Escondido is now permanently enjoined from enforcing the ordinance.
Georgia
Georgia Court Issues TRO to Enjoining Enforcement of Local Ordinance and Stays Proceedings Pending Decisions in Hazleton and City of Valley Park, Mo. A Group of Cherokee County residents and a local business brought suit on January 4, 2007 in the District Court for the Northern District of Georgia challenging a local ordinance that created penalties for "harboring" an illegal alien. According to the ordinance, "harboring" includes renting or leasing to an illegal immigrant knowingly or with reckless disregard of a person's illegal status. Plaintiffs have alleged that the ordinance violates the U.S. Constitution as well as federal and state law. On January 4, 2007, the court issued a temporary restraining order and a preliminary injunction enjoining Cherokee County from enforcing the ordinance. The court stayed proceedings until a final judgment has been issued and appeals have been pursued in Lozano v. City of Hazleton (Pennsylvania) and Reynolds v. City of Valley Park, Mo. (Missouri). On August 28, 2007, the court administratively closed the case. The court's order granting a preliminary injunction is available on the ACLU's website. Indiana
Immigrants Prevail Against Driver License Ordinance Kentucky
Lawful Permanent Resident Challenges Kentucky Law Requiring U.S. Citizenship to Obtain Weapon License A lawful permanent resident residing in Kentucky brought suit to challenge a Kentucky statute barring resident aliens from obtaining licenses to carry a concealed deadly weapon. On April 22, 2006, Kentucky's General Assembly amended a Kentucky statute require all applicants for a license to carry a concealed weapon to be United States citizens. The complaint alleges that this citizenship requirement is unconstitutional as it denies equal protection of the laws and violates the Equal Protection Clause. The plaintiff seeks a declaration that the Kentucky statute is unconstitutional, injunctive relief enabling him to apply for a license to carry to a concealed weapon, and monetary damages. On March 13, 2008, the court granted plaintiff's motion for a preliminary injunction, finding that he is likely to succeed on the merits. On April 15, 2008, the defendant filed a motion to dismiss the action as moot because the state legislature has removed the citizenship requirement from the Kentucky statute. Thereafter, the court granted the parties' request to extend the deadline for filing a response to the motion to dismiss, as the parties are attempting to resolve the case. Louisiana
Louisiana Court Finds Statute Targeting Drivers Unconstitutional, Quashes Charges Against Arrestee A Louisiana state court granted defendant Omar Barrientos’ motion to quash in a criminal case involving a law barring certain noncitizens form driving. Barrientos was charged with violating La. R.S. 14:100.13, Operating a Vehicle Without Lawful Presence in the United States. This statute prohibits any “alien student” or “nonresident alien” from operating a motor vehicle in the state without documentation proving that he or she is “lawfully present in the United States.” The statute calls for the arresting officer to cancel the driver’s license and to notify federal immigration officials of the name and the location of the person. The penalties for violating the statute include a fine of $1,000 or less, imprisonment for up to one year, with or without hard labor, or both. In a January 31, 2007 order, the court held that the statute unconstitutionally preempts federal law because it attempts to regulate immigration and conflicts with federal immigration law. The court noted that the terms employed by the statute, “alien student” and “nonresident alien,” are incompatible with federal law. Furthermore, the statute’s identification requirements place an unlawful burden on noncitizens. Massachusetts
Challenge to Wrongful Denial of Driver’s Licenses A group of immigrants, who are lawful residents and legally authorized to work, brought a class action against the Massachusetts Registry of Motor Vehicles. The complaint alleges that the Registry wrongfully denied licenses, learner’s permits and identification cards to immigrants who are legally entitled to these documents. Michigan
After Suit Filed, MI Enacts New Legislation on Drivers Licenses On February 13, 2008 six Michigan residents filed suit against the state claiming that its new policy of denying driver's licenses to any person who is not a U.S. citizen or lawful permanent resident violates the Michigan Vehicle Code and Constitution. The complaint alleges that Michigan's policy will bar thousands of legal residents from obtaining licenses. On February 15, 2008, Michigan's governor signed legislation that amended the Vehicle Code to specifically allow all legal residents to obtain driver's licenses. Missouri
Valley Park Business Challenges Employer Sanction Law Following Reynolds v. City of Valley Park (see case description below), Valley Park amended and reenacted ordinances requiring employers to investigate and determine the immigration status of its employees and punishes employers suspected of hiring undocumented workers. The plaintiffs, a business and a business owner, brought suit to challenge one ordinance. They allege that the ordinance violates the Supremacy Clause (conflicts with, violates, and is preempted by IRCA), violates the due process and equal protection clauses of the Fourteenth Amendment, is precluded by Reynolds, and violates Missouri state law. On January 31, 2008, the court granted summary judgment in favor of the defendants. The plaintiffs appealed the decision to the Eighth Circuit. Their opening brief is due on June 16, 2008. Missouri Court Grants Permanent Injunction Barring Enforcement of Ordinances Targeting Landlords and Business Owners On July 17, 2006, a group of landlords and the Metropolitan St. Louis Equal Housing Opportunity Council brought suit in Missouri state court challenging an ordinance enacted by the Valley Park City Council. Among other things, the ordinance bars businesses from "aid[ing] and abet[ting] illegal aliens or illegal immigration." It also precludes property owners from renting to an "illegal alien." Businesses that violated the ordinance would be denied business permits and city contracts for a period of five years and subject to fines. Plaintiffs argued that the ordinance was unconstitutional and violated federal and state law. The court issued a temporary restraining order (TRO) to block enforcement of the ordinance. Hours later, the City Council passed a second version of the ordinance. The court issued a second TRO to stop enforcement of the second ordinance. On March 12, 2007, the court granted the plaintiff's Motion for Judgment on the Pleadings, declared the ordinances void and permanently enjoined the enforcement of both ordinances The court's order granting the permanent injunction and other pleadings in this case are available on the ACLU's website. New Jersey
Challenge to New Jersey Township Ordinance Aimed at Landlords Landlords, immigrants and residents of Riverside Township, New Jersey are challenging an ordinance that prohibits property owners from renting, leasing, or allowing their property to be used by “illegal immigrants.” Plaintiffs argue the ordinance is ultra vires to state law and violates property owners’ substantive due process rights as well as other provisions of New Jersey law. On September 17, 2007, Riverside Township repealed the ordinance. New York
District Court Declares New York Law Unconstitutional A district court struck down a New York state regulation that restricted veterinarian licenses to U.S. citizens and LPRs. The plaintiff, a Canadian citizen, had been granted a temporary visa under NAFTA specifically to practice veterinary medicine. Under the state law, plaintiff does not qualify for a permanent veterinarian license, but the state granted him a waiver of the citizenship/LPR requirement so that he was able to work under a limited license until July 2008. In his complaint, plaintiff alleged that NY's restriction violated the Equal Protection Clause and the Supremacy Clause. The court granted plaintiff's motion for summary judgment. It held that non-immigrants are a suspect class for purposes of the Equal Protection Clause and that the NY law fails to pass strict scrutiny. However, even under the less stringent rational basis test, the law still violates the Equal Protection Clause. The court also concluded that the law conflicts with NAFTA and therefore is invalid under the Supremacy Clause. On July 24, 2008, the state filed a notice of appeal to the Second Circuit. In addition, the state asked the court to stay its decision pending resolution of the appeal and to authorize the plaintiff to continue working under a limited license. Oklahoma
Court Enjoins Oklahoma Law Regulating Employment The United States Chamber of Commerce, several Oklahoma chambers of the commerce, and two business associations brought suit against several Oklahoma state officials challenging an Oklahoma law governing employer verification of immigration status. The law creates, inter alia, requirements related to work authorization of independent contractors and employment authorization restrictions related to contracting with the state. The complaint alleges that provisions in the state law could lead to debarment from State contracts, obligatory withholding of taxes from contractors or tax penalties, and liability for having unknowingly employed an unauthorized worker. Plaintiffs argue that the law is preempted by federal law and request declaratory and injunctive relief. On June 6, 2008, the court issued an order granting plaintiffs’ motion for preliminary injunction, finding that plaintiffs demonstrated a risk of harm from enforcement of the Oklahoma statute and therefore had standing. The court also found that plaintiffs stated claims which, if proven, would entitle them to relief. Taxpayer Challenges Law Targeting Immigrants A resident Tulsa County taxpayer brought suit alleging that an Oklahoma immigration law (HB 1804) violates the Oklahoma Constitution. The new law, which went into effect on November 1, 2007, creates new crimes that punish those who "transport," "conceal," "harbor," or "shelter" anyone without legal presence in Oklahoma. The law authorizes certain entities, such as businesses and public schools, to create identification documents and permits Oklahoma tag agencies to require proof of citizenship before a driver license can be renewed. Among other provisions are requirements that public and private employers participate in the federal Status Verification System. The complaint states that the law in substance and effect unconstitutionally creates a Bureau of Immigration and allows for the expropriation and expenditure of public funds. Among other violations, the complaint alleges that the law unlawfully delegates legislative authority to federal agencies and other public entities within the state without providing necessary and adequate standards. Because the law is unconstitutional on its face, the complaint alleges that expenditure of any public funds to enforce provisions included in the law is unlawful. Plaintiff requests declaratory and injunctive relief. On April 11, 2008, the court heard arguments on Plaintiff's motion for summary judgment. The court then directed the parties to submit proposed findings of fact and conclusions of law. Challenge to Oklahoma Law Dismissed for Lack of Standing National Coalition for Latino Clergy et. av. Henry, No. 07-594 (N.D. Okla. dismissed Oct. 22, 2007) The district court dismissed for lack of standing a suit filed by the National Coalition for Latino Clergy, two churches, restaurants, and several “John Does.” The plaintiffs alleged that Oklahoma House Bill 1804, which went into effect on November 1, 2007, violates various provisions in the U.S. Constitution (including the Supremacy Clause, Due Process, and the Equal Protection Clause) and the Oklahoma Constitution. House Bill 1804 is a broad statute that, inter alia, denies undocumented immigrants state identification, requires all state and local agencies to verify citizenship status of applicants before authorizing benefits, and requires public employers to enter job applicants into an electronic immigration database to verify legal status. National Coalition for Latino Clergy et. al v. Henry, 07-613 (N.D. Okla. dismissed Dec. 12, 2007) The district court dismissed a second suit brought by many of the plaintiffs in the suit discussed above. Again, the court found that plaintiffs lack standing. With respect to the National Coalition for Latino Clergy, the court found that it could not meet the associational standing requirements because the association failed to identify an individual member who would have standing to sue. The court found that the two churches and restaurants lacked standing because their claims are "too speculative and non-imminent." The court, however, did find that several individual ("John Doe") plaintiffs had alleged concrete injuries and thus have Article III standing to challenge the Oklahoma law. These alleged injuries include evictions or threats of evictions and denial of a license. Nevertheless, the court dismissed the individuals' claims because that they lacked prudential standing. The court focused on the fact that the plaintiffs are "illegal aliens" and opined that "the proper remedy for the injuries alleged by the remaining Plaintiffs - all of whom are in willing violation of federal immigration law - is not judicial intervention, rather, it is simple compliance with federal immigration law." Pennsylvania
Permanent Injunction Granted to Halt Ordinances Targeting Landlords/Businesses - Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007, appeal docketed Aug.15, 2006), No. 07-3531 (3d Cir. Aug. 30, 2007) The United States District Court for the Middle District of Pennsylvania granted a temporary restraining order enjoining enforcement of two ordinances that would require occupants of rental units to prove legal citizenship and or residency and would target businesses that employ undocumented immigrants. Plaintiffs have filed two amended complaints. The most recent alleges that the ordinances improperly infringe upon the federal government’s exclusive authority over immigration matters and violate plaintiffs’ due process rights and equal protection rights, the Fair Housing Act, plaintiffs’ right to make and enforce contracts under 42 U.S.C. §1981, the Home Rule Charter Clause, the Pennsylvania’s Landlord and Tenant Act, plaintiffs’ privacy rights, and legitimate police powers. On February 27, 2007, the court ruled on motions in limine filed by both parties. The court denied Defendant’s motion to prevent testimony on the effects of the immigration ordinances by unidentified plaintiffs, ruling that such a determination would be premature. The court ordered one plaintiff to establish his residency status in order to determine if he is covered under the protective order. The court also denied Defendant’s motions to exclude the testimony of an expert on federal immigration law and to dismiss a plaintiff who failed to appear for a deposition. In response to Plaintiffs’ motion to exclude “any evidence concerning the impact of illegal aliens on education, healthcare and public services” for lack of foundation, the court ruled that defense experts and the testimony of Mayor Louis Barletta could provide the necessary foundation and that the factfinder could find the evidence relevant. The court denied the motion as premature and overly broad. The court also denied Plaintiffs’ motion to prevent the testimony of defense experts on the effect of illegal immigration on crime and economic conditions. On July 26, 2007, the court issued a decision permanently enjoining the City of Hazleton from enforcing the ordinances. The court held that the employment provisions were expressly and impliedly pre-empted by federal law and that the housing provisions of the ordinances also conflicted with federal law. Finally, the court held that the city’s ordinances violated due process protections of the Fourteenth Amendment and impermissibly burdened plaintiffs rights to contract under 42 U.S.C. § 1981. The City of Hazleton has appealed the district court's order to the Third Circuit Court of Appeals. The appellant filed its brief on February 7, 2008.
Challenge to Policy Requiring Proof of Lawful Presence for Marriage License A U.S. citizen and a citizen of Mexico filed suit against a Pennsylvania official for denying their application for a marriage license. A county policy requires persons seeking to obtain a marriage license to prove their lawful presence in the U.S. The complaint alleges that this policy is unconstitutional in that it violates their due process right to marry, the equal protection clause, and the supremacy clause. The plaintiffs moved for a TRO and/or preliminary injunction, and the court held a hearing on the motion on April 26, 2007. On May 1, 2007, the court granted the plaintiffs’ TRO thereby enjoining defendants from requiring the non-U.S. citizen plaintiff from having to produce a visa or other proof of his lawful presence in the United States as a condition of obtaining a marriage license. The court reasoned that both the U.S. citizen plaintiff and the Mexican citizen possessed the same fundamental right to marry, that defendants’ policy does not appear to be closely tailored to a sufficiently important state interest, and therefore, the state policy was likely to be found unconstitutional. Texas
Court Bars City from Enforcing Ordinance Aimed at Landlords, Dismisses Damages Claim In three suits, tenants, landlords and business owners challenged a Farmers Branch, Texas, ordinance that requires property owners and managers to obtain proof of citizenship or eligible immigration status before taking on tenants. In April 2007, the court consolidated the cases, and in May 2007 the court granted a TRO, finding that federal law preempted the ordinance. It reasoned that the measure did not adopt federal immigration regulations but rather impermissibly adopted housing regulations used to determine noncitizens' eligibility for federal housing subsidies. In June 2007, the court granted the plaintiffs' application for a preliminary injunction that barred the city of Farmers Branch from enforcing the ordinance pending a trial on the merits or other disposition of the case. Although the injunction remained in place, on December 11, 2007, the court granted the city's motion to dismiss plaintiffs' claims for compensatory damages. The court reasoned that because the ordinance never was enforced, plaintiffs did not suffer any damages. On May 28, 2008, the court ruled on plaintiffs' remaining requests for declaratory and injunctive relief, granting plaintiffs' motion for partial summary judgment and permanently enjoining the city of Farmers Branch from enforcing the ordinance. The court held that the ordinance was preempted by federal law because it impermissibly attempts to regulate immigration. In addition, the court held that the court could not "save" the ordinance by severing portions of the ordinance so that the ordinance would not be preempted by federal law. Finally, the court held that the ordinance violated the Due Process clause of the Fourteenth Amendment because it was void for vagueness. The court also held that a new ordinance passed by the city on January 28, 2008, that aimed to regulate occupancy of rental properties, was distinct from the ordinance challenged in the case. Therefore, the court stated that challenges to the new ordinance would not be considered along with a challenge to the original ordinance. Both parties subsequently filed motions with regards to the new ordinance. Defendants sought declaratory judgment from the court that the new regulation is constitutional and valid. Meanwhile, the Vasquez plaintiffs moved for the court to certify a partial final judgment with regards to the first ordinance but preserve jurisdiction over the remaining claims concerning the new ordinance. The Villas plaintiffs, however, were against even a partial final judgment because, they argued, the claims as to the first ordinance were not moot. On August 29, 2008, the court held that an entry of final judgment was appropriate as to all claims challenging the original ordinance. It reasoned that it had already awarded plaintiffs all the specific relief plaintiffs sought in their pleadings when it declared the original ordinance unconstitutional and permanently enjoined enforcement of the ordinance.
Challenge to Dallas Ordinance Targeting Landlords - Ramos v. The City of Farmers Branch, No. 06-12227 (Tex. Dist. Ct. filed Dec. 4, 2006). A real estate agent brought suit in the District Court of Dallas County challenging the enforcement of two ordinances that prevent landlords from renting to undocumented immigrants and require landlords to meet certain property maintenance requirements. The plaintiff claims that the city council violated the Texas Open Meetings Act when it voted to approve the ordinances in closed-door meetings. On January 9, 2007, the plaintiff applied for a temporary restraining order and on January 11, 2007, the court granted the order, stating that the ordinance “may have been approved and adopted in violation of the Texas Open Meetings Act, causing irreparable injury to Plaintiff and other citizens of Farmers Branch, Texas.” The court set a hearing date for January 22 to determine whether the TRO should be made a temporary injunction pending a full trial on the merits. | |
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