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Unsafe Harbor: An Analysis of Local Government Use of Harboring Ordinances to Restrict Illegal Aliens' Access to Housing

Richard Middleton IVab; Candace Howellc; Stacy Peeblesc; Kendra Powellc a Department of Political Science, University of Missouri-St. Louis, St. Louis, Missouri, USA b School of Law, St. Louis University, St. Louis, Missouri, USA c Department of Public Policy, St. Louis University, St. Louis, Missouri, USA Online publication date: 09 June 2011

To cite this Article Middleton IV, Richard , Howell, Candace , Peebles, Stacy and Powell, Kendra(2011) 'Unsafe Harbor: An

Analysis of Local Government Use of Harboring Ordinances to Restrict Illegal Aliens' Access to Housing', Journal of Immigrant & Refugee Studies, 9: 2, 127 — 138 To link to this Article: DOI: 10.1080/15562948.2011.567142 URL: http://dx.doi.org/10.1080/15562948.2011.567142

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Journal of Immigrant & Refugee Studies, 9:127–138, 2011 Copyright © Taylor & Francis Group, LLC ISSN: 1556-2948 print / 1556-2956 online DOI: 10.1080/15562948.2011.567142

Unsafe Harbor: An Analysis of Local Government Use of Harboring Ordinances to Restrict Illegal Aliens’ Access to Housing RICHARD MIDDLETON IV Department of Political Science, University of Missouri−St. Louis, St. Louis, Missouri, USA St. Louis University, School of Law, St. Louis, Missouri, USA Downloaded By: [Middleton Iv, Richard T.] At: 01:39 20 June 2011

CANDACE HOWELL, STACY PEEBLES, and KENDRA POWELL Department of Public Policy, St. Louis University, St. Louis, Missouri, USA

This article is an analysis of the use of “harboring” ordinances to restrict illegal aliens’ access to housing. In particular, we analyze the promulgation of harboring statutes in the communities of Valley Park, Missouri and Escondido, California in the context of social justice. Our thesis is that the promulgation of harboring laws by local governments frustrates our country’s ability to build a cohesive and consistent national policy towards the provision of shelter to illegal aliens. When local governments legislate in this area, we find that at least three major problems arise: (1) there is an increase in the number of disparate rules in this policy domain, thus frustrating the construction of a cohesive national policy scheme; (2) this leads to an increase in the opportunities for disparate interpretations of laws modeled after a federal law; and (3) there is the potential for the creation of unintended deleterious effects on the access to housing by illegal aliens. As such, we make a number of associated recommendations to address these problems. KEYWORDS harboring, harboring illegal aliens, local ordinances, Valley Park, Missouri, housing

INTRODUCTION This article is an analysis of the use of “harboring” ordinances to restrict illegal aliens’ access to housing. In particular, we analyze the promulgation Richard Middleton IV, PhD, JD, Department of Political Science, University of Missouri-St. Louis, 347 SSB, One University Blvd., St. Louis, MO 63121. E-mail: [email protected] 127

Electronic copy available at: http://ssrn.com/abstract=1605003

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of harboring ordinances in the communities of Valley Park, Missouri and Escondido, California. These local level measures were modeled after the federal harboring statute. The federal harboring statute, found at INA 274(a)(1)(A)(iii), makes it illegal to knowingly, or in reckless disregard, harbor an illegal alien in the United States. We are concerned about the issues of housing and immigration because the increase in public disfavor towards the presence of illegal aliens in many communities has led to an increase in state and local governments enacting restrictions on access to housing by illegal aliens (American Immigration Lawyers’ Association, 2008). Housing, as a form of shelter, is widely accepted as one of the most basic and fundamental necessities of all persons—no matter their legal or illegal presence status (Maslow, 1943). In addition, access to housing has also historically been a policy concern of the Federal government (see, for example, the Department of Housing and Urban Development’s Mission Statement; Department of Housing and Urban Development, n.d.). Our thesis is that the promulgation of harboring laws by local governments frustrates our country’s ability to build a cohesive and consistent national policy towards the provision of shelter to illegal aliens. Arguably, the federal government has dominated the field with respect to restricting the harboring of illegal aliens [via INA 274(a)(1)(A)(iii)] and has left no room for supplementation by the states. When local governments legislate in this area, we find that at least three major problems arise: (1) there is an increase in the number of disparate rules in this policy domain, thus frustrating the construction of a cohesive national policy scheme; (2) this leads to an increase in the opportunities for disparate interpretations of statutes modeled after a federal statute; and (3) there is the potential for the creation of unintended deleterious effects on the access to housing by illegal aliens (particularly in light of 8 CFR 274a.12). To address the first of these problems, we recommend the U.S. Supreme Court review a state or local harboring law to determine if the federal harboring statute preempts state and local governments in this policy domain. To address the second problem, we recommend the attorney general issue an opinion on the element of “intent” in the federal harboring statute, or in the alternative, the U.S. Supreme Court review the federal harboring statute to provide binding authority (on the federal courts) and highly influential authority (for the state courts) on the element of intent. We also recommend cooperation between federal and state prosecutors to give deference to federal prosecutors in bringing harboring charges under the Federal statute. And finally, to address the third of these problems, we recommend the Department of Homeland Security (USCIS) issue a policy memo addressing the possibility of an alien being found to be unlawfully present yet having the eligibility to procure employment, and thus reside in the United States, in order to reconcile these otherwise seemingly conflicting legal realities.

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THE ISSUES OF IMMIGRATION AND HOUSING The issue of immigration is a great source of debate and controversy among the American public. The United States of America has long been considered the land of opportunity and the “land of the free.” Historically, generations of individuals and families have migrated to the United States seeking better opportunities and prosperity. In early U.S. history, most immigrants hailed from European countries. Over time, the face of immigrants has changed. Overwhelmingly, recent immigrants to the United States are of different racial and ethnic backgrounds and bring with them their own set of customs and language. By instinct, human beings are drawn to others with which they share similarities and may tend to avoid contact with those that are different. At times, there may even be a fear of the unknown, which can lead way to the construction of stereotypes and misconception about certain groups. The influx of immigrants of ethnic backgrounds that differ from the country’s Caucasian majority has prompted many policy debates and has even spurred opposition towards immigrants entering the country. At present, the United States is experiencing a financial crisis and depressed economy that has served to bring immigration to the forefront as a policy issue. There seems to be a perception that immigrants are taking jobs and resources away from the American people. There is pressure for the new presidential administration to address the issue of immigration. This administration, led by President Barack Obama, has pledged to create new policies that focus on regulating immigration. The starting point for creating workable policy will be to take into account the needs and desires of native-born Americans (Swain, 2007), but these policies will also need to incorporate the needs and desires of the immigrant population as well. Proposed polices should seek to foster an atmosphere that promotes the development of supportive communities that work toward maintaining and building human camaraderie and solidarity. The issue of access to housing is one that is frequently debated as it relates to immigrants. As the immigrant population continues to grow, immigrants are increasingly taking up residence in communities around the country. There is widespread public opinion that many immigrants may be entering the country unlawfully and, consequently, there is pressure to reduce the number of illegal immigrants migrating to communities. Certain tactics are being employed by state and local governments to restrict housing options for illegal immigrants in an effort to address this concern. In many instances, these housing policies are enforced through the promulgation of local policies and ordinances that mirror federal policy on harboring illegal aliens. These ordinances challenge many of the fundamental premises of social justice. Two important questions in this policy debate are whether or not an illegal immigrant should have the right to fulfill the basic need for housing, and what role the government, both at the federal and local level,

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should play in this matter. Two such policies that have been implemented on a local level that illustrate this contentious debate are ordinances passed in Valley Park, Missouri and Escondido, California.


RESTRICTING ILLEGAL ALIENS’ ACCESS TO HOUSING VIA HARBORING ORDINANCES: THE CASES OF VALLEY PARK, MISSOURI AND ESCONDIDO, CALIFORNIA Valley Park, Missouri and Escondido, California are two drastically different cities that attempted to implement policies concerning the harboring of illegal aliens in their respective communities. Both cities provide great insight on local ordinances that were promulgated and subsequently spurred a national dialogue on this issue. According to the 2000 U.S. census, Valley Park had a total population of 6,518 people and Escondido had a total population of 133,528 people (U.S. Census Bureau, 2000). Although these two cities contrast significantly in population, both communities identified a pressing need for monitoring and reducing their illegal immigrant population. Valley Park, located in St. Louis County, became the center of attention after its board of alderman passed the Illegal Immigration Relief Act Ordinance in July 2006. The purpose of the ordinance was to penalize landlords and business owners who knowingly harbored or hired illegal immigrants. Modeled after a Hazelton, Pennsylvania ordinance, Valley Park’s intentions were to reduce crime, remove any fiscal hardships to hospitals, nullify burdens on public services, and lessen any concerns that pertained to the quality and safety of the homeland in response to illegal immigration (Valley Park City Ordinance—Missouri 1715, 2006). Even though these concerns may be valid exercises of police powers, the true motive behind the ordinance were brought into question by many observers (see Hinman, 2007). This latter point we discuss shortly. According to the 2000 U.S. census, only 6.2% of Valley Park’s total population identified as foreign-born. Of the foreign-born population, 4.8% of the population was not citizens of the United States. Not captured in these figures, but evidenced by empirical reality, was the significant growth in the Latino population in Valley Park. As a result, many observers believed that the Valley Park ordinance was created to discourage Latino immigration to the city. In a February 2007 interview conducted by the Riverfront Times newspaper, then mayor of Valley Park, Jeffrey Whitteaker, discussed his basis for supporting the ordinance. According to Whitteaker, he supported the ordinance in order to prevent “undocumented Mexicans from urinating publicly, and driving without insurance” (Johnson, 2008). During the interview he stereotypically referred to Hispanics as “beaners,” “wetbacks,” and “cojones.”. Based upon Mayor Whitteaker’s comments, some observers


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perceived Valley Park’s Illegal Immigration Relief Act as discriminatory and thus unlawful (see Hinman, 2007). In the summer of 2008, Valley Park repealed the ordinance after several landlords and business owners sued the city. The landlords and the Metropolitan St. Louis Equal Housing Opportunity Council filed suit alleging several causes of action, among them including violation of the Fair Housing Act, and the Due Process and Commerce Clauses of the United States Constitution (Reynolds v. City of Valley Park, 2006). Similar to the case of Valley Park, a local ordinance aimed at restricting illegal aliens’ access to housing was promulgated in Escondido, California. In 2000, approximately 26% of Escondido’s population was foreign-born. This percentage equals 34,005 people. Of Escondido’s foreign-born population, 25,150 people were not citizens of the United States. This represents a larger percentage of the total population than in the case of Valley Park. In order to respond to the city’s concern about illegal immigration, Ordinance Number 2006–38 R, “Establishing Penalties for the Harboring of Illegal Aliens in the City of Escondido,” was passed on October 18, 2006. This ordinance provided for penalties for harboring illegal aliens in Escondido. In the ordinance, illegal immigrants were viewed as being potentially harmful to the city. Some of these concerns included illegal immigrants residing in dwelling units without tenancy arrangements, increased numbers of unreported housing maintenance violations due to illegal immigrants choosing not to report such conditions to authorities, and the possible overcrowding of many residential units. Additionally, the ordinance declared its purpose was to address the lack of federal and state government resources that properly protected the citizens of the City of Escondido from the adverse effects of harboring illegal aliens as well as the criminal activities of some illegal aliens (Ordinance No. 2006–38 R). As a result of the concerns identified by the City of Escondido, the ordinance penalized landlords who harbored illegal immigrants. This process included notifying landlords who were accused of harboring illegal immigrants. After notification, accused landlords were given 10 days to provide documentation verifying citizenship status of residents to authorities. If documentation was not provided after 10 business days, a second violation was issued. If the violation was not corrected, the city would have then suspend or denied the business license of the dwelling unit. During the suspension period, landlords could not collect rent, payments, fees, or any other compensation from, or on behalf of, any tenant or occupant in the dwelling unit. If violations continued, then further penalties were to be issued (Ordinance No. 2006–35 R). The implementation of the Escondido ordinance was quite controversial (Graham & Jones, 2006). Many landlords found it difficult to accurately verify an immigrant’s documentation. In addition, the ordinance pushed more landlords to prejudge potential tenants. A prime example of this was identified in the case of Garret v. City of Escondido (2006). In this case, Latinos


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and other minority groups were identified as being disenfranchised the most by the ordinance since they comprised 42% of the population in Escondido as of 2004. In addition, the case brought to light potential segregation issues that would arise in Escondido neighborhoods as a result of the operation of the ordinance (Garret v. City of Escondido, 2006). A federal district court ultimately accepted a joint resolution whereby the City of Escondido agreed not to enforce the ordinance. Although neither ordinance is presently in effect, there remains a pressing need for discourse and research on this topic. According to the Mexican American Legal Defense Fund, as well as the American Civil Liberties Union (ACLU), many states and localities are currently considering enacting similar statutes and ordinances. We hope to influence this policy debate by serving as a scholarly resource for governmental actors across the country who may be considering the adoption of such measures so that they may understand the legal, political, and social ramifications of such policies.

FEDERAL VERSUS LOCAL POWER TO RESTRICT ILLEGAL ALIENS’ ACCESS TO HOUSING VIA HARBORING STATUTES Courts have consistently held that the U.S. Congress has broad and exclusive power to regulate immigration (see De Canas v. Bica, 1976). The sources of federal power to set immigration policy are enumerated-in and implied-from various constitutional provisions, among them including the Naturalization Clause and the Commerce Clause of Article I, Section 8 (Guizar, 2007). In addition, the Supremacy Clause of the U.S. Constitution establishes that the “Constitution, and the Laws of the United States, shall be the supreme law of the land,” and mandates that the federal government, in exercising any of the powers listed in the Constitution or implied from it, prevail over any conflicting or inconsistent state exercise of power (Clark, 2003). Under operation of the Supremacy Clause, state and local laws that attempt to regulate immigration violate the Supremacy Clause of the U.S. Constitution are null and void (Guizar, 2007). In relation to the debate surrounding immigration, the Supreme Court has established three specific tests to determine when it is appropriate for federal law to preempt a state statute or local ordinance. These three tests are: express preemption, field preemption, and conflict preemption. Each of these is described next in more detail. Express preemption asks: Is the state or local level expressly preemption under federal law or Constitutional provision? Express preemption occurs when a federal statute or Constitutional provision explicitly precludes state and local regulations on the subject. The U.S. Supreme Court has consistently held that Congress has the exclusive power to “regulate immigration,” which the Court defines as the power to determine “who should or should not be


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admitted into the United States and the conditions under which a legal entrant may remain” (De Canas v. Bica, 1976).” When a state or local statute attempts to regulate immigration, it creates a situation where the local levels encroach upon the federal governments’ exclusive authority to regulate immigration. As a result, the state law or local ordinance is void (Guizar, 2007). Field preemption asks the question: Did congress intend to occupy the field and oust state or local power (e.g., Congress’ power to establish uniform rules of naturalization)? If a state or local statute attempts to legislate in the field of immigration that is fully occupied by the federal government (typically through comprehensive legislation in the Immigration and Nationality Act; INA), federal law preempts them. This is the case even in where state or local laws do not conflict with federal law. However, it is important to note that not every state law affecting immigration is field-preempted; exceptions apply in cases where the states have a history of legislation in the field (De Canas v. Bica, 1976). This includes areas where the states have historically exercised their “police powers” as a right under the 10th Amendment to the U.S. Constitution (e.g., licensing, education, domestic relations). In such instances there is a presumption against preemption. However, if the state or local measure touches upon an area that the federal government has historically legislated, there is no presumption against preemption (De Canas v. Bica, 1976). The final form of preemption emanating from the Supremacy clause is conflict preemption, which asks: Does the state or local law stand as an obstacle to or conflict with federal law, making compliance with both state and federal law impossible? If a state or local statute impedes accomplishment or compliance with federal law, then the state or local statute is conflict-preempted (Guizar, 2007). The situations where preemption claims may occur are one piece to the enormous and complicated body of case law developed by the courts to resolve conflicts between state and federal laws related to immigration. The preemption doctrine has been used to establish the U.S. Congress’ dominant power over the states in the area of immigration. As is the case with many general rules, however, there are exceptions that exist. An example of an exception to preemption is demonstrated in Florida Lime & Avocado Growers v. Paul (1963). In Florida Lime & Avocado Growers, the Supreme Court of the United States upheld a California state law (792 of the Agricultural Code) imposing minimum ripeness standards on avocados imported into the state. Florida avocado growers followed a federal standard of ripeness for wholesale marketing purposes and argued that the federal law preempted the California law. The conflict-preemption doctrine failed because the California law was seen as being permissible under the idea of “concurrent enforcement.” The court held that simultaneous compliance between both state and federal law was possible in this instance. According to the Court, the test for whether


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both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence in the field (Florida Lime & Avocado Growers v. Paul, 1963). Florida Lime & Avocado Growers establishes the basis for state and local governments to use federal law as a blueprint to craft identical immigration policies that duplicate mandates of federal laws without impairing the federal government’s dominance in the field. This allows the state and local levels to bring their own enforcement claims in a state or municipal court. This is something that they could not do under federal law because responsibility for enforcing the federal statute lays in the hands of the U.S. Department of Justice. Usage of the federal harboring statute as a blueprint for a local level ordinance is precisely what happened in the cases of Escondido and Valley Park. These cities felt that the best way to prevent illegal aliens from residing in their communities was to craft ordinances that made it difficult for illegal aliens to procure housing. Both municipalities, frustrated with a lack of hypervigilance by the federal government in restricting illegal aliens access to housing, crafted harboring statutes that were identical to the federal harboring statute [found at (INA 274(a)(1)(A)(iii)]. Their goal, as mentioned previously, was to prevent property owners from affording housing to illegal aliens by penalizing such conduct. Valley Park and Escondido were prepared to argue that, under principles established in Florida Lime & Avocado Growers, their local harboring regulations could be enforced without impairing the federal harboring statute because both statutes were identical to the federal statute (see Gray v. City of Valley Park, 2008) and (Ordinance No. 2006–38 R, City of Escondido, California). The strategic effect was to provide Escondido and Valley Park with their own local level cause of action to enforce the harboring statute and to not have to wait on the federal government to step in and prosecute.

THE PROBLEMATIC FUNCTIONING OF HARBORING STATUTES AND POSSIBLE UNINTENDED ADVERSE EFFECTS ON ILLEGAL ALIENS Assuming that local governments are not preempted under the Supremacy Clause from promulgating ordinances restricting the harboring of illegal aliens, two important questions that arise are: (1) how would such ordinances be interpreted by courts, and (2) how would these ordinances affect access to housing by unlawfully present aliens who might otherwise have a basis under the law to procure housing on a temporary basis. Most municipal ordinances that restrict the harboring of illegal aliens, such as those in

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Escondido and Valley Park, mirror federal law by making it a crime punishable by fine or imprisonment to:


Knowing or in reckless disregard of the fact than an alien has come to, entered, or remains in the United States in violation of law, conceal, harbor, or shield from detection, or attempt to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. (INA 274(a)(1)(A)(iii))

In order for the government to demonstrate a prima facie violation of the harboring statute, the government must prove that: (a) the alien entered or remained in the United States in violation of the law, (b) the defendant concealed, harbored, or sheltered the alien in the United States, (c) the defendant knew or recklessly disregarded that the alien entered or remained in the United States in violation of the law, and (d) the defendant’s conduct tended to substantially facilitate the alien remaining in the United States illegally (U.S. v. Shiu Sun Shum, 2007). As interpreted by the courts, harboring can apply to any person who knowingly harbors an unlawfully present alien (see U.S. v. Shiu Sun Shum, 2007) and applies to any conduct, including affording housing or shelter, that tends to substantially facilitate the alien remaining in the United States illegally. Courts have held that “substantial facilitation” is any conduct that makes it “easier or less difficult” for the alien to unlawfully stay in the United States (see U.S. v. Shiu Sun Shum, 2007). Thus, under the federal harboring statute (likewise, municipal harboring ordinances), a landlord or any property owner who knows or recklessly disregards that an individual is an illegal alien and affords housing to that person can be charged with a crime. Even persons who extend housing to a family member who they know is in the United States illegally can be charged with a crime under such harboring laws. Arguably, millions of people in the United States are in just such a situation and do not know that are committing a crime. There exists a split in the federal circuit courts with regards to interpreting the harboring statute to include an element of intent by the defendant to conceal, harbor, or shelter an alien from government detection. For example, the 2nd and 5th circuits have interpreted the federal harboring statute strictly and have not found that it includes an element of intent to shelter illegal aliens from governmental authorities (see U.S. v. Lopez, 1975 and U.S. v. De Jesus-Batres, 2005). On the other hand, decisions emanating from the 9th and 11th circuits suggest that courts in these jurisdictions have found that the federal harboring statute does include an element of intent to conceal illegal aliens from governmental authorities (see U.S. v. You, 2004; U.S. v. Saleem Khanani, 2007). We recommend the Obama administration address this controversial split in the circuit courts’ interpretation of this statute. This could be done in


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the form of the attorney general issuing an opinion on its interpretation of the statute or the administration pushing new legislation through Congress that resolves this discord. We are particularly concerned that the Obama Administration addresses this split in the circuits in light of the fact that local governments are increasingly using the federal harboring statute as a blueprint for promulgating similar ordinances in their own jurisdictions. Most of these communities have taken an overall tough stance on illegal immigration and are thereby more likely to advocate a stricter form of liability under their harboring ordinances. Courts in these jurisdictions are more likely to conclude there is no element of intent in interpreting their own local ordinances; as a result, there is a greater likelihood of the invocation of criminal and civil sanctions at the local levels. In addition, there still exists the possibility of being charged and fined under the federal harboring statute, which could be made easier if there is a state-level conviction on the same material elements of the law. Thus, it will be critical to have a consistent national approach towards interpreting such harboring laws. In addition, the proliferation in the promulgation of such provisions at the local levels is likely to create a highly disparate application of the law across communities throughout the country, and thus, uneven effects on unlawfully present aliens. This is problematic given that under federal regulations, some aliens who are unlawfully present in the United States are nevertheless allowed to temporary work in the country. Thus, it stands to reason that if such aliens are allowed to lawfully work in the United States, they should also be allowed to live in the United States—an act for which having housing or shelter is a necessary tenet. Under Title 8, Code of Federal Regulations 274a.12, certain classes of aliens who have been found by an immigration judge or by the Department of Homeland Security to be in the country illegally are nevertheless given permission to temporarily work in the United States (specifically, 8 CFR 274a.12(10), “withholding of removal, 8 CFR 274a.12(11), what is now referred to as “deferred enforced departure,” 8 CFR 274a.12(12), “temporary protected status,” and 8 CFR 274a.12(13) “voluntary departure under Family Unity”). Courts have not factually reviewed the operation of harboring statutes in light of the federal regulations permitting certain classes of aliens found to be unlawfully present to temporarily work in the United States. It stands to reason, however, that if Congress intended these classes of aliens, who have otherwise been adjudged to be unlawfully present, to have the right to temporarily work in the United States, that Congress also intended for them to have the right to procure a place to live in this country. At least one federal district court has put forward this argument (see Lozano v. City of Hazelton, 2007). The central issue in an analysis of a harboring statute in light of 8 CFR 274a.12 would be whether a defendant who provides housing or shelter to such an alien would be substantially facilitating the alien to remain in the


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United States illegally. It would be difficult for a landlord, let alone an ordinary person, to know how to determine whether a person adjudged to be unlawfully present, yet given temporary permission to remain in the United States by an Immigration Judge of the Department of Homeland Security is “illegal” or “legal” within the meaning of these harboring statutes or under immigration law (specifically, the Immigration and Nationality Act). The problem is that landlords are not trained immigration officers for the purpose of determining the lawful presence status of aliens and under federal law only an immigration judge can make a conclusive determination of unlawful presence status. For example, an alien that would qualify for housing but would also fall into the more conventional federal immigration categories of unlawful presence status (e.g., having entered the U.S. without inspection) could still be eligible for lawful presence status under a little known provision of immigration law known as “registry” (registry was first created in 1929 and allows aliens who have been unlawfully present in the United States continuously since January 1, 1972 to legalize their status). This provision of immigration law is something that most landlords have no knowledge of. Therefore, a landlord who did not have a thorough grasp of immigration law, or who did not hire an immigration attorney to assist him or her, would have difficulty in sorting through the myriad of legal documents that could possibly prove lawful presence status.

CONCLUSION Immigration is a multifaceted issue and can be viewed from several perspectives. In this article, we focus on the issues of immigration and housing because, taken in light of each policy domain, they have significant implications on achieving social justice for noncitizens in the United States. When considering immigration policy, policymakers should take into account the humanitarian impact of the decisions they make. A worthwhile goal to strive for is to foster an atmosphere that promotes the development of supportive and flourishing communities built upon human camaraderie and solidarity. We do not argue that aliens unlawfully present in the United States should be afforded unmonitored abode. However, in those instances where the federal government has articulated a rational interest in allowing aliens unlawfully present in the United States a temporary safe haven, state and local governments should not engage in (what we see as) a sort of “dormant-immigration clause” lawmaking.

REFERENCES American Immigration Lawyers’ Association. (2008). Navigating the immigration debate: A guide for state & local policymakers and advocates. Retrieved from http://www.aila.org/content/fileviewer.aspx?docid=24681&linkid=172618


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Clark, B. R. (2003, February). The supremacy clause as a constraint on federal power. George Washington Law Review, 71, 91–130. De Canas v. Bica, 424 U.S. 351 (1976). Department of Housing and Urban Development. (n.d.). Mission statement. Retrieved from http://portal.hud.gov/hudportal/HUD?src=/about/mission Escondido, California, Ordinance No. 2006–35 R. (2006). Escondido, California, Ordinance No. 2006–38 R. (2006). Florida Lime & Avocado Growers v. Paul, 373 U. S. 132 (1963). Retrieved from http://supreme.justia.com/us/373/132/case.html Garret v. City of Escondido, No. 06 CV 2434 JAH (NLS) (2006). Graham, D., & Jones, J. (2006, October 5). Escondido council OKs immigration ordinance: Vote to bar illegal immigrant rentals draws hundreds. San Diego Union Tribune, p. A1. Gray v. City of Valley Park, MO 2008 WL 294294, E.D. Mo. (2008). Guizar, M. (2007). Facts about federal preemption. National Immigration Law Center. Retrieved from www.nilc.org Hinman, K. (2007, February 28). Valley Park to Mexican Immigrants: ‘Adios Illegals!’—A small-town mayor’s plan creates one big controversy. Riverfront Times. Immigration and Nationality Act of 1952, § 274(a)(1)(A)(iii) (2009). Johnson, K. (2008, February 1). Valley Park, Missouri, “Illegal Immigration Relief Act” Upheld [Web log entry]. Retrieved from http://lawprofessors.typepad. com/immigration/2008/02/valley-park-mis.html Lozano v. City of Hazelton, 496 F.Supp.2d 477, 547 (M.D. Pa. 2007). Maslow, A. H. (1943). A theory of human motivation. Psychological Review, 50, 370–396. Reynolds v. City of Valley Park, No 06-CC-3802 (2006). Swain, C. (Ed.). (2007). Debating immigration. Cambridge, England: Cambridge University Press. U.S. Census Bureau. (2000). 2000 census. Retrieved from http://factfinder.census. gov/home/saff/main.html? lang=en U.S. Code of Federal Regulations, § 274a.12(10) (2009). U.S. v. De Jesus-Batres, 410 F.3d 154 (5th Cir. 2005). U.S. v. Lopez, 521 F.2d 437 (2nd Cir. 1975). U.S. v. Saleem Khanani, 502 F.3d 1281 (11th Cir. 2007). U.S. v. Shiu Sun Shum, 496 F.3d 390 (5th Cir. 2007). U.S. v. You, 382 F.3d 958 (9th Cir. 2004). Valley Park City Ordinance—Missouri 1715. (2006).