Lozano v. City of Hazleton

Lozano v. City ofHazleton, 620 F3d 170 (3d Cir. 2010). City ordinances making it unlawful for employers to recruit, hire, or continually employ illegal immigrants; creating a safe harbor for employers through use of the E- Verify federal program; creating an anti-harboring provision; and requiring a rental registration permit to prove the legal status of renters before they can occupy or rent a unit are preempted by the Federal Immigration Reform and Control Act ("IRCA"). The plaintiffs, individuals and the Hazleton Hispanic Business Association, alleged that the ordinances violated the Supremacy Clause, the Due Process Clause, the Equal Protection Clause, 42 U.S.C. § 1981, the federal Fair Housing Act, 42 U.S.C. § 3601-31, plaintiffs' privacy rights, Pennsylvania's Home Rule Charter Law, Pennsylvania's Landlord and Tenant Act, and the limits of Hazleton's police powers. The United States District Court for the Middle District of Pennsylvania issued an order permanently enjoining enforcement of the ordinances. On appeal, the United States Court of Appeals for the Third Circuit analyzed whether federal immigration law preempted the ordinances. The court began its analysis by briefly laying out the parameters of federal immigration laws, their non-discriminatory provisions, and the three types of preemption: express, implied conflict, and field. Next, the court confirmed that federal laws do not supersede historic state police powers unless preemption was the clear purpose of Congress or the state intruded on an area of law with historical federal presence. The court agreed with the City that the district court failed to apply the presumption against preemption for the City's employment provisions. The district court failed to recognize that not every state enactment that deals with aliens is a regulation of immigration. Rather, laws regulate immigration only if they attempt to regulate who should or should not be admitted into the county and the conditions under which a legal entrant may remain. The City's employment provisions regulate the employment of persons unauthorized to work in this country and therefore clearly do not regulate immigration. Thus, the court concluded the City was entitled to a presumption against preemption. IRCA, however, expressly confirms that provisions in the Act preempt states from imposing civil or criminal sanctions upon those who employ unauthorized aliens. The City's employment ordinances, however, are licensing laws under IRCAs saving clause and therefore explicitly excluded from IRCAs preemptive scope. Even though not preempted expressly, the court held that the employment ordinance was preempted by conflict preemption because the employment provisions stand as an obstacle to the carefully balanced federal law. They are an obstacle because they place a heavier burden on employers by creating a separate and independent adjudicative system for determining whether an employer is guilty of employing unauthorized aliens. Additionally, the employment provisions contravene Congress' objectives for verifying both employment and independent contractors by altering IRCAs employment verification scheme. Moreover, the employment provisions fail to balance their sanctions with IRCAs anti-discrimination protections by imposing additional penalties on employers who hire unauthorized aliens and not penalizing those who discriminate, which in effect, places all the weight on one side of the regulatory scale. The court next concluded that the housing ordinance is not presumed to be nonpreempted because it purposely entered an area of significant federal presence. Further, the court held the ordinances to be field preempted because the Immigration and Nationality Act ("INA") is responsible for regulating residence based on immigration status, not state or local governments. Moreover, the ordinances are conflict preempted because they attempt to "remove" persons from Hazleton based on their current immigration status, rather than by a federal order of removal. Additionally, the court concluded that the City's housing provisions operate in a field that the federal government exclusively occupies. Therefore, even if the provisions did concurrently enforce federal law, they would not be saved from preemption. Finally, the court rejected City's argument of concurrently enforcing the INAs harboring prohibition because the provisions do not mirror federal law, but instead interpret the federal prohibition so broadly as to encompass the typical landlord/tenant relationship. Although the federal government does not intend for aliens to be unlawfully harbored, it has never intended them to go homeless. (Matthew R. Brunkhorst)