A PATCHWORK QUILT CAN BE comforting on a cold winter evening. But the United States' current patchwork immigration policy—various state and local initiatives coupled with federal regulatory enforcement and litigation—benefits no one.
Congress has failed to pass comprehensive immigration reform that combines a rational approach to documenting the undocumented individuals currently in the country with employment eligibility screening and border security. That failure affects apartment firms in their dual roles as employers and housing providers. It leaves them subject to aggressive regulatory enforcement at the federal, state, and local levels for potentially hiring undocumented workers. Also, firms face potential liability as housing providers; in fact, this year, the first-ever federal lawsuit for renting to illegal immigrants was filed.
The National Multi Housing Council has made immigration reform a top priority. Our message to the new Congress and new president is clear: Now is the time to pass comprehensive immigration reform.
AS EMPLOYERS Unable to pass comprehensive immigration reform, lawmakers introduced a number of “enforcement only” bills. In 2008, these proposals primarily involved the E-Verify program, the federal government's Internet-based screening system that employers use to determine whether an employee is legally authorized to work here. Currently, the system is voluntary for private employers, although several bills seek to make it mandatory, and recent regulations now require most federal government contractors to use it.
NMHC supports the concept of a federal employment verification system but opposes mandatory participation since the existing system is prone to error and raises privacy and discrimination concerns. Moreover, E-Verify relies on identification sources such as driver's licenses, which remain subject to fraud and theft. The Department of Homeland Security (DHS) is vigorously enforcing existing regulations by targeting employers who allegedly fail to verify an employee's legal status to work. But this could change under President Obama.
AS HOUSING PROVIDERS The most controversial enforcement actions target apartment firms for housing illegal immigrants. In 2007, a number of localities enacted ordinances to punish owners who rent to residents without documentation. Fortunately, they have largely been withdrawn or blocked by the courts.
But the issue has not gone away. Recently, two unconventional lawsuits targeting apartment firms for renting to illegal immigrants emerged. The first, filed by the federal government in 2008, charged two Kentucky apartment owners with violating the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Immigration Reform and Control Act's (IRCA) anti-harboring provisions. RICO was enacted to target organized crime, while IRCA is typically used to cover human trafficking, not housing.
The indictment alleged that the owners failed to check residents' immigration status and encouraged the residents to stay in the United States illegally. The owner testified that as a cost-saving measure he stopped running credit checks and instead required only proof of employment. Thankfully, the jury cleared the owners, but it remains to be seen whether the government might be able to succeed using this approach in the future.
A separate lawsuit was filed by the Immigration Reform Law Institute (IRLI), a Washington, D.C.-based anti-immigration group. It alleges that a New Jersey apartment firm violated RICO, the Fair Housing Act, and various New Jersey state laws by conspiring to rent apartments to undocumented immigrants.
IRLI charges that the company “devised a scheme” that identified low-income immigrants and steered them, by immigration status, race, and source of income, to decaying properties when it was unable to lease units. The complaint says there were so many illegal immigrants involved that the apartment owner's actions amount to harboring and that rent collected from those residents was money laundering under RICO. The firm asked to dismiss the case, saying the complaint is based on the misguided premise that it is a crime for an apartment owner to rent to an undocumented resident.
NMHC maintains that no federal statute—IRCA included—requires an apartment firm to check an applicant's immigration status and that owners are ill equipped to do so since many documents are unreliable, and there is no definitive way to verify such information.
OUTLOOK FOR REFORM All things considered, the new administration and a stronger Democratic majority in Congress mean a more favorable atmosphere for immigration reform. Latino voters were influential in Obama's election, and Obama has voiced support for comprehensive reform.
Of course, Obama's commitment to confront the politically charged issue of immigration reform may be complicated by growing unemployment. A proposal that could exacerbate the competition for jobs may not appeal to those hardest hit by the economic downturn.
BETSY FEIGIN BEFUS is the vice president of employment policy and counsel at the National Multi Housing Council in Washington, D.C.