Though a federal judge struck down a portion of the controversial Fremont, Neb., immigration ordinance Monday, the wrangling is not over.
Both sides claimed victory. Though U.S. District Court Judge Laurie Smith Camp threw out portions of the ordinance that barred landlords from providing housing to illegal immigrants, she let stand provisions that require employers to verify the immigration status of their workers and require tenants to obtain an “occupancy license” before they can rent a house or apartment.
Both sides have 30 days to decide whether to appeal to the 8th U.S. Circuit Court of Appeals.
Fremont voters adopted the immigration ordinance in June 2010 in a special election that gained national attention. Opponents quickly challenged it in court and, in July 2010, the City Council put its enforcement on hold until 14 days after a final court ruling.
That means that as early as March 4, people who want to live in an apartment or rent a house in Fremont must first obtain a $5 license from the Police Department that includes their name, date of birth and citizenship status, said Kris Kobach, the Kansas attorney who represented the City of Fremont in the case.
Sixty days later, by May 4, employers within Fremont's city limits will be required to use the federal government's E-Verify program when they hire workers, he said. Right now, the program is voluntary, though many businesses already use it.
Fremont City Attorney Paul Payne said the Fremont City Council will discuss the ruling at its Feb. 28 meeting.
No decision on implementing the ordinance will be made before the council is consulted, he said. City officials are reviewing the opinion and will advise council members of their options next week, Payne said.
Camp's decision was somewhat unexpected because she released it on a federal holiday, Washington's Birthday — also known as Presidents Day — when government offices were otherwise closed. Attorneys involved in the case had submitted their final written arguments Friday.
Shirley Mora James, a Lincoln attorney with the Mexican American Legal Defense and Educational Fund, said the ruling was good news for people who feared they could be forced onto the streets because of the housing law. Her organization represented a Fremont landlord and two tenants in the case.
“It's a good day in Nebraska and a good day in America,” she said.
Amy Miller, legal director for American Civil Liberties Union Nebraska, also praised the ruling.
The ACLU represented citizens — some of whom shared their homes with undocumented loved ones — landlords, a local union and the ACLU Foundation as an employer within the City of Fremont.
Although uncertainties remain about the ruling's impact, it relieves concerns of Miller's clients that they could be forced out of their homes, she said.
“This victory should be a signal to other communities that ‘show me your papers' is a phrase that belongs in our history books, not our law,” Miller said.
Kobach, however, said the ruling left three-fourths of the ordinance intact.
“The voters of Fremont who enacted the ordinance were vindicated in court today,” he said. The city won “in the entirety” on the employment provisions, he said.
“The city still can require all (rental housing) occupants to get an occupancy license, it can require them to disclose whether they're U.S. citizens, and the city can take the names of all aliens and confirm whether they're in the country lawfully or unlawfully,” Kobach said.
“It's only the final step of revoking the occupancy license that the city can't do,” he said.
Mora James, however, questioned the usefulness of requiring all Fremont renters to obtain occupancy licenses. She said she doubts federal immigration authorities will hotly pursue Fremont apartment residents when recent policy announcements give top priority to catching criminals.
“Let's be truthful: People renting houses and apartments in Fremont aren't even a blip with Immigration and Customs Enforcement,” she said.
If the city wants to keep the policy it must be enforced equally with everyone, or the city risks another lawsuit, Mora James said.
The City of Fremont is paying Kobach $10,000 a year to represent it in the court case. The remainder of his fees are being paid by groups seeking tougher immigration laws.
He has helped draft similar legislation and mount court defenses on behalf of the state of Arizona and the Cities of Hazleton, Pa., and Farmers Branch, Texas, among others.
Kobach was elected secretary of state in his home state of Kansas in 2010. He said he completes his legal work on behalf of Fremont during his personal time.
In her ruling, Camp said the plaintiffs presented “scant evidence” to support their claim that the ordinance was enacted with the intent to discriminate against Hispanic residents. She also concluded that in most instances the ordinance did not conflict with federal immigration law.
Federal law allows state and local governments to enact “licensing” procedures that are consistent with federal immigration policy, she noted.
“Because the Fremont ordinance is not ‘essentially a determination of who should or should not be admitted into the country and the conditions under which a legal entrant may remain,' it is not pre-empted by the United States Constitution,” Camp wrote.
Where the ordinance oversteps its authority, she said, is its provisions that make it illegal to “harbor” illegal immigrants and that revoke the renter permits for people who can't prove their legal residency.
Congress has developed a complicated system, including 57 immigration courts that process more than 300,000 cases a year, to determine what should happen to people who are in the country illegally, she noted.
“If states or political subdivisions take independent action to remove aliens from their jurisdiction, essentially forcing them from one state or community to another where their identity and whereabouts may be obscured, the structure Congress has established for the classification adjudication and potential removal of aliens will be impaired,” the judge wrote.
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