Jury still out on local immigration enforcement in Texas

by Julian Aguilar of The Texas Tribune

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Farmers Branch's law against renting to illegal immigrants was once again deemed unconstitutional.

Photo by Laura Seewoester

Immigration rally 2008

Wednesday's ruling that the city of Farmers Branch does not have the authority to enact immigration legislation sends a stern warning to municipalities intent on enacting similar laws, attorneys for the plaintiffs argue. But they caution that it doesn’t mean every form of immigration enforcement passed by local or state agencies won't hold up in court.

In the Farmers Branch case, the U.S. Court of Appeals for the 5th Circuit upheld a lower court’s decision that a city ordinance that banned illegal immigrants from renting housing in the Dallas suburb was unconstitutional because immigration enforcement falls under the purview of the federal government.

“Because the sole purpose and effect of this ordinance is to target the presence of illegal aliens within the city of Farmers Branch and to cause their removal, it contravenes the federal government’s exclusive authority over the regulation of immigration and the conditions of residence in this country,” the court ruled.

Nina Perales, the vice president of litigation for the Mexican American Legal Defense and Educational Fund, who argued the case before the 5th Circuit in October, didn’t downplay the significance of the ruling, which she said came from one of the most conservative appellate courts in the country.

“This is a stern message from the federal court that ordinances that target people for expulsion based on their race or ethnicity are unconstitutional, even if you dress them up as local immigration laws,” she said.

But while the ruling is a victory for immigrants in the realm of housing, she said the effects on other aspects of immigration law cannot be easily predicted. That’s because immigration laws are often packaged into big omnibus bills, she said — including some pending before the U.S. Supreme Court.

“A lot of these laws are a smorgasbord,” she said. “Some have to do with police, some have to do with employment, day laborers, solicitation of employment, some with housing.”

The Supreme Court is scheduled to hear arguments in Arizona’s case against the federal government next month. Federal courts blocked portions of Senate Bill 1070, the state’s controversial immigration legislation, including a provision that makes it a state crime to be in the country illegally and another that requires local law enforcement officers to check the immigration status of people they suspect are in the country illegally.

The bill is considered the landmark legislation that led several other states including Texas to pass or attempt to pass their own forms of immigration laws. The Texas Legislature tried twice in 2011 to pass a bill that would have denied state funds to local or state entities that prevented their law enforcement officers from inquiring into the immigration status of a person arrested or detained. The legislation, dubbed the “sanctuary cities” bill, failed to make it to Gov. Rick Perry's desk despite being deemed an emergency item.

Perales said that no matter what the court’s ruling in the Arizona case is, it would be difficult to use it as a litmus test to forecast outcomes on other immigration cases.

“It’s hard to make a prediction about whether any portion of an SB 1070 ruling would inspire further anti-immigrant laws,” she said. “What we have in Farmers Branch is aimed at housing. It’s different than a law that may address employment.”

To illustrate the complexity of the issue, Perales pointed to an earlier U.S. Supreme Court decision that upheld a different immigration law passed by the Arizona Legislature. In Chamber of Commerce of the United States v. Whiting, the court ruled 5-3 that the federal government’s Immigration Reform and Control Act did not preempt the state government from revoking the business licenses of employers who knowingly hire illegal immigrants. And it upheld Arizona's ability to mandate the use of E-Verify.

State Rep. Burt Solomons, R-Carrollton, the author of a Texas-based immigration enforcement bill last legislative session, said Thursday that he suspected lawmakers would wait and see what becomes of the Arizona law before considering another attempt. But he said the issue would remain heated regardless of the ruling.

“I suspect someone will try to move forward with [legislation],” he said. “There will still be attempts and I think that is going to continue until we see a national [immigration] reform.”

In the Farmers Branch case, the appellate court also touched on the notion that the immigration system is broken and needs a nationwide solution. Judge Thomas Reavley said that while millions of Latinos live in the country illegally, “a great majority live quietly, raise families, obey the law daily and do work for our country.”

“For all that they contribute to our welfare, they live in constant dread of being apprehended as illegal aliens and being evicted, perhaps having their families disrupted," he wrote. "As unsatisfactory as this situation is it is the immigration scheme we have today. Any verbal and legal discrimination against these people, as Farmers Branch exemplifies by this ordinance, exacerbate the difficulty of that immigration scheme.”

Though Wednesday’s decision was limited to housing, Perales said it’s a major victory because it addresses the racial profiling potential attached to the ordinance.

“The early part of the opinion says that the purpose of the ordinance is to push Latinos out of Farmers Branch, so you see a recognition in the decision that there was a strong racial element to what Farmers Branch had done,” she said.

The city of Farmers Branch has three options, Perales said: to drop the case altogether, request a review by the entire 5th Circuit Court, or petition to have the case heard by the U.S. Supreme Court.

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