By Josh Deere

At the risk of stating the stupefyingly obvious, Arizona is currently at the bullseye center of the national immigration debate.  We have heard nearly every news anchor, talk show host, politician, movie star, and even athlete weigh in on Arizona’s new immigration law, Senate Bill 1070.  No matter which side you are on in the debate, there is no doubt that not only SB 1070, but immigration issues in general, have a significant effect on many aspects of the lives of Arizonans.  The residential rental industry is certainly no exception.

Among the many questions that arise quite often is whether it is legal to rent to an illegal immigrant.  As with many legal questions, the answer is not necessarily black and white, and merits a bit of discussion.

Immigration law is primarily the realm of the federal government.  So, in analyzing any consequences that may apply to landlords for renting to an illegal immigrant, one should first consider federal immigration law.  One federal statute in particular, 8 U.S.C.A. § 1324, states that it is illegal to “harbor” an illegal immigrant, or to encourage an illegal immigrant to stay in the United States, knowing that the person is in the U.S. illegally.  What does it mean to “harbor”?   That particular statute does not define the term, so one must look to how federal courts have interpreted that provision.

Several federal courts have held that “harboring” is not just limited to secretely and purposefully hiding an illegal immigrant, and can even include simply providing shelter to an illegal alien.  In 1976, a Ninth Circuit Federal Court held that “harbor” means to knowingly provide shelter to illegal aliens, and that the offending person’s acts do not necessarily have to be bad enough to be considered smuggling.  The Ninth Circuit’s decisions are particularly significant to Arizonans because Arizona falls within the Ninth Judicial Circuit and, therefore, that Court’s decisions directly affect the interpretation of the law in this state.

In 2004, some courts’ interpretation of “harbor” began to loosen up a bit.  In that year, the Ninth Circuit held that in order to convict a defendant under this statute, the government would have to prove not just that the defendant provided shelter to the illegal immigrant, but that the actions of the defendant were done with the intent to harbor the alien secretly or in hiding.  This interpretation would clearly be beneficial to the everyday landlord, as most landlords have no ill intention in renting the premises other than making a profit.  In May of 2007, however, a Ninth Circuit Court held that “harbor” means simply “to give shelter or refuge to” or “to be the home or habitat of”, which once again constricts the application of the law against the interests of the common landlord.  Even more daunting, the potential consequences for violating the statute are rather steep, including significant fines and sentencing of up to five years in prison.

So, in case you suddenly find yourself in a state of panic and are afraid to rent to anyone other than your best friends’ kids whose births you witnessed with your own eyes on American soil, I should probably now emphasize that it is not nearly as bad as it may seem.  In all the research I have done, I have never found a federal case where a common, everyday landlord was prosecuted under 8 U.S.C.A. § 1324 for simply renting to an illegal immigrant.  Furthermore, and probably more importantly, the statute states that in order to convict a person of harboring an illegal immigrant, the government would have to show that the person was doing so “knowingly or in reckless disregard of the fact” that the immigrant was, in fact, illegal.  In most landlord-tenant relationships, however, the landlord does not inquire as to the immigration status of the rental applicant, usually so as to avoid potential claims of discrimination under The Fair Housing Act.  It appears that 8 U.S.C.A. § 1324 provides yet another reason to refrain from inquiring as to immigration status, as a landlord can only be prosecuted under that law if the landlord knows that the tenant is an illegal immigrant.

The second part of 8 U.S.C.A. § 1324 states that a person may be prosecuted for encouraging an illegal alien to reside in the United States, knowing that the person is an illegal alien.  This section could be broadly interpreted to include renting to illegal immigrants as “encouraging”.  However, nearly all of the cases which have been published for the purpose of setting legal precedent involved actions much more egregious than simply renting residential property, such as openly smuggling illegal immigrants, conspiracies to obtain fraudulent visas, knowingly accepting false documentation for employment, and falsifying official immigration stamps allowing entry into the U.S.  And, like the “harboring” section, the “encouraging” section also requires the government to prove that the defending acted in a “knowingly” or “reckless” fashion.

Some individual states and municipalities in other parts of the U.S. have passed laws that prohibit renting to illegal immigrants within that state.  Some Arizona lawmakers have attempted to pass similar legislation, but have ultimately been unsuccessful (see 2008’s House Bill 2625).  As of right now, Arizona does not have a state-specific prohibition on renting to illegal immigrants.

It should be understood that a landlord is not prohibited necessarily from following a general policy against renting to illegal immigrants.  However, the landlord should be very careful in the creation and application of that policy so as to avoid discrimination on the basis of race, color or national origin in violation of The Fair Housing Act.  Remember that every rental applicant is unique, and every landlord’s circumstances are different.  To further assure proper compliance with the law, you should consult your own attorney regarding your particular circumstances.

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