In a significant win for the anti-immigrant movement, a federal appeals court upheld a Nebraska city’s statute Friday that bans renting property to undocumented immigrants, holding that the law was neither preempted by federal law nor discriminatory.
In a 2–1 opinion, Judge James B. Loken rejected the rulings of several other federal appeals courts that federal immigration regulation precludes local prohibitions on the “harboring” of undocumented immigrants. Reasoning that cities and states are perfectly entitled to keep undocumented immigrants out of their borders, Loken and fellow Republican appointee Steven Colloton upheld a statute making it unlawful to hire, rent to, or otherwise “harbor” an undocumented person in Fremont, Nebraska, dubbed a “city of the first class.”
“Laws designed to deter, or even prohibit, unlawfully present aliens from residing within a particular locality are not tantamount to immigration laws establishing who may enter or remain in the country,” Loken, a former Nixon advisor and George H.W. Bush appointee, wrote for the majority.
In support of this proposition, Loken cites to a footnote in a U.S. Supreme Court decision that, ironically, affirmed the right of undocumented children to obtain a public education. In that footnote, the court recognized, as an aside totally separate from the contrary holding in the case, that a law is not necessarily invalid merely because it imposes an unequal burden on undocumented immigrants.
Fremont’s law does far more than impose an unequal burden on undocumented immigrants. In requiring all rental applicants to register with the city and prove their citizenship, the city of Fremont is not only effectively removing many undocumented immigrants from its jurisdiction; it is also making its own separate determination of lawful presence in the United States, without the assessment and due process that accompanies federal removal.
Just last year, the U.S. Supreme Court reiterated the breadth of federal supremacy in the field of immigration law in striking down key elements of Arizona’s controversial SB 1070, writing that no state or local government is allowed to “achieve its own immigration policy.” And as the U.S. Court of Appeals for the Third Circuit explained in striking down an almost identical provision prohibiting the “harboring” of illegal immigrants, these sorts of local laws attempt to remove undocumented persons from the city “based on a snapshot of their current immigration status, rather than based on a federal order of removal.” Dissenting judge Myron Bright explained:
This produces conflict with federal law because unlawful presence or undocumented status is not in every case equivalent with removability or with eventual removal. “Under federal law, an unlawful immigration status does not lead instantly, or inevitably, to removal.” Additionally, undocumented persons are afforded numerous procedural protections under federal law before an order of removal may issue. The federal government will sometimes exercise its discretion not to prosecute a removal, “thereby tacitly allow[ing] the presence of those whose technical status remains ‘illegal.’ ” Even once a removal proceeding is commenced, it is far from certain it will result in removal.
This ruling is a major win for Kansas Secretary of State Kris Kobach, who profited handsomely from drafting this provision for Fremont and several other cities around the country.