The New Battleground

By Justin Massa and Cecilia Abundis
 
Housing has become a new battleground for the anti-immigrant movement’s attack on civil and human rights. As part of a national strategy to crack down on undocumented immigrants at a local level, anti-immigrant activists have pushed cities and towns across the country to change local laws and regulations in hopes of discouraging undocumented immigrants from moving to town and pushing out those who already live there.

According to the Center for Community Change, in the last six months over ninety local governments have introduced, passed, or considered introduction a total of 105 anti-immigrant ordinances. These ordinances would prohibit anyone unable to prove their citizenship from finding housing or employment, as well as requiring all city documents be in English. They incite fear and distrust among local residents, drive hardworking people out of their homes and jobs, and financially burden local governments.

Even though these ordinances have been stopped from going into effect by legal challenges, tensions have gone through the roof. In Valley Park, Missouri, for instance, after passage of the ordinance, the Roman Catholic Archdiocese had to help dozens of families relocate out of the city after the city passed the ordinance.

National anti-immigrant organizations have euphemistically dubbed this new strategy “enforcement through attrition.” Put more bluntly, “Take away their housing, their jobs, their cars, they go!” as one prominent nativist recently exclaimed.

The first of these ordinances was drafted in October 2005 by white nationalist Joseph Turner, founder of the California nativist group, Save Our State (SOS). He dubbed his proposal the Illegal Immigration Relief Act. Turner’s ordinance was defeated in San Bernardino, but it became a model for cities around the country.

One city has become synonymous with the local fight against civil and human rights: Hazelton, Pennsylvania. Mayor Lou Barletta of Hazelton describes part of his “Illegal Immigration Relief Act” in a petition on the official city website, “Another part would hold landlords accountable.  Because people moving into the city naturally require a place to sleep, our landlords are our first line of defense. Landlords who rent to illegal immigrants—that is, who rent to people without checking their documentation, may be fined $1,000.00 for every illegal immigrant staying on their properties.”  Hazelton is currently barred from enforcing the act while a lawsuit filed by the ACLU, MALDEF, PRLDEF, and others works its way through the courts. The influential anti-immigrant group, FAIR, has been providing legal assistance to the city of Hazelton in defense of the ordinance.

But these ordinances are just the tip of the iceberg. At the same time, small changes to municipal ordinances and codes disparately impact immigrant, and frequently Latino, residents. It takes many forms: amending the occupancy codes to restrict the number of unrelated persons who can live in a unit, or changing to the definition of “family” to include only blood relatives; expanding hours and establishing anonymous complaint-based enforcement systems for code and occupancy violations; or requiring applicants for local “renters’ licenses” to prove their legal status. While the method differs, the outcome is the same. Immigrants, both documented and undocumented, feel unwelcome, available housing becomes scarce, and families are forced to move out of town or into off-the-books, and often sub-standard, housing.  

Take, for instance, the city of Manassas, Virginia.

In a complaint filed on May 25, 2006 with the Department of Housing and Urban Development (HUD), the Equal Rights Center of Washington D.C. detailed a disturbing pattern of discrimination and harassment against the Hispanic residents of Manassas, Virginia during the latter half of 2005. “Married Manassas couple of Bolivian descent that had their home inspected twice was told that they could not have their newborn baby sleeping in their master bedroom because the addition of the child to their bedroom constituted overcrowding.”

“Family of Honduran descent experienced emotional distress… when the home they owned was inspected multiple times by City inspectors due to an overcrowding complaint. During each inspection the inspector banged on the door, entered the home without invitation, and scared the residents, including the juvenile who answered the door.” There have been more than 20 complaints filed with HUD against Manassas, whose stated goal of cracking down on undocumented immigrants resulted in the forced moves of more then 200 families during the last six months of 2005.

Immigrant and civil rights advocates, however, have a powerful tool on their side: the federal Fair Housing Act (FHA). Originally passed in 1968 with protections for race, color, religion, sex and national origin, and amended in 1988 to include disability and familial status, the FHA is one of the nation’s most powerful civil rights laws. In addition to the expected protections against denials of housing and differential treatment based on membership in a protected class, it also places an obligation on HUD that federal housing monies must “affirmatively further fair housing”; and it contains the only civil rights-based prohibition on speech in the US - section 3604(c) prohibits discriminatory statements in housing advertisements, with liability for both the creator and publisher of the ad. The law also allows for “organizational plaintiffs” when individuals are unable or unwilling to come forward. If a non-profit group can prove that their mission was frustrated and they were forced to divert resources in order to cope with the actions of a landlord, owner, company, municipality, or government agency, they have standing to bring a FHA case.
 
According to Michael Caesar, a project coordinator with the Equal Rights Center who investigated the problems in Manassas, “The Fair Housing Act clearly protects from individuals and families from being targeted because of their race or national origin, but it also protects against the disparate impact of changes in policies that are seemingly neutral. In the case of Manassas, these families were not only targeted because of national origin, but also disparately harmed by an overly restrictive occupancy code.” HUD and the Department of Justice’s Civil Rights Division have filed cases against discriminatory zoning or municipal ordinances that have a disparate impact on immigrants in Illinois and Iowa in recent years, and are currently investigating the situation in Manassas.
 
While the current wave of ordinances and code changes are being litigated, there are disturbing signs on the horizon. As the super-heated real estate market cools, rental prices that have remained stagnant in much of the country for the past 5 years are expected to rise, along with occupancy rates for rental properties. In short, rental housing is expected to become scarcer and more expensive. Congress has still not passed comprehensive immigration reform, and the prospect of a bill penalizing landlords for renting to undocumented immigrants still looms. For immigrant and civil rights advocates, the work is far from done.

How to Spot Discriminatory Zoning or Ordinance Changes
 
The Federal Fair Housing Act allows states and municipalities to implement restrictions regarding the maximum number of inhabitants that may reside in a dwelling.  However, government bodies have historically used such zoning limitations to restrict certain individuals or groups from residing in their community.  These limitations have ranged from curtailing the number of African-American families moving into certain communities, to restricting the establishment of drug recovery homes in single-family residential neighborhoods. 
 
Identifying discriminatory zoning laws can be difficult, as they take the form of a neutral law, applied equally to all. Therefore, community advocates should first look to whether the make up of the community is changing, and if this change has triggered some form of ordinance amendment or increased enforcement.  Municipalities may try to impose numerical restrictions on occupancy followed by the drastic measure of attempting to narrow the definition of family to mean either ‘blood relatives’ only or the ‘nuclear family’ only.  Although the United State Supreme Court has deferred substantially to the states in the area of zoning, it has taken a firm stance against municipalities attempting to ‘interfere’ with familial ties.  Municipalities looking to keep immigrants out of their communities by narrowly defining ‘family,’ may be en route to a constitutional challenge, as the nations highest court has held that such strict restrictions violate constitutional rights. 
 
In conjunction with abrupt zoning changes, municipalities also respond to new immigrants by beginning to enforce building code provisions that have been dormant for years against certain groups.  Take, for example, the fictional “Village of Change”: The ‘Village of Change’ has a 1950 building code provision mandating that a permit be solicited when remodeling a home or making additions to it.  Specifically, the provision applies to basements being converted to a ‘family room’ or some other type of living space. This particular 1950 provision levies a fine against homeowners upon selling their home, when the remodeling is made without securing the necessary permits.  Up until recently, the Department of Buildings from the ‘Village of Change’ has failed to enforce such a provision.  However, the racial make up of the ‘Village of Change’ is drastically changing, causing grave concern for its current residents.  As a result, building code enforcement officials from the ‘Village of Change’ decide to “revive” its dormant permit provision; taking either of the following courses of action:  (1) levy the stipulated fines against the current homeowner, if the prospective home-buyer is ‘undesirable’; or (2) the Village may allow the sale of the house to proceed, failing to fine the seller prior to closing, subsequently citing the new ‘undesirable’ home-buyer with building code violations.
 
 
 
 About the authors:
Justin Massa ( This e-mail address is being protected from spam bots, you need JavaScript enabled to view it ) is the Testing and Outreach Coordinator for the Fair Housing Project of the Chicago Lawyers' Committee for Civil Rights Under Law (www.clccrul.org). Cecilia Abundis ( This e-mail address is being protected from spam bots, you need JavaScript enabled to view it ), Attorney at Law, was an Equal Justice Works Fellow with the Lawyers’ Committee for Better Housing (www.lcbh.org).