Lawsuits target apartment firms “harboring” illegal immigrants

Apartment providers are once again being targeted by groups that seek to curb illegal immigration.  Last year, with the support of the Washington, DC-based Immigration Reform Law Institute (IRLI), several localities (Hazleton, PA, Escondido, CA, Farmer’s Branch, TX) enacted laws prohibiting apartment owners from renting to undocumented immigrants. For the most part, the laws have been overturned or placed on hold by the courts.
Now, in a new development, the IRLI has filed a lawsuit against a New Jersey management firm, claiming the company knowingly rented apartments to undocumented immigrants in violation of federal law.  The suit alleges that the company actively seeks out the immigrants, engages in racial segregation among residents and steers lower-income and undocumented residents to decaying properties (Delrio-Mocci v. Connolly Properties Inc.). The complaint alleges violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO), which was enacted in 1970 to combat organized crime and has not been previously applied in this way.
In March, the U.S. Department of Homeland Security (DHS) initiated a separate lawsuit against a Kentucky apartment owner for violating immigration law by allegedly harboring undocumented residents. Importantly, federal law does not require apartment firms to screen residents for their immigration status.   The New Jersey case has yet to go to court; on June 17, however, a federal judge in Lexington ruled that the owner being sued by DHS could use ignorance of the law as a permissible defense.  In other words, the court will allow the firm to claim that even if it violated the law it should not be held accountable because it was unaware of its obligations under the law.
The National Multi Housing Council and the National Apartment Association (NMHC/NAA) are actively following this issue and will publish a special Property Management Update newsletter on the topic next month.  We are also educating policymakers that apartment firms should not be forced under federal or local law to verify the legal status of current or prospective residents.
The Bush Administration continues its efforts to enforce and expand existing immigration laws, particularly in the area of employment.  On June 12, the federal agency that oversees federal contracting rules, the Federal Acquisition Regulation (FAR) Council, issued a proposed regulation that would require many federal contractors to verify the legal status of certain employees using the Department of Homeland Security’s flawed e-Verify system.  E-Verify (formerly called Basic Pilot) is a voluntary Internet-based system that electronically compares information on I-9 forms against government records to determine an individual’s work status.
NMHC/NAA have opposed Congressional efforts to mandate participation in the federal screening program because the system is fraught with errors and could subject firms to legal liability.  It also raises privacy issues and concerns over potential discrimination in employment decisions.  If implemented, the rule would apply to all newly hired employees and existing employees directly involved in performing work on covered federal contracts.  The proposed rule is available at http://tinyurl.com/3zatp7. The rule is in response to an Executive Order issued on June 9 and posted here: http://tinyurl.com/6gbp5d.
Industry Asks Supreme Court To Rule On Whether Section 8 Program Is Voluntary
A number of apartment organizations have joined forces to file a “friend of the court” brief asking the United States Supreme Court to weigh in on whether states and localities can force property owners to participate in the federal Section 8 program by passing laws that make it illegal to deny a voucher holder based on their “source of income.”
“When Congress created the Section 8 program, it explicitly made the program voluntary because it recognized that there are costs and burdens imposed on property owners who choose to participate,” said Jim Arbury, NMHC/NAA Senior Vice President of Government Affairs. “Now states and localities are trying to alter the voluntary nature of the program by passing so-called “source of income” non-discrimination laws that essentially make property owner participation mandatory.”
“Not only do these state and local laws contradict Congressional intent, they also impose an unconstitutional burden on property owners,” explained Arbury. “We believe that the voluntary nature of the federal law should preempt these state and local laws.”