Pedro Lozano v. City of Hazleton , 724 F.3d 297 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-3531
_____________
PEDRO LOZANO; HUMBERTO
HERNANDEZ; ROSA LECHUGA;
JOHN DOE 1; JOHN DOE 2; JOHN
DOE 3, a Minor, By His parents;
JANE DOE 1; JANE DOE 2; JANE
DOE 3; JOHN DOE 4, a Minor, By
His parents, BRENDA LEE
MIELES; CASA DOMINICANA OF
HAZLETON, INC.; HAZLETON
HISPANIC BUSINESS
ASSOCIATION; PENNSYLVANIA
STATEWIDE LATINO
COALITION; JANE DOE 5; JOHN
DOE 7; JOSE LUIS LECHUGA,
v.
CITY OF HAZLETON,
Appellant.
______________
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. No. 3:06-cv-01586)
District Judge: Honorable James M. Munley
____________
Argued
August 15, 2012
On Remand from the United States Supreme Court
____________
Before: McKEE, Chief Judge, NYGAARD and VANASKIE,
Circuit Judges
(Opinion Filed: July 26, 2013)
____________
Omar Jadwat, Esq. (ARGUED)
Lee Gelernt, Esq.
American Civil Liberties Union
Immigrants‟ Rights Project
125 Broad Street, 18th Floor
New York, NY 10004
Lucas Guttentag, Esq.
Jennifer Chang, Esq.
American Civil Liberties Union Foundation
39 Drumm Street
San Francisco, CA 94111-0000
Witold J. Walczak, Esq.
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213-0000
Jackson Chin, Esq.
Foster Maer, Esq.
Puerto Rican Legal Defense & Education Fund
99 Hudson Street, 14th Floor
New York, NY 10013-0000
Ghita Schwarz, Esq.
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY 10012-0000
Thomas B. Fiddler, Esq.
White & Williams
1650 Market Street
1800 One Liberty
Philadelphia, PA 19103
2
Elena Park, Esq.
Cozen O‟Connor
200 Four Falls Corporate Center
P.O. Box 800, Suite 400
West Conshohocken, PA 19428-0800
Ilan Rosenberg, Esq.
Thomas G. Wilkinson, Esq.
Cozen O‟Connor
1900 Market Street
Philadelphia, PA 19103
Shamaine A. Daniels, Esq.
P.O. Box 5347
Harrisburg, PA 17110
Attorneys for Plaintiffs-Appellees
Kris W. Kobach, Esq. (ARGUED)
University of Missouri-Kansas City
School of Law
5100 Rockhill Road, Law 1-200
Kansas City, MO 64110
Michael Hethmon, Esq.
Immigration Reform Law Institute
25 Massachusetts Avenue, N.W.
Suite 330B
Washington, D.C. 20001
Attorneys for Defendant-Appellant
Damon Scott
1446 Fair Oaks Lane
Florence, SC 29506
Paul J. Orfanedes, Esq.
James F. Peterson, Esq.
Judicial Watch, Inc.
501 School Street, S.W.
Washington, D.C. 20024-0000
3
Richard A. Samp, Esq.
Washington Legal Foundation
2009 Massachusetts Avenue, N.W.
Washington, D.C. 20036-0000
Andrew L. Schlafly, Esq.
939 Old Chester Road
Far Hills, NJ 07931
Attorneys for Amicus Appellants
Robin S. Conrad, Esq.
National Chambers Litigation Center
1615 H. Street, N.W., Suite 230
Washington, D.C. 20062-0000
Carter G. Phillips, Esq.
Sidley Austin
1501 K Street, N.W.
Washington, D.C. 20005
Eric A. Shumsky, Esq.
Orrick, Herrington & Sutcliffe
1152 15th Street, N.W.
Columbia Center
Washington, D.C. 20005-0000
Charles D. Weisselberg, Esq.
Berkley Law School
688 Simon Hall
Berkley, CA 94720
Jacob S. Pultman, Esq.
Allen & Overy
1221 Avenue of the Americas
New York, NY 10020-0000
John M. West, Esq.
Bredhoff & Kaiser
805 15th Street, N.W., Suite 1000
4
Washington, D.C. 20005-0000
Mark D. McPherson, Esq.
Morrison & Foerster
1290 Avenue of the Americas
New York, NY 10104
Burt M. Rublin, Esq.
Ballard Spahr
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Nancy Winkelman, Esq.
Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Kenneth J. Pfaehler, Esq.
Dentons US
1301 K Street, N.W.
Suite 600, East Tower
Washington, D.C. 20005-3364
Lawrence H. Fisher, Esq.
Cohen & Willwerth
301 Grant Street
One Oxford Centre, Suite 4300
Pittsburgh, PA 15219
Attorneys for Amicus Appellees
____________
OPINION OF THE COURT
____________
McKEE, Chief Judge.
This case is before us on remand from the United
States Supreme Court. The City of Hazleton previously
appealed the District Court‟s judgment permanently enjoining
enforcement of two Hazleton ordinances that attempt to
5
prohibit employment of unauthorized aliens and preclude
them from renting housing within the City.1 In a precedential
Opinion and Judgment filed on September 9, 2010, we upheld
the permanent injunction. Thereafter, the Supreme Court
granted Hazleton‟s petition for a writ of certiorari and
remanded this case so that we could reconsider our analysis in
light of Chamber of Commerce v. Whiting, 563 U.S. __, 131
S. Ct. 1968 (2011). See City of Hazleton v. Lozano, 563 U.S.
__, 131 S. Ct. 2958 (2011). Subsequently, the Court also
decided Arizona v. United States, 567 U.S. __, 132 S. Ct.
2492 (2012). Both Whiting and Arizona address the extent to
which federal immigration law pre-empts various state laws
pertaining to the treatment of unauthorized aliens. On
remand, we asked for supplemental briefing on whether either
of those decisions alter our original analysis upholding the
District Court‟s injunction.
Having thoroughly considered the additional
submissions of the parties and the Court‟s decisions in
Whiting and Arizona, we again conclude that both the
employment and housing provisions of the Hazleton
ordinances are pre-empted by federal immigration law.
Accordingly, we will again affirm the District Court‟s order
enjoining enforcement of these provisions.
I. BACKGROUND
The factual and procedural background underlying this
case have been extensively described in the District Court‟s
decision, Lozano v. City of Hazleton, 496 F. Supp. 2d 477(M.D. Pa. 2007) (“Lozano I”), and our earlier decision,
Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010)
(“Lozano II”), vacated and remanded, 131 S. Ct. 29581
For reasons explained in Lozano v. City of Hazleton,
620 F.3d 170, 176 n.1 (3d Cir. 2010) (“Lozano II”), vacated
and remanded, 563 U.S. __, 131 S. Ct. 2958 (2011), we will
use the term “unauthorized alien” when discussing issues of
employment, and we will use either “aliens not lawfully
present” or “aliens lacking lawful immigration status” when
referring to persons who are not legally in this country.
6
(2011). Accordingly, we need not reiterate that history as
thoroughly as we otherwise would. However, context and
clarity require that we first set forth those facts underlying our
analysis on remand.
This litigation involves a series of immigration
ordinances enacted by the City of Hazleton between July
2006 and March 2007. The two ordinances at issue are: (1)
the Illegal Immigration Relief Act Ordinance (“IIRAO”),
which consists of Ordinance 2006-18, as amended by
Ordinance 2006-40, and Ordinance 2007-6; and (2) the Rental
Registration Ordinance (“RO”), which consists of Ordinance
2006-13.2 These ordinances attempt to regulate the
employment of unauthorized aliens, and the provision of
rental housing to aliens lacking lawful immigration status,
within Hazleton.
The relevant employment provisions make it unlawful
for any person “to knowingly recruit, hire for employment, or
continue to employ, or to permit, dispatch, or instruct” any
person without work authorization “to perform work in whole
or in part within the City.” IIRAO § 4A. The IIRAO also
provides for public monitoring and prosecution, and sanctions
violators by suspending their business permits. Id. § 4B.
“Safe harbor” from the IIRAO‟s sanctions is available for
businesses that verify work authorization using the federal E-
Verify program. Id. § 4B(5).3 The IIRAO also requires City
2
The full text of the IIRAO and RO are set forth as an
Appendix to Lozano II, 620 F.3d at 224-38. For convenience,
we again attach the full text of these ordinances as an
Appendix to this opinion.
3
“E-Verify is an internet-based system that allows an
employer to verify an employee‟s work-authorization status.
An employer submits a request to the E-Verify system based
on information that the employee provides. . . . In response to
that request, the employer receives either a confirmation or a
tentative nonconfirmation of the employee‟s authorization to
work.” Chamber of Commerce v. Whiting, 131 S. Ct. 1968,
1975 (2011) (internal quotation marks and citations omitted).
For a more complete description of the E-Verify program,
7
agencies and certain businesses to enroll in the E-Verify
program. Id. §§ 4B(6)(b), 4C, 4D.
The disputed housing provisions are found in both the
IIRAO and the RO. The IIRAO makes legal immigration
status a condition precedent to entering into a valid lease. Id.
§ 7B. The IIRAO also provides that it is “unlawful for any
person or business entity that owns a dwelling unit in the City
to harbor an illegal alien in the dwelling unit, knowing or in
reckless disregard of the fact that an alien” is unauthorized.
Id. § 5A. “Harboring” is broadly defined to include “let[ting],
leas[ing], or rent[ing] a dwelling unit to an illegal alien.” Id.
§ 5A(1).
The anti-harboring provisions in the IIRAO operate in
conjunction with the rental registration scheme established in
the RO. The RO requires that prospective occupants of rental
housing over the age of eighteen obtain an occupancy permit.
RO §§ 1m, 6a, 7b. The application for an occupancy permit
requires submission of “[p]roper identification showing proof
of legal citizenship and/or residency.” Id. § 7b(1)(g).
Landlords are prohibited from allowing anyone over the age
of eighteen to rent or occupy a rental unit without an
occupancy permit. Id. § 6a. Violators are subject to fines and
possible imprisonment. RO § 10.
As explained in Lozano II, numerous plaintiffs sued
alleging the ordinances were invalid and the District Court
permanently enjoined enforcement of the ordinances after a
two-week bench trial. The court concluded that the
ordinances are pre-empted by federal law and contrary to the
Due Process Clause of the Fourteenth Amendment, 42 U.S.C.
§ 1981, as well as a number of state laws limiting the
authority of municipalities in Pennsylvania. See Lozano II,
620 F.3d at 181.4
including its evolution and history, see Whiting, 131 S. Ct. at
1986.
4
The District Court dismissed Plaintiffs‟ Equal
Protection, Fair Housing Act, privacy, and Pennsylvania
8
We thereafter affirmed the ultimate judgment of the
District Court, although we differed in our reasoning.5 In
short, we held that the employment provisions in the IIRAO,
though not expressly pre-empted, are conflict pre-empted
because they stand as an obstacle to the accomplishment and
execution of federal law. Lozano II, 620 F.3d 210-19. We
also held that the housing provisions in the IIRAO and RO
are invalid because they impermissibly “regulate
immigration” and are both field and conflict pre-empted by
federal immigration law. Id. at 219-24.6
As we noted at the outset, after we issued our decision
in Lozano II, the Supreme Court granted the City‟s petition
for a writ of certiorari, vacated our decision, and remanded
for reconsideration in light of that Court‟s intervening
decision in Chamber of Commerce v. Whiting, 131 S. Ct.
1968 (2011). In Whiting, the Supreme Court affirmed the
decision of the Court of Appeals for the Ninth Circuit in
Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856Landlord and Tenant Act claims. Those portions of the
District Court‟s ruling were not appealed.
5
We first held that at least one Plaintiff had standing
to challenge the employment and housing provisions of the
Hazleton ordinances generally, but no Plaintiff had standing
to challenge a severable private cause of action provision in
the IIRAO. Lozano II, 620 F.3d at 184-94. We also held that
certain Plaintiffs could proceed anonymously and that the
confidentiality agreement between the parties did not violate
8 U.S.C. § 1373(a). Id. at 194-96. In addition, we concluded
that Hazleton had waived any issues of severability except
with respect to the private cause of action provision. Id. at
182. Hazleton did not seek review of these holdings in its
petition for a writ of certiorari, and did not raise these issues
in its supplemental briefing following remand. Accordingly,
these portions of our earlier decision are not at issue here.
6
Because we affirmed on pre-emption grounds, it was
not necessary to reach the other grounds the District Court
relied upon in imposing the injunction.
9
(9th Cir. 2009). There, the Court of Appeals for the Ninth
Circuit had upheld the Legal Arizona Workers Act against
claims of express and implied pre-emption. Chicanos Por La
Causa, 558 F.3d at 866, 867. After the decision in Whiting,
the Supreme Court decided Arizona v. United States, 132 S.
Ct. 2492 (2012). There, the Court held that three of four
challenged provisions of Arizona‟s immigration law, known
as “S.B. 1070,” were pre-empted. However, the Court
overturned a preliminary injunction with respect to the fourth
provision and remanded for additional fact finding.
III. DISCUSSION7
The question before us on remand remains whether
federal law pre-empts the employment and/or housing
provisions of the Hazleton ordinances.
As we explained in Lozano II, “[t]he pre-emption
doctrine is a necessary outgrowth of the Supremacy Clause,”
which “provides that the laws of the United States „shall be
the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.‟” Lozano II, 620 F.3d at 203 (quoting U.S.
Const. art. VI, cl. 2). Pre-emption may be either express or
implied, and implied pre-emption includes both field pre-
emption and conflict pre-emption. Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).
Field pre-emption occurs “[w]hen Congress intends
federal law to „occupy the field.‟” Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 372 (2000). “The intent to
displace state law altogether can be inferred from a
framework of regulation „so pervasive . . . that Congress left
no room for the States to supplement it‟ or where there is a
7
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to
28 U.S.C. § 1291. We review a district court‟s conclusions of
law de novo and its factual findings for clear error. See, e.g.,
McCutcheon v. America’s Servicing Co., 560 F.3d 143, 147
(3d Cir. 2009).
10
„federal interest . . . so dominant that the federal system will
be assumed to preclude enforcement of state laws on the same
subject.‟” Arizona v. United States, 131 S. Ct. 2492, 2501
(2012) (internal quotation marks and citation omitted). To
determine the boundaries that Congress sought to occupy
within the field, “„we look to the federal statute itself, read in
the light of its constitutional setting and its legislative
history.‟” De Canas v. Bica, 424 U.S. 351, 360 n.8 (1976)
(quoting Hines v. Davidowitz, 312 U.S. 52, 78-79 (1941)
(Stone, J., dissenting)), superseded by statute on other
grounds as stated in Whiting, 131 S. Ct. at 1974-75.
Conflict pre-emption can occur in one of two ways:
where “compliance with both federal and state regulations is a
physical impossibility,” or “where the challenged state law
stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.” Arizona, 131
S. Ct. at 2501 (internal quotation marks and citations
omitted). Courts must utilize their judgment to determine
what constitutes an unconstitutional impediment to federal
law, and that judgment is “informed by examining the federal
statute as a whole and identifying its purpose and intended
effects.” Crosby, 530 U.S. at 373.
Nothing the Court said in Whiting or Arizona altered
this framework for pre-emption analysis. The Court, did,
however provide important guidance for our application of
the pre-emption doctrine to the Hazleton ordinances. The
Court upheld Arizona‟s efforts to regulate the employment of
unauthorized aliens through a business licensing law in
Whiting, but largely rejected Arizona‟s efforts to enact its
own immigration policies, both within and outside of the
employment context, in Arizona. With those cases as our
compass, we now reconsider our prior ruling upholding the
District Court‟s permanent injunction.
A. The Employment Provisions
The relevant employment provisions of the IIRAO
regulate and prohibit a broad range of economic interactions
with unauthorized aliens. Section 4 of the IIRAO renders it
11
“unlawful for any business entity to knowingly recruit, hire
for employment, or continue to employ, or to permit,
dispatch, or instruct” any person without work authorization
“to perform work in whole or in part within the City.” IIRAO
§ 4A. “Work” is defined to include “any job, task,
employment, labor, personal services, or any other activity for
which compensation is provided, expected, or due, including
but not limited to all activities conducted by business
entities.” Id. § 3F. The IIRAO‟s prohibitions also apply to
any “agreement to perform any service or work or to provide
a certain product in exchange for valuable consideration.” Id.
§ 3C. “Every business entity that applies for a business
permit” must “sign an affidavit . . . affirming that they do not
knowingly utilize the services of or hire any person who is an
unlawful worker.” Id. § 4A.
Any City resident may submit a complaint to
Hazleton‟s Code Enforcement Office (“HCEO”) alleging a
violation of the employment provisions. Id. § 4B(1). Upon
receipt of such a complaint, the HCEO requests identifying
information about the alleged unlawful worker from the
employing or contracting business entity. That business
entity must then provide the requested information within
three business days, or Hazleton will suspend its business
license. Id. § 4B(3). The HCEO then submits the identity
information to the federal government, pursuant to 8 U.S.C. §
1373, for verification of “the immigration status of such
person(s).” Id.8
8
8 U.S.C. § 1373(a) provides:
Notwithstanding any other provision of
Federal, State, or local law, a Federal,
State, or local government entity or
official may not prohibit, or in any way
restrict, any government entity or official
from sending to, or receiving from, the
Immigration and Naturalization Service
information regarding the citizenship or
immigration status, lawful or unlawful,
of any individual.
12
If the HCEO confirms that the worker lacks
authorization to work in the United States, the business must
terminate that worker within three business days or the City
will suspend its business license. Id. § 4B(4). A business
whose license has been suspended under the IIRAO regains
its license one business day after it submits an affidavit
affirming that it has terminated the unauthorized worker. Id.
§ 4B(6). After a second or subsequent violation of the
IIRAO, Hazleton suspends the business‟s license for a
minimum of twenty days and reports the violation to the
federal government. Id. § 4B(7).
Safe harbor from the IIRAO‟s sanctions is available
for businesses that verify the work authorization of their
workers using the federal E-Verify program. Id. § 4B(5). In
addition, the IIRAO requires that City agencies and
businesses that contract with the City for amounts greater
than $10,000 must enroll in E-Verify. Id. §§ 4C, 4D. Those
business entities found to have utilized the work of two or
more unlawful workers at one time must enroll in E-Verify in
order to recover their license. Id. § 4B(6)(b).
We previously held that the IIRAO‟s employment
provisions, though not expressly pre-empted, are conflict pre-
empted. Lozano II, 620 F.3d 210-19. However, in Chamber
of Commerce v. Whiting, 132 S. Ct. 1968 (2011), the Supreme
Court upheld an Arizona statute that allowed state courts to
suspend or revoke the business licenses of employers who
knowingly or intentionally employ unauthorized aliens and
required that all Arizona employers use E-Verify.
Accordingly, we will first consider whether our analysis in
Lozano II, concluding that the IIRAO conflicts with federal
law, survives Whiting.
In Whiting, the Supreme Court considered whether the
employer sanctions provisions of the Legal Arizona Workers
Act (“LAWA”) were pre-empted by the Immigration Reform
and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100
Stat. 3359 (codified at 8 U.S.C. §§ 1324a-1324b). The Court
held that those provisions were not expressly pre-empted
because they fell “squarely” within the confines of IRCA‟s
13
savings clause. That provision of IRCA “expressly preempts
States from imposing „civil or criminal sanctions‟ on those
who employ unauthorized aliens, „other than through
licensing and similar laws.‟” Whiting, 131 S. Ct. at 1977(quoting 8 U.S.C. § 1324a(h)(2)) (emphasis added).9 The
Court also held that Arizona‟s licensing law did not conflict
with federal law, and therefore was not impliedly pre-empted.
Whiting, 131 S. Ct. at 1981-85. The Court noted that the
Arizona statute “simply implement[ed] the sanctions that
Congress expressly allowed Arizona to pursue through
licensing laws,” and “Arizona went the extra mile in ensuring
that its law closely tracks IRCA‟s provisions in all material
respects.” Id. at 1981.10
The Court in Whiting also held that the Illegal
Immigration Reform and Immigrant Responsibility Act of
9
This part of the decision in Whiting is consistent
with our analysis in Lozano II. There, we held that the
employment provisions in the IIRAO were not expressly pre-
empted because they constituted a “licensing [or] similar
law[],” exempted from express pre-emption under 8 U.S.C. §
1324a(h)(2). Lozano II, 620 F.3d at 207-10. Like Arizona‟s
licensing law, the employment provisions here “fall[] . . .
within the confines of the authority Congress chose to leave
to the States and therefore is not expressly preempted.”
Whiting, 131 S. Ct. at 1981.
10
For example, the Arizona law: (i) “adopt[s] the
federal definition of who qualifies as an „unauthorized
alien‟”; (ii) “expressly provides that state investigators must
verify the work authorization of an allegedly unauthorized
alien with the Federal Government” and prohibits any
independent state determination; (iii) like the federal law,
prohibits “„knowingly‟ employing an unauthorized alien” and
requires that the prohibition be interpreted consistently with
federal laws; and (iv) “provides employers with the same
affirmative defense for good-faith compliance with the I-9
process as does the federal law” and provides employers “a
rebuttable presumption of compliance with the law when they
use E-Verify.” Whiting, 131 S. Ct. at 1981-82. We will
describe the “I-9” verification process infra.
14
1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996)
(codified as amended in various sections of 8 U.S.C.), which
established the optional program now known as E-Verify, did
not pre-empt Arizona‟s requirement that all employers use E-
Verify. Whiting, 131 S. Ct. at 1985-86. The Court reasoned
that the IIRIRA provision setting up E-Verify “contains no
language circumscribing state action,” id. at 1985, and
Arizona‟s use of E-Verify “in no way obstructs achieving
[Congress‟s] aims,” id. at 1986.
The plurality opinion in Whiting rejected or otherwise
undermined several aspects of our analysis in Lozano II
insofar as we held that the IIRAO‟s employment provisions
were conflict pre-empted.
First, Whiting contradicts our conclusion that the
employment provisions in Hazleton‟s ordinance impede
congressional objectives by creating a separate and
independent process for determining whether an employer is
guilty of employing unauthorized aliens. Compare Whiting,
131 S. Ct. at 1981 (rejecting the Chamber‟s argument that
Congress intended the federal system to be exclusive and
therefore any state system necessarily conflicts with federal
law) with Lozano II, 620 F.3d at 213 (“The crux of this
conflict . . . is rooted in the fact that Hazleton has established
an alternate system at all.”). Since Congress expressly
allowed states to pursue sanctions through licensing laws, the
Whiting plurality reasoned that “Congress did not intend to
prevent the States from using appropriate tools to exercise
that authority.” Whiting, 131 S. Ct. at 1981.
Second, in Lozano II, we reasoned that, by imposing
additional sanctions on employers who hire unauthorized
aliens without including an express anti-discrimination
provision, the IIRAO would create “the exact situation that
Congress feared: a system under which employers might
quite rationally choose to err on the side of discriminating
against job applicants they perceive to be foreign.” Lozano
II, 620 F.3d at 218. However, the Whiting plurality rejected a
similar argument. Those Justices reasoned that LAWA did
not displace IRCA‟s anti-discrimination provisions, and that
15
other federal and state laws provide “further protection . . .
and strong incentive for employers not to discriminate.”
Whiting, 131 S. Ct. at 1984. Thus, the Court believed that,
even without an express anti-discrimination provision in the
state law, “[t]he most rational path for employers is to obey
the law—both the law barring the employment of
unauthorized aliens and the law prohibiting discrimination.”
Id.Finally, the Whiting plurality undermined our
reasoning in Lozano II to the extent that we found pre-
emption because the City‟s employment provisions “coerce[]
[the] use of E-Verify.” Lozano II, 620 F.3d at 214. That
conclusion is now foreclosed by Whiting‟s approval of
Arizona‟s requirement that all employers use E-Verify.
Whiting, 131 S. Ct. at 1985-86. There, the Court concluded
that the requirement does not conflict with the federal scheme
because the consequences for failure to use E-Verify under
both the Arizona law and federal law were the same: the
employer forfeits an otherwise available rebuttable
presumption of compliance. Id. The Court further reasoned
that the requirement does not obstruct federal objectives
because “the Federal Government has consistently expanded
and encouraged the use of E-Verify.” Id. at 1986.
Nevertheless, Plaintiffs here argue that even after
Whiting, Hazleton‟s employment provisions remain impliedly
pre-empted. Plaintiffs point first to the fact that the IIRAO‟s
restrictions apply to a much broader range of actors and
activities than Congress intended under IRCA. According to
Plaintiffs, this basis for our prior finding of conflict pre-
emption was not disturbed by Whiting. We agree.
Section 4 of the IIRAO makes it “unlawful for any
business entity to knowingly recruit, hire for employment, or
continue to employ, or to permit, dispatch, or instruct any
person who is an unlawful worker to perform work . . . within
the City.” IIRAO § 4A. The IIRAO defines “business entity”
to include any person “engaging in any activity, enterprise,
profession, or occupation for gain, benefit, advantage, or
livelihood, whether for profit or not for profit.” Id. § 3A.
The term specifically includes “self-employed individuals,
16
partnerships, corporations, contractors,11 and subcontractors,”
Id. § 3A(1), and any entity that “possesses a business permit, .
. . is exempt from obtaining such a business permit, . . . [or] is
operating unlawfully without such a business permit.” Id. §
3A(2).
In sharp contrast to the IIRAO, the federal prohibition
in IRCA reaches only “hir[ing]” or “recruit[ing] or refer[ring]
for a fee, for employment in the United States.” 8 U.S.C. §
1324a(a)(1)(A) (emphasis added). In striking the intricate
balance that lead to the enactment of IRCA, Congress
deliberately excluded independent contractors and other non-
employees from the scope of the restrictions contained in the
statute. Arizona, 132 S. Ct. at 2504. (“Congress enacted
IRCA as a comprehensive framework for „combating the
employment of illegal aliens.‟”) (emphasis added) (quoting
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137,
147 (2002)). As we explained previously:
In drafting IRCA, Congress explicitly
declined to sanction employers based on
the work authorization status of “casual
hires (i.e., those that do not involve the
existence of an employer/employee
relationship).” H.R. Rep. No. 99-682(I),
[at 57], 1986 U.S.C.C.A.N. 5649, 5661.
This was not an unreasoned choice, but
part of the crafting of the statute to
minimize the burden placed on
employers. As the court explained in
Edmondson, “[e]mployers are not
required [under federal law] to verify the
work eligibility of independent
contractors” because it “would increase
the burdens on business.” 594 F.3d at
11
The term “contractor” is further defined to include
any “person, employer, subcontractor or business entity that
enters into an agreement to perform any service or work or to
provide a certain product in exchange for valuable
consideration.” IIRAO § 3C.
17
767. Businesses utilize independent
contractors, in part, to reduce the costs
and liabilities associated with procuring
labor when an enduring and structured
relationship is not needed. Compelling
businesses to concern themselves with
the work authorization status of
contractors alters this relationship, and
also raises costs.
Lozano II, 620 F.3d at 216-17 (alterations in original).
Under IRCA, employers are not required to verify
contractors‟ work eligibility, as they must with employees.
See 8 C.F.R. § 274a.2(b) (requiring employers to verify work
eligibility of employees); § 274a.1(f) (excluding “independent
contractor” and “those engaged in casual domestic
employment” from the definition of “employee”); id. §
274a.1(g) (excluding those who use “contract labor” from the
definition of “employer”).12 Given the intricate framework of
IRCA, we cannot assume that the distinction is immaterial.
Rather, it appears to be a deliberate distinction that Congress
included as part of the balance it struck in determining the
scope and impact of IRCA‟s employer sanctions. However,
Hazleton‟s ordinance does not distinguish between
employees, on the one hand, and independent contractors or
12
Employers are, however, liable for knowingly
utilizing the services of independent contractors who lack
work authorization. 8 U.S.C. § 1324a(a)(4) (“[A] person or
other entity who uses a contract, subcontract, or exchange . . .
to obtain the labor of an alien . . . knowing that the alien is an
unauthorized alien . . . shall be considered to have hired the
alien for employment . . . in violation of [8 U.S.C. §
1324a](1)(A).”). However, this provision does not undermine
Congress‟s intent to restrict IRCA‟s applicability to the
employer/employee context. Rather, the purpose was to close
a “loophole” so that employers may not use independent
contractors to circumvent IRCA‟s prohibition on the
employment of unauthorized workers. See H.R. Rep. No. 99-
682(I), at 62, 1986 U.S.C.C.A.N. 5649, 5666.
18
casual hires, on the other.
The breadth of the reach of the IIRAO‟s sanctions
operates in tandem with the fact that the IIRAO provides a
safe harbor only if “prior to the date of the violation, the
business entity had verified the work authorization of the
alleged unlawful worker(s)” using the E-Verify program.
IIRAO § 4B(4). Accordingly, the Hazleton scheme compels
employers to verify the status of independent contractors and
casual hires in order to obtain a safe harbor. In Lozano II, we
determined that although the IIRAO only coerces, without
directly requiring, verification of non-employees‟ work
authorization, the coercion is equally problematic for pre-
emption purposes because the IIRAO subjects employers to
sanctions if those non-employees lack work authorization.
Lozano II, 620 F.3d at 217.13
13
The City argues that, in practice, the IIRAO would
treat independent contractors in a manner similar to federal
law under 8 U.S.C. § 1324a(a)(4)—only those who knowingly
use the services of contactors who lack work authorization
would face sanctions. For the reasons explained above, we
disagree. Further, the IIRAO‟s terms reach as far as union
organizing activity and the activity of not for profit
organizations that refer individuals for employment but
without a fee or profit motive. See IIRAO § 3A, 4A. Federal
regulations specifically exclude “union hiring halls that refer
union members or non-union individuals who pay union
membership dues.” 8 C.F.R. § 274a.1(d)-(e); see also H.R.
Rep. 99-682(I), at 57, 1986 U.S.C.C.A.N. 5649, 5660 (noting
exception for unions and similar entities). These “[f]ederal
regulations have no less pre-emptive effect than federal
statutes.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458
U.S. 141, 153 (1982). Moreover, as we will explain, in
addition to reaching a broader range of actors, the IIRAO‟s
employment provisions also sanction a broader range of
activities than does IRCA. Because the terms of the IIRAO
sweep so broadly, even if we were to accept the City‟s
position that the IIRAO and IRCA treat independent
contractors similarly, it would not save the IIRAO from pre-
emption.
19
Moreover, we must assess the extraordinarily broad
definition of the persons and entities covered by the IIRAO
together with the equally broad definition of the activities
covered by the IIRAO. The IIRAO defines “work” to include
“any job, task, employment, labor, personal services, or any
other activity for which compensation is provided, expected,
or due, including but not limited to all activities conducted by
business entities.” IIRAO § 3F. The IIRAO‟s prohibitions
also apply to any “agreement to perform any service or work
or to provide a certain product in exchange for valuable
consideration.” Id. § 3C. Moreover, there is no requirement
that the alleged unauthorized work be performed at the
location associated with an entity‟s business license, or even
in connection with the activities for which an entity has a
business license, for it to be considered a violation of the
IIRAO.14 Thus, under a literal reading of the IIRAO, the
HCEO may revoke the business license of any person or
entity if, for example, s/he purchases used items at a yard sale
from an unauthorized alien, buys a glass of lemonade from an
undocumented child‟s lemonade stand, or pays an
undocumented neighbor to mow her lawn—even if such
conduct is entirely unrelated to the actor‟s licensed business
activity.
Indeed, it is difficult for us to conceive of any activity
that is even remotely economic in nature, conducted by any
person or entity in Hazleton, that would not be swept into the
broad expanse of the IIRAO. We believe that prohibiting
such a broad array of commercial interactions, based solely
on immigration status, under the guise of a “business
licensing” law is untenable in light of Congress‟s deliberate
decision to limit IRCA‟s reach to the employer-employee
relationship.
Whiting is not to the contrary. The City argues that the
Court in Whiting was not troubled by the fact that Arizona‟s
law applied to independent contractors. However, the
14
Rather, the IIRAO expressly states that “work”
includes, but “is not limited to all activities conducted by
business entities.” IIRAO § 3F (emphasis added).
20
provisions to which the City refers were added as part of a
2008 amendment to LAWA, and as the Supreme Court
expressly noted, the 2008 amendments “were not part of the
statute when [the] suit was brought, they are not before us and
we do not address their interaction with federal law.”
Whiting, 131 S. Ct. at 1986 n.10; see also Arizona
Contractors Ass’n v. Candelaria, 534 F. Supp. 2d 1036, 1053
(D. Ariz. 2008) (“[L]ike IRCA, [LAWA‟s] restrictions apply
only with respect to those persons who have an „employment
relationship‟ with an employer, so it does not include casual
hires.”), aff’d sub nom. Chicanos Por La Causa, Inc. v.
Napolitano, 558 F.3d 856 (9th Cir. 2009), aff’d sub nom.,
Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011).
Thus, unlike the IIRAO, the Arizona law upheld by the
Supreme Court “closely track[ed] IRCA‟s provisions in all
material respects,” Whiting, 131 S. Ct. at 1981, including
IRCA‟s precisely tailored reach.15 Thus, Whiting alone does
not support the proposition that an ordinance that diverges
from federal law to the extent the IIRAO does is similarly
sheltered from the reach of federal pre-emption.
The Supreme Court‟s more recent decision in Arizona
v. United States, 132 S. Ct. 2492 (2012), further undermines
the contention that the IIRAO should be upheld as a protected
business licensing law. The Court in Arizona affirmed that
“the existence of an express pre-emption provisio[n] does not
bar the ordinary working of conflict pre-emption principles or
impose a special burden that would make it more difficult to
establish the preemption of laws falling outside the clause.”
Arizona, 132 S. Ct. at 2504-05 (internal quotation marks and
citation omitted) (alteration in original). Moreover, the
Court‟s reasons for finding that § 5(C) of Arizona‟s S.B. 1070
law conflicted with IRCA apply with equal force to the
15
Indeed, the Court in Whiting noted that the Arizona
law tracked the provisions of the federal law so tightly that if
the Arizona law was pre-empted, “there really is no way for
the State to implement licensing sanctions, contrary to the
express terms of the savings clause.” 131 S. Ct. at 1987.
That is clearly not the situation here with the IIRAO.
21
IIRAO‟s attempt to extend its regulations beyond the
employer-employee relationship. Section 5(C) of S.B. 1070
made it a state crime to seek or engage in work without
federal authorization. In concluding that that provision was
pre-empted, the Supreme Court stated, “Congress enacted
IRCA as a comprehensive framework for „combating the
employment of illegal aliens,‟” and IRCA, by design, “does
not impose federal criminal sanctions on the employee side
(i.e., penalties on aliens who seek or engage in unauthorized
work).” Arizona, 132 S. Ct. at 2504. Thus, the Court
concluded that “[a]lthough § 5(C) attempts to achieve one of
the same goals as federal law—the deterrence of unlawful
employment—it involves a conflict in the method of
enforcement” and is therefore pre-empted. Id. at 2505. Just
as purposely as Congress limited the scope of IRCA‟s
coverage to exclude independent contractors, Hazleton
purposely stretched the IIRAO to include them. The result is
a local ordinance that conflicts with Congress‟s intent to limit
IRCA‟s application to the employer/employee relationship.
See Arizona, 132 S. Ct. at 2505 (“[A] „[c]onflict in technique
can be fully as disruptive to the system Congress enacted as
conflict in overt policy.‟” (citing Motor Coach Employees v.
Lockridge, 403 U.S. 274, 287 (1971))). Accordingly, like §
5(C) of Arizona‟s S.B. 1070, the IIRAO employment
provisions conflict with IRCA.
In Lozano II, we also concluded that the IIRAO
conflicts with IRCA because it does not provide an
affirmative defense to employers who comply with the I-9
process to verify immigration status. Lozano II, 620 F.3d at
214-15.16 Plaintiffs argue that this conclusion was also not
16
The “I-9” process derives its name from the
form that IRCA requires employers to complete.
IRCA requires that employers . . .
confirm an employee‟s authorization to
work by reviewing the employee‟s
United States passport, resident alien
card, alien registration card, or other
document approved by the Attorney
General; or by reviewing a combination
22
disturbed by Whiting because the Arizona law at issue there
provided a safe harbor for I-9 compliance. Once again, we
agree.
As we have explained:
Congress paid considerable attention to
the costs IRCA would impose on
employers, see e.g., H.R. Rep. No. 99-
682(I), at [90], 1986 U.S.C.C.A.N. 5649,
5694 (“Considerable discussion was
generated during the processing of [this
bill] to the effect the employer sanctions
provisions were placing an undue burden
on employers in requiring them to do the
paperwork and keep records on
employees.”), and drafted the legislation
in a manner that would minimize those
burdens, see, e.g., 132 Cong. Rec.
H10583-01 (daily ed. Oct. 15, 1986)
(statement of Rep. Bryant) (IRCA has
been “carefully designed for the
minimum burden necessary . . . to be
effective.”).
of other documents such as a driver‟s
license and social security card. §
1324a(b)(1)(B)-(D). The employer must
attest under penalty of perjury on
Department of Homeland Security Form
I-9 that he “has verified that the
individual is not an unauthorized alien”
by reviewing these documents. §
1324a(b)(1)(A). The form I-9 itself “and
any information contained in or
appended to [it] . . . may not be used for
purposes other than for enforcement of”
IRCA and other specified provisions of
federal law. § 1324a(b)(5).
Whiting, 131 S. Ct. at 1974.
23
Lozano II, 620 F.3d 211. As part of this effort, Congress
created the I-9 process as a uniform federal system by which
employers must verify the work authorization of new hires.
Under IRCA, good-faith compliance with the I-9 process
provides an employer with an affirmative defense if charged
with a violation of 8 U.S.C. § 1324a. 8 U.S.C. § 1324a(a)(3);
H.R. Rep. No. 99-682 (I), at 57. However, Hazleton‟s
scheme does not provide any safe harbor for employers who
use the I-9 process. The IIRAO‟s employment provisions
thus contravene congressional intent for the I-9 process to
serve as an acceptable way of protecting against sanctions and
Congress‟s desire to avoid placing an undue burden on
employers. As we previously explained:
By making the I-9 system a uniform
national requirement, Congress limited
the compliance burden on interstate
corporations while facilitating uniform
enforcement. A uniform system reduces
costs for employers with multiple
locations throughout the country by
ensuring that the same human resources
procedures can be used in all locations.
Hazleton‟s scheme denies interstate
employers who use the I-9 process the
benefits of uniformity. Interstate
employers with locations in Hazleton
(who wish to ensure safe harbor in all
locations) would either have to adhere to
different regulations in different
locations, or use E-Verify in all
locations.
Lozano II, 620 F.3d at 215 (internal quotation marks and
citation omitted).
Although the Supreme Court in Whiting upheld
Arizona‟s requirement that all employers enroll in E-Verify,
the Court‟s holding did not negate the importance of the I-9
process to the federal scheme. Rather, the Court‟s holding
was based upon its conclusion that “the consequences of not
24
using E-Verify under the Arizona law are the same as . . .
under the federal law,” Whiting, 131 S. Ct. at 1985,17 and
“[t]he Arizona law provides employers with the same
affirmative defense for good-faith compliance with the I-9
process as does the federal law,” id. at 1982. Thus, although
Arizona “required” employers to use E-Verify, that
“requirement” was exactly the same as the federal law‟s
treatment of E-Verify, and similarly, Arizona treated I-9
compliance the same way that federal law treated I-9
compliance.
The City argues that the lack of an affirmative defense
for I-9 compliance is irrelevant given the structure of the
Hazleton scheme, which does not rely on a judicial process
for proving that an employer knowingly hired an
unauthorized alien and assessing a penalty. In addition to
highlighting procedural due process concerns, this assertion
elevates form over function and misses the point. The
significance of the I-9 affirmative defense is the safe harbor it
provides for employers. We are therefore not impressed with
a distinction between judicially imposed sanctions and
17
Under both the Arizona and federal law, the only
consequence of not using E-Verify is forfeiture of the
otherwise available rebuttable presumption of compliance
with the law. Whiting, 131 S. Ct. at 1985-86. As we
explained, supra, the Supreme Court explicitly noted that,
during the course of the litigation, Arizona had amended its
statute. The amendments included, inter alia, the attachment
of “other consequences, such as the loss of state-allocated
economic development incentives” to a failure to use E-
Verify. Id. at 1986 n.10. Because those amendments “were
not part of the statute when [the] suit was brought,” the Court
was careful to explain that “they are not before us and we do
not address their interaction with federal law.” Id. In this
regard, we note that the IIRAO attaches an additional penalty
to a failure to use E-Verify: disqualification from city
contracts greater than $10,000. IIRAO § 4D. This additional
sanction for failure to use E-Verify goes beyond a mere
licensing provision and is yet another reason the IIRAO
conflicts with federal law.
25
administratively imposed sanctions. The resulting impact on
a given business appears indistinguishable. Whether a judicial
officer or an administrator is charged with imposing sanctions
is irrelevant. The City insists that the drafters of Hazleton‟s
ordinances attempted to construct a parallel regulatory
scheme that would comply with IRCA‟s savings clause.
However, the City‟s decision to omit a safe harbor for I-9
compliance, while providing one for those who use E-Verify,
see IIRAO § 4B(5), is not as inconsequential as the City
would have us believe. A scheme providing a safe harbor
for both verification procedures would have been much closer
to the parallel regulatory scheme that the Court upheld in
Whiting. Absent that, an important aspect of the federal
scheme is undermined.
Geier v. American Honda Motor Co., 529 U.S. 861(2000), further illustrates how Hazleton‟s disregard of the I-9
process impedes federal objectives. There, Alexis Geier
suffered serious injuries when the Honda she was driving
crashed into a tree. She sued the auto company alleging that
her injuries resulted from the absence of airbags, which she
claimed was a design defect. Id. at 865. However, Geier‟s
car had automatic belts and thus complied with applicable
federal safety standards, which, rather than requiring airbags,
“allow[ed] manufacturers to choose among different passive
restraint mechanisms, such as airbags, automatic belts, or
other passive restraint technologies.” Id. at 878. The
applicable federal statute, however, also stated that
“[c]ompliance with a federal safety standard does not exempt
any person from liability under common law.” Id. at 868(internal quotation marks omitted, bracket in original).
Nonetheless, the manufacturer argued that the plaintiff‟s
claim for damages was pre-empted by federal law. The Court
had to decide “whether the Act pre-empts a state common-
law tort action in which the plaintiff claims that the . . .
manufacturer, who was in compliance with the standard,
should nonetheless have equipped [her] automobile with
airbags.” Id. at 865.
The Supreme Court held that the tort action conflicted
with federal law and was thus pre-empted. Id. at 874. The
26
Court reasoned that federal regulations sought “a variety and
mixture of [safety] devices” and “deliberately imposed” a
“gradual passive restraint phase in.” Id. at 881.
Notwithstanding the savings clause, allowing the action to
proceed when plaintiff‟s car complied with the applicable
federal safety standard “would have stood „as an obstacle to
the accomplishment and execution of‟ [those] important . . .
federal objectives.” Id. (quoting Hines, 312 U.S. at 67).
Similarly, permitting Hazleton to impose sanctions on
employers who have complied with, and relied upon, the I-9
process would obstruct important federal objectives.
Congress wanted to make the I-9 process available as a
uniform means of protecting against such sanctions and
minimizing the burden on employers. See also Fid. Fed. Sav.
& Loan Ass’n v. de la Cuesta, 458 U.S. 141, 156 (1982)
(finding conflict pre-emption where state law limited the
availability of due-on-sale provisions in loan instruments,
which federal regulators deemed “essential to the economic
soundness of the thrift industry”).
The IIRAO‟s lack of procedural protections presents
yet another “„obstacle to the accomplishment and execution
of the full purposes and objectives‟” of federal law. See
Arizona, 131 S. Ct. at 2501 (quoting Hines, 312 U.S. at 67).
The IIRAO provides substantially fewer procedural
protections than IRCA, which circumscribed sanctions with a
detailed hearing and adjudication procedure. Under IRCA,
only complaints with a “substantial probability of validity”
are investigated. 8 U.S.C. § 1324a(e)(1)(B). In contrast,
under the IIRAO, any superficially valid complaint is
investigated. IIRAO §§ 4B(1), (3). In addition, when
enacting IRCA, Congress mandated that an employer be
provided with notice and an opportunity for a hearing, 8
U.S.C. § 1324a(e)(3)(A), and an administrative law judge
must find the employer guilty of violating IRCA by a
preponderance of the evidence before any sanctions can be
imposed, id. § 1324a(e)(3)(C). That employer also has a right
to an administrative appeal and judicial review. Id. §
1324a(e)(7)-(8). In marked contrast, the IIRAO requires the
HCEO to immediately suspend the business license of any
entity that fails to provide requested information about
27
alleged unlawful workers within three business days. IIRAO
§ 4B(3).18 If a business entity does not terminate an
unauthorized worker within three days of being notified that
the worker is not authorized, the City immediately suspends
that entity‟s business license. Id. § 4B(4).19 Thus, the
burdens imposed on businesses under the Hazleton scheme
are greater than those Congress elected to impose under the
similar, but distinct approach of IRCA.
The procedures in LAWA (the Arizona statute upheld
in Whiting), substantially track the procedures Congress
established under IRCA. In contrast to the immediate
suspension of business licenses authorized by the IIRAO,
sanctions under LAWA, like under IRCA, could only be
imposed after the attorney general or county attorney brings
an enforcement action in state court. A.R.S. § 23-212(D)
(effective Sept. 19, 2007 to Apr. 30, 2008). The state court
was directed to provide a “hearing at the earliest practicable
date,” id. § 22-212(E), and sanctions could only be imposed
by the court after determining that there had been a violation,
id. § 23-212(F).20
Conversely, the lack of procedural protections in the
IIRAO‟s employment provisions undermines the delicate
balance Congress erected for enforcing the prohibition on
hiring unauthorized aliens. Congress was clearly concerned
18
IIRAO § 4B(3) states: the HCEO “shall suspend
the business permit of any entity which fails, within three
business days after receipt of the request [for identity
information regarding alleged unlawful workers], to provide
such information.”
19
IIRAO § 4B(4) provides that the HCEO “shall
suspend the business permit of any business entity which fails
[to] correct a violation of this section within three business
days after notification of the violation by the [HCEO].”
20
See also Chicanos Por La Causa, Inc. v.
Napolitano, 558 F.3d 856, 868-69 (9th 2009) (describing
procedures to be followed under LAWA and holding that
LAWA provided adequate due process).
28
with avoiding undue burdens on employers. See, e.g., H.R.
Rep. No. 99-682(I), at 56 (describing desire for employer
sanctions to be implemented in a manner that “would be the
least disruptive to the American businessman”); S. Rep. No.
99-132, at 35 (1985) (expressing concern regarding
“harassment . . . against innocent employers” and noting that
“[s]pecific protections have been included to minimize the
risk of these undesirable results”). As the Supreme Court
noted, “Congress did indeed seek to strike a balance among a
variety of interests when it enacted IRCA.” Whiting, 131 S.
Ct. at 1984.21 It is therefore apparent that the lack of minimal
procedural protections in Hazleton‟s ordinance further
undermines the express congressional objective of
minimizing undue burdens on, and harassment of, employers.
Accordingly, although the Court‟s recent decisions in
Whiting and Arizona alter some of our previous analysis,
neither opinion alters the outcome of this dispute. For the
reasons we have set forth above, we again hold that the
employment provisions of the IIRAO are pre-empted because
they “stand[] as an obstacle to the accomplishment and
execution” of IRCA‟s objectives, Hines, 312 U.S. at 67, and
were properly enjoined by the District Court.22
21
The Court in Whiting concluded that a failure to
include an express anti-discrimination provision was not fatal
to Arizona‟s employer sanctions law and that the Arizona law
did not otherwise upset the balance of interests that Congress
intended. Whiting, 131 S. Ct. at 1984. However, nothing in
Whiting undermines the conclusion that IRCA indeed
represents a careful congressional balance of competing
interests, including, inter alia, preventing undue burden on
employers.
22
The City argues that the standard articulated in
United States v. Salerno, 481 U.S. 739 (1987), precludes a
finding of pre-emption and that Arizona supports its position
in this regard. We disagree. Although Justice Scalia‟s and
Justice Alito‟s opinions in Arizona cite Salerno and espouse
the City‟s approach, see Arizona, 132 S. Ct. at 2515 (Scalia,
J., concurring in part and dissenting in part); id. at 2534(Alito, J., concurring in part and dissenting in part), no part of
29
B. The Housing Provisions
The housing provisions at issue in this litigation are
found in both the IIRAO and the RO. The RO sets up a rental
registration scheme that operates in conjunction with anti-
the majority opinion in Arizona, and no part of Whiting,
references Salerno at all. The plurality in Whiting and
majority in Arizona did not adopt the approach the City asks
us to adopt. That approach would reject a conflict pre-
emption claim in a facial challenge whenever a defendant can
conjure up just one hypothetical factual scenario in which
implementation of the state law would not directly interfere
with federal law. Indeed, if this were the standard governing
the Supreme Court‟s review of Arizona‟s S.B. 1070 law,
many of the sources of conflict with federal law described by
the Court would have been irrelevant to the Court‟s conflict
pre-emption analysis. For example, the Court in Arizona
concluded that § 6, which authorized state and local police to
arrest certain potentially removable individuals, conflicted
with federal law in part because it interfered with federal
enforcement discretion and could target and harass
individuals the federal government does not seek to remove.
Arizona, 132 S. Ct. at 2506-07. However, under the City‟s
approach, this conflict is irrelevant in a facial challenge
because, in at least some circumstances, the local police could
be arresting individuals whom the federal government does
want removed and whose arrest would not otherwise conflict
with federal policy. To the contrary, however, the Court in
Arizona found this potential conflict consequential.
The analysis of § 2(B) in Arizona also fails to support
the City‟s position. The Court vacated a preliminary
injunction against § 2(B) and remanded for further fact
finding because the provision, on its face, was ambiguous,
and Arizona‟s courts may construe § 2(B) in a way that would
preclude any unconstitutional applications of the law.
Arizona, 132 S. Ct. at 2509-10. The Court, however, did not
reject a facial challenge against the provision pursuant to the
City‟s theory, i.e., because implementation of § 2(B), in some
circumstances may be in harmony with federal law.
30
harboring provisions in the IIRAO to prohibit unauthorized
aliens from residing in any rental housing within the City.
The RO requires any prospective occupant of rental
housing over the age of eighteen to apply for and receive an
occupancy permit. RO § 1m, 6a, 7b. To receive the permit,
the prospective occupant must pay a ten-dollar fee and submit
certain basic information and “[p]roper identification showing
proof of legal citizenship and/or residency” to the HCEO. Id.
§ 7b. Landlords must inform all prospective occupants of this
requirement, and landlords are prohibited from allowing
anyone over the age of eighteen to rent or occupy a rental unit
without registering with the City and receiving a permit. Id. §
6a, 7b. A landlord found guilty of violating these
requirements must pay an initial fine of $1000 per
unauthorized occupant. Id. § 10b. That landlord is also
subject to an additional fine of $100 per day, per unauthorized
occupant, until the violation is corrected. Authorized
occupants of rental housing who allow anyone without an
occupancy permit to reside with them are subject to the same
fines. Id. § 10c.
As we mentioned earlier, the anti-harboring provisions
in the IIRAO make legal immigration status a condition
precedent to entering into a valid lease. IIRAO § 7B. A
tenant lacking lawful status “who enters into such a contract
shall be deemed to have breached a condition of the lease.”
Id. The IIRAO makes it “unlawful for any person or business
entity that owns a dwelling unit in the City to harbor an
illegal alien in the dwelling unit, knowing or in reckless
disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law.” Id. § 5A.
“Harboring” is broadly defined to include “let[ting], leas[ing],
or rent[ing] a dwelling unit to an illegal alien.” Id. § 5A(1).
An “illegal alien” is defined as “an alien who is not lawfully
present in the United States, according to the terms of United
States Code Title 8, section 1101 et seq.” Id. § 3D.
We previously found the housing provisions in the
IIRAO and the RO pre-empted on three separate pre-emption
31
grounds.23 No part of Whiting or Arizona considered
provisions of a state or local ordinance that, like the housing
provisions here, prohibit, and define “harboring” to include,
allowing unauthorized aliens to reside in rental housing.
Moreover, nothing in Whiting or Arizona undermines our
analysis of the contested housing provisions here. On the
contrary, the Court‟s language reinforces our view that
Hazleton‟s attempt to prohibit unauthorized aliens from
renting dwelling units in the City are pre-empted.
1. The Housing Provisions Constitute
Impermissible Regulation of Immigration
and Are Field Pre-empted.
We begin this part of our analysis by noting that the
Supreme Court was careful in Arizona to stress the important
national interests that are implicated when local governments
attempt to regulate immigration and the concomitant need to
leave such regulation in the hands of the federal government.
The federal power to determine immigration
23
In Lozano II, we determined that the presumption against
pre-emption applied to our analysis of the employment
provisions, Lozano II, 620 F.3d at 206-07, but did not apply
to our analysis of the housing provisions, id. at 219. We find
unpersuasive the City‟s argument that we erred in failing to
apply the presumption to the housing provisions and see
nothing in Arizona or Whiting suggesting otherwise. The
housing provisions attempt to regulate who may live within
Hazleton based solely on immigration status. In this area of
“significant federal presence,” we will not apply the
presumption against pre-emption. See United States v. Locke,
529 U.S. 89, 108 (2000); see also United States v. Alabama,
691 F.3d 1269, 1296-97 (11th Cir. 2012) (concluding that
state law prohibiting courts from recognizing contracts with
aliens lacking lawful immigration status “constitutes a thinly
veiled attempt to regulate immigration under the guise of
contract law,” and thus, the presumption against pre-emption
does not apply, but even if it does, the law is pre-empted),
cert. denied, 569 U.S. __, 133 S. Ct. 2022 (2013).
32
policy is well settled. Immigration policy can
affect trade, investment, tourism, and
diplomatic relations for the entire Nation, as
well as the perceptions and expectations of
aliens in this country who seek the full
protection of its laws.
Arizona, 132 S. Ct. at 2498. In finding three of the four
challenged provisions in Arizona pre-empted, the Court
reiterated the primacy of the federal government‟s concern
for the treatment and regulation of aliens in this country.
In Lozano II, we held that the housing provisions
impermissibly “regulate immigration” in contravention of the
Supreme Court‟s pronouncement that a state or locality may
not determine “„who should or should not be admitted into
the country, and the conditions under which a legal entrant
may remain.‟” Lozano II, 620 F.3d at 220 (quoting De
Canas, 424 U.S. at 355).24 In concluding that the housing
provisions constituted impermissible regulation of
immigration, we recognized that “the fact that aliens are the
subject of a state statute does not render it a regulation of
24
See also Villas at Parkside Partners v. Farmers
Branch, __ F.3d __, 2013 WL 3791664, at *15 (5th Cir. July
22, 2013) (en banc) (Reavley, J., concurring) (“Because the
sole purpose and effect of this [housing] ordinance is to target
the presence of illegal aliens within the city . . . and to cause
their removal, it contravenes the federal government‟s
exclusive authority on the regulation of immigration and the
conditions of residence in this country, and it constitutes an
obstacle to federal authority over immigration and the
conduct of foreign affairs.”); id. at *16 (Dennis, J.,
concurring) (“[T]he Ordinance is preempted in all of its core
provisions by the comprehensive and interrelated federal
legislative schemes governing the classification of
noncitizens, the adjudication of immigration status, and the
exclusion and deportation of noncitizens from the United
States, enacted pursuant to the federal government‟s
constitutional authority to administer a uniform national
immigration policy.”).
33
immigration.” De Canas, 424 U.S. at 355. We did not hold
that the housing provisions were a regulation of immigration
simply because “aliens are the subject of” those provisions.
Rather, we determined that “[t]hrough its housing provisions,
Hazleton attempts to regulate residence based solely on
immigration status.” Lozano II, 620 F.3d at 220 (emphasis
added). Thus, we concluded that enforcement of the housing
provisions must be enjoined because “[d]eciding which aliens
may live in the United States has always been the prerogative
of the federal government.” Id. The housing provisions of
Hazleton‟s ordinances are nothing more than a thinly veiled
attempt to regulate residency under the guise of a regulation
of rental housing. By barring aliens lacking lawful
immigration status from rental housing in Hazleton, the
housing provisions go to the core of an alien‟s residency.
States and localities have no power to regulate residency
based on immigration status.
For these same reasons, we also concluded that the
housing provisions are field pre-empted by the INA. That
statute is centrally concerned with “„the terms and conditions
of admission to the country and the subsequent treatment of
aliens lawfully admitted.‟” Id. (quoting De Canas, 424 U.S.
at 359). The INA‟s comprehensive scheme “plainly
precludes state efforts, whether harmonious or conflicting, to
regulate residence in this country based on immigration
status.” Id. We noted that although Hazleton‟s housing
provisions do not control actual physical entry into, or
expulsion from, Hazleton or the United States, “in essence,
that is precisely what they attempt to do.” Id. at 220 (internal
quotations marks and citation omitted). Again, we see
nothing in the Supreme Court‟s decisions in Whiting or
Arizona that undermines these conclusions.
Since our decision in Lozano II, a number of courts
have concluded that state or local laws proscribing the
harboring of aliens lacking lawful status are also field pre-
empted because they intrude on the field of alien harboring.
See, e.g., Ga. Latino Alliance for Human Rights v. Governor
of Ga., 691 F.3d 1250, 1263-65 (11th Cir. 2012) (“GLAHR”)
(concluding that federal law occupies the field with respect to
34
“the entry, movement, and residence of aliens within the
United States” and state law proscribing, inter alia, harboring
is field pre-empted); United States v. Alabama, 691 F.3d
1269, 1285-87 (11th Cir. 2012) (same), cert. denied, 569 U.S.
__, 133 S. Ct. 2022 (2013); United States v. South Carolina,
906 F. Supp. 2d 463, 468 (D.S.C. 2012) (concluding that
provisions of state law proscribing transporting or sheltering
aliens lacking lawful status “infringe upon a comprehensive
federal statutory scheme”), aff’d, __ F.3d __, 2013 WL
3803464 (4th Cir. July 23, 2013); Valle del Sol v. Whiting,
No. 10-1061, 2012 WL 8021265, at *5 (D. Ariz. Sept. 5,
2012) (concluding that state law proscribing, inter alia,
harboring of aliens lacking lawful status is field pre-empted).
As the Eleventh Circuit Court of Appeals explained:
The INA provides a comprehensive
framework to penalize the transportation,
concealment, and inducement of
unlawfully present aliens. Pursuant to 8
U.S.C. § 1324(a)(1)(A)(ii)-(iv), it is a
federal crime for any person to transport
or move an unlawfully present alien
within the United States; to conceal,
harbor, or shield an unlawfully present
alien from detection; or to encourage or
induce an alien to “come to, enter, or
reside in the United States.” . . . Section
1324(c) permits local law enforcement
officers to arrest for these violations of
federal law, but the federal courts
maintain exclusive jurisdiction to
prosecute for these crimes and interpret
the boundaries of the federal statute. See
id. § 1329. Subsection (d) of § 1324
further dictates evidentiary rules
governing prosecution of one of its
enumerated offenses, and subsection (e)
goes so far as to mandate a community
outreach program to “educate the public
in the United States and abroad about the
35
penalties for bringing in and harboring
aliens in violation of this section.”
GLAHR, 691 F.3d at 1263-64. We agree with the Eleventh
Circuit and other courts that have held that “the federal
government has clearly expressed more than a „peripheral
concern‟ with the entry, movement, and residence of aliens
within the United States and the breadth of these laws
illustrates an overwhelmingly dominant federal interest in the
field.” Id. at 1264 (citation omitted).
The City argues that, by authorizing state and local
officials to arrest individuals guilty of harboring, see 8 U.S.C.
§ 1324(c), Congress specifically invited state and local
governments into this field. According to the City, this
“invitation”—along with the requirement in 8 U.S.C. § 1373that federal agencies respond to inquiries from states and
localities regarding any alien‟s immigration status—
forecloses any argument that the housing provisions are field
pre-empted. However, while § 1324(c) allows state officials
to arrest for violations of crimes enumerated in that section,
the federal statute does not authorize states to prosecute those
crimes. Instead, under federal law, the prosecution of such
violations must take place in federal court and is at the sole
discretion of federal officials. See 8 U.S.C. § 1329. “In the
absence of a savings clause permitting state regulation in the
field, the inference from these enactments is that the role of
the state is limited to arrest for violations of federal [anti-
harboring] law.” GLAHR, 691 F.3d at 1264.
For the reasons explained above, we again hold that
the housing provisions in the IIRAO and RO constitute an
impermissible regulation of immigration and are field pre-
empted because they intrude on the regulation of residency
and presence of aliens in the United States and the occupied
field of alien harboring.
2. The Housing Provisions Are Conflict
Pre-empted.
In Lozano II, we concluded that the housing provisions
36
are also conflict pre-empted because they interfere with the
federal government‟s discretion in, and control over, the
removal process. The exercise of that discretion implicates
important foreign policy considerations. Arizona, 132 S. Ct.
at 2499. We also concluded that the housing provisions are
inconsistent with federal anti-harboring law. Again, the
subsequent decisions of the Supreme Court have not
undermined our reasoning. In fact, as suggested above and
explained below, the Court‟s subsequent decisions reinforce
our prior conflict pre-emption analysis with respect to the
housing provisions.
In Arizona, the Court emphasized that “[a] principle
feature of the [INA‟s] removal system is the broad discretion
exercised by immigration officials.” Arizona, 132 S. Ct. at
2499. “Federal officials . . . must decide whether it makes
sense to pursue removal at all [and,] [i]f removal proceedings
are commenced, [whether] aliens may seek . . . discretionary
relief allowing them to remain in the country or at least to
leave without formal removal.” Id.25 Yet, by prohibiting the
only realistic housing option many aliens have, Hazleton is
clearly trying to prohibit unauthorized aliens from living
within the City. As we explained in Lozano II, the housing
provisions, in effect, constitute an attempt to remove persons
from the City based entirely on a snapshot of their current
immigration status. Accordingly, the housing provisions
interfere with the federal government‟s discretion in deciding
whether and when to initiate removal proceedings. See
Lozano II, 620 F.3d at 221-22.26
25
See also Holder v. Martinez Gutierrez, 566 U.S. __,
132 S. Ct. 2011, 2015 (2012) (“The immigration laws have
long given the Attorney general discretion to permit certain
otherwise-removable aliens to remain in the United States.”);
Fid. Fed. Sav. & Loan Ass’n, 458 U.S. at 154 (“Where
Congress has directed an administrator to exercise his
discretion, his judgments are subject to judicial review only to
determine whether he has exceeded his statutory authority or
acted arbitrarily.”).
26
In Keller v. City of Fremont, __ F.3d __, 2013 WL
3242111 (8th Cir. June 28, 2013), a divided panel of the
37
Indeed, interference with the federal removal process
and the discretion entrusted to the Executive Branch are key
reasons for the Supreme Court‟s conclusions that § 6 and § 3
of Arizona‟s S.B. 1070 law are conflict pre-empted. The
Court reached that conclusion even though neither provision
purports to physically remove any aliens from Arizona or the
United States. In affirming an injunction against § 6, which
would have given Arizona police authority to arrest an
individual based on probable cause to believe the individual
has committed a removable offense, the Court determined
that the provision “would allow the State to achieve its own
immigration policy,” which could result in “unnecessary
harassment of some aliens . . . whom federal officials
determine should not be removed.” Arizona, 132 S. Ct. at
2506. The Court also found that “[b]y authorizing state
officers to decide whether an alien should be detained for
being removable, § 6 violates the principles that the removal
process is entrusted to the discretion of the Federal
Government.” Id. Similarly, in invalidating § 3, which
Court of Appeals for the Eighth Circuit has recently
concluded that a local ordinance, almost identical to the
housing provisions in the RO and IIRAO, does not interfere
with federal removal discretion. The majority reasoned that
the “rental provisions would only indirectly effect „removal‟
of any alien from the City,” in a manner comparable to how
“denying aliens employment inevitably has the effect of
„removing‟ some of them from the State.” Id. at *8. We
disagree. Restricting housing touches directly on residency
and federal removal discretion. As we explained in Lozano
II, “[i]t is difficult to conceive of a more effective method of
ensuring that persons do not enter or remain in a locality than
by precluding their ability to live in it.” Lozano II, 620 F.3d
at 220-21 (internal quotation marks and citation omitted).
The Eighth Circuit also concluded that the rental restrictions
do not determine who should or should not be admitted into
the country and do not conflict with federal anti-harboring
law. See Keller, 2013 WL 3242111, at *5, *7. For the
reasons explained above, we disagree with these conclusions
as well.
38
criminalized failure to carry an alien registration document in
violation of federal law, the Court noted that, in addition to
intruding on a field occupied by Congress, the provision also
conflicts with federal law because it would give Arizona the
power to act “even in circumstances where federal officials . .
. determine that prosecution would frustrate federal policies.”
Id. at 2503.
The same infirmities are evident here. Like the pre-
empted provisions in Arizona, the housing provisions
constitute an attempt to unilaterally attach additional
consequences to a person‟s immigration status with no regard
for the federal scheme, federal enforcement priorities, or the
discretion Congress vested in the Attorney General. Congress
has not banned persons who lack lawful status or proper
documentation from obtaining rental or any other type of
housing in the United States. Hazleton‟s decision to impose
this “distinct, unusual and extraordinary burden[] . . . upon
aliens” impermissibly intrudes into the realm of federal
authority. Hines, 312 U.S. at 65-66. Through the housing
provisions, Hazleton is seeking to achieve “its own
immigration policy,” one which will certainly result in
“unnecessary harassment of some aliens . . . whom federal
officials determine should not be removed.” Arizona, 132 S.
Ct. at 2506.
Hazleton may not unilaterally prohibit those lacking
lawful status from living within its boundaries, without regard
for the Executive Branch‟s enforcement and policy priorities.
“If every other state enacted similar legislation to overburden
the lives of aliens, the immigration scheme would be turned
on its head.” United States v. Alabama, 691 F.3d at 1295
n.21. Accordingly, the housing provisions conflict with
federal law.
In addition to undermining the comprehensive
procedures under which federal officials determine whether
an alien may remain in this country, Hazleton‟s housing
provisions would create significant foreign policy and
humanitarian concerns. As the Court in Arizona emphasized,
federal decisions in this arena “touch on foreign relations and
39
must be made with one voice.” Id. at 2506-07. “„One of the
most important and delicate of all international relationships .
. . has to do with the protection of the just rights of a
country‟s own nationals when those nationals are in another
country.‟” Arizona, 132 S. Ct. at 2498-99 (quoting Hines,
312 U.S. at 64). “It is fundamental that foreign countries
concerned about the status, safety, and security of their
nationals in the United States must be able to confer and
communicate on this subject with one national sovereign, not
the 50 separate states.” Id. at 2498. In addition, “[p]erceived
mistreatment of aliens in the United States may lead to
harmful reciprocal treatment of American citizens abroad.”
Id. Accordingly, “[s]ome discretionary decisions [in the
enforcement of immigration law] involve policy choices that
bear on this Nation‟s international relations,” and the exercise
of such discretion “embraces immediate human concerns.”
Id. at 2499. “Returning an alien to his own country may be
deemed inappropriate even where he has committed a
removable offense or fails to meet the criteria for admission.”
Id.
The Supreme Court‟s recognition of the primacy of the
national interest in regulations directly affecting aliens in this
country reinforces our holding in Lozano II that Hazleton‟s
attempt to regulate where aliens can live implicates strong
national interests and must be done with a single voice.27
Other federal courts that have addressed this issue agree that
attempts to proscribe harboring or restrict certain forms of
housing for aliens lacking lawful immigration status are
27
We realize, of course, that “[t]he pervasiveness of
federal regulation does not diminish the importance of
immigration policy to the States.” Arizona, 132 S. Ct. at
2500. Nonetheless, “„[t]he relative importance to the State of
its own law is not material when there is a conflict with a
valid federal law, for the Framers of our Constitution
provided that the federal law must prevail.‟” Fid. Fed. Sav. &
Loan Ass’n, 458 U.S. at 153 (quoting Free v. Bland, 369 U.S.
663, 666 (1962)); see also id. (Conflict pre-emption
“principles are not inapplicable here simply because real
property law is a matter of special concern to the States.”)
40
conflict pre-empted. Similarly, when the issue has been
presented in the context of a preliminary injunction, courts
have found a substantial likelihood of conflict pre-emption
for reasons similar to those we have described. See, e.g.,
Villas at Parkside Partners v. Farmers Branch, __ F.3d __,
2013 WL 3791664, at *8, *10 (5th Cir. July 22, 2013) (en
banc) (concluding that local housing ordinance analogous to
Hazleton‟s housing provisions conflicts with federal anti-
harboring law and federal removal procedures); GLAHR, 691
F.3d at 1265-67 (concluding that state law proscribing, inter
alia, harboring aliens lacking lawful status “presents an
obstacle to the execution of the federal statutory scheme and
challenges federal supremacy in the realm of immigration”);
United States v. Alabama, 691 F.3d at 1287-88 (same);
United States v. South Carolina, 906 F. Supp. 2d at 468
(concluding that provisions of state law proscribing
transporting or sheltering aliens lacking lawful status would
interfere with federal enforcement discretion), aff’d, __ F.3d
__, 2013 WL 3803464 (4th Cir. July 23, 2013); Valle del Sol,
2012 WL 8021265, at *6 (concluding that state law
proscribing, inter alia, harboring of aliens lacking lawful
status conflicts with federal law because it interferes with
federal enforcement discretion); Keller v. City of Fremont,
853 F. Supp. 2d 959, 972-73 (D. Neb. 2012), rev’d, 2013 WL
3242111 (8th Cir. June 28, 2013) (concluding that city
ordinance penalizing harboring or the lease or rental of
dwelling units to aliens lacking lawful status would impair
“the structure Congress has established for classification,
adjudication, and potential removal of aliens”).
Despite the obvious trespass into matters that must be
left to the national sovereign, the City continues to insist there
is no conflict pre-emption because it is merely engaging in
“concurrent enforcement” of federal immigration laws.
Under that theory, virtually any local jurisdiction could
prohibit activity that is also prohibited by federal law as long
as the local prohibition is not expressly pre-empted and the
locality is not acting in a field that is occupied by federal law.
The City cites to a decision from the Ninth Circuit Court of
Appeals in support of its contention: “Where state
enforcement activities do not impair federal regulatory
41
interests concurrent enforcement activity is authorized.”
Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983),
overruled by Hodgers-Durgin v. de la Vina, 199 F.3d 1037(9th Cir. 1999). However, that argument collapses under its
own weight. It requires that local enforcement activity not
impair federal regulatory interests. It says nothing about the
propriety of concurrent enforcement when the local
enforcement does impair federal regulatory interests; yet, that
is the situation here.
Moreover, the City‟s argument simply cannot be
reconciled with the Supreme Court‟s holding in Arizona.
There, the Court reasoned that “[a]lthough § 5(C) attempts to
achieve one of the same goals as federal law—the deterrence
of unlawful employment—it involves a conflict in the method
of enforcement.” Arizona, 132 S. Ct. at 2505. The Court
went on to explain that it had previously “recognized that a
„[c]onflict in technique can be fully as disruptive to the
system Congress enacted as conflict in overt policy.‟” Id.(quoting Motor Coach Employees, 403 U.S. at 287). Thus,
the Court found § 5(C) pre-empted even though the provision
imposed sanctions only on conduct already prohibited under
federal law.28
Furthermore, it must be remembered that the housing
provisions are not “concurrent” with federal law, despite
Hazleton‟s argument to the contrary. In addition to
interfering with federal removal discretion, the housing
provisions conflict with federal law because they define
28
While we acknowledge that § 5(C) attempted to
enact “a state criminal prohibition where no federal
counterpart exists,” Arizona, 132 S. Ct. at 2503 (emphasis
added), federal law does nonetheless prohibit unauthorized
employment and imposes civil penalties on aliens who seek
or engage in unauthorized work. See id. at 2504 (listing civil
penalties imposed on aliens who seek or engage in work
without authorization). Thus, § 5(C) is an example of a
state‟s “concurrent enforcement” effort, as that term is
defined by the City, which was nonetheless found to be
conflict pre-empted by the Supreme Court.
42
“harboring” to include simple landlord-tenant relationships.
Although the Supreme Court has yet to define “harboring” as
that term is used in 8 U.S.C. § 1324(a)(1)(A)(iii), we have
found that culpability requires some act of concealment from
authorities. See Lozano II, 620 F.3d at 223. “We . . . define
„harboring‟ as conduct „tending to substantially facilitate an
alien‟s remaining in the United States illegally and to prevent
government authorities from detecting the alien’s unlawful
presence.” Id. (quoting United States v. Ozcelik, 527 F.3d 88,
100 (3d Cir. 2008) (emphasis added)); see also United States
v. Kim, 193 F.3d 567, 574 (2d Cir. 1999) (Harboring
“encompasses conduct tending substantially to facilitate an
alien‟s remaining in the United States illegally and to prevent
government authorities from detecting his unlawful
presence.”). Renting an apartment in the normal course of
business is not, without more, conduct that prevents the
government from detecting an alien‟s unlawful presence.
Thus, it is highly unlikely that renting an apartment to an
unauthorized alien would be sufficient to constitute harboring
in violation of the INA.29
The City also argues that Whiting held that a
verification under 8 U.S.C. § 1373(c) is an accurate
assessment of an alien‟s immigration status and a sufficient
basis for state or local action with respect to that alien. The
City overlooks, however, that the state or locality must first
have authority to take the underlying action with respect to an
alien. Only then is verification under 8 U.S.C. § 1373(c)
relevant to support permissible state or local action. Because
the Whiting plurality held that Arizona‟s employer sanctions
law was a valid licensing law not pre-empted by IRCA, it
followed that a federal verification of immigration status is a
proper basis upon which Arizona may impose its licensing
29
See also Villas at Parkside Partners, 2013 WL
3791664, at *5 (concluding that, “by criminalizing conduct
that does not have the effect of evading federal detection, and
by giving state officials authority to act as immigration
officers outside the „limited circumstances‟ specified by
federal law,” local housing ordinance conflicts with federal
anti-harboring law).
43
sanctions. That is not the case with respect to the housing
provisions in Hazleton‟s ordinances.
As we have explained, the housing provisions are
themselves pre-empted. It is therefore irrelevant that they
would be imposed pursuant to a valid status verification under
§ 1373(c). Hazleton simply does not have the legal authority
to take that action even if done pursuant to a valid
determination of status under federal law. See Arizona, 132
S. Ct. at 2505 (explaining why § 5(C) of Arizona‟s S.B. 1070
law, which attempted to impose sanctions on unauthorized
workers, was conflict pre-empted); A.R.S. § 13-2928(E)
(providing that “[i]n the enforcement of [§ 5(C)], an alien‟s
immigration status may be determined . . . pursuant to 8
[U.S.C.] § 1373(c)”).
For the foregoing reasons, we again hold that the
housing provisions conflict with federal law and are thus pre-
empted.
3. The Rental Registration Provisions in the
RO Are Field Pre-empted Even When
Divorced from the Harboring Provisions
in the IIRAO.
The approach throughout this litigation has been to
consider the relevant housing provisions in the RO in
conjunction with those in the IIRAO. Nonetheless, it is
theoretically possible that the rental registration scheme in the
RO may not conflict with federal immigration law if divorced
from the harboring provisions and sanctions in the IIRAO.30
30
See Arizona, 132 S. Ct. at 2508-09 (vacating
injunction against § 2(B) of Arizona‟s S.B. 1070 law because
Congress “has encouraged the sharing of information
[between federal and state officials] about possible
immigration violations” and § 2(B) could be read to avoid
constitutional concerns); 8 U.S.C. § 1357(g)(10)(A)-(B)
(requiring no formal agreement for state and local authorities
to “communicate with the Attorney General regarding the
immigration status of any individual” or “otherwise to
44
However, we conclude that the housing provisions in the RO,
even if considered separately from the anti-harboring
provisions in the IIRAO, are pre-empted because they intrude
upon the field occupied by federal alien registration law. 31
As we have explained, the RO requires those seeking
to occupy rental housing to register with the City and obtain
an occupancy permit. To obtain an occupancy permit, the
applicant need only pay the requisite registration fee and
submit the name and address of the prospective occupant, the
name of the landlord, the address of the rental unit, and
“proof of legal citizenship and/or residency.” RO § 7b. As
the City itself points out, under the terms of the RO alone, all
applicants are issued an occupancy permit upon providing the
required information and the requisite fee—even if the
applicant indicates that she lacks legal status. Those who
occupy rental housing without complying with this
registration scheme are subject to fines of $100 to $300, or
imprisonment for up to 90 days in default of payment. RO §
10a. Thus, the rental registration scheme of the RO standing
alone operates as a requirement that a subset of Hazleton‟s
population—those residing in rental housing—register their
immigration status with the City.
cooperate with the Attorney General in the identification,
apprehension, detention, or removal of aliens not lawfully
present in the United States”).
31
We previously concluded that “[t]he sole
severability issue Hazleton has not waived concerns the
IIRAO‟s private cause of action.” Lozano II, 620 F.3d at 182.
As we explained in supra note 5, that holding is not at issue
here. However, we acknowledge that our prior severability
holding may not necessarily foreclose a decision to uphold
the RO, and the rental registration scheme, if considered
separately from the related anti-harboring provisions in the
IIRAO. Indeed, those provisions appear in separate statutes.
This does not impact the outcome here, however, because, as
we explain below, the rental registration scheme in the RO is
itself field pre-empted.
45
It is beyond dispute that states and localities may not
intrude in the field of alien registration. Arizona, 132 S. Ct. at
2502 (reiterating holding in Hines, 312 U.S. at 70, that “the
Federal Government has occupied the field of alien
registration”). Thus, in Arizona, the Supreme Court found
pre-empted § 3 of Arizona‟s S.B. 1070 law, which forbade
“willful failure to complete or carry an alien registration
document” in violation of federal law. Arizona, 132 S. Ct.
2501. Hazleton‟s rental registration scheme similarly
intrudes into the field of alien registration. One of the rental
registration scheme‟s primary functions is to require rental
housing occupants to report their immigration status to the
City of Hazleton and penalize the failure to register and
obtain an occupancy permit pursuant to that requirement.
This attempt to create a local alien registration requirement is
field pre-empted.
In arguing that the RO is nothing like an alien
registration system, the City claims “the most notable
difference” is that the RO applies equally to citizens and
aliens alike while the federal Alien Registration Act applies
only to noncitizens.32 We are not persuaded. It is highly
unlikely that the local registration laws invalidated on field
pre-emption grounds in Hines or Arizona would have been
upheld if they applied to citizens and aliens alike. The RO‟s
registration scheme cannot avoid pre-emption merely because
it requires both citizens and noncitizens to declare their
immigration status.33 The City also argues that a finding that
32
The Court of Appeals for the Eighth Circuit adopted
this argument and concluded that a similar rental registration
scheme is not field pre-empted. See Keller, 2013 WL
3242111, at *6 (“The occupancy license scheme at issue is
nothing like the state registration laws invalidated in Hines
and in Arizona [because it] requires all renters, including U.S.
citizens and nationals, to obtain an occupancy license. . . . ).
33
Indeed, Hazleton‟s requirement that citizens, in
addition to non-citizens, register their immigration status is an
even worse transgression into the field of alien registration
law as it imposes burdens on U.S. citizens that are absent
from federal law. Since Congress has not seen fit to require
46
the RO constitutes an alien registration system is implausible
because it would require the invalidation of laws limiting
drivers‟ licenses to lawfully present aliens. This argument is
also unpersuasive. Basing eligibility for certain state
privileges on immigration status is distinct from requiring
aliens to register. The RO‟s rental registration scheme serves
no discernible purpose other than to register the immigration
status of a subset of the City‟s population. It can only be
viewed as an impermissible alien registration requirement.34
IV. Conclusion
For the reasons set forth above, we conclude that the
employment provisions in the IIRAO are distinguishable from
the Arizona law upheld in Whiting, and the Supreme Court‟s
reasoning in Whiting and Arizona does not otherwise
undermine our conclusion that both the employment and
housing provisions in the IIRAO and RO are pre-empted by
federal law. Accordingly, we will again affirm in part and
reverse in part the District Court‟s order permanently
enjoining Hazleton‟s enforcement of the IIRAO and RO.
V. Appendix
A. The Illegal Immigration Relief Act Ordinance
(Ordinance 2006-18, as amended by Ordinances 2006-40
and 2007-7)
U.S. citizens to prove their citizenship status before obtaining
rental housing, we are at a loss to understand Hazleton‟s
argument that imposing this burden on citizens saves the
RO‟s registration scheme from pre-emption.
34
The RO is also distinguishable from § 2(B) of
Arizona‟s S.B. 1070, which the Supreme Court did not enjoin
in Arizona. Section 2(B), unlike the rental registration
scheme in the RO, did not impose any registration obligation
on aliens. Rather, § 2(B) imposed only an obligation on local
police to verify the immigration status of persons stopped,
detained or arrested. Arizona, 132 S. Ct. at 2507-10.
47
ILLEGAL IMMIGRATION RELIEF ACT ORDINANCE
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
HAZLETON AS FOLLOWS:
SECTION 1. TITLE
This chapter shall be known and may be cited as the “City of
Hazleton Illegal Immigration Relief Act Ordinance.”
SECTION 2. FINDINGS AND DECLARATION OF
PURPOSE
The People of the City of Hazleton find and declare:
A. That state and federal law require that certain conditions
be met before a person may be authorized to work or reside in
this country.
B. That unlawful workers and illegal aliens, as defined by this
ordinance and state and federal law, do not normally meet
such conditions as a matter of law when present in the City of
Hazleton.
C. That unlawful employment, the harboring of illegal aliens
in dwelling units in the City of Hazleton, and crime
committed by illegal aliens harm the health, safety and
welfare of authorized U.S. workers and legal residents in the
City of Hazleton. Illegal immigration leads to higher crime
rates, subjects our hospitals to fiscal hardship and legal
residents to substandard quality of care, contributes to other
burdens on public services, increasing their cost and
diminishing their availability to legal residents, and
diminishes our overall quality of life.
D. That the City of Hazleton is authorized to abate public
nuisances and empowered and mandated by the people of
Hazleton to abate the nuisance of illegal immigration by
diligently prohibiting the acts and policies that facilitate
illegal immigration in a manner consistent with federal law
and the objectives of Congress.
E. That United States Code Title 8, subsection 1324(a)(1)(A)
48
prohibits the harboring of illegal aliens. The provision of
housing to illegal aliens is a fundamental component of
harboring.
F. This ordinance seeks to secure to those lawfully present in
the United States and this City, whether or not they are
citizens of the United States, the right to live in peace free of
the threat crime, to enjoy the public services provided by this
city without being burdened by the cost of providing goods,
support and services to aliens unlawfully present in the
United States, and to be free of the debilitating effects on
their economic and social well being imposed by the influx of
illegal aliens to the fullest extent that these goals can be
achieved consistent with the Constitution and Laws of the
United States and the Commonwealth of Pennsylvania.
G. The City shall not construe this ordinance to prohibit the
rendering of emergency medical care, emergency assistance,
or legal assistance to any person.
SECTION 3. DEFINITIONS
When used in this chapter, the following words, terms and
phrases shall have the meanings ascribed to them herein, and
shall be construed so as to be consistent
with state and federal law, including federal immigration law:
A. “Business entity” means any person or group of persons
performing or engaging in any activity, enterprise, profession,
or occupation for gain, benefit, advantage, or livelihood,
whether for profit or not for profit.
(1) The term business entity shall include but not be
limited to selfemployed individuals, partnerships,
corporations, contractors, and subcontractors.
(2) The term business entity shall include any business
entity that possesses a business permit, any business entity
that is exempt by law from obtaining such a business
permit, and any business entity that is operating
unlawfully without such a business permit.
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B. “City” means the City of Hazleton.
C. “Contractor” means a person, employer, subcontractor or
business entity that enters into an agreement to perform any
service or work or to provide a certain product in exchange
for valuable consideration. This definition shall include but
not be limited to a subcontractor, contract employee, or a
recruiting or staffing entity.
D. “Illegal Alien” means an alien who is not lawfully present
in the United States, according to the terms of United States
Code Title 8, section 1101 et seq. The City shall not conclude
that a person is an illegal alien unless and until an authorized
representative of the City has verified with the federal
government, pursuant to United States Code Title 8,
subsection 1373(c), that the person is an alien who is not
lawfully present in the United States.
E. “Unlawful worker” means a person who does not have the
legal right or authorization to work due to an impediment in
any provision of federal, state or local law, including but not
limited to a minor disqualified by nonage, or an unauthorized
alien as defined by United States Code Title 8, subsection
1324a(h)(3).
F. “Work” means any job, task, employment, labor, personal
services, or any other activity for which compensation is
provided, expected, or due, including but not limited to all
activities conducted by business entities.
G. “Basic Pilot Program” means the electronic verification of
work authorization program of the Illegal Immigration
Reform and Immigration Responsibility Act of 1996, P.L.
104-208, Division C, Section 403(a); United States Code
Title 8, subsection 1324a, and operated by the United States
Department of Homeland Security (or a successor program
established by the federal government.)
SECTION 4. BUSINESS PERMITS, CONTRACTS, OR
GRANTS
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A. It is unlawful for any business entity to knowingly recruit,
hire for employment, or continue to employ, or to permit,
dispatch, or instruct any person who is an unlawful worker to
perform work in whole or part within the City. Every business
entity that applies for a business permit to engage in any type
of work in the City shall sign an affidavit, prepared by the
City Solicitor, affirming that they do not knowingly utilize
the services or hire any person who is an unlawful worker.
B. Enforcement: The Hazleton Code Enforcement Office
shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a
written signed complaint to the Hazleton Code
Enforcement Office submitted by any City official,
business entity, or City resident. A valid complaint shall
include an allegation which describes the alleged
violator(s) as well as the actions constituting the violation,
and the date and location where such actions occurred.
(2) A complaint which alleges a violation on the basis of
national origin, ethnicity, or race shall be deemed invalid
and shall not be enforced.
(3) Upon receipt of a valid complaint, the Hazleton Code
Enforcement Office shall, within three business days,
request identity information from the business entity
regarding any persons alleged to be unlawful workers. The
Hazleton Code Enforcement Office shall suspend the
business permit of any business entity which fails, within
three business days after receipt of the request, to provide
such information. In instances where an unlawful worker
is alleged to be an unauthorized alien, as defined in United
States Code Title 8, subsection 1324a(h)(3), the Hazleton
Code Enforcement Office shall submit identity data
required by the federal government to verify, pursuant to
United States Code Title 8, section 1373, the immigration
status of such person(s), and shall provide the business
entity with written confirmation of that verification.
(4) The Hazleton Code Enforcement Office shall suspend
the business permit of any business entity which fails
correct a violation of this section within three business
days after notification of the violation by the Hazleton
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Code Enforcement Office.
(5) The Hazleton Code Enforcement Office shall not
suspend the business permit of a business entity if, prior to
the date of the violation, the business entity had verified
the work authorization of the alleged unlawful worker(s)
using the Basic Pilot Program.
(6) The suspension shall terminate one business day after
a legal representative of the business entity submits, at a
City office designated by the City Solicitor, a sworn
affidavit stating that the violation has ended.
(a) The affidavit shall include a description of the
specific measures and actions taken by the business
entity to end the violation, and shall include the name,
address and other adequate identifying information of
the unlawful workers related to the complaint.
(b) Where two or more of the unlawful workers were
verified by the federal government to be unauthorized
aliens, the legal representative of the business entity
shall submit to the Hazleton Code Enforcement Office,
in addition to the prescribed affidavit, documentation
acceptable to the City Solicitor which confirms that the
business entity has enrolled in and will participate in
the Basic Pilot Program for the duration of the validity
of the business permit granted to the business entity.
(7) For a second or subsequent violation, the Hazleton
Code Enforcement Office shall suspend the business
permit of a business entity for a period of twenty days.
After the end of the suspension period, and upon receipt of
the prescribed affidavit, the Hazleton Code Enforcement
Office shall reinstate the business permit. The Hazleton
Code Enforcement Office shall forward the affidavit,
complaint, and associated documents to the appropriate
federal enforcement agency, pursuant to United States
Code Title 8, section 1373. In the case of an unlawful
worker disqualified by state law not related to
immigration, the Hazleton Code Enforcement Office shall
forward the affidavit, complaint, and associated
documents to the appropriate state enforcement agency.
C. All agencies of the City shall enroll and participate in the
Basic Pilot Program.
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D. As a condition for the award of any City contract or grant
to a business entity for which the value of employment, labor
or, personal services shall exceed $10,000, the business entity
shall provide documentation confirming its enrollment and
participation in the Basic Pilot Program.
E. Private Cause of Action for Unfairly Discharged
Employees
(1) The discharge of any employee who is not an unlawful
worker by a business entity in the City is an unfair
business practice if, on the date of the discharge, the
business entity was not participating in the Basic Pilot
program and the business entity was employing an
unlawful worker.
(2) The discharged worker shall have a private cause of
action in the Municipal Court of Hazleton against the
business entity for the unfair business practice. The
business entity found to have violated this subsection shall
be liable to the aggrieved employee for:
(a) three times the actual damages sustained by the
employee, including but not limited to lost wages or
compensation from the date of the discharge until the
date the employee has procured new employment at an
equivalent rate of compensation, up to a period of one
hundred and twenty days; and
(b) reasonable attorney‟s fees and costs.
SECTION 5. HARBORING ILLEGAL ALIENS
A. It is unlawful for any person or business entity that owns a
dwelling unit in the City to harbor an illegal alien in the
dwelling unit, knowing or in reckless disregard of the fact that
an alien has come to, entered, or remains in the United States
in violation of law, unless such harboring is otherwise
expressly permitted by federal law.
(1) For the purposes of this section, to let, lease, or rent a
dwelling unit to an illegal alien, knowing or in reckless
disregard of the fact that an alien has come to, entered, or
53
remains in the United States in violation of law, shall be
deemed to constitute harboring. To suffer or permit the
occupancy of the dwelling unit by an illegal alien,
knowing or in reckless disregard of the fact that an alien
has come to, entered, or remains in the United States in
violation of law, shall also be deemed to constitute
harboring.
(2) A separate violation shall be deemed to have been
committed on each day that such harboring occurs, and for
each adult illegal alien harbored in the dwelling unit,
beginning one business day after receipt of a notice of
violation from the Hazleton Code Enforcement Office.
(3) A separate violation of this section shall be deemed to
have been committed for each business day on which the
owner fails to provide the Hazleton Code Enforcement
Office with identity data needed to obtain a federal
verification of immigration status, beginning three days
after the owner receives written notice from the Hazleton
Code Enforcement Office.
B. Enforcement: The Hazleton Code Enforcement Office
shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a
written signed complaint to the Hazleton Code
Enforcement Office submitted by any official, business
entity, or resident of the City. A valid complaint shall
include an allegation which describes the alleged
violator(s) as well as the actions constituting the violation,
and the date and location where such actions occurred.
(2) A complaint which alleges a violation on the basis of
national origin, ethnicity, or race shall be deemed invalid
and shall not be enforced.
(3) Upon receipt of a valid written complaint, the
Hazleton Code Enforcement Office shall, pursuant to
United States Code Title 8, section 1373(c), verify with
the federal government the immigration status of a person
seeking to use, occupy, lease, or rent a dwelling unit in the
City. The Hazleton Code Enforcement Office shall submit
identity data required by the federal government to verify
immigration status. The City shall forward identity data
54
provided by the owner to the federal government, and
shall provide the property owner with written
confirmation of that verification.
(4) If after five business days following receipt of written
notice from the City that a violation has occurred and that
the immigration status of any alleged illegal alien has been
verified, pursuant to United States Code Title 8, section
1373(c), the owner of the dwelling unit fails to correct a
violation of this section, the Hazleton Code Enforcement
Office shall deny or suspend the rental license of the
dwelling unit.
(5) For the period of suspension, the owner of the
dwelling unit shall not be permitted to collect any rent,
payment, fee, or any other form of compensation from, or
on behalf of, any tenant or occupant in the dwelling unit.
(6) The denial or suspension shall terminate one business
day after a legal representative of the dwelling unit owner
submits to the Hazleton Code Enforcement Office a sworn
affidavit stating that each and every violation has ended.
The affidavit shall include a description of the specific
measures and actions taken by the business entity to end
the violation, and shall include the name, address and
other adequate identifying information for the illegal
aliens who were the subject of the complaint.
(7) The Hazleton Code Enforcement Office shall forward
the affidavit, complaint, and associated documents to the
appropriate federal enforcement agency, pursuant to
United States Code Title 8, section 1373.
(8) Any dwelling unit owner who commits a second or
subsequent violation of this section shall be subject to a
fine of two hundred and fifty dollars ($250) for each
separate violation. The suspension provisions of this
section applicable to a first violation shall also apply.
(9) Upon the request of a dwelling unit owner, the
Hazleton Code Enforcement Office shall, pursuant to
United States Code Title 8, section 1373(c), verify with
the federal government the lawful immigration status of a
person seeking to use, occupy, lease, or rent a dwelling
unit in the City. The penalties in this section shall not
apply in the case of dwelling unit occupants whose status
as an alien lawfully present in the United States has been
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verified.
SECTION 6. CONSTRUCTION AND SEVERABILITY
A. The requirements and obligations of this section shall be
implemented in a manner fully consistent with federal law
regulating immigration and protecting the civil rights of all
citizens and aliens.
B. If any part of provision of this Chapter is in conflict or
inconsistent with applicable provisions of federal or state
statutes, or is otherwise held to be invalid or unenforceable by
any court of competent jurisdiction, such part of provision
shall be suspended and superseded by such applicable laws or
regulations, and the remainder of this Chapter shall not be
affected thereby.
SECTION 7. IMPLEMENTATION AND PROCESS
A. Prospective Application Only. The default presumption
with respect to Ordinances of the City of Hazleton—that such
Ordinances shall apply only prospectively—shall pertain to
the Illegal Immigration Relief Act Ordinance. The Illegal
Immigration Relief Act Ordinance shall be applied only to
employment contracts, agreements to perform service or
work, and agreements to provide a certain product in
exchange for valuable consideration that are entered into or
are renewed after the date that the Illegal Immigration Relief
Act Ordinance becomes effective and any judicial injunction
prohibiting its implementation is removed. The Illegal
Immigration Relief Act Ordinance shall be applied only to
contracts to let, lease, or rent dwelling units that are entered
into or are renewed after the date that the Illegal Immigration
Relief Act Ordinance becomes effective and any judicial
injunction prohibiting its implementation is removed. The
renewal of a month-to-month lease or other type of tenancy
which automatically renews absent notice by either party will
not be considered as entering into a new contract to let, lease
or rent a dwelling unit.
B. Condition of Lease. Consistent with the obligations of a
56
rental unit owner described in Section 5.A., a tenant may not
enter into a contract for the rental or leasing of a dwelling unit
unless the tenant is either a U.S. citizen or an alien lawfully
present in the United States according to the terms of United
States Code Title 8, Section 1101 et seq. A tenant who is
neither a U.S. citizen nor an alien lawfully present in the
United States who enters into such a contract shall be deemed
to have breached a condition of the lease under 68 P.S.
Section 250.501. A tenant who is not a U.S. citizen who
subsequent to the beginning of his tenancy becomes
unlawfully present in the United States shall be deemed to
have breached a condition of the lease under 68 P.S. Section
250.501.
C. Corrections of Violations—Employment of Unlawful
Workers. The correction of a violation with respect to the
employment of an unlawful worker shall include any of the
following actions:
(1) The business entity terminates the unlawful worker‟s
employment.
(2) The business entity, after acquiring additional
information from the worker, requests a secondary or
additional verification by the federal government of the
worker‟s authorization, pursuant to the procedures of the
Basic Pilot Program. While this verification is pending,
the three business day period described in Section 4.B.(4)
shall be tolled.
(3) The business entity attempts to terminate the unlawful
worker‟s employment and such termination is challenged
in a court of the Commonwealth of Pennsylvania. While
the business entity pursues the termination of the unlawful
worker‟s employment in such forum, the three business
day period described in Section 4.B.(4) shall be tolled.
D. Corrections of Violations—Harboring Illegal Aliens. The
correction of a violation with respect to the harboring of an
illegal alien in a dwelling unit shall include any of the
following actions:
(1) A notice to quit, in writing, issued and served by the
57
dwelling unit owner, as landlord, to the tenant declaring a
forfeiture of the lease for breach of the lease condition
describe in Section 7.B.
(2) The dwelling unit owner, after acquiring additional
information from the alien, requests the City of Hazleton
to obtain a secondary or additional verification by the
federal government that the alien is lawfully present in the
United States, under the procedures designated by the
federal government, pursuant to United States Code Title
8, Subsection 1373(c). While this second verification is
pending, the five business day period described in Section
5.B.(4) shall be tolled.
(3) The commencement of an action for the recovery of
possession of real property in accordance with
Pennsylvania law by the landlord against the illegal alien.
If such action is contested by the tenant in court, the
dwelling unit owner shall be deemed to have complied
with this Ordinance while the dwelling unit owner is
pursuing the action in court. While this process is pending,
the five business day period described in Section 5.B.(4)
shall be tolled.
E. Procedure if Verification is Delayed. If the federal
government notifies the City of Hazleton that it is unable to
verify whether a tenant is lawfully present in the United
States or whether an employee is authorized to work in the
United States, the City of Hazleton shall take no further
action on the complaint until a verification from the federal
government concerning the status of the individual is
received. At no point shall any City official attempt to make
an independent determination of any alien‟s legal status,
without verification from the federal government, pursuant to
United States Code Title 8, Subsection 1373(c).
F. Venue for Judicial Process. Any business entity or rental
unit owner subject to a complaint and subsequent
enforcement under this ordinance, or any employee of such a
business entity or tenant of such a rental unit owner, may
challenge the enforcement of this Ordinance with respect to
such entity or individual in the Magisterial District Court for
the City of Hazleton, subject to the right of appeal to the
58
Luzerne County Court of Common Pleas. Such an entity or
individual may alternatively challenge the enforcement of this
Ordinance with respect to such entity or individual in any
other court of competent jurisdiction in accordance with
applicable law, subject to all rights of appeal.
G. Deference to Federal Determinations of Status. The
determination of whether a tenant of a dwelling is lawfully
present in the United States, and the determination of whether
a worker is an unauthorized alien shall be made by the federal
government, pursuant to United States Code Title 8,
Subsection 1373(c). A determination of such status of an
individual by the federal government shall create a rebuttable
presumption as to that individual‟s status in any judicial
proceedings brought pursuant to this ordinance. The Court
may take judicial notice of any verification of the individual
previously provided by the federal government and may
request the federal government to provide automated or
testimonial verification pursuant to United States Code Title
8, Subsection 1373(c).
B. Rental Registration Ordinance (Ordinance 2006-13)
ESTABLISHING A REGISTRATION PROGRAM FOR
RESIDENTIAL RENTAL PROPERTIES; REQUIRING
ALL OWNERS OF RESIDENTIAL RENTAL
PROPERTIES TO DESIGNATE AN AGENT FOR
SERVICE OF PROCESS; AND PRESCRIBING DUTIES
OF OWNERS, AGENTS AND OCCUPANTS; DIRECTING
THE DESIGNATION OF AGENTS; ESTABLISHING
FEES FOR THE COSTS ASSOCIATED WITH THE
REGISTRATION OF RENTAL PROPERTY; AND
PRESCRIBING PENALTIES FOR VIOLATIONS BE IT
ORDAINED BY THE GOVERNING BODY OF THE CITY
OF HAZLETON AND IT IS HEREBY ORDAINED AND
WITH THE AUTHORITY OF THE SAME AS FOLLOWS:
SECTION 1. DEFINITIONS AND INTERPRETATION.
The following words, when used in this ordinance, shall have
59
the meanings ascribed to them in this section, except in those
instances where the context clearly indicates otherwise. When
not inconsistent with the context, words used in the present
tense include the future; words in the plural number include
the singular number; words in the singular shall include the
plural, and words in the masculine shall include the feminine
and the neuter.
a. AGENT—Individual of legal majority who has been
designated by the Owner as the agent of the Owner or
manager of the Property under the provisions of this
ordinance.
b. CITY—City of Hazleton
c. CITY CODE—the building code (property Maintenance
Code 1996 as amended or superceded) officially adopted by
the governing body of the City, or other such codes officially
designated by the governing body of the City for the
regulation of construction, alteration, addition, repair,
removal, demolition, location, occupancy and maintenance of
buildings and structures.
d. ZONING ORDINANCE—Zoning ordinance as officially
adopted by the City of Hazleton, File of Council # 95-26 (as
amended).
e. OFFICE—The Office of Code Enforcement for the City of
Hazleton.
f. DWELLING UNIT—a single habitable unit, providing
living facilities for one or more persons, including permanent
space for living, sleeping, eating, cooking and bathing and
sanitation, whether furnished or unfurnished. There may be
more than one Dwelling Unit on a Premises.
g. DORMITORY—a residence hall offered as student or
faculty housing to accommodate a college or university,
providing living or sleeping rooms for individuals or groups
of individuals, with or without cooking facilities and with or
without private baths.
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h. INSPECTOR—any person authorized by Law or
Ordinance to inspect buildings or systems, e.g. zoning,
housing, plumbing, electrical systems, heat systems,
mechanical systems and health necessary to operate or use
buildings within the City of Hazleton. An Inspector would
include those identified in Section 8—Enforcement.
i. FIRE DEPARTMENT—the Fire Department of the City of
Hazleton or any member thereof, and includes the Chief of
Fire or his designee.
j. HOTEL—a building or part of a building in which living
and sleeping accommodations are used primarily for transient
occupancy, may be rented on a daily basis, and desk service is
provided, in addition to one or more of the following services:
maid, telephone, bellhop service, or the furnishing or
laundering of linens.
k. LET FOR OCCUPANCY—to permit, provide or offer, for
consideration, possession or occupancy of a building,
dwelling unit, rooming unit, premise or structure by a person
who is not the legal owner of record thereof, pursuant to a
written or unwritten lease, agreement or license, or pursuant
to a recorded or unrecorded agreement or contract for the sale
of land.
l. MOTEL—a building or group of buildings which contain
living and sleeping accommodations used primarily for
transient occupancy, may be rented on a daily basis, and desk
service is provided, and has individual entrances from outside
the building to serve each such living or sleeping unit.
m. OCCUPANT—a person age 18 or older who resides at a
Premises.
n. OPERATOR—any person who has charge, care or control
of a Premises which is offered or let for occupancy.
o. OWNER—any Person, Agent, or Operator having a legal
or equitable interest in the property; or recorded in the official
61
records of the state, county, or municipality as holding title to
the property; or otherwise having control of the property,
including the guardian of the estate of any such person, and
the executor or administrator of the estate of such person if
ordered to take possession of real property by a Court of
competent jurisdiction.
p. OWNER-OCCUPANT—an owner who resides in a
Dwelling Unit on a regular permanent basis, or who
otherwise occupies a nonresidential portion of the Premises
on a regular permanent basis.
q. PERSON—any person, partnership, firm, association,
corporation, or municipal authority or any other group acting
as a single unit.
r. POLICE DEPARTMENT—the Police Department of the
City of Hazleton or any member thereof sworn to enforce
laws and ordinances in the City, and includes the Chief of
Police or his designee.
s. PREMISES—any parcel of real property in the City,
including the land and all buildings and structures in which
one or more Rental Units are located.
t. RENTAL UNIT—means a Dwelling Unit or Rooming Unit
which is Let for Occupancy and is occupied by one or more
Tenants.
u. ROOMING UNIT—any room or groups of rooms forming
a single habitable unit occupied or intended to be occupied
for sleeping or living, but not for cooking purposes.
v. TENANT—any Person authorized by the Owner or Agent
who occupies a Rental Unit within a Premises regardless of
whether such Person has executed a lease for said Premises.
SECTION 2. APPOINTMENT OF AN AGENT AND/OR
MANAGER
Each Owner who is not an Owner-occupant, or who does not
62
reside in the City of Hazleton or within a ten (10) mile air
radius of the City limits, shall appoint an Agent who shall
reside in the City or within a ten (10) mile air radius of the
City limits.
SECTION 3. DUTIES OF THE OWNER AND/OR AGENT
a. The Owner has the duty to maintain the Premises in good
repair, clean and sanitary condition, and to maintain the
Premises in compliance with the current Codes, Building
Codes and Zoning Ordinance of the City of Hazleton. The
Owner may delegate implementation of these responsibilities
to an Agent.
b. The duties of the Owner and/or Agent shall be to receive
notices and correspondence, including service of process,
from the City of Hazleton; to arrange for the inspection of the
Rental Units; do or arrange for the performance of
maintenance, cleaning, repair, pest control, snow and ice
removal, and ensure continued compliance of the Premises
with the current Codes, Building Codes and Zoning
Ordinance in effect in the City of Hazleton, as well as arrange
for garbage removal.
c. The name, address and telephone number of the Owner and
Agent, if applicable, shall be reported to the Code
Enforcement Office in writing upon registering the Rental
Units.
d. No Dwelling Unit shall be occupied, knowingly by the
Owner or Agent, by a number of persons that is in excess of
the requirements outlined in 2003 International Property
Maintenance Code, Chapter 4, Light, Ventilation, and
Occupancy Limits, Section PM-404.5, Overcrowding, or any
update thereof, a copy of which is appended hereto and made
a part hereof.
SECTION 4. NOTICES
a. Whenever an Inspector or Code Enforcement Officer
determines that any Rental Unit or Premises fails to meet the
63
requirements set forth in the applicable Codes, the Inspector
or Code Enforcement Officer shall issue a correction notice
setting forth the violations and ordering the Occupant, Owner
or Agent, as appropriate, to correct such violations. The
notice shall:
1) Be in writing;
2) Describe the location and nature of the violation;
3) Establish a reasonable time for the correction of the
violation.
b. All notices shall be served upon the Occupant, Owner or
Agent, as applicable, personally or by certified mail, return
receipt requested. A copy of any notices served solely on an
Occupant shall also be provided to the Owner or Agent. In the
event service is first attempted by mail and the notice is
returned by the postal authorities marked “unclaimed” or
“refused”, then the Code Enforcement Office or Police
Department shall attempt delivery by personal service on the
Occupant, Owner or Agent, as applicable. The Code
Enforcement Office shall also post the notice at a conspicuous
place on the Premises. If personal service directed to the
Owner or Agent cannot be accomplished after a reasonable
attempt to do so, then the notice may be sent to the Owner or
Agent, as applicable, at the address stated on the most current
registration application for the Premises in question, by
regular first class mail, postage prepaid. If such notice is not
returned by the postal authorities within five (5) days of its
deposit in the U.S. Mail, then it shall be deemed to have been
delivered to and received by the addressee on the fifth day
following its deposit in the United States Mail.
c. For purposes of this Ordinance, any notice hereunder that is
given to the Agent shall be deemed as notice given to the
Owner.
d. There shall be a rebuttable presumption that any notice that
is given to the Occupant, Owner or Agent under this
ordinance shall have been received by such Occupant, Owner
or Agent if the notice was served in the manner provided by
this ordinance.
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e. Subject to paragraph 4.d above, a claimed lack of
knowledge by the Owner or Agent, if applicable, of any
violation hereunder cited shall be no defense to closure of
rental units pursuant to Section 9, as long as all notices
prerequisite to such proceedings have been given and deemed
received in accordance with the provisions of this ordinance.
f. All notices shall contain a reasonable time to correct, or
take steps to correct, violations of the above. The Occupant,
Owner or Agent to whom the notice was addressed may
request additional time to correct violations. Requests for
additional time must be in writing and either deposited in the
U.S. Mail (post-marked) or handdelivered to the Code
Enforcement Office within five (5) days of receipt of the
notice by the Occupant, Owner or Agent. The City retains the
right to deny or modify time extension requests. If the
Occupant, Owner or Agent is attempting in good faith to
correct violations but is unable to do so within the time
specified in the notice, the Occupant, Owner or Agent shall
have the right to request such additional time as may be
needed to complete the correction work, which request shall
not be unreasonably withheld.
g. Failure to correct violations within the time period stated in
the notice of violation shall result in such actions or penalties
as are set forth in Section 10 of this ordinance. If the notice of
violation relates to actions or omissions of the Occupant, and
the Occupant fails to make the necessary correction, the
Owner or Agent may be required to remedy the condition. No
adverse action shall be taken against an Owner or Agent for
failure to remedy a condition so long as the Owner or Agent
is acting with due diligence and taking bona fide steps to
correct the violation, including but not limited to pursuing
remedies under a lease agreement with an Occupant or
Tenant. The City shall not be precluded from pursuing an
enforcement action against any Occupant or Tenant who is
deemed to be in violation.
SECTION 5. INSURANCE
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In order to protect the health, safety and welfare of the
residents of the City, it is hereby declared that the city shall
require hazard and general liability insurance for all property
owners letting property for occupancy in the City.
a. Minimum coverage; use of insurance proceeds. All Owners
shall be required to obtain a minimum of fifty thousand
($50,000.00) dollars in general liability insurance, and hazard
and casualty insurance in an amount sufficient to either
restore or remove the building in the event of a fire or other
casualty. Further, in the event of any fire or loss covered by
such insurance, it shall be the obligation of the Owner to use
such insurance proceeds to cause the restoration or demolition
or other repair of the property in adherence to the City Code
and all applicable ordinances.
b. Property owners to provide City with insurance
information. Owners shall be required to place their insurance
company name, policy number and policy expiration date on
their Rental Property Registration form, or in the alternative,
to provide the Code Enforcement Office with a copy of a
certificate of insurance. A registration Certificate (see Section
6 below) shall not be issued to any Owner or Agent unless the
aforementioned information has been provided to the Code
Enforcement Office. The Code Enforcement Office shall be
informed of any change in policies for a particular rental
property or cancellation of a policy for said property within
thirty (30) days of said change or cancellation.
SECTION 6. RENTAL REGISTRATION AND LICENSE
REQUIREMENTS
a. No Person shall hereafter occupy, allow to be occupied,
advertise for occupancy, solicit occupants for, or let to
another person for occupancy any Rental Unit within the City
for which an application for license has not been made and
filed with the Code Enforcement Office and for which there is
not an effective license. Initial application and renewal shall
be made upon forms furnished by the Code Enforcement
Office for such purpose and shall specifically require the
following minimum information:
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1) Name, mailing address, street address and phone
number of the Owner, and if the Owner is not a natural
person, the name, address and phone number of a
designated representative of the Owner.
2) Name, mailing address, street address and phone
number of the Agent of the Owner, if applicable.
3) The street address of the Premises being registered.
4) The number and types of units within the Premises
(Dwelling Units or Rooming Units) The Owner or Agent
shall notify the Code Enforcement Office of any changes
of the above information within thirty (30) days of such
change.
b. The initial application for registration and licensing shall
be made by personally filing an application with the Code
Enforcement Office by November 1, 2006. Thereafter, any
new applicant shall file an application before the Premises is
let for occupancy, or within thirty (30) days of becoming an
Owner of a currently registered Premises. One application per
property is required, as each property will receive its own
license.
c. Upon receipt of the initial application or any renewal
thereof and the payment of applicable fees as set forth in
Section 7 below, the Code Enforcement Office shall issue a
Rental Registration License to the Owner within thirty (30)
days of receipt of payment.
d. Each new license issued hereunder, and each renewal
license, shall expire on October 31 of each year. The Code
Enforcement Office shall mail license renewal applications to
the Owner or designated Agent on or before September 1 of
each year. Renewal applications and fees may be returned by
mail or in person to the Code Enforcement Office. A renewal
license will not be issued unless the application and
appropriate fee has been remitted.
SECTION 7. FEES.
a. Annual License Fee. There shall be a license fee for the
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initial license and an annual renewal fee thereafter. Fees shall
be assessed against and payable by the Owner in the amount
of $5.00 per Rental Unit, payable at the time of initial
registration and annual renewal, as more specifically set forth
in Section 6 above.
b. Occupancy Permit Fee. There shall be a one-time
occupancy permit fee of $10.00 for every new Occupant,
which is payable by the Occupant. For purposes of initial
registration under this ordinance, this fee shall be paid for all
current Occupants by November 1, 2006. Thereafter, prior to
occupying any Rental Unit, all Occupants shall obtain an
occupancy permit. It shall be the Occupant‟s responsibility to
submit an occupancy permit application to the Code
Enforcement Office, pay the fee and obtain the occupancy
permit. If there are multiple Occupants in a single Rental
Unit, each Occupant shall obtain his or her own permit.
Owner or Agent shall notify all prospective Occupants of this
requirement and shall not permit occupancy of a Rental Unit
unless the Occupant first obtains an occupancy permit. Each
occupancy permit issued is valid only for the Occupant for as
long as the Occupant continues to occupy the Rental Unit for
which such permit was applied. Any relocation to a different
Rental Unit requires a new occupancy permit. All Occupants
age 65 and older, with adequate proof of age, shall be exempt
from paying the permit fee, but shall be otherwise required to
comply with this section and the rest of the Ordinance.
1. Application for occupancy permits shall be made upon
forms furnished by the Code Enforcement Office for such
purpose and shall specifically require the following
minimum information:
a) Name of Occupant
b) Mailing address of Occupant
c) Street address of Rental Unit for which Occupant is
applying, if different from mailing address
d) Name of Landlord
e) Date of lease commencement
f) Proof of age if claiming exemption from the permit
fee
g) Proper identification showing proof of legal
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citizenship and/or residency
2. Upon receipt of the application and the payment of
applicable fees as set forth above, the Code Enforcement
Office shall issue an Occupancy Permit to the Occupant
immediately.
SECTION 8. ENFORCEMENT
a. The following persons are hereby authorized to enforce this
Ordinance:
1. The Chief of Police
2. Any Police Officer
3. Code Enforcement Officer
4. The Fire Chief
5. Deputy Fire Chief of the City of Hazleton.
6. Health Officer
7. Director of Public Works
b. The designation of any person to enforce this Ordinance or
authorization of an Inspector, when in writing, and signed by
a person authorized by Section 8.a to designate or authorize
an Inspector to enforce this Ordinance, shall be prima facie
evidence of such authority before the Magisterial District
Judge, Court of Common Pleas, or any other Court,
administrative body of the City, or of this commonwealth,
and the designating Director or Supervisor need not be called
as a witness thereto.
SECTION 9. FAILURE TO CORRECT VIOLATIONS.
If any Person shall fail, refuse or neglect to comply with a
notice of violation as set forth in Section 4 above, the City
shall have the right to file an enforcement action with the
Magisterial District Judge against any Person the City deems
to be in violation. If, after hearing, the Magisterial District
Judge determines that such Person or Persons are in violation,
the Magisterial District Judge may, at the City‟s request,
order the closure of the Rental Unit(s), or assess fines in
accordance with Section 10 below, until such violations are
corrected. Such order shall be stayed pending any appeal to
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the Court of Common Pleas of Luzerne County.
SECTION 10. FAILURE TO COMPLY WITH THIS
ORDINANCE; PENALTIES
a. Except as provided in subsections 10.b and 10.c below, any
Person who shall violate any provision of the Ordinance shall,
upon conviction thereof after notice and a hearing before the
Magisterial District Judge, be sentenced to pay a fine of not
less than $100.00 and not more than $300.00 plus costs, or
imprisonment for a term not to exceed ninety (90) days in
default of payment. Every day that a violation of this
Ordinance continues shall constitute a separate offense,
provided, however, that failure to register or renew or pay
appropriate fees in a timely manner shall not constitute a
continuing offense but shall be a single offense not subject to
daily fines.
b. Any Owner or Agent who shall allow any Occupant to
occupy a Rental Unit without first obtaining an occupancy
permit is in violation of Section 7.b and shall, upon
conviction thereof after notice and a hearing before the
Magisterial District Judge, be sentenced to pay a fine of
$1,000 for each Occupant that does not have an occupancy
permit and $100 per Occupant per day for each day that
Owner or Agent continues to allow each such Occupant to
occupy the Rental Unit without an occupancy permit after
Owner or Agent is given notice of such violation pursuant to
Section 4 above. Owner or Agent shall not be held liable for
the actions of Occupants who allow additional occupancy in
any Rental Unit without the Owner or Agent‟s written
permission, provided that Owner or Agent takes reasonable
steps to remove or register such unauthorized Occupant(s)
within ten (10) days of learning of their unauthorized
occupancy in the Rental Unit.
c. Any Occupant having an occupancy permit but who allows
additional occupancy in a Rental Unit without first obtaining
the written permission of the Owner or Agent and without
requiring each such additional Occupant to obtain his or her
own occupancy permit is in violation of Section 7.b of this
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ordinance and shall, upon conviction thereof after notice and
a hearing before the Magisterial District Judge, be sentenced
to pay a fine of $1,000 for each additional Occupant
permitted by Occupant that does not have an occupancy
permit and $100 per additional Occupant per day for each day
that Occupant continues to allow each such additional
Occupant to occupy the Rental Unit without an occupancy
permit after Occupant is given written notice of such violation
by Owner or Agent or pursuant to Section 4 above.
SECTION 11. APPLICABILITY AND EXEMPTIONS TO
THE ORDINANCE
The provisions of the ordinance shall not apply to the
following properties, which are exempt from registration and
license requirements:
a. Hotels, Motels and Dormitories.
b. Rental Units owned by Public Authorities as defined under
the Pennsylvania Municipal Authorities Act, and Dwelling
Units that are part of an elderly housing multi-unit building
which is 75% occupied by individuals over the age of sixty-
five.
c. Multi-dwelling units that operate under Internal Revenue
Service Code Section 42 concerning entities that operate with
an elderly component.
d. Properties which consist of a double home, half of which is
let for occupancy and half of which is Owner-occupied as the
Owner‟s residence.
SECTION 12. CONFIDENTIALITY OF INFORMATION
All registration information collected by the City under this
Ordinance shall be maintained as confidential and shall not be
disseminated or released to any individual, group or
organization for any purpose except as provided herein or
required by law. Information may be released only to
authorized individuals when required during the course of an
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official City, state or federal investigation or inquiry.
SECTION 13. SAVINGS CLAUSE
This ordinance shall not affect violations of any other
ordinance, code or regulation existing prior to the effective
date thereof and any such violations shall be governed and
shall continue to be punishable to the full extent of the law
under the provisions of those ordinances, codes or regulations
in effect at the time the violation was committed.
SECTION 14. SEVERABILITY
If any section, clause, provision or portion of this Ordinance
shall be held invalid or unconstitutional by any Court of
competent jurisdiction, such decision shall not affect any
other section, clause, provision or portion of this Ordinance
so long as it remains legally enforceable without the invalid
portion. The City reserves the right to amend this Ordinance
or any portion thereof from time to time as it shall deem
advisable in the best interest of the promotion of the purposes
and intent of this Ordinance, and the effective administration
thereof.
SECTION 15. EFFECTIVE DATE
This Ordinance shall become effective immediately upon
approval. This Ordinance repeals Ordinance number 2004-11
and replaces same in its entirety.
SECTION 16.
This Ordinance is enacted by the Council of the City of
Hazleton under the authority of the Act of Legislature, April
13, 1972, Act No. 62, known as the “Home Rule Charter and
Optional Plans Law”, and all other laws enforceable the State
of Pennsylvania.
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