LINCOLN — An immigrant advocacy group on Friday denounced a three-judge panel's reinstatement of a Fremont ordinance designed to prevent illegal immigrants from renting housing and vowed to bring it before the full 8th U.S. Circuit Court of Appeals.
The ordinance, which had been thrown out by a lower court judge, was reinstated Friday in a 2-1 decision by the 8th Circuit.
Thomas A. Saenz, president and general counsel for MALDEF, the Mexican American Legal Defense and Education Fund, called the ruling “deplorable.”
“Barring or deterring anyone from renting housing in any city on the basis of suspicions or conclusions as to immigration status is flatly inconsistent with our national values,” he said.
“We will seek review by the entire 8th Circuit because this ruling cannot stand.”
Passed by voters in 2010, U.S. District Judge Laurie Smith Camp in February 2012 overturned portions of the ordinance dealing with housing. She let stand other provisions requiring Fremont employers to verify new hires' immigration status through a federal database known as E-Verify.
Camp ruled that the housing ordinance, which requires renters to obtain a $5 “occupancy permit” from local police and to undergo a federal immigration status check, violated federal fair housing law and usurped federal authority to determine which immigrants are permitted to reside in the U.S.
The 8th Circuit panel's decision to reverse Camp's ruling came only a day after the U.S. Senate overwhelmingly approved a bill that would lead to a historic overhaul of federal immigration law, providing an estimated 11 million people who are in the country illegally a path to U.S. citizenship. That legislation, however, appears dead on arrival in the GOP-controlled U.S. House, where it lacks majority support. Lawmakers there are focused on less sweeping, enforcement-oriented bills.
The circuit court ruling harks back to the U.S. Supreme Court's decision last year that overturned most provisions of a controversial Arizona law that gave local police officers authority to arrest immigrants in the country illegally. It also established state criminal penalties for immigrants working illegally in the U.S. or who fail to comply with federal immigrant registration requirements.
Though the high court threw out most of that law as interfering with federal immigration enforcement, it let stand a provision that requires police to check the immigration status of anyone they arrest or detain if they have a reasonable suspicion that the person is not legally in the country.
Judge Jame B. Loken, who authored the 8th Circuit panel's majority opinion, said the Fremont ordinance was consistent with the Arizona ruling. He said the ordinance did not impede federal immigration policy or federal enforcement decisions.
But Judge Myron Bright in a strongly worded dissent said the ordinance would have the effect of forcing undocumented immigrants out of the city. He also said that authority lies “exclusively” with the federal government.
Despite the U.S. government filing a friend-of-the-court brief asserting that the Fremont provision undermines federal authority, the panel majority concluded that the Fremont housing requirement leaves the power to determine immigration status with the federal government. In addition, the ordinance does not give local officials the ability to force undocumented immigrants out of the U.S., Loken wrote.
The ordinance would apply to all renters, including U.S. citizens, Loken noted, and it does not apply across-the-board to people in the country illegally. Those who don't rent housing would not be affected.
In addition, opponents to the ordinance had failed to establish that it discriminated against Latinos, in violation of the Federal Housing Act, he wrote.
Kris Kobach, a Kansas attorney who represented the City of Fremont in the case, called the decision “an emphatic victory.”
“It vindicates the city's position and accepts many of the primary arguments we made,” he said.
Fremont resident Jenefer Backhaus, owner of In Bloom flower store, had mixed feelings about the ruling.
“I think by and large people should have to do things legally. The measure ensures landlords and employers have to uphold this standard,” Backhaus said. “But I don't know if this law is necessary or worth implementing because it has brought a lot of controversy.”
Fremont Mayor Scott Getzschman said the city would begin to enforce the ordinance as soon as it gets the go-ahead from its lawyers.
Even if the decision is not appealed, the ruling does not become final for 14 days, he said. The city began preparing to implement the measure after it was passed three years ago. It still will take time to notify landlords and their tenants to begin following the ordinance, Getzschman said.
“We shouldn't have to start from scratch, but a lot of that depends upon the legal guidance we get from our attorneys,” he said.
An undocumented immigrant who works in a downtown Fremont store said the court's ruling makes him fearful. The 18-year-old, who asked that his name not be used, said the ordinance will prevent many from creating better lives.
“We are all equal human beings, and although we may not be here with legal documentation, we are all able and willing to work, to help our families and to be a part of the community,” he said through a translator. “This will not be a good thing.”
Mikalah Pruss, a senior in high school, said the court's ruling made sense to her.
“I'm all for immigrants living in Fremont, but they need to be working toward gaining citizenship,” she said.
World-Herald staff writer Alissa Skelton contributed to this report.