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8th Circuit

Keller v. City of Fremont (8th Circuit, June 28, 2013)

LOKEN, Colloton (concur), Bright (dissent)

Summary: The Eighth Circuit reversed the district court’s holding that the Fremont, Nebraska ordinance, which requires renters to obtain a city occupancy license that includes an immigration background check, was not facially impermissible on preemption grounds.  The ordinance requires all renters, citizens and noncitizens, to obtain such a license.  The local police then seek information on an individual’s immigration status from DHS.  If DHS cannot confirm that the individual is in a lawful status, both the lessor and lessee receive a deficiency notice, which sets in motion an appeals process, revocation of an issued occupancy license andthe possibility of a $100 fine per violation.

The Court also reversed the district court’s determination that the Fremont Ordinance violated the Fair Housing Act (FHA) as causing an unlawful disparate impact on Latinos. The majority stated: “We find no hint in the FHA’s history and purpose that such a law or ordinance, which is valid in all other respects, violates the FHA if local statistics can be gathered to show that a disproportionate number of the adversely affected aliens are members of a particular ethnic group.”  The Court further found that Fremont had a legitimate local interest in restricting the number of unlawful immigrants living in its city and that the Plaintiffs have not shown an alternative viable means by which this legitimate interest could be achieved.

Judge Colloton concurred in the majority opinion but wouyld have concluded that the Plaintiffs did not have standing to raise the FHA claims.

Judge Bright strongly dissented concluding that the Fremont Ordinance was preempted because it conflicted with the Federal Government’s sole authority to determine who may or may not reside in the United States. See United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012), cert. denied, 133 S. Ct. 2022 (Apr. 29, 2013); Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802 (5th Cir.), vacated for reh’g en banc, 688 F.3d 801 (5th Cir. 2012); Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010), vacated and remanded for further consideration, 131 S. Ct. 2958 (2011).

Read the opinion here.

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