Keller v. City of Fremont

United States Court of Appeals for the Eighth Circuit
Not available (2013)

ELI5:

Rule of Law:

A local ordinance that prohibits renting housing to aliens unlawfully present in the United States is not preempted by federal immigration law if the ordinance defers to the federal government's determination of immigration status and does not create a parallel or competing alien removal process.

Facts:

The City of Fremont, Nebraska experienced a significant increase in its Hispanic population between 2000 and 2010.
In June 2010, voters in Fremont adopted Ordinance No. 5165.
The Ordinance required every prospective renter over the age of 18 to obtain an occupancy license from the City before they could rent a dwelling.
To obtain a license, an applicant had to disclose identifying information, including their citizenship or immigration status.
The Ordinance directed the Fremont Police Department to use this information to ask the federal government to verify the immigration status of any non-citizen renter.
If the federal government confirmed that a renter was unlawfully present, the Ordinance provided for the revocation of their occupancy license after a notice period.
The Ordinance also made it unlawful for any person or business entity to rent to, or permit occupancy by, an 'illegal alien'.

Procedural Posture:

Two groups of plaintiffs, including landlords and tenants, filed facial challenges against Ordinance No. 5165 in the U.S. District Court for the District of Nebraska, seeking to enjoin its enforcement.
The cases were consolidated by the court.
On cross-motions for summary judgment, the district court upheld the ordinance's employment provisions.
The district court severed and enjoined the penalty and license-revocation provisions of the rental scheme, ruling they were preempted by the Immigration and Nationality Act and violated the Fair Housing Act.
Both the plaintiffs and the City of Fremont appealed the district court's judgment to the U.S. Court of Appeals for the Eighth Circuit.

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Issue:

Does federal immigration law preempt a local ordinance that prohibits renting housing to unlawfully present aliens by requiring all prospective tenants to obtain an occupancy license and requiring the city to verify the immigration status of non-citizen applicants with the federal government?

Opinions:

Majority - Loken, Circuit Judge

No, the ordinance is not preempted by federal immigration law. The rental provisions are not a constitutionally proscribed regulation of immigration because they do not determine who may enter or remain in the country, but merely deter unlawfully present aliens from residing within a particular locality. The ordinance is not subject to field preemption because it is a local property licensing program applicable to all renters, not a parallel alien registration or anti-harboring scheme. Finally, it does not create a conflict with federal law because it explicitly defers to the federal government's determination of immigration status and does not create its own process for removal; federal officials retain complete discretion over whether to initiate removal proceedings. Any potential conflict is speculative and insufficient to sustain a pre-enforcement facial challenge.

Dissenting - Bright, Circuit Judge

Yes, the ordinance is preempted by federal law. The ordinance's housing provisions are conflict-preempted because they stand as an obstacle to the accomplishment of federal objectives. The clear purpose and effect of the ordinance is to remove undocumented persons from the city, which usurps the exclusive federal power over immigration and removal. It creates a local system of removal that interferes with the complex federal framework, in which unlawful presence does not automatically and inevitably lead to removal, and in which the executive branch retains significant discretion. The ordinance undermines the uniform, national system of immigration enforcement envisioned by Congress and affirmed in Supreme Court precedent.

Concurring - Colloton, Circuit Judge

No, the FHA claim should be dismissed, but on grounds of standing, not on the merits. The plaintiff landlord, Fred Keller, abandoned his FHA claim by not arguing he had standing to bring it. The tenant plaintiffs, Juan Doe and Juana Doe #2, lack Article III standing because they failed to demonstrate a concrete and imminent injury, as one was in an unaffected long-term lease and the other had purchased a mobile home. Because no plaintiff had standing to bring the FHA claim, the court should not have reached the merits of the disparate impact issue at all.

Analysis:

This decision deepened a circuit split regarding the extent to which federal immigration law preempts state and local housing regulations. By upholding Fremont's ordinance, the Eighth Circuit adopted a narrow view of conflict preemption, suggesting that local laws may survive challenges as long as they defer to federal status determinations and do not create independent removal mechanisms. This ruling could embolden other municipalities within the circuit to enact similar ordinances that use housing and licensing laws to regulate the presence of unlawfully present aliens. The decision contrasts with rulings from other circuits that found similar local ordinances to be impermissible intrusions into the federal government's exclusive domain over immigration.

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