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Immigration Law

Immigration Attorney Carrie Rosenbaum Analyzes Federal Pre-Emption and 3rd Circuit Decision on Hazelton Anti-Immigrant Housing and Employment Ordinances

Carrie L. Rosenbaum

In this Analysis, Carrie Rosenbaum explains Lozano v. City of Hazleton, 2010 U.S. App. LEXIS 18835 (3d Cir. Pa. Sept. 9, 2010) [enhanced version available to subscribersunenhanced version available from lexisONE Free Case Law], the long-awaited Third Circuit decision on the City of Hazleton's controversial ordinances to combat employment of and rentals to noncitizens not authorized to work or to live in the United States. The decision raises issues of federal preemption (express, field, and conflict), and it may foreshadow the U.S. Supreme Court case on an Arizona law, which will be argued in the 2010 Term. The author writes:

Hazleton Code Provisions at Issue.

     The provisions primarily at issue in the Hazleton case prohibit businesses from recruiting, hiring, continuing to employ, permitting, dispatching, or instructing anyone who is an "unlawful worker." The provisions also prohibit "harboring," defined as "letting, leasing, or renting to an illegal alien" in "knowing or reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law." The IIRAO [Hazleton Illegal Immigration Relief Ordinance Act] makes legal immigration status a "condition precedent" to entering into a valid lease, and deems as breached any lease with a person lacking lawful status.

     In the context of employment the IIRAO also empowers city residents to submit a complaint to the Hazleton Code Enforcement Office alleging that a local business is violating the prohibition on using the services of an unlawful worker. A similar enforcement mechanism exists for enforcing the housing provisions. The IIRAO establishes an enforcement mechanism through the Hazleton Code Enforcement Office.

     . . . .

Decision and Reasoning Regarding the Substantive Provisions.

     While the court's reasoning diverged from that of the district court, the Third Circuit held that "the provisions of the ordinances which we have jurisdiction to review are pre-empted by federal immigration law and unconstitutional under the Supremacy Clause."

     The court examined relevant federal immigration laws, specifically IRCA [Immigration Reform and Control Act] and IIRAIRA [Illegal Immigration Reform and Immigrant Responsibility Act], before analyzing the relationship between federal immigration law and the ordinances enacted by Hazleton. Relevant to the court's analysis was the consideration that, "while any alien who is in the United States unlawfully faces the prospect of removal proceedings being initiated against her/him, whether s/he will actually be ordered removed is never a certainty until all legal proceedings have concluded." The court also explained that there are some instances where even after a removal order is issued an alien may not be deported. Also important in the court's rationale were IRCA's anti-discrimination protections in the employment context, which provide equivalent penalties for employers who discriminate as for those who hire unauthorized aliens.

     Following coverage of relevant immigration law, the court put into perspective the Hazleton ordinances by reviewing States and localities that have recently attempted to pass immigration laws that have faced pre-emption, due process, and other legal challenges. These include the Ninth Circuit's Chicanos Por La Causa [558 F.3d 856 (9th Cir. Ariz. 2009)] decision [enhanced version / unenhanced version] regarding Arizona's legislative efforts, rejecting the pre-emption and due process claims. It also noted Missouri's success in district court at fighting a pre-emption, due process, and equal protection challenge to an ordinance "virtually identical" to the IIRAO's employment ordinance.

(footnotes omitted)

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