FB city attorneys tailored ordinance

Illegal immigrants restriction based on federal subsidy rules

12:00 AM CST on Wednesday, November 29, 2006

By STEPHANIE SANDOVAL / The Dallas Morning News

When Farmers Branch city attorneys were given the task of writing an ordinance that would restrict illegal immigrants from renting apartments in the city and that would hold up in court, they weren't sure anything other cities had done to date would pass muster.

"We were not satisfied with the templates that had been adopted by our peer cities," said Matthew Boyle of Boyle & Lowry, LLP, the city's attorneys. "Our ordinance was written from scratch, top to bottom."

The differences between the new Farmers Branch ordinance and those in cities like Hazleton, Pa., and Escondido, Calif., have some Hispanic and civil rights groups deliberating how to proceed. Hazleton and Escondido were promptly sued over their ordinances, but that may not be the case in Farmers Branch.

"One big distinction with Escondido is they framed it as harboring of illegal aliens," said David Urias, staff attorney with the Mexican American Legal Defense and Educational Fund in San Antonio.

Hazelton's ordinance also deals with harboring of illegal immigrants.

Farmers Branch, on the other hand, based its ordinance on the federal Department of Housing and Urban Development requirements for clients in Section 8 subsidized housing.

Illegal immigrants may not receive Section 8 benefits, and clients in the program must prove citizenship or that they are in the U.S. legally.

Starting Jan. 12, when apartment tenants in Farmers Branch enter a new lease or renew an existing lease, they will have to provide apartment managers with the same immigration documents that the federal program requires as proof of legal status.

"I think it's a little disingenuous, because those federal regulations only apply to requirements for receiving assistance under the Section 8 program," Mr. Urias said. "Federal regulations do not in any way affect apartment complexes that do not receive Section 8 housing."

No splitting families

And while illegal immigrants do not receive federal housing subsidies and are not included in the number of family members when calculating the benefits, they are not prohibited from living under the same roof with Section 8 beneficiaries, said Lisa Graybill, legal director for the American Civil Liberties Union of Texas. That means the federal program doesn't split families.

But the Farmers Branch ordinance could split families, she said, as illegal immigrants would not be allowed to live in any Farmers Branch apartment.

"What's confusing is we have a municipality using a legal definition of who's eligible for public housing service as a criteria for private landlords," Ms. Graybill said.

She said the ACLU, MALDEF and legal representatives for the League of United Latin American Citizens are reviewing the HUD requirements and the city's ordinance.

Officials from some of those groups were in Farmers Branch last week to discuss the issues and their legal moves, and seeking potential plaintiffs – those who might be affected by the city ordinance, adopted Nov. 13.

Attorneys for the civil rights groups also said they are reviewing whether they can challenge the law as a violation of the federal Fair Housing Act.

Kim Kendrick, HUD's assistant secretary for fair housing and equal opportunity, said federal laws against housing discrimination do not include immigration or citizenship status as a protected class.

"The Fair Housing Act does not address (or apply to) how one entered this country or what one's citizenship status is today," she said in an e-mail.

"But all residents, regardless of citizenship or immigration status, are protected from housing discrimination based on race, color, religion, sex, national origin, disability or familial status," she said.

"For example, if a landlord screens applicants or tenants based upon citizenship, he must apply that same criteria to every applicant or tenant, regardless of nationality," she said.

The Texas Apartment Association contends that even if the Farmers Branch ordinance doesn't violate fair housing laws, it does unfairly target the apartment industry.

For now, at least, the ordinance only applies to apartment complexes, which is any rental housing with three or more living units. But the ordinance says city officials will review it in six months, and could change it to include single-family rent houses, or even nonrental housing.

"The ordinance itself ... targets one industry to do what is really the charge of the federal government, and that's control illegal immigration. They're trying to place on our back the responsibility for verifying the status of individuals," said George Allen, Texas Apartment Association executive vice president.

The city ordinance says apartment managers must use documents approved by the Immigration and Customs Enforcement division as proof of citizenship or residency status, the same documents that HUD requires.

The vast array of acceptable documents and apartment managers' unfamiliarity with them and how to spot counterfeit documents puts them in an untenable situation and will be time-consuming, Mr. Allen said.

"And the $500 a day per person fine, from the get-go, is absurd," he said. "It's interfering with our normal business operations."

Mr. Boyle said even the apartment association's standard lease agreement, which members can use, includes a box that applicants must mark indicating if they are a U.S. citizen or not. A second page is available for apartment managers to have noncitizens fill out regarding their immigration status.

"If you are not a U.S. citizen, there is a full one-page supplement that tracks and asks for the very same information we've mandated in the ordinance," Mr. Boyle said. "It made it apparent to us that what we were asking for in the ordinance was not excessive, could easily be achieved, and achieved in an efficient and effective manner."

Apartment industry

But whether apartment management uses the TAA sample lease or follow up the immigration question on it by having the applicant fill out the supplement on immigration status is up to the managers of each complex. Mr. Allen said that there is no way of knowing how many apartment owners or managers do so and that for a city to require them to do so unfairly targets the apartment industry.

And it's a burden on tenants that may keep even U.S. citizens out of Farmers Branch apartments, he said.

"I don't know how many of my friends would be able to dig up their kids' birth certificates or their own, or passports. That may ultimately be required if you're a U.S. citizen to prove you're a citizen," he said. "A driver's license isn't going to cut it."

Mr. Boyle said city officials are working on determining how they plan to enforce the law, along with a plan to educate apartment managers. Meanwhile, the apartment association and the civil rights groups say they are still reviewing the law and how they can keep it from taking effect.

"We have to look at legal alternatives that would delay the implementation of that and do what we can to bring some sanity back to Farmers Branch," Mr. Allen said.

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