In Alabama, landlords who rent to undocumented could face felony charges

The new immigration enforcement law recently passed by the Alabama legislature and signed by Gov. Robert Bentley goes further than any state-level immigration enforcement law passed in the passed few years, including Arizona’s infamous SB 1070. One of the unprecedented provisions in the law makes it a crime to rent housing to unauthorized immigrants, which would put any landlord who knowingly does so at risk of facing serious jail time—up to two decades.

The provision is contained in a single sentence: “It shall be unlawful for a person to harbor an alien unlawfully present in the United States by entering into a rental agreement … with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States.” To violate this provision is to commit a Class A misdemeanor, which in Alabama is punishable by up to a year in prison, with each additional undocumented tenant representing another violation by the landlord. Once ten or more violations have been committed, the crime is upgraded to a Class C felony.

Sam Brooke, an attorney at the Southern Poverty Law Center, says, “If you were a [landlord] found to have a number of properties and apartments with more than ten individuals, you could face up to 20 years. … [I]t’s incredible that they would have the audacity to do this.”

Critics point out that the law includes no information as to how a landlord might determine whether a tenant is undocumented.

Originally the bill did contain a section detailing a mechanism by which potential tenants would have to verify their legal status. Potential tenants had to obtain a license to occupy a residence from the government, for which they would have to demonstrate their citizenship or legal immigration status. The section largely mirrored the text of the Farmer’s Branch, Texas, municipal ordinance passed in 2006, which was challenged by civil rights groups in 2006 and struck down by a Texas federal district court last year because it preempted federal law.

Brooke argues that by leaving out the section detailing implementation and enforcement of the renting ban, legislators were trying to avoid the court challenges of the Alabama law’s municipal counterparts: “It’s a smart thing that they left a verification process out, because every time this has faced the courts it has been thrown out,” he said.

Without any such provision in place, Brooke says, “no one knows” how the law would work in practice, because only an immigration judge could say definitively what someone’s immigration status is. Although Alabama law enforcement does have access to the Immigration and Custom Enforcement’s Law Enforcement Support Center (LESC), which can provide local authorities with a “snapshot” of what the situation of someone’s documentation is at any point in time, that has little relevance to whether that person can constitutionally be denied the same rights to enter into housing contracts that is afforded to any other resident of the United States.

Vic Walczak, legal director of the ACLU of Pennsylvania, which is suing the town of Hazleton, Pa., over an immigration ordinance similar to Farmer’s Branch, says that the housing provision would effectively deny the right to live in Alabama to any immigrant whose case for residence was still ongoing in the courts, “even though the U.S. government which makes those determinations says you are allowed to stay.”

Moreover, even if landlords were allowed to use the LESC, the time and resources necessary to train everyone who rents out housing to verify immigration status—much less respect their tenants’ civil rights by doing so—could be staggering, relative to the single sentence in the law that places that obligation upon them.

Zayne Smith, an immigration policy fellow at Alabama Appleseed, a legal advocacy organization, says landlords she has spoken to are concerned about the potential liability that the law exposes them to.

“They’re saying, ‘I have tenants who are Hispanic, who are immigrants, but I don’t know whether they’re undocumented — that’s none of my business,’” she says. But the law forces landlords into an extremely difficult situation no matter what they do, she adds. “If they accuse people of presenting false I.D. and they’re wrong, they could get sued,” says Smith.

Smith says that although the law received a great deal of public scrutiny when it was being crafted in each chamber of Alabama’s legislature, the bill’s final text was substantially changed during conference, going from 42 pages to 71 pages, after which it was quickly passed by both houses with little opportunity for further public hearings. While the bill was being debated, “many changes would come and go,” says Smith. Ultimately, that meant that few people in Alabama have a clear sense of what the law will mean for them.

Legislation that uses housing policy to regulate immigration has only been tried before at the municipal level, as in Farmer’s Branch or Hazleton, the latter of which was overturned by the Third Circuit Court of Appeals for imposing too much of a burden on businesses and for including no protection against discrimination for race or national origin. Although the U.S. Supreme Court recently asked the circuit court to reconsider its decision after ruling that another immigration-related law in Arizona was constitutional, litigators and advocates involved with the case against Hazleton don’t believe that the Arizona decision** **will have much relevance to the ban on renting, whether at the municipal level or, in Alabama’s case, at the state level. “People need to understand that the case wasn’t reversed, there was no similar housing provision in the Arizona case,” says Walczak.

Walczak also argues that given the bad economy and poor fiscal condition of so many states it’s strange that Alabama legislators are eager to craft new immigration laws that expose them to expensive court cases defending them. The ACLU and the Southern Poverty Law Center have already announced their intention of challenging the Alabama law in court. Farmer’s Branch alone has spent almost $4 million defending its ordinance since 2006.

Considerable frustration is also being expressed by opponents of the law, particularly with its most infamous co-author, the anti-immigration activist and Kansas secretary of state Kris Kobach, who contributed to the Farmer’s Branch ordinance as well as Arizona’s SB 1070.

“This guy’s just using these municipalities as his own personal laboratory,” says Walczak.

Kobach has expressed confidence that laws like Alabama’s and Arizona’s will continue to spread throughout the country, but the apparent invitation to legal challenges, epitomized by such provisions as the ban on renting, could make even the most conservative of cash-strapped governments more reluctant to follow Alabama’s lead.

Ultimately, says the SPLC attorney Brooke, the law’s worst consequence may simply be that it has brought Alabama back to the forefront of the nation’s debate over immigration in an unflattering fashion.

“It’s a shame that it’s happening here in Alabama,” says Brooke. “We have such a troubled history on civil rights.”