Nice Try New Jersey: Court Says Landlords Under No Legal Obligation to Inquire about Immigration Status
By Juan Cartagena
President and General Counsel
Immigration policy is a complex web of competing local interests and national norms that has seen its share of debate in New Jersey in recent years. As the federal administration struggles to pass comprehensive immigration reform some New Jersey governmental units have impatiently jumped into the fray to either limit routine work encounters by day laborers (Freehold), expand the workload of local law enforcement to include immigration enforcement (Morristown) or delineate the appropriateness of referrals to immigration authorities (NJ Attorney General’s Office). As important as work, and education, public safety and health, is to the state’s immigrant community, no area of daily life is as tied to presence in this country as is housing. Regulating the housing market by definition regulates the presence of immigrants. And on that score, New Jersey recently added an important chapter to the protection of the civil rights of Latino and immigrant households in a federal court decision last month.
A landlord in Plainfield was sued in a novel application of federal racketeering laws by one its tenants who alleged that the landlord rented apartments disregarding a prospective tenant’s immigration status, knowingly soliciting undocumented immigrants for rentals and accepting flawed documentation as to their lawful immigration status. By refusing to investigate the lawfulness of its tenants’ presence in this country, the landlord allegedly harbored undocumented persons in Plainfield and induced others to come to this country illegally. And all of it, presumably, as an illegal racketeering enterprise under the RICO laws.
The case, Bolmer v. Connelly, was unprecedented, and if victorious would have completely altered landlord – tenant relations. Landlords would become immigration agents and forced to navigate the intricacies of immigration law to determine who is lawfully present – and if they got it wrong, criminal penalties would follow. Tenants would be subject to increased housing discrimination and potential homelessness with a disproportionate number of Latinos, lawful permanent residents and citizens alike, all subject to the worse aspects of attempting to import complex immigration expertise to untrained realty owners in the private sector.
LatinoJustice PRLDEF, the organization I direct, welcomed the opportunity to address the court to support the landlord and halt this misguided attempt to decentralize immigration enforcement of what is essentially a national issue. Our client was the Latin American Coalition, a nonprofit organization in Plainfield whose members include tenants, residents and property owners in the city and whose mission is to provide social services to Latinos in the area. Before the final arguments were made to the federal court the defendant landlord was unable to participate after initiating bankruptcy proceedings and the court invited our team of attorneys to take the lead on the defense. We prepared our arguments and with the help of a local law firm, Duane Morris, presented a vigorous defense to stop the extension of racketeering laws to routine landlord – tenant encounters. Last month we were vindicated when Judge Julio Fuentes of the U.S. Court of Appeals wrote an opinion recognizing that renting is not harboring in the criminal sense and dismissed the RICO claims.
Often lost in the immigration debates at the state level is that Congress has declined to establish criminal sanctions related to the mere presence of unauthorized persons in the country. A corollary to this scheme is that the Executive Branch frequently exercises its discretion not to remove persons who may lack lawful immigration status for a host of economic and humanitarian reasons. It was in this context that the lawsuit filed against Plainfield New Jersey property owners was lodged as part of a concerted effort to push the courts to make it difficult for New Jersey’s immigrants to assimilate into the social fabric through lawful means. The plaintiffs in Bolmer were represented by Deasey, Mahoney & Valentini, a law firm that unsuccessfully represented the City of Hazelton, Pennsylvania in support of its anti-immigrant ordinance against day laborers and tenants in that town. The Immigration Reform Law Institute also lent its support to the case and the Institute is tied to the Federation of American Immigration Reform, founded in the 1980s by John Tanton who has funding ties to modern day eugenics movement.
Thus Plainfield was caught in the middle of a unsavory national effort to localize immigration enforcement when the only sane and rational response to immigration in our ever increasing flat world of globalization is a national, federal response. Luckily for New Jersey’s Latino communities the federal courts stepped in and stopped what would have been a major housing crisis in the Garden State.