DOJ, Immigration & Fair Housing Groups Provide Support
The plaintiffs in a long-running housing discrimination case are seeking to overturn a district court ruling that would allow the Waples Mobile Home Park in Fairfax, Virginia, to evict tenants based on a family member’s immigration status. The appeal, which is being led by the Legal Aid Justice Center and pro bono counsel Zuckerman Spaeder LLP, has gained support from the Department of Justice (DOJ) and numerous fair housing and civil rights organizations, all of which have filed amicus briefs stating that the district court ruling, if upheld, would have dramatic consequences for both landlords and immigrants nationwide.
Filed in 2016, the lawsuit alleges that a Waples’ policy requiring adult tenants to show proof of legal immigration status unfairly impacts Latinos and therefore violates the Fair Housing Act (FHA). When Waples began enforcing the policy in 2015, it forced the plaintiffs – all families in which the father has legal status in the U.S., the mother is undocumented, and the children are U.S. citizens – and others to lose their housing.
Waples has argued that its policy is necessary to avoid criminal liability under a federal statute that prohibits the harboring of undocumented immigrants. Despite this argument being twice rejected in court, including in 2018 by the Fourth Circuit Court of Appeals, a May 2022 district court ruling found in favor of Waples based on its “anti-harboring” claim. The plaintiffs’ appeal, filed on September 8, will again be heard by the Fourth Circuit.
According to the DOJ’s amicus brief, filed together with the Department of Housing and Urban Development, the district court ruling must be reversed because it “failed to properly analyze whether Waples was at risk for criminal liability for harboring.” The DOJ, which is the authority for enforcing the federal anti-harboring law, goes on to dismantle Waples’ argument that its screening policy was necessary to avoid such liability, stating that it “does not prosecute residential landlords merely because they do not, in the normal course of business, check the immigration status of every person living in their rentals.”
Simon Sandoval-Moshenberg, legal director for the Legal Aid Justice Center’s Immigrant Advocacy Program, commented, “Waples argued in court that checking their tenants’ immigration status was the prudent and cautious thing to do. But the DOJ’s filing makes clear that the prudent and cautious thing to do is simply not ask questions about immigration status. The feds won’t prosecute you if you don’t ask, but you might draw a lawsuit or enforcement action under the Fair Housing Act if you do ask.”
Waples was unable to show any evidence to the District Court that they were at actual risk of federal prosecution for renting to undocumented immigrants, or even that they genuinely considered the risk of prosecution in deciding to enforce this policy, which had existed on the books for decades but was largely ignored.
Zuckerman Spaeder attorney Nicholas DiCarlo said, “Waples’ defense has centered on perceived anti-harboring concerns, but in fact, its sudden demand for proof of tenants’ immigration status was entirely unrelated to such concerns. The anti-harboring argument is a smokescreen that neither explains Waples’ actions nor provides a reasonable legal basis to support its discriminatory policy.”
In addition to rebutting the legal findings of the district court, other amici emphasize the significant national impact of upholding the ruling.
John Trasviña, who served as the top legal advisor to the Director of U.S. Immigration and Customs Enforcement and as an assistant secretary with the Department of Housing & Urban Development, wrote, “if the district court were right that landlords face criminal liability simply for renting to an undocumented individual…that would send shockwaves through the housing industry” and would lead to a “considerable sea change in the lives not only of undocumented individuals….but also in the lives of millions of United States citizens and lawful residents who may…appear to be foreign to a prospective landlord.” The brief noted that, of the approximately 11 million undocumented people in the U.S., about 7 million are renters who would be directly impacted by this ruling.
A group of seven civil rights and fair housing organizations, including the National Fair Housing Alliance and the American Civil Liberties Union, filed a brief saying that the district court decision would “prevent and disrupt housing providers…from fulfilling their missions of helping to ensure safe, affordable, and accessible housing for all individuals and families.” Others signing onto the brief include the Lawyers’ Committee for Civil Rights Under Law, Equal Rights Center, and Housing Opportunities Made Equal of Virginia.
Another brief was filed by the National Housing Law Project, National Homelessness Law Center, National Immigrant Law Center, and National Low Income Housing Coalition, which wrote that “Allowing such a brazenly discriminatory policy to stand will greenlight not only the refusal of landlords to rent to households based upon their actual or perceived immigration status, but it could invite a host of other illegal behaviors by property owners.”
Others working on the case include Adam Abelson from Zuckerman Spaeder, and from the Legal Aid Justice Center, Nady Peralta, Clay Warner, and Larisa Zehr.
The case is Reyes, et al. v. Waples Mobile Home Park Limited Partnership, et al., No. 22-1660.