Anti-Immigrant Housing Ordinances and Comprehensive Reform by Daniel Eduardo Guzman


No fewer than 100 counties and municipalities across the nation have passed anti-immigrant housing ordinances (AIHOs) that are designed to expel or discourage undocumented immigrants from living in their communities.[1] The most infamous of these municipal ordinances, Hazleton, Pennsylvania’s Illegal Immigration Relief Act Ordinance (IIRA), was passed in 2006.[2] In addition to Hazleton-style IIRAs, AIHOs without language explicitly targeting immigrants are also fairly common.  Seeking the same ends as municipalities that employ Hazleton-style AIHOs, municipalities use housing provisions addressing “overcrowding,” “maximum occupancy” and family make-up to drive undocumented immigrants out of their communities.

The latter AIHOs, by excluding language that specifically implicates immigrants, are more legally robust.  And since courts have repeatedly concluded that federal law preempts Hazleton-style AIHOs, municipalities seeking to expel immigrants are more likely to use occupancy ordinances to meet those same, anti-immigrant ends.  This Blog post argues that an effective challenge to all AIHOs and Hazleton-style and occupancy ordinances, must reserve a role for both states and the federal government.  Part I of this Blog post examines Hazleton’s aforementioned AIHO and occupancy ordinances in Prince William County, Virginia.  Part II reviews legal theories used to challenge AIHOs.  Part III offers alternative legal and public policy approaches to challenging AIHOs.  Part IV provides the Blog post’s conclusion: AIHOs are best reformed by acknowledging that federal, state, and local governments each have a distinct role to perform in immigration law.

I. Anti-Immigrant Ordinances

Between 2006 and 2007, more than 120 municipalities and counties passed or considered passing AIHOs like Hazleton’s IIRA.[3] Courts have struck down the few Hazleton-style AIHOs that activists challenged in federal court by applying preemption doctrine.[4] A state or local ordinance is preempted by federal law if (1) it “is a regulation of immigration,” (2) Congress intended to occupy the entire field of law that is the subject of the statute, or (3) a state law conflicts with “the execution of the full purposes and objectives of Congress”.[5] Commentators refer to the latter two criteria as field preemption and conflict preemption, respectively.  Courts have concluded that federal law preempts a state or local law if it meets any of these three tests because the state or local law, according to the court, has regulated immigration.[6]

Hazleton, Pennsylvania, passed the IIRA in July of 2006, requiring all apartment dwellers to provide proof of legal citizenship or residency to retain an occupancy permit.[7] The United State District Court for the Middle District of Pennsylvania struck down the IIRA the following year.[8] The court reasoned that the IIRA ignored the reality that the Department of Homeland Security permits some persons to remain in the United States and seek employment and housing while awaiting the clarification of their status by the federal government.[9] The Third Circuit affirmed, holding that the housing provision of the Hazleton ordinance was an impermissible regulation of immigration.[10] The Third Circuit also addressed the larger ramifications of a decision that would conclude that anti-immigrant provisions were not preempted.  In particular, the court noted that, despite the Hazleton ordinance’s narrow geographical application to the city itself, a conclusion of non-preemption could extend Hazleton-like AIHOs across the nation and ultimately “eviscerate” the federal government’s regulation of immigration.[11]

Occupancy ordinances, in fact, represent the greatest challenge to contesting AIHOs because courts are deferential in their treatment of such ordinances.[12] Those ordinances have also been reasonably effective because studies have shown that immigrant families, and Latino immigrant families in particular, tend to maintain larger households than the average American household.[13] In November 2007, Loudon County, Virginia’s Board of Supervisors released a study of occupancy and overcrowding complaints for the county and made recommendations.[14] The Loudon County Board found that the county’s zoning enforcement team responded to more than 1,000 complaints during the fiscal year of 2007.[15] Partly in response to these complaints, zoning enforcement staff conducted more than 7,246 residential inspections.[16] Overcrowding complaints for the same period totaled more than 200.[17] Loudon County also amended its overcrowding and family ordinance provisions to limit the number of unrelated adults by limiting the number of people in a single-family dwelling unit to four,[18] and requiring fifty feet or more per person per bedroom.[19] In fiscal year 2008, residents filed 178 overcrowding complaints and the County projected an increase of greater than 50%.[20] Of the complaints, roughly 80% did not find a single violation of the zoning ordinance pursuant to the new family definition or the new overcrowding provisions.[21]

II. The Current Legal Regime and Alternative Policy Approaches

As the court rulings in Hazleton demonstrate, preemption doctrine is an effective tool against Hazleton-style AIHOs.  Despite reservations by some scholars as to the future effectiveness of preemption doctrine,[22] thus far the doctrine, at least in the housing context, has served as a relatively successful basis for challenges to AIHOs.[23] Preemption doctrine is inapplicable to facially-neutral housing ordinances, however.

The Fair Housing Act (FHA), at first blush, appears to be where parties challenging occupancy ordinances could turn in order to bring their claims.  Yet despite its significant protection against discrimination, the Fair Housing Act (FHA) is not a very effective tool against occupancy ordinances.[24] Most courts recognize an FHA-based cause of action for disparate impact in the housing sector.[25] Generally, disparate impact analysis “focuses on facially neutral policies or practices that may have a discriminatory effect.”[26] Such claims, however, are notoriously difficult to prove because a plaintiff has to show that the discriminatory “practice ‘actually or predictably results in . . . discrimination’”[27] and that the facially neutral policy and discriminatory effect are causally connected.[28] Moreover, if defendants are able to prove that their actions furthered a legitimate, bona fide governmental interest and that the governmental authority had no alternative, the disparate impact claim fails.[29] The FHA’s legal utility is further limited in situations involving maximum occupancy ordinances.  According to the United States Supreme Court, the FHA’s § 3607(b)(1) exempts from discriminatory impact analysis any maximum-occupancy restrictions that are “plainly and unmistakably” used to prevent overcrowding.[30] Moreover, if a city adopts the regulation pursuant to state police powers, the regulation is presumptively valid.[31]

IV. Alternative Legal and Public Policy Strategies

Because of the limited utility of legal theories plaintiffs have used to challenge AIHOs, alternative legal and public policy strategies might significantly contribute to neutralizing anti-immigrant actions at the local level.  Legal alternatives, in addition to preemption doctrine, must challenge occupancy ordinances specifically enforced against immigrants while respecting local control over property maintenance.  In order to be effective, a public policy strategy must balance national interests in neutralizing anti-immigrant legislation and sentiment while respecting state police power—an undoubtedly Herculean feat.[32].

A starting point for a legal alternative would be for Congress to reinforce immigration laws by applying a stricter form of preemption doctrine.  Congressional language could clearly state that any state or local ordinance that plainly implicates immigrants (both legal and undocumented), targets immigrants, or attempts to police immigration, is invalid and explicitly functions as an impermissible regulation of immigration pursuant to the first test in preemption doctrine.[33] As an alternative, Congress could use the second test, field preemption, to declare its intent to “effect a complete ouster of state power—including state power to promulgate laws not in conflict with federal laws with respect to the subject matter which the statute attempts to regulate.“[34] If court and administrative agency interpretation of such legislation could withstand the inevitable challenges, reinforcing preemption doctrine with congressional action might prove very effective.  Although the disparate-impact test is not a reliable tool in challenging occupancy ordinances, the more permissive Second Circuit disparate-impact test should be adopted by all circuits.  This would eliminate the confusion of the Arlington Heights II test by removing the question of whether or not evidence of intentional discrimination would be necessary to prove a claim of disparate impact.[35]

A successful public policy strategy involving housing and immigration must grapple with (1) state and federal interests and (2) the effect that anti-immigrant ordinances, especially in the housing sector, have on lawfully present immigrants.  One useful alternative solution would be for Congress to mandate that states implement state fair housing acts that extend protection to immigrants by including alienage and legal status as protected from discrimination or by states adopting statewide housing codes.[36] Adopting statewide housing codes or occupancy legislation would bring to bear state preemption challenges against rogue county and city governments while allowing cities to handle matters like housing that they have generally seen as a state matter.[37]


Local efforts to curb immigrant-friendly housing may simply force both the positive and negative externalities of immigration onto other communities.[38] In essence, cities that pass AIHOs are attempting to free-ride on the labor and economic benefit of immigrants by forcing other cities and counties with less restrictive property maintenance codes to bear all or most of the costs.  State laws enacted with the aforementioned changes in mind would advance the interests of both immigrants and authorities at the federal, state, and local levels.  Immigrants would be afforded substantially more protection than the current legal regime provides.  More importantly, greater protection of immigrants’ rights could conceivably relieve the current tension between immigration and housing and remove at least one element of the immigration controversy from the public debate.[39]

[1] See Fair Immigration Reform Movement, Database of Recent Local Ordinances on Immigration, available at [hereinafter Local Ordinance Database].

[2] See Lozano v. Hazleton, 496 F. Supp. 2d 477, 484–85 (M.D. Pa. 2007).

[3] See Local Ordinance Database, supra note 1.

[4] See, e.g., Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 530–31 (M.D. Pa. 2007); Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 764 (N.D. Tex. 2007).  See generally Rigel Oliveri, Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination, 62 Vand. L. Rev. 55 (2009) (arguing that the Fair Housing Act should be expanded to include protections for alienage and legal status in order to reinforce national origin protections in cities that pass AIHOs).

[5] Villas at Parkside Partners, 496 F. Supp. 2d at 765 (citing League of United Latin American Citizens (LULAC) v. Wilson, 908 F. Supp. 755, 768 (C.D. Cal. 1995).

[6] Villas at Parkside Partners, 496 F. Supp. 2d at 765 (citing LULAC, 908 F. Supp. at 768).

[7] Ordinance 2006-13 § 7(b)(1)(g) Establishing a Registration Program for Residential Rental Properties in Hazleton, PA 08/15/2006, available at

[8] Lozano, 496 F. Supp. 2d 477 (M.D. Pa. 2007); Oliveri, supra note 5, at 60.

[9] Lozano, 496 F. Supp. 2d at 530–31.

[10] Lozano v. City of Hazleton (Lozano II), 2010 WL 3504538 (3rd Cir. Sept. 9, 2010).  The court summarily concluded that Hazleton was in violation of the first prong of De Canas v. Bica, 424 U.S. 351 (1976), by stating that “it is clear that [Hazleton] has attempted to usurp authority that the Constitution has placed beyond the vicissitudes of local governments.”  Lozano II, 2010 WL 3504538 at *41.

[11] Id. at *42.  The court stated: “Again, it is not only Hazleton’s ordinance that we must consider.  If Hazleton can regulate as it has here, then so could every other state or locality.”  Id. (citing Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 373 (2008)). 

[12] See generally City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) (“In sum, rules that cap the total number of occupants in order to prevent overcrowding of a dwelling ‘plainly and unmistakably’ . . . fall within § 3607(b)(1)’s absolute exemption from the FHA’s governance; rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarters can contain, do not.” (citation omitted)). 

[13] Even a cursory glance at the statistics demonstrates the significantly higher household size of Hispanic origin families.  See, e.g., Average Household Size by Race/Ethnicity,, (last visited Aug. 14, 2010). 

[14] See Illegal Immigration Issues, Board of Supervisors, Comm. of the Whole, Action Item 1, Nov. 29, 2007, [hereinafter Loudon County Immigration Issues].

[15] See id. at 4.

[16] Id.

[17] Id.

[18] See id.

[19] See id.

[20] See id.

[21] See id.

[22] See Oliveri, supra note 6, at 68.

[23] See Lozano v. City of Hazleton, 2010 WL 3504538, at *40 (3rd Cir. Sept. 9, 2010) [hereinafter Lozano II].  But see Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2008) (holding that federal law did not preempt an Arizona statute that made the use of E-Verify mandatory was not expressly preempted by the Immigration Reform and Control Act, nor were they impliedly preempted by Congress).  The Supreme Court heard argument in Chamber of Commerce v. Candelaria, which was an appeal from the Ninth Circuit decision in Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2008). Candelaria, is distinguishable from Lozano II at least in the housing context because the former does not apply to housing.  Preemption doctrine, as applied in the employment context, has a much more complicated past.  For an assessment of preemption doctrine as applied to the employment of unauthorized immigrants, see Lozano v. City of Hazleton [Lozano II], 2010 WL 3504538, at *40 (3rd Cir. Sept. 9, 2010) (concluding that Hazleton ordinance’s employment provisions were preempted, even after a review of Gray v. City of Valley Park, 2008 WL 294294 (E.D. Mo. Jan. 31, 2008) and Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2008)); Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2008) (holding that federal law did not preempt an Arizona statute that made the use of E-Verify mandatory was not expressly preempted by the Immigration Reform and Control Act, nor were they impliedly preempted by Congress); Gray v. City of Valley Park, 2008 WL 294294, at **8, 10, 12 (E.D. Mo. Jan. 31, 2008) (holding that Valley Park ordinance governing issuance and denial of business permits not preempted).   

[24] See 42 U.S.C. §§ 3601–3619, 3631 (2006).

[25] Robert C. Ellickson & Vicki L. Been, Land Use Controls 727 (3d ed. 2005).

[26] Tsombanidis v. West Haven Fire Dept., 352 F.3d 565, 575 (2d Cir. 2003).

[27] Id. at 575 (quoting Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 90 (2d Cir. 2000)).

[28] Id. at 575 (citing Hack, 237 F.3d at 90).

[29] Ellickson & Been, supra note 27 at 708 (citing as an example Langlois v. Abington Hous. Auth., 207 F.3d 43 (1st Cir. 2000)).

[30] See City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 734 (1995) (“Section 3607(b)(1)’s language-‘restrictions regarding the maximum number of occupants permitted to occupy a dwelling’-surely encompasses maximum occupancy restrictions. . . . In sum, rules that cap the total number of occupants in order to prevent overcrowding of a dwelling “plainly and unmistakably,” fall within § 3607(b)(1)’s absolute exemption from the FHA’s governance”) (citations omitted); Ellickson & Been, supra note 27, at 728.

[31] Fair Hous. Advocates Ass’n, Inc. v. City of Richmond Heights, 209 F.3d 626, 635 (6th Cir. 2000).

[32] Cristina Rodríguez has advanced a similar argument in her article, but she goes much farther by arguing that immigration should be seen as a state interest.  She states that “immigration regulation should be included in the list of quintessentially state interests, such as education, crime control, and the regulation of health, safety, and welfare, not just because immigration affects each of those interests, but also because managing immigrant movement is itself a state interest.” See Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567, 571 (2008). My argument here is much narrower as I focus on anti-immigrant housing ordinances (AIHOs).

[33] Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 765 (N.D. Tex. 2007) (citing League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 768 (C.D. Cal. 1995)).  Professor Oliveri makes a similar argument, stating that “Congress should enact legislation explicitly preempting states and localities from enacting such restrictions.”  Oliver, supra note 6 at 121.  But Professor Oliveri’s argument is based on his argument the preemption doctrine is inherently unstable and not terribly effective as a tool for challenging anti-immigrant housing ordinances.  He states, in pertinent part:

[P]reemption is a risky and unsatisfying approach for several reasons.  First, there is no guarantee that future courts will find these ordinances preempted. The Farmers Branch ruling appears to be limited to its facts, and it is entirely possible that future courts will break with Hazleton and find that local AII housing provisions are not preempted at all.  Express field preemption is clearly out of the question given the absence of federal law on immigration-related housing restrictions.  Implied field preemption is also problematic because while the power to regulate immigration has historically been a federal prerogative, states and municipalities have long been recognized to possess the authority to regulate housing as part of their police power.

Oliveri, supra note 6, at 68­69.  His conclusions, with respect to Farmers Branch have proven incorrect based on the most recent decision. See Villas at Parkside Partners v. City of Farmers Branch, 701 F. Supp. 2d 835 (2010) (concluding that federal law preempted the most recent draft of the Farmers branch AIHO).

[34] Villas at Parkside Partners v. City of Farmers Branch, 701 F. Supp. 2d 835 (2010) (quoting Villas at Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858, 866–67 (N.D. Tex. 2008)).

[35] See Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights [hereinafter Arlington Heights II], 558 F.2d 1283, 1290 (1977); Oliveri, supra note 6, at 95.

[36] Professor Oliveri suggests a similar argument, but contends that protection for alienage and national origin classifications should be extended through the FHA.  See Oliveri supra note 6, at 122–23.

[37] In Briseno v. City of Santa Ana, a Santa Ana resident challenged the city’s occupancy requirements for dwelling units on preemption grounds because the ordinance was stricter than the state occupancy requirements.  6 Cal. App. 4th [I think this may be the wrong reporter] 1378, 1381 (1992).  The court concluded that the state legislature intended to preempt local occupancy ordinances.  Id.

[38] See Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567, 572 (2008) (arguing that both local and federal have an authority to play in the immigration process).

[39] Clearly, housing is only one piece of the immigration controversy.  State and local authorities target immigrants through employment restrictions, law enforcement, language restrictions, and health care, to name a few.  Professor Rodríguez argues, on the other hand, that the current immigration controversy “represent[s] a temporary and actually quite limited outburst brought on by unusually high levels of unauthorized immigration and a hyperactive media during a period of heightened national awareness of immigration.”  Rodríguez, supra note 42, at 595.  She adds that “[o]nce the national debate has subsided (particularly if Congress passes meaningful immigration reform in the next two years) most local communities will revert to compromise positions of some sort, perhaps participating in 287(g) agreements while abandoning city-led enforcement measures such as landlord penalties.”  Id.