It is nearly impossible to turn on the radio, television, read a newspaper or the Internet without encountering some reference to Arizona’s new immigration law, Senate Bill 1070. While the most controversial portion of the Bill relates to police interaction with suspected illegal immigrants, the Bill contains additional provisions which could have a significant impact on the multi-housing community.
The primary question that has arisen, and which has sparked a fair amount of debate among property management and landlord-tenant attorneys, is whether landlords should require applicants to provide proof of legal status prior to renting. The debate is sparked by a portion of the new law – A.R.S. § 13-2929 – which makes it a violation of the law to “conceal, harbor or shield” an illegal alien if you know or recklessly disregard the fact that the person is illegal. The statute is quite vague as exactly what will be considered “harboring”, which has prompted some to suspect that landlords could be in danger of violating the law by renting to an illegal immigrant.
Rather than panicking from all of the hype surrounding the current immigration debate, we should take the time to consider what the proposed law actually says. What it does not say is that anyone who rents to an illegal immigrant will be guilty of violating the statute. Rather, the statute states that it is illegal to “conceal, harbor or shield” an illegal alien from detection if those actions are done by a person who “knows or recklessly disregards” the fact that the alien is illegal.
In other words, to find a landlord in violation of this statute, the government would have to prove that the landlord “knows or recklessly disregards” the alien’s status. This requirement essentially mirrors the standard in the federal statute. In order to know or recklessly disregard the fact that an immigrant is here illegally, you would have to either have actual knowledge that the person is illegal, or have that fact essentially be blatantly obvious to the point that you are “recklessly” turning a blind eye to the fact. Consider, then, the question of whether a landlord should request proof of status based upon this legal standard: If you do not ask for documents to show legal status, and the applicant does not offer them, then it is much less likely that you can be accused of knowingly or recklessly disregarding the applicant’s status. On the other hand, if you do ask for documents, you run the risk of entering into the “having knowledge or reckless disregard” category.
In addition, Section 13-2929 contains a preface which suggests that in order to be in violation of the statute, you must be already be in violation of a criminal offense while you are “concealing, harboring or shielding” the illegal immigrant. This apparent prerequisite makes it even less likely that renting to an illegal would violate the statute, as simply renting a unit is hardly a criminal offense.
As stated above, the standard of Section 13-2929 appears to have been modeled after the federal statute, 8 U.S.C.A. § 1324, which also makes it 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. In other words, the danger of “harboring” an illegal has actually existed long before Arizona’s law was conceived. Because the Arizona law is vague as to what it means to “harbor”, and because Arizona courts have yet to have a chance to issue a clarifying opinion, it may be helpful to consider how some federal courts have approached the issue.
Several federal courts have held that “harboring” is not just limited to secretly 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 federal 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.
No need to panic, however. The federal law has been around for decades, and history has shown that federal prosecutors are not generally in the business of prosecuting landlords under 8 U.S.C.A. § 1324 for simply renting to an illegal immigrant. Furthermore, like Arizona’s new law, the federal 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.
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. q
By Josh Deere, Esq.
Josh Deere is an attorney with Koglmeier Smith, P.L.C.. He can be reached at 480.962.5353.
The views expressed here are generalized advice or information. Fact-specific questions should always be referred to legal counsel. Statements and opinions expressed in these legal columns are solely those of the author or authors. This advice does not necessarily represent the views or opinions of the Arizona Multihousing Association.