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Media Alerts - Lozano v. City of Hazleton - Third Circuit
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August 5, 2013
  Lozano v. City of Hazleton - Third Circuit
Headline: Hazelton Employment and Housing Ordinances Preempted By Federal Immigration Law

Area of Law: Immigration Law and Constitutional Law

Issue Presented: Does federal law preempt ordinances enacted by the City of Hazelton, which aim to prevent unauthorized aliens from attaining employment or renting housing within the City?

Brief Summary:

The City of Hazleton appealed the district court's judgment permanently prohibiting enforcement of two Hazleton ordinances that prevent unauthorized aliens from attaining employment and renting housing within the City. The Third Circuit previously upheld the permanent injunction, which was later appealed to the Supreme Court. The Supreme Court remanded the case to the Third Circuit for reconsideration in light of case law showing the extent to which federal immigration law preempts state laws regarding the treatment of unauthorized aliens. The Third Circuit subsequently affirmed the District Court's decision on the ground that federal immigration law preempted the conflicting ordinances Hazelton sought to institute.

Extended Summary:

Between July 2006 and March 2007, the City of Hazleton enacted the Illegal Immigration Relief Act Ordinance (IIRAO) and the Rental Registration Ordinance (RO). These ordinances aimed to regulate the employment and rental of housing to unlawful aliens within Hazleton. Under the IIRAO, it is unlawful for any person to knowingly hire, recruit, employ, instruct, dispatch or permit an unauthorized person to work within the City. The statute also mandates that violators of the ordinance be subject to sanctions. The IIRAO also makes it unlawful for Hazleton property owners to "harbor" unauthorized aliens, which includes knowingly or recklessly leasing or renting a dwelling within City limits to an unauthorized alien. The RO provides that renters over age eighteen must first obtain an occupancy permit. This permit is only granted if the applicant provides proof of legal citizenship and/or residency.

In response to suits brought by many different plaintiffs, the district court previously found the ordinances invalid and permanently enjoined their enforcement based on the Supremacy Clause of the United States Constitution.

Following remand from the Supreme Court, and after reviewing subsequent Supreme Court authority, the Third Circuit found that Hazelton's ordinances conflicted with federal law and were preempted. The Court determined that IIRAO's employment restrictions exceeded those authorized by the federal government in the Immigration Reform and Control Act of 1986 (IRCA). The federal government only restricts hiring, recruiting and paid referrals for employment in the United States. In contrast, the Hazelton ordinance reaches beyond the traditional employee-employer relationship and also impacts independent contractors and other non-employees.

With respect to housing, the Third Circuit first noted that important national interests are implicated when local governments try to regulate immigration; therefore such regulation should be left to the federal government. The Third Circuit held that Hazelton's housing provisions were preempted by federal law because they attempted to regulate residency based solely on the applicant's immigration status. The Court also noted that the issue of "harboring" illegal aliens is one that is solely within the province of the federal government. That is, the breadth of federal laws on the subject makes clear that the federal government has a dominant interest in the area of alien harboring. Accordingly, the Third Circuit again affirmed the grant of a permanent injunction against the enforcement of the Hazelton ordinances.

For the full length opinion go to:

Panel: Chief Judge McKee and Circuit Judges Nygaard and Vanaskie

Argument Date: May 30, 2013

Argument Location:

Date of Issued Opinion: July 26, 2013

Docket No.: 07-3531

Decided: District Court decision affirmed


Counsel for Defendant-Appellants- Kris W. Kobach, Esq. (ARGUED); Michael Hethmon, Esq

Counsel for Plaintiffs-Appellees- Omar Jadwat, Esq. (ARGUED), Lee Gelernt, Esq.; Lucas Guttentag, Esq.; Jennifer Chang, Esq.; Witold J. Walczak, Esq.; Jackson Chin, Esq.; Foster Maer, Esq.; Ghita Schwarz, Esq.; Thomas B. Fiddler, Esq.; Elena Park, Esq.; Ilan Rosenberg, Esq.; Thomas G. Wilkinson, Esq.; Shamaine A. Daniels, Esq.

Counsel for Amicus on Behalf of Appellants- Damon Scott; Paul J. Orfanedes, Esq.; James F. Peterson, Esq.; Richard A. Samp, Esq.; Andrew L. Schlafly, Esq.

Counsel for Amici on Behalf of Appellees- Robin S. Conrad, Esq.; Carter G. Phillips, Esq.; Eric A. Shumsky, Esq.; Eric A. Shumsky, Esq.; Charles D. Weisselberg, Esq.; Jacob S. Pultman, Esq.; John M. West, Esq.; Mark D. McPherson, Esq.; Burt M. Rublin, Esq.; Nancy Winkelman, Esq.; Kenneth J. Pfaehler, Esq.; Lawrence H. Fisher, Esq.

Author of Opinion: Chief Judge McKee

Circuit: Third Circuit

Case Alert Author: Rosanne Breakenridge

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 08/05/2013 12:22 PM     3rd Circuit  

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