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Nebraska Town's Illegal Immigrant Housing Ban OK: 8th Cir. Panel

By Aditi Mukherji, JD on July 02, 2013 | Last updated on March 21, 2019

Two judges of a three-member panel of the Eighth Circuit Court of Appeals upheld Fremont, Nebraska’s housing ban on renting to illegal immigrants. The ruling flies in the face of other appellate courts who have hesitated to endorse laws that may interfere with the federal government’s authority over immigration regulation.

The decision opens the door for the town of Fremont to begin enforcing its law, and may have a butterfly effect for other cities with similar ordinances.

Fremont voters approved a measure in 2010 that prohibits hiring or renting to people who can't prove they are in the country legally.

Last year, U.S. District Judge Laurie Smith Camp ruled that parts of the ordinance denying housing permits to those not in the country legally were discriminatory and interfere with federal law. But the city has been enforcing its requirement that businesses use federal E-verify software to check on potential employees.

On Friday, two judges of the three-member Eighth Circuit panel rejected that reasoning, leading the majority to reverse the ruling and vacate the lower court's injunction against that part of the ordinance.

Judge James Loken wrote that the plaintiffs failed to show the law was intended to discriminate against Latinos or that it intrudes on federal law.

Eighth Circuit Judge Steven Colloton agreed with the reversal and vacating of the injunction, but said the plaintiffs lacked standing because they failed to show how they had been or could be harmed by Fremont's law.

Lawyers for the plaintiffs said they will confer with their clients before determining whether to ask the full 8th Circuit to review to the case. The ruling goes against the grain of similar courts across the rest of the country. Appellate courts across the ideological spectrum have rejected state and local laws that combat illegal immigration, out of deference to the federal government's exclusive authority over immigration regulation.

Last year, for example, the historically conservative Fifth Circuit Court of Appeals ruled that a Texas city housing ordinance that required citizenship or lawful immigration status as a precondition to renting housing was unconstitutional. A federal appeals court rejected a like-minded ordinance in Hazelton, Pa. even the notoriously conservative Eleventh Circuit Court of Appeals rejected similar provisions in Alabama.

Attorney Aaron Siebert-Llera, an attorney with the Mexican American Legal Defense and Educational Fund who represented several U.S.-born Latino home renters and a Fremont landlord who challenged the ordinance, expressed his disappointment to The Associated Press.

"You've got the U.S. Senate passing sweeping immigration reform. You've got this huge, nationwide change going on," he said to The AP. "Then you have a decision like this coming out."

In a dissent, Judge Myron Bright agreed with the lower court that parts of the ordinance interfere with federal law.

"The ordinance will impose a distinct burden on undocumented persons by preventing them from renting housing in Fremont," Bright wrote. "This denial of rental housing is paramount to removal from the city. And, as the Supreme Court has made clear, removal is entrusted exclusively to the federal government."

Kris Kobach, a Kansas attorney who represented Fremont and helped draft its ordinance and others around the country, said as soon as next week, the city will begin enforcing the part that requires all renters in the city to apply for an occupancy permit and denies those permits to people not legally in the country.

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