PA Town’s Limits on Immigrants Can’t Stand

(CN) - Supreme Court precedent will not help Hazleton, Pa., keep ordinances that block illegal immigrants from getting jobs or renting housing, the 3rd Circuit ruled.

Hazleton's ordinances would require businesses to check a worker's legal status before hiring them, and prospective tenants to obtain an "occupancy permit," requiring proof of legal status. Any landlord found guilty of renting to a person without legal residency faced a $1,000 fine under the law.

The Philadelphia-based federal appeals court had originally struck down the ordinances in September 2010, finding that they "undermined" the federal government's ability to regulate immigration.

"It appears plain that the purpose of these housing provisions is to ensure that aliens lacking legal immigration status reside somewhere other than Hazleton," Chief Judge Theodore McKee wrote for a three-member panel. "It is this power to effectively prohibit residency based on immigration status that is so clearly within the exclusive domain of the federal government."

Last month, the Supreme Court ordered the appellate panel to reconsider in light of Chamber of Commerce v. Whiting, a May 26 ruling in which the justices upheld a controversial Arizona law that punishes employers who intentionally hire undocumented immigrants.

Some weeks later, the justices fired off another opinion about immigration enforcement in Arizona. The June 25 decision in Arizona v. United States says that, "as a general rule, it is not a crime for a removable alien to remain present in the United States."

Citing both decisions, the 3rd Circuit concluded Friday that federal law pre-empts Hazleton's ordinances.

"Despite the obvious trespass into matters that must be left to the national sovereign, the city continues to insist there is no conflict pre-emption because it is merely engaging in 'concurrent enforcement' of federal immigration laws," McKee wrote for the panel on remand. "Under that theory, virtually any local jurisdiction could prohibit activity that is also prohibited by federal law as long as the local prohibition is not expressly pre-empted and the locality is not acting in a field that is occupied by federal law."

In defending its law, Hazleton mistakenly cited precedent where "concurrent enforcement activity is authorized," according to the ruling.

"However, that argument collapses under its own weight," McKee added. "It requires requires that local enforcement activity not impair federal regulatory interests. It says nothing about the propriety of concurrent enforcement when the local enforcement does impair federal regulatory interests; yet, that is the situation here.

"Moreover, the city's argument simply cannot be reconciled with the Supreme Court's holding in Arizona." (Emphasis in original.)

Hazleton's ordinance forbidding landlords from renting to illegal immigrants is also not concurrent with federal law.

"The housing provisions conflict with federal law because they define 'harboring' to include simple landlord-tenant relationships," McKee wrote. "Although the Supreme Court has yet to define 'harboring,' we have found that culpability requires some act of concealment from authorities."

"In arguing that the RO [registration ordinance] is nothing like an alien registration system, the city claims 'the most notable difference' is that the RO applies equally to citizens and aliens alike while the federal Alien Registration Act applies only to noncitizens," McKee added. "We are not persuaded. It is highly unlikely that the local registration laws invalidated on field pre-emption grounds in Hines or Arizona would have been upheld if they applied to citizens and aliens alike. The RO's registration scheme cannot avoid pre-emption merely because it requires both citizens and noncitizens to declare their immigration status."

The registration ordinance is distinguishable from laws limiting immigrants from applying for a driver's license, the court also ruled.

"Basing eligibility for certain state privileges on immigration status is distinct from requiring aliens to register," McKee wrote. "The RO's rental registration scheme serves no discernible purpose other than to register the immigration status of a subset of the city's population. It can only be viewed as an impermissible alien registration requirement."

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