IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, HUMBERTO HERNANDEZ, ROSA LECHUGA, JOHN DOES 1-2, JOHN DOE 3, A MINOR, BY HIS PARENTS, JANE DOES 1-3 JOHN DOE 4, A MINOR, BY HIS PARENTS, BRENDA LEE MIELES, CASA DOMINICANA OF HAZLETON, INC., HAZLETON HISPANIC BUSINESS ASSOCIATION, and PENNSYLVANIA STATEWIDE LATINO COALITION,
Plaintiffs,

CIVIL ACTION NO.

CITY OF HAZLETON,

Defendant.

COMPLAINT
INTRODUCTION AND NATURE OF THE ACTION
On July 13,2006 the City of Hazleton ("Hazleton") passed the "Illegal Immigration Relief Act Ordinance" (the "Ordinance"). Blaming many of its ills, including crime, failing schools, rising tax rates and decaying neighborhoods on "illegal aliens," Hazleton passed the Ordinance with the express goal to drive what it calls "illegal aliens" out of town. The effect of the Ordinance has been to infringe the Constitutional rights of all Hazletonians who look or sound like "foreigners," not just those who are here in the United States "illegally."

The poorly drafted Ordinance is riddled with constitutional flaws and ignores the subtleties, complexities and primacy of Federal law. The Ordinance's focus on "illegal aliens" relies upon a term hastily and arbitrarily adopted by Hazleton, which term is at odds with Federal immigration law. One consequence of this Ordinance is that certain individuals are not and will not be able to live, work, shop or secure services in Hazleton without a U.S. birth certificate or identification papers in hand. If the Ordinance is allowed to stand, anyone who looks or sounds
"foreign" - regardless of their actual immigration status - will not be able to participate
meaningfully in life in Hazleton, returning to the days when discriminatory laws forbade certain classes of people from owning land, running businesses or living in certain places.
The Ordinance unlawfully infringes on the Federal government's authority over immigration, violating the Supremacy Clause, in two ways. The Ordinance defines - in a manner
inconsistent with Federal law - who is a lawful immigrant. Some people lawfully in this country
under Federal law, including some immigrants whose status may be unresolved, are deemed to be "illegal aliens" in Hazleton. Second, the Ordinance compels municipal officials and thrusts on private landlords, employers and merchants the responsibility to determine who is lawfully present in the United States, a very complex and difficult task properly and solely reserved to the Federal government.
The Ordinance violates the due process rights of landlords, employers and business owners by placing them in the intractable position of having, on the one hand, to demand proof of status from every suspected "illegal alien" to avoid the risk of incurring fines and losing municipal operating permits and licenses or, on the other hand, denying service to lawful residents as a precaution against violating the Ordinance, thereby risking liability for violating Federal and state anti-discrimination laws. The Ordinance is vague and overbroad, making compliance therewith nearly impossible.
The Ordinance constitutes invidious discrimination based on alienage and violates the equal protection rights of Hazleton residents by imposing on them the unique burden of having to produce proof of status as a condition precedent to obtaining housing, jobs, and necessary

goods and services. The Ordinance violates the due process rights of Plaintiffs by failing to afford any process for determining "illegal alien" status or challenging any such determination. The Ordinance impinges upon the First Amendment fkee speech rights of limited English proficiency residents by requiring that all written municipal government communications be in English. The Ordinance further violates the Pennsylvania Constitution and various Federal laws.
The Ordinance has already driven, and will likely continue to drive, foreign-looking or -sounding individuals out of Hazleton, out of fear of what is to come. Some who remain have had to close their operations due to a sharp decline of business, and all who remain already have experienced a sense of wariness, if not outright hostility, in Hazleton.
Through this Complaint, Plaintiffs ask this Court for the entry of jud,gnent declaring that the Ordinance is unconstitutional and unlawful, equitable relief in the form of a permanent injunction against the enforcement of the Ordinance, and monetary damages resulting from the Ordinance, and for costs and attorneys fees.
PARTIES 1. Plaintiff Pedro Lozano ("Lozano") is a resident of Hazleton. Plaintiff Lozano owns multiple rental units in Hazleton. 2. Plaintiff Lozano already has lost previously contracted tenants due to the Ordinance. Upon information and belief, Plaintiff Lozano has lost prospective tenants due to the Ordinance. Plaintiff Lozano does not know the immigration status of his present tenants, nor of the tenants he lost. 3. Plaintiff Humberto Hernandez ("Hernandez") is a resident of Hazleton. Plaintiff Hernandez owns a rooming house. 4. Plaintiff Hernandez has already lost tenants due to the Ordinance. Upon information and belief, Plaintiff Hernandez has lost prospective tenants due to the Ordinance.

Plaintiff Hernandez does not know the immigration status of his present tenants, nor of the tenants he lost.
5. It is difficult if not impossible for Plaintiffs Lozano and Hernandez to determine whether each of their tenants is or is not an "illegal alien" as defined by the Ordinance. Plaintiffs Lozano and Hernandez have received no guidance or training from Hazleton or others regarding how to determine whether an individual is an "illegal alien.'Plaintiffs Lozano and Hernandez have no expertise in applying immigration law or making immigration status determinations. Plaintiffs Lozano and Hernandez have no expertise in determining the authenticity of immigration-related documentation.
6. Because of the impossibility of h l l y complying with the Ordinance, it is likely that Plaintiffs Lozano and Hernandez will rent to a person who is classified as an "illegal alien" under the Ordinance.
7 . Plaintiffs Lozano and Hernandez know that individuals other than their tenants use the units and rooms that they lease. For example, Plaintiffs Lozano and Hernandez know that their tenants are visited by guests, family members and service personnel. Plaintiffs Lozano and Hernandez have no reasonable mechanism available to determine whether they are "providing" the rented premises to persons who are defined to be "illegal aliens" under the Ordinance. Because of the impossibility of fully complying with the Ordinance, it is likely that Plaintiffs Lozano and Hernandez will "provide" property to a person who is classified as an "illegal alien" under the Ordinance.
8. Plaintiffs Lozano and Hernandez are required to have a permit or license from Hazleton to operate their businesses.

9. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiffs
Lozano and Hernandez are likely to incur significant monetary fines for violating $ 5 4 and 5 of the Ordinance, and be refused a permit or license for at least five (5) years for violating 5 4.
10. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiffs Lozano and Hernandez will be exposed to additional liability if, in attempting to comply with the Ordinance, they take adverse action against an individual classified as an "illegal alien" under the Ordinance who is nonetheless lawfully present in the United States.
11. Plaintiff Rosa Lechuga ("Lechuga") is a resident of Hazleton. Plaintiff Lechuga and her husband own a grocery store and restaurant in Hazleton.
12. Plaintiff Lechuga and her husband came to the U.S. fiom Mexico in 1981. They inoved to Hazleton in 1991 to work on tomato and cucumber farms.
13. Plaintiff Lechuga and her husband opened their store approximately eight years ago; they opened their restaurant at the beginning of 2006.
14. Plaintiff Lechuga has lost much revenue since the Ordinance was enacted. Prior to the Ordinance, she served between 45- 130 customers per day at the restaurant, and between 95-130 customers per day at the store. After the Ordinance, she served between 6-7 persons per day at the restaurant and 20-23 persons per day at the store. The loss in revenue and profit arising from the Ordinance has forced her to try to sell the restaurant. Plaintiff Lechuga remains obligated to pay rent for the restaurant location under a lease.
15. Plaintiff Jane Doe 1 is a U.S. citizen who was born and raised in Sullivan County, Pennsylvania. She and her husband relocated to Hazleton because he received a well paying job. Plaintiff Jane Doe 1 took the opportunity to follow her dream and open a business. Plaintiff Jane Doe 1 and her husband own and operate a small family store in Hazleton.

16. Plaintiff Jane Doe 1 and her husband did not borrow any money to open their business. Instead, they used their life savings to start their store in Hazleton.
17. Prior to owning the store, Plaintiff Jane Doe 1 had a low-wage factory job. Since she opened the store, her income had improved. The family's financial outlook had improved so much in Hazleton that they have taken in a foster child, with the intent to adopt.
18. Since the Ordinance was passed, Plaintiff Jane Doe 1 has suffered a significant loss of business sales and profit. Before the Ordinance was passed, the store averaged approximately 20-25 customers per day; now the average is less than half of that amount.
19. Prior to the Ordinance, Plaintiff Jane Doe 1 and her husband were able to pay their bills from customer sales. Since the Ordinance was enacted, the receipts from the store no longer are sufficient to pay their bills.
20. After the Ordinance, many of Plaintiff Jane Doe 1's Latino and other customers and acquaintances have expressed fear and anxiety about Hazleton's Ordinance and social climate. Plaintiff Jane Doe 1 has learned that a number of Latino families have departed or plan to move out of Hazleton as a result of Hazleton's Ordinance and inhospitable climate.
21. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff Jane Doe 1 expects to lose more clients and revenue and will be forced to close her family's small business.
22. It is impossible for Plaintiffs Lechuga and Jane Doe 1 to determine whether each new worker they may hire or customer they may serve is an "illegal alien" as defined by the Ordinance. They have received no guidance or training from Hazleton or others regarding how to determine whether an individual is an "illegal alien." Plaintiffs Lechuga and Jane Doe 1 have no expertise in determining the authenticity of immigration-related documentation.

23. If Plaintiff Lechuga and Jane Doe 1 needed to hire workers, demanding particular documentation necessary to determine whether an individual is an "illegal alien" under the Ordinance may expose them to federally-imposed fines for "document abuse" - that is, demanding documents that they are barred from demanding under the Federal rules for verifying work authorization.
24. It may be impossible for Plaintiffs Lechuga and Jane Doe 1 to comply with the Ordinance without violating federally-imposed obligations.
25. Because of the impossibility of fully complying with the Ordinance, it is likely that Plaintiffs Lechuga and Jane Doe 1 will employ a worker who is classified as an "illegal alien" under the Ordinance.
26. Plaintiffs Lechuga and Jane Doe 1 are required to have a permit or license from Hazleton to operate their businesses.
27. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiffs
Lechuga and Jane Doe I are likely to incur significant monetary fines for violating $5 4 and 5 of
the Ordinance, and be refused a permit or license for at least five (5) years for violating $ 4 . 28. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiffs
Lechuga and Jane Doe 1 will be exposed to additional liability if, in attempting to comply with the Ordinance, they take adverse action against an individual classified as an "illegal alien" under the Ordinance who is nonetheless lawfully present in the United States.
29. After the enactment of the Ordinance, Plaintiff Jane Doe 1 and her family have not only experienced business loss, they have also experienced direct persecution and anti-Latino harassment (e.g., "Go back to your country!!" "Get out" ". ..go back from where you came from.. .") directed at them about once or twice a week from people driving past their store.

30. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff Jane Doe I and her family will be forced to leave Hazleton because of the inhospitable environment and their financial loss.
31. Plaintiff Jane Doe 2 is 26 years old. She resides in Hazleton. 32. Plaintiff Jane Doe 2 is from the Dominican Republic. Plaintiff Jane Doe 2 entered the United States on a visitor's visa in 2000. Her authorized period of stay was six months. Plaintiff Jane Doe did not depart from the United States after six months. 33. Plaintiff Jane Doe 2 married a Lawful Permanent Resident, also from the Dominican Republic, in February, 2002. Her husband filed a family-based permanent residency petition on her behalf in or about 2003. 34. Plaintiff Jane Doe 2 left her husband in 2004, however, because he was physically abusive. She filed for a Protective Order and has a Protection From Abuse Order effective until October, 2006. In the summer of 2005, her husband withdrew his petition to sponsor her for permanent residency and filed for divorce. 35. In February, 2006, Plaintiff Jane Doe 2 petitioned on her own behalf for a change in status under the Violence Against Women Act ("VAWA"). She has received confirmation that her application has been received. 36. Even though Plaintiff Jane Doe 2 is classified as a VAWA applicant by the Federal government, and would not be removed from the country while her application is pending, she falls within the definition of an "illegal alien" under the Ordinance. Even when Plaintiff Jane Doe 2's status is adjusted under Federal immigration law, she will continue to fall within the definition of an "illegal alien" under the Ordinance.

37. Plaintiff Jane Doe 2 has a five year old daughter from her marriage and is currently pregnant. Her daughter is a U.S. citizen. Her daughter would have attended public school in the Hazleton Area School District commencing in 2006.
38. Plaintiff Jane Doe 2 is very concerned about having a place to live since the Ordinance was passed. Plaintiff Jane Doe 2's landlord has already notified her that he is considering his options if she cannot prove legal status under the Ordinance, due to the $1,000 per day penalty that could be imposed on landlords.
39. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff Jane Doe 2 and her family are likely to lose their home, and her daughter will be unable to attend Hazleton area schools, because they will be forced to leave the municipality.
40. Plaintiff Jane Doe 3 is an Italian citizen. She is a resident of Hazleton. 41. Plaintiff Jane Doe 3 is a Lawful Permanent Resident. Plaintiff Jane Doe 3, however, has lost her Green Card and is in the process of replacing it. 42. She is the mother of three children aged 5, 10 and 13. All of the children have attended, or planned to attend, public school in the Hazleton Area School District. 43. One of the children is a citizen of the United States. Two of the children are Italian citizens who entered the United States pursuant to the Visa Waiver program, but failed to depart after the designated length of time. 44. Plaintiff Jane Doe 3 plans to become a naturalized citizen as soon as possible, but anticipates that the required process will take at least several months. Once she becomes a naturalized citizen, Plaintiff Jane Doe 3 plans to sponsor her non-citizen children to become Lawful Permanent Residents.

45. Because of the Ordinance, Plaintiff Jane Doe 3 is afraid to allow her children to attend school in the Hazleton Area School District and is planning to move out of the area.
46. Until she obtains a replacement Green Card, Plaintiff Jane Doe 3 will be unable to prove her Lawful Permanent Resident status and will be unable to live, work, or obtain goods and services in Hazleton.
47. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff Jane Doe 3's children will be unable to attend school in Hazleton and Plaintiff Jane Doe 3 and her family will be forced to leave Hazleton.
48. Plaintiff John Doe 1 emigrated fi-om Italy. He has been a Lawful Permanent Resident since childhood.
49. Plaintiff John Doe 1 is an adult. He works in, and obtains goods and services in, Hazleton.
50. Plaintiff John Doe 1 lost his Green Card. He has filed an application to replace his Green Card. Plaintiff John Doe 1 has no other way to prove his immigration status. Plaintiff John Doe 1 will be unable to prove that he is not an "illegal alien" as that term is defined under the Ordinance until he receives his replacement Green Card.
5 1. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff John Doe 1 will be unable to rent, work, or obtain goods and services in Hazleton because he cannot prove his immigration status.
52. Plaintiff John Doe 1 is currently employed and his current employer is aware of his immigration status. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff John Doe 1 will be unable to obtain new or different employment in Hazleton, at least until he receives his replacement Green Card.

53. Plaintiff John Doe 2 emigrated from Mexico. He came to the United States in or about 1995 without a visa. Plaintiff John Doe 2 has since married a United States citizen. He has an application to adjust his status to Lawful Permanent Resident pending before the U.S. Citizenship and Immigration Service. In the meantime, he has been authorized to work in the U.S. by the Federal government.
54. Although Plaintiff John Doe 2 is authorized to work and live in the U.S. under Federal authority, he is classified as an "illegal alien" under the Ordinance.
55. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff John Doe 2 will be prohibited from working, living, or obtaining goods and services in Hazleton.
56. Plaintiff John Doe 3 is an undocumented child. His mother is a U.S. citizen. He will be attending high school next year in Hazleton. He is intent on graduating from high school so he can join the U.S. military. Under the Ordinance, John Doe 3 is unable to purchase or procure goods or services in Hazleton, including certain educational and related services.
57. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff John Doe 3's family will be forced to leave the Hazleton area because he will be unable to attend school in Hazleton.
58. Plaintiff John Doe 4 is a resident of Hazleton. He is a high school student and was born in the Dominican Republic. Plaintiff John Doe 4 is a Lawful Permanent Resident. Plaintiff John Doe 4 is not fluent in written or spoken English. When Plaintiff John Doe 4 receives documents from school in English, he needs to have them translated to understand them. His parents also do not speak English fluently.

59. Plaintiff John Doe 4 relies on multiple services provided by Hazleton, including the Police Department and, in the past, he has needed to communicate with Hazleton officials, employees and agents.
60. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff John Doe 4 will be unable to access, or will face severe difficulty in accessing, city services because of the Ordinance's requirement that official written city business be conducted in English. In fact, Plaintiff John Doe 4 encountered such a problem in mid July 2006.
61. Upon the apparent theft of his bicycle, Plaintiff John Doe 4 attempted to obtain police assistance. He went to the Hazleton Police Department. The Hazleton Police Department declined to assist Plaintiff John Doe 4 with the filing of a written police report, due to his limited English proficiency, and no such report was taken.
62. Plaintiff Brenda Lee Mieles ("Mieles") is a resident of Hazleton. Plaintiff Mieles has been in the continental United States for 16 years; she has been in Hazleton for three years.
63. Plaintiff Mieles is a citizen of the United States born in Puerto Rico. Her only English-language form of identification is a Social Security card.
64. Plaintiff Mieles speaks very little English. 65. Plaintiff Mieles has epilepsy, as well as other medical conditions. She has had difficulty accessing medical assistance in Hazleton because of the Ordinance. On June 15,2006, Plaintiff Mieles went to Greater Hazleton Health Alliance emergency room seeking treatment. Plaintiff Mieles was sent away without receiving treatment due to communication problems. 66. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff Mieles will be unable to obtain timely and adequate medical care. The Ordinance declares English the official language of Hazleton, and requires that all official city business be written in

English. It is likely that health care providers, being unable to determine her status under the Ordinance, will choose to refuse to treat Plaintiff Mieles for her non-emergency conditions to
avoid being penalized under 6 4 of the Ordinance.
67. Unless the Ordinance is permanently enjoined and declared invalid, Plaintiff Mieles will be unable to live, work, or obtain goods and services in Hazleton.
68. Plaintiffs Lozano, Hernandez, Lechuga, Mieles, and John Does 1-4 and Jane Does 1-3 are collectively referred to herein as "Individual Plaintiffs."
69. All Individual Plaintiffs require and seek the provision of goods and services in Hazleton and the Ordinance will adversely impact their ability to procure such goods and services.
70. Plaintiff Casa Dominicana of Hazleton, Inc. ("Casa Dominicana") is a Pennsylvania non-profit organization.
7 1. Casa Dominicana's primary purpose is to promote the Hispanic culture and empower the Hispanic community of Hazleton. Prior to the enactment of the Ordinance, Casa Dominicana had approximately 150 members. Its membership has now dwindled to approximately 110 members.
72. Casa Dominicana does not require its members to prove their citizenship, residency or immigration status as a condition to membership. The Ordinance has created great hostility towards the Latino community in Hazleton and therefore adversely affects the work Casa Dominicana performs in Hazleton and for Hazleton residents.
73. Casa Dominicana's membership and constituency (herein, collectively "members") includes individuals - many but not all of whom are Latino - who reside and who are employed in and around Hazleton, some of whom have school-aged children. The

membership includes persons who have Spanish as their native tongue with a limited proficiency in English, and persons who communicate with Hazleton government employees.
74. The interests Casa Dominicana seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of Casa Dominicans's members.
75. Plaintiff Hazleton Hispanic Business Association ("HHBA") is a Pennsylvania non-profit organization. HHBA's purpose is to promote the business interests of its members. HHBA does not require its individual members to prove their citizenship, residency or immigration status as a condition to membership. The Ordinance has generated great hostility towards the Latino community in Hazleton and therefore adversely affects the work HHBA performs in Hazleton and for Hazleton businesses and residents.
76. HHBA's membership and constituency (herein, collectively "members") includes individuals - many but not all of whom are Latino or who service Latino and other customers who reside or operate businesses in and around Hazleton, some of whom have school-aged children. The membership includes business owners and landlords.
77. The HHBA's membership includes individuals who have Spanish as their native tongue with a limited proficiency in English. HHBA's members also include persons who communicate with Hazleton government employees.
78. The interests HHBA seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of HHBA's members.
79. Plaintiff Pennsylvania Statewide Latino Coalition ("PSLC") is a Pennsylvania non-profit organization. Plaintiff PSLC is a non-partisan alliance of Latino leaders,

organizations, community activists, students, and individuals that serves as a statewide institutional catalyst for positive social change and political advancement. Its primary purpose is as an advocate organization for Latinos in the Commonwealth of Pennsylvania. PSLC does not require its members to prove their citizenship, residency or immigration status as a condition to membership.
80. PSLC7smembership and constituency (herein, collectively "members") includes individuals who reside or operate businesses in and around Hazleton, including but not limited to Dr. Agapito Lopez and Anna Arias. Some of PSLC's members have school aged children. PSLC7smembers include persons who have Spanish as their native tongue with a limited proficiency in English. PSLC's members also include persons who communicate with Hazleton government employees.
81. The interests PSLC seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of PSLC's members and constituents.
82. PSLC has expended, and will continue to expend, its own resources to advocate against enactment and enforcement of the Ordinance and similar ordinances throughout the Commonwealth of Pennsylvania, as well as in providing assistance to its members impacted by the Ordinance.
83. Plaintiffs Casa Dominicana, HHBA and PSLC are collectively referred to herein as "Plaintiff Organizations."
84. Defendant City of Hazleton ("Hazleton") is a city of the third class existing pursuant to Pennsylvania law, with its principal place of business located at Hazleton City Hall, Hazleton, Luzerne County, Pennsylvania 18201.

85. At all relevant times described herein, Hazleton acted through its duly authorized agents, Mayor Louis J. Barletta ("Mayor Barletta"), Joseph Yannuzzi, President of City Council, Jack Mundie, Vice-President of City Council, and City Council members Evelyn Graham, Tom Gabos and Robert Nilles.
86. At all times alleged herein, Hazleton's officials, employees and agents were acting under color of state law.
JURISDICTION AND VENUE
87. This Court has original jurisdiction pursuant to 28 U.S.C. $5 1331 and 1343 over Plaintiffs' causes of action under the Constitution of the United States, 42 U.S.C. $5 1981 and
1983, the Fair Housing Act, 42 U.S.C. $ $ 3601 et seq., and the Declaratory Judgment Act, 28
U.S.C. $9 2201 and 2202. This Court has supplemental jurisdiction over Plaintiffs' cause of action under the Constitution of the Commonwealth of Pennsylvania pursuant to 28 U.S.C. 5
1367. 88. This Court has personal jurisdiction over Hazleton, which is located in the Middle
District of Pennsylvania. 89. Venue is proper in the Middle District of Pennsylvania pursuant to 28 U.S.C.
9 1391(a) in that Hazleton is subject to personal jurisdiction within the Middle District of
Pennsylvania, and the events which give rise to this action occurred within the Middle District of Pennsylvania.

T H E ORDINANCE
90. On June 15, 2006, Mayor Barletta introduced the Ordinance to the Hazleton City Council, and it received its first reading.
91. The Mayor proposed the Ordinance amid a passionate national debate over Federal immigration policy at the very time that the United States Congress was holding hearings across the country regarding competing bills to amend Federal immigration law.
92. On July 13,2006, an amended version of the Ordinance received two more readings before the City Council and Hazleton's City Council approved the Ordinance, which consists of seven sections: Title (section 1); Findings and Declaration of Purpose (section 2); Definitions (section 3); Business Permits, Contracts or Grants (section 4); Renting to Illegal Aliens (section 5); English Only (section 6); and Severability (section 7).
93. On its third reading, all members of City Council, with the exception of Councilman Nilles, voted in favor of the Ordinance. A true and correct copy of the Ordinance is attached hereto as Exhibit "A."
OPERATION OF THE ORDINANCE
94. The intent and effect of the Ordinance is to regulate immigration in Hazleton and the United States independently of the Federal government.
95. The Ordinance defines a group of individuals as "illegal aliens" and sets forth a comprehensive scheme intended to eliminate this group of individuals from Hazleton by forbidding their employment, residence and presence - with the intent and effect of forcing them to leave the city.

96. The Ordinance's definition of "illegal alien" is independent from and
incompatible with Federal immigration law. The Ordinance classifies as "illegal" many
individuals who the Federal government allows to reside or work in the United States, even
including some U.S. citizens and lawful permanent residents.
97. Plaintiff John Doe 2, in particular, is included within the definition of "illegal
alien" under the Ordinance but he is in fact living and working in the United States with the fbll
knowledge of the Federal government.
98. By its terms, the Ordinance adversely affects the Individual Plaintiffs and
members of the Plaintiff Organizations including individuals who are U.S. citizens, lawful
permanent residents, or otherwise allowed to remain and/or work in the United States.
99. The Ordinance harms the Plaintiffs and members of the Plaintiff Organizations by
imposing a monetary penalty of no less than $1000 per violation per day for any of the following
activities:
(a) hiring, attempted hiring or retaining of "illegal aliens;"
(b) providing, renting or leasing real or personal property to "illegal aliens;"
(c) funding or providing goods and services to "illegal aliens," except for the rendering of emergency medical care, emergency assistance and legal assistance;
(d) otherwise "aiding or abetting" "illegal aliens" or illegal immigration into the United States, whether directly or by or through any agent, ruse, guise, device or means, no matter how indirect;
(e) undertaking any action or any failure to act done within the boundaries of Hazleton that "aids or abets" "illegal aliens" or facilitates their avoiding detection and apprehension anywhere in the United States, its territories or possessions;
(f) funding, providing goods or services to or aiding in the establishment or continuation of any day labor center or other entity providing similar services unless the entity acts with due diligence to verify, inter alia, the employed or retained individual is not an "illegal alien;" and

(g) for any property owner or renterltenantllessee in control of property, knowingly allowing an "illegal alien" to use, rent or lease their property.
100. The Ordinance harms Plaintiffs Lozano, Hernandez, Lechuga and Jane Doe 1, and members of the Plaintiff Organizations, by subjecting them to the risk they may be denied permits or licenses, or city contracts, or grants, for at least five years for a first violation and for a ten-year period for any subsequent violation, for all activity listed above except subparagraph (8).
101. The plain effect of the Ordinance is to make "illegal aliens" untouchable and to banish them from Hazleton. If the Ordinance is allowed to go into effect, it will be impossible for anyone who is an "illegal alien" as defined by the Ordinance to live or conduct any sort of business in Hazleton.
102. Hazleton intended for the Ordinance to have this effect. 103. Mayor Barletta himself testified, "[llet me be clear - this ordinance is intended to make Hazleton one of the most difficult places in the U.S. for illegal immigrants." 104. Numerous individuals known to Plaintiffs and, upon information and belief, members of Plaintiff Organizations, have already left Hazleton as a result of the Ordinance. Plaintiffs Lechuga, Jane Doe 1, Jane Doe 2 and Jane Doe 3, and the families of John Doe 3 and John Doe 4, currently are contemplating whether to leave Hazleton because they believe that life will become intolerably difficult once full enforcement of the Ordinance begins. Numerous persons known to Plaintiffs and, upon information and belief, members of Plaintiff Organizations, no longer seek rental units, goods or services in Hazleton after the adoption of the Ordinance.

105. Plaintiffs Lozano, Hernandez, Lechuga and Jane Doe 1 and, upon information and belief, members of Plaintiff Organizations, have suffered significant economic losses because of the exodus of persons (of all immigration statuses) from Hazleton and from conducting business in Hazleton.
106. In enacting the Ordinance, Hazleton also intended to eliminate from the area classrooms and schools "illegal alien" children and children of "illegal aliens," who may well be United States citizens.
107. Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, and their children, as well as John Doe 3 and John Doe 4, have suffered and will suffer harm arising from the inability of "illegal alien" children to attend school or be schooled in Hazleton.
108. The Ordinance forbids entities and any parent, affiliate, subsidiary or agent of any entity from employing, retaining or "aiding or abetting" "illegal aliens." The Ordinance purports to exempt from its purview any charity recognized as exempt from Federal taxation under Section 501 of the Internal Revenue Code. However, the Ordinance bars such charities from approval or renewal of a business permit, and any city contract or grant, for at least five years, if such charity "aids or abets" any "illegal alien."
109. Plaintiff Casa Dorninicana is a charitable organization exempt from Federal taxation under Section 501 of the Internal Revenue Code. The Ordinance places Casa Dominicana in the untenable position of ignoring fulfillment of its charitable missions and thus risking its tax-exempt status or being forced to forego business permits, contracts or grants that it requires or may desire to obtain.
110. The Plaintiff Organizations refer their members to charitable organizations in and around Hazleton as a means of providing membership and constituency services. Upon

information and belief, members of Plaintiff Organizations have accessed, and will have need in the future to access, advice, goods and services from tax-exempt charities including, for example, organizations that assist persons with cancer, heart disease or other medical conditions. Upon information and belief, members of Plaintiff Organizations will be harmed by an inability to access advice, good or services from local charities.
I 11. The Ordinance states that the official language of Hazleton is English. 112. The Ordinance states that all official city business, documents, forms and signage "will be written in English only." The Ordinance provides that this "English Only" requirement can give way only when "explicitly mandated" by conflicting Federal, state, or city provisions. 113. Plaintiffs John Doe 4 and Mieles and, upon information and belief, members of the Plaintiff Organizations, have suffered and will suffer harm arising from the "English Only" provisions of the Ordinance.
FEDERAL REGULATION OF IMMIGRATION
114. The power to regulate immigration is unquestionably an exclusively Federal power that derives from the Constitution's grant to the Federal government of the power to
"establish a uniform Rule of Naturalization," U.S. Const. art. I, 5 8, cl. 4., and to "regulate
Commerce with foreign Nations." Id., cl. 3. In addition, the Supreme Court has held that the Federal government's power to control immigration is inherent in the nation's sovereignty.
115. Pursuant to its exclusive power over matters of immigration, the Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine, subject to judicial review, whether and under what conditions a given individual may enter, stay in, and work in the United States.

116. In addition to provisions that directly regulate immigrants' entry and behavior, the Federal immigration laws also include provisions directed at other classes of individuals, such as those who employ or assist immigrants. Thus, the comprehensive Federal immigration scheme includes sanctions, documentation, and anti-discrimination provisions directly applicable to employers, as well as a criminal and civil scheme applicable to those who assist individuals who are not lawfully in the United States.
117. The Federal government has also chosen to allow certain categories of noncitizens, and certain individual non-citizens, to remain in the United States, even though such non-citizens may not have valid immigrant (permanent) or non-immigrant (temporary) status and/or may be removable under the Federal Immigration and Nationality Act ("INA), 8 U.S.C. § 1101 et seq.
118. Federal laws and policies aimed at reducing illegal immigration include safe harbor and other provisions regarding the appropriate reach of such laws. For example, employers who have complied in good faith with the employment documentation procedures set forth in the INA have an affirmative defense to liability under the INA's employer-sanctions scheme.
119. These laws, procedures, and policies created by the Federal government regulate immigration and confer rights in a careful balance reflecting the national interest.
THE ORDINANCE IS AT ODDS WITH THE FEDERAL IMMIGRATION SCHEME
120. The Ordinance sets forth a definition of "illegal aliens" that fails to refer to or incorporate any classification in Federal immigration law and is distinct from any classification established by the INA.

121. The definition of "illegal alien" in the Ordinance is incompatible with and contrary to Federal law. The Ordinance classifies numerous individuals as "illegal aliens," when their presence andlor employment in the United States does not violate Federal law, such as permanent residents and potentially naturalized citizens.
122. The Ordinance defines "illegal aliens" as including certain individuals whose
"current status is ... illegal," notwithstanding that the term "illegal status" does not appear in the
INA and has no meaning in the Federal immigration scheme. 123. Neither Hazleton, nor its officials, employees, agents or residents, are authorized
to conduct the proceedings required under the Constitution and Federal law to determine whether an individual has lawfully entered or remained in the United States. Hazleton officials, employees, agents and residents also lack the authority to make discretionary decisions regarding an individual's ability to stay and/or work in the United States. Designated Federal officials are the only persons authorized to undertake such proceedings and make such determinations.
124. The Ordinance does not set forth any procedure for determining whether an individual is an "illegal alien," or any process by which an individual can challenge a determination that he or she is an "illegal alien" as defined by the Ordinance.
125. For many persons, no document or combination of documents can conclusively establish whether or not they are "illegal aliens" as defined by the Ordinance.
126. Upon information and belief, city officials, employees and agents, and the landlords, employers and other residents of Hazleton who are required to implement the Ordinance, have no expertise or experience in applying immigration law, making immigration status determinations, or determining the authenticity of immigration-related documentation. They have not been trained as Federal immigration officials and cannot accurately implement the

Ordinance's provisions. In implementing and enforcing the Ordinance, these persons will be compelled to demand documentation under circumstances prohibited by Federal law.
127. City officials, employees and agents charged with enforcing the Ordinance will have to determine whether a business, lessor or other person actually hired, provided goods or services or leased to an "illegal alien" before exacting penalties. However, due to the complexity of immigration laws, these officials will likewise be incapable of accurately deciphering a person's immigration status.
128. Due to the Ordinance's improper definition of "illegal alien" and the lack of procedural safeguards, some Individual Plaintiffs and members of Plaintiff Organizations who are permitted by the Federal government to live and/or work in the United States will nevertheless be barred from doing so in Hazleton.
THE ORDINANCE'S ENGLISH ONLY PROVISION
129. Although the Ordinance provides that English is the official language of Hazleton, and that all city business and documents, forms and signage "will be written in English only," the Ordinance does not provide a definition of "English" itself.
130. The Ordinance's inappropriate restriction on the use of languages other than English harms many people of various heritages who are legally residing in the Hazleton community.
131. From its origin as a nation state, the United States of America has been a multicultural and a multilingual country. The Articles of Confederation were originally printed in both German and English. The appropriation of Native American and Mexican land, successive waves of immigration from European and Asian countries, and territorial additions

including Puerto Rico, Hawaii and the Philippines further expanded the linguistic diversity of our nation.
132. Likewise, Pennsylvania, from its inception, has welcomed people who spoke languages other than English and embraced the variety of cultures which they brought with them. Public services historically have been available in their native languages to speakers of Gesman, Polish, Russian, Yiddish, Italian, Hungarian, and a variety of other languages. Pennsylvania's lnultilingual history is illustrated by an 1837 Pennsylvania law that required school instruction in both Gesman and English. The Commonwealth's linguistic and cultural diversity has enriched and strengthened the fabric of life in Pennsylvania.
133. According to the U.S. Census for the year 2000, more than 972,000 people in Pennsylvania spoke a language other than English at home, and more than 368,000 of these people spoke English less than "very well." These numbers are growing rapidly in Pennsylvania.
134. The notion that increases in foreign-born population at the state and local level are detrimental to the employment prospects of native-born workers is an unwarranted assumption on the part of Mayor Barletta and City Council. According to a recently released report of the Pew Hispanic Center, there is no discernable negative impact on native-born workers, particularly in states, such as Pennsylvania, where the growth in native born workers in recent years is below the national average. Indeed, the Pew Hispanic Center study and report identifies Pennsylvania as a state with below-average foreign-born workforce growth and a below-average native-born employment rate.
135. Plaintiff Mieles is and, upon information and belief, members of Plaintiff Organizations are, Puerto Rican and U.S. citizens (herein, collectively "Puerto Rican Plaintiffs"). The Ordinance's English only requirement harms the Puerto Rican Plaintiffs. In

1898, Puerto Rico became a territory of the United States as a result of the Spanish-American War. In 1917, the Jones Act granted United States citizenship to Puerto Ricans and guaranteed them the right to continue to use Spanish as their native language. Puerto Rican Plaintiffs are United States citizens, who have the same rights as any other citizen. Puerto Rican Plaintiffs should not be denied their right to communicate with Hazleton and its elected officials and employees any more than would people who were originally from Ohio or Alabama.
136. The restriction on the ability of Plaintiffs to communicate with Hazleton has a negative impact on the access of government services by Plaintiffs.
137. The "English Only" requirements apply to Plaintiffs and all Hazleton residents without regard to their inability to comply with such a requirement, due to youth, advanced age, or cognitive, physical or other limitations, or recent entry into the United States with insufficient time to perfect their English language skills.
138. Plaintiffs John Doe 4 and Mieles and, upon information and belief, members of Plaintiff Organizations, have limited English proficiency (herein, collectively "LEP Plaintiffs").
139. The "English Only" provision is detrimental to health, safety, economic, social, and cultural interests of the LEP Plaintiffs and the Hazleton community generally, and serves no legitimate governmental function.
140. The fact that the Ordinance's English Only provision creates limited exceptions based on the requirements of Federal or other applicable, superseding law is inconsequential to the harm suffered by LEP Plaintiffs. The vast complexity of Federal, state, and local laws and regulations in this arena creates an unnavigable morass of unknowns as to when those exceptions do or do not apply and does not alleviate or lessen the improper burden placed upon

LEP Plaintiffs when they attempt to communicate effectively with Hazleton, or its officials,
employees or agents.
141. The "English Only" standard prevents LEP Plaintiffs from effectively
communicating with or expressing grievances to Hazleton and its officials, employees and agents
and, upon information and belief, will prevent LEP Plaintiffs from obtaining important
information from Hazleton.
142. On its face, the "English Only" requirement is totally unrelated to the factors upon
which the Ordinance is predicated: namely, forestalling future criminal activity in and reducing
economic pressures on Hazleton.
143. Enactment and enforcement of the Ordinance will deprive Plaintiffs, as well as
countless other members of the community, of their Constitutionally and statutorily guaranteed
civil rights.
144. Unless an injunction issues from the Court preventing the enforcement of the
Ordinance, Plaintiffs will suffer irreparable harm for which there is no adequate remedy at law.
FIRST CAUSE OF ACTION VIOLATION OF THE SUPREMACY CLAUSE
145. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 144 above as
though set forth at length herein.
146. Article VI, Section 2, of the United States Constitution provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.

147. The Supremacy Clause mandates that Federal law preempts any state regulation of any area over which Congress has expressly or impliedly exercised exclusive authority or which is constitutionally reserved to the Federal government.
148. The power to regulate immigration is an exclusively Federal power. 149. The Ordinance, in its entirety, is admittedly a law purporting to regulate immigration and the incidents thereof. 150. The Ordinance usurps the Federal government's exclusive power over immigration and naturalization and its power to regulate foreign affairs. 151. The Federal government already has enacted a comprehensive statutory and regulatory scheme governing immigration, including the Immigration and Nationality Act. 152. The Ordinance usurps the Federal power to define the categories of immigrants who are in the United States, as well as the consequences thereof. The Ordinance is preempted because it attempts to legislate in fields occupied by the Federal government and because it conflicts with Federal laws, regulations, policies and objectives. 153. The Ordinance both empowers and imposes the obligation to assess an individual's immigration status on persons who have no particular knowledge or training to do SO. 154. Demanding particular documentation necessary to determine whether an individual is an "illegal alien" under the Ordinance may expose Plaintiffs to federally-imposed fines. Restricting access to housing, goods, and services may expose Plaintiffs to additional liability under Federal law. 155. It is impossible for Plaintiffs to comply with the Ordinance without violating federally-imposed obligations.

156. The Ordinance exceeds Hazleton's police power and violates the Supremacy Clause of the Constitution.
157. As a result of Hazleton's violation of the Supremacy Clause by enacting the Ordinance, Plaintiffs are entitled to declaratory and injunctive relief.
SECOND CAUSE OF ACTION VIOLATION OF DUE PROCESS DUE TO VAGUENESS 158. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 157 above as though set forth at length herein. 159. The Ordinance is void for vagueness because it forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. 160. The Ordinance is so vague in its definitions-including but not limited to the definition of "illegal alienn-that Plaintiffs and others dealing with Plaintiffs will be unable to comply with the Ordinance in a consistent manner. The Ordinance does not define the term "illegal." Plaintiffs and others dealing with Plaintiffs will have to guess as at the immigration status of Plaintiffs, based upon improper gauges such as color of skin and foreign accents. 161. Plaintiffs Lozano, Hernandez, Lechuga and Jane Doe 1, and members of the Plaintiff Organizations, cannot know how to comply with the Ordinance and avoid its severe monetary and other penalties from renting to or doing business with "illegal aliens." 162. Plaintiffs who lack clear-cut documents such as a U.S. birth certificate, passport or current visa who are lawfully permitted to resident and work in the United States are deemed "illegal aliens" due to the Ordinance's over breadth. 163. The Ordinance denies the issuance or renewal of business permits and the ability to contract with or receive grants from Hazleton to anyone who "aids or abets" "illegal aliens or

illegal immigration." The Ordinance fails to specify the precise conduct that constitutes "aiding and abetting" for the purposes thereof, For example, the Ordinance lists four (4) activities that are included within the definition of "aids or abets," but then explicitly provides that the definition of "aids or abets" is not limited to those four (4) activities. Plaintiffs and no other person of reasonable intelligence can decipher what conduct is or is not regulated by the Ordinance.
164. The Ordinance is overbroad because it regulates activity far beyond the bounds of Hazleton, Pennsylvania.
165. The vague, overbroad and haphazard language and application of the Ordinance violates the due process rights of Plaintiffs.
166. As a result, Plaintiffs are entitled to declaratory and injunctive relief. THIRD CAUSE OF ACTION
VIOLATION OF DUE PROCESS DUE TO PROCEDURAL DEFECTS 167. Plaintiffs incorporate by reference the allegations of paragraphs I to 166 above as though set forth at length herein. 168. The Fourteenth Amendment to the United States Constitution guarantees to Plaintiffs certain fundamental rights, including but not limited to, the right to contract and engage in the common occupations of life and to establish a home and bring up children. 169. By defining certain categories of persons as "illegal aliens," and effectively prohibiting them from residing, working, or buying food and other necessities in Hazleton, the Ordinance infringes upon, limits or eliminates these protected liberties to which Plaintiffs are entitled. 170. By prohibiting the lease or rental of property to "illegal aliens," the Ordinance violates Plaintiffs' right to contract and unduly restricts Individual Plaintiffs' right to establish a

home and bring up children. By creating an onerous process for hiring employees, the Ordinance denies and unduly resists Plaintiffs' right to engage in the "common occupations of life."
171. Because the Ordinance limits fundamental rights guaranteed by the United States Constitution, the Ordinance can only be justified by a compelling governmental interest.
172. Hazleton does not have any compelling interest in limiting or restricting the fundamental rights of Plaintiffs by enacting the Ordinance.
173. The Ordinance is not narrowly tailored to express only legitimate governmental interests.
174. The Ordinance has no relation to any legitimate government purpose and Hazleton does not have any rational basis for its enactment.
175. As a result, the Ordinance violates Plaintiffs' Substantive Due Process Rights protected by the Fourteenth Amendment.
176. Therefore, Plaintiffs are entitled to declaratory and injunctive relief. FOURTH CAUSE OF ACTION
VIOLATION OF EQUAL PROTECTION 177. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 176 above as though set forth at length herein. 178. The Ordinance creates an impermissible alienage classification. 179. The Ordinance creates an alienage classification that includes Plaintiffs and numerous individuals lawfully present in the United States and denies to those individuals rights and privileges which it grants to those outside the class. 180. The Ordinance is invalid under the Fourteenth Amendment of the United States Constitution.

181. As a result of the current and threatened violations of their fundamental right to equal protection, Plaintiffs are entitled to declaratory and injunctive relief.
FIFTH CAUSE OF ACTION VIOLATION OF EQUAL PROTECTION DENIAL OF EDUCATION TO ALIEN CHILDREN 182. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 181 above as though set forth at length herein. 183. The Ordinance seeks to deny a group of children defined as "illegal aliens" and the children of "illegal aliens," access to public education, in violation of the Fourteenth Amendment. 184. As a result of the current and threatened violations of their fundamental right to equal protection, Plaintiffs are entitled to declaratory and injunctive relief.
SIXTH CAUSE OF ACTION VIOLATION OF THE FIRST AMENDMENT 185. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 184 above as though set forth at length herein. 186. A major purpose of the First Amendment is to protect the free discussion of governmental affairs. 187. By offering such protection, the First Amendment serves to ensure that the Plaintiffs can effectively participate in and contribute to our republican system of selfgovernment. 188. The Ordinance effectively gags LEP Plaintiffs from effectively receiving information from and providing information to Hazleton, and its officials, employees and agents. 189. Pursuant to its "English Only" provision, the Ordinance effectively cuts off written governmental communication with LEP Plaintiffs, and all limited-English-proficient and

non-English-speaking persons in Hazleton, before it even happens, thus chilling potential speech before it happens, in violation of the First Amendment.
190. The "English Only" provision in the Ordinance deprives Plaintiffs from communications with Hazleton even when Hazleton's public officials and employees have the ability and the desire to communicate in a language understandable to Plaintiff, in violation of the First Amendment.
191. As a result, Plaintiffs are entitled to declaratory and injunctive relief. SEVENTH CAUSE OF ACTION
VIOLATION OF EQUAL PROTECTION 192. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 191 above as though set forth at length herein. 193. Because the Ordinance discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the Ordinance be finely tailored to serve substantial governmental interests, and the justifications offered for any distinctions drawn must be strictly scrutinized. 194. The Ordinance's "English Only" provision restricts the ability of LEP Plaintiffs to effectively participate in and contribute to our republican system of self-government. 195. The Ordinance's English Only provision serves no substantial governmental interest. 196. As a result, Plaintiffs are entitled to declaratory and injunctive relief.
EIGHTH CAUSE OF ACTION
VIOLATION OF 42 U.S.C. 5 1981
197. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 196 above as though set forth at length herein.

198. The fundamental right to contract and to full and equal benefit of all laws is
codified under 42 U.S.C. 5 1981, as amended by Section 101 of the Civil Rights Act of 1991. 199. Pursuant to 42 U.S.C. 5 1981, "All persons within the jurisdiction of the United
States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
200. Section 1981 prohibits discrimination under the color of law based on alienage and race.
201. Congress deliberately used "all persons" instead of "citizens" in order to reflect the language of the recently ratified Fourteenth Amendment that extended the guarantee of equal protection under the laws to "any person within the jurisdiction of the United States."
202. Plaintiffs are entitled to the protections and benefits afforded by Section 1981, including Plaintiffs categorized as "illegal aliens" under the Ordinance.
203. Sections 4 and 5 of the Ordinance, seek to proscribe the execution of contracts with "illegal aliens."
204. By enacting the Ordinance, Hazleton has violated Plaintiffs' fundamental right to contract.
205. Therefore, Plaintiffs are entitled to declaratory and injunctive relief. NINTH CAUSE OF ACTION
VIOLATION OF THE FAIR HOUSING ACT 206. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 205 above as though set forth at length herein.

207. The Fair Housing Act (FHA), 42 U.S.C. $ 8 3601 et seq., prohibits housing
practices that discriminate on the basis of race, color, religion, sex, familial status, national origin, or handicap.
208. Section 5 of the Ordinance prohibits "illegal aliens" from renting or leasing property, and imposes fines on property owners who rent to "illegal aliens" at no less than $1,000 per day, with no stated maximum cap on the amount of the per day monetary penalty.
209. The Ordinance discriminates impermissibly based upon national origin.
210. Pursuant to 42 U.S.C. 5 3604(a), it is illegal to makes housing unavailable "because of race . . . or national origin."
211. Plaintiff Jane Doe 2 is from the Dominican Republic and she resides Hazleton. She is presently waiting for action on her VAWA application by the Federal immigration authorities.
212. While her application is under review by the Federal government, Plaintiff Jane Doe 2 has not been required by the Federal immigration authorities to cease to remain and/or work in the United States.
2 13. Nevertheless, Plaintiff Jane Doe 2's status under the Ordinance is that of an "illegal alien."
2 14. Plaintiff Jane Doe 2 reasonably fears she will not be allowed to secure housing in Hazleton despite being permitted to live and work in the United States by the Federal immigration authorities.
215. 42 U.S.C. 5 3604(b) prohibits discrimination based on national origin in the
"terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith."

216. Plaintiff Mieles is proficient in Spanish only, and is a United States citizen who was born in Puerto Rico and who rents in Hazleton.
217. The Ordinance's "English Only" provision means that Plaintiff Mieles is and will be unable to report city housing code violations, and she will be subject to unsafe housing conditions, due to language limitations attributable solely to her national origin. Alternatively, Plaintiff Mieles will be forced to incur expenses not forced upon others who speak English proficiently.
218. The "English Only" provision discriminates against Plaintiff Mieles as a result of her national origin, and notwithstanding her status as a citizen of the United States.
219. Plaintiff Mieles is and will be unable, or unequally able, to avail herself of any benefits conferred by city codes and ordinances governing the terms, conditions, or privileges of sale or rental of a dwelling, or the provision of services or facilities in connection therewith.
220. Therefore, the Ordinance violates the Fair Housing Act. 221. As a result, Plaintiffs are entitled to declaratory and injunctive relief.
TENTH CAUSE OF ACTION VIOLATION OF LEGITIMATE POLICE POWERS 222. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 221 above as though set forth at length herein. 223. In the exercise of the police power for the purpose of preserving the public health, safety and morals, a legislative body may limit the enjoyment of personal liberty and property, subject to constitutional limitations and judicial review. 224. The Constitution of the Commonwealth of Pennsylvania places well established limitations on the exercise of the police power; namely, it must not be unreasonable, unduly

oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.
225. Hazleton, in exercise of its police power, may not exceed constitutional limitations in defining what constitutes a nuisance.
226. To validly exercise police power, Hazleton is required to affirmatively establish the actual existence of a nuisance. Hazleton is not relieved of its obligation to establish the actual existence of a nuisance by simply declaring its existence.
227. Prior to enacting the Ordinance, Hazleton conducted no analysis of the criminal, fiscal, cultural or other challenges facing Hazleton in order to determine if (a) any actual problem existed and (b) what measures were necessary to abate any such problems. Rather, the Ordinance proposed by Mayor Barletta and approved by City Council, including its Findings and Declaration of Purpose, are a virtual carbon copy of a similar ordinance originally introduced (but not adopted) in San Bernardino, California.
228. Indeed, Mayor Barletta has publicly admitted on several occasions that he does not have any statistics or solid evidence to back up his claim that "illegal aliens" have contributed significantly to any real or perceived problems in Hazleton, including an increase in the crime rate. Furthermore, the Mayor has acknowledged that he does not know how many undocumented individuals live, work, or go to school in Hazleton.
229. Statistics compiled by the Pennsylvania State Police Uniform Crime Reporting System show a reduction in the number of total arrests in Hazleton over the last five years - from 1,458 in 2000 to 1,263in 2005. That decline is due in large part to a reduction in the number of more serious crimes -rapes, robberies, homicides and assaults - since 2000.

230. Hazleton's failure to properly assess the existence of a threat to public safety and/or the existence of a nuisance prior to enacting the Ordinance is an abuse of Hazleton's police powers.
23 1. One of Hazleton's stated purposes in enacting the Ordinance was to abate the increased crime rate brought about by "illegal immigration." Nevertheless, statistics show a reduction in the number of total arrests in Hazleton over the last five years, due in large part to a reduction in the number of more serious crimes in Hazleton since 2000.
232. Another stated purpose of the Ordinance is to address fiscal woes suffered by Hazleton. Upon information and belief, Hazleton stands to lose a significant amount of Federal funding due to its enactment of the Ordinance.
233. The measures imposed by the Ordinance are unreasonable, unduly oppressive and patently beyond the necessities of the case.
234. Because the Ordinance has done nothing to remedy the financial expenditures and resource burdens allegedly borne by Hazleton, but rather has added to such difficulties, the Ordinance is an abuse of Hazleton's police powers.
235. As a result, Plaintiffs are entitled to declaratory and injunctive relief.

PRAYER FOR RELIEF
WHEREFORE, in light of the foregoing, Plaintiffs respectfully request the following:
(a) a declaratory judgment pursuant to 28 U.S.C. $ 5 2201 and 2202 and 42 U.S.C. $ 5
1981 and 1983 declaring the Ordinance void because it violates the Supremacy
Clause, the First Amendment, the Due Process and Equal Protection Clauses of
Fourteenth Amendment of the Constitution of the United States, exceeds Hazleton's
police powers, and violates the fundamental right to contract conferred by 42 U.S.C.
5 1981 and the Fair Housing Act, 42 U.S.C. 5s 3601 et seq.;
(b) an injunction pursuant to Fed. R. Civ. P. 65 prohibiting Hazleton and its agents from
implementing or enforcing the Ordinance;
(c) damages against Hazleton for violating the Plaintiffs' rights under the United States
and Pennsylvania Constitutions, 42 U.S.C. 1981 and the Fair Housing Act;
(d) an order awarding Plaintiffs the costs incurred in this litigation, including attorneys'
fees pursuant to 42 U.S.C. 5 1988; and
(e) such other relief the Court deems just and proper.
Respectfully submitted,
By: Is/ Thomas G. Wilkinson, Jr. Thomas G. Wilkinson, Jr., Esquire Linda S. Kaiser, Esquire Doreen Yatko Trujillo, Esquire William J. Taylor, Esquire Elena Park, Esquire Douglas W. Frankenthaler, Esquire Ilan Rosenberg, Esquire COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103 Tel. (215) 665-2000 Fax: (215) 665-2013

Lillian Llambelis, Esquire Foster Maer, Esquire Jackson Chin, Esquire PUERTO RICAN LEGAL DEFENSE FUND 99 Hudson St. 14 Floor New York, NY 10013-2815 Tel. (212) 739-7575 Fax: (212)431-4276
George R. Barron, Esquire 88 North Franklin Street Wilkes-Barre, Pennsylvania 18701 Tel. (570) 824-3088 Fax: (570) 825-6675
David Vaida, Esquire 137 North 5th Street Allentown, PA 18102 Tel. (610) 433-1800 Fax: (610) 433-2985
IS/Barry H. Dyller Barry H. Dyller, Esquire DYLLER LAW FIRM Gettysburg House 88 North Franklin Street Wilkes-Barre, PA 18701 Tel. (570) 829-4860 Fax: (570) 825-6675
Lee Gelernt, Esquire Omar C. Jadwat, Esquire AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 125 Broad St., 18th F1. New York, NY 10004 Tel. (212) 549-2620 Fax: (212) 549-2654

Lucas Guttentag, Esquire Jennifer C. Chang, Esquire AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 941 11 Tel: (415) 343-0770 Fax: (415) 395-0950
Witold J. Walczak, Esquire AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 Tel. (412) 681-7864 Fax: (412) 681-8707
Paula Knudsen, Esquire AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 105 N. Front St., Suite 225 Hawisburg, PA 17101 Tel. (717) 236-6827 Fax: (717) 236-6895
Mary Catherine Roper, Esquire AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 Tel. (215) 592-1513 ext. 116
Counselfor Plaintiffs

Shamaine Daniels, Esquire Laurence E. Norton, 11, Esquire Peter Zurflieh, Esquire COMMUNITY JUSTICE PROJECT 118 Locust Street Harrisburg, PA 17101 Tel. (717) 236-9486 Fax: (717) 233-4088
Counselfor Plaintiffs Jane Doe 2, Brenda Mieles and Casa Dominicana of Hazleton, Inc.
Peter D. Winebrake, Esquire TRUJILLO RODRIGUEZ & RICHARDS, LLC 1717 Arch Street, Suite 3838 Philadelphia, PA 19103 Tel. (2 15) 731-9004 Fax: (2 15) 731-9044
Counselfor Plaint(ffPennsy1vania Statewide Latino Coalition

 
 N THE UNITED STATES DISTRICT COURT FOR 'THEMIDDLE DISTRICT OF PENNSYLVANIA PEDRO LOZANO, a al.
Plaindff9,
v.
CITY OF HAUETON
Defendam.
\
It i s hereby dpulatcd by and bctweon duly authorized soume/ for Plaintiffs and the
Defendant as follows:
I . On ~ u g wIS, 2006, Plainriffs filed a Complaint altegng 1h0t brdinmce 2006-10, the "Illegal hmigradon Relief Act Ordinancen (the "Ordinance"), which was enacted by Defendam City of Hazleton ("Hazleton") on July 13, 2006, is unconsrirutional, The Complaint seek declaratory, injunctive and other relief
2. Plainti.ffs have no~lfiedDefendant's counsel that they intend ro file a morion for preliminary injuncrion to cqjoin cnforccmen~oLUe current Ordinance.
3. Nazleton has expressed at1 inlention uo adopt a new ordinance to replae Ordinance No,
2006-10.
4. Defendant, including its oficers and agenrs, shall nor act to enfarce Ordinance 2006-10 (as well as accompanying Ordinaace 2006-16, which fils0 relates to irnmigmionmanus),
for at least twenty (20) days aAer the dora Defendant either (a) enacts r new immigration-
related ordinance ("New Ordinancc") or (b) norifiss Plainriffs' counsel in writing rbal the City intends to enforce any of Ordinance(s) 2006- 10 and/or 2006-16.
5. Defendan\'$ deadlineto file its responsero the Complaint Isextended to Ocrobcr 2,2006.

6, Plainliffs may file an amended complain1 or morlons fbr injunctive relief, and otherwise pursue the acrion, at any dmc after Defendant tither enacts n new ordinance or provides written norificmion that it intends to c n f o ~ cot ne or more of rhe two ordinances identified in paragretph 4.
7. This Stipulation is being entered into by rhe parries, through their duly aurhorized counsel, and is not to be consmed as an h i s s i o n of Sac1 or liability by any of the
parties.
8. This agroment shall be enfarceablc by the panics exclusively in this COW.

MBd
Thomas G.Wilkinsan, Esquire For h e Plaindffs

For the Defendam

 
 Case 3:06-cv-01586-JMM Document 29 Filed 10/30/2006 Page 1 of 69

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

:

PEDRO LOZANO,

:

CARLOS FUENTES,

:

HUMBERTO HERNANDEZ,

:

ROSA LECHUGA,

:

JOSE LUIS LECHUGA

:

JOHN DOES 1-4

:

JANE DOES 1-2

:

JOHN DOE 5, A MINOR, BY HIS PARENTS :

JOHN DOE 6, A MINOR, BY HIS PARENTS :

JANE DOE 3, A MINOR, BY HER PARENTS :

JANE DOE 4, A MINOR, BY HER PARENTS :

BRENDA LEE MIELES,

:

CASA DOMINICANA OF HAZLETON, INC., :

HAZLETON HISPANIC BUSINESS

:

ASSOCIATION, and

:

PENNSYLVANIA STATEWIDE LATINO

:

COALITION,

:

Plaintiffs,

:

:

v.

:

:

CITY OF HAZLETON,

:

:

Defendant.

:

:

CIVIL ACTION NO. 6-cv-56-JMM (Hon. James M. Munley)

FIRST AMENDED COMPLAINT

Case 3:06-cv-01586-JMM Document 29 Filed 10/30/2006 Page 2 of 69
INTRODUCTION AND NATURE OF THE ACTION
Previously, on July 13, 2006, the City of Hazleton (“Hazleton”) passed the “Illegal Immigration Relief Act Ordinance” (“Prior Ordinance”) and announced that such Ordinance would take effect in sixty days. A Complaint was filed with this Court on August 15, 2006 challenging that Prior Ordinance on several constitutional and other grounds and, on September 2, 2006, this Court approved a Stipulation whereby Hazleton agreed not to enforce the Prior Ordinance and Plaintiffs agreed not to seek an injunction of such Ordinance.
Not to be dissuaded from its goal to force persons deemed to be “illegal aliens” from the Hazleton community, and eager to become the first municipality in the country to enact a local anti-immigration scheme, Hazleton began anew to draft and enact ordinances to accomplish this purpose. On August 15, 2006, Hazleton enacted Ordinance 2006-13, captioned in part “Establishing a Registration Program for Residential Rental Properties” (“Registration Ordinance”). On September 21, 2006, Hazleton enacted Ordinance 2006-18, also entitled the “Illegal Immigration Relief Act Ordinance” (“Immigration Ordinance”), and Ordinance 2006-19, entitled “Official English Ordinance” (“English Only Ordinance”). The Registration Ordinance takes effect November 1, 2006 and Hazleton has announced plans to begin implementation and
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enforcement of the Immigration and English Only Ordinances on or about that same date.
Although Hazleton has attempted to polish out the several constitutional and other flaws presented in the Prior Ordinance when passing Ordinances 2006-13, 2006-18 and 2006-19 (collectively, “New Ordinances”), the New Ordinances remain constitutionally deficient and otherwise impermissible under applicable laws and unable to withstand judicial scrutiny.
As with the Prior Ordinance, Hazleton continues to blame many of its ills, including crime, economic burdens and social dilemmas on “illegal aliens” and maintains its express goal to drive what it calls “illegal aliens” out of town. However, the New Ordinances infringe the Constitutional rights of all Hazletonians, not just those who are here in the United States “illegally.” The New Ordinances have not cured the defects of the Prior Ordinance and, indeed, are deficient for additional reasons not presented under the earlier attempt to remove immigrants - legal or not - from the Hazleton locale.
The Immigration and Registration Ordinances ignore the subtleties, complexities and primacy of Federal immigration law. The Immigration and Registration Ordinances violate the Supremacy Clause because they unlawfully infringe on the Federal government’s authority over immigration and are
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inconsistent and in conflict with Federal immigration law. The Immigration and Registration Ordinances violate constitutionally protected due process standards. For example, these Ordinances violate the due process rights of Plaintiffs by failing to afford any process for determining "illegal alien" or “unlawful worker” status or challenging any such determination prior to the time they are forced from their job or their home. All of the New Ordinances constitute invidious discrimination based on alienage and violate the equal protection rights of Hazleton residents under the U.S. Constitution and Plaintiffs’ civil rights under 42 U.S.C. § 1981. The Immigration and Registration Ordinances further violate the Federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq. and violate Plaintiffs’ privacy rights under the U.S. Constitution and the Pennsylvania Constitution. In addition to these serious deficiencies, the Immigration and Registration Ordinances violate Pennsylvania statutory law governing the powers permitted to home rule municipalities and the state-wide laws governing the landlord/tenant relationship.
Hazleton has already driven out foreign-looking or -sounding individuals, who fear being targeted as an “illegal alien” or “unlawful worker.” Others who remain already have experienced a sense of wariness, if not outright suspicion and hostility, in Hazleton. The harm initiated with the Prior Ordinance remains unabated under the New Ordinances and continues to injure Plaintiffs at this time.
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Thus, this Amended Complaint seeks injunctive and other relief to prevent Hazleton from trampling on Plaintiffs’ constitutional, statutory and other legal rights. Through this Amended Complaint, Plaintiffs ask this Court for the entry of judgment declaring that the New Ordinances are unconstitutional and unlawful, and granting equitable relief in the form of a permanent injunction against the enforcement of the New Ordinances, and monetary damages resulting from the New Ordinances, and for costs and attorneys fees.
PARTIES 1. Plaintiff Pedro Lozano (“Lozano”) is a resident of Hazleton. Plaintiff Lozano owns multiple rental units in Hazleton. 2. Plaintiff Lozano already has lost previously contracted tenants due to the Prior and New Ordinances. Upon information and belief, Plaintiff Lozano has lost prospective tenants due to the New Ordinances. Plaintiff Lozano does not know the immigration status of his present tenants, nor of the tenants he lost. 3. Plaintiff Carlos Fuentes (“Fuentes”) is a resident of Hazleton. He has lived in Hazleton for about nine years. He owns three rental units. 4. Plaintiff Fuentes has already lost tenants due to the Prior and New Ordinances. Upon information and belief, Plaintiff Fuentes has lost prospective
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tenants due to the New Ordinances. Plaintiff Fuentes does not know the immigration status of his present tenants, nor of the tenants he lost.
5. Plaintiff Humberto Hernandez (“Hernandez”) is a resident of Hazleton. Plaintiff Hernandez owns a rooming house and three rental homes.
6. Plaintiff Hernandez has already lost tenants due to the Prior and New Ordinances. Upon information and belief, Plaintiff Hernandez has lost prospective tenants due to the New Ordinances. Plaintiff Hernandez does not know the immigration status of his present tenants, nor of the tenants he lost.
7. Herein, Plaintiff Lozano, Fuentes and Hernandez are collectively referred to as “Plaintiff Landlords.”
8. Upon information and belief, some of the present tenants of Plaintiff Landlords do not qualify for an occupancy permit under the Registration Ordinance. Under Section 10 of the Registration Ordinance, Plaintiff Landlords will be forced to evict present tenants who cannot obtain an occupancy permit or be subject to monetary fines if Plaintiff Landlords continue to allow such tenants to occupy the rental unit without an occupancy permit after being given notice of the violation from Hazleton. If any such violation notice is neglected or compliance is refused, Plaintiff Landlords are further subject to the suspension of their business permit.
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9. Under the Registration Ordinance, Plaintiff Landlords are required to have a Rental License from Hazleton to rent their dwelling units.
10. Upon information and belief, Plaintiff Landlords are renting, or may rent, to tenants who are deemed to be “illegal aliens” under the Immigration Ordinance, which places or would place Plaintiffs in violation of the Ordinance. Under Section 5 of the Immigration Ordinance, if Plaintiff Landlords do not evict such tenants five business days after receiving notice from Hazleton that the status of the tenant as an “illegal alien” has been verified, Plaintiff Landlords will have their Rental License suspended until one day after the violation has ended. During the period of suspension, Plaintiff Landlords will be prohibited from collecting any rent, payment, fee, or any other form of compensation, from any tenant or occupant in the dwelling unit.
11. Plaintiff Landlords know that individuals other than their tenants, use the dwelling units that Plaintiff Landlords lease. For example, Plaintiff Landlords know their tenants are visited by guests, family members and service personnel. Upon information and belief, some of these guests or family members would be considered “occupants” under the Registration Ordinance, thus requiring an occupancy permit. If the occupants do not obtain permits, Plaintiff Landlords will be held liable for such occupancy under Section 10 of the Registration Ordinance
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if, within ten days of learning of the unauthorized occupancy, they do not take reasonable steps to remove or register such unauthorized occupants. Plaintiff Landlords also will be subject to monetary fine if the unauthorized occupancy continues.
12. Plaintiff Fuentes has already requested that one of his tenants, an immigrant, voluntarily vacate a rental unit in anticipation of the enforcement of the Immigration and Registration Ordinances.
13. Unless the Immigration and Registration Ordinances are permanently enjoined and declared invalid, Plaintiff Landlords will lose current/prospective tenants, will suffer loss of rents and be subject to significant monetary fines.
14. Plaintiffs Lozano and Hernandez have hired independent contractors and domestic workers to perform repair and other services in their rental units. Plaintiffs Lozano and Hernandez do not know the immigration status of these service persons. If Plaintiffs Lozano and Hernandez do not participate in the Basic Pilot Program (hereinafter described), and it is subsequently determined that one of these persons is an “illegal alien,” Plaintiffs Lozano and Hernandez will be in violation of Section 4 of Immigration Ordinance and subject to sanctions provided by that Ordinance.
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15. Unless the Ordinances are permanently enjoined and declared invalid, Plaintiffs Lozano and Hernandez will continue to lose income and/or incur significant monetary fines.
16. Plaintiffs Rosa and Jose Luis Lechuga (“Lechuga”) are husband and wife and are residents of Hazleton. Plaintiffs Lechuga own a grocery store in Hazleton. They formerly owned a restaurant in Hazleton as well.
17. Plaintiffs Lechuga came to the U.S. from Mexico in 1981. They moved to Hazleton in 1991 to work on tomato and cucumber farms.
18. Plaintiffs Lechuga opened their store approximately eight years ago; they opened their restaurant at the beginning of 2006.
19. Plaintiffs Lechuga have lost significant revenue since the Immigration Ordinance and its predecessor - Ordinance 2006-10 - were enacted. Before the enactment of the Prior Ordinances, Plaintiffs Lechuga served between 45-130 customers per day at the restaurant, and between 95-130 customers per day at the store. Since the enactment of the Prior Ordinance, they served between 6-7 persons per day at the restaurant and 20-23 persons per day at the store. The loss in revenue and profit resulting from the passage of the Prior and New Ordinances has forced Plaintiffs Lechuga to close the restaurant. Plaintiffs Lechuga remain obligated to pay rent for the restaurant location under a lease.
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20. Plaintiffs Lechuga are required to have a permit or license from Hazleton to operate their business.
21. Plaintiffs Lechuga hire individuals to work in their business. If Plaintiffs Lechuga do not participate in the Basic Pilot Program, and it is subsequently determined that one of their employees is an “illegal alien,” Plaintiffs Lechuga are subject to the sanctions set forth under Section 4 of the Immigration Ordinance, regardless of whether Plaintiffs Lechuga have complied with Federal law in their hiring practices. Further, if identity information for any employee is requested by Hazleton following the filing of a complaint under the Immigration Ordinance, and if Plaintiffs Lechuga are not able – for any reason – to provide the requested information within three days of the request, they are subject to having their business license suspended, regardless of whether Plaintiffs Lechuga are in compliance with Federal immigration laws.
22. Unless the Ordinances are permanently enjoined and declared invalid, Plaintiffs Lechuga will continue to lose income and/or incur significant monetary fines.
23. Plaintiff John Doe 1 is a tenant and resident of Hazleton. He has lived in Hazleton for over six years with his wife and three school-age children. He has lived in the U.S. for almost two decades. He is originally from Mexico.
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24. Plaintiff John Doe 1’s father is a U.S. citizen and has petitioned [the Federal immigration authorities to grant legal residency status to John Doe 1] and his wife. John Doe 1’s children are all U.S. citizens. Plaintiff John Doe 1 has not been ordered by Federal immigration authorities to cease to live or work in the United States.
25. The landlord of Plaintiff John Doe 1 has demanded that he prepare to present proof of immigration status for himself and his family in compliance with the Immigration Ordinances in order to maintain his tenancy beyond November 1, 2006. Plaintiff John Doe 1 reasonably fears that he will be unable to obtain an occupancy permit under the Registration Ordinance and will be evicted from his home under the Immigration Ordinance.
26. Plaintiffs John Doe 2 and Jane Doe 2 are husband and wife who are tenants and residents of Hazleton. They have lived in Hazleton for over two years; they have lived in the U.S. for approximately seven years. They are originally from Mexico. They live with their four school-age children.
27. Plaintiffs John Doe 2 and Jane Doe 2 and their three oldest children are not U.S. citizens or lawful permanent residents. The youngest child is a U.S. citizen.
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28. Plaintiff John Doe 3 is a tenant and resident of Hazleton. He has lived in Hazleton for over four years. He lives with his wife and two children. He is originally from Mexico.
29. Plaintiff John Doe 3 and his wife are not U.S. citizens or lawful permanent residents. His children are both U.S. citizens.
30. Plaintiff John Doe 4 is a tenant and resident of Hazleton. He has lived in Hazleton for over five years. He has lived in the U.S. for almost 11 years. He is originally from Mexico. He lives in Hazleton with his wife and three children, one of whom is school-age.
31. Plaintiff John Doe 4 has an approved family petition. All three children are U.S. citizens.
32. Plaintiff Jane Doe 1 is 26 years old. She resides in Hazleton. 33. Plaintiff Jane Doe 1 is from the Dominican Republic. Plaintiff Jane Doe 1 entered the United States on a visitor’s visa in 2000. Her authorized period of stay was six months. Plaintiff Jane Doe did not depart from the United States after six months.
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34. Plaintiff Jane Doe 1 married a Lawful Permanent Resident, also from the Dominican Republic, in February, 2002. Her husband filed a family-based permanent residency petition on her behalf in or about 2003.
35. Plaintiff Jane Doe 1 left her husband in 2004, however, because he was physically abusive. She filed for a Protective Order and had a Protection From Abuse Order effective until October, 2006. In the summer of 2005, her husband withdrew his petition to sponsor her for permanent residency and filed for divorce.
36. In February, 2006, Plaintiff Jane Doe 1 petitioned on her own behalf for a change in status under the Violence Against Women Act (“VAWA”). She has received confirmation that her application has been received.
37. Plaintiff Jane Doe 1 has a five year old daughter from her marriage and just recently had another child. Both children are U.S. citizens. Her five-year old daughter is attending public school in the Hazleton Area School District.
38. Even though Plaintiff Jane Doe 1 is classified as a VAWA applicant by the Federal government, and would not be removed from the country while her application is pending, she cannot produce identification showing proof of legal citizenship and/or residency at this time.
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39. Plaintiff Jane Doe 1’s landlord has notified her that she needs to provide proof of legal citizenship and/or residency in order to maintain her tenancy beyond November 1, 2006.
40. Plaintiffs John Does 5-6 and Jane Does 3-4 are minor, school-age children who reside with their parents in Hazleton. The parents of Plaintiffs John Does 5-6 and Plaintiffs Jane Doe 3-4 are not U.S. citizens or lawful permanent residents. Plaintiffs John Does 5-6 and Plaintiff Jane Doe 3 are also not U.S. citizens or lawful permanent residents. Plaintiff Jane Doe 4 is a U.S. citizen.
41. Unless the Immigration and Residency Ordinances are permanently enjoined and declared invalid, Plaintiffs John Does 1-4, Jane Does 1-2 and the family of Plaintiffs John Does 5-6 and Plaintiffs Jane Does 3-4 will be forced to leave Hazleton and Plaintiffs John Does 5-6 and Plaintiffs Jane Does 3-4 will be unable to attend school in Hazleton.
42. Plaintiff Brenda Lee Mieles (“Mieles”) is a tenant and resident of Hazleton. Plaintiff Mieles has been in the continental United States for 16 years; she has been in Hazleton for three years.
43. Plaintiff Mieles is a citizen of the United States born in Puerto Rico. Her only proof of status is a Social Security card. Upon information and belief, a Social Security card is insufficient identification to show proof of legal citizenship
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and/or residency under the Registration Ordinances. Plaintiff Mieles reasonably fears that she will be evicted her home.
44. Unless the Registration Ordinance is permanently enjoined and declared invalid, Plaintiff Mieles will be unable to live in Hazleton.
45. Plaintiffs Lozano, Fuentes, Hernandez, Rose and Jose Luis Lechuga, Mieles, John Does 1-6 and Jane Does 1-4 are collectively referred to herein as “Individual Plaintiffs.”
46. Plaintiff Casa Dominicana of Hazleton, Inc. (“Casa Dominicana”) is a Pennsylvania non-profit organization.
47. Casa Dominicana’s primary purpose is to promote the Hispanic culture and empower the Hispanic community of Hazleton. Before to the enactment of the Prior Ordinance, Casa Dominicana had approximately 150 members. Its membership has now dwindled to approximately 110 members.
48. Casa Dominicana does not require its members to prove their citizenship, residency or immigration status as a condition to membership. The Prior and New Ordinances have created great hostility towards the Latino community in Hazleton and therefore adversely affects the work Casa Dominicana performs in Hazleton and for Hazleton residents.
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49. Casa Dominicana’s membership and constituency (herein, collectively “members”) includes individuals - many but not all of whom are Latino - who reside and who are employed in and around Hazleton, some of whom have schoolaged children. The membership includes persons who have Spanish as their native tongue with a limited proficiency in English.
50. The interests Casa Dominicana seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of Casa Dominicana’s members.
51. Plaintiff Hazleton Hispanic Business Association (“HHBA”) is a Pennsylvania non-profit organization. HHBA’s purpose is to promote the business interests of its members. HHBA does not require its individual members to prove their citizenship, residency or immigration status as a condition to membership. The Prior and New Ordinances have generated great hostility towards the Latino community in Hazleton and therefore adversely affects the work HHBA performs in Hazleton and for Hazleton businesses and residents.
52. HHBA’s membership and constituency (herein, collectively “members”) includes individuals - many but not all of whom are Latino or who service Latino and other customers - who reside or operate businesses in and
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around Hazleton, some of whom have school-aged children. The membership includes business owners and landlords.
53. The HHBA’s membership includes individuals who have Spanish as their native tongue with a limited proficiency in English.
54. The interests HHBA seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of HHBA’s members.
55. Plaintiff Pennsylvania Statewide Latino Coalition (“PSLC”) is a Pennsylvania non-profit organization. Plaintiff PSLC is a non-partisan alliance of Latino leaders, organizations, community activists, students, and individuals that serves as a statewide institutional catalyst for positive social change and political advancement. Its primary purpose is as an advocate organization for Latinos in the Commonwealth of Pennsylvania. PSLC does not require its members to prove their citizenship, residency or immigration status as a condition to membership.
56. PSLC’s membership and constituency (herein, collectively “members”) includes individuals who reside or operate businesses in and around Hazleton, including but not limited to Dr. Agapito Lopez and Anna Arias, some of whom have school-aged children. PSLC’s members include persons who have Spanish as their native tongue with a limited proficiency in English.
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57. The interests PSLC seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of PSLC’s members and constituents.
58. PSLC has expended, and will continue to expend, its own resources to advocate against enactment and enforcement of the New Ordinances and similar ordinances throughout the Commonwealth of Pennsylvania, as well as in providing assistance to its members impacted by the New Ordinances.
59. Plaintiffs Casa Dominicana, HHBA and PSLC are collectively referred to herein as “Plaintiff Organizations.”
60. Defendant City of Hazleton (“Hazleton”) is a city of the third class existing pursuant to Pennsylvania law, with its principal place of business located at Hazleton City Hall, Hazleton, Luzerne County, Pennsylvania 18201.
61. At all relevant times described herein, Hazleton acted through its duly authorized agents, Mayor Louis J. Barletta (“Mayor Barletta”), Joseph Yannuzzi, President of City Council, Jack Mundie, Vice-President of City Council, and City Council members Evelyn Graham, Tom Gabos and Robert Nilles.
62. At all times alleged herein, Hazleton's officials, employees and agents were acting under color of state law.
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JURISDICTION AND VENUE 63. This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 over Plaintiffs’ causes of action under the Constitution of the United States, 42 U.S.C. §§ 1981 and 1983, the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. This Court has supplemental jurisdiction over Plaintiffs’ causes of action under the Constitution and statutes of the Commonwealth of Pennsylvania pursuant to 28 U.S.C. § 1367. 64. This Court has personal jurisdiction over Hazleton, which is located in the Middle District of Pennsylvania. 65. Venue is proper in the Middle District of Pennsylvania pursuant to 28 U.S.C. §1391(a) in that Hazleton is subject to personal jurisdiction within the Middle District of Pennsylvania, and the events which give rise to this action occurred within the Middle District of Pennsylvania.
THE ORDINANCES 66. On July 13, 2006 the City of Hazleton (“Hazleton”) passed the “Illegal Immigration Relief Act Ordinance,” Ordinance 2006-10 (“Prior Ordinance”).
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67. On July 13, 2006, Ordinance 2006-13, entitled “Establishing a Registration Program for Residential Rental Properties; Requiring All Owners of Residential Rental Properties to Designate an Agent for Service of Process; and Prescribing Duties of Owners, Agents and Occupants; Directing the Designation of Agent; Establishing Fees for the Costs Associated with the Registration of Rental Property; and Prescribing Penalties for Violation” (“Registration Ordinance”) had its first reading before Hazleton City Council.
68. On August 15, 2006, the Registration Ordinance had its second and third readings before Hazleton City Council. On that same date, August 15, 2006, the Registration Ordinance was enacted by Hazleton. A true and correct copy of the Registration Ordinance is attached hereto as Exhibit “A.”
69. On September 8, 2006, Ordinance 2006-18, entitled the “Illegal Immigration Relief Act Ordinance” (“Immigration Ordinance”) had its first reading before Hazleton City Council. On September 12, 2006, the Immigration Ordinance had its second and third readings before Hazleton City Council. On September 21, 2006, the Immigration Ordinance was enacted by Hazleton. A true and correct copy of the Immigration Ordinance is attached hereto as Exhibit “B.”
70. On September 8, 2006, Ordinance 2006-19, entitled the “English Only Ordinance” (“English Only Ordinance”) had its first reading before Hazleton City
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Council. On September 12, 2006, the English Only Ordinance had its second and third readings before Hazleton City Council. On September 21, 2006, the English Only Ordinance was enacted by Hazleton. A true and correct copy of the English Only Ordinance is attached hereto as Exhibit “C.” Herein, Ordinances 2006-13, 2006-18 and 2006-19 are collectively referred to as the “New Ordinances.”
OPERATION OF THE ORDINANCES 71. Hazleton adopted the “Immigration Ordinance” to, in alia, prevent the employment of “unlawful workers,” as that term is defined in Section 3, from working in the city. To effect this goal, the Immigration Ordinance renders it unlawful for any “business entity”(as that term is defined in the Ordinance) to recruit, hire for employment, continue to employ, or permit, dispatch or instruct (collectively herein, “hire”) any “unlawful workers.” Additionally, business entities must attest to their compliance with the Immigration Ordinance when they apply for a business permit to operate in Hazleton. 72. The Immigration Ordinance sets for the enforcement mechanisms for the employment sections of the Ordinance. Any Hazleton official, business entity or resident may make a complaint to the Hazleton Code Enforcement Office (“Code Office”).
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73. To be considered a “valid complaint,” the complaint must be submitted in a signed writing, and include an allegation that describes the alleged violators(s), the actions constituting the violation, and the date and location where the actions occurred.
74. Upon receipt of a “valid complaint” regarding an alleged “unlawful worker,” the Code Office is required to request, within three business days, “identity information” from the business entity regarding the worker. The type of “identity information” to be requested is not defined in the Immigration Ordinance.
75. Upon receipt of the identity information, the Code Office is directed to submit the data required by the Federal government to the Immigration and Customs Enforcement (“ICE”) to verify the immigration status of the worker. Upon verification of the identify information, the Code Officer must provide the business entity with written confirmation of the immigration status.
76. If the business entity fails, within three business days of receipt of a request from the Code Office, to provide the requested identity information, the Code Office is required to suspend the business permit of the business entity. This suspension is mandatory and is not dependent upon any finding that an “unlawful worker” has been hired.
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77. If the business entity is notified by the Code Office that a violation of the Immigration Ordinance has occurred, the entity must “correct” the violation within three business days. The nature of the “correction” is not defined in the Ordinance, but clearly Hazleton contemplates that the business entity must fire the alleged “unlawful worker”
78. It the business entity does not correct the violation within three business days, the Code Office is required to suspend the business permit of the entity. However, the Code Officer is directed not to suspend the business permit of the entity if the business entity previously had used the Basic Pilot Program to verify the worker’s status. The Basic Pilot Program is a voluntary, experimental program created by Congress to permit employers to electronically verify workers’ employment eligibility with the U.S. Dept. of Homeland Security and the Social Security Administration.
79. A suspended business permit is restored to a business entity one business day after the entity submits a sworn affidavit stating that the violation has ended. The affidavit must include a description of the specific measures and action taken by the entity to end the violation and the name, address and other “adequate identifying information” of the unlawful worker.
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80. If two or more unlawful workers are verified by the Code Officer, then - to reinstate its business permit - the business entity must submit, in addition to the sworn affidavit, documentation acceptable to Hazleton, confirming that the entity has enrolled and will participate in the Basic Pilot Program.
81. For a second or subsequent violation, the Code Office is required to suspend the entity’s business permit for twenty days.
82. The Immigration Ordinance provides that the discharge by a business entity of any employee who is not an unlawful worker is an unfair business practice if, at the time of the discharge, the entity was not participating in the Basic Pilot Program and the entity was employing an unlawful worker. The Immigration Ordinance purports to grant any discharged employee who is not an unlawful worker a private cause of action against the business entity, to seek damages of three times the actual damages sustained by the discharged employee and attorney’s fees and costs. The damages apply from the date of discharge to the date the discharged employee procures new employment at an equivalent rate of compensation, not to exceed 120 days.
83. Section 5 of the Immigration Ordinance mandates a scheme similar to the employment provisions for persons and business entities herein (“Landlords”)
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that own a dwelling unit in Hazleton. The Immigration Ordinance renders it unlawful for any Landlord to harbor an “illegal alien.”
84. Under Section 5 of the Immigration Ordinance, “harboring” is defined as when a Landlords lets, leases or rents a dwelling unit to an “illegal alien,” knowingly or in reckless disregard of the fact that the alien has come to, entered or remain in the U.S. in violation or law. Harboring also includes suffering or permitting the occupancy of a dwelling unit by an illegal alien, if the Landlord is knowingly or in reckless disregard of the fact that the alien has come to, entered or remain in the U.S. in violation or law. However, no violation of the Immigration Ordinance occurs if the harboring is expressly permitted by Federal law.
85. The Immigration Ordinance sets for the enforcement mechanisms for the harboring sections of the Ordinance. Any Hazleton official, business entity or resident may make a complaint to the Code Office.
86. To be considered a “valid complaint,” the complaint must be submitted in a signed writing, and include an allegation that describes the alleged violators(s), the actions constituting the violation, and the date and location where the actions occurred.
87. Upon receipt of a “valid complaint” regarding an alleged “illegal alien,” the Code Office is directed to submit the data required by the Federal
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government to the ICE to verify the immigration status of the suspected individual. Hazleton submits (or will submit) to the ICE information obtained under the Registration Ordinance, described infra. Upon verification of the identify information from the ICE, the Code Officer must provide the Landlord with written confirmation of the individual’s immigration status.
88. A Landlord is deemed to be in violation of the Immigration Ordinance, beginning one day after receipt of a notice of violation from the Code Office, but such violation applies only for adult “illegal aliens” that have been “harbored.”
89. Although there is no express obligation upon the Landlord to provide the Code Office with identity information following receipt of a valid complaint, the Immigration Ordinance provides that a Landlord is deemed in violation of the Ordinance for each business day that the Landlord fails to provide such information, beginning three days after the Landlord receives written notice from the Code Office.
90. If a Landlord fails to “correct” a violation of the Immigration Ordinance after Hazleton has verified the immigration status of an “illegal alien” within five days, the Code Office is required to deny or suspend the Landlord’s Rental License. The nature of the “correction” is not defined in the Ordinance, but
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clearly Hazleton contemplates that the Landlord must evict the alleged “illegal alien.”
91. During the suspension, the Landlord is prohibited by the Immigration Ordinance from collecting rent, payment, fee or other compensation form any tenant or occupant of the dwelling unit.
92. A suspended business permit may be restored to a Landlord one business day after the entity submits a sworn affidavit stating that the violation has ended. The affidavit must include a description of the specific measures and action taken by the entity to end the violation and the name, address and other “adequate identifying information” of the “illegal alien”.
93. A Landlord that violates the Immigration Ordinance is subject to the imposition of a $250.00 fine for day any “harboring” has occurred, for each adult “illegal alien” harbored in the dwelling unit; and imposition of a $250.00 fine for any second or subsequent violation of the Ordinance, in addition to the suspension of the Rental License.
94. The Registration Ordinance imposes additional duties on Owners. Under that Ordinance, an Owner must obtain a license (“Rental License”) prior to allowing occupancy, advertising or soliciting for occupancy or letting another person occupy a dwelling unit. The Registration Ordinance prohibits an Owner
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from permitting occupancy of a dwelling unit (“rental Unit”) by any person aged 18 years or older (“Occupant”), unless each Occupant has obtained an occupancy permit from Hazleton.
95. The Registration Ordinance requires each Occupant, to obtain, and pay for, and occupancy permit. Applicants for occupancy permits must be made upon forms provided by the Code Officer and must include “[p]roper identification showing proof of legal citizenship and/or residence.”
96. If The Owner permits an unregistered occupant to occupy the Rental Unit, or if an Occupant permits individuals who do not have an occupancy permit to occupy the Rental Unit, the Owner is liable for sanctions under the Ordinance, unless the Owner takes reasonable steps to remove the unauthorized person from the Rental Unit within ten (10) days of learning of the unregistered occupancy. If the Owner fails to remove any person lacking an occupancy permit, the Owner is liable for significant monetary sanctions under the Registration Ordinance, including a $1,000 fine for each unregistered occupant and $100 per day fine for each unregistered occupant.
97. Any person found to be in violation of the Registration Ordinance is subject to being fined not less than $100 or more than $300, and imprisoned for a period of not more than 90 days in default of payment.
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98. The Immigration Ordinance contains one provision defining an invalid complaint for both the employment and harboring section, stating:
A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. 99. In the English Only Ordinance, English is declared to be the official language of the City of Hazleton. The English Only Ordinances specifies that official action of Hazleton that bind or commit the city or that give the appearance of presenting the official view or position of Hazleton shall be taken in English only. The English Only Ordinance further requires Hazleton to use English for all documents, regulations, orders, transactions, proceedings, meetings, program or publications.
100. The English Only Ordinance protects individuals who speak English only by declaring such person eligible to participate in all programs, benefits and opportunities, provided by Hazleton. The English Only Ordinance provides that Hazleton is prohibited from penalizing or impairing the rights, obligations or opportunities available to persons who speak English only.
FEDERAL REGULATION OF IMMIGRATION
101. The power to regulate immigration is unquestionably an exclusively Federal power that derives from the Constitution's grant to the Federal government
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of the power to “establish a uniform Rule of Naturalization," U.S. Const. art. I, § 8, cl. 4., and to "regulate Commerce with foreign Nations." Id., cl. 3. In addition, the Supreme Court has held that the Federal government's power to control immigration is inherent in the nation's sovereignty.
102. Pursuant to its exclusive power over matters of immigration, the Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine, subject to judicial review, whether and under what conditions a given individual may enter, stay in, and work in the United States.
103. In addition to provisions that directly regulate immigrants’ entry and behavior, the Federal immigration laws also include provisions directed at other classes of individuals, such as those who employ or assist immigrants. Thus, the comprehensive Federal immigration scheme includes sanctions, documentation, and anti-discrimination provisions directly applicable to employers, as well as a criminal and civil scheme applicable to those who assist individuals who are not lawfully in the United States.
104. The Federal government has also chosen to allow certain categories of non-citizens, and certain individual non-citizens, to remain in the United States, even though such non-citizens may not have valid immigrant (permanent) or non-
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immigrant (temporary) status and/or may be removable under the Federal Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.
105. Federal laws and policies aimed at reducing illegal immigration include safe harbor and other provisions regarding the appropriate reach of such laws. For example, employers who have complied in good faith with the employment documentation procedures set forth in the INA have an affirmative defense to liability under the INA’s employer-sanctions scheme.
106. These laws, procedures, and policies created by the Federal government regulate immigration and confer rights in a careful balance reflecting the national interest.
THE IMMIGRATION ORDINANCE IS AT ODDS WITH THE FEDERAL IMMIGRATION SCHEME
107. The Immigration Ordinance sets forth a definition of “illegal aliens” that is incompatible with and contrary to Federal law. The Immigration Ordinance classifies numerous individuals as “illegal aliens,” when their presence and/or employment in the United States does not violate Federal law.
108. The Immigration Ordinance does not set forth any procedure by which an individual can challenge a determination that he or she is an “illegal alien” as defined by that Ordinance.
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109. For many persons, no document or combination of documents can conclusively establish whether or not they are “illegal aliens” as defined by the Immigration Ordinance.
110. Due to the Immigration Ordinance’s improper definition of “illegal alien” and the lack of procedural safeguards, some Individual Plaintiffs and members of Plaintiff Organizations who are permitted by the Federal government to live and/or work in the United States will nevertheless harmed by the Ordinance.
FIRST CAUSE OF ACTION VIOLATION OF THE SUPREMACY CLAUSE
111. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 110 above as though set forth at length herein.
112. Article VI, Section 2, of the United States Constitution provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.
113. The Supremacy Clause mandates that Federal law preempts any state regulation of any area over which Congress has expressly or impliedly exercised
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exclusive authority or which is constitutionally reserved to the Federal government.
114. The power to regulate immigration is an exclusively Federal power. 115. The Immigration Ordinance, in its entirety, is admittedly a law purporting to regulate immigration and the incidents thereof. 116. The Immigration Ordinance usurps the Federal government’s exclusive power over immigration and naturalization and its power to regulate foreign affairs. 117. The Federal government already has enacted a comprehensive statutory and regulatory scheme governing immigration, including the Immigration and Nationality Act, (“INA”), 8 U.S.C. §§1101 et seq. 118. The Immigration Ordinance is preempted because it attempts to legislate in fields occupied by the Federal government and because it conflicts with Federal laws, regulations, policies and objectives. The Supremacy Clause of the U.S. Constitution requires that any state or local law regulating the conduct of noncitizens must be invalidated if it (1) amounts to an attempt to regulate immigration; or (2) operates in a field occupied by the Federal government or
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stands as an obstacle to Federal law. The Immigration and Registration Ordinances fail under both standards.
119. The intent and effect of the Immigration and Registration Ordinances is to regulate immigration in Hazleton independently of the Federal government. The general scheme of these Ordinances differs from and interferes with the integrated Federal system of immigration regulation. The Immigration and Registration Ordinances cannot stand, for they regulate immigration, an area constitutionally reserved to the Federal government.
120. The Immigration Ordinance defines a group of individuals as “illegal aliens” and purports to rely upon Federal law for a determination as to whether a person is “an alien who is not lawfully present in the United States.” The Immigration and Registration Ordinances set forth a scheme intended to eliminate this group of individuals from Hazleton by forbidding their employment and residency - with the intent and effect of forcing them to leave the city.
121. The Immigration Ordinance “illegal alien” is incompatible with Federal immigration law. The Immigration Ordinance classifies as “illegal” many individuals who the Federal government allows to reside or work in the United States. Plaintiff John Doe 1, in particular, is included within the definition of “illegal alien” under the Ordinance but he is in fact living and working in the
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United States with the full knowledge of the Federal government, notwithstanding that no Federal law contains express permission for him to so live and work in the United States.
122. By its terms, the Immigration Ordinance adversely affects the Individual Plaintiffs and members of the Plaintiff Organizations including individuals who are allowed to remain and/or work in the United States, by subjecting them to displacement from employment and the rental or occupancy of dwelling units in Hazleton.
123. The Immigration Ordinance violates the Supremacy Clause of the Constitution.
124. As a result of Hazleton’s violation of the Supremacy Clause by enacting the Ordinance, Plaintiffs are entitled to declaratory and injunctive relief.
125. The Immigration Ordinance plainly violates the Supremacy Clause and contains multiple specific incompatibilities and inconsistencies with Federal law. A state or local law regulating the conduct of noncitizens must be invalidated under the Supremacy Clause if it (1) amounts to an attempt to regulate immigration; or (2) operates in a field occupied by the Federal government or stands as an obstacle to Federal law.
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126. The Immigration Ordinance mandates that businesses enroll in the Federal Basic Pilot Program under certain circumstances. See §§ 4(B)(6)(b) and 4(D). Even where the Immigration Ordinance does not mandate such enrollment de jure, the Ordinance requires such enrollment on a de facto basis due to the risk of being subjected to exorbitant penalties if the business does not enroll in the Basic Pilot Program. This mandated participation by Hazleton is irreconcilable with the Congressional directive that the Basic Pilot Program be implemented by the Secretary of Homeland Security as a voluntary, experimental program. Congress set forth a limited list of employers required to participate in Basic Pilot Program—a list completely different from that created by Hazleton’s . The Immigration Ordinance’s attempt to force all Hazleton-based employers to enroll in Basic Pilot Program is incompatible with the clear design as created under Federal law.
127. Additionally, the Immigration Ordinance requires businesses, individuals, non-profits, and other entities to ensure that any person they “recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct … to perform work in whole or part within the City” is an authorized worker. § 4.A.. In contrast, Federal law does not require that employers verify the immigration status of certain categories of workers, such as independent contractors and casual domestic workers, and does not apply to entities, such as unions, that refer
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individuals for employment but without a fee or profit motive. Once again, the Immigration Ordinance directly contradicts Federal immigration law and is therefore preempted under the Supremacy Clause.
128. The Immigration Ordinance renders it unlawful for any person or business entity that owns a dwelling unit (“Landlords”) to harbor an “illegal alien” if the Landlord knows or recklessly disregards the fact that the alien has come to, entered or remains in the United State in violation of the law, unless such harboring is expressly permitted by Federal law. This “savings clause” is illusory because Federal immigration law sets forth standards, processes and requirements for the removal of individuals who lack the legal authority to remain in the United States and does not set forth express provisions delineating circumstances under which “harboring” is not unlawful.
129. The “harboring” provision of the Immigration Ordinance is also directly at odds with the Federal immigration system. The Immigration Ordinance provides that it is unlawful to knowingly “let , lease, or rent a dwelling unit to” “an alien who is not lawfully present in the United States.” However, under Federal law, various categories of persons can receive Federal permission to work, and implicitly to stay and reside, in the United States even though they may be violating immigration laws. For example, such persons may have pending
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applications to adjust to a lawful status pursuant to 8 U.S.C. § 1255(i). Similarly, certain persons released from detention pursuant to legal mandates and restrictions imposed by the Supreme Court, though subject to an order of removal, are permitted to stay and work in the U.S. In addition, persons who are applying for or have been granted “temporary protected status” are permitted to stay and work in the U.S. if they meet certain requirements, notwithstanding the fact that they are otherwise removable. Federal officials may also exercise discretion not to deport persons who are otherwise removable. By denying abode to every individual who is “not lawfully present,” the Immigration Ordinance runs roughshod over this complex system of Federal classification and discretion.
130. The Registration Ordinance also conflicts with Federal immigration law. The Registration Ordinance requires each individual occupant of any rental unit to obtain an occupancy permit from the City, and requires applicants for occupancy permits to provide “proof of legal citizenship and/or residency.” Upon information and belief, Hazleton will accept from applicants only documentation of U.S. citizenship or residency status, and will deny an occupancy permit to persons who lack such documentation for whatever reason, even if the individual is permitted under the Federal immigration system to live and stay in the United States.
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131. The Immigration and Nationality Act (“INA”), 8 U.S.C. 1101 et seq., and its associated regulations in Title 8 of the Code of Federal Regulations, contain a myriad of interrelated provisions establishing, among other things, numerous immigration categories; civil and criminal sanctions for various violations; and extensive procedures for determining status and removability. Under the Supremacy Clause, the Federal government has the authority to enforce the statutes and regulations, confer benefits, make discretionary determinations, undertake adjudication, and otherwise administer the immigration laws.
132. In the INA, Congress specifically has addressed both of the areas covered by the Immigration Ordinance: sanctions for those who employ unauthorized aliens and those who harbor immigration violators. See 8 U.S.C. §§ 1324a-1324b (employer sanctions scheme) and 1324 (harboring provision). The INA contains safeguards such as a “safe harbor” provision for employers who are presented with facially valid documents; restrictions on reverification of employees after they are hired; extensive antidiscrimination provisions; prohibitions on employers’ requesting additional documents once an employee presents minimally adequate documentation; a 10-day cure period for good-faith violations; and a graduated series of penalties after adjudication by an administrative law judge. Moreover, the INA specifically prohibits “any State or local law imposing civil or
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criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee, unauthorized aliens.”
133. Ultimately, the effect of the Immigration and Registration Ordinances is to upset the system established by Congress in each of these areas by implementing Hazleton’s own enforcement mechanism, penalties, and interpretations in place of the Federal system, detracting from and impeding the integrated scheme of regulation created by Congress.
134. Due to the Ordinance’s violation of the Supremacy Clause, some Individual Plaintiffs and members of Plaintiff Organizations who are permitted by the Federal government to live and/or work in the United States will nevertheless be barred from doing so in Hazleton.
135. Therefore, Plaintiffs are entitled to declaratory and injunctive relief. SECOND CAUSE OF ACTION VIOLATION OF DUE PROCESS
136. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 135 above as though set forth at length herein.
137. The Fourteenth Amendment to the United States Constitution guarantees to Plaintiffs certain fundamental rights, including but not limited to, the right to a hearing prior to the deprivation of substantive rights.
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138. The Immigration Ordinance fails to afford suspected “illegal aliens,” including Individual Plaintiffs and members of Plaintiff Organization who are deemed to be “illegal aliens” under the Ordinance, any due process rights before the Owner must take action to cease “harboring” the “illegal alien” (that is, refuse the individual access to the dwelling unit), in order for the Owner to avoid the draconian penalties imposed by the Immigration Ordinance.
139. The Immigration Ordinance contemplates that any purported “illegal alien” will be displaced from the dwelling unit before that individual is given notice of any challenge to his/her immigration status; the opportunity to present documentation in support of the individual’s status as lawfully present in the United States including under no currently effective order to be removed from the United States; or the opportunity to dispute or correct any erroneous or mistaken “verification” by the federal government that the individual is not lawfully present in the United States.
140. The Immigration Ordinance fails to afford Owners, including Landlord Plaintiffs and members of Plaintiff Organizations that are Owners, adequate due process rights. Landlords are subject to substantial penalties, with a violation incepting one (1) business day after the Owner receives notice of a violation from the Hazleton Code Enforcement Office. The Immigration
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Ordinance does not afford Owners any process by which the Owner can challenge, in advance of the imposition of the penalties stated in the Immigration Ordinance: (a) its lack of knowledge about the unlawful status of any individual leasing, renting or occupying the Owner’s dwelling unit; (b) that the Owner did not recklessly disregarded facts relating to such individual’s unlawful status; or (c) that the individual’s presence is not violative of any law or removal order.
141. The Immigration Ordinance harms Landlord Plaintiffs and members of Plaintiff Organizations that are Owners by imposing significant sanctions without due process, including:
(a). the immediate denial or suspension of a rental license for the dwelling unit;
(b). a prohibition on the collection or rent or other compensation from any tenant or occupant in the dwelling unit, for the period of the license suspension;
(c). imposition of a $250.00 fine for day any “harboring” has occurred, for each adult “illegal alien” harbored in the dwelling unit; and
(d). imposition of a $250.00 fine for any second or subsequent violation of the Ordinance by an Owner. 142. Landlord Plaintiffs and, upon information and belief, members of the Plaintiff Organizations are required to obtain and maintain a license or permit to operate their businesses in Hazleton. Unless the Immigration Ordinance is permanently enjoined and declared invalid, Plaintiffs are subject to significant
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monetary fines and loss of their business licenses, and the denial of the receipt of rents, payments, fees or other compensation due Plaintiffs, all without due process of law.
143. Unless the Immigration Ordinance is permanently enjoined and declared invalid, Individual Plaintiffs and members of Plaintiff Organizations who are permitted by the Federal government to live and/or work in the United States will be denied due process of law.
144. Because the Immigration Ordinance violates Plaintiffs’ Due Process Rights protected by the Fourteenth Amendment, Plaintiffs are entitled to declaratory and injunctive relief.
THIRD CAUSE OF ACTION VIOLATION OF EQUAL PROTECTION 145. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 144 above as though set forth at length herein.
146. The Immigration Ordinance contains two parallel, but nearly identical, provisions that establish the enforcement mechanisms of the Ordinance; one for employment under Section 4 and the other for “harboring” under Section 5. As set forth by those provisions, the Immigration Ordinance relies upon a “complaint based” enforcement system, often otherwise referred to as a “passive” enforcement system.
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147. If a complaint sets out the requisite information – the alleged violators, the acts constituting the violation, and the date and location where the acts occurred – and hence is deemed a valid complaint, the Immigration Ordinance mandates that the specified investigatory scheme, along with its resultant punitive sanctions, be implemented.
148. Under the required investigatory scheme under Section 4, within three days of receiving the complaint, the Hazleton Code Enforcement Office (“Code Office”) must request “identity information” about the alleged unlawful workers from the cited business entity. If that business entity does not provide the “identity information” within three days of that request, the entity’s business permit must be suspended indefinitely, even though there has not been any finding at that stage of a violation of the Immigration Ordinance. The Immigration Ordinance then sets forth the process by which the suspended business entity is investigated and prosecuted, and the penalties that may be levied.
149. Section 5 mandates a similar scheme for Owners, but the Code Office does not request Owners to provide identity information of the alleged “illegal alien” tenant but merely seeks to verify that person’s status through ICE.
150. Under the Immigration Ordinance, a complaint may be made to the Code Office submitted by any Hazleton official, business entity or resident. To
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constitute a “valid complaint,” the complaint must be in a signed writing, and must include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
151. The Immigration Ordinance contains one provision defining an invalid complaint.
A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. (See Section 4 Business Permits, Contracts, or Grants (B)(2) and Section 5 Harboring (B)(2) of the Ordinance). 152. That Immigration Ordinance makes two things clear: 1) a complaint based solely or primarily upon national origin, ethnicity, or race language is not to be considered a valid complaint and 2) a complaint based only in part upon national origin, ethnicity or race is to be considered valid. Thus, national origin, ethnicity and race, since they may constitute evidence of a valid complaint, can serve to trigger an investigation and the resultant punitive procedures set forth in Sections 4 and 5.
153. The Immigration Ordinance uses race and national origin as an overt classification and violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Equal Protection Clause prohibits the discriminatory use of national origin or race as an express
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classification in Hazleton’s enforcement of the housing provisions in the Immigration Ordinance.
154. The Immigration Ordinance is a passive enforcement system that has a discriminatory effect and that is motivated by a discriminatory purpose and is unenforceable under the Equal Protection clause.
155. The Immigration Ordinance allows race and national origin to constitute evidence of a violation and thus subjects alleged offending workers or tenants who are not white or native born to a greater likelihood of further investigation and the resultant harsh punitive consequences set forth by the Ordinance.
156. The fact that race and national origin cannot serve as the sole or primary basis of a complaint under the Immigration Ordinance does not eliminate the constitutional infirmity.
157. The English Only Ordinance expressly protects individuals who speak English only by declaring such person eligible to participate in all programs, benefits and opportunities, provided by Hazleton. The English Ordinance does not expressly permit eligibility in Hazleton’s programs, benefits and opportunities to individuals who speak both English and another language or who speak only a language other than English.
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158. The English Only Ordinance provides that Hazleton is prohibited from penalizing or impairing the rights, obligations or opportunities available to persons who speak English only. On its face, the English Only Ordinance does not offer such protections to individuals who speak both English and another language or who speak only a language other than English.
159. Plaintiff Mieles is proficient in Spanish only, and is a United States citizen who was born in Puerto Rico and who rents in Hazleton. Plaintiff Mieles reasonably fears that she will be denied programs, benefits and opportunities that Hazleton is obligated to make available to persons who speak English only, and that her rights and opportunities may be penalized or impaired by Hazleton due to her limited proficiency in the English language.
160. Unless the Immigration Ordinance is permanently enjoined and declared invalid, the equal protection rights of Plaintiffs will be violated.
161. Unless the English Only Ordinance is permanently enjoined and declared invalid, the equal protection rights of Plaintiffs Mieles and individual member of Plaintiff Organizations who have limited English Proficiency will be violated.
162. Therefore, Plaintiffs are entitled to declaratory and injunctive relief.
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FOURTH CAUSE OF ACTION VIOLATION OF THE FAIR HOUSING ACT 163. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 162 above as though set forth at length herein. 164. The Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq., prohibits discrimination in residential real estate-related transactions. Pursuant to 42 U.S.C. § 3604(a), it is illegal to make housing unavailable “because of race . . . or national origin.” 165. The Fair Housing Act prohibits the discriminatory use of national origin or race as an express classification in the enforcement mechanism of the housing provisions contained in the Immigration Ordinance. 166. The Immigration Ordinance uses race and national origin as an overt classification and violates the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. The Immigration Ordinance overtly classifies, or treats differently, alleged tenant violators based upon their race and national origin and thus has the effect of making dwellings unavailable on that basis in violation of the Fair Housing Act. 167. The Immigration Ordinance discriminates impermissibly based upon race and national origin.
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168. Plaintiff Jane Doe 2 is from the Dominican Republic and she resides Hazleton. She is presently waiting for action on her VAWA application by the Federal immigration authorities.
169. While her application is under review by the Federal government, Plaintiff Jane Doe 2 has not been required by the Federal immigration authorities to cease to remain and/or work in the United States.
170. Nevertheless, Plaintiff Jane Doe 2’s status under the Immigration Ordinance is that of an “illegal alien.”
171. Plaintiff Jane Doe 2 reasonably fears she will not be allowed to secure housing in Hazleton despite being permitted to live and work in the United States by the Federal immigration authorities.
172. 42 U.S.C. § 3604(b) prohibits discrimination based on national origin in the "terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith."
173. Plaintiff Mieles is proficient in Spanish only, and is a United States citizen who was born in Puerto Rico and who rents in Hazleton.
174. Under the English Only Ordinance, Hazleton will conduct all official municipal business, including the Tenant Registration Program, in English only.
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Plaintiff Mieles reasonably fears that her limited proficiency in English will cause her to be unsuccessful in obtaining an occupancy permit under the Registration Ordinance and/or cause her to become evicted under the Immigration Ordinance. The New Ordinances discriminate against Plaintiff Mieles as a result of her national origin, and notwithstanding her status as a citizen of the United States, in the terms, conditions or privilege of renting a dwelling unit and/or in services or facilities in connection therewith. Therefore, the New Ordinances violate the Fair Housing Act.
175. As a result, Plaintiffs are entitled to declaratory and injunctive relief. FIFTH CAUSE OF ACTION
VIOLATION OF 42 U.S.C. § 1981 176. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 175 above as though set forth at length herein.
177. The fundamental right to contract and to full and equal benefit of all laws is codified under 42 U.S.C. § 1981, as amended by Section 101 of the Civil Rights Act of 1991.
178. Pursuant to 42 U.S.C. § 1981, “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is
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enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
179. Section 1981 prohibits discrimination under the color of law based on alienage and race.
180. Congress deliberately used “all persons” instead of “citizens” in order to reflect the language of the recently ratified Fourteenth Amendment that extended the guarantee of equal protection under the laws to “any person within the jurisdiction of the United States.”
181. Plaintiffs are entitled to the protections and benefits afforded by Section 1981, including Plaintiffs and individual members of Plaintiff Organizations who are categorized as “illegal aliens” under the Immigration Ordinance.
182. By enacting the Immigration and Registration Ordinances, Hazleton has violated Plaintiffs’ fundamental rights under 42 U.S.C. § 1981.
183. Therefore, Plaintiffs are entitled to declaratory and injunctive relief. SIXTH CAUSE OF ACTION
VIOLATION OF THE HOME RULE CHARTER LAW 184. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 183 above as though set forth at length herein.
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185. Hazleton is a City of the Third Class and has adopted a home rule charter. As a home-rule-charter municipality, Hazleton derives its legislative powers from the Constitution of the Commonwealth of Pennsylvania and 53 Pa. C.S. §§ 2961, et seq. (the “Home Rule Charter Law”). Section 2961 of the Home Rule Charter Law provides:
A municipality which has adopted a home rule charter may exercise powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality. 53 Pa. C.S. § 2961; see also Pa. Const. art. 9, § 2.
186. The municipal powers of Hazleton are not unlimited and Hazleton is restricted to those powers bestowed by the General Assembly. Hazleton is not a sovereign government and it has no original or fundamental power of legislation. Rather, Hazleton has the power to enact ordinances only within the parameters which are established by the General Assembly.
187. The Home Rule Charter Law proscribes municipalities from exercising “powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth.” 53 Pa. C.S. § 2962(c)(2).
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188. The General Assembly has circumscribed the ability of a home-rulecharter municipality, such as Hazleton, to regulate business and employment. The Home Rule Charter Law states in pertinent part:
[a] municipality which adopts a home rule charter shall not determine the duties, responsibilities or requirements placed upon businesses, occupations and employers. . . except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities. 53 Pa.C.S. § 2962(f) (emphasis added).
189. Through the enactment of Section 4.E. of the Immigration Ordinance, Hazleton attempts to impose duties and responsibilities on businesses, occupations and employers in direct violation of the Home Rule Charter Law.
190. The Immigration Ordinance requires the Code Office to suspend the business permit of any business if the Code Office determines the business recruited, hired for employment, continued to employ, dispatched or instructed an “unlawful worker” to perform work in whole or in part within Hazleton. See § 4.A. and § 4.B.(4).
191. Clearly, shuttering an entire firm for violating the Immigration Ordinance imposes duties, responsibilities or requirements on businesses and employers which duties, responsibilities or requirements do no otherwise exist
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under Federal or state law. Therefore, the Immigration Ordinance exceeds Hazleton’s powers under the Home Rule Charter Law and cannot stand.
192. Further, and regardless of the legislative wisdom (or lack thereof) in closing an entire firm for hiring a single “unlawful worker,” it is undeniable that such an enforcement action would cause other workers to lose pay and potentially their jobs. The magnitude of this grossly punitive penalty is wholly unrelated to the public policy underlying the Immigration Ordinance and thus Hazleton overstepped the legitimate exercise of its municipal powers in enacting the Immigration Ordinance.
193. The Immigration Ordinance impermissibly creates a heretofore nonexistent cause of action in favor of an “unfairly discharged employee” against the employer. Section 4.E. empowers an “unfairly discharged employee” to sue the employer in the Hazleton municipal court for the “unfair business practice.” 4.E.(2). The Immigration Ordinance further authorizes the “unfairly discharged employee” to recover actual damages, including three times the employee’s lost wages for a 120-day period and to recover attorneys’ fees and costs.
194. By creating a private cause of action in favor of “unfairly discharged employees,” Section 4.E. enlarges the rights of employees and the responsibilities of employers. Pennsylvania common law has long recognized the “at-will” status
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of employees. Section 4.E. attempts to alter that state-wide rule with respect to businesses operating — in whole or in part — in Hazleton by allowing employees of to sue for discharge on facts that are otherwise not actionable. Similarly, Section 4.E. allows for the recovery of treble damages for a discharged employee, creating a substantive right that does not exist under Pennsylvania law. Finally, Section 4.E. alters the “American rule” by allowing the discharged employee to recover attorneys’ fees, regardless of whether he/she prevails on the underlying claims.
195. Because Section 4.E. improperly attempts to impose otherwise nonexistent duties upon employers by creating a cause of action, allowing recovery of treble damages and allowing the recovery of attorneys’ fees, the Immigration Ordinance clearly constitutes an ultra vires act in the imposition of duties on business or employers in violation of the authority granted to Hazleton by the Home Rule Charter Law and must be declared void.
196. Under the Immigration Ordinance, Landlord Plaintiffs, Plaintiffs Lechuga and members of Plaintiff Organizations would be subject to the duties, responsibilities or requirements imposed on businesses, occupations and employers under the Ordinance.
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197. Because the Immigration Ordinance violates the Home Rule Charter Law, Plaintiffs are entitled to declaratory and injunctive relief.
SEVENTH CAUSE OF ACTION VIOLATION OF THE LANDLORD AND TENANT ACT 198. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 197 above as though set forth at length herein.
199. The Commonwealth has explicitly claimed state-wide authority over landlord and tenant issues by virtue of its enactment of the Landlord and Tenant Act of 1951, 68 P.S. §§ 250.101, et seq. (“L/T Act”). The L/T Act is the sole source of rights, remedies and procedures governing the landlord/tenant relationship and states in pertinent part:
[A]ll other acts a parts of acts, general, local and special, inconsistent with or supplied by this act, are hereby repealed. It is intended that this act shall furnish a complete and exclusive system in itself. 68 P.S. § 250.602 (emphasis added).
200. The L/T Act prescribes the procedures to be followed to evict a tenant. Hazleton may not adopt local ordinances that are incompatible and/or inconsistent with the requirements of the L/T Act. Hazleton has no lawful authority to alter or supplement the L/T Act.
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201. Section 5.A. of the Immigration Ordinance makes it unlawful for any Landlord to knowingly, or in reckless disregard of the fact, harbor an “illegal alien”. The Immigration Ordinance mandates that a Landlord evict any “illegal alien” within one (1) day after receipt of notice of violation of the ordinance from the Code Officer, to avoid the imposition of sanctions under the Immigration and Registration Ordinances. The eviction of a tenant or occupant within one (1) day would cause the Landlord to violate the provisions of the L/T Act that govern evictions and subject the Landlord to penalties for violation of the L/T Act.
202. Section 5.B.(3) requires that a Landlord to “correct” a violation within five (5) business days or risk the loss of the Landlord’s Rental License. The only way a Landlord can “correct” a violation is to evict the tenant who is an “illegal alien” within five (5) days of written notice from Hazleton.
203. The eviction provisions of the Immigration Ordinance compel the Landlord to violate the eviction provision of the L/T Act. The state-wide statutory scheme under the L/T Act affords certain safeguards for tenants, even if when the tenant has engaged in an activity for which eviction is merited. Under the L/T Act, an eviction proceeding is initiated by the filing of a complaint. The tenant is provided at least seven days from the date of the summons until the tenant must appear before the justice of the peace to answer the complaint. 68 P.S. § 250.502.
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If a judgment is rendered in favor of the landlord, a writ of possession may not issue until the fifth day after the rendition of the judgment, and may not be executed until the eleventh day following service upon the tenant, which is to occur within 48 hours of issuance. 68 P.S. § 250.503. Thus, under the L/T Act, a tenant cannot be evicted for a minimum of 23 days.
204. The Immigration Ordinance actually and materially conflicts with the L/T Act, is preempted by that statute, and cannot stand.
205. The Registration Ordinance prohibits an Owner from permitting occupancy of a Rental Unit by any person aged 18 years or older (“Occupant”), unless each Occupant has obtained an occupancy permit from Hazleton.
206. If an Occupant permits individuals who do not have an occupancy permit to occupy the Rental Unit, the Owner is liable for sanctions under the Ordinance, unless the Owner takes reasonable steps to remove the unauthorized person from the Rental Unit within ten (10) days of learning of the unregistered occupancy. If the Owner fails to remove any person lacking an occupancy permit, the Owner is liable for significant monetary sanctions under the Registration Ordinance, including a $1,000 fine for each unregistered occupant and $100 per day fine for each unregistered occupant.
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207. To avoid the imposition of sanctions under the Registration Ordinance, an Owner must evict any unregistered occupant within 10 days after of learning of the unregistered occupancy. The eviction of an unregistered occupant within this compressed timeframe would cause the Owner to violate the provisions of the L/T Act that mandate minimum timeframes for eviction proceedings, including the notice required under Section 250.501; the time limits for notice under Section 250.501; the time limits for removal under Sections 250.502 and 250.503; and tenant’s rights under Section 250.503-A. If the Owner complied with Registration Ordinance’s 10-day time limitation, the Owner would be subject to penalties for violation of the L/T Act. Because of this actual, direct, material and irreconcilable conflict between the Registration Ordinance and the state-wide statutes governing landlord/tenant matters, the Registration Ordinance clearly exceeds Hazleton’s powers under the Home Rule Charter Law and is preempted by the L/T Act.
208. The Registration Ordinance also conflicts with the L/T Act in another way. Under Section 10.b. of the Registration Ordinance, Occupants who allow additional occupancy in a Rental Unit without first obtaining the written permission of the landlord, and without requiring that any additional occupant obtain his or her own permit, are in violation of that Ordinance. However, under Section 250.504-A of the L/T Act, tenants have a right to invite social guests,
59

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family members or visitors into the Rental Unit for a reasonable period of time, as long as the tenant’s obligations as a tenant under the L/T Act are observed.
209. Hazleton’s attempt to eliminate a tenant’s rights to have visitors for a reasonable period of time by imposing an occupancy permit requirement directly and materially conflicts with the L/T Act. Accordingly, the Registration Ordinance is preempted by the L/T Act and exceeds Hazleton’s powers under the Home Rule Charter Law.
210. Plaintiffs John Does 1-4 and Plaintiff Jane Does 1-2 are tenants in Hazleton and are entitled to the protections afforded by the L/T Act. Landlord Plaintiffs are subject to sanctions under the Immigration and Registration Ordinances if they obey the L/T Act, and sanction under the L/T Act if they comply with the Immigration and Registration Ordinances.
211. Because the Immigration and Registration Ordinances violate the L/T Act, Plaintiffs are entitled to declaratory and injunctive relief.
EIGHTH CAUSE OF ACTION VIOLATION OF PLAINTIFFS’ PRIVACY RIGHTS 212. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 211 above as though set forth at length herein.
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213. The U.S. Constitution protects certain zones of privacy and Plaintiffs are legally entitled to the protection of these privacy rights.
214. Article I, Section 8 of the Pennsylvania Constitution provides: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. Pa. Const. art. I, § 8.
215. The Pennsylvania Constitutional guarantee protects an individual’s privacy.
216. The Immigration and Registration Ordinances violate Plaintiff’s right to privacy as protected by the U.S. Constitution and the Constitution of the Commonwealth of Pennsylvania.
217. To secure an occupancy permit under the Registration Ordinance, Hazleton compels prospective tenants to disclose personal information such as an occupant’s full name, address, home telephone number, work telephone number and cellular telephone number. Additionally, such prospective tenants are obligated to disclose confidential and personal documents such as birth certificates, passports; documents issued to the individual by the federal government, such as “green cards” resident alien cards and naturalization documents. Upon information
61

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and belief, these documents contain highly personal and confidential information such as and individual’s date and place of birth, alien number, country of origin and date of entry into the U.S.
218. To obtain an occupancy permit, prospective tenants must disclose the information stated above in paragraph 213 for each person over the age of 18 with whom the contracting tenant chooses to reside.
219. To obtain a Rental License under the Registration Ordinance, Hazleton compels Landlords to disclose personal information such their full name, address, home telephone number, and cellular telephone number. In the event the Landlord’s Rental License is suspended under the Immigration Ordinance, the Landlord must provide the name, address and “adequate identifying information” of the tenant in order to secure the lifting of the license suspension.
220. The Individual Plaintiffs, the members of the Plaintiff Organizations and Plaintiff Landlords have a reasonable expectation of confidentiality and privacy in and non-disclosure of their private and confidential information.
221. The right to move from one residence to another is a constitutionally protected liberty. Compliance with the Registration Ordinance will force the Individual Plaintiffs and the members of the Plaintiff Organizations to surrender
62

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their Federal and state privacy rights in order to exercise a constitutionally protected liberty.
222. Plaintiffs Jane Does 1 and 2, and Plaintiffs John Does 1-4 are adult tenants and residents in the City of Hazleton. Plaintiffs Jane Doe 1 and 2, and Plaintiffs John Doe 1-4 have a privacy interest in whom they choose to associate with and the familial relationships they may or may not have.
223. The Registration Ordinance contains no safeguards to ensure the information gathered by Hazleton remains private and confidential. The Registration Ordinance does not mandate penalties in the event of inappropriate use or disclosure of private and confidential information.
224. Because Plaintiffs’ Right to Privacy as guaranteed by the U.S. Constitution and the Constitution of the Commonwealth of Pennsylvania will be violated if they are required to comply with the Registration Ordinance , the Immigration and Registration Ordinances must be declared to be invalid.
225. As a result of the violations of Plaintiff’s Right to Privacy, Plaintiffs are entitled to declaratory and injunctive relief.
NINTH CAUSE OF ACTION VIOLATION OF EQUAL PROTECTION DENIAL OF EDUCATION TO ALIEN CHILDREN
63

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226. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 225 above as though set forth at length herein.
227. The Ordinance seeks to deny a group of children defined as “illegal aliens,” including John Does 5-6 an d Jane Doe 3, access to public education, in violation of the Fourteenth Amendment.
228. As a result of the current and threatened violations of their fundamental right to equal protection, Plaintiffs are entitled to declaratory and injunctive relief.
For all the foregoing reasons, Plaintiffs are entitled to relief under each and every one of the causes of action asserted herein.
PRAYER FOR RELIEF WHEREFORE, in light of the foregoing, Plaintiffs respectfully request the following:
(a) a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. §§ 1981 and 1983 declaring the New Ordinances void because they violate the Supremacy Clause, the Due Process and Equal Protection Clauses of Fourteenth Amendment of the Constitution of the United States, violate the fundamental rights conferred by 42 U.S.C. § 1981 and the Fair Housing Act, 42 U.S.C. §§ 3601 et seq.; violate privacy rights
64

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conferred by the U.S. and Pennsylvania Constitutions; and violate Pennsylvania’s Home Rule Charter Law, 53 Pa.C.S §§ 2961, et seq. and Landlord and Tenant Act, 68 P.S. §§ 250.101 et seq. (b) an injunction pursuant to Fed. R. Civ. P. 65 prohibiting Hazleton and its agents from implementing or enforcing the New Ordinances; (c) damages against Hazleton for violating Plaintiffs’ rights under the United States and Pennsylvania Constitutions, 42 U.S.C. § 1981 and the Fair Housing Act; (d) an order awarding Plaintiffs the costs incurred in this litigation, including attorneys’ fees pursuant to 42 U.S.C. § 1988; and (e) such other relief the Court deems just and proper.
Respectfully submitted, By: /s/ Thomas G. Wilkinson, Jr. Thomas G. Wilkinson, Jr. Linda S. Kaiser Doreen Yatko Trujillo Thomas B. Fiddler Elena Park Ilan Rosenberg COZEN O’CONNOR 1900 Market Street Philadelphia, PA 19103 Tel. (215) 665-2000 Fax: (215) 665-2013
65

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Lillian Llambelis Foster Maer Jackson Chin PUERTO RICAN LEGAL DEFENSE FUND 99 Hudson St. 14 Floor New York, NY 10013-2815 Tel. (212) 739-7575 Fax: (212)431-4276
George R. Barron 88 North Franklin Street Wilkes-Barre, Pennsylvania 18701 Tel. (570) 824-3088 Fax: (570) 825-6675
David Vaida 137 North 5th Street Allentown, PA 18102 Tel. (610) 433-1800 Fax: (610) 433-2985
Barry H. Dyller DYLLER LAW FIRM Gettysburg House 88 North Franklin Street Wilkes-Barre, PA 18701 Tel. (570) 829-4860 Fax: (570) 825-6675
Lee Gelernt Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 125 Broad St., 18th Fl. New York, NY 10004 Tel. (212) 549-2620 Fax: (212) 549-2654
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Lucas Guttentag Jennifer C. Chang AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950
Witold J. Walczak AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 Tel. (412) 681-7864 Fax: (412) 681-8707
Paula Knudsen AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 105 N. Front St., Suite 225 Harrisburg, PA 17101 Tel. (717) 236-6827 Fax: (717) 236-6895
Mary Catherine Roper AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 Tel. (215) 592-1513 ext. 116
Counsel for Plaintiffs
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Shamaine Daniels Laurence E. Norton, II Peter Zurflieh COMMUNITY JUSTICE PROJECT 118 Locust Street Harrisburg, PA 17101 Tel. (717) 236-9486 Fax: (717) 233-4088 Counsel for Plaintiffs Rosa Lechuga, Jose Luis Lechuga, Brenda Lee Mieles, John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6 and Jane Doe 1, Jane Doe 2, Jane Doe 3, Jane Doe 4 and Casa Dominicana of Hazleton, Inc.
Peter D. Winebrake TRUJILLO RODRIGUEZ & RICHARDS, LLC 1717 Arch Street, Suite 3838 Philadelphia, PA 19103 Tel. (215) 731-9004 Fax: (215) 731-9044
Counsel for Plaintiff Pennsylvania Statewide Latino Coalition
68

Case 3:06-cv-01586-JMM Document 29 Filed 10/30/2006 Page 69 of 69

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 Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 1 of 80

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, ET AL. Plaintiffs,
v. CITY OF HAZLETON,
Defendant.

: CIVIL ACTION

: : NO. 6-cv-56-JMM

: :

(Hon. James M. Munley)

:

:

:

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’MOTION FOR PRELIMINARY INJUNCTION
AND TEMPORARY RESTRAINING ORDER

Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 2 of 80
TABLE OF CONTENTS Page
I. INTRODUCTION AND PROCEDURAL HISTORY................................... 1 II. BACKGROUND............................................................................................. 4
A. Registration Ordinance 2006-13 .................................................................. 7 B. Immigration Ordinance 2006-18 .................................................................. 7 C. Ordinances’ Impact To Date ........................................................................ 9 III. ARGUMENT ................................................................................................ 11 A. Standard For Injunctive Relief ................................................................... 11 B. Plaintiffs Are Likely To Succeed On The Merits ...................................... 12
1. The Immigration And Registration Ordinances Violate The Supremacy Clause....................................................................................................... 13
2. The Immigration And Registration Ordinances Violate Due Process By Depriving Plaintiffs Of Fundamental Liberty And Property Interests Without Meaningful Notice Or Opportunity To Challenge Adverse Determination........................................................................................... 26
3. The Immigration Ordinance Contravenes The Equal Protection Clause And The Fair Housing Act....................................................................... 38
4. The Registration Ordinance Violates Federal Guarantees Of Privacy.... 46 5. Hazleton Lacks The Municipal Power To Regulate Employment And
Landlord Tenant Issues ............................................................................ 50 C. Plaintiffs Will Suffer Irreparable Harm by the Enforcement of the
Immigration and Registration Ordinances ................................................. 58
i

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D. The Harm to Plaintiffs Greatly Outweighs Any Alleged Harm to Hazleton.................................................................................................. 60
E. Granting the Preliminary Injunction is In the Public Interest .................... 62 IV. CONCLUSION ............................................................................................. 62
ii

Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 4 of 80
TABLE OF AUTHORITIES
CASES
A. A. v. New Jersey, 341 F.3d 206 (3d Cir. 2003).......................................................................... 48
Adarand Constructors, Inc. v. Pea, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)............................ 40
Allegheny Energy, Inc. v. D.Q.E., Inc., 171 F.3d 153 (3d. Cir. 1999)......................................................................... 12
Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000).......................................................................... 27
American Insurance Associate v. Garamendi, 539 U.S. 396 (2003) ................................................................................ 14, 26
Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999) aff'd 532 U.S. 514 (2001)................................ 49
Board of Regents v. Roth, 408 U.S. 564 (1972) .......................................................................... 27, 28, 30
Bloomsburg Landlords, Associates, Inc. v. Town Of Bloomsburg, 912 F. Supp. 790 (E.D. Pa 1995) .................................................................. 55
Bradley v. United States, 299 F.3d 197 (3d Cir.2002)........................................................................... 42
Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954)....................................... 42
Brown v. Texas, 443 U.S. 47 ( 1979) ....................................................................................... 47
Carey v. Piphus, 435 U.S. 247 (1978) ...................................................................................... 27
iii

Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 5 of 80
Castro-O'Ryan v. INS, 847 F.2d 1307 (9th Cir. 1988)....................................................................... 17
Chicago v. Morales, 527 U.S. 41 (1999) ........................................................................................ 47
Christopher v. Nestlerode, 373 F. Supp. 2d 503 (M.D.Pa.,2005) ...................................................... 42, 44
Chy Lung v. Freeman, 92 U.S. 275 (1876) ............................................................................ 13, 15, 16
City of Cleburne v. Cleburne Living Center, 473, U.S. 432, 440 (1985) ......... 38, 41
Clark v. Martinez, 543 U.S. 371 (2005) ...................................................................................... 21
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) ................................................................................ 27, 29
College Savings Bank v. Florida Prepaid Postsecondary Education Exp. Board, 131 F.3d 353 (3d Cir. 1997), aff'd, 527 U.S. 666, 675 (1999)..................................................................... 30
Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170 (3d Cir. 2005).......................................................................... 46
Conn v. Gabbert, 526 U.S. 286 (1999) ...................................................................................... 29
Connecticut v. Doehr, 501 U.S. 1 (1991) .......................................................................................... 33
Council of Alternative Political Parties v. Hooks, 121 F.3d 867 (3rd. Cir. 1997) ....................................................................... 62
Council of Middletown Township v. Benham, 523 A.2d 311 (Pa. 1986) ............................................................................... 55
iv

Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 6 of 80
Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) ...................................................................................... 26
De Canas v. Bica, 424 U.S. 351 (1976) .......................................................................... 13, 15, 18
Drax v. Reno, 338 F.3d 98 (2d Cir. 2003)............................................................................ 17
E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998),........................................................ 28, 29
Eastampton Center, L.L.C. v. Township of Eastampton, 155 F. Supp. 2d 102 (D.N.J. 2001) ............................................................... 45
Farm and Labor Organizing Committee v. Ohio State Patrol, 308 F.3d 523 (6th Cir 2002).......................................................................... 43
Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589 (3rd Cir. 1979) ........................................................................ 59
Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105 (3d Cir. 1987).................................................................... 48, 49
Fuentes v. Shevin, 407 U.S. 67 (1972) ........................................................................................ 36
Geier v. American Honda Motor Co., 529 U.S. 861 (2000) ...................................................................................... 19
Genkinger v. City of New Castle, 84 A.2d 303 (Pa. 1951) ................................................................................. 52
Gomez v. Turner, 217 U.S. App. D.C. 281, 672 F.2d 134 (D.C. Cir. 1982) ............................. 47
Graham v. Richardson, 403 U.S. 365 (1971) ................................................................................ 13, 14
v

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Greene v. Lindsey, 456 U.S. 444 (1982) ...................................................................................... 33
Greyhound Lines, Inc. v. Peter Pan Bus Lines, Inc., 845 F. Supp. 295 (E.D. Pa. 1994) ................................................................. 58
Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325 (2005)........................................................... 43
Hartman v. City of Allentown, 880 A.2d 737 (Pa. Commw. Ct. 2005) ......................................................... 55
Hartman v. City of Allentown, No. 2003-C-1846 (Lehigh County, June 14, 2004) ...................................... 54
Henderson v. Mayor of the City of New York, 92 U.S. 259 (1876) ........................................................................................ 13
Hines v. Davidowitz, 312 U.S. 52 (1941) ...................................................................... 13, 14, 24, 62
Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988), aff'd, 488 U.S. 15 (1988)................................ 45
Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir. 1989).......................................................................... 12
Jago v. Van Curen, 454 U.S. 14.................................................................................................... 30
James Daniel Good Real Property, 510 U.S. 43 (1993) .................................................................................. 35, 37
Johnson v. California, 543 U.S. 499 (2005) ................................................................................ 40, 41
Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989) ...................................................................................... 27
vi

Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 8 of 80
Kline v. City of Harrisburg, 68 A.2d 182 (Pa. 1949) ................................................................................. 52
League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995) ......................................................... 16, 23
Lenair v. Campbell, 31 Pa. D. & C. 3d 237 (Phila. County 1984) ................................................ 54
Lomack v. City of Newark, 463 F.3d 303 (3d Cir. 2006).......................................................................... 40
Mathews v. Eldridge, 424 U.S. 319 (1976) .................................................................... 28, 29, 35, 37
Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972) ...................................................................... 45
McCartney v. Meadow View Manor, Inc., 508 A.2d 1254 (Pa. Super. 1986).................................................................. 53
Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000)....................................................................... 43
Morales v. TWA, 504 U.S. 374 (1992) .......................................................................... 58, 59, 60
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) ................................................................................ 35, 37
Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003) ............................................................................... 29
Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656 (1993) ...................................................................................... 42
Opticians Association of America v. Independent Opticians of America, 920 F.2d 187 (3d. Cir. 1990)......................................................................... 12
vii

Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 9 of 80
PG Publishing Co. v. County of Washington, 162 Pa. Commw. 196 (Pa. Commw. Ct. 1994) ............................................ 50
Parker v. Hough, 215 A.2d 667 (Pa. 1966) ............................................................................... 33
Paul P. by Laura L. v. Verniero, 170 F.3d 396 (3d Cir. 1999).......................................................................... 48
Paul P. v. Farmer, 227 F.3d 98 (3d Cir. 2000)............................................................................ 48
Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250 (3d Cir. 1994).................................................................... 27, 29
Plyler v. Doe, 457 U.S. 202 (1982) ................................................................................ 16, 23
Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985) ...................................................................................... 32
Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977).......................................................................... 44
Rogers v. Larson, 563 F.2d 617 (3d Cir. 1977).......................................................................... 24
SK&F Co. v. Premo Pharmaceutical Laboratories, Inc., 625 F.2d 1055 (3d Cir. 1980)........................................................................ 12
Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894 (1996)........................................................... 43
Small v. United States, 333 F.2d 702 (3d Cir. 1964).................................................................... 30, 31
Smaller Manufacturers Council v. Council of City of Pittsburgh, 485 A.2d 73 (Pa. Commw. Ct. 1984) ........................................................... 52
viii

Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 10 of 80
Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337 (1969) ...................................................................................... 36
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) ........................................................................................ 19
Sterling v. Borough of Minersville, 232 F.3d 190 (3d Cir. 2000).................................................................... 48, 49
Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3d Cir.1980), cert. denied, 449 U.S. 1096 (1981)................. 60
Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948) ...................................................................................... 13
Toll v. Moreno, 458 U.S. 1 (1982) .............................................................................. 13, 14, 18
Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972) ...................................................................................... 45
Tribune-Review Publ. Co. v. Allegheny County Housing Authority, 662 A.2d 677 (Pa. Commw. Ct. 1995) ......................................................... 50
Tribune-Review Publ. Co. v. Bodack, 875 A.2d 402 (Pa. Commw. Ct. 2005) ......................................................... 50
Truax v. Raich, 239 U.S. 33 (1915) .................................................................................. 13, 29
United States v. Cannistraro, 800 F. Supp. 30 (N.J.1992) ..................................................................... 38, 43
United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487 (1994) ...................................................................................... 48
United States v. Commonwealth of Pennsylvania, 533 F.2d 107 (3d. Cir. 1976)......................................................................... 12
ix

Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 11 of 80
United States v. Gilbert, 813 F.2d 1523 (9th Cir. 1987)....................................................................... 45
United States v. Hunter, 459 F.2d 205 (4th Cir. 1972)......................................................................... 45
United States v. Kim, 193 F.3d 567 (2d Cir. 1999).................................................................... 19, 25
United States v. Locke, 529 U.S. 89 (2000) ........................................................................................ 26
United States v. Lopez, 521 F.2d 437 (2d Cir. 1975).......................................................................... 19
United States v. Maali, No. 6:02-CR-171ORL28KRS, 2005 WL. 2204982 (M.D. Fla. Sept. 8, 2005).............................................. 25
United States v. Williams, 124 F.3d 411 (3d Cir. 1997).......................................................................... 38
United Tavern Owners of Philadelphia v. Philadelphia Sch. District, 272 A.2d 868 (Pa. Commw. Ct. 1971) ......................................................... 55
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ...................................................................................... 43
Waters v. Barry, 711 F. Supp. 1125 (D.D.C. 1989) ................................................................. 47
Western Pennsylvania Restaurant Association v. Pittsburgh, 77 A.2d 616 (Pa. 1951) ................................................................................. 55
Williams v. Guzzardi, 875 F.2d 46 (3rd Cir. 1989) .......................................................................... 55
Wisconsin Department of Industrial v. Gould, 475 U.S. 282 (1986) ...................................................................................... 26
x

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Yeager v. Hackensack Water Co., 615 F. Supp. 1087 (D.N.J. 1985) .................................................................. 49
Zadvydas v. Davis, 533 U.S. 678 (U.S. 2001)........................................................................ 14, 21
Zinermon v. Burch, 494 U.S. 113 (1990) ...................................................................................... 27 STATUTES
8 C.F.R. § 212.5(f)................................................................................................... 22 8 C.F.R. § 274a.12(a)(11-13), ................................................................................. 21 8 C.F.R. § 274a.1(c)-(f) ........................................................................................... 21 8 C.F.R. 274a9(b) .................................................................................................... 44 8 U.S.C. § 1101(a)(20) ............................................................................................ 23 8 U.S.C. § 1154 ....................................................................................................... 17 8 U.S.C. § 1229a...................................................................................................... 18 8 U.S.C. § 1242a...................................................................................................... 21 8 U.S.C. § 1254a...................................................................................................... 22 8 U.S.C. § 1255(i).................................................................................................... 21 8 U.S.C. § 1324a................................................................................................ 20, 25 8 U.S.C. §§ 1324a-1324b ........................................................................................ 18 8 U.S.C. §§ 1324a-b ................................................................................................ 18 8 U.S.C. § 1324a(h)(2) ............................................................................................ 19 8 U.S.C. § 1324a note.............................................................................................. 20
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71 Fed. Reg. 16, 333 (Mar. 31, 2006) ..................................................................... 17 42 U.S.C. § 3601, et seq .......................................................................................... 44 42 U.S.C. § 3604 ..................................................................................................... 44 42 U.S.C. § 3604(a)..................................................................................... 44, 45, 46 42 U.S.C. § 3604(c)........................................................................................... 44, 45 42 U.S.C.A. § 3604 ................................................................................................. 45 53 Pa. C.S.A. § 2961 ................................................................................... 51, 52, 54 68 P.S. §§ 250.101, et seq ..................................................................... 54, 55, 56, 57 H. R. 4437, 109th Cong. (2005) ............................................................... 5, 6, 7, 8, 9,
25 H.R. Rep. 99-682(I), at 53-56 ............................................................... 18, 19, 21, 24 Illegal Immigrant Reform and Immigrant Responsibility Act §§ 401, 402(a),
Pub. L. No. 104-28........................................................................................ 20 Pa. Const. art. 9, § 2................................................................................................. 51 S. 1033, 109th Cong., § 402 .................................................................................... 21 S. 1438, 109th Cong., § 321 .................................................................................... 21 S. 2611, 109th Cong. § 403 (2006) ........................................................................... 4 8 U.S.C. 1101 et seq ................................................................................................ 17 U. S. Const. Amend. XIV........................................................................................ 27
MISCELLANEOUS Erwin Chemerinsky, Constitutional Law: Principles
and Policies, 536 (2002) ............................................................................... 27
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, ET AL. Plaintiffs,
v. CITY OF HAZLETON,
Defendant.

: CIVIL ACTION

: : NO. 6-cv-56-JMM

: :

(Hon. James M. Munley)

:

:

:

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY RELIEF

I. INTRODUCTION AND PROCEDURAL HISTORY Plaintiffs move this Court pursuant to Rule 65(a) and (b) for a temporary

restraining order and for a preliminary injunction to prohibit defendant City of

Hazleton (“Hazleton” or “City”) from enforcing the Illegal Immigration Relief Act

Ordinance 2006-18 (“the Immigration Ordinance”) and Ordinance 2006-13 (the

“Registration Ordinance”), until their lawfulness is finally decided by the Court.

This past summer, Hazleton unveiled a municipal ordinance designed to

expel all so-called “illegal aliens” from the City by preventing them from working,

living or obtaining goods and services. Hazleton’s Mayor, Lou Barletta, described

his motives for proposing the Ordinance as follows: “Illegal immigrants are

destroying the city. I don’t want them here, period.” Robert Tanner, Illegal

Immigration Now a Local Issue, TULSA WORLD, July 20, 2006, at A12. Thus,

on July 13, 2006, the City of Hazleton (“Hazleton”) passed the “Illegal

Immigration Relief Act Ordinance” (“Prior Ordinance”) proposed by Mayor Lou

Barletta and announced that such Ordinance would take effect in sixty days. The

Prior Ordinance would have punished those who rent, employ or conduct any

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business transactions with “illegal aliens,” and made English the city’s official language.
As a result, immigrant families—primarily Latino—began leaving the city.1 Latino-owned restaurants and shops lost business and many had to close down. Anti-immigration and anti-Latino sentiment seethed in Hazleton. Because the Prior Ordinance violated the Constitutional and civil rights of all foreign-looking and sounding citizens of Hazleton - irrespective of their immigration status Plaintiffs filed a Complaint with this Court on August 15, 2006 (“Original Complaint”). The Original Complaint challenged the Prior Ordinance on several constitutional, civil rights and other grounds. Subsequently, on September 2, 2006, this Court approved a Stipulation whereby Hazelton agreed not to enforce the Prior Ordinance and Plaintiffs agreed not to seek an injunction against that Ordinance.
In its continued quest to drive “illegal aliens” from the city, Hazleton began anew to draft and ultimately enacted ordinances to accomplish this purpose. On August 15, 2006, Hazleton enacted Ordinance 2006-13, captioned in part “Establishing a Registration Program for Residential Rental Properties” (“Registration Ordinance”). On September 21, 2006, Hazleton enacted Ordinance 2006-18, also entitled the “Illegal Immigration Relief Act Ordinance,” (“Immigration Ordinance”) and Ordinance 2006-19, entitled “Official English Ordinance” (“English Only Ordinance”). The Registration Ordinance takes effect November 1, 2006, and Hazleton has announced plans to begin implementation

1

Indeed, several of the plaintiffs named in the original complaint have left Hazleton and

have accordingly chosen to withdraw from this action.

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and enforcement of the Immigration and English Only Ordinances on or about that same date.
The Immigration and Registration Ordinances remain unconstitutional and violate other federal and Pennsylvania laws. Among the many legal deficiencies of both Ordinances are violations of 1) the Supremacy Clause, because the Ordinances unlawfully infringe on the federal government’s authority over immigration and are inconsistent and in conflict with federal immigration law; 2) the Fourteenth Amendment Due Process Clause, by failing to afford any notice or opportunity to contest a determination that a person is an "illegal alien" or “unauthorized worker” prior to the time the person is forced from their job or home; 3) the Fourteenth Amendment Equal Protection Clause and the Fair Housing Act, by discriminating invidiously based on race, ethnicity, and national origin; 4) U.S. and Pennsylvania constitutional privacy protections, by demanding personal and confidential information about tenants renting space in the City; and 5) Pennsylvania law restricting the powers permitted to home rule municipalities, by legislating in conflict with state-wide laws governing employment and the landlord/tenant relationship.
Plaintiffs have already been harmed by the Prior Ordinance and the enactment of the Immigration and Registration Ordinances. They will suffer additional harm if the City is allowed to enforce the Ordinances. Hazleton has already driven out foreign-looking or -sounding individuals, who fear being targeted as an “illegal alien” or “unauthorized worker.” Others who remain already have experienced a sense of wariness, if not outright suspicion and hostility, in Hazleton. If the Ordinances are enforced, Plaintiffs will be subjected
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to novel obligations in violation of federal and state law; eviction and termination of employment without due process, invidious discrimination, and violation of their constitutionally-protected privacy rights. In view of the irreparable harm they have suffered and will continue to suffer as a result of these violations, Plaintiffs now move for a temporary restraining order and preliminary injunction to prevent the enforcement of the Immigration and Registration Ordinances.

II. BACKGROUND On July 13, 2006, Hazleton passed the Prior Ordinance and the Registration
Ordinance2 had its first reading before Hazleton City Council. On August 15, 2006, the Registration Ordinance was enacted by Hazleton. A copy of the Registration Ordinance is attached as Exhibit “A.” After three readings, on September 21, 2006, the Immigration Ordinance was enacted by Hazleton. A copy of the Immigration Ordinance is attached as Exhibit “B.” On the same day, Ordinance 2006-19, entitled the “Official English Ordinance” (“English Only Ordinance”) was enacted by Hazleton.
The new Ordinances were enacted amid a passionate national debate over federal immigration policy at the very time that the United States Congress was considering competing bills to amend federal immigration law. On May 25, 2006, the U.S. Senate voted in favor of a bill that would include a path to legalization for millions of undocumented aliens. See S. 2611, 109th Cong. § 403 (2006). The House and Senate each approved respective bills that would increase border and

2

The full name of the Registration Ordinance is “Establishing a Registration Program for

Residential Rental Properties; Requiring All Owners of Residential Rental Properties to

Designate an Agent for Service of Process; and Prescribing Duties of Owners, Agents and

Occupants; Directing the Designation of Agent; Establishing Fees for the Costs Associated with

the Registration of Rental Property; and Prescribing Penalties for Violation.”

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interior enforcement of immigration laws. See generally H. R. 4437, 109th Cong. (2005); S. 2611, 109th Cong. (2006).
Hazleton’s Mayor described his motives for proposing the Prior Ordinance as follows: “[I]llegal immigrants are destroying the city. I don’t want them here, period.” Robert Tanner, Illegal Immigration Now a Local Issue, TULSA WORLD, July 20, 2006, at A12. The Mayor has also stated that his “small-town budget is buckling under the strain of illegal immigrants”; and “some people come to this country and refuse to learn English, creating a language barrier for city employees.” Id. These sentiments are also captured in the new Immigration Ordinance, which alleges:
That unlawful employment, the harboring of illegal aliens in dwelling units in the City of Hazleton, and crime committed by illegal aliens harm the health, safety and welfare of authorized US workers and legal residents in the City of Hazleton. Illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services, increasing their cost and diminishing their availability to legal residents, and diminishes our overall quality of life. See The Immigration Ordinance, §2.C. However, the Mayor has admitted publicly on several occasions that the City does not have any statistics or other evidence to support his claim that “illegal aliens” have contributed significantly to an increase in the crime rate or other problems in Hazleton, nor does he know if any or how many undocumented individuals live or work in Hazleton. Dan Geringer, Bloomberg: U.S. Can’t Stem Immigration Tide, PHILADELPHIA DAILY NEWS, July 6, 2006.
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In fact, statistics compiled by the Pennsylvania State Police Uniform Crime Reporting System show a reduction in the number of total arrests in Hazleton over the last five years – from 1,458 in 2000 to 1,263 in 2005. Ellen Barry, City Vents Anger at Illegal Immigrants, L.A. TIMES, July 14, 2006, at 1. That decline is due in large part to a reduction in the number of more serious crimes – rapes, robberies, homicides and assaults – since 2000. Id. Hazleton’s own website proudly has boasted that recent immigration from Mexico, the Dominican Republic, and other nations in Central and South America to Hazleton has invigorated the local economy. See Kent Jackson, City Turns 150 This Week, STANDARD-SPEAKER, April 16, 2006 in www.hazletoncity.org. A recent study confirmed how Latino immigrants had revitalized the city. See Joint Center for Ethnic Studies, “Ethnic Changes in Northeastern Pennsylvania—With Special Emphasis on Recent History within the City of Hazleton,” dated July 2006. Over the past decade, Latinos— U.S. citizens as well as immigrants—began moving to Hazleton in substantial numbers and now constitute approximately 30% of the city’s residents. Mocarsky, Steve, Hazleton’s Illegal-Immigration Law a Trendsetter, in TIMES LEADER, July 31, 2006. Latino business owners and Latino customer-based enterprises filled the once abandoned main street with new businesses and restaurants and local real estate values tripled. Vitez, Michael, Small Town, Big Conflict, in THE PHILADELPHIA INQUIRER, June 23, 2006. As a result of the campaign to support the passage of the Prior and New Ordinances, however, Hazleton, once known for its tranquil nature, has become highly polarized along racial and ethnic lines.
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A. Registration Ordinance 2006-13 The Registration Ordinance requires “occupants” of any “premises” to register their personal information, including “proof of legal citizenship and/or residency” with Hazleton. In addition, “occupants” are required to pay an “occupancy permit fee” of $10.00 for each occupant. Thereafter, all “person[s] age 18 or older who resides at a “premises” must obtain an occupancy permit prior to occupying such premises. See Registration Ordinance, §7. Senior citizens, while exempt from the fee, must also register their personal data with Hazleton prior to “occupying” any premises. The City published a Notice to the “Residents of the City of Hazleton” regarding the requirement of every landlord and tenant to obtain a permit. A copy of the Notice is attached Exhibit “C.” Registration Forms were also issued by the City for purposes of registering all “occupants” and landlords. A copy of the Registration Form is attached as Exhibit “D.” B. Immigration Ordinance 2006-18 Under the Immigration Ordinance, Hazleton officials are directed to investigate allegations of harboring “illegal aliens” or employing “unauthorized workers” reported by “any City official, business entity, or City resident.” See Immigration Ordinance, §§ 4.B and 5.B. Property owners or homeowners who provide, or continue to provide, shelter to “illegal aliens” are deemed to be “harboring illegal aliens” and are subjected to penalties including revocations of rental licenses, prohibitions against collecting rent from any tenant, and - for subsequent violations - monetary fines. Id at § 5. According to the definitions, an “illegal alien” is an “alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq.” Id at §3. The Immigration Ordinance goes on to state that “[t]he City shall not conclude
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that a person is an illegal alien unless and until an authorized representative of the City has verified with the federal government, pursuant to United States Code Title 8, subsection 1373(c), that the person is an alien who is not lawfully present in the United States.” Id.
Employers, whether individual or corporate, for-profit or not for profit, are also subject to penalties for hiring or continuing to employ “unauthorized workers” – business licenses can be suspended and business operations can be disrupted. Id at §4.B. “Unlawful worker” is defined as “a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including but not limited to a minor disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3).” Id at §3. The Ordinance prohibits recruiting, hiring, employing, and “permit[ting], dispatch[ing], or instruct[ing] any person who is an unlawful worker to perform work in whole or in part within the City.” “Work,” in turn, is defined as “any job, task, employment, labor, personal services, or other activity for which compensation is provided.” Id. at § 4A, 3F.
Violations of the Ordinance’s employment provision will be punished by suspension of business permits. § 4B(4), (7). Certain violators will also be required to participate in the Basic Pilot Program, a voluntary federal employmentverification scheme. § 4B(6)(b). (Conversely, employers may avoid some penalties if they participate in the Basic Pilot Program. §4B(5).) The Immigration Ordinance also provides that employers who discharge any lawful employee is liable for triple damages and attorneys fees, regardless of whether the termination was for cause, “if, on the date of the discharge, the business entity was not
8

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participating in the Basic Pilot Program and was employing an unlawful worker.” Id at § 4E. The Immigration Ordinance also provides that employers who wrongfully discharge a lawful employee can face triple damages. Id at §4E(2).
C. Ordinances’ Impact To Date Although Hazleton has indicated that it does not intend to enforce the New Ordinances until November 1, 2006, their impact - economically, emotionally and socially - on Plaintiffs and the community at large has already been tremendous. “Illegal aliens” have been caricatured as murderers and criminals, waiting to prey on Hazleton residents. Mocarsky, Steve, Citizen reaction to suit as varied as population, in TIMES LEADER, August 16, 2006. Latinos - no matter their immigration status - are experiencing hostility and suspicion from other, primarily white, residents who suspect them to be “illegal aliens.” In essence, Hazleton has concocted Ordinances that authorize the city of Hazleton and its residents to conduct witch hunts—anyone who looks or sounds “foreign” or associated with a “foreign” name, heritage or person must be questioned, people who are foreigners cannot be trusted and all “illegal aliens” are criminals. A recent quote by a local resident sums up the climate of fear and racism in Hazleton:
Waiting downtown for a bus, Lena Zizzo, of McAdoo, said she supports the ordinance because illegal immigrants should “stay where they belong.” “Why should they come and take everything away? You don’t see me going to Puerto Rico or Guam. Deport the whole lot of them. Chances are, they’re no good,” Zizzo said. Steve Mocarsky, Public Reaction To Suit As Varied As City’s Population, TIMES LEADER, August 20, 2006. The article correctly pointed out that individuals from Puerto Rico and Guam, which are both U.S. territories, are in fact U.S. citizens.
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Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 23 of 80
Many Latinos and “legal” immigrants have left the area fearing that they will be branded by the Ordinances’ discriminatory impact, as well as their harsh and drastic sanctions. Plaintiffs, including Jane Doe 1, who is a victim of domestic violence, John Does 1-4, and Jane Doe 2 will be forced to leave Hazleton with their families if the Ordinance is not enjoined. In the Plaintiffs’ households, moreover, there is at least one family member who is a U.S. Citizen.
With the exodus of Latino families from Hazleton, Hispanic businesses are losing clientele or are closing down. See Declarations of Humberto Hernandez and HHBA. Plaintiff employers and landlords are also fearful of the burdens put on them by the Immigration and Registration Ordinance. These Ordinances require that landlords such as Plaintiffs Lozano and Hernandez and business owners such as Plaintiffs Lechuga, and members of HHBA, determine the immigration status of the individuals with whom they interact. To avoid suspicion, the risk of complaints and threat of penalties under the Ordinances, employers and property owners will simply avoid renting to or hiring foreign-looking or sounding individuals.
Hazleton is fully aware that its enactment of immigration-related ordinance has detrimentally impacted the Latino population in the city. See St. Louis PostDispatch, dated 8/19/06 (City Council President Yanuzzi stating that “[e]very illegal is going to have to suffer” and noting that “Hispanic store owners are saying their business has dropped…A great portion of them (illegal immigrants) are out of here”).
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III. ARGUMENT Plaintiffs are entitled to a temporary restraining order and preliminary
injunction against the enforcement of the Immigration and Registration Ordinances. Plaintiffs are likely to prevail on their claims that these Ordinances violate the Supremacy Clause, Due Process Clause, Equal Protection Clause, the Fair Housing Act, the Right to Privacy, and Pennsylvania-law restrictions on municipal power, as well as landlord/tenant laws. See infra Part B. Employers, including Plaintiff Hernandez and members of Plaintiff organization HHBA, will be subjected to obligations not found under federal law; individuals, including Plaintiff John Doe 1, face eviction and termination of employment without due process, invidious discrimination, and being forced to provide confidential information to the City of Hazleton in violation of their constitutionally-protected privacy rights. Landlords and employers, including Plaintiff Hernandez and HHBA members, will be subjected to a regulatory scheme that violates and conflicts with state law. See infra Part C. The harm to Plaintiffs greatly outweighs any alleged harm to Hazleton, especially since Hazleton has no empirical evidence to show that the Immigration and Registration Ordinances will improve the quality of life in Hazleton or remedy the ills identified as the basis for the Ordinances’ adoption. See infra Part D. Finally, the public interest is in favor of granting the injunction where people are fleeing Hazleton and ethnic minorities — mainly Latinos — are living in justifiable fear of unlawful discrimination, hostility and rejection from mainstream society. See infra Part E.
A. Standard For Injunctive Relief Four factors govern the Court’s decision whether to issue a preliminary injunction: 1) whether the movant has shown a reasonable probability of success
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on the merits; 2) whether the movant will be irreparably injured by the denial of the relief; 3) whether granting the preliminary relief will result in greater harm to the non-moving party (i.e., a balancing of the hardships); and 4) whether granting the preliminary relief will be in the public interest. Allegheny Energy, Inc. v. D.Q.E., Inc., 171 F.3d 153 158 (3d. Cir. 1999) (citations omitted). See also United States v. Commonwealth of Pennsylvania, 533 F.2d 107, 110 (3d. Cir. 1976). A district court must consider all four of the elements. Opticians Association of America v. Independent Opticians of America, 920 F.2d 187, 191-192 (3d. Cir. 1990). In this case, an analysis of these factors demonstrates Plaintiffs’ compelling right to relief.
B. Plaintiffs Are Likely To Succeed On The Merits Before an injunction will issue, the movant must demonstrate a reasonable probability of eventual success in the litigation. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989). To demonstrate a reasonable likelihood of prevailing, a movant need not establish an absolute certainty of success, only a reasonable probability. SK&F Co. v. Premo Pharmaceutical Laboratories, Inc., 625 F.2d 1055, 1066-67 (3d Cir. 1980). Here, it is highly likely that the Immigration and Registration Ordinances will be deemed unlawful by the Court in their entirety as violations of the U.S. Constitution and state landlord/tenant laws.3

3

Plaintiff are likely to prevail against Hazleton on each of the counts in the Complaint.

However, for the sake of judicial economy, only the Ordinances’ violations of the supremancy

Clause, Due Process, Equal Protection, Fair Housing, Privacy, as well as violations of

Pennsylvania’s municipal power and landlord/tenant laws are discussed in the motion and this

memorandum of law.

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Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 26 of 80
1. The Immigration And Registration Ordinances Violate The Supremacy Clause
The Immigration and Registration Ordinances are local laws concerning immigration and foreign nationals. Such local laws are invalid under the Supremacy Clause of the United States Constitution if they are (1) constitutionally preempted because they are an attempt to regulate immigration, which is “unquestionably exclusively a federal power;” (2) field preempted because they are an attempt to legislate in a field occupied by the federal government or (3) conflict preempted because they “burden[] or conflict[] in any manner with any federal laws or treaties,” or “[stand] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” De Canas v. Bica, 424 U.S. 351, 354, 362, 363 (1976).
The Supreme Court has struck down numerous state statutes relating to noncitizens on one or more of these Supremacy Clause grounds. See, e.g., Toll v. Moreno, 458 U.S. 1, 10 (1982) (invalidating state denial of student financial aid to certain visa holders); Graham v. Richardson, 403 U.S. 365, 377-80 (1971) (invalidating state welfare restriction); Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 418-20 (1948) (invalidating state denial of commercial fishing licenses); Hines v. Davidowitz, 312 U.S. 52, 62-68 (1941) (invalidating state alien registration scheme); Truax v. Raich, 239 U.S. 33, 42 (1915) (invalidating state employer sanctions scheme under Fourteenth Amendment and suggesting Supremacy Clause violation); Chy Lung v. Freeman, 92 U.S. 275 (1876) (invalidating state statute that authorized state official to classify certain arriving immigrants as undesirable and indirectly bar their entry); Henderson v. Mayor of
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Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 27 of 80
the City of New York, 92 U.S. 259 (1876) (invalidating state bond requirement for arriving immigrants).
Courts are especially sensitive to Supremacy Clause concerns in the immigration area for several reasons. The “preeminent role of the federal Government with respect to the regulation of aliens within our borders,” Toll, 458 U.S. at 10, is established in the Constitution itself. In addition, laws relating to foreign nationals are inextricably intertwined with international relations and are therefore a particular concern of the federal government. Hines, 312 U.S. at 66-67; see also American Ins. Assoc. v. Garamendi, 539 U.S. 396, 420 & n.11 (2003) (discussing preemption concerns in foreign relations context); accord Mexico President Urges U.S. to Act Soon on Migrants, NEW YORK TIMES, Sept. 6, 2001 (noting that Mexican President pressed issue of treatment of undocumented workers in bilateral meetings with President Bush). There is a special need for nationwide consistency in matters affecting foreign nationals, given the “explicit constitutional requirement of uniformity,” Graham, 403 U.S. at 382, in immigration matters and the myriad problems that would result for citizens and non-citizens alike if each of the 50 states – or, as in this case, each of the thousands of localities like Hazleton across the 50 states – adopted its own rules for the treatment of aliens. See Graham, 403 U.S. at 382; see also Zadvydas v. Davis, 533 U.S. 678, 700 (U.S. 2001) (recognizing “the Nation’s need ‘to speak with one voice’ in immigration matters”).
The Immigration and Registration Ordinances plainly violate the Supremacy Clause under all three preemption theories – any one of which would be sufficient to invalidate the Ordinances.
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a. Constitutional Preemption The Immigration and Registration Ordinances are invalid because they are impermissible attempts to regulate immigration. The regulation of immigration is constitutionally reserved to the federal government, such that even if Congress had not legislated on the same subject matter the Ordinances would be invalid. The Ordinances constitute a broad and integrated scheme that combines multiple provisions addressing different discrete areas – tenant registration, harboring, and employment – to identify non-citizens living or working in Hazleton, assess their immigration status in a process so deficient in fairness that it does not even provide the immigrants any notice or opportunity to be heard, and expel those who do not “pass” from the city by making it impossible for them to live or work in Hazleton. Deciding who may stay and who must depart, and expelling the latter, is the very core of immigration regulation. See De Canas, 424 U.S. at 355 (“determination of who should or should not be admitted to the country” included in regulation of immigration); Chy Lung, 92 U.S. at 280 (“The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.”) Hazleton cannot arrogate this authority to itself. In an attempt to disguise its encroachment on federal authority, Hazleton has set forth a procedure in the Immigration Ordinance that makes penalties under that Ordinance contingent on federal verification of an individual’s status. It remains unclear, at best, how or whether such verification could in fact be provided by the federal government. See Escondido rental ban violators may be difficult to document, NORTH COUNTY TIMES, Oct. 6, 2006, available at http://nctimes.com/articles/2006/10/07/news/inland/ 22_18_5310_6_06.txt (DHS
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Case 3:06-cv-01586-JMM Document 32 Filed 10/30/2006 Page 29 of 80
officials stating that no federal system exists to verify rental eligibility). In any event, the presence or absence of federal verification does not alter the fact that Hazleton has, independently of the federal government, designed its own system of laws and enforcement that seek to regulate the presence of foreign nationals within the City’s borders. This it cannot do.
Moreover, Hazleton has not included any verification procedure in the Registration Ordinance, which requires City officials to determine whether each tenant in Hazleton has presented “proof of legal citizenship and/or residency.” Because “legal … residency” is not defined in any relevant manner in the federal immigration law, this Ordinance requires Hazleton to create its own definition of “legal … residency” and empowers its officials to make the City’s own determinations of who is or is not a legal resident for the purposes of 2006-13. These actions encroach on the federal immigration regulation power. Plyler, 457 U.S. at 225 (“The States enjoy no power with respect to the classification of aliens.”); id. at 236 (Marshall, J., concurring) (any attempt to “determine which aliens are entitled to residence … would involve the State in the administration of the immigration laws”); League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 769-771 (C.D. Cal. 1995) (“LULAC”) (invalidating state law provisions classifying aliens as unconstitutional regulation of immigration); accord Chy Lung, 92 U.S. at 279-81 (rejecting state statute that allowed state commissioner to classify arriving immigrants). In addition, city officials lack expertise in complicated immigration matters, will be unable to identify or understand the many varieties of immigration documentation, and will
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undoubtedly make mistakes in attempting to enforce the Tenant Registration Ordinance.4
b. Field preemption The Ordinances are invalid for the additional reason that the federal government has comprehensively legislated both in the field of immigration and specifically with respect to employer sanctions and harboring of undocumented aliens. It has left no room for local municipalities like Hazleton to pass its own versions of such laws. There can be no doubt that the federal immigration law is a comprehensive, and complex, regulatory scheme. Today’s Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and its associated regulations in Title 8 of the Code of Federal Regulations contain a myriad of interrelated provisions establishing, among other things, numerous immigration categories; civil and criminal sanctions for various violations; and extensive procedures for determining status and removability. See, e.g., 8 U.S.C. § 1154 (procedure for granting immigrant status);

4

Federal immigration law is infamously complex. See Drax v. Reno, 338 F.3d 98, 99 (2d

Cir. 2003) (describing “the labyrinthine character of modern immigration law” as “a maza of

hyper- technical statutes and regulations”); see also, e.g., Castro-O’Ryan v. INS, 847 F.2d 1307,

1312 (9th Cir. 1988). Adding to the difficulty of determining status is the fact that many types of

documents, such as court decisions, letters from federal immigration agencies, and passport

inserts, may constitute valid proof of immigration status but may not be so regarded by untrained

persons. And, to make matters still more complex, it cannot be assumed tht aperson who does

not hve identification documents clearly describing her immigration status in the United Sttes in

violation of federal law. For example, many nationals of Honduras who have been granted

Temporary Protection Status (“TPS”) have been issued Employment Authorization Documents

(“EADs”) with an expiration date of July 5, 2006. The federal government has since extended

the designation of Honduras for TPS by another year and has published a Federal Register notice

indicating that these EADs are to be considered valid through January 5, 2007. 71 Fed. Reg. 16,

333 (Mar. 31, 2006). Yet a person untrained in immigration law is likely to believe that an

apparently expired EAD is an indication of “illegal alien” status.

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§§ 1228-1252 (relating to removal proceedings and judicial review of removal decisions); §§ 1255-1259 (relating to adjustment of status); 8 U.S.C. § 1229a (removal proceedings). Thousands of federal officials in numerous federal agencies enforce the statutes and regulations, confer benefits, make discretionary determinations, undertake adjudication, and otherwise administer the immigration laws. Since the Registration Ordinance creates independent immigration statuses and an independent system for determining status within that system, as noted in section 1 supra, it is field preempted by the INA’s comprehensive alien classification scheme.
In the INA, Congress has also specifically addressed both of the areas covered by the Immigration Ordinance: sanctions for those who employ unauthorized aliens and those who harbor immigration violators. See 8 U.S.C. §§ 1324a-1324b (employer sanctions and antidiscrimination scheme), 1324 (harboring provision).
Congress added a federal employer sanctions scheme to the INA in 1986 when it passed the Immigration Reform and Control Act (“IRCA”), P.L. 99-603, after lengthy and careful consideration of various legislative options. 5 See 8 U.S.C. §§ 1324a-b; H.R. Rep. 99-682(I), at 53-56 (recounting history of

5

Before 1986, there was no federal employer sanctions scheme and no general prohibition

on hiring unauthorized aliens. Indeed, federal law actually invited some state regulation of the

employment of aliens. De Canas, 424 U.S. at 361. Therefore, in De Canas—a 1976 case—the

Supreme Court permitted a California statute that prohibited the employment of non-citizens

who lacked federal work authorization under narrowly defined circumstances. 424 U.S. at 352,

352 n.1, 353 n.2. The Court subsequently emphasized that it had “rejected the pre-emption

claim” in De Canas because “Congress intended that the States be allowed” to impose some

regulation in this area. 458 U.S. at 13 n.18 (emphasis in original). In doing so, it again

recognized Congress’s general intent to preempt all state immigration statutes. In 1986, of

course, Congress removed that permission and enacted instead an express bar on state regulation

of alien employment.

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legislation). Congress has likewise carefully calibrated and modified the reach and penalties of the federal harboring statute over many years. See United States v. Kim, 193 F.3d 567, 572-74 (2d Cir. 1999) (analyzing 1986 amendments to harboring statute to determine whether harboring could apply to employment); United States v. Lopez, 521 F.2d 437, 440-41 (2d Cir. 1975) (describing legislative history in determining reach of earlier statute). In light of Congress’ inclusion of these matters in the INA’s comprehensive scheme, the Ordinances are plainly invalid.6
c. Conflict preemption Finally, the Ordinances are invalid because they conflict with multiple provisions of federal law and because they stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress by

6

Defendant may claim that field preemption is inapplicable to the Immigration

Ordinance’s employer sanctions scheme because it penalizes businesses by denying, suspending,

or revoking their licenses, and IRCA’s express preemption provision states that “any State or

local law imposing civil or criminal sanctions (other than through licensing and similar laws)

upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” is

preempted. 8 U.S.C. § 1324a(h)(2). But the Ordinance is not a “licensing law” within the

narrow exception to § 1324a(h)(2). The statute’s reference to “licensing” encompasses “lawful

state or local processes concerning the suspension, revocation or refusal to reissue a license to

any person who has been found to have violated the sanctions provisions in this legislation” or

“licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry

laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or

referring undocumented aliens.” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662 (emphasis

added). The Ordinance, of course, does not apply only to individuals who have already been

found to violate IRCA’s provisions. Nor is it similar to a farm labor contractor or forestry law.

In any event, even if not expressly preempted, the Ordinance is invalid because it stands as an

obstacle to federal law and policy, as explained below. See Sprietsma v. Mercury Marine, 537

U.S. 51, 65 (2002) (“Congress’ inclusion of an express pre-emption clause does not bar the

ordinary working of conflict pre-emption principles” (punctuation and citation omitted)); see

also Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000) (finding conflict preemption

even where state action fell outside express preemption clause).

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introducing novel penalties and enforcement mechanisms not contemplated in federal law.
i) Conflicts with individual provisions of federal law The Immigration Ordinance conflicts with Congress’ designation of the Basic Pilot Program as a voluntary, experimental program to be implemented by the Attorney General (subsequently replaced by the Secretary of Homeland Security).7 See Illegal Immigrant Reform and Immigrant Responsibility Act §§ 401, 402(a), Pub. L. No. 104-28, Div. C (Sept. 30, 1996), codified as amended at 8 U.S.C. § 1324a note. Congress set forth a limited list of employers required to participate in Basic Pilot -- or a related program -- a list completely different from Hazleton’s. Id. § 402(e).8 Congress also specifically provided that the Secretary “may not require any person or other entity to participate in a pilot program,” Id., § 401(a); see also id. § 404(h) (providing that government may not “utilize any information, data base, or other records assembled under this subtitle for any other purpose other than as provided for under a pilot program). In contrast, the Immigration Ordinance mandates that businesses enroll in the federal Basic Pilot system in certain circumstances, §§ 4.B.6.b.; 4.D, and even where it does not require such enrollment, subjects them to the risk of exorbitant penalties if they do

7

The Basic Pilot program is a recent generation of verification system designed for

employers who voluntarily contract with DHS-ICE.

8

Section 402(e) requires certain Federal entities to participate in a pilot verification

program and provides that a federal administrative law judge may require an employer to

participate in a pilot program as part of a cease and desist order issued under 8 U.S.C. § 1324a.

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not enroll, §§ 4.B.5; 4.E. The Immigration Ordinance’s attempt to force employers to enroll in Basic Pilot is incompatible with federal law.9
Similarly, the Immigration Ordinance requires businesses, individuals, nonprofits, and other entities to ensure that any person they “recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct … to perform work in whole or part within the City” is an authorized worker. § 4.A. In contrast, federal law does not require that employers verify the immigration status of certain categories of workers, such as independent contractors and casual domestic workers, and does not apply to entities, such as unions, that refer individuals for employment but without a fee or profit motive. See 8 U.S.C. § 1242a; 8 C.F.R. § 274a.1(c)-(f); see also H.R. Rep. 99-682(I), at 57 (stating that “[i]t is not the intent of this Committee that sanctions would apply in the case of casual hires” and noting exception for unions and similar entities).
The “harboring” provision of the Immigration Ordinance is also directly at odds with the federal immigration system. This provision states that it is unlawful to knowingly “let, lease, or rent a dwelling unit to” “an alien who is not lawfully present in the United States.”10 However, numerous categories of persons who

9

Notably, one aspect of the current debate regarding immigration reform involves whether

and to what extent mandatory electronic employment verification will become a feature of the

federal law. See, e.g., S. 1033, 109th Cong., § 402 (proposing electronic verification system); S.

1438, 109th Cong., § 321 (alternative verification proposal). Hazleton’s effort to force employers

to use Basic Pilot is an effort to short-circuit that national debate and impose a conclusion of the

City’s choosing notwithstanding the ongoing national legislative process.

10 See, e.g., 8 C.F.R. § 274a.12(a)(11-13), (c)(8-11, 14, 18-20, 22, 24) (listing categories of persons who can receive federal permission to work, and implicitly to stay, in the United States even though they may be violating immigration laws). For example, such persons may have pending applications to adjust to a lawful status pursuant to 8 U.S.C. § 1255(i). Similarly, many persons released from detention pursuant to legal mandates and restrictions imposed by the

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may technically be “not lawfully present in the United States” are nonetheless permitted to live and work in the United States. In addition, persons who are applying for or have been granted “temporary protected status” are permitted to stay and work in the U.S. if they meet certain requirements, notwithstanding the fact that they are otherwise removable. See 8 U.S.C. § 1254a. Federal officials may also exercise discretion not to deport persons who are otherwise removable. See 8 C.F.R. § 212.5(f). By denying abode to every individual who is “unlawfully present,” the Ordinance would run roughshod over this complex system of federal classification and discretion.
For similar reasons, Registration Ordinance also conflicts with federal immigration law. It requires each individual occupant of any rental unit to obtain an occupancy permit from Hazleton, and requires applicants for occupancy permits to provide “proof of legal citizenship and/or residency.” Statements by the Mayor and other officials indicate that the City understands this to mean “proof of legal citizenship and/or residency in the United States.” Yet, as explained above, numerous individuals who are not lawfully present in the United States are nonetheless permitted to live and work here by the federal government. The Registration Ordinance’s attempt to exclude from residing in the City of Hazleton all persons unable to tender “proof of legal citizenship and/or residency” thus squarely conflicts with the federal immigration scheme.
Moreover, the Registration Ordinance does not provide any definition of “legal … residency.” The closest approximation to such a status in the federal
Supreme Court, though subject to an order of removal, are permitted to stay and work in the U.S. See Clark v. Martinez, 543 U.S. 371 (2005); Zadvydas v. Davis, 533 U.S. 678 (2001).
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immigration law is lawful permanent resident status. See 8 U.S.C. § 1101(a)(20). However, there are numerous “nonimmigrant” (i.e. temporary) visa holders and others who are allowed to live in the United States under the federal immigration system. See, e.g., 8 U.S.C. § 1101(a)(15). Therefore, to the extent the Registration Ordinance adopts the federal “lawful permanent resident” status to define whether or not someone can lawfully reside in Hazleton, it does so in a manner that conflicts with federal immigration law. To the extent the Ordinance requires Hazleton to create its own definition of “legal … residency” and make its own determinations of who is or is not a legal resident for the purposes of the Registration Ordinance, that too conflicts with the federal scheme. 11
ii) Interference with the federal government’s regulatory scheme
Even where the state or local law does not explicitly conflict with a specific provision of federal law, attempts to supplement federal immigration law – which the Ordinances undeniably are – nonetheless violate the Supremacy Clause. Hines v. Davidowitz, a case that arose in this District, illustrates this principle.
In Hines, the Supreme Court ruled that where the federal government had passed an alien registration scheme, Pennsylvania could not enforce its own state alien-registration law. The Court explained that “where the federal government, in
11 See Plyler, 457 U.S. at 236 (Marshall, J., concurring) (“[T]he structure of the immigration statuses makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported”); id. at 241 n.6 (Powell, J., concurring) (“Until an undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be found to have a federal permission to reside in the country…. Indeed, even the [federal immigration authorities] cannot predict with certainty whether any individual alien has a right to reside in the country until deportation proceedings have run their course.”); accord LULAC, 908 F. Supp. at 770 (Congress has exclusively reserved to federal agencies the power to make independent determinations of immigration status).
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the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines, 312 U.S. at 66-67. The Court further noted that the federal system attempted “to steer a middle path,” creating a “single integrated and allembracing system … in such a way as to protect the personal liberties of lawabiding aliens through one uniform national registration system, and to leave them free from the possibility of inquisitorial practices and police surveillance” while also obtaining the information sought under the statute. Id. at 73-74.12
Similarly here, Congress has created an integrated scheme of federal regulation that includes provisions directed at both employment of unauthorized workers and harboring. These provisions strike careful balances reflecting the national legislature’s view of the national interest. For example, with IRCA, Congress balanced the important goals of reducing employment of individuals who lack work authorization; creating a workable system for employers and employees; and avoiding harassment of or discrimination against employees. See H.R. Rep. 99-682(I), at 56-62. Thus, the statute contains safeguards such as a “safe harbor” provision for employers who are presented with facially valid documents; restrictions on reverification of employees after they are hired; extensive antidiscrimination provisions; prohibitions on employers’ requesting additional
12 Accord Rogers v. Larson, 563 F.2d 617, 626 (3d Cir. 1977) (invalidating Virgin Islands employer sanctions scheme and stating that “[b]ecause of the different emphasis the [Virgin Islands and federal employment] schemes place on the purposes of job protection and an adequate labor force, we conclude that [the Virgin Islands statute] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the INA”).
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documents once an employee presents minimally adequate documentation; a tenday cure period for good-faith violations of the document verification requirements; and a graduated series of penalties after adjudication by an administrative law judge. See 8 U.S.C. § 1324a.
The INA’s harboring provision, too, reflects Congress’ judgment on what balance should be struck regarding the statute’s reach and what penalties should apply. Congress has amended the statute to alter that balance on numerous occasions. For example, in 1952 Congress amended the statute to provide that normal acts incident to employment would not be considered harboring, only to amend the statute again in 1986 to remove that proviso. See Kim, 193 F.3d at 574. The federal system’s interpretation of the statute is not entirely settled, see United States v. Maali, No. 6:02-CR-171ORL28KRS, 2005 WL 2204982 (M.D. Fla. Sept. 8, 2005) (noting “uncertainty surrounding the meaning of harboring”), and recent legislative proposals would modify it yet further, see H.R. 4437, 109th Cong., § 202.
The effect of Hazleton’s Ordinances is clearly to upset the balances struck by Congress in each of these areas and in immigration law generally by implementing the City’s own enforcement mechanism, penalties, and interpretations in place of the federal system, and simultaneously to bypass the discretion that system places in federal officials and the procedures that it has in place for determining individuals’ status and the applicability of sanctions under the INA’s employment and harboring sanctions schemes. This seriously undermines the choices made by Congress in creating that system and threatens the ability of the system to work as an integrated and uniform whole – for if Hazleton
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can pass its own ordinances in these areas, so can every municipality in the country, each setting forth its own mechanisms, penalties, interpretations, and procedures. This attempt simply cannot stand.13
2. The Immigration And Registration Ordinances Violate Due Process By Depriving Plaintiffs Of Fundamental Liberty And Property Interests Without Meaningful Notice Or Opportunity To Challenge Adverse Determination
The Immigration and Registration Ordinances violate the 14th Amendment Due Process provisions of the United States Constitution in that they deprive persons of property interests and do not afford meaningful notice or procedure to challenge such ordinances. Hazleton’s failure provide any procedural-due-process protections to employers and employees (section 4), or landlords and tenants (section 5), before depriving them of fundamental rights – including the right to contract, engage in a business, earn a livelihood, and continue one’s residence violates the Fourteenth Amendment’s Due Process Clause. The Fourteenth
13 See Hines; see also Garamendi, 539 U.S. at 423, 427 (California could not “employ[] ‘a different, state system of economic pressure’” to address an issue touching on foreign relations, nor “use an iron fist where the [federal government] has consistently chosen kid gloves”); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 379 (2000) (state statute touching on foreign relations not saved by the fact that state and federal statute “share the same goals and … some companies may comply with both sets of restrictions,” because “the inconsistency of sanctions … undermines the congressional calibration of force”); United States v. Locke, 529 U.S. 89, 115 (2000) (fact that state requirements were similar to federal not enough to avoid preemption; “[t]he appropriate inquiry still remains whether the purposes and objectives of the federal statutes, including the intent to establish a workable, uniform system, are consistent with concurrent state regulation”); Wisconsin Dep’t of Indus. v. Gould, 475 U.S. 282, 286, 288-89 (1986) (state statute touching on area governed by a “complex and interrelated federal scheme of law, remedy and administration” preempted because “conflict is imminent whenever two separate remedies are brought to bear on the same activity” and “[e]ach additional [state] statute incrementally diminishes the [agency’s] control over enforcement of the [federal law] and thus further detracts from the integrated scheme of regulation created by Congress”).
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Amendment provides that “no person shall be deprived of life, liberty, or property without due process of law.” U. S. Const. Amend. XIV.
"In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” See Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original; citations omitted). “Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978).
The Supreme Court has established a two-step test for examining procedural due process claims: the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon the deprivation were constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted); accord, Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).
The Immigration Ordinance deprives Plaintiffs of both “property” and “liberty” interests. Property interests are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (citations omitted). There has been considerable debate over the past forty years surrounding the issue of what “benefits, such as jobs or payments, [should] be considered property.”14
14 Erwin Chemerinsky, Constitutional Law: Principles and Policies, 536 (2002). See also Bd of Regents v. Roth, 408 U.S. 564, 571-72 (1972) (“The Court has also made clear that the
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The Third Circuit has emphasized that “[l]iberty interests that trigger procedural due process may be created by state law or by the federal constitution itself.” E.B. v. Verniero, 119 F.3d 1077, 1105 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998), citing Sandin v. Connor, 515 U.S. 472 (1995). “Protected interests extend beyond merely freedom from bodily restraint but also [to] the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed.” Roth, 408 U.S. at 572 (emphasis added).
Once a protected liberty or property interest has been identified, the focus shifts to assessing the quality and timing of the process due. The test, first enunciated in Mathews v. Eldridge, 424 U.S. 319 (1976), requires this Court to balance three factors: 1) “the private interest that will be affected by the official action”; 2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and 3) “the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute
property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.”). “One alleging a property interest in a benefit protected by due process must go beyond showing an unsubstantiated expectation of the benefit. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1256 (3d Cir. 1994) (citations omitted).
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procedural requirement would entail.” Id. at 334-35; accord E.B., 119 F.3d at 1106-07. We now apply the procedural-due-process analysis to the Immigration Ordinance.
a. The Immigration Ordinance Deprives Employers and Employees of Protected Property Interests Without Notice or an Opportunity to Challenge
Both employers and employees have protected interests in the employment contract. From the employees’ perspective the ability to earn a living is critical: "[T]he significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood.” Loudermill, 470 U.S. at 543. As a result, courts have for nearly a century ruled that, “The right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within both the ‘liberty’ and ‘property’ concepts of the Fifth and Fourteenth Amendments.” Piecknick, 36 F.3d at 1259, quoting, Greene v. McElroy, 360 U.S. 474, 492 (1959). See also Conn v. Gabbert, 526 U.S. 286 (1999) (“Fourteenth Amendment's Due Process Clause includes some generalized due process right to choose one's field of private employment….”); Truax v. Raich, 239 U.S. 33, 41 (1915) (“the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure”); Nixon v. Commonwealth, 839 A.2d 277, 288 (Pa. 2003).
Moreover, Article I, § 1 of the Pennsylvania Constitution provides an independent state-law ground for this right. See, Nixon v. Commonwealth, 839 A.2d 277, 288 (Pa. 2003). From the employer’s perspective, the right is viewed as
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an interest in continuing the business and the right to contract with employees. College Savings Bank v. Florida Prepaid Postsecondary Educ. Exp. Bd., 131 F.3d 353, 361 (3d Cir. 1997) ("Clearly, a business is an established property right entitled to protection under the Fourteenth Amendment"), aff'd, 527 U.S. 666, 675 (1999) (“The assets of a business (including its good will) unquestionably are property, and any state taking of those assets is unquestionably a ‘deprivation’ under the Fourteenth Amendment”) (parenthetical in original). See also Roth, 408 U.S. at 572 (“without doubt,” liberty interest includes the “right of the individual to contract, to engage in any of the common occupations of life. . . .”); Jago v. Van Curen, 454 U.S. 14, 18 (“mutually explicit understandings,” including “implied contracts,” create property interest); Small v. United States, 333 F.2d 702, 704 (3d Cir. 1964) (“The right to pursue a lawful business or occupation is a right of property which the law protects against intentional and unjustifiable interference. A cause of action based upon such an interference is analogous to one based upon unlawful interference with existing contracts, and is governed by the same principles”). Section 4 effects deprivations of constitutionally protected liberty and property interests by giving the City the power to suspend the business permit of any entity that has been accused, wholly without proof, of employing an unlawful worker.
The Immigration Ordinance’s enforcement scheme affords neither employer nor employees meaningful due process prior to ordering the employer to terminate the employee or face severe sanctions. See Immigration Ordinance, §4.B. Enforcement is initiated by a complaint by virtually anyone, lodged with the Hazleton Code Enforcement Officer (hereafter “Code Officer”). Id. at §4.B.1.
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Within three days the Code Officer is required to “request identity information” from the business entity regarding the complained-about employees. Id. at §4.B.3. The Ordinance does not define “identity information.” That not withstanding, a failure to provide “identity information” results in the suspension of the right to rent out the apartment and collect rents. The Immigration Ordinance provides no process to appeal that denial.
If the Code Officer determines the employee is an “unlawful worker,” he or she “shall suspend the business permit of any business entity which fails [sic] correct a violation of this section within three business days after notification of the violation.” Id. at §4.B.4. While the Ordinance provides some means for the employer to acquire a defense to a violation, §4.B.5. (sign up for Basic Pilot Training Program), or to curtail the suspension by addressing the alleged violation, §4.B.6., it provides no opportunity for either the employer or the employee to contest the Officer’s finding of a violation. The deprivation of an employer’s worker and an employee’s job implicates protected property and liberty interests.15
The Basic Pilot program provides an employee, through the employer, a notice of negative determination and 10 days to challenge it, during which time the employee can not be penalized. Even though the Basic program provides these key due process rights, Hazleton does not provide any such notice or any opportunity to contest a negative determination.
15 Evidence of the Ordinance’s blatant disregard of employer and employee rights is dramatically evidenced by the fact that the Basic Pilot program which the Ordinance relies upon provides employers and employees critical due process rights that Hazleton does not provide. Section 401 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208 (Sept. 30, 1996), established the Basic Pilot Program. The Basic Pilot Program is set to terminate on November 30, 2008.\
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Depending upon what database is utilized in enforcing section 4.B.3 of the Ordinance, in what is still an undefined process, these differing enforcement schemes could lead to direct conflict in situations where an employee exercises their right to appeal a negative determination. In those instances, the Ordinance punishes an employer for not discharging that employee within three days despite the fact that federal law prohibits the employer from discharging the employee for ten days while the employee waits for a reply to his or her appeal during that 10 day appeal period.
b. The Anti-Harboring Provision of the Immigration Ordinance Deprives Landlords and Tenants of Protected Property Interests Without Notice or an Opportunity to Challenge
Both landlords and tenants have a “property interest” in their homes and apartments because real property is considered a fundamental right under the U. S. and Pennsylvania Constitutions. “There never has been doubt that the government must provide due process before it deprives a person of real or personal property. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 536 (2002). The U. S. Supreme Court has ruled that the, “right to maintain control over [one’s] home, and to be free from governmental interference, is a private interest of historic and continuing importance.” United States v. James Daniel Good Real Property, 510 U.S. 43, 53-54 (1993). See also Dennison v. Pennsylvania Dept. of Corrections, 28 F.Supp.2d 387, 400 (M.D.Pa. 2003) (“Real property ownership has been historically protected by the Constitution and is considered fundamental to American society”), quoting Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 229-230 (1985) (Powell, J., concurring).
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The Pennsylvania Supreme Court has held that, “An owner of property in this Commonwealth has a tremendously prized and fundamental Constitutional right to use his property as he pleases. . . .” Parker v. Hough, 215 A.2d 667, 669 (Pa. 1966) (citations omitted). Moreover, the deprivation of real property need not be total or complete to trigger procedural protections. “[E]ven . . . temporary or partial impairments to property rights . . . ‘are subject to the strictures of due process.’” Connecticut v. Doehr, 501 U.S. 1, 12 (1991) (citations omitted). The Supreme Court has held that procedural due process must attend governmental deprivations of both a landlord’s rental income and a tenant’s continued residence in the rental property. Greene v. Lindsey, 456 U.S. 444, 450-51 (1982).
Given the above-cited authority, Section 5 clearly effects a deprivation of landlords’ and tenants’ protected property interests. See Immigration Ordinance, §5. The Immigration Ordinance’s enforcement scheme fails to afford either landlords or tenants meaningful due process, before ordering the landlord to “correct” the alleged violation, which would require termination of the tenancy. Id. at 5.B. Like the employment scheme, enforcement of the housing provisions is initiated by a complaint, lodged with the Code Officer, by virtually anyone. Id. at §5.B.1. The Code Officer will then “verify with the federal government the immigration status” of the prospective tenants. See §5.B.3. The verification will be based upon “identity data provided by the owner.” The Ordinance is unclear about what that data consists of and how and when the owner is to transmit such data to the Code Officer. Id. The Immigration Ordinance then gives the owner “five business days following receipt of written notice from the City that a violation has occurred” to “correct a violation” or the Code Officer “shall deny or
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suspend the rental license of the dwelling unit.” Section 5.D.4. The Ordinance does not afford either the affected landlord or the tenant(s) an opportunity to contest the alleged violation. Accordingly, Section 5 deprives landlords of their tenants and rental income, and deprives tenants of a place to live, both of which are protected property interests.
c. Registration Ordinance 2006-13 Deprives Plaintiff-Tenant of Protected Property Interests Without Notice or an Opportunity to Challenge
Ordinance 2006-13, the Registration Ordinance, also fails to provide due process prior to depriving tenant/renters of the right to obtain housing. As explained above, it requires each individual occupant of any rental unit to obtain an occupancy permit from Hazleton, including a requirement that applicants provide “proof of legal citizenship and/or residency”, a term not defined either by the Registration Ordinance or by federal law. Once again, this Ordinance fails to provide any process to tenants denied this permit. The Registration Ordinance does not provide for written notice of the action of the reasons for it, nor does it provide any opportunity to contest a denial. Thus, plaintiff tenants could be denied the ability to lawfully rent a place to live in Hazleton without any prior notice or an opportunity to challenge the denial.
d. The Immigration Ordinance Fails To Afford Employers, Employees, Landlords And Tenants With Even Minimal Procedural Due Process Prior To Depriving Them Of Protected Liberty And Property Interests
Having established that the Immigration Ordinance will result in depriving plaintiffs of protected interests in housing and employment, the analysis turns to what procedural protections are due. “Many controversies have raged about the
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cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (emphasis added); see also, Mathews, 424 U.S. at 333 (The “right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society”). Except in “extraordinary situations,” the due process must precede the deprivation. James Daniel Good Real Property, 510 U.S. at 53 (citations omitted).
Because the Immigration Ordinance fails to provide even the most rudimentary due process before depriving Plaintiffs of fundamental rights in housing and employment – rights essential to basic living – it is unnecessary to apply the Mathews v. Eldridge balancing because the Ordinance plainly fails even the most minimal standards. The Immigration Ordinance clearly violates the Due Process Clause of the Fourteenth Amendment.
e. Individual Plaintiffs Face Extraordinarily High Risk Of Erroneous Deprivation
The second factor the Court is to consider under the Matthews test is the risk of erroneous deprivation. In the instant case, the risk is extraordinarily high. As discussed above, neither the Immigration or Registration Ordinances provide a notice of the reasons for the denial of an occupancy permit, a business permit, or a permit to rent out an apartment. Nor does either Ordinance provide an opportunity for the affected employee or tenant to contest a denial of any of those permits.
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This wholesale denial of any process, by itself, creates an extremely high risk of error.
That the subject matter of these permits, questions over someone documenting their immigration status, an area of law previously identified as perhaps the most complex area of law in our jurisprudence, and then holds lay business and property owners strictly liable for complying with and enforcing it, dramatically adds to the complexity and unwieldiness of this system, creating what could be called an extraordinarily high risk of error. Lastly, the Registration Ordinance creates its own unique definition of immigration status and then bars Hazleton’s residents from renting a home if they fail to satisfy it. This entire scheme is one that is bound to create chaos and deny local residents the ability to work or have a home in the most arbitrary and capricious manner imaginable.16
The value of additional or substitute procedural safeguards is substantial. Providing notice and an opportunity to challenge a determination has always been recognized as a critically important procedural safeguard. More specifically, the Supreme Court has repeatedly held that, absent “extraordinary circumstances,” any deprivation of a person’s occupancy rights must be preceded by notice and an opportunity to be heard. Fuentes v. Shevin, 407 U.S. 67, 82 (1972); see also, Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 342 (1969). Providing an affected tenant or employee notice and an opportunity to challenge an
16 Tenants who choose to resist the determination of their landlord or the Town can not be forcibly evicted without the landlord obtaining a court order. However, many tenants will choose not do so, deciding to leave rather than get involved in litigation in what may appear to be a daunting and futile court process as it is not obvious whether a court reviewing an action to evict has the authority to reverse Hazleton’s determination that a tenant is an “unlawful alien”. Nor will the City give tenants notice of how to seek to reverse its determination by seeking judicial relief.
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adverse determination before an impartial decision maker would unquestionably increase the accuracy and reliability of the decision making process. Those tenants and employees are the parties who have both the most at stake and the most information relevant to a determination, and thus their participation is absolutely essential for any process to be accurate and reliable. Otherwise, it would resemble, at best, a “Star Chamber” in which a person would be convicted in abstentia.
f. The Government's Interest And The Administrative Burdens That The Additional Or Substitute Procedural Requirement Would Entail Are Not Substantial
Lastly, the burden imposed on Hazleton is not so substantial as to provide a basis to deny plaintiffs their due process right to notice and an opportunity to contest a negative determination. The burden of providing a notice to the tenant or employee, who will be denied her fundamental property interests to employment or housing, and then providing a meaningful opportunity to challenge a negative determination, is not substantial in comparison to the potential deprivation of fundamental property and liberty rights that Hazleton seeks to impose. “[T]here can be no doubt that at a minimum [due process] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (emphasis added); see also Mathews, supra at 333 (The “right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”). Except in “extraordinary situations,” due process must precede the deprivation. James Daniel Good Real Property, 510 U.S. 43, 53 (1993) (citations omitted). Since the Ordinances fail to
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provide even the most rudimentary due process before depriving plaintiffs of fundamental rights in housing and employment – rights essential to basic living – whatever burden is imposed on Hazleton pales in comparison.
In sum, there is no question but that, when reviewed in their totality, the three Matthews factors argue compelling that this Ordinance stands in violation of due process due to its failure to provide timely notice and an opportunity to contest to tenants and employees. The supreme importance of the rights at stake, the absolute arbitrariness that will otherwise pervade the process, and the lack of substantial burden to Hazleton, all weigh for the relief requested by plaintiffs.
3. The Immigration Ordinance Contravenes The Equal Protection Clause And The Fair Housing Act
By expressly allowing the consideration of suspect classifications, “national origin, ethnicity and race,”17 to determine whether someone is an “unlawful worker” or “illegal alien,” the Immigration Ordinance violates the Equal Protection Clause of the Fourteenth Amendment. The Immigration Ordinance contains two parallel, but almost identical, complaint-based enforcement schemes to identify “unlawful workers” in the business and employment context (Section 4.B.) and “illegal aliens” in the housing context (Section 5.B.). “Complaint based” enforcement systems are commonly referred to as a “passive” enforcement system, see U.S. v. Cannistraro, 800 F. Supp. 30, 59-60 (N.J.1992).18 If the complaint
17 See City of Cleburne v. Cleburne Living Center, 473, U.S. 432, 440 (1985); United States v. Williams, 124 f3d 411, 422 (3d Cir. 1997). 18 Both sections of the Immigration Ordinance contain the following language: An enforcement action shall be initiated by means of a written signed complaint to the Hazleton Code Enforcement Office submitted by any City official, business entity, or City resident. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
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identifies the alleged violators, the acts constituting the violation, the date and the location where the acts occurred, the Ordinance mandates a specific investigatory scheme be strictly adhered to.19
Within three days of receiving the signed complaint, the Code Enforcement Office must request “identity information” about the alleged unlawful workers from the cited business entity. If that business does not provide the “identity information” within three days of that request, then the City will suspend its business permit indefinitely. The indefinite suspension can occur before a finding of a violation of the Immigration Ordinance.20 The Immigration Ordinance provides that violators are then investigated and prosecuted. Penalties are imposed, including but not limited to indefinite suspension of business and rental permits and daily fines of $250 against property owners.
The Immigration Ordinance deems invalid and unenforceable violations based solely or primarily on national origin, ethnicity or race. See §4.B.2. and §5B.2. But the clear, unstated negative-implication of the Immigration Ordinance is that the race, ethnicity and national origin can be considered evidence of a violation, so long as it is not the primary or sole basis for the complaint.21 Race,
19 Though the procedures described are those dealing with allegations of business entities employing unlawful workers as set out in Section 4.B, the procedures are identical for property owners alleged to have rented to “illegal aliens” under Section 5.B unless otherwise noted. 20 The Code Enforcement Office does not require property owners to provide the identity information of a tenant who is allegedly an “illegal alien” because under Ordinance 2006-13, it should already exist in the City’s Tenant Registry. 21 The City cannot argue that it will not consider race as evidence of a violation. Such a claim would be contrary to the plain meaning of the Ordinance, which allows race to be considered so long as it is not the primary or sole factor.
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ethnicity and national origin are not valid predictors of someone’s immigration status. By making race, ethnicity and national origin relevant considerations in enforcing the Ordinance, Hazleton “threatens to stigmatize individuals by reason of their membership in a racial [or ethnic] group and to incite racial [and ethnic] hostility . . . [and] to reinforce racial and ethnic divisions.” Johnson v. California, 543 U.S. 507 (2005).
a. The Equal Protection Clause Prohibits the Use of Race as Evidence of a Violation
In order to be valid, the Immigration Ordinance’s race-based enforcement scheme must pass muster under the Equal Protection Clause of the Fourteenth Amendment. Supreme Court precedent is clear that “all racial classifications [imposed by government] . . . must be analyzed by a review court under strict scrutiny.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). “Under strict scrutiny, the government has the burden of proving that racial classifications ‘are narrowly tailored measures that further compelling governmental interests.” Johnson v. California, 543 U.S. 499, 505 (2005) (citing Andarand Constructors, supra);22 see also Lomack v. City of Newark, 463 F.3d 303, 307 (3d Cir. 2006) (city firefighters transferred pursuant to program to eliminate single-race fire companies brought claim against city, mayor, and fire department officials, alleging that racial balancing policy violated equal protection). The Immigration Ordinance’s approval of national origin as a basis
22 In Adarand Constructors, a state prison inmate brought an equal-protection claim against corrections officials, challenging unwritten policy of placing new or transferred inmates with cellmates of same race during initial evaluation.
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for a complaint that someone is an “unlawful worker” or “illegal alien” also triggers strict scrutiny. City of Cleburne, 473 U.S. at 400.
The Johnson Court explained why strict scrutiny applies to any instance where the government uses racial classifications, even for so-called benign use:
The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and again that, “[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining ••• what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. We therefore apply strict scrutiny to all racial classifications to “ ‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.” (citations omitted). Johnson, 543 U.S at 505-06. The use of racial classification in the as in the instant case, which involves the administration of justice, is particularly troublesome.
Race discrimination is “especially pernicious in the administration of justice.” And public respect for our system of justice is undermined when the system discriminates based on race. (citations omitted) Id. at 511. The enforcement system in the Immigration Ordinance relies on an impermissible racial classification by allowing race as evidence of unlawful status under the Ordinance. Hazleton cannot escape strict scrutiny by arguing that the Immigration Ordinance does not use of race to either benefit or burden the alleged violator or its use is neutral on its face. The Court in Johnson addressed these issues when discussing the arguments presented on behalf of the California Department of Corrections (CDC):
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The CDC claims that its policy should be exempt from our categorical rule because it is “neutral”–that is, it “neither benefits nor burdens one group or individual more than any other group or individual.” … The CDC's argument ignores our repeated command that “racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally.” Indeed, we rejected the notion that separate can ever be equal-or “neutral”–50 years ago in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and we refuse to resurrect it today. (citations omitted). Id. at 507.
The Immigration Ordinance clearly anticipates that alleged violators, if
nonwhite, will be subjected to a greater likelihood of investigation and prosecution
than white violators, all other factors being equal. By allowing selective
prosecution or enforcement of laws based on the race of an individual, the
Immigration Ordinance violates equal protection. See also Christopher v.
Nestlerode, 373 F.Supp.2d 503, 519 (M.D.Pa.,2005), (citing) Bradley v. United States, 299 F.3d 197, 206-07 (3d Cir.2002).23
The Immigration Ordinance’s statements that race cannot serve as the “sole
or primary” basis of the complaint does not cure the constitutional infirmity. It is
rare to see race as the only factor at play in any challenged practice. See, e.g.,
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429
23 Plaintiffs have standing to assert a facial challenge to this scheme as violative of equal protection because the “injury in fact” is the imposition of the discriminatory barrier or classification which offends the Constitution, not the impact it might ultimately have. Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656, 663-68 (1993) (association of general contractors brought action against city challenging ordinance according preferential treatment to certain minorityowned businesses in award of city contracts). Further, plaintiffs have standing in that there are no circumstances under which the use of the challenged provision – the use of race as evidence of a violation – could lawfully be used.
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U.S. 252, 268 (1977) (rarely are legislative or administrative decisions motivated by single concern).24
Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still ‘constrained in how it may pursue that end: [T]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose.’” Grutter v. Bollinger, 539 U.S. 306, 333, 123 S.Ct. 2325 (2005) (citing Shaw v. Hunt, 517 U.S. 899, 908, 116 S. Ct. 1894 (1996)). Hazleton cannot establish a compelling governmental interest to justify its actions. Indeed, it is difficult to imagine what governmental interest could be so compelling so as to justify this overtly discriminatory scheme. Appearance based factors, such as race, do little to tell about an individual’s immigration status. See Montero-Camargo, 208 F.3d 1122, 1135-36 (9th Cir. 2000). Further, this discriminatory scheme is not narrowly tailored to minimize its discriminatory effect. For instance, the City could have (as Immigration and Customs Enforcement (ICE) does in its complaint based scheme) utilize appropriately trained personnel to evaluate the substantive merit of a complaint before it is investigated. 8 C.F.R. 274a9(b);25 see also Christopher v. Nestlerode, 373 F.Supp.2d 503, fn. 4 (M.D.Pa.,2005) (Pennsylvania law mandates that deputy
24 See also Farm and Labor Organizing Committee v. Ohio State Patrol, 308 F.3d 523, 538 (6th Cir 2002) (“the selective enforcement framework does not require a plaintiff to show that the defendant had no race-neutral reasons for the challenged enforcement decision”); U.S. v. Cannistraro, supra at 60 (“if a decision maker selected a particular course of action at least in part because of its adverse effects upon an identifiable group, equal protection is violated”). 25 “When the Service receives a complaint from a third party, it shall investigate only those complaints that have a reasonable probability of validity.”
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sheriffs undergo basic training in a range of topics, including criminal procedure and cultural diversity).
Because the Ordinance cannot withstand strict scrutiny, it is unconstitutional. Accordingly, this Court should issue enjoin its enforcement.
b. The Fair Housing Act Prohibits the Use of Race as Evidence of a Violation In its Anti-Harboring Provisions
For the same reasons, the provisions of the Ordinance affecting property owners and tenants also violate the Fair Housing Act (“FHA” or “Act”). 42 U.S.C. § 3601 et seq. The Fair Housing Act prohibits discrimination in housing-related transactions based on, inter alia, race, color, or national origin. 42 U.S.C. § 3604. In particular, the Act makes it unlawful for any person to “make [] unavailable or deny” housing based on race, color, or national origin. 42 U.S.C. § 3604(a). Such discrimination can be established either on a theory of intentional discrimination (disparate treatment) or discriminatory effect (disparate impact). See, e.g., Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 141-44 (3d Cir. 1977). It is also unlawful for any person “to make, print, or publish, or cause to be made, printed, or published any notice [or] statement . . . with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination” on the basis of race, color, or national origin. 42 U.S.C. § 3604(c).
The language of the Act is “broad and inclusive” and is subject to “generous construction.” Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972). The Act’s prohibitions “appear[ ] to be as broad a prohibition as Congress could have made, and all practices which have the effect of making dwellings unavailable on the basis of race are therefore unlawful.” United States v. Gilbert, 813 F.2d 1523, 1528 (9th Cir. 1987) (quoting 42 U.S.C.A. § 3604) (emphasis added). The
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Act has been found to apply to municipal zoning provisions and the enforcement of such provisions. See, e.g., Eastampton Center, L.L.C. v. Township of Eastampton, 155 F. Supp. 2d 102, 110-15 (D.N.J. 2001), Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 938 (2d Cir. 1988), aff’d, 488 U.S. 15 (1988).
There can be no question but that the Anti-Harboring enforcement scheme of the Ordinance violates the Act. As outlined above, the Ordinance makes an express statement that race, ethnicity, and national origin may be used to identify persons not entitled to reside in Hazleton, in violation of 42 U.S.C. § 3604(c).26
In the same way, the Ordinance intentionally makes dwellings unavailable on the basis of race, ethnicity, and national origin, in violation of 42 U.S.C. § 3604(a). As the Third Circuit has made clear in the Fair Housing Act context, “Where a regulation or policy facially discriminates on the basis of the protected trait [e.g., race or national origin], in certain circumstances it may constitute per se or explicit . . . discrimination because the protected trait by definition plays a role in the decision-making process.” Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170, 177 (3d Cir. 2005) (internal punctuation omitted).
In addition, as a result of the Ordinance’s sanctioning of the use of the prohibited categories of race, ethnicity, and national origin as the basis for a complaint, the Ordinance will have a disparate impact on the ability of members of
26 See, e.g., United States v. Hunter, 459 F.2d 205, 210 (4th Cir. 1972) (emphasizing that § 3604(c) “applies on its face to ‘anyone’” making discriminatory statements); see also Mayers v. Ridley, 465 F.2d 630, 653 (D.C. Cir. 1972) (Wilkey, J., concurring) (describing the “discouraging psychological effect” discriminatory statements); Robert G. Schwemm, Discriminatory Housing Statements and 3604(c): a New Look at the Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, 249-50 (2001) (discussing § 3604(c)’s purpose of protecting of minorities from the insult caused by statements of discrimination).
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racial and national origin minorities – Latinos in particular – to obtain housing or continue to reside in Hazleton. See 42 U.S.C. § 3604(a). This impact would be on virtually 30% of Hazleton’s population. See Gaiutra Bahadur, “Hazleton Gets a Jolt it Didn’t Want,” in PHILADELPHIA INQUIRER, dated Sept. 18, 2006.
As in the Equal Protection context, the Ordinance’s reliance on race, ethnicity, or national origin as just one factor, and not the “sole or primary” basis for a complaint does not lessen in any way the City’s liability under the Fair Housing Act. It is well-established that the FHA is violated as long as “some discriminatory purpose was a ‘motivating factor’ behind the challenged action.” Wind Gap Municipal Authority, 421 F.3d at 177. As the Third Circuit has emphasized, “The discriminatory purpose need not be malicious or invidious, nor need it figure in ‘solely, primarily, or even predominantly’ into the motivation behind the challenged action.” Id.
In sum, nonwhite persons, and in particular Latinos, in the City of Hazleton will immediately be subjected to unequal treatment in attaining and maintaining peaceful habitation upon the implementation of this Ordinance, in clear violation of the Fair Housing Act. And, the Ordinance’s express statement that race, ethnicity, and national origin are legitimate factors in determining who may reside in Hazleton constitutes an independent violation of the Act. Section 5 of the Ordinance plainly contravenes the Fair Housing Act.
4. The Registration Ordinance Violates Federal Guarantees Of Privacy
For modern Americans who have been convicted of no crime, the requirement that they “present their papers” to local officials as a condition of taking up or changing residence imposed by Hazleton’s “Occupancy Permit”
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regime is truly an “alien” one. As the court observed in Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989), quoting Gomez v. Turner, 217 U.S. App. D.C. 281, 672 F.2d 134, 143-44 n. 18 (D.C. Cir. 1982): "That citizens can walk the streets, without explanation or formal papers, is surely among the cherished liberties that distinguish this nation from so many others." See, e.g., Brown v. Texas, 443 U.S. 47, 52 ( 1979) (invalidating conviction under Texas statute empowering police officers to demand “name and residence address” in the absence of reasonable suspicion). Moreover, the right to move from one residence to another is an aspect of constitutionally protected liberty. See Chicago v. Morales, 527 U.S. 41, 53 (1999) (“We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution.”
By contrast, the newly adopted Hazleton Registration Ordinance requires that each adult who seeks to reside in Hazleton but does not own their own home apply for a an “occupancy permit,” each time they take up or move residences. The applicant, according to the Registration Ordinance and its mandated forms, must apprise the City of their address and telephone number and present papers proving “legal citizenship or residency,” along with a $10 fee. The City thus has erected both a mechanism for requiring residents who do not own houses to disclose their identity and address by requiring them to present their “papers” and for establishing a comprehensive dossier of their residences over time. This mechanism runs afoul of the protections of personal privacy well recognized by precedent in this Circuit. See Sterling v. Borough of Minersville, 232 F.3d 190, 193-196 (3d Cir. 2000) (“The right not to have intimate facts concerning one's life
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disclosed without one's consent" is "a venerable [right] whose constitutional significance we have recognized in the past."); Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 112 (3d Cir. 1987).
At one level, the Occupancy Permits might seem a minor imposition. Many families list their addresses for public inspection in a telephone book. But the Supreme Court has recognized “nontrivial privacy interest” in an individual’s home address. See United States Dep't of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 500-502 (1994). The Third Circuit has subjected the involuntary disclosure of residency information, to “the balancing inquiry repeatedly held appropriate in privacy cases.” E.g., Paul P. by Laura L. v. Verniero, 170 F.3d 396 (3d Cir. 1999).27
Equally important, the disclosures demanded by the City display the residence of every occupant who does not own their home, revealing not only a single home address but the associations that take place in the home.28 Unlike the telephone book, the disclosures required by the Registration Ordinance do not
27 The Court continued “The compilation of home addresses in widely available telephone directories might suggest a consensus that these addresses are not considered private were it not for the fact that a significant number of persons, ranging from public officials and performers to just ordinary folk, choose to list their telephones privately, because they regard their home addresses to be private information.”) id at 404. See A. A. v. New Jersey, 341 F.3d 206, 211 (3d Cir. 2003)(finding that privacy interest in home address is overcome by “compelling” interest in allowing parents to protect their children from possible sex predators); Paul P. v. Farmer, 227 F.3d 98 (3d Cir. 2000)( privacy intrusion by revelation of “area of residence” is outweighed by similar interest). 28 Cf. Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 119 (3d Cir. 1987)(recognizing privacy of association and invalidating questions about association); Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999) aff’d. 532 U.S. 514 ( 2001)(“ As commonly understood, the right to privacy encompasses both the right "to be free from unreasonable intrusions upon [one's] seclusion" and the right to be free from "unreasonable publicity concerning [one's] private life." Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir. 1991)”).
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involve a single voluntary subscriber at a residence. The system put in place by the city provides for no “unlisted numbers,” and is constructed to provide a comprehensive history of every resident of a rented dwelling in the City. If an individual decides to move in with a paramour, she must register with the city, and so too, if she decides to move out. If a married couple decide to establish separate residences, they must register with the city; if an adult child move back into his parents home, the city demands disclosure. These are matters of personal relation which are shielded from overbearing government inquiry and disclosure by the constitutional right to privacy.29
Furthermore, in implementing the Registration Ordinance as an enforcement mechanism of the Immigration Ordinance, the City is requiring that applicants provide highly confidential documents such as birth certificates, alien residency cards, passports, naturalization documents and any document issued by the federal government. These documents contain information in which plaintiffs have a reasonable expectation of privacy such as date of birth, country of birth, country of origin, date of entry into the United States, etc. This information can easily be used to usurp an individual’s identity.
While Section 12 of the Registration Ordinance announces that information collected pursuant to it will be “confidential”, it establishes neither a definition of “confidentiality” nor any penalty for disclosure. Indeed it explicitly reserves the
29 See Sterling v. Borough of Minersville, 232 F.3d 190, 197 (3d Cir. 2000)(sexual orientation is intimate and protected against involuntary disclosure by privacy right); Yeager v. Hackensack Water Co., 615 F. Supp. 1087, 1092 (D.N.J. 1985) (Water company’s collection of names of members of household violates privacy rights “the right to be free from compelled disclosure of the names of household members is within the right of privacy which has been recognized by the courts”).
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right to release the information “to authorized individuals” “during the course of “an official City investigation.” See Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 118 (3d Cir. 1987) (holding that important element of the privacy inquiry is the degree to which sensitive information is safeguarded from disclosure). Here, given the City’s broad account of its powers, this hardly provides much protection. Indeed, however one reads the “confidentiality” provided by the ordinance it may be that such records are subject to disclosure under the Pennsylvania Right to Know Act.30 Against these unprecedented impositions, the City provides as justification only an empirically falsifiable claim that “illegal immigrants” threaten higher crime rates and burdens of public services, and a desire to enforce its federally preempted rules against “harboring” such individuals. In the privacy balancing mandated by Third Circuit precedent, these alleged interests simply do not weigh heavily enough to sustain the intrusion wrought by the Registration Ordinance.
5. Hazleton Lacks The Municipal Power To Regulate Employment And Landlord Tenant Issues
Hazleton, a City of the Third Class, exceeded its state constitutional and statutory powers in (1) purporting to create a private cause of action in favor of
30 Compare Tribune-Review Publ. Co. v. Allegheny County Hous. Auth., 662 A.2d 677 (Pa. Commw. Ct. 1995) (refusing to disclose payroll records, but noting that “careful review of both federal and state law has revealed no statute restricting the release of government employees' home addresses and home telephone numbers”) and PG Publishing Co. v. County of Washington, 162 Pa. Commw. 196 (Pa. Commw. Ct. 1994) (authorizing release of cell phone records) with Tribune-Review Publ. Co. v. Bodack, 875 A.2d 402 (Pa. Commw. Ct. 2005) (redacting telephone numbers because “In this era when identify theft is a national problem, release of a person's phone number to the public at large merely because that person called a public official or was called by some public official could cause such public records to operate to the prejudice or impairment of a person's reputation or personal security”).
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“unfairly discharged employees” in Section 4.E. of the Immigration Ordinance; (2) requiring that landlords evict illegal alien tenants within five business days of receiving written notice from Hazleton that illegal status of the alien has been verified under Section 5.B. 3 of the Immigration Ordinance; and (3) enacting the Registration Ordinance regulating landlord/tenant relationships.
As a home-rule-charter municipality, Hazleton derives its legislative powers from the Constitution of the Commonwealth of Pennsylvania and the Home Rule Charter law. Section 2961 of the Home Rule Charter law provides:
A municipality which has adopted a home rule charter may exercise powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality. 53 Pa. C.S.A. § 2961; see also Pa. Const. art. 9, § 2. However, “[t]he general powers of all municipal governments, regardless of the style and plan selected, are limited to those bestowed by the state legislature.” See, e.g., In re Nomination Petition of Joseph Digiorlamo for Mayor, NO. 0501736-31, slip. op. at 3 (Bucks County, Apr. 6, 2005). Municipalities are not sovereigns and have no original or fundamental power of legislation. Genkinger v. City of New Castle, 84 A.2d 303, 304 (Pa. 1951); see also Kline v. City of Harrisburg, 68 A.2d 182 (Pa. 1949). Rather, they have only the powers to enact ordinances which are given to them by the General Assembly. Genkinger, 84 A.2d at 304.
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a. Pennsylvania Law Prohibits Municipal Regulation Of Business And Employment Matters
The General Assembly has circumscribed the ability of a home-rule-charter municipality, such as Hazleton, to regulate business and employment. According to the Home Rule Charter law:
[a] municipality which adopts a home rule charter shall not determine the duties, responsibilities or requirements placed upon businesses, occupations and employers. . . except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities. 53 Pa.C.S.A. § 2962(f) (emphasis added). Through the enactment of Section 4.E. of the Immigration Ordinance, Hazelton attempts to impose duties and responsibilities on employers in direct violation of the Home Rule Charter law. See Smaller Manufacturers Council v. Council of City of Pittsburgh, 485 A.2d 73, 77 (Pa. Commw. Ct. 1984). To understand Section 4.E., it is necessary to understand the collateral consequences of Hazleton’s efforts to eradicate illegal immigrants from its borders. The ordinance permits the Hazelton Code Enforcement Officer to suspend the business permit of any business which the officer determines recruited, hired for employment, continued to employ, dispatched or instructed an “unlawful worker” to perform work in whole or in part within the City. See Immigration Ordinance, § 4.A. and § 4.B.(4). Irrespective of the legislative wisdom of closing an entire business for hiring a single “unlawful worker,” it is undeniable that such an enforcement action would cause other workers to lose pay and/or their jobs. Hazleton’s solution to such collateral harm is to create a heretofore nonexistent
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cause of action in favor of an “unfairly discharged employee” against the employer.
Section 4.E. deems it an “unfair business practice” for a business in the City to discharge “an employee who is not an unlawful worker,” if the business was not participating in the Basic Pilot program and was employing an unlawful worker. Immigration Ordinance, § 4.E.1. Section 4.E. empowers an “unfairly discharged employee” to sue the employer for the described “unfair business practice.” Immigration Ordinance, § 4.E.2. The statute further authorizes the “unfairly discharged employee” to recover actual damages, including three times the employee’s lost wages for a 120-day period. Immigration Ordinance, § 4.E.2.a. It also permits the employee to recover attorneys’ fees and costs. Immigration Ordinance, § 4.E.2.b. In sum, by creating a private cause of action in favor of “unfairly discharged employees, Section 4.E. increases the rights of employees and the responsibilities of employers in Hazleton.
Pennsylvania is an employee-at-will state. E.g., McCartney v. Meadow View Manor, Inc., 508 A.2d 1254, 1255 (Pa. Super. 1986). Section 4.E. attempts to alter that state-wide rule with respect to businesses operating — in whole or in part — in the City of Hazelton by allowing employees of to sue for discharge on facts that are otherwise not actionable. Similarly, Section 4.E. allows for the recovery of treble damages for a discharged employee, creating a substantive right that does not exist under Pennsylvania law. Finally, Section 4.E. alters the American rule by allowing the discharged employee to recover attorneys’ fees, regardless of whether he/she prevails on the underlying claims.
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Because Section 4.E. improperly attempts to impose otherwise non-existent duties upon employers by creating a cause of action, allowing recovery of treble damages and allowing the recovery of attorneys’ fees, it constitutes an ultra vires act and must be declared void.
b. Pennsylvania Law Prohibits Regulation of Landlord/Tenant Issues
In addition to prohibiting municipalities from regulating the employer/ employee relationship, the Home Rule Charter law proscribes municipalities from exercising “powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth.” 53 Pa. C.S.A. § 2962(c)(2) (emphasis added). These limitations were designed to reserve to the Commonwealth matters that are most appropriately dealt with on a state-wide level. Hartman v. City of Allentown, No. 2003-C-1846, slip. op. at 5 (Lehigh County, June 14, 2004).
The Commonwealth has explicitly claimed authority over landlord-tenant issues by virtue of its enactment of the Landlord and Tenant Act of 1951, 68 P.S. §§ 250.101, et seq. (“L/T Act”). The legislature clearly expressed its intention that the L/T Act be the sole source of rights, remedies and procedures governing the landlord/tenant relationship. Lenair v. Campbell, 31 Pa. D. & C.3d 237, 241 (Phila. County 1984). The L/T Act states:
[A]ll other acts and parts of acts, general, local and special, inconsistent with or supplied by this act, are hereby repealed. It is intended that this act shall furnish a complete and exclusive system in itself.
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68 P.S. § 250.602 (emphasis added).31 See also, Williams v. Guzzardi, 875 F.2d 46, 53, n.13 (3rd Cir. 1989). More specifically, “[t]he Pennsylvania Landlord and Tenant Act of 1951, Pa. Stat. Ann., tit. 68, § § 250.101-250.602, prescribes the exclusive procedures to be followed to evict a tenant.” Bloomsburg Landlords, Assoc., Inc. v. Town Of Bloomsburg, 912 F. Supp. 790, 803 (E.D. Pa 1995).
State preemption applies where “there is such actual, material conflict between the state and local powers that only by striking down the local power can the power of the wider constituency be protected.” Hartman v. City of Allentown, 880 A.2d 737, 747 (Pa. Commw. Ct. 2005)(citing United Tavern Owners of Philadelphia v. Philadelphia Sch. Dist., 272 A.2d 868, 871 (Pa. Commw. Ct. 1971)). Accordingly, municipalities such as Hazelton are prohibited from altering or supplementing that law. See, e.g., Council of Middletown Township v. Benham, 523 A.2d 311 (Pa. 1986) (citing Western Pennsylvania Restaurant Association v. Pittsburgh, 77 A.2d 616, 620 (Pa. 1951)).
The landlord/tenant provisions of the Immigration Ordinance and Registration Ordinance directly conflict with the L/T Act. Section 5.A. of the Immigration Ordinance makes it unlawful for any person or business entity that owns a dwelling unit (“landlord”) in Hazleton to knowingly, or in reckless disregard of the fact, harbor an illegal alien. Section 5.B.(3) requires the landlord to “correct a violation” within five business days or else have its license denied or suspended and prohibits the landlord from collecting any rent, payment, fee, or other form of compensation from, or on behalf of, any tenant in the dwelling unit
31 Section 250.103 of the L/T Act excludes existing laws under 10 specific situations from repeal or modification, and Section 250.503-A requires tenants to comply with all obligations, including those imposed by, inter alia, municipal ordinances.
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during the period of suspension. Because harboring is defined to include permitting the occupancy by an illegal alien, and a separate violation is deemed to have been committed on each day that harboring occurs, the only way a landlord can “correct a violation” is to evict the tenant within 5 days of written notice from Hazleton.
Similarly, the Registration Ordinance requires landlords to take reasonable steps to remove or register unauthorized occupants that are the guests of current occupants within ten days of learning of their unauthorized occupancy. The penalty for non-compliance is a one-time fine of $1,000 for each occupant without a permit, plus $100 per occupant for each day the landlord allows such an unauthorized occupant to occupy the rental unit.32
The eviction provisions of the Immigration Ordinance and Registration Ordinance require the landlord to violate the L/T Act. The L/T Act safeguards tenants even when they have done something meriting eviction. Under the L/T Act, removal is initiated by the filing of a complaint. The tenant is not required to appear before the justice of the peace to answer the complaint at a date less than seven days from the date of the summons. 68 P.S. § 250.502. And, even if a judgment is rendered in favor of the landlord, a writ of possession will not issue until the fifth day after the rendition of the judgment, and is not to be executed until the eleventh day following service upon the tenant, which is to occur within
32 Occupants are defined to include any person merely residing in the rental unit that is 18 years or older. An occupant cannot obtain an occupancy permit, however, unless he/she can provide proof of legal citizenship and/or residency. Accordingly, landlords may have current tenants that will not meet the stringent citizenship and/or legal residency requirement of the Registration Ordinance. Landlords are, thus, faced with the Hobson’s choice of evicting such tenants (and losing rental income, perhaps also subjecting themselves to liability for breaching the lease) or paying exorbitant fines for not doing so.
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48 hours of issuance. 68 P.S. § 250.503. Under the L/T Act, a tenant cannot be evicted for a minimum of 23 days. (This does not include the provisions for notice, which can add an additional 10 days at a minimum, unless the lease provides for a lesser time, or waives notice entirely. See 68 P.S. §250.501.)
The Registration Ordinance also materially conflicts with the L/T Act. Under Section 10.b. of the Registration Ordinance, occupants who allow additional occupancy in a Rental Unit without first obtaining the written permission of the landlord, and without requiring that any additional occupant obtain his or her own permit, are in violation of the Registration Ordinance and are subject to conviction and fines similar to those the landlord is subject to, i.e., $1,000 per occupant, and $100 per day per occupant for which permission and a permit were not obtained.
Under Section 250.504-A of the L/T Act, however, tenants have a right to invite social guests, family, or visitors for a reasonable period of time, as long as their obligations as a tenant under the L/T Act are observed. Although Section 250.503-A of the L/T Act lists Tenant’s duties as including complying with all obligations imposed upon tenants by applicable provisions of all municipal ordinances, the duty to obtain authorization for/and registration of guests in the Registration Ordinance is in direct conflict with a tenant’s rights to have visitors for a reasonable period of time under the L/T Act.
The Registration Ordinance also requires that landlords take reasonable steps to remove or register unauthorized occupants within ten days of learning of their unauthorized occupancy. As described above, this requirement conflicts with the L/T Act’s notice under Section 250.501; the time limits for notice under Section
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250.501; the time limits for removal under Sections 250.502 and 250.503; and tenant’s rights under Section 250.503-A.
In sum, Hazleton has clearly exceeded the municipal authority granted to it by the Commonwealth of Pennsylvania in enacting Sections 4.E. and 5.B.(3) of the Immigration Ordinance, and in enacting the Registration Ordinance.
C. Plaintiffs Will Suffer Irreparable Harm by the Enforcement of the Immigration and Registration Ordinances
The Plaintiffs will suffer irreparable harm if the requested preliminary injunction and/or temporary restraining order is not issued. “An injury is deemed irreparable if it cannot be adequately compensated by an award of damages.” Greyhound Lines, Inc. v. Peter Pan Bus Lines, Inc., 845 F. Supp. 295, 300 (E.D. Pa. 1994). The court can enjoin the government officers “who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected [by] an unconstitutional act, violating the Federal Constitution.” Morales v. TWA, 504 US 374, 381 (1992).
The Plaintiffs will be, and already have been, adversely impacted to a great extent by the Prior Ordinance, and new Immigration and Registration Ordinances that are unconstitutional. Hazleton is now widely known as an extremely unfriendly place to foreigners, regardless of their immigration status in the United States. See, generally, Declarations of Plaintiffs John Doe 1 and HHBA. As such, numerous individuals and families — mostly Latino — are leaving or have already left Hazleton. Businesses that cater to the Latino population are closing down. For those that remain open, business is slow — the numbers of customers and renters have dropped considerably. See Declarations of Plaintiffs Hernandez and HHBA.
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Once the Immigration Ordinance is in effect, it will be even harder for these Latino business owners to survive: most of their customers are Latino themselves and, given the anti-Latino hostility evidenced in Hazleton, there is no likelihood the customer base will be replenished with non-Latino customers. With the Latino population fleeing Hazleton, businesses are sure to close down. Harm to one’s business which threatens one’s livelihood constitutes irreparable harm. Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589, 601 (3rd Cir. 1979). At this juncture, the Plaintiffs who own apartments or businesses fear that their actions (or inaction) may lead to complaints or violations of the Registration and Immigration Ordinances. See Declaration of Plaintiff Hernandez. Moreover, as explained above, the Immigration and Registration Ordinances are preempted by federal immigration law and invalid pursuant to Pennsylvania’s municipal power and landlord/tenant laws. Id. See Morales, 504 US at 381 (holding that there was no adequate remedy at law when state actors’ enforcement actions of regulations preempted by federal law were imminent).
The harm caused by the Immigration and Registration Ordinances is not restricted to business owners and landlords. Plaintiffs—all Latinos--will be denied equal protection in the City’s attempt to weed out “illegal aliens.” Furthermore, those Plaintiffs who do not own their own home will have their right of privacy violated by Hazleton. Moreover, several of the Plaintiffs are in the process of obtaining legal status in the U.S. or are otherwise not deportable under the federal immigration law, but possess no confirmation at this time to show that they are not “illegal aliens” under the Immigration Ordinance. See Declaration of John Doe 1. As such, they will lose the ability to live or work in Hazleton without meaningful
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due process. Id. The denial of fundamental rights to these Plaintiffs constitutes irreparable harm. See Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 245 (3d Cir.1980), cert. denied, 449 U.S. 1096 (1981) (holding that allegation of deprivation of constitutional “life and liberty” rights was sufficient allegation of irreparable harm such that plaintiffs were not required to exhaust their administrative remedies before proceeding in district court). And, even though Hazleton will be violating Plaintiffs’ fundamental right of privacy, they are not making an effort to ensure that Spanish-speaking persons receive proper notice regarding implementation of the Registration Ordinance. See Declaration of Brenda Lee Mieles.
Finally, Hazleton’s intrusion into the uniquely federal field of immigration will cause great harm to national immigration law and policy, as well as to foreign relations, especially if this Court allows the Immigration Ordinance to take effect. A consequence of this Court refusing to enjoin Hazleton’s misguided regulation of immigration law will be that every municipality in the country will be free to establish piecemeal immigration standards and procedures across the country. The Immigration Ordinance’s unlawful attempt to regulate an exclusively federal matter and its many departures from federal immigration law create significant problems for immigration policy in this country.
D. The Harm to Plaintiffs Greatly Outweighs Any Alleged Harm to Hazleton
While the harm visited by the Registration and Immigration Ordinances upon the Plaintiffs is real and immediate, any injury claimed by Hazelton from the issuance of the requested injunctive relief is speculative and unsupported by any
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empirical or statistical evidence that it is “illegal aliens” who have caused the City’s many ills, as claimed by the Mayor.
Hazleton has not come forward with any evidence that would indicate that enforcement of the Immigration Ordinance would solve any of the City’s problems. The Mayor of Hazleton has publicly admitted on several occasions that he does not have any statistics or real evidence to back up his claim that “illegal immigrants” have contributed significantly to an increase in the crime rate or other problems in Hazleton, instead citing a single murder allegedly committed by “illegal immigrants” to justify the Ordinance. Neither did he know how many undocumented individuals live, work, or go to school in Hazleton. In fact, statistics compiled by the Pennsylvania State Police Uniform Crime Reporting System show a reduction in the number of total arrests in Hazleton over the last five years – from 1,458 in 2000 to 1,263 in 2005. Moreover, while everyone seems to agree that Hazleton’s immigrant population has swelled since 2000 – mostly with Latino immigrants venturing west from New York and New Jersey – there is no evidence that the vast majority of newcomers are anything but legal.
In light of the irreparable harm that Plaintiffs will suffer if the Registration and Immigration Ordinances take effect, as described in the preceding section, the City’s lack of data to back up its claims that illegal aliens are responsible for increased crime and other ills in Hazleton, and that the data actually shows that the number of arrests in Hazleton has decreased during the last five years, the harm caused to Plaintiffs far outweighs any alleged harm to the Defendant. See Ellen Barry, City Vents Anger at Illegal Immigrants, L.A. TIMES, July 14, 2006, at 1 (police statistics reveal decrease in arrests in Hazleton over last five years).
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E. Granting the Preliminary Injunction is In the Public Interest The Ordinance runs afoul of the U.S. Constitution, civil rights and state laws. The public interest is greatly served by preventing the enforcement of an ordinance that directly violates constitutional provisions and does not remedy any documented problems. See Council of Alternative Political Parties v. Hooks, 121 F.3d 867, 883-884 (3rd. Cir. 1997) (stating that “[i]n the absence of legitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights.”) Moreover, because the harm in this case involves a municipality interfering with what are clearly federal powers, the potential harm is to the entire nation. As the Supreme Court has noted, the “[l]egal imposition of distinct, unusual and extraordinary burdens and obligations upon aliens ... bears an inseparable relationship to the welfare and tranquility of all the states, and not merely to the welfare and tranquility of one.” Hines, 312 U.S. at 66 (emphasis added). IV. CONCLUSION For the reasons set forth in the Declarations of Humberto Hernandez, Brenda Lee Mieles, HHBA, John Doe 1 and this Memorandum of Law in support of this Motion for Preliminary Injunction and Temporary Restraining Order, the Plaintiffs respectfully request this Court to enter a preliminary injunction and temporary restraining order to prohibit the enforcement of Immigration Ordinance 2006-18 and Registration Ordinance 2006-13, related to immigration status and registration
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of tenants, unless such time as these Ordinances’ lawfulness are determined.
Respectfully submitted,
By: /s/ Thomas G. Wilkinson, Jr.
Thomas G. Wilkinson, Jr. Linda S. Kaiser Doreen Yatko Trujillo Thomas B. Fiddler Elena Park Ilan Rosenberg COZEN O’CONNOR 1900 Market Street Philadelphia, PA 19103 Tel. (215) 665-2000 Fax: (215) 665-2013
Lillian Llambelis, Esquire Foster Maer, Esquire Jackson Chin, Esquire PUERTO RICAN LEGAL DEFENSE FUND 99 Hudson St. 14 Floor New York, NY 10013-2815 Tel. (212) 739-7575 Fax: (212)431-4276
George R. Barron, Esquire 88 North Franklin Street Wilkes-Barre, Pennsylvania 18701 Tel. (570) 824-3088 Fax: (570) 825-6675
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David Vaida, Esquire 137 North 5th Street Allentown, PA 18102 Tel. (610) 433-1800 Fax: (610) 433-2985
Barry H. Dyller Barry H. Dyller, Esquire DYLLER LAW FIRM Gettysburg House 88 North Franklin Street Wilkes-Barre, PA 18701 Tel. (570) 829-4860 Fax: (570) 825-6675
Lee Gelernt, Esquire Omar C. Jadwat, Esquire AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 125 Broad St., 18th Fl. New York, NY 10004 Tel. (212) 549-2620 Fax: (212) 549-2654
Lucas Guttentag, Esquire Jennifer C. Chang, Esquire AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950
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Witold J. Walczak, Esquire AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 Tel. (412) 681-7864 Fax: (412) 681-8707
Paula Knudsen, Esquire AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 105 N. Front St., Suite 225 Harrisburg, PA 17101 Tel. (717) 236-6827 Fax: (717) 236-6895
Mary Catherine Roper, Esquire AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 Tel. (215) 592-1513 ext. 116
Counsel for Plaintiffs
Shamaine Daniels, Esquire Laurence E. Norton, II, Esquire Peter Zurflieh, Esquire COMMUNITY JUSTICE PROJECT 118 Locust Street Harrisburg, PA 17101 Tel. (717) 236-9486 Fax: (717) 233-4088
Counsel for Plaintiffs Rosa Lechuga, Jose Luis Lechuga, Brenda Lee Mieles John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6 and Jane Doe 1, Jane Doe 2, Jane Doe 3, Jane Doe 4 and Casa Dominicana of Hazleton, Inc.
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Peter D. Winebrake, Esquire TRUJILLO RODRIGUEZ & RICHARDS, LLC 1717 Arch Street, Suite 3838 Philadelphia, PA 19103 Tel. (215) 731-9004 Fax: (215) 731-9044 Counsel for Plaintiff Pennsylvania Statewide Latino Coalition
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CERTIFICATE OF SERVICE I, Thomas G. Wilkinson, Jr., counsel for Plaintiffs, hereby certify that I am duly authorized to make this certification; that on the 30th day of October, 2006, I did cause a true and correct copy of Plaintiffs’ Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Relief to be mailed by Federal Express to counsel addressed as follows:
Harry G. Mahoney, Esq. Andrew B. Adair, Esq. Deasey, Mahoney & Bender, Ltd. 1800 John F. Kennedy Boulevard Suite 1300 Philadelphia, PA 19103-2978
BY: /s/ Thomas G. Wilkinson, Jr.
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 Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO,

:

No. 3:06cv1586

CARLOS FUENTES,

:

HUMBERTO HERNANDEZ,

:

(Judge Munley)

ROSA LECHUGA,

:

JOSE LUIS LECHUGA,

:

JOHN DOES 1-4,

:

JANE DOES 1-2,

:

JOHN DOE 5, A MINOR, BY HIS

:

PARENTS,

:

JOHN DOES 6, A MINOR, BY HIS

:

PARENTS,

:

JANE DOE 3, A MINOR, BY HER

:

PARENTS,

:

JANE DOE 4, A MINOR, BY HER

:

PARENTS,

:

BRENDA LEE MIELES,

:

CASA DOMINICA OF HAZLETON,

:

INC.,

:

HAZLETON HISPANIC BUSINESS

:

ASSOCIATION, and

:

PENNSYLVANIA STATEWIDE

:

LATINO COALITION,

:

Plaintiffs

:

:

:

v.

:

:

CITY OF HAZLETON,

:

Defendant

:

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM

Before the Court is plaintiffs’ motion for a temporary restraining order.1

1Though defendant received notice of plaintiff’s motion for a temporary restraining order, we decline to convert that motion to one for a preliminary injunction under Rule 65(a)(1) of the Federal Rules of Civil Procedure. The Third Circuit Court of Appeals has held that notice of a motion for a preliminary injunction that offers insufficient time for the adverse party to prepare for a hearing fails to satisfy due process requirements. See Anderson v. Davila, 125 F.3d 148, 156 (3d Cir. 1997) (holding that “The

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(Doc. 30). The matter has been briefed and argued and is ripe for disposition.
Background
In the instant motion, the plaintiffs challenge the legality of two
ordinances enacted in Hazleton, Pennsylvania. The first, Ordinance 2006-13
requires all occupants of rental units (as those terms are defined in the
ordinance) to obtain an “occupancy permit.” In order to obtain such a permit,
an applicant must provide, inter alia, “proper identification showing proof of
legal citizenship and/or residency.” (Pl. Ex. A, Ordinance 2006-13, Section
7(b)1(g)). The second Ordinance is entitled the Illegal Immigration Relief Act
Supreme Court has observed that [Rule 65(a)(1)] requires, at the very least, ‘a hearing in which the defendant is given a fair opportunity to oppose the application and to prepare such opposition.’”) (quoting Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 432 n. 7 (1974)); see also Sims v. Greene, 161 F.2d 87, 88 (“no preliminary injunction shall be issued without notice to the adverse party. Notice implies an opportunity to be heard. Hearing requires trial of an issue or issues of fact.”).
Here, plaintiff filed a combined motion for a TRO and preliminary injunction seeking to bar enforcement of several ordinances less than two days before the ordinances in question were to take effect. We were compelled to hold a hearing on an expedited basis in order to address the impending harm plaintiffs argued enforcement would bring. Defendant had notice of the motion, but given the lengthy nature of the memorandum in support of that motion, the complexity and fact-intensive nature of the issues involved, and the short amount of time available for defendant to respond, we could not provide a hearing on the merits of a preliminary injunction that would protect defendant’s due process rights. Accordingly, we will treat plaintiff’s motion as a request for a temporary restraining order.
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Ordinance, Ordinance 2006-18. This ordinance is aimed at preventing businesses from employing or harboring illegal aliens. (Pl. Ex. B, Ordinance 2006-18). The instant temporary restraining order seeks to enjoin the enforcement of these ordinances, which is scheduled to begin on November 1, 2006. Discussion
The Third Circuit Court of Appeals has outlined four factors that a court ruling on a motion for a preliminary injunction must consider: (1) whether the movant will be irreparably injured by denial of the relief; (2) whether granting preliminary relief will result in even greater harm to the nonmoving party; (3)whether granting the preliminary relief will be in the public interest; and (4) whether the movant has shown a reasonable probability of success on the merits. Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir.2001). These same factors are used to determine a motion for a temporary restraining order. Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D.Pa.1994). These factors merely “structure the inquiry” and no one element will necessarily determine the outcome. The court must engage in a delicate balancing of all the elements, and attempt to minimize the probable harm to legally protected interests between the time of the preliminary
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injunction to the final hearing on the merits. Constructors Association of Western Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir.1978). The movant bears the burden of establishing these elements. Adams v. Freedorm Forge Corp., 204 F.3d 475, 486 (3d Cir. 2000). We will address each of these issues seriatim 1) Irreparable injury
The first factor to be weighed is whether the plaintiffs will be irreparably injured if the temporary restraining order is not granted. Crissman, 239 F.3d at 364. Usually, a preliminary injunction will be denied if it appears that the applicant has an adequate alternative remedy in the form of money damages. A.L.K. Corporation v. Columbia Pictures Indus., Inc., 440 F.2d 761 (3d Cir.1971).
After a careful review, the threat of irreparable injury is present in the instant case. For example, Plaintiff Jane Doe 1 risks being evicted from her apartment along with her two young children, although not an “illegal alien” under the laws of the United States. (Am. Compl. ¶ 34 - 39). Plaintiffs John Does 5 - 6 and Jane Does 3- 4 are minor school-age children residing with their parents in Hazleton, who may be forced to leave Hazleton and their schooling if the ordinances are enforced. (Am. Compl. 40-41). Plaintiff
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Brenda Lee Mieles is a United States citizen who may be evicted from her residence because of her inability to establish her citizenship. (Am. Compl. ¶ 42 - 43). Plaintiffs Rosa and Jose Luis Lechuga have suffered and continue to suffer a great loss of business in their store and restaurant located in Hazleton, which they blame on the ordinances. (Am. Compl. ¶ 15 - 19). A monetary price cannot be placed on such matters as plaintiffs’ housing, livelihood and education. Therefore, monetary damages would not be sufficient to make the plaintiffs whole, and the plaintiffs’ risk irreparable injury if the temporary restraining order is not granted. We find that this factor weighs heavily in favor of granting the temporary restraining order. 2) Harm to the Non-Moving Party
The second factor used by courts to determine whether to grant injunctive relief is “whether granting preliminary relief will result in even greater harm to the non-moving party” than to the movant. Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). The City argues that the ordinances related to illegal immigration are designed to prevent problems of social disorder and chaos that city leaders connect to the presence of illegal aliens in Hazleton. In the “Findings and Declaration of Purpose” that accompany the Illegal Immigration Relief Act Ordinance, the City contends
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that “illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services . . . and diminishes our overall quality of life.” Ordinance 2006-18 § 2(C). In statements to newspapers, the mayor of Hazleton has asserted that the illegal immigrants have created crime and disorder in the town: “They try to recruit these children into gangs; we’re having graffiti sprayed on houses now.” Ellen Barry, City Vents Anger at Illegal Immigrants, LOS ANGELES TIMES, July 14, 2006, at A1. The city passed the ordinance, the mayor claims, partly in response to an incident where four illegal Dominican immigrants were arrested in connection with the shooting of a 29-year-old man. Id.
We find that this potential harm to the city is not greater than the harm faced by the plaintiffs from enforcement of the ordinances. Plaintiff has offered, in the form of affidavits, statements of the concrete harm faced by various individuals from the enforcement of the ordinances. Defendant, to the contrary, has offered only assertions that violent crime in Hazleton is a product of illegal immigration and that the city faces higher costs for social services because of the presence of undocumented persons. In a newspaper interview, the Mayor admitted that he had no statistics to support his claims of
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Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 7 of 13
increased crime related to illegal immigration, nor even any numbers on how many illegals had entered the City.2 Dan Geringer, Bloomberg: U.S. Can’t Stem Immigration Tide, PHILADELPHIA DAILY NEWS, July 6, 2006 at 7.
At oral argument, defendant’s counsel argued that crime in the City had increased by ten percent between 2004 and 2005, but offered no evidence to connect this increase to the presence of illegal immigrants. Counsel also offered no statistics to demonstrate the number of illegal immigrants living in Hazleton in those years. Compared to the complaints of specific harm offered by the plaintiffs, the City’s vague complaints about the presence of illegal immigrants–problems that could be ascribed to a number of factors beyond the presence of people without legal documents and which might not be alleviated by the City’s programs anyway–do not demonstrate that the City would face greater harm from issuing injunctive relief than the defendants would from not granting their motion.
2Some of the City’s assertions about rising crime rates appear to be contradicted by other sources. The Los Angeles Times, for instance, reported on July 14, 2006, that the violent crime rate in Hazleton as reported in Pennsylvania state statistics had actually decreased during the years when illegal immigration supposedly increased. See Ellen Barry, City Vents Anger at Illegal Immigrants, LOS ANGELES TIMES, July 14, 2006, at A1 (noting that the number of total arrests in Hazleton had decreased from 1,458 in 2000 to 1,263 in 2005 and that the number of “reported rapes, robberies, homicides and assaults” had decreased as well).
7

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 8 of 13
3) The Public Interest The third factor we must consider in deciding this matter is “whether
granting the preliminary relief will be in the public interest.” Allegheny, 171 F.3d at 158. We find that this factor favors granting a Temporary Restraining Order. The plaintiffs have shown they will suffer irreparable harm from enforcement of the ordinance. We find it in the public interest to protect residents’ access to homes, education, jobs and businesses. No evidence offered by the City suggests that the public interest in enforcement outweighs these concerns. As stated above, defendant offers only vague generalizations about the crime allegedly caused by illegal immigrants, but has nothing concrete to back up these claims. Moreover, since the plaintiff makes claims that implicate constitutionally protected rights, the public interest would best be served by delaying enforcement of the City’s ordinances until this court has an opportunity carefully to consider their constitutional implications. See Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 883-84 (3d Cir. 1997) (holding that “In the absence of legitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights”). 4) Reasonable probability of success on the merits
8

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 9 of 13
The final factor to weigh in determining whether to grant a temporary restraining order is the reasonable probability of eventual success on the merits. Crissman, 239 F.3d at 364. In order to satisfy this element, “[i]t is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits.” Punnett v. Carter, 621 F.2d 578, 583 (3d Cir. 1980).
As mentioned above, the plaintiffs challenge the legality of two ordinances. The first, Ordinance 2006-13 requires all occupants of rental units (as those terms are defined in the ordinance) to obtain an “occupancy permit.” In order to obtain such a permit, an applicant must provide, inter alia, “proper identification showing proof of legal citizenship and/or residency.” (Pl. Ex. A, Ordinance 2006-13, Section 7(b)1(g)). The second Ordinance is entitled the Illegal Immigration Relief Act Ordinance, Ordinance 2006-18. This ordinance is aimed at preventing businesses from employing or harboring illegal aliens. (Pl. Ex. B, Ordinance 2006-18).
Plaintiffs have raised several constitutional claims regarding the ordinances at issue. Plaintiffs assert that the ordinances violate the Supremacy Clause of the United States Constitution; the Due Process Clause
9

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 10 of 13
of the Fourteenth Amendment to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Plaintiffs also assert that the ordinances violate various statutes such as the Fair Housing Act, 42 U.S.C. § § 3601 et seq.; Pennsylvania Home Rule Charter Law, 53 Pa.C.S. § § 2961 et seq. and Landlord Tenant Act, 68 PENN. STAT. § § 250.101 et seq.
The ultimate success of plaintiffs’ claims will, of course, depend on the facts presented at the full hearing on the merits. At this stage of the proceeding, where plaintiff seeks a temporary restraining order on an expedited basis without benefit of a full hearing, it is sufficient to note that plaintiff has raised serious claims and there is a reasonable probability of success on the merits on one or more of the claims. Moreover, we need not analyze the likelihood of success on the merit more closely at this point as we find that the other factors weigh heavily in favor of granting the temporary restraining order. See In re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137 (3d Cir. 1982) (“where factors of irreparable harm, interests of third parties and public considerations strongly favor the moving party, an injunction might be appropriate even though plaintiffs did not demonstrate as strong a likelihood of ultimate success as would generally be required."
10

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 11 of 13
(internal quotation marks and citation omitted.)) Conclusion
For the aforementioned reasons, we find that the factors weigh in favor of granting a temporary restraining order. Accordingly, we will issue an order enjoining the enforcement of the ordinances at issue.
11

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 12 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO,

:

No. 3:06cv1586

CARLOS FUENTES,

:

HUMBERTO HERNANDEZ,

:

(Judge Munley)

ROSA LECHUGA,

:

JOSE LUIS LECHUGA,

:

JOHN DOES 1-4,

:

JANE DOES 1-2,

:

JOHN DOE 5, A MINOR, BY HIS

:

PARENTS,

:

JOHN DOES 6, A MINOR, BY HIS

:

PARENTS,

:

JANE DOE 3, A MINOR, BY HER

:

PARENTS,

:

JANE DOE 4, A MINOR, BY HER

:

PARENTS,

:

BRENDA LEE MIELES,

:

CASA DOMINICA OF HAZLETON,

:

INC.,

:

HAZLETON HISPANIC BUSINESS

:

ASSOCIATION, and

:

PENNSYLVANIA STATEWIDE

:

LATINO COALITION,

:

Plaintiffs

:

:

:

v.

:

:

CITY OF HAZLETON

:

Defendant

:

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

ORDER

AND NOW, to wit, this 31st day of October 2006, the plaintiffs’ motion

for a temporary restraining order is hereby GRANTED. The Defendant City of

Hazleton is prohibited from enforcing the Illegal Immigration Relief Act

Ordinance 2006-18 and Registration Ordinance 2006-13. A hearing on the

12

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 13 of 13
preliminary injunction will be set by further order of court. This temporary restraining order shall remain in effect until November 14, 2006, unless extended by the court.
This Order shall take effect upon the posting of a $200.00 security bond by the plaintiffs with the Clerk of Court.
BY THE COURT: s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court
13

 
 Case 3:06-cv-01586-JMM Docunient 30 Filed 10/30/2006 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, ET AL. Plaintiffs,
CITY OF HAZLETON, Defendant.

CIVIL ACTION NO. 6-cv-56-JMM (Hon. James M. Munley)

MOTION FOR AND PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
Plaintiffs, by and through their attorneys, move this Court pursuant to Rule 65(a) and (b) of the Federal Rules of Civil Procedure for an Order granting a Temporary Restraining Order and Preliminary Injunction prohibiting the City of Hazleton from enforcing the Illegal Immigration Relief Act Ordinance 2006-18 and the Registration Ordinance 2006-13 until such time as the Ordinances' lawhlness is finally decided by the Court. In support of this motion, Plaintiffs aver as follows:
1. Plaintiffs incorporate herein by reference the facts alleged in the Amended Complaint. In addition, Plaintiffs incorporate herein by reference the following documents which are attached hereto:

Case 3:06-cv-01586-JMM Document 30 Filed 10/30/2006 Page 2 of 9
a. Ordinance No. 2006-13, titled ccEstablishinga Registration Program for Residential Rental Properties (Exhibit A);"
b. Ordinance No. 2006-18, titled the "Illegal Immigration Relief Act Ordinance (Exhibit B);"
c. Tenant Registration Form (Exhibit C); d. Notice to Residents of the City of Hazelton (Exhibit D); e. Declaration of Humberto Hernandez (Exhibit E); f. Declaration of Rudy Espinal (Exhibit F); g. Declaration of John Doe 1 (Exhibit G); and h. Declaration of Brenda Lee Mieles (Exhibit H). 2. Plaintiffs also incorporate herein by reference the facts and legal arguments contained in the Memorandum in Support of Motion for Preliminary Injunction and Temporary Restraining Order, which is being filed contemporaneously herewith. 3. Four factors govern the Court's decision whether to issue a preliminary injunction: 1) whether the movant has shown a reasonable probability of success on the merits; 2) whether the movant will be irreparably injured by the denial of the relief; 3) whether granting the preliminary relief will resylt in greater harm to the non-moving party (i.e., a balancing of the hardships); and 4) whether granting the preliminary relief will be in the public interest. Allegheny Energy, Inc.
v. D.Q.E., Inc., 171 F.3d 153 158 (3d. Cir. 1999) (citations omitted). See also United States v. Commonwealth of Pennsylvania, 533 F.2d 107, 110 (3d. Cir.
1976). In this case, an analysis of these factors demonstrates Plaintiffs' compelling right to relief.

Case 3:06-cv-01586-JMM Document 30 Filed 1013012006 Page 3 of 9
4. Plaintiffs stand a reasonable probability of success on the merits because, among other reasons:
a. Ordinance No. 2006-13 and Ordinance No. 2006-18 violates the Supremacy Clause;
b. Ordinance No. 2006-13 and OrdinanceNo. 2006-18 violate the Due Process Clause of the Fourteenth Amendment;
c. Ordinance No. 2006-13 and OrdinanceNo. 2006-18 violate the Equal Protection Clause and the Fair Housing Act;
d. Ordinance No. 2006-13 violates federal guarantees of privacy; and
e. The City of Hazleton's enactment of Ordinance No. 2006-13 and Ordinance No. 2006-18 exceeds the powers granted to it under the Constitution of the Commonwealth of Pennsylvania and the Pennsylvania Home Rule Charter law.
5 . Plaintiffs will be irreparably harmed if the requested temporary restraining order and preliminary injunction are not granted because, among other things, they will be deprived of fundamental rights guaranteed by the United States Constitution and federal law.
6. The harm, if any, that the City of Hazleton will sustain by the requested stay of enforcement of Ordinance No. 2006-13 and Ordinawe No. 200618 until its lawfulness and constitutionality can be determined is greatly outweighed by the irreparable harm which Plaintiffs will sustain if the requested injunctive relief is not granted.

Case 3:06-cv-01586-JMM Document 30 Filed 10/30/2006 Page 4 of 9
7. The public interest lies in favor of granting a stay of the enforcement of Ordinance No. 2006- 13 and Ordinance No. 2006- 18.
8. On October 26", 2006, Plaintiffs advised the attorneys for Hazleton of our intention to file this Motion for Preliminary InjunctionQ'emporary Restraining Order unless Hazleton agreed to revoke the Ordinance and/or suspend the enforcement of the Ordinance against Plaintiffs. Hazleton's attorneys refused Plaintiffs' requests. This afternoon Plaintiffs delivered electronically to counsel for defendant a copy of the Complaint, Declarations, this Motion for Preliminary Injunction and Temporary Restraining Order and Plaintiffs' Legal Memorandum in Support of Motion for Preliminary Injunction and Preliminary Injunction.
9. Plaintiffs have suffered, and will continue to suffer, irreparable h a m by the enforcement of the Immigration Ordinance 2006-18 and Registration Ordinance 2006-13 as they violate the Supremacy Clause, Due Process, Equal Protection, the Fair Housing Act, Privacy Rights and exceed Pennsylvania law on municipal power and violate laws governing the landlordltenant relationship, and thus Plaintiffs have no adequate remedy at law.

Case 3:06-cv-01586-JMM Document 30 Filed 10/30/2006 Page 5 of 9
WHEREFORE, Plaintiffs respectfully request that this Court issue a preliminary injunction andlor temporary restraining order enjoining the City of Hazleton from enforcing any part of the Immigration Ordinance 2006-18 and Registration Ordinance 2006-13 until such time as the Ordinances' lawfulness is finally determined by the Court.

>

Dated: October 30,2006

Respectfully submitted,
By: Is/ Thomas G. Wilkinson, Jr.
Thomas G. Wilkinson, Jr. Linda S. Kaiser Doreen Yatko Trujillo Thomas R. Fiddler Elena Park Ilan Rosenberg COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103 Tel. (215) 665-2000 Fax: (215) 665-2013
Lillian Llambelis Foster Maer Jackson Chin PUERTO RICAN LEGAL DEFENSE FUND 99 Hudson St. 14 Floor New York, NY 10013-2815 Tel. (212) 739-7575 Fax: (212)431-4276

Case 3:06-cv-01586-JMM Document 30 Filed 1013012006 Page 6 of 9
George R. Barron 88 North Franklin Street Wilkes-Barre, Pennsylvania 18701 Tel. (570) 824-3088 Fax: (570) 825-6675
David Vaida 137 North 5th Street Allentown, PA 18102 Tel. (610) 433-1800 Fax: (610) 433-2985
Barry H. Dyller DYLLER LAW FIRM Gettysburg House 88 North Franklin Street . Wilkes-Barre, PA 18701 Tel. (570) 829-4860 Fax: (570) 825-6675
Lee Gelernt . Omar C. Jadwat AMERICAN C M L LIBERTIES UNION FOUNDATION Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004 Tel. (212) 549-2620 Fax: (212) 549-2654

Case 3:06-cv-01586-JMM Document 30 Filed 10/30/2006 Page 7 of 9
Lucas Guttentag Jennifer C. Chang A M E W A N CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project ' 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950
Witold J. Walczak AMERICAN CIVIL LIBERTIES L ~ I O NOF PENNSYLVANIA 3.13 Atwood Street Pittsburgh, PA 15213 Tel. (4 12) 68 1-7864 Fax: (4 12) 68 1-8707
Paula Knudsen AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 105 N. Front St., Suite 225 Harrisburg, PA 17101 Tel. (717) 236-6827 Fax: (717) 236-6895
Mary Catherine Roper AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 Tel. (215) 592-1513 ext. 116
Counselfor Plaintzfls

Case 3:06-cv-01586-.IMM Document 30 Filed 10/30/2006 Page 8 of 9
Shamaine Daniels Laurence E. Norton, I1 Peter Zurflieh COMMUNITY JUSTICE PROJECT 118 Locust Street Harrisburg, PA 17101 Tel. (717) 236-9486 Fax: (717) 233-4088
Counselfor Plaintzfs Rosa Lechuga, Jose Luis Lechuga, Brenda Lee Mieles John Doe 2, John Doe 3, John Doe 4, John Doe 5, John Doe 6 and Jane Doe I, Jane Doe 2, Jane Doe 3, Jane Doe 4 and Casa Dominicans of Hazleton, Inc.
Peter D. Winebrake TRUJILLO RODRIGUEZ & RICHARDS, LLC 1717 Arch Street, Suite 3838 Philadelphia, PA 19103 Tel. (215) 73 1-9004 Fax: (2 15) 73 1-9044
Counselfor Plaintzf Pennsylvania Statewide Latino Coalition

Case 3:06-cv-01586-JMM Document 30 .Filed 10/3012006 Page 9 of 9
CERTIFICATE OF SERVICE I, Thomas G. Wilkinson, Jr., counsel for Plaintiffs, hereby certify that I am duly authorized to make this certification; that on the 30th day of October, 2006, I did cause a true and correct copy of Plaintiffs' Motion for Preliminary Injunction and Temporary Restraining Order to be mailed by Federal Express to counsel addressed as follows:
Harry G. Mahoney, Esq. Andrew B. Adair, Esq. Deasey, Mahoney & Bender, Ltd. 1800John F. KennedyBoulevard Suite 1300 Philadelphia, PA 19103-2978
BY: /s / Thomas G. Wilkinson, Jr.

Case 3:06-cv-01586-JMM Document 30 Filed 10/30/2006 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, ET AL. Plaintiffs,
CITY OF HAZLETON, Defendant.

CIVIL ACTION NO. 6-cv-56-JMM (Hon. James M. Munley)

ORDER

AND NOW, this

day of

,2006, upon consideration of

the Plaintiffs' Motion for Preliminary Injunction and Temporary Restraining Order and the

exhibits attached thereto, the Memorandum of Law in support thereof, the Amended

Complaint, and after a hearing held on the Motion on

,2006, the

Court hereby finds that it has been presented with sufficient evidence that plaintiffs will

suffer immediate and irreparable injury for which there is no adequate remedy at law if

1

preliminary injunctive relief and/or temporary restraining order is not granted, and

accordingly, for good cause shown, it is hereby ORDERED that the City of Hazleton is

prohibited fkom enforcing the Illegal Immigration Relief Act Ordinance 2006-18 and

Registration Ordinance 2006-13 until such time as the Ordinances' lawfulness is finally decided by the Court.

~

BY THE COURT:

James M. Munley, J.

 
 Case 3:06-cv-01586-JMM Document 72 Filed 12/15/2006 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO,

:

No. 3:06cv1586

CARLOS FUENTES,

:

HUMBERTO HERNANDEZ,

:

(Judge Munley)

ROSA LECHUGA,

:

JOSE LUIS LECHUGA,

:

JOHN DOES 1-4,

:

JANE DOES 1-2,

:

JOHN DOE 5, A MINOR, BY HIS

:

PARENTS,

:

JOHN DOE 6, A MINOR, BY HIS

:

PARENTS,

:

JANE DOE 3, A MINOR, BY HER

:

PARENTS,

:

JANE DOE 4, A MINOR, BY HER

:

PARENTS,

:

BRENDA LEE MIELES,

:

CASA DOMINICA OF HAZLETON,

:

INC.,

:

HAZLETON HISPANIC BUSINESS

:

ASSOCIATION, and

:

PENNSYLVANIA STATEWIDE

:

LATINO COALITION,

:

Plaintiffs

:

:

:

v.

:

:

CITY OF HAZLETON,

:

Defendant

:

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM

In this case, the plaintiffs challenge several ordinances enacted by

Defendant City of Hazleton. A number of the plaintiffs proceed

anonymously as John or Jane Does (hereinafter “Doe plaintiffs”). During

depositions, an issue arose as to whether the Doe plaintiffs were required

to reveal their identities or immigration status. Before the court for

disposition is the plaintiffs’ request for a protective order allowing the Doe

plaintiffs to refrain from disclosing information revealing their identity or

immigration status. Defendant opposes the request.

The Third Circuit Court of Appeals has explained the analysis of

limits on discovery as follows:

Case 3:06-cv-01586-JMM Document 72 Filed 12/15/2006 Page 2 of 8
The general framework for determining the scope of allowable discovery for cases in federal courts is provided by Federal Rule of Civil Procedure 26, which provides that “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Fed.R.Civ.P. 26(b)(1). . . . Rule 26(c) grants federal judges the discretion to issue protective orders that impose restrictions on the extent and manner of discovery where necessary “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c). . . .
[A] party may petition the court for a protective order that limits discovery in accordance with Rule 26(c). The court, in its discretion, is authorized by this subsection to fashion a set of limitations that allows as much relevant material to be discovered as possible, while preventing unnecessary intrusions into the legitimate interests-including privacy and other confidentiality interests-that might be harmed by the release of the material sought. Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000).
Additionally, Rule 26 provides that the court may limit discovery
where “the burden or expense of the proposed discovery outweighs its
likely benefit.” FED. R. CIV. PRO. 26(b)(2).
A party seeking a protective order must demonstrate “good cause”
for its issuance. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d
Cir. 1994). “‘Good cause is established on a showing that disclosure will
work a clearly defined and serious injury to the party seeking closure. The
injury must be shown with specificity.’” Id. (quoting Publicker Indus., Inc. v.
Cohen, 733 F.2d 1059, 1071 (3d Cir.1984)). In order to determine if good
cause exists, a balancing test is used that weighs the harm of disclosing
the information versus the need for the information. Id. at 787. Thus, we
must balance the burden of the proposed discovery against its likely
benefit.
Plaintiffs seek the protective order because certain Doe plaintiffs fear
2

Case 3:06-cv-01586-JMM Document 72 Filed 12/15/2006 Page 3 of 8
the potential consequences of disclosing their identities and immigration status and may decide not to continue with the suit if they are forced to reveal the information. According to the plaintiffs, the express purpose of the ordinances at issue is to rid the town of illegal immigrants. They fear that the ordinances will render them homeless and jobless. Hence, plaintiffs argue that they have legitimate fears regarding revealing their identities. Plaintiffs further argue that a protective order would encourage the Doe plaintiffs to proceed with the litigation and allow them to defend their alleged constitutional and statutory rights. Plaintiffs assert that the evidence at issue carries limited relevance, if any.
Defendant raises several areas of concern. Granting the protective order, they argue, would make it impossible for them to assess plaintiffs’ standing and would allow the plaintiffs to continue a “shell game” of switching the identity of unnamed Does.1 We find no merit to these contentions, and we will address them in seriatim.
Standing Defendant claims that it needs the information in order to support its argument that the plaintiffs lack standing and to determine if the ordinances at issue will cause injury to the Doe plaintiffs. We are not convinced.
1Defendant also asserts that granting the protective order would be contrary to every judicial precedent on this issue. We disagree. In fact, plaintiffs have been allowed to proceed anonymously even in the United States Supreme Court. See Plyler v. Doe, 457 U.S. 202 (Illegal aliens proceeding anonymously successfully brought a constitutional challenge to a Texas law denying certain free public education to illegal aliens). However, no controlling precedent on point was cited by the parties, and our research has revealed none.
3

Case 3:06-cv-01586-JMM Document 72 Filed 12/15/2006 Page 4 of 8
In a motion to dismiss, the defendant has challenged, inter alia, the
standing of the plaintiffs to bring suit on the basis that illegal aliens do not
have standing to sue. Apparently, they seek to question the plaintiffs to
determine if they are illegal and therefore, according to the defendant, lack
standing. Plaintiffs’ verified amended complaint admits that certain plaintiffs are in fact not in the country legally.2 As the plaintiffs admit this
2With regard to the John and Jane Doe plaintiffs, the Amended Complaint asserts that Plaintiff John Doe 1 is a tenant who resides in Hazleton. Though he has resided in the United States of America for nearly twenty years, he is originally from Mexico. (Doc. 29, ¶ 23). His father, a United States citizen, has petitioned federal immigration officials to grant John Doe 1 and his wife legal residency. (Id. at ¶ 24). John Doe 1's three school-age children are all United States citizens. (Id.) He has not been ordered to leave the United States by immigration authorities, but fears he will have to leave Hazleton if the ordinance operates. (Id.).
John Doe 2 and Jane Doe 2, originally from Mexico, are husband and wife and have lived in the United States for seven years. (Id. at ¶ 26). They have four children of school age. (Id.) Only the youngest child in the family is a United States citizen. (Id. at ¶ 27).
John Doe 3 is originally from Mexico; while he and his wife are not citizens or lawful residents of the United States, both their children are. (Id. at 29).
John Doe 4 is originally from Mexico. (Id. at 30). He and his wife have three children, all of whom are United States citizens. (Id. at 30-31). He has an approved family petition. (Id. at ¶ 31)
Jane Doe 1 is from the Dominican Republic and overstayed her six-month visa issued in 2000. (Id. ¶ 33). Her husband is a lawful permanent resident, and he filed a permanent residency petition in her behalf in 2003. (Id. at ¶ 34). She left him because he was abusive, however, and he withdrew his petition to support her and filed for divorce. (Id. at ¶ 35). In February 2006, she petitioned for a change in status under the Violence Against Women Act, and has received confirmation of its receipt. (Id. at ¶ 36). She has two young children who are United States citizens. (Id. at ¶ 37). Jane Doe 1 has no proof of citizenship or
4

Case 3:06-cv-01586-JMM Document 72 Filed 12/15/2006 Page 5 of 8
fact, it is not in controversy. In other words, to the extent that the information is relevant to the defendant’s standing argument, it is admitted by the plaintiffs.
Substituting Does Defendant also argues that providing the information at issue will prevent the plaintiffs from substituting others, who are not currently plaintiffs, as the unnamed Does. According to the defendant, the Amended Complaint contains different Does from Does found in the original Complaint, and that this substitution somehow evinces a strategy on the part of the plaintiffs to continue substituting parties. We find this argument unconvincing. The fact that the Does may have been changed from the Complaint to the Amended Complaint does not indicate that the plaintiffs are engaging in some type of abuse of the judicial process. In fact, it does not raise any concern at this juncture as the identities were changed in an Amended Complaint which superceded the original complaint. See Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002)(noting that an amended complaint supercedes the original). If, in the future, the defendant finds that some type of serious abuse occurs with regard to switching the identities of the Does, it may raise the issue with the court at that point.
residency. (Id. at ¶ 38)(note, from the allegations, it is clear that the complaint refers to Jane Doe 1, but inadvertently calls her “Jane Doe 2”).
John Does 5-6 and Jane Does 3-4 are minor, school-age children who live with their parents in Hazleton. (Id. at ¶ 40). Their parents are not citizens or lawful permanent residents. (Id. at ¶ 40).
5

Case 3:06-cv-01586-JMM Document 72 Filed 12/15/2006 Page 6 of 8
Conclusion Accordingly, we find that the defendant has no need for the
information at issue. We balance this lack of need against the plaintiffs’ fears of the consequences of revealing the information. We find that the Doe plaintiffs may legitimately fear removal from the country and separation from their families if they reveal their identities. Moreover, according to the plaintiffs, public identification of the Does in this case, which has been highly publicized, would cause the plaintiffs to become targets of intense anti-immigrant and anti-Latino sentiment. Those fears may cause them to abandon this suit that seeks to vindicate their allegedly substantial constitutional and statutory rights. It is important in balancing the defendant’s need against the burden on the plaintiffs to bear in mind that this case involves the constitutional and statutory rights asserted by the plaintiffs with regard to certain ordinances. This case is not an action to enforce United States immigration laws. Plaintiffs’ interest in keeping this information confidential outweighs the defendant’s need for it, and the request for a protective order will be granted. See, e.g., Zeng Liu v. Donna Karan Internat’l, Inc., 207 F. Supp. 2d 191, 193 (S.D.N.Y. 2002) (holding that plaintiff’s immigration status need not be disclosed because to do so, even if the parties agreed not to disclose the information, would create “‘the danger of intimidation, the danger of destroying the cause of action,’ and would inhibit plaintiffs in pursuing their rights.”) (quoting Ansoumana v. Gristede’s Oper. Corp., No. 00 Civ. 0253 (AKH) (S.D.N.Y. Nov. 8, 2000)). An appropriate order follows.
6

Case 3:06-cv-01586-JMM Document 72 Filed 12/15/2006 Page 7 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO,

:

No. 3:06cv1586

CARLOS FUENTES,

:

HUMBERTO HERNANDEZ,

:

(Judge Munley)

ROSA LECHUGA,

:

JOSE LUIS LECHUGA,

:

JOHN DOES 1-4,

:

JANE DOES 1-2,

:

JOHN DOE 5, A MINOR, BY HIS

:

PARENTS,

:

JOHN DOE 6, A MINOR, BY HIS

:

PARENTS,

:

JANE DOE 3, A MINOR, BY HER

:

PARENTS,

:

JANE DOE 4, A MINOR, BY HER

:

PARENTS,

:

BRENDA LEE MIELES,

:

CASA DOMINICA OF HAZLETON,

:

INC.,

:

HAZLETON HISPANIC BUSINESS

:

ASSOCIATION, and

:

PENNSYLVANIA STATEWIDE

:

LATINO COALITION,

:

Plaintiffs

:

:

:

v.

:

:

CITY OF HAZLETON,

:

Defendant

:

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

PROTECTIVE ORDER

AND NOW, to wit, this 15th day of December 2006, the plaintiffs’

request for a protective order is GRANTED as follows:

The John or Jane Doe Plaintiffs in this proceeding do not have to

produce, or otherwise respond to discovery requests seeking disclosure of,

“Protected Material”, i.e., those documents, things, information and

testimony containing information about their immigration status, actual

residence, or place of work that would allow someone to identify them or

their immigration status. If a John or Jane Doe plaintiff invokes this order

7

Case 3:06-cv-01586-JMM Document 72 Filed 12/15/2006 Page 8 of 8
as a basis to withhold certain material, defendant retains the right to object to said withholding. It is expected that, at this point in the discovery process, the parties will be able to resolve such disputes between themselves without court intervention.
BY THE COURT: s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court
8

 
 IN THE UNITED STATES DISTRICT COURT FOR TI-IE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, et al.
Plaintifis, v.

CIVIL ACTlON NO. 3:06-cv-01 586-JMM (Hon, James M. Munley)

CITY OF HAZLETON

Defendant.

STIPULATIONAND ORDER Jt is hereby stipulated by and between the undersigned duly authorized counsel for the
parties as follows: I . On October 3 1, 2006, the Honorable James M. M u ~ l e yentered an Order granting
Plaintiffs' Motion for a Temporary Remaining Order and prohibited the Defendant City of Hazleton fiorn enforcing, until November 14,2006, Ordinancc 2006-18, the "Illegal Irnnligralion Relief ACIOrdinance," and Ordinance 2006-13, the Ordinance "Es~ablishing a Registration Progrmn for Residential Rental Properties; Requiring All Owners of Residential Rental Properties to Designate an Agent for Service of Process; and Prescribing Duties o f Owners, Agents and Occupants; Directing the Designation of Agents; EstabIishing Fees for the Costs Associated with the Registration of Rental Property; and Prescribing Penalties for Viola~ions." 2. Subsequently, on November 1,2006, the Court entered a Scheduling Ordcr which, inter alia, scheduled this marter for trial on November 13, 2006, du~irlgwhich he bial on the mcrits is to be adva~lcedand coilsolidated with the preliminary injunction hearing ("Consolidated Trial"). 3. Counsel for both parties believe That it is in their best interest, as wcll as that of the Court, to conduct discovcry and to fully brief the important issues raised through Plaintiffs'

Amended Complaint and Motion for a Preliminary Inj~mctiona, nd they f i t h e r believe that such goals can be accomplished if discovery is completed by January 5,2007. 4. Counsel for the parties agree to movc this litigation and trial forward as expeditiously as possible so that thc Court will be in a position to hold ihe Consolidared Trial and rule upon Plaintiffs' Motion for Preliminary and Permanent Relief at the earliest practicable lime, preferably in approximately 90 days. 5. In light of the foregoing, the restraining Order enjoining Hazleton from enforcing Ordinance 2006-18 and Ordinance 2006-13 shall be extended for One 1-IundredTwenty (120) days, or urltil such time as the Consolidated Trial is held and a decision is rendered, whichever is shorter. 6 . The Court's November 1,2006, Scheduling Order is hereby set aside and a new Scheduling Order to be entercd by the Court follows. 7 . This Stipulation is being entered into by the parties by their duly aulhorized counscl and is not to be construed as an admission of fact or liability by any of the parties. 8. Any and all motions in limine shall be filed by January 8,2007 at 4 p.m. Prctrial briefs no longer than 50 pages in length shall be filed on January 9,2007 in accordance with L.R. 16.6. 9. A prelrial conference shall be scheduled for January 12,2007, at which time the parties should be prepared to discuss the conduct of the hearing and trial, including the anticipated witnesses and order of proof on the issues. 10. Defendant shall have until December 1,2006,to file a responsive pleading to Plaintiffs' First Amcnded Complaint (Docket #29)andlor a response to Plaintiffs' Motion for Preliininary Injunction and Temporary Restraining Order (Docket #30).

1 1 In the interests of expediting the conduct of discovery, the parties agree to the following
discovery schedule:
a, Any written discovery from the pmies, including document requests and interrogatories, shall have been served by November 20,2006 and responded to by December 5,' 2006.
b. All depositions of hct witnesses shall have been noticed by November 30,2006 and conducted by December 21,2006.
c. Plaintiffs shall identi* any expert witness(es) for trial and provide the disclosures contemplated by Fed.R.Civ.P. 26(a)(2) by November 30, 2006; Defendants shall identify any experts witness for trial and provide said disclosures by December 8,2006; these deadlines do not apply 10 any rebuttal cxperts eitlier parry may choose to call.
d. Any depositions of expert witnesses shall have bccn conducted by January 5, 2007.
c. All discovery sllall have becn completed by January 5,2007.
f. The case shall be ready for the Comolidatcd Trial no later than January 31,2007.
g. If ally discovery disputes arise, the parties are directed not to file a written motion, but rather skould contact Sylvia Murphy, who will promptly arrange for a telephone coilference ro resolve the issues.
12. Counsel shall meet and confer, pursuant to Local Rule 16.3@)for the purpose of
attempting to enter into apements with respect to the subjects rcferred to in
Fed.R.Civ.P.16 and to discuss settlement of rl~eaction by January 12,2007

S/ Thomas G Wilkinson, Jr. Thomas G. Wilkinson, Jr., Esquire Cozen O'Connor 1900Market Strcet Philadelphia, PA 19103 (2 15) 665-3737 Counselfor Pluinliffs

st Andrew B. Acluir Andrew 13. Adair, Esquire Deasey, Mahoney & Bender, Ltd. 1800 John F. Kennedy Boulevard, Suite 1300
Philadelphia, PA 19103 (215) 587-9400 Counselfor Defendant

 
 Case 3:06-cv-01586-JMM Document 82-1 Filed 01/12/2007 Page 1 of 70

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

:

PEDRO LOZANO,

:

HUMBERTO HERNANDEZ,

:

ROSA LECHUGA,

:

JOSE LUIS LECHUGA

:

JOHN DOE 1

:

JOHN DOE 3

:

CASA DOMINICANA OF HAZLETON, INC., :

HAZLETON HISPANIC BUSINESS

:

ASSOCIATION,

:

PENNSYLVANIA STATEWIDE LATINO

:

COALITION,

:

JOHN DOE 7, and

:

JANE DOE 5

:

Plaintiffs,

:

:

v.

:

:

CITY OF HAZLETON,

:

:

Defendant.

:

:

CIVIL ACTION
NO. 3:06-cv-01586-JMM (Hon. James M. Munley)

SECOND AMENDED COMPLAINT

INTRODUCTION AND NATURE OF THE ACTION

On July 13, 2006, the City of Hazleton (“Hazleton”) passed the “Illegal

Immigration Relief Act Ordinance” (“Prior Ordinance”) and announced that such

Ordinance would take effect in sixty days. A Complaint was filed with this Court

on August 15, 2006 challenging that Prior Ordinance on several constitutional and

other grounds and, on September 2, 2006, this Court approved a Stipulation

Case 3:06-cv-01586-JMM Document 82-1 Filed 01/12/2007 Page 2 of 70
whereby Hazleton agreed not to enforce the Prior Ordinance and Plaintiffs agreed not to seek an injunction of such Ordinance.
Not to be dissuaded, Hazleton then began anew to draft and enact ordinances to accomplish its purpose to force persons deemed to be “illegal aliens” from the community. On September 21, 2006, Hazleton enacted Ordinance 2006-18, also entitled the “Illegal Immigration Relief Act Ordinance” (“Immigration Ordinance”). On October 30, 2006, a First Amended Complaint was filed challenging, inter alia, the Immigration Ordinance on several constitutional and other grounds. On October 31, 2006, the Court entered a Temporary Restraining Order prohibiting Hazleton from enforcing, inter alia, the Immigration Ordinance until November 14, 2006. On November 3, 2006, the Court approved a Stipulation and Order, wherein the Court’s restraining Order was extended for 120 days or until a consolidated trial was held and a decision was rendered, whichever date was earlier.
On December 28, 2006, in response to the First Amended Complaint, Hazleton City Counsel adopted Ordinance 2006-40, which amended the Immigration Ordinance by adding §7 (Implementation and Process). Herein, the Immigration Ordinance as amended by Ordinance 2006-40 is referred to as the “Revised Immigration Ordinance.”
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Using this litigation as its learning curve, Hazleton has engaged in repeated attempts to avoid the several, and insurmountable, constitutional and other flaws that doomed the Prior Ordinance and similarly condemn the Revised Immigration Ordinance. Hazleton’s attempts to linguistically craft itself out of the legal deficiencies identified in the Complaint and First Amended Complaint have not succeeded, and the Revised Immigration Ordinance remains constitutionally deficient and otherwise impermissible under applicable laws and unable to withstand judicial scrutiny.
Despite the absence of any persuasive evidence in its favor, Hazleton continues to blame many of its ills, including crime, economic burdens and social dilemmas on “illegal aliens.” Hazleton’s motivations have become abundantly clearer with each of the various ordinances it has adopted and through the discovery that has taken place in this case to date. The cosmetic changes adopted in Ordinance 2006-40 do nothing to address the underlying deficiencies in Hazleton’s misguided attempt to be the first municipality in the nation to implement and vigorously enforce an anti-immigration ordinance. The Revised Immigration Ordinance and the Tenant Registration Ordinance continue to ignore the subtleties, complexities and primacy of Federal immigration law and violates the Supremacy Clause because it unlawfully infringes on the Federal government’s exclusive authority over immigration matters. The Revised Immigration
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Ordinance continues to violate constitutionally protected due process standards. The Revised Immigration Ordinance continues to impart invidious discrimination based on alienage, and continues to violate the equal protection rights of Plaintiffs under the U.S. Constitution and 42 U.S.C. §1981. The Revised Immigration Ordinance and Tenant Registration Ordinance continue to violate the Federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq. and Plaintiffs’ right to privacy under the U.S. and Pennsylvania constitutions. In addition to these serious deficiencies, the Revised Immigration Ordinance continues to violate Pennsylvania statutory law governing the limited powers granted to home rule municipalities and protections afforded under the Landlord and Tenant Act of 1951, 68 P.S. §§ 250.101, et seq. (“L/T Act”).
The harms initiated with the Prior Ordinance and perpetuated with the Immigration Ordinance remain unabated, and the Revised Immigration Ordinance continues to injure Plaintiffs at this time. Thus, this Second Amended Complaint seeks injunctive and other relief to prevent Hazleton from trampling on Plaintiffs’ constitutional, statutory and other legal rights. Through this Second Amended Complaint, Plaintiffs ask this Court for the entry of judgment declaring that the Revised Immigration Ordinance and Tenant Registration Ordinance are unconstitutional and unlawful, and granting equitable relief in the form of a
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permanent injunction against the enforcement of the those Ordinances, and for costs and attorneys fees.
PARTIES 1. Plaintiff Pedro Lozano (“Lozano”) is a resident of Hazleton. Plaintiff Lozano owns multiple rental units in Hazleton. 2. Plaintiff Lozano already has lost previously contracted tenants due to the Prior and Immigration Ordinances. Upon information and belief, Plaintiff Lozano has lost prospective tenants due to the Revised Immigration Ordinance. Plaintiff Lozano does not know the immigration status of his present tenants, nor of the tenants he lost. 3. Plaintiff Humberto Hernandez (“Hernandez”) is a resident of Hazleton. Plaintiff Hernandez owns a rooming house and three rental homes. 4. Plaintiff Hernandez has already lost tenants due to the Prior and Immigration Ordinances. Upon information and belief, Plaintiff Hernandez has lost prospective tenants due to the Revised Immigration Ordinance. Plaintiff Hernandez does not know the immigration status of his present tenants, nor of the tenants he lost. 5. Herein, Plaintiff Lozano and Hernandez are collectively referred to as “Plaintiff Landlords.”
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6. Upon information and belief, some of the present tenants of Plaintiff Landlords lack identity data to demonstrate that they are not “illegal aliens,” as such term is defined under in §3.D. of the Revised Immigration Ordinance. Under § 5.A.(3) of the Revised Immigration Ordinance, each of the Plaintiff Landlords is obligated to obtain, and provide to the Hazleton Code Enforcement Office (“Code Office”) within three days after a demand for same by the Code Office, identity data for tenants or others that occupy a dwelling unit owned by the Plaintiff Landlord, or face sanctions under the Revised Immigration Ordinance for a failure to do so.
7. Upon information and belief, Plaintiff Landlords are renting, or may rent, to tenants who are deemed to be “illegal aliens” under the Revised Immigration Ordinance, which places or would place Plaintiffs in violation of the Ordinance. Under §5 of the Revised Immigration Ordinance, if Plaintiff Landlords do not evict such tenants five business days after receiving notice from Hazleton that the status of the tenant as an “illegal alien” has been verified, Plaintiff Landlords will have their rental license suspended until one day after the violation has ended. During the period of suspension, Plaintiff Landlords will be prohibited from collecting any rent, payment, fee, or any other form of compensation, from any tenant or occupant in the dwelling unit.
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8. Unless the Revised Immigration Ordinance and Tenant Registration Ordinance are permanently enjoined and declared invalid, Plaintiff Landlords will lose current/prospective tenants, suffer loss of rents and be subject to significant monetary fines.
9. Plaintiffs Lozano and Hernandez have hired independent contractors and domestic workers to perform repair and other services in their rental units. Plaintiffs Lozano and Hernandez do not know the immigration status of these service persons. If Plaintiffs Lozano and Hernandez do not participate in the Basic Pilot Program (hereinafter described), and if one of these persons is deemed to be an “illegal alien,” Plaintiffs Lozano and Hernandez will be in violation of §4 of Revised Immigration Ordinance and subject to sanctions provided by that Ordinance.
10. Unless the Revised Immigration Ordinance and Tenant Registration Ordinances are permanently enjoined and declared invalid, Plaintiffs Lozano and Hernandez will continue to lose income and/or incur significant monetary fines.
11. Plaintiffs Rosa and Jose Luis Lechuga (“Lechuga”) are husband and wife and are residents of Hazleton. Plaintiffs Lechuga own a grocery store in Hazleton. They formerly owned a restaurant in Hazleton as well.
12. Plaintiffs Lechuga came to the U.S. from Mexico in 1981. They moved to Hazleton in 1991 to work on tomato and cucumber farms.
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13. Plaintiffs Lechuga opened their store approximately eight years ago; they opened their restaurant at the beginning of 2006.
14. Plaintiffs Lechuga have lost significant revenue since the Prior Ordinance and the Revised Immigration Ordinance were enacted. Before the enactment of the Prior Ordinance, Plaintiffs Lechuga served between 45-130 customers per day at the restaurant, and between 95-130 customers per day at the store. Since the enactment of the Prior Ordinance, they served between 6-7 persons per day at the restaurant and 20-23 persons per day at the store. The loss in revenue and profit resulting from the passage of the Prior and Revised Immigration Ordinances, and the Tenant Registration Ordinance (hereinafter defined), has forced Plaintiffs Lechuga to close the restaurant. Due to the losses of business income, Plaintiffs Lechuga fear they will be unable to maintain ownership of their residential home and the commercial property where the grocery store is located.
15. Plaintiffs Lechuga are required to have a permit or license from Hazleton to operate their business.
16. Plaintiffs Lechuga have hired individuals to work in their business. If Plaintiffs Lechuga do not participate in the Basic Pilot Program, and if one of their employees (or an individual with whom they contract) is deemed to be an “illegal alien,” Plaintiffs Lechuga are subject to the sanctions set forth under §4 of the
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Revised Immigration Ordinance, even when Plaintiffs Lechuga have fully complied with Federal law in their hiring practices. Further, if identity information for any employee is requested by Hazleton following the filing of a complaint under the Revised Immigration Ordinance, and if Plaintiffs Lechuga are not able – for any reason – to provide the requested information within three days of the request, they are subject to having their business license suspended, even when Plaintiffs Lechuga are in full compliance with Federal immigration laws.
17. Unless the Revised Immigration Ordinance and Tenant Registration Ordinance are permanently enjoined and declared invalid, Plaintiffs Lechuga will continue to lose income and/or incur significant monetary fines.
18. Plaintiff John Doe 1 is a tenant and resident of Hazleton. He has lived in Hazleton for over six years with his wife and three school-age children. He has lived in the U.S. for almost two decades. He is originally from Mexico.
19. Plaintiff John Doe 3 is a tenant and resident of Hazleton. He has lived in Hazleton for over four years. He lives with his wife and two children. He is originally from Mexico.
20. Plaintiff John Doe 3 and his wife are not U.S. citizens or lawful permanent residents. His children are both U.S. citizens.
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21. Plaintiff John Doe 7 and Plaintiff Jane Doe 5 are husband and wife. They are tenants and residents of Hazleton. They have lived in Hazleton for over five years. They are originally from Columbia.
22. Plaintiff John Doe 7 and his wife Plaintiff Jane Doe 5 are not U.S. citizens or lawful permanent residents.
23. Plaintiffs John Does 3 and 7 and Jane Doe 5 reasonably fear that, if the Revised Immigration Ordinance is enforced, they will be evicted from their current homes.
24. Plaintiffs Lozano, Hernandez, Rose and Jose Luis Lechuga, John Does 1, 3 and 7 and Jane Doe 5 are collectively referred to herein as “Individual Plaintiffs.”
25. Plaintiff Casa Dominicana of Hazleton, Inc. (“Casa Dominicana”) is a Pennsylvania non-profit organization.
26. Casa Dominicana’s primary purpose is to promote the Hispanic culture and empower the Hispanic community of Hazleton. Before the enactment of the Prior Ordinance, Casa Dominicana had approximately 150 members. Its membership has now dwindled to approximately 110 members.
27. Casa Dominicana does not require its members to prove their citizenship, residency or immigration status as a condition to membership. The Prior Ordinance, the Revised Immigration Ordinance, the Tenant Registration
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Ordinance and the English Only Ordinance (hereinafter defined) have created great hostility towards the Latino community in Hazleton and therefore adversely affects the work Casa Dominicana performs in Hazleton and for Hazleton residents.
28. Casa Dominicana’s membership and constituency (herein, collectively “members”) includes individuals - many but not all of whom are Latino - who reside and who are employed in and around Hazleton, some of whom have schoolaged children. The membership includes persons who have Spanish as their native tongue with a limited proficiency in English.
29. The interests Casa Dominicana seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of Casa Dominicana’s members.
30. Plaintiff Hazleton Hispanic Business Association (“HHBA”) is a Pennsylvania non-profit organization. HHBA’s purpose is to promote the business interests of its members. HHBA does not require its individual members to prove their citizenship, residency or immigration status as a condition to membership. The Prior Ordinance, the Revised Immigration Ordinance, the Tenant Registration Ordinance and the English Only Ordinance have generated great hostility towards the Latino community in Hazleton and therefore adversely affect the work HHBA performs in Hazleton and for Hazleton businesses and residents.
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31. HHBA’s membership and constituency (herein, collectively “members”) includes individuals - many but not all of whom are Latino or who service Latino and other customers - who reside or operate businesses in and around Hazleton, some of whom have school-aged children. The membership includes business owners and landlords.
32. The HHBA’s membership includes individuals who have Spanish as their native tongue with a limited proficiency in English.
33. The interests HHBA seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of HHBA’s members.
34. Plaintiff Pennsylvania Statewide Latino Coalition (“PSLC”) is a Pennsylvania non-profit organization. Plaintiff PSLC is a non-partisan alliance of Latino leaders, organizations, community activists, students, and individuals that serves as a statewide institutional catalyst for positive social change and political advancement. Its primary purpose is as an advocacy organization for Latinos in the Commonwealth of Pennsylvania. PSLC does not require its members to prove their citizenship, residency or immigration status as a condition to membership.
35. PSLC’s membership and constituency (herein, collectively “members”) includes individuals who reside or operate businesses in and around Hazleton, including but not limited to Dr. Agapito Lopez and Anna Arias, some of
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whom have school-aged children. PSLC’s members include persons who have Spanish as their native tongue with a limited proficiency in English.
36. The interests PSLC seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of PSLC’s members and constituents.
37. PSLC has expended, and will continue to expend, its own resources to advocate against enactment and enforcement of the Revised Immigration Ordinance and similar ordinances throughout the Commonwealth of Pennsylvania, as well as in providing assistance to its members impacted by the Revised Immigration Ordinance.
38. Plaintiffs Casa Dominicana, HHBA and PSLC are collectively referred to herein as “Plaintiff Organizations.”
39. Defendant City of Hazleton (“Hazleton”) is a city of the third class existing pursuant to Pennsylvania law, with its principal place of business located at Hazleton City Hall, Hazleton, Luzerne County, Pennsylvania 18201.
40. At all relevant times described herein, Hazleton acted through its duly authorized agents, Mayor Louis J. Barletta (“Mayor Barletta”), Joseph Yannuzzi, President of City Council, Jack Mundie, Vice-President of City Council, and City Council members Evelyn Graham, Tom Gabos and Robert Nilles, as well as those charged with Code enforcement..
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41. At all times alleged herein, Hazleton's officials, employees and agents were acting under color of state law.
JURISDICTION AND VENUE 42. This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 over Plaintiffs’ causes of action under the Constitution of the United States, 42 U.S.C. §§ 1981 and 1983, the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. This Court has supplemental jurisdiction over Plaintiffs’ causes of action under the Constitution and statutes of the Commonwealth of Pennsylvania pursuant to 28 U.S.C. § 1367. 43. This Court has personal jurisdiction over Hazleton, which is located in the Middle District of Pennsylvania. 44. Venue is proper in the Middle District of Pennsylvania pursuant to 28 U.S.C. §1391(a) in that Hazleton is subject to personal jurisdiction within the Middle District of Pennsylvania, and the events which give rise to this action occurred within the Middle District of Pennsylvania.
THE ORDINANCES 45. On July 13, 2006 the City of Hazleton (“Hazleton”) passed the “Illegal Immigration Relief Act Ordinance,” Ordinance 2006-10 (“Prior Ordinance”).
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46. On July 13, 2006, Ordinance 2006-13, entitled “Establishing a Registration Program for Residential Rental Properties; Requiring All Owners of Residential Rental Properties to Designate an Agent for Service of Process; and Prescribing Duties of Owners, Agents and Occupants; Directing the Designation of Agent; Establishing Fees for the Costs Associated with the Registration of Rental Property; and Prescribing Penalties for Violation” (“Tenant Registration Ordinance”) had its first reading before Hazleton City Council.
47. On August 15, 2006, the Tenant Registration Ordinance had its second and third readings before Hazleton City Council. On that same date, August 15, 2006, the Tenant Registration Ordinance was enacted by Hazleton. A true and correct copy of the Tenant Registration Ordinance is attached hereto as Exhibit “A.”
48. On September 8, 2006, Ordinance 2006-18, entitled the “Illegal Immigration Relief Act Ordinance” (“Immigration Ordinance”) had its first reading before Hazleton City Council. On September 12, 2006, the Immigration Ordinance had its second and third readings before Hazleton City Council. On September 21, 2006, the Immigration Ordinance was enacted by Hazleton. As of the date of this Second Amended Complaint, the Immigration Ordinance has not been repealed by Hazleton. A true and correct copy of the Immigration Ordinance is attached hereto as Exhibit “B.”
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49. On December 13, 2006, Ordinance 2006-40, entitled “Illegal Immigration Relief Act Implementation Amendment” (herein, “Ordinance 200640”) had its first reading before Hazleton City Council. No advance public notice was given by Hazleton of its intention to consider or adopt Ordinance 2006-40.
50. On December 28, 2006, Ordinance 2006-40 had its second and third readings before Hazleton City Council and was adopted. Ordinance 2006-40 amended the Immigration Ordinance by adding §7 (Implementation and Process). A true and correct copy of Ordinance 2006-40 is attached hereto as Exhibit “C.”
51. Both Mayor Barletta and counsel for the City of Hazleton stated publicly in media interviews and before City Council that Ordinance 2006-40 was enacted to address ambiguities and overbroad provisions contained in the Immigration Ordinance. However, instead of merely attempting to clarify and limit the Immigration Ordinance, Ordinance 2006-40 imposes additional duties and obligations not included previously in the Immigration Ordinance.
52. On December 13, 2006, Ordinance 2006-35 captioned “Establishing a Registration Program for Residential Rental Properties; Requiring all Owners of Residential Rental Properties to Designate an Agent for Service of Process; and Prescribing Duties of Owners and Agents; Directing the Designation of Agents; Establishing Fees for the Costs Associated with the Registration of Rental
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Property; and Prescribing Penalties for Violation” (herein, “Property Registration Ordinance”) had its first reading before Hazleton City Council.
53. On December 28, 2006, the Property Registration Ordinance had its second and third readings before Hazleton City Council and was adopted. A true and correct copy of the Property Registration Ordinance is attached hereto as Exhibit “D.”
54. Hazleton has not acted to repeal the Tenant Registration Ordinance, notwithstanding its adoption of the Property Registration Ordinance.
55. On September 8, 2006, Ordinance 2006-19, entitled the “English Only Ordinance” (“English Only Ordinance”) had its first reading before Hazleton City Council. On September 12, 2006, the English Only Ordinance had its second and third readings before Hazleton City Council. On September 21, 2006, the English Only Ordinance was enacted by Hazleton. A true and correct copy of the English Only Ordinance is attached hereto as Exhibit “E.”
OPERATION OF THE ORDINANCES 56. Hazleton adopted the Revised Immigration Ordinance to, in alia, prevent the employment of “unlawful workers,” as that term is defined in §3, from working in the city, even on a temporary basis. To effect this goal, the Revised Immigration Ordinance renders it unlawful for any “business entity” (as that term is defined in the Ordinance) to recruit, hire for employment, continue to employ, or
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permit, dispatch or instruct (collectively herein, “hire”) any “unlawful workers.” Additionally, business entities must attest to their compliance with the Revised Immigration Ordinance when they apply for a business permit to operate in Hazleton.
57. The Revised Immigration Ordinance sets forth enforcement mechanisms for the employment sections of the Ordinance. Any Hazleton official, business entity or resident may make a complaint to the Hazleton Code Enforcement Office (“Code Office”).
58. To be considered a “valid complaint,” the complaint must be submitted in a signed writing, and include an allegation that describes the alleged violators(s), the actions constituting the violation, and the date and location where the actions occurred.
59. Upon receipt of a “valid complaint” regarding an alleged “unlawful worker,” the Code Office is required to request, within three business days, “identity information” from the business entity regarding the worker. The type of “identity information” to be requested is not defined in the Immigration Ordinance.
60. Upon receipt of the identity information, the Code Office is directed to submit the data required by the Federal government to the Immigration and Customs Enforcement (“ICE”) to verify the immigration status of the worker.
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Upon verification of the identify information, the Code Officer must provide the business entity with written confirmation of the immigration status.
61. If the business entity fails, within three business days of receipt of a request from the Code Office, to provide the requested identity information, the Code Office is required to suspend the business permit of the business entity.
62. If the business entity is notified by the Code Office that a violation of the Revised Immigration Ordinance has occurred, the entity must “correct” the violation within three business days.
63. If the business entity does not correct the violation within three business days, the Code Office is required to suspend the business permit of the entity. However, the Code Officer is directed not to suspend the business permit of the entity if the business entity previously had used the Basic Pilot Program to verify the worker’s status. The Basic Pilot Program is a voluntary, experimental program created by Congress to permit employers to electronically verify workers’ employment eligibility with the U.S. Dept. of Homeland Security and the Social Security Administration.
64. A suspended business permit is restored to a business entity one business day after the entity submits a sworn affidavit stating that the violation has ended. The affidavit must include a description of the specific measures and action
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taken by the entity to end the violation and the name, address and other “adequate identifying information” of the unlawful worker.
65. If two or more unlawful workers are verified by the Code Officer, then - to reinstate its business permit - the business entity must submit, in addition to the sworn affidavit, documentation acceptable to Hazleton, confirming that the entity has enrolled and will participate in the Basic Pilot Program.
66. For a second or subsequent violation, the Code Office is required to suspend the entity’s business permit for twenty days.
67. The Revised Immigration Ordinance provides that the discharge by a business entity of any employee who is not an unlawful worker is an “unfair business practice” if, at the time of the discharge, the entity was not participating in the Basic Pilot Program and the entity was employing an unlawful worker. The Revised Immigration Ordinance purports to grant any discharged employee who is not an unlawful worker a private cause of action against the business entity, to seek damages of three times the actual damages sustained by the discharged employee and attorney’s fees and costs. The damages apply from the date of discharge to the date the discharged employee procures new employment at an equivalent rate of compensation, not to exceed 120 days.
68. In the First Amended Complaint, Plaintiffs alleged that the suspension of business license of the business entity for a failure to provide requested identity
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information of a worker following receipt of a request from the Code Office, is mandatory under the Immigration Ordinance and is not dependent upon any finding that an “unlawful worker” has been hired. Ordinance 2006-40 does not forestall a suspension under these circumstances. Ordinance 2006-40 provides in §7.C.(2) that a business entity can toll a suspension period imposed by §4.B.(4) if the business entity acquires additional information from the worker and requests a secondary or additional verification of the worker’s status under the Basic Pilot Program. However, Ordinance 2006-40 provides no opportunity for a business entity to challenge or toll a suspension mandated under §4.B.(3).
69. In the First Amended Complaint, the Plaintiffs alleged that the Immigration Ordinance required that the business entity must “correct” a violation within three business days following notification by the Code Office that a violation of the Immigration Ordinance has occurred, but that the nature of the “correction” of a violation is not defined in the Immigration Ordinance. Ordinance 2006-40 attempts to define the “corrections” that a business entity must undertake to void sanctions under the Revised Immigration Ordinance, to include the following: (1) the business entity must terminate (or attempt to terminate) the worker’s employment or (2) the business entity must acquire information from the worker and request a secondary or additional verification from the Federal government of the worker’s authorization.
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70. Section 5 of the Revised Immigration Ordinance mandates a scheme similar to the employment provisions for persons and business entities (herein “Landlords”) that own a dwelling unit in Hazleton.
71. The Revised Immigration Ordinance renders it unlawful for any Landlord to “harbor” an “illegal alien.” Under §5 of the Revised Immigration Ordinance, “harboring” is defined as when a Landlords lets, leases or rents a dwelling unit to an “illegal alien,” knowingly or in reckless disregard of the fact that the alien has come to, entered or remains in the U.S. in violation or law. Harboring also includes suffering or permitting the occupancy of a dwelling unit by an illegal alien, if the Landlord is knowingly or in reckless disregard of the fact that the alien has come to, entered or remain in the U.S. in violation or law.
72. The Revised Immigration Ordinance sets forth enforcement mechanisms for the harboring sections of the Ordinance.
73. Any Hazleton official, business entity or resident may make a complaint to the Code Office. To be considered a “valid complaint,” the complaint must be submitted in a signed writing, and include an allegation that describes the alleged violators(s), the actions constituting the violation, and the date and location where the actions occurred.
74. The Revised Immigration Ordinance contains one provision defining an invalid complaint for both the employment and harboring sections, stating:
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A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. 75. Upon receipt of a “valid complaint” regarding an alleged “illegal alien,” the Code Office is directed to submit the data required by the Federal government to the ICE to verify the immigration status of the suspected individual. 76. Upon information and belief, to obtain the required ICE data, the Code Office will request identity information regarding the suspected “illegal alien” from the Landlord. 77. Section 5.A.(3) of the Revised Immigration Ordinance provides that a Landlord is deemed in violation of the Ordinance for each business day that the Landlord fails to provide such identity information about a tenant or occupant, beginning three days after the Landlord receives written notice from the Code Office to provide such identity information. 78. Upon verification of the identify information from the ICE, the Code Office must provide the Landlord with written confirmation of the suspected “illegal aliens” immigration status. 79. After Hazleton has verified the immigration status of an “illegal alien,” if a Landlord fails to “correct” a violation of the Revised Immigration Ordinance within five days, the Code Office is required to deny or suspend the Landlord’s rental license, pursuant to §5.A.(4).
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80. During a suspension, the Landlord is prohibited by the Revised Immigration Ordinance from collecting rent, payment, fee or other compensation from any tenant or occupant of the dwelling unit, even from those whose lawful immigration status is undisputed.
81. A suspended rental license may be restored to a Landlord one business day after the entity submits a sworn affidavit stating that the violation has ended. The affidavit must include a description of the specific measures and action taken by the entity to end the violation and the name, address and other “adequate identifying information” of the “illegal alien.”
82. A Landlord that violates the Revised Immigration Ordinance is subject to the imposition of a $250.00 fine for day any “harboring” has occurred, for each adult “illegal alien” harbored in the dwelling unit; and imposition of a $250.00 fine for any second or subsequent violation of the Ordinance, in addition to the suspension of the rental license.
83. In the First Amended Complaint, the Plaintiffs alleged that the Immigration Ordinance permits the suspension of a Landlord’s rental license for a failure to “correct,” within five days, a violation of the Immigration Ordinance, but that the nature of the “correction” was not defined in the Immigration Ordinance. Ordinance 2006-40 attempts to define the types of “corrections” that will avoid the suspension of a landlord’s rental license, to include (1) efforts to remove the tenant
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from the dwelling unit or (2) acquiring unspecified “additional information” from the individual alleged to be an “illegal alien” and requesting Hazleton to obtain a secondary or additional verification from the Federal government as to the individual’s status.
84. The Tenant Registration Ordinance requires that each person aged 18 years or older who desires to occupy a rental dwelling must obtain, and pay for, an occupancy permit from Hazleton. The Tenant Registration Ordinance requires that applicants for occupancy permits must be made upon forms provided by the Code Officer and must include “[p]roper identification showing proof of legal citizenship and/or residence.”
85. Following the filing of Plaintiffs’ First Amended Complaint which alleged numerous flaws in the Tenant Registration Ordinance, Hazleton enacted the Property Registration Ordinance (Ordinance 2006-35) on December 28, 2006, which requires, inter alia, that Landlords obtain a permit for each dwelling unit offered for rent in Hazleton. The Property Registration Ordinance contains no requirement that tenants or occupants obtain an occupancy permit or that such persons provide “proper identification showing proof of legal citizenship and/or residence” to the Code Office. Nevertheless, the Revised Immigration Ordinance contains requirements that Landlords obtain identity information from tenants and/or occupants and has not to date been repealed.
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86. In the English Only Ordinance, English is declared to be the official language of the City of Hazleton. The English Only Ordinance specifies that official actions of Hazleton that bind or commit the city or that give the appearance of presenting the official view or position of Hazleton shall be taken in English only. The English Only Ordinance further requires Hazleton to use English for all documents, regulations, orders, transactions, proceedings, meetings, program or publications.
87. The English Only Ordinance protects individuals who speak English only by declaring such persons eligible to participate in all programs, benefits and opportunities, provided by Hazleton. The English Ordinance does not expressly permit eligibility in Hazleton’s programs, benefits and opportunities to individuals who speak both English and another language or who speak only a language other than English.
88. The English Only Ordinance provides that Hazleton is prohibited from penalizing or impairing the rights, obligations or opportunities available to persons who speak English only. The English Only Ordinance does not state that Hazleton is prohibited from penalizing or impairing the rights, obligations or opportunities available to persons who speak languages other than English.
89. Prior to the enactment of the English Only Ordinance, the Code Office had translated into Spanish various forms and notices issued or required by
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Hazleton. Hazleton incurred no cost or expense in translating the forms and notices into Spanish. The translation service was provided for free as a public service to the substantial Spanish-speaking population in Hazleton.
90. Following the enactment of the English Only Ordinance, Mayor Barletta pronounced before Hazleton City Council that city employees would not use or distribute any translated forms or notices. A rationale put forth by the Mayor in support of this pronouncement was that there could be persons who speak languages other than Spanish, who would not be assisted by the availability of Spanish language forms and notices. That rationale ignores the fact that Hazleton, by the Mayor's own admission, has some eight thousand recent Latino immigrants whose primary fluency is in the Spanish language.
91. Hazleton City Council was not advised or informed before adoption of the English Only Ordinance that the translation of city forms and notices into Spanish had not cost Hazleton any money.
92. No current employee of the Code Office is fluent in Spanish. 93. Following enactment of the English Only Ordinance, the Code Office collected all available copies of the Spanish-translated forms and notices and delivered them to the Mayor's office. Since the enactment of the English Only Ordinance, Hazleton has not used or distributed any of the existing previously translated forms or notices and refuses to make them available to the public.
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FEDERAL REGULATION OF IMMIGRATION 94. The power to regulate immigration is unquestionably an exclusively Federal power that derives from the Constitution's grant to the Federal government of the power to “establish a uniform Rule of Naturalization," U.S. Const. art. I, § 8, cl. 4., and to "regulate Commerce with foreign Nations." Id., cl. 3. In addition, the Supreme Court has held that the Federal government's power to control immigration is inherent in the nation's sovereignty. 95. Pursuant to its exclusive power over matters of immigration, the Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine, subject to judicial review, whether and under what conditions a given individual may enter, stay in, and work in the United States. 96. In addition to provisions that directly regulate immigrants’ entry and behavior, the Federal immigration laws also include provisions directed at other classes of individuals, such as those who employ or assist immigrants. Thus, the comprehensive Federal immigration scheme includes sanctions, documentation, and anti-discrimination provisions directly applicable to employers, as well as a criminal and civil scheme applicable to those who assist individuals who are not lawfully in the United States.
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97. The Federal government has also chosen to allow certain categories of non-citizens, and certain individual non-citizens, to remain in the United States, even though such non-citizens may not have valid immigrant (permanent) or nonimmigrant (temporary) status and/or may be removable under the Federal Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101, et seq.
98. Federal laws and policies aimed at reducing illegal immigration include safe harbor and other provisions regarding the appropriate reach of such laws. For example, employers who have complied in good faith with the employment documentation procedures set forth in the INA have an affirmative defense to liability under the INA’s employer-sanctions scheme.
99. These laws, procedures, and policies created by the Federal government regulate immigration and confer rights in a careful balance reflecting the national interest.
FIRST CAUSE OF ACTION VIOLATION OF THE SUPREMACY CLAUSE 100. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 99 above as though set forth at length herein. 101. Article VI, Section 2, of the United States Constitution provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound
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thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding. 102. The Supremacy Clause mandates that Federal law preempts any state regulation of any area over which Congress has expressly or impliedly exercised exclusive authority or which is constitutionally reserved to the Federal government. 103. The power to regulate immigration is an exclusively Federal power. 104. The Revised Immigration Ordinance, in its entirety, is admittedly a law purporting to regulate immigration and the incidents thereof. 105. The Revised Immigration Ordinance and the Tenant Registration Ordinance usurp the Federal government’s exclusive power over immigration and naturalization and its power to regulate foreign affairs. 106. The Federal government already has enacted a comprehensive statutory and regulatory scheme governing immigration, including the Immigration and Nationality Act, (“INA”), 8 U.S.C. §§1101 et seq. 107. The Revised Immigration Ordinance and the Tenant Registration Ordinance are preempted because they attempts to legislate in fields occupied by the Federal government and because it conflicts with Federal laws, regulations, policies and objectives. The Supremacy Clause of the U.S. Constitution requires that any state or local law regulating the conduct of noncitizens must be invalidated if it (1) amounts to an attempt to regulate immigration; (2) operates in a field
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occupied by the Federal government or (3) stands as an obstacle to Federal law. Both Ordinances fail under all three standards.
108. The intent and effect of the Revised Immigration Ordinance and the Tenant Registration Ordinance is to regulate immigration in Hazleton independently of the Federal government. The general scheme of these Ordinances differs from and interferes with the integrated Federal system of immigration regulation. These Ordinances cannot stand, for they regulates immigration, an area constitutionally reserved to the Federal government.
109. The Immigration and Nationality Act (“INA”), 8 U.S.C. 1101 et seq., and its associated regulations in Title 8 of the Code of Federal Regulations, contain a myriad of interrelated provisions establishing, among other things, numerous immigration categories; civil and criminal sanctions for various violations; and extensive procedures for determining status and removability. Under the Supremacy Clause, the Federal government has the authority to enforce the statutes and regulations, confer benefits, make discretionary determinations, undertake adjudication, and otherwise administer the immigration laws.
110. In the INA, Congress specifically has addressed both of the areas covered by the Revised Immigration Ordinance: sanctions for those who employ unauthorized aliens and those who harbor immigration violators. See 8 U.S.C. §§ 1324a-1324b (employer sanctions scheme) and 1324 (harboring provision). The
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INA contains safeguards such as a “safe harbor” provision for employers who are presented with facially valid documents; restrictions on reverification of employees after they are hired; extensive antidiscrimination provisions; prohibitions on employers’ requesting additional documents once an employee presents minimally adequate documentation; a 10-day cure period for good-faith violations; and a graduated series of penalties after adjudication by an administrative law judge. Moreover, the INA specifically prohibits “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee, unauthorized aliens.”
111. The Federal government retains and in fact exercises the power to investigate employment of unauthorized aliens at workplaces and has publicly raided workplaces allegedly employing illegal alien.
112. Ultimately, the effect of the Revised Immigration Ordinance and Tenant Registration Ordinance is to upset the system established by Congress in each of these areas by implementing Hazleton’s own enforcement mechanism, penalties, and interpretations in place of the Federal system, detracting from and impeding the integrated scheme of regulation created by Congress.
113. The Revised Immigration Ordinance defines a group of individuals as “illegal aliens” and sets forth a scheme intended to eliminate this group of
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individuals from Hazleton by forbidding their employment and residency - with the intent and effect of forcing them to leave the city.
114. The Revised Immigration Ordinance classifies as “illegal” many individuals who the Federal government allows to reside or work in the United States. Plaintiff John Doe 1, in particular, previously was included within the definition of “illegal alien” under the Ordinance at a time he was living and working in the United States with the full knowledge of the Federal government, notwithstanding that no Federal law contains express permission for him to so live and work in the United States.
115. Under Federal law, various categories of persons can receive Federal permission to work, and implicitly to stay and reside, in the United States even though they may be violating immigration laws. For example, such persons may have pending applications to adjust to a lawful status pursuant to 8 U.S.C. § 1255(i). Similarly, certain persons released from detention pursuant to legal mandates and restrictions imposed by the Supreme Court, though subject to an order of removal, are permitted to stay and work in the U.S. In addition, persons who are applying for or have been granted “temporary protected status” are permitted to stay and work in the U.S. if they meet certain requirements, notwithstanding the fact that they are otherwise removable. Federal officials may also exercise discretion not to deport persons who are otherwise removable. By
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denying work and housing opportunities to every individual who is “not lawfully present,” the Revised Immigration Ordinance and Tenant Registration Ordinance run roughshod over this complex system of Federal classification and discretion.
116. The Tenant Registration Ordinance prohibits landlords from permitting occupancy of a dwelling unit by any person aged 18 years or older (“Occupant”), unless each Occupant has obtained an occupancy permit from Hazleton. The Tenant Registration Ordinance requires each Occupant to obtain, and pay for, an occupancy permit. Applicants for occupancy permits must include “[p]roper identification showing proof of legal citizenship and/or residence.” If an owner permits an unregistered occupant to occupy the dwelling unit, or if an Occupant permits individuals who do not have an occupancy permit to occupy the dwelling unit, the owner is liable for sanctions under the Tenant Registration Ordinance, unless the Owner takes reasonable steps to remove the unauthorized person from the dwelling unit within ten (10) days of learning of the unregistered occupancy. If the owner fails to remove any person lacking an occupancy permit, the owner is liable for significant monetary sanctions under the Tenant Registration Ordinance, including a $1,000 fine for each unregistered occupant and $100 per day fine for each unregistered occupant.
117. The Tenant Registration Ordinance is also at odds with Federal immigration law. The Tenant Registration Ordinance requires each individual
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occupant of any rental unit to obtain an occupancy permit from the City, and requires applicants for occupancy permits to provide “proof of legal citizenship and/or residency.” Upon information and belief, Hazleton will accept from applicants only documentation of U.S. citizenship or residency status, and will deny an occupancy permit to persons who lack such documentation for whatever reason, even if the individual is permitted under the Federal immigration system to live and stay in the United States.
118. The Revised Immigration Ordinance and Tenant Registration Ordinance adversely affect the Individual Plaintiffs and members of the Plaintiff Organizations including individuals who are allowed to remain and/or work in the United States, by subjecting them to displacement from employment and the rental or occupancy of dwelling units in Hazleton.
119. The Revised Immigration Ordinance contains specific incompatibilities and inconsistencies with Federal law.
120. The Revised Immigration Ordinance mandates that businesses enroll in the Federal Basic Pilot Program under certain circumstances. See §§ 4(B)(6)(b) and 4(D). Even where the Revised Immigration Ordinance does not mandate such enrollment de jure, the Ordinance requires such enrollment on a de facto basis due to the risk of being subjected to exorbitant penalties if the business does not enroll in the Basic Pilot Program. This mandated participation by Hazleton is
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irreconcilable with the Congressional directive that the Basic Pilot Program be implemented by the Secretary of Homeland Security as a voluntary, experimental program.
121. Additionally, the Revised Immigration Ordinance requires businesses, individuals, non-profits, and other entities to ensure that any person they “recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct … to perform work in whole or part within the City” is an authorized worker. § 4.A. In contrast, Federal law does not require that employers verify the immigration status of certain categories of workers, such as independent contractors and casual domestic workers, and does not apply to entities, such as unions, that refer individuals for employment but without a fee or profit motive.
122. The Revised Immigration Ordinance further contradicts Federal immigration law because it subjects an employer to sanctions and requires an employer to undertake “corrections” – termination or reverification – when the employer is in full compliance with the Immigration Reform and Control Act, 8 U.S.C. §1324a et seq.(“IRCA”) While IRCA provides a “safe harbor” for any employer who requires employees to undergo the IRCA verification process, see 8 U.S.C. 1324a(a)(3) and (b), such employers may nonetheless be subject to sanctions. Further, the Ordinance requires employers to terminate or reverify workers even where those workers have completed the IRCA verification process,
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and thus places employers at risk of violating provisions of IRCA that prohibit improper reverification of workers. See 8 U.S.C. 1324b(a)(6).
123. The Revised Immigration Ordinance renders it unlawful for any person or business entity that owns a dwelling unit (“Landlords”) to harbor an “illegal alien” if the Landlord knows or recklessly disregards the fact that the alien has come to, entered or remains in the United State in violation of the law, unless such harboring is expressly permitted by Federal law. This “savings clause” is illusory because Federal immigration law sets forth standards, processes and requirements for the removal of individuals who lack the legal authority to remain in the United States and does not set forth express provisions delineating circumstances under which “harboring” is not unlawful.
124. The “harboring” section of the Immigration Ordinance directs the Code Office to verify the immigration status of an alleged “illegal alien” that is seeking to use, occupy, lease or rent a dwelling unit in Hazleton with the Federal government pursuant to 8 U.S.C. §1373(c). See §5.B.(3). Additionally, Ordinance 2006-40 contemplates that a Landlord will request and Hazleton will obtain a secondary or additional verification by the federal government under some circumstances. See §7.D.(2).
125. The Federal government currently does not have any system in place to permit Hazleton – or any other municipality – to obtain immigration status
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information about individuals who use, occupy, lease or rent a dwelling unit. Hazleton has not executed a Memorandum of Understanding with the Federal government, or otherwise been granted authority to use or access, the Systematic Alien Verification for Entitlements (SAVE) program or any other Federal government immigration verification system for purposes of verifying the immigration status of renters and occupants of dwelling units. Upon information and belief, the Federal government has not granted any municipality in the country authority to use or access the SAVE program for the purposes that are contemplated by the Revised Immigration Ordinance.
126. Hazleton’s attempt to rely upon Federal government employment eligibility and immigration status verification programs would impose a monetary, administrative and other burdens on the Federal government that do not currently exist and, upon information and belief, such burden would be significant, particularly if other municipalities similarly seek to rely upon such Federal government verification systems.
127. Ordinance 2006-40 purports to acknowledge Hazleton’s deference to the Federal government regarding determinations as to whether a worker is an “illegal alien.” However, Ordinance 2006-40 establishes that the Federal government’s determination creates only a rebuttable presumption. Additionally, the “deference” provision contained in Ordinance 2006-40 is incomplete as it does
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not extend such “deference” to persons other than workers and tenants ignoring, for example, occupants of dwelling units.
128. For many persons, no document or combination of documents can conclusively establish whether or not they are “illegal aliens” as defined by the Revised Immigration Ordinance.
129. If the Revised Immigration Ordinance or the Tenant Registration Ordinance is implemented, some Individual Plaintiffs and members of Plaintiff Organizations will be subject to being barred from employment or housing in Hazleton.
130. The Revised Immigration Ordinance and the Tenant Registration Ordinance violate the Supremacy Clause of the Constitution.
131. As a result of Hazleton’s violation of the Supremacy Clause by enacting the Ordinances, Plaintiffs are entitled to declaratory and injunctive relief.
SECOND CAUSE OF ACTION VIOLATION OF DUE PROCESS 132. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 129 above as though set forth at length herein. 133. The Fourteenth Amendment to the United States Constitution guarantees to Plaintiffs certain fundamental rights, including but not limited to, the right to a hearing prior to the deprivation of substantive rights.
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134. The Revised Immigration Ordinance fails to afford suspected “illegal aliens,” including Individual Plaintiffs and members of Plaintiff Organization who are deemed to be “illegal aliens” under the Ordinance, any due process rights before the Landlord must take action to cease “harboring” the “illegal alien” (that is, refuse the individual access to the dwelling unit), in order for the Landlord to avoid the draconian penalties imposed by the Revised Immigration Ordinance.
135. The Revised Immigration Ordinance contemplates that any purported “illegal alien” will be displaced from the dwelling unit before that individual is given notice of any challenge to his/her immigration status; the opportunity to present documentation in support of the individual’s status as lawfully present in the United States including under no currently effective order to be removed from the United States; or the opportunity to dispute or correct any erroneous or mistaken “verification” by the federal government that the individual is not lawfully present in the United States.
136. The Revised Immigration Ordinance fails to afford Landlords, including Landlord Plaintiffs and members of Plaintiff Organizations that are Landlords, adequate due process rights. The Revised Immigration Ordinance harms Landlord Plaintiffs and members of Plaintiff Organizations that are Landlords by imposing significant sanctions without due process, including:
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(a). the immediate denial or suspension of a rental license for the dwelling unit;
(b). a prohibition on the collection or rent or other compensation from any tenant or occupant in the dwelling unit, for the period of the license suspension;
(c). imposition of a $250.00 fine for day any “harboring” has occurred, for each adult “illegal alien” harbored in the dwelling unit; and
(d). imposition of a $250.00 fine for any second or subsequent violation of the Ordinance by an Owner. 137. The Revised Immigration Ordinance does not afford Landlords any process by which the Landlord can challenge, in advance of the imposition of the penalties for “harboring”: (a) its lack of knowledge about the unlawful status of any individual leasing, renting or occupying the Landlord’s dwelling unit; (b) that the Landlord did not recklessly disregarded facts relating to such individual’s unlawful status; or (c) that the individual’s presence is not violative of any law or removal order. 138. The Revised Immigration Ordinance does not afford Landlords adequate process in advance of the imposition of the penalties under the Revised Immigration Ordinance.
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139. Landlord Plaintiffs and, upon information and belief, members of the Plaintiff Organizations who are landlords are required to obtain and maintain a rental license to operate their businesses in Hazleton. Unless the Revised Immigration Ordinance is permanently enjoined and declared invalid, Plaintiffs are subject to significant monetary fines and loss of their rental licenses, and the denial of the receipt of rents, payments, fees or other compensation due Plaintiffs, all without due process of law.
140. Unless the Revised Immigration Ordinance is permanently enjoined and declared invalid, Individual Plaintiffs and members of Plaintiff Organizations who are permitted by the Federal government to live and/or work in the United States will be denied due process of law.
141. The Revised Immigration Ordinance violates the due process rights of employers because sanctions can be levied even though there has been no finding that an “illegal alien” has been hired. The business license of a business entity may be suspended for a failure to provide requested identity information of a worker following receipt of a request from the Code Office. Such a suspension is mandatory under §4.B.(3) of the Revised Immigration Ordinance and is not dependent upon any finding that an “unlawful worker” has been hired. Ordinance 2006-40 does not forestall a suspension under these circumstances. Ordinance 2006-40 provides that a business entity can toll the suspension period imposed by
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§4.B.(4) if the business entity acquires additional information from the worker and requests a secondary or additional verification of the worker’s status under the Basic Pilot Program. However, Ordinance 2006-40 provides no opportunity for a business entity to challenge or toll a suspension under §4.B.(3) before such suspension takes effect.
142. Sanctions against the business entity can be avoided only if (1) the business entity’s attempt to terminate the worker’s employment is challenged in a Pennsylvania court (but – inexplicably - not if such litigation is brought in the court of any other state) and (2) if the business entity seeks further verification of the worker’s authorization under the Basic Pilot Program (which reverification may subject the business entity to sanctions under applicable Federal statutes).
143. Any purported process provided by Ordinance 2006-40 relating to the determination of an individual’s immigration status is illusory because state and local courts lack the authority to determine such status.
144. The Due Process Rights of Plaintiffs Lozano, Hernandez and Lechuga are violated by the Revised Immigration Ordinance.
145. Because the Revised Immigration Ordinance violates Plaintiffs’ Due Process Rights protected by the Fourteenth Amendment, Plaintiffs are entitled to declaratory and injunctive relief.
THIRD CAUSE OF ACTION VIOLATION OF EQUAL PROTECTION
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146. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 143 above as though set forth at length herein.
147. Under the Revised Immigration Ordinance, enforcement may be initiated by a complaint made to the Code Office submitted by any Hazleton official, business entity or resident. To constitute a “valid complaint,” the complaint must be in a signed writing, and must include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
148. The Revised Immigration Ordinance contains one provision defining an invalid complaint.
A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. (See Section 4 Business Permits, Contracts, or Grants (B)(2) and Section 5 Harboring (B)(2) of the Ordinance). 149. That Revised Immigration Ordinance makes two things clear: 1) a complaint based solely or primarily upon national origin, ethnicity, or race language is not to be considered a valid complaint and 2) a complaint based only in part upon national origin, ethnicity or race is to be considered valid. Thus, national origin, ethnicity and race, since they may constitute evidence of a valid complaint, can serve to trigger an investigation and the resultant punitive procedures set forth in Sections 4 and 5.
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150. The Revised Immigration Ordinance uses race and national origin as an overt classification and violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Equal Protection Clause prohibits the discriminatory use of national origin or race as an express classification in Hazleton’s enforcement of the housing provisions in the Revised Immigration Ordinance.
151. The Revised Immigration Ordinance relies upon a passive enforcement system that has a discriminatory effect and that is motivated by a discriminatory purpose and is unenforceable under the Equal Protection clause.
152. The Revised Immigration Ordinance allows race and national origin to constitute evidence of a violation and thus subjects alleged offending workers or tenants who are not white or native born to a greater likelihood of further investigation and the resultant harsh punitive consequences set forth by the Ordinance.
153. The fact that race and national origin cannot serve as the sole or primary basis of a complaint under the Revised Immigration Ordinance does not eliminate the constitutional infirmity.
154. The Revised Immigration Ordinance violates the equal protection rights of the Individual Plaintiffs and members of Organizational Plaintiffs.
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155. Unless the Revised Immigration Ordinance is permanently enjoined and declared invalid, the equal protection rights of Plaintiffs will be violated.
156. Therefore, Plaintiffs are entitled to declaratory and injunctive relief. FOURTH CAUSE OF ACTION
VIOLATION OF THE FAIR HOUSING ACT 157. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 154 above as though set forth at length herein. 158. The Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq., prohibits discrimination in residential real estate-related transactions. The FHA declares, inter alia, that it is illegal to make housing unavailable “because of race . . . or national origin.” 42 U.S.C. §3604(a). Further, the FHA prohibits, inter alia, discrimination based upon national origin in the “terms, conditions, or privileges or sale or rental of a dwelling, or in the provision of services or facilities in connection therewith.” 42 U.S.C. §3604(b). 159. The FHA prohibits the discriminatory use of national origin or race as an express classification in the enforcement mechanism of the housing provisions contained in the Revised Immigration Ordinance. 160. The Revised Immigration Ordinance and the Tenant Registration Ordinance constitutes discrimination based upon race and national origin and violates the FHA. These Ordinances discriminate against alleged tenant violators
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based upon their race and national origin and thus has the effect of making dwellings unavailable on that basis in violation of the FHA.
161. The Revised Immigration Ordinance discriminates against Plaintiffs John Does 3 and 7 and Jane Doe 5, and members of the Plaintiff Organizations who are tenants, as a result of their national origin in the terms, conditions or privilege of renting a dwelling unit and/or in services or facilities in connection therewith.
162. The Revised Immigration Ordinance violates the FHA. 163. The Revised Immigration Ordinance and Tenant Registration Ordinance discriminates impermissibly based upon race and national origin. 164. As a result, Plaintiffs are entitled to declaratory and injunctive relief.
FIFTH CAUSE OF ACTION VIOLATION OF 42 U.S.C. § 1981 165. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 175 above as though set forth at length herein. 166. The fundamental right to contract and to full and equal benefit of all laws is codified under 42 U.S.C. § 1981, as amended by Section 101 of the Civil Rights Act of 1991. 167. Pursuant to 42 U.S.C. § 1981, “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal
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benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
168. Section 1981 prohibits discrimination under the color of law based on alienage and race.
169. Congress deliberately used “all persons” instead of “citizens” in order to reflect the language of the recently ratified Fourteenth Amendment that extended the guarantee of equal protection under the laws to “any person within the jurisdiction of the United States.”
170. Plaintiffs are entitled to the protections and benefits afforded by Section 1981, including Individual Plaintiffs and members of Plaintiff Organizations who are categorized as “illegal aliens” under the Revised Immigration Ordinance.
171. By enacting the Revised Immigration Ordinance, Hazleton has violated Plaintiffs’ fundamental rights under 42 U.S.C. § 1981.
172. Therefore, Plaintiffs are entitled to declaratory and injunctive relief. SIXTH CAUSE OF ACTION
VIOLATION OF THE HOME RULE CHARTER LAW 173. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 170 above as though set forth at length herein.
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174. Hazleton is a City of the Third Class and has adopted a home rule charter. As a home-rule-charter municipality, Hazleton derives its legislative powers from the Constitution of the Commonwealth of Pennsylvania and 53 Pa. C.S. §§ 2961, et seq. (the “Home Rule Charter Law”). Section 2961 of the Home Rule Charter Law provides:
A municipality which has adopted a home rule charter may exercise powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality. 53 Pa. C.S. § 2961; see also Pa. Const. art. 9, § 2. 175. The municipal powers of Hazleton are not unlimited and Hazleton is restricted to those powers bestowed by the General Assembly. Hazleton is not a sovereign government and it has no original or fundamental power of legislation. Rather, Hazleton has the power to enact ordinances only within the parameters which are established by the General Assembly. 176. The Home Rule Charter Law proscribes municipalities from exercising “powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth.” 53 Pa. C.S. § 2962(c)(2).
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177. The General Assembly has circumscribed the ability of a home-rulecharter municipality, such as Hazleton, to regulate business and employment. The Home Rule Charter Law states in pertinent part:
[a] municipality which adopts a home rule charter shall not determine the duties, responsibilities or requirements placed upon businesses, occupations and employers. . . except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities. 53 Pa.C.S. § 2962(f) (emphasis added). 178. Alternatively, in the event that Hazleton claims that it is not a Home Rule Charter municipality, Hazleton’s ability to enact ordinances is even more circumscribed. A non-Home Rule Charter municipality only has those powers expressly granted to it by the Commonwealth. 179. Through the enactment of §4.E. of the Revised Immigration Ordinance, Hazleton attempts to impose duties and responsibilities on businesses, occupations and employers in direct violation of the Home Rule Charter Law. Moreover, Pennsylvania law does not expressly empower non-Home Rule Charter municipalities to impose duties and responsibilities on businesses such as those provided in §4.E. 180. The Revised Immigration Ordinance requires the Code Office to suspend the business permit of any business if the Code Office determines the
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business recruited, hired for employment, continued to employ, dispatched or instructed an “unlawful worker” to perform work in whole or in part within Hazleton. See § 4.A. and § 4.B.(4).
181. Clearly, shuttering an entire firm for violating the Revised Immigration Ordinance imposes duties, responsibilities or requirements on businesses and employers which duties, responsibilities or requirements do not otherwise exist under Federal or state law. Therefore, the Revised Immigration Ordinance exceeds Hazleton’s powers under the Home Rule Charter Law (or other law governing non-Home Rule Charter municipalities) and cannot stand.
182. Further, and regardless of the legislative wisdom (or lack thereof) in closing an entire firm for hiring a single “unlawful worker,” it is undeniable that such an enforcement action would cause other workers to lose pay and potentially their jobs. The magnitude of this grossly punitive penalty is wholly unrelated to the public policy underlying the Revised Immigration Ordinance and thus Hazleton overstepped the legitimate exercise of its municipal powers in enacting the Revised Immigration Ordinance.
183. The Revised Immigration Ordinance impermissibly creates a heretofore nonexistent cause of action in favor of an “unfairly discharged employee” against the business entity. §4.E. empowers an “unfairly discharged employee” to sue the business entity in the Hazleton municipal court for the
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“unfair business practice.” § 4.E.(2). The Revised Immigration Ordinance further authorizes the “unfairly discharged employee” to recover actual damages, including three times the employee’s lost wages for a 120-day period and to recover attorneys’ fees and costs.
184. By creating a private cause of action in favor of “unfairly discharged employees,” §4.E. enlarges the rights of employees and the responsibilities of employers. Pennsylvania common law has long recognized the “at-will” status of employees. Section 4.E. attempts to alter that state-wide rule with respect to businesses operating — in whole or in part — in Hazleton by allowing employees of to sue for discharge on facts that are otherwise not actionable. Similarly, §4.E. allows for the recovery of treble damages for a discharged employee, creating a substantive right that does not exist under Pennsylvania law. Finally, §4.E. alters the “American rule” by allowing the discharged employee to recover attorneys’ fees, regardless of whether he/she prevails on the underlying claims.
185. Because §4.E. improperly attempts to impose otherwise non-existent duties upon employers by creating a cause of action, allowing recovery of treble damages and allowing the recovery of attorneys’ fees, the Revised Immigration Ordinance clearly constitutes an ultra vires act in the imposition of duties on business or employers in violation of the authority granted to Hazleton by the
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Home Rule Charter Law (or other law governing non-Home Rule Charter municipalities) and must be declared void.
186. Under the Revised Immigration Ordinance, Landlord Plaintiffs, Plaintiffs Lechuga and members of Plaintiff Organizations would be subject to the duties, responsibilities or requirements imposed on businesses, occupations and employers under the Ordinance.
187. Because the Revised Immigration Ordinance violates the Home Rule Charter Law, Plaintiffs are entitled to declaratory and injunctive relief.
SEVENTH CAUSE OF ACTION VIOLATION OF THE LANDLORD AND TENANT ACT 188. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 184 above as though set forth at length herein. 189. The Commonwealth has explicitly claimed state-wide authority over landlord and tenant issues by virtue of its enactment of the Landlord and Tenant Act of 1951, 68 P.S. §§ 250.101, et seq. (“L/T Act”). The L/T Act is the sole source of rights, remedies and procedures governing the landlord/tenant relationship and states in pertinent part:
[A]ll other acts a parts of acts, general, local and special, inconsistent with or supplied by this act, are hereby repealed. It is intended that this act shall furnish a complete and exclusive system in itself. 68 P.S. § 250.602 (emphasis added).
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190. Hazleton may not adopt local ordinances that are incompatible and/or inconsistent with the requirements of the L/T Act. Hazleton has no lawful authority to alter or supplement the L/T Act.
191. The Tenant Registration Ordinance prohibits an Owner from permitting occupancy of a Rental Unit by any Occupant, unless each Occupant has obtained an occupancy permit from Hazleton.
192. If an Occupant who does not have an occupancy permit to occupy the Rental Unit, the Owner is liable for sanctions under the Ordinance, unless the Owner takes reasonable steps to remove the unauthorized person from the Rental Unit within ten (10) days of learning of the unregistered occupancy. If the Owner fails to remove any person lacking an occupancy permit, the Owner is liable for significant monetary sanctions under the Tenant Registration Ordinance, including a $1,000 fine for each unregistered occupant and $100 per day fine for each unregistered occupant.
193. To avoid the imposition of sanctions under the Tenant Registration Ordinance, an Owner must evict any unregistered occupant within 10 days after of learning of the unregistered occupancy. The eviction of an unregistered occupant within this compressed timeframe would cause the Owner to violate the provisions of the L/T Act that mandate minimum timeframes for eviction proceedings,
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including the notice required under Section 250.501; the time limits for notice under Section 250.501; the time limits for removal under Sections 250.502 and 250.503; and tenant’s rights under Section 250.503-A. If the Owner complied with Tenant Registration Ordinance’s 10-day time limitation, the Owner would be subject to penalties for violation of the L/T Act. Because of this actual, direct, material and irreconcilable conflict between the Tenant Registration Ordinance and the state-wide statutes governing landlord/tenant matters, the Tenant Registration Ordinance clearly exceeds Hazleton’s powers under the Home Rule Charter Law and is preempted by the L/T Act.
194. The Tenant Registration Ordinance also conflicts with the L/T Act in another way. Under Section 10.b. of the Tenant Registration Ordinance, Occupants who allow additional occupancy in a Rental Unit without first obtaining the written permission of the landlord, and without requiring that any additional occupant obtain his or her own permit, are in violation of that Ordinance. However, under Section 250.504-A of the L/T Act, tenants have a right to invite social guests, family members or visitors into the Rental Unit for a reasonable period of time, as long as the tenant’s obligations as a tenant under the L/T Act are observed.
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195. Hazleton’s attempt to eliminate a tenant’s rights to have visitors for a reasonable period of time by imposing an occupancy permit requirement directly and materially conflicts with the L/T Act. Accordingly, the Tenant Registration Ordinance is preempted by the L/T Act and exceeds Hazleton’s powers under the Home Rule Charter Law.
196. Plaintiffs John Does 1, 3 and 7 and Plaintiff Jane Doe 5 are tenants in Hazleton and are entitled to the protections afforded by the L/T Act. Landlord Plaintiffs are subject to sanctions under the Tenant Registration Ordinance if they obey the L/T Act, and sanction under the L/T Act if they comply with the Tenant Registration Ordinance.
197. Hazleton lacks the lawful authority to mandate that a person’s immigration status may constitutes a breach and forfeiture of a lease under 68 P.S. § 250.101.
198. Because the Tenant Registration Ordinance violates the L/T Act, Plaintiffs are entitled to declaratory and injunctive relief.
EIGHTH CAUSE OF ACTION VIOLATION OF PLAINTIFFS’ PRIVACY RIGHTS 199. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 193 above as though set forth at length herein.
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200. The U.S. Constitution protects certain zones of privacy and Plaintiffs are legally entitled to the protection of these privacy rights.
201. Article I, Section 8 of the Pennsylvania Constitution provides: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
202. The Pennsylvania Constitutional guarantee protects an individual’s privacy.
203. The Revised Immigration Ordinance and the Tenant Registration Ordinance violate Plaintiff’s right to privacy as protected by the U.S. Constitution and the Constitution of the Commonwealth of Pennsylvania.
204. Under §7.D. of the Revised Immigration Ordinance, to avoid sanctions, a Landlord is compelled to issue a notice to quit the premises to the tenant or demand identity information from any occupant of the dwelling unit who is alleged to be an “illegal alien.” Upon information and belief, Landlords will require the disclosure of personal information such as an occupant’s full name, work telephone number and cellular telephone number. Upon information and belief, Landlords will demand occupants to disclose confidential and personal documents such as birth certificates; passports; documents issued to the individual by the federal government, such as “green cards”; resident alien cards; and
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naturalization documents. Upon information and belief, these documents contain highly personal and confidential information such as an individual’s date and place of birth, alien number, country of origin, date of entry into the U.S. and, in some cases, the persons’ victimization background, asylum or refugee status.
205. The Individual Plaintiffs and occupants within their residences and members of the Plaintiff Organizations have a reasonable expectation of confidentiality and privacy in and non-disclosure of their private and confidential information.
206. Plaintiffs Jane Doe 5 and Plaintiffs John Does 1, 3 and 7 are adult tenants and residents in the City of Hazleton. Plaintiffs Jane Doe 5 and Plaintiffs John Does 1, 3 and 7 have a privacy interest in whom they choose to associate with and the familial relationships they may or may not have.
207. The Revised Immigration Ordinance contains no safeguards to ensure the information gathered by Hazleton remains private and confidential. The Revised Immigration Ordinance does not mandate penalties in the event of inappropriate use or disclosure of private and confidential information.
208. Because Plaintiffs’ Right to Privacy as guaranteed by the U.S. Constitution and the Constitution of the Commonwealth of Pennsylvania will be violated if Landlords are required to demand private and confidential information and documents from occupants of the dwelling unit in order for the Landlord to
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avoid sanctions under the Revised Immigration Ordinance, the Revised Immigration Ordinance must be declared to be invalid. To secure an occupancy permit under the Registration Ordinance, Hazleton compels prospective tenants to disclose personal information such as an occupant’s full name, address, home telephone number, work telephone number and cellular telephone number. Additionally, such prospective tenants are obligated to disclose confidential and personal documents such as birth certificates, passports; documents issued to the individual by the federal government, such as “green cards” resident alien cards and naturalization documents. Upon information and belief, these documents contain highly personal and confidential information such as and individual’s date and place of birth, alien number, country of origin and date of entry into the U.S.
209. Under the Tenant Registration Ordinance, to obtain an occupancy permit, prospective tenants must disclose the information stated above in paragraph 213 for each Occupant with whom the contracting tenant chooses to reside.
210. The Individual Plaintiffs, the members of the Plaintiff Organizations and Plaintiff Landlords have a reasonable expectation of confidentiality and privacy in and non-disclosure of their private and confidential information.
211. The right to move from one residence to another is a constitutionally protected liberty. Compliance with the Registration Ordinance will force the
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Individual Plaintiffs and the members of the Plaintiff Organizations to surrender their Federal and state privacy rights in order to exercise a constitutionally protected liberty.
212. It is completely incongruous that the Revised Immigration Ordinance continues to impose any identity requirement on a tenant or an occupant of a dwelling unit after Hazleton completely abandoned such a concept in the Property Registration Ordinance, after Plaintiffs filed their First Amended Complaint challenging the previously enacted Tenant Registration Ordinance, which ordinance imposes identity requirements on tenants and occupants.
213. As a result of the violations of Plaintiff’s Right to Privacy, Plaintiffs are entitled to declaratory and injunctive relief.
NINTH CAUSE OF ACTION VIOLATION OF LEGITIMATE POLICE POWERS 214. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 205 above as though set forth at length herein. 215. In the exercise of the police power for the purpose of preserving the public health, safety and morals, a legislative body may limit the enjoyment of personal liberty and property, subject to constitutional limitations and judicial review. 216. The Constitution of the Commonwealth of Pennsylvania places well established limitations on the exercise of the police power; namely, it must not be
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unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.
217. Hazleton, in exercise of its police power, may not exceed constitutional limitations in defining what constitutes a nuisance.
218. To validly exercise police power, Hazleton is required to affirmatively establish the actual existence of a nuisance. Hazleton is not relieved of its obligation to establish the actual existence of a nuisance by simply declaring its existence.
219. The Revised Immigration Ordinance anticipates that Hazleton will obtain verification of a tenant’s and residential dwelling occupant’s immigration status from the Federal government. However, the Federal government currently has no verification program or database that can be accessed upon request by Hazleton – or any other municipality – to verify the immigration status of tenants and occupants under the circumstances anticipated by the Revised Immigration Ordinance. Thus, the Revised Immigration Ordinance is predicated on a Federal government verification system that does not exist, resulting in an absurdity that cannot be sanctioned by the Court.
220. Prior to enacting the Immigration Ordinance, Hazleton conducted no analysis of the criminal, fiscal, cultural or other challenges facing Hazleton in
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order to determine if (a) any actual problem existed and (b) what measures were necessary to abate any such problems. Rather, the Revised Immigration Ordinance including its boilerplate “Findings and Declaration of Purpose,” are a virtual carbon copy of a similar ordinance originally introduced (but not adopted) in San Bernardino, California.
221. Indeed, Mayor Barletta has publicly admitted on several occasions that he does not have any statistics or solid evidence to back up his claim that “illegal aliens” have contributed significantly to any real or perceived problems in Hazleton, including an increase in the crime rate. Furthermore, the Mayor has acknowledged that he does not know how many undocumented individuals live, work, or go to school in Hazleton.
222. One of Hazleton’s stated purposes in enacting the Ordinance was to abate the increased crime rate brought about by “illegal immigration.” Nevertheless, statistics show a reduction in the number of total arrests in Hazleton over the last five years, due in large part to a reduction in the number of more serious crimes in Hazleton since 2000.
223. Prior to the adoption of the Immigration Ordinance, Hazleton City Council was not presented with any increase in arrest or criminal statistics or data by reason of “illegal aliens” residing in Hazleton.
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224. The Revised Immigration Ordinance declares that illegal immigration subjects Hazelton’s hospitals to fiscal hardship.
225. However, Hazleton does not either own or operate a hospital or other urgent care facility.
226. Prior to the adoption of the Immigration Ordinance, Hazleton City Council was not presented with any statistics or data showing any increase in medical care costs impacting Hazleton’s budget by reason of “illegal aliens” residing in Hazleton.
227. Prior to the adoption of the Immigration Ordinance, Hazleton City Council was not presented with any statistics or data showing any increase in costs caused by “illegal aliens” on school budgets that are funded by Hazleton.
228. The citizens of Hazleton, including landlords, tenants and employers, were not given proper advance notice of Hazleton’s intent to adopt the Revised Immigration Ordinance. Hazleton did not make any press release, post any Internet notice or otherwise communicate a description of the amendments proposed in Ordinance 2006-40 or the fact that the Ordinance was adopted.
229. In its rush to adopt the provisions contained in the Revised Immigration Ordinance, Hazleton failed to follow its own historic processes when considering, evaluating and adopting that Ordinance.
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230. The provisions of the Immigration Ordinance and Ordinance 2006-40 are illogical and internally inconsistent, resulting in an unreasonable Ordinance that is wholly outside of the proper exercise of Hazleton’s police powers.
231. The measures imposed by the Revised Immigration Ordinance are unreasonable, unduly oppressive and patently beyond the necessities of the case.
232. The Code Office consists of two full time enforcement officers and one office assistant. The code enforcement officers are charged with, among other things, inspections for zoning code compliance, building permits and parking enforcement.
233. The employees of the Code Office have had no training whatsoever in the operation of the Basic Pilot Program, SAVE or any other Federal government immigration status verification system.
234. The employees of the Code Office have had no practical experience reviewing immigration status documents.
235. Upon information and belief, the employees of the Code office were not afforded any input into the drafting, implementation or operation of the Prior Ordinance, the Immigration Ordinance, the Tenant Registration Ordinance, the Property Registration Ordinance or Ordinance 2006-40. As of the time of the taking of their depositions in this action, neither code enforcement officer had been provided copies of any of the ordinances, neither had read the ordinances and
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neither had received any instruction, training or direction on how to enforce the ordinances.
236. Because the Revised Immigration Ordinance and the Tenant Registration Ordinance has done nothing to remedy the financial expenditures and resource burdens allegedly borne by Hazleton, but rather has added to such difficulties, the Revised Immigration Ordinance is an abuse of Hazleton’s police powers.
237. As a result, Plaintiffs are entitled to declaratory and injunctive relief. For all the foregoing reasons, Plaintiffs are entitled to relief under each and every one of the causes of action asserted herein.
PRAYER FOR RELIEF WHEREFORE, in light of the foregoing, Plaintiffs respectfully request the following: (a) a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 and 42
U.S.C. §§ 1981 and 1983 declaring the Revised Immigration Ordinance and Tenant Registration Ordinance void because they violate the Supremacy Clause, the Due Process and Equal Protection Clauses of Fourteenth Amendment of the Constitution of the United States, violates the fundamental rights conferred by 42 U.S.C. § 1981 and the Fair Housing Act, 42 U.S.C. §§ 3601 et seq.; violates privacy rights conferred by the U.S. and Pennsylvania Constitutions; and violates Pennsylvania’s
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Home Rule Charter Law, 53 Pa.C.S §§ 2961, et seq. and Landlord and Tenant Act, 68 P.S. §§ 250.101 et seq. (b) an injunction pursuant to Fed. R. Civ. P. 65 prohibiting Hazleton and its agents from implementing or enforcing the Revised Immigration Ordinance and the Tenant Registration Ordinance; (c) an order awarding Plaintiffs the costs incurred in this litigation, including attorneys’ fees pursuant to 42 U.S.C. § 1988; and
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(d) such other relief as the Court deems just and proper.
Respectfully submitted,
By: /s/ Thomas G. Wilkinson, Jr.
Thomas G. Wilkinson, Jr. Linda S. Kaiser Doreen Yatko Trujillo Thomas B. Fiddler Elena Park Ilan Rosenberg COZEN O’CONNOR 1900 Market Street Philadelphia, PA 19103 Tel. (215) 665-2000 Fax: (215) 665-2013
Lillian Llambelis Foster Maer Jackson Chin PUERTO RICAN LEGAL DEFENSE FUND 99 Hudson St. 14 Floor New York, NY 10013-2815 Tel. (212) 739-7575 Fax: (212)431-4276
George R. Barron 88 North Franklin Street Wilkes-Barre, Pennsylvania 18701 Tel. (570) 824-3088 Fax: (570) 825-6675
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David Vaida 137 North 5th Street Allentown, PA 18102 Tel. (610) 433-1800 Fax: (610) 433-2985
Lee Gelernt Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 125 Broad St., 18th Fl. New York, NY 10004 Tel. (212) 549-2620 Fax: (212) 549-2654 Lucas Guttentag Jennifer C. Chang AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950
Witold J. Walczak AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 Tel. (412) 681-7864 Fax: (412) 681-8707
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Paula Knudsen AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 105 N. Front St., Suite 225 Harrisburg, PA 17101 Tel. (717) 236-6827 Fax: (717) 236-6895
Mary Catherine Roper AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 Tel. (215) 592-1513 ext. 116
Counsel for Plaintiffs
Shamaine Daniels Laurence E. Norton, II Peter Zurflieh COMMUNITY JUSTICE PROJECT 118 Locust Street Harrisburg, PA 17101 Tel. (717) 236-9486 Fax: (717) 233-4088
Counsel for Plaintiffs Rosa Lechuga, Jose Luis Lechuga, John Doe 3, John Doe 7, Jane Doe 5 and Casa Dominicana of Hazleton, Inc.
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 Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 1 of 126

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

____________________________________

:

PEDRO LOZANO, ET AL.

: CIVIL ACTION

:

: NO. 3:06-cv-01586-JMM

:

: (Hon. James M. Munley)

Plaintiffs,

:

:

v.

:

:

CITY OF HAZLETON,

:

:

Defendant.

:

____________________________________:

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO HAZLETON’S MOTION TO DISMISS AND
CROSS MOTION FOR SUMMARY JUDGMENT

Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 2 of 126
Table of Contents
Page
I. INTRODUCTION AND PROCEDURAL HISTORY................................... 1
II. STATEMENT OF FACTS ............................................................................. 3
III. STANDARD OF REVIEW ............................................................................ 3
IV. QUESTIONS PRESENTED........................................................................... 5
A. Have Plaintiffs stated a claim that the Revised Immigration and Tenant Registration Ordinances violate the Supremacy Clause? Do the Revised Immigration and Tenant Registration Ordinances violate the Supremacy Clause?............................................................. 5
B. Have Plaintiffs stated a claim that the Revised Immigration Ordinance violate Plaintiffs’ Procedural Due Process rights? Does the Revised Immigration Ordinance violate Plaintiffs’ Procedural Due Process rights?............................................................................... 5
C. Have Plaintiffs stated a claim that the Revised Immigration Ordinance violate Plaintiffs’ Equal Protection rights? Does the Revised Immigration Ordinance violate Plaintiffs’ Equal Protection rights? .................................................................................. 5
D. Have Plaintiffs stated a claim that the Revised Immigration and Tenant Registration Ordinances violate the Fair Housing Act? Do the Revised Immigration and Tenant Registration Ordinances violate the Fair Housing Act? ............................................................... 5
E. Have Plaintiffs stated a claim that the Revised Immigration Ordinance violate 42 U.S.C. §1981? Does the Revised Immigration Ordinance violate 42 U.S.C. §1981? ............................... 5
F. Have Plaintiffs stated a claim that the Revised Immigration and Tenant Registration Ordinances violate Plaintiffs’ privacy rights under the United States and Pennsylvania Constitution? Do the Revised Immigration and Tenant Registration Ordinances violate Plaintiffs’ privacy rights under the United States and Pennsylvania Constitution?......................................................................................... 5
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G. Have Plaintiffs stated a claim that the Revised Immigration Ordinance violates the Pennsylvania Home Rule Charter Law? Does the Revised Immigration Ordinance violates the Pennsylvania Home Rule Charter Law?............................................... 6
H. Have Plaintiffs stated a claim that the Tenant Registration Ordinance violates the Pennsylvania Landlord and Tenant Act? Does the Tenant Registration Ordinance violate the Pennsylvania Landlord and Tenant Act? .................................................................... 6
I. Have Plaintiffs stated a claim that the Revised Immigration and Tenant Registration Ordinances exceed Hazleton’s legitimate police powers? Do the Revised Immigration and Tenant Registration Ordinances exceed Hazleton’s legitimate police powers? ................................................................................................. 6
J. Do the Plaintiffs possess standing to invoke the jurisdiction of this Court?.................................................................................................... 6
K. May the certain unnamed undocumented Plaintiffs proceed anonymously in this action? ................................................................. 6
V. LEGAL ARGUMENT .................................................................................... 7
A. The Ordinances Are Preempted By Federal Immigration Law And Encroach On Exclusive Federal Authority To Regulate Immigration .......................................................................................... 7
1. Framework of Supremacy Clause Analysis ............................... 7
2. The Ordinances are Field Preempted ....................................... 26
3. The Ordinances Impermissibly Regulate Immigration. ........... 32
B. The Revised Immigration Ordinance Violates Fourteenth Amendment Procedural Due Process Guarantee................................ 37
1. The Law Regarding Procedural Due Process Claims is Well Established................................................................................ 38
2. Section 4 of the Revised Immigration Ordinance Interferes with Liberty and Property Interests of both Employers and their Employees. ....................................................................... 40
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3. Section 5 of the Revised Immigration Ordinance Implicates Landlords’ and Tenants’ Property Interests. ............................ 41
4. Hazleton’s Argument that Plaintiffs have no Protectable Liberty or Property Interest in Employment or Housing Stands Procedural Due Process Law on its Head..................... 43
5. Hazleton’s Purported Procedural Due Process is Deficient Because the so-called Administrative Protections attend an as-yet Undefined and Unapproved Verification Process and the Judicial Protections send Aggrieved Parties to Tribunals with no Legal Authority to Resolve the Dispute...................... 45
C. The Revised Immigration Ordinance Uses Impermissible Classifications In Violation Of The Equal Protection Clause............ 49
1. The Ordinance Expressly Permits Hazleton To Use Racial Classifications As Evidence Of A Violation............................ 50
2. The Equal Protection Clause Prohibits the Use of Race as Evidence of a Violation............................................................ 53
D. The Ordinances Violate The Fair Housing Act .................................. 57
E. The Ordinances Volate 42 U.S.C.§ 1981 Prohibition Against Alienage Discrimination..................................................................... 60
F. Hazleton Exceeded Its Municipal Powers And Home Rule Charter In Enacting The Revised Immigration Ordinance.............................. 63
G. The Revised Immigration And Tenant Registration Ordinances Violate Pennsylvania’s Landlord/Tenant Act..................................... 66
H. The Ordinances Violate Guarantees Of Privacy................................. 70
1. The Tenant Registration Ordinance Violates Plaintiffs’ Privacy Rights. ......................................................................... 71
2. The Revised Immigration Ordinance Violates Federal Guarantees Of Privacy.............................................................. 74
3. The Ordinances Violate State Guarantees Of Privacy ............. 76
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I. Plaintiffs Have Stated A Claim For A Violation Of Legitimate Police Powers...................................................................................... 79
J. Plaintiffs Have Standing To Maintain This Action............................ 83 1. Plaintiffs Have Standing to Claim that the Ordinances are Preempted by Federal Immigration Laws and Regulations. .... 85 2. Plaintiff Businesses and Landlords Have Standing. ................ 87 3. Plaintiff Tenants and Employees Have Standing..................... 89 4. Plaintiffs Have Standing to Claims that the Ordinances Violate Equal Protection and the Fair Housing Act................. 93 5. Organizational Plaintiffs Have Standing.................................. 95
K. All Anonymous (John And Jane Doe) Plaintiffs May Proceed Anonymously In This Action ............................................................. 97
VI. CONCLUSION ........................................................................................... 101
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 6 of 126
Table of Authorities Cases Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995) ......................................................................................53-54 Alvin v. Suzuki,
227 F.3d 107 (3d Cir. 2000)............................................................................... 38 American Ins. Assoc. v. Garamendi,
539 U.S. 396 (2003) ...................................................................................... 8, 23 Anderson v. Conboy,
156 F.3d 167 (2d Cir. 1988) .............................................................................. 62 Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ............................................................................................. 4 Ansoumana v. Gristede’s Oper. Corp.,
No. 00 Civ. 0253 (S.D.N.Y. Nov. 8, 2000)........................................................ 97 Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ............................................................................................. 87 Bacchus Imports, Ltd. v. Dias,
468 U.S. 263 (1984) ........................................................................................... 88 Baltazar-Alcazar v. INS,
386 F.3d 940 (9th Cir. 2004) ............................................................................. 27 Bartnicki v. Vopper,
200 F.3d 109 (3d Cir. 1999), aff’d, 532 U.S. 514 ( 2001) ................................. 71 Bennett v. Spear,
520 U.S. 154 (U.S. 1997) .................................................................................. 76 Bevles Co., Inc. v. Teamsters Local 986,
791 F.2d 1391, 1394 (9th Cir. 1986)................................................................... 10
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 7 of 126
Bloomsburg Landlords, Assoc., Inc. v. Town Of Bloomsburg, 912 F. Supp. 790 (E.D. Pa 1995) ....................................................................... 67
Board of Regents v. Roth, 408 U.S. 564 (1972) .................................................................................... 39, 41
Bowman v. Wilson, 672 F.2d 1145 (3d Cir. 1982) ............................................................................ 85
Bradley v. United States, 299 F.3d 197 (3d Cir. 2002)............................................................................... 56
Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) .............................................. 55
Brown v. Oneonta, 221 F3d. 329 (2nd Cir.) ....................................................................................... 56
California Fed. Sav. & Loan Assoc. v. Guerra, 479 U.S. 272 (1987) ........................................................................................... 86
Carey v. Piphus, 435 U.S. 247 (1978) ........................................................................................... 38
Castro-O’Ryan v. INS, 847 F.2d 1307 (9th Cir. 1988)............................................................................ 36
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................................. 4
Centeno-Bernuy v. Perry, 219 F.R.D. 59 (W.D.N.Y. 2003) ....................................................................... 92
Chellen v. John Pickle Co., Inc., 344 F.Supp.2d 1278 (N.D. Okla. 2004) ...................................................... 62, 92
Christopher v. Nestlerode, 373 F.Supp.2d 503 (M.D.Pa. 2005) ................................................................... 56
Chy Lung v. Freeman, 92 U.S. 275 (1876) ........................................................................................ 8, 35
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 8 of 126
City of Chicago v. Shalala, 1999 WL 33632748 (Feb. 2000) at 13 n.7......................................................... 34
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ........................................................................................... 49
Clark v. Martinez, 543 U.S. 371 (2005) ........................................................................................... 11
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) .................................................................................... 39, 40
College Savings Bank v. Florida Prepaid Postsecondary Educ. Exp. Bd., 131 F.3d 353 (3d Cir. 1997), aff’d, 527 U.S. 666 (1999) ................................. 41
Commonwealth v. Blystone, 549 A.2d 81 (Pa. 1988) ...................................................................................... 77
Commonwealth v. Creighton, 639 A.2d 1296 (Pa. Commw. Ct. 1994) ........................................................... 81
Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979) .................................................................................. 77
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) .................................................................................... 77
Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989) .................................................................................. 77
Commonwealth v. Miller, 518 A.2d 1187 (Pa. 1987) .................................................................................. 77
Commonwealth v. Platou, 312 A.2d 29 (Pa. 1973), cert. den. 417 U.S. 976 (1974) ................................... 77
Commonwealth v. Sell, 470 A.2d 457 (Pa. 1983) .................................................................................... 77
Community Services, Inc. v. Wind Gap Municipal Authority, 421 F.3d 170 (3d Cir. 2005) ............................................................................. 59
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 9 of 126
Conn v. Gabbert, 526 U.S. 286 (1999) .......................................................................................... 40
Connecticut v. Doehr, 501 U.S. 1 (1991) .............................................................................................. 42
Cooley v. Pennsylvania Housing Fin. Agency, 830 F.2d 469 (3d Cir. 1987)............................................................................... 43
Council of Middletown Township v. Benham, 523 A.2d 311 (Pa. 1986) .................................................................................... 68
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) .......................................................................................... 23
Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286 (3d Cir 2005) ............................................................................... 85
De Canas v. Bica, 424 U.S. 351 (1976) ....................................................................................Passim
De La Rosa v. Northern Harvest Furniture, 210 F.R.D. 237 (C.D. Ill. 2002) ........................................................................ 93
Demko v. Luzerne Co. Comm. College, 13 F. Supp. 2d 722 (M.D. Pa. 2000) .................................................................. 43
Dennison v. Pennsylvania Dept. of Corrections, 28 F.Supp.2d 387 (M.D.Pa. 2003) .................................................................... 42
Dept. of Pub. Safety v. Doe, 538 U.S. 1 (2003) .............................................................................................. 43
Doe v. Bell Atl. Bus. Sys. Serv., Inc., 162 F.R.D. 418 (D. Mass. 1995) ....................................................................... 98
Doe v. Deschamps, 64 F.R.D. 652 (D. Mont. 1974).......................................................................... 98
Doe v. Evans, 202 F.R.D. 173 (E.D. Pa. 2001) ......................................................................... 97
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 10 of 126
Doe v. Hodgson, 344 F. Supp. 964 (S.D.N.Y. 1972), aff’d, 478 F.2d 537 (2d Cir. 1973) ........... 98
Doe v. Martin, 404 F. Supp. 753 (D.C. 1975) ........................................................................... 98
Doe v. Matthews, 420 F. Supp. 865 (D.N.J. 1976) ....................................................................... 98
Doe v. Rostker, 89 F.R.D. 158 (N.D. Cal. 1981) ......................................................................... 99
Doe v. Smith, 189 F.R.D. 239 (E.D.N.Y. 1998) ....................................................................... 98
Doe v. State of Alaska, 122 F.3d 1070 (9th Cir.1997) ............................................................................ 98
Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981) ............................................................................. 99
Dotson v. Bravo, 321 F.3d 663 (7th Cir. 2003) ........................................................................... 100
Drax v. Reno, 338 F.3d 98 (2d Cir. 2003) ................................................................................ 36
E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997), cert. denied, 522 U.S. 1109............................... 39
EEOC v. Tortilleria “La Mejor,” 758 F. Supp. 585 (E.D. Cal. 1991).................................................................... 62
Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105 (3d Cir. 1987)..........................................................................71-72
Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000) ........................................................................................... 84
Friendship Medical Ctr, Ltd. v. Chicago Bd. of Health, 505 F.2d 1141 (7th Cir. 1974), cert. den., 420 U.S. 997 ................................... 89
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 11 of 126
Fultz v. Gilliam, 942 F.2d 396 (6th Cir. 1991).............................................................................. 71
Gambone v. Commonwealth, 101 A.2d 634 (Pa. 1954) .................................................................................... 81
Garrett v. City of Escondid, ___ F.Supp. 2d ____, 2006 WL 3613703 (S.D. Cal. Nov. 20, 2006................. 23
Geier v. American Honda Motor Co., 529 U.S. 861 (2000) .......................................................................................... 32
Genkinger v. City of New Castle, 84 A.2d 303 (Pa. 1951) .................................................................................64-66
Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983).........................................................................28-29
Graham v. Richardson, 403 U.S. 365 (1971) ...................................................................................7-8, 34
Greene v. Lindsey, 456 U.S. 444 (1982) ......................................................................................42-43
Greene v. McElroy, 360 U.S. 474 (1959) ........................................................................................... 40
Hacket v. McGuire Bros., Inc., 445 F. 2d 442 (3d Cir. 1971).............................................................................. 94
Hartman v. City of Allentown, 880 A.2d 737 (Pa. Commw. Ct. 2005)..........................................................67-68
Havens Realty Corp v. Coleman, 455 U.S. 363 (1982) .......................................................................................... 96
Heights Community Congress et al., v. Rosenblatt Realty, Inc., 73 F.R.D. 1 (N.D. OH 1975).............................................................................. 94
Henderson v. Mayor of New York, 92 U.S. 259 (1876) .............................................................................................. 8
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 12 of 126
Hines v. Davidowitz, 312 U.S. 52 (1941) ......................................................................................Passim
Hishon v. King & Spaulding, 467 U.S. 69 (1984) .............................................................................................. 4
Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107 (3d Cir. 1994)................................................................................... 4
Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977) ........................................................................................... 96
In re Nomination Petition of Joseph Digiorlamo for Mayor, No. 0501736-31, slip. op. (Bucks County, Apr. 6, 2005)............................ 64, 68
In re Reyes, 814 F.2d 168 (5th Cir. 1987) ............................................................................. 92
In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198 (3d Cir. 2002)................................................................................. 4
INS v. Legalization Assistance Project of the L.A. County Fed’n of Labor, 510 U.S. 1301 (1993) ........................................................................................ 87
John Doe I, et al. v. Village of Mamaroneck, --- F.Supp.2d ---, 2006 WL 3393247 (S.D.N.Y. 2006) ..................................... 98
Johnson v. California, 543 U.S. 499 (2005) ................................................................................53-54, 56
Kamara v. Attorney General of U.S., 420 F.3d 202 (3d Cir. 2005) .............................................................................. 44
Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454 (1989) .......................................................................................... 38
Kline v. City of Harrisburg, 68 A.2d 182 (Pa. 1949) ...................................................................................... 64
Langford v. City of Atlantic City, 235 F.3d 845 (3d Cir. 2000) ................................................................................ 3
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 13 of 126
League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995) .............................................................. 16, 35
Lenair v. Campbell, 31 Pa. D. & C.3d 237 (Phila. County 1984) ...................................................... 67
Liu v. Donna Karan, Int’l, 207 F.Supp.2d 191 (S.D.N.Y. 2002) ........................................................... 92, 97
Lomack v. City of Newark, 463 F.3d 303 (3d Cir. 2006) .............................................................................. 53
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................................... 84-87-89
Lutz v. Armour, 151 A.2d 108 (Pa. 1959) .................................................................................... 81
Mahony v. Township of Hampton, 651 A.2d 525 (Pa. 1995) .................................................................................... 81
Marcano v. Lombardi, 2005 WL 3500063 (D.N.J. 2005)..................................................................... 100
Martinez v. Mecca Farms, Inc., 213 F.R.D. 601 (S.D. Fla. 2002) ....................................................................... 92
Mathews v. Diaz, 426 U.S. 67 (1976) ............................................................................................ 91
Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................................... 39, 45, 48
Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972) ........................................................................... 58
McCartney v. Meadow View Manor, Inc., 508 A.2d 1254 (Pa. Super. 1986)....................................................................... 65
Meese v. Keene, 481 U.S. 465 (1987) ........................................................................................... 88
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 14 of 126
Mir v. Federal Bureau of Prisons, OCAHO Case No. 92B00225, 1993 WL 604446, (OCAHO April 20, 1993)................................................................................... 22
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) ........................................................................................... 45
Nixon v. Commonwealth, 839 A.2d 277 (Pa. 2003) .................................................................................... 40
Northeastern Fla. Chapter of the Associated Gen. Contractors of America v. City of Jacksonville, Fla., 508 U.S. 656 (1993) ........................................................................................... 93
Parker v. Hough, 215 A.2d 667 (Pa. 1966) ................................................................................... 42
Pennsylvania Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 2002 WL 186008 (3d Cir. 2002) ................................................ 96
Pennsylvania v. Nelson, 350 U.S. 497 (1956) ........................................................................................... 26
PG Publishing Co. v. County of Washington, 638 A.2d 422 (Pa. Commw. Ct. 1994) .............................................................. 73
Pharma. Research & Manufs. Of America v. Concannon, 249 F.3d 66 (1st Cir. 2001) ................................................................................ 86
Pharma. Research & Manufs. of America v. Walsh, 538 U.S. 644 (2003) ........................................................................................... 86
Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250 (3d Cir. 1994) ........................................................................ 39, 41
Pitt News v. Fisher, 215 F.3d 354 (3d Cir. 2000)............................................................................... 76
Planned Parenthood of Houston & Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir. 2005) ............................................................................. 86
Plyler v. Doe, 457 U.S. 202 (1982) ...................................................................................Passim
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 15 of 126
Public Interest Research Group of New Jersey v. Powell Duffryn Terminals Inc., 913 F.2d 64 (3d Cir. 1990) ................................................................................ 85
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) ........................................................................................... 86
Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985) ......................................................................................42-43
Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977).............................................................................. 57
Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004), cert. denied, 544 U.S. 905 (2005).................... 92
Roe v. New York, 49 F.R.D. 279 (S.D.N.Y. 1970) ......................................................................... 99
Roe v. Wade, 410 U.S. 113 (1973) ........................................................................................... 98
Rogers v. Larson, 563 F.2d 617 (3d Cir. 1977) ........................................................................ 20, 25
Roginsky v. Dep’t of Defense, OCAHO Case No. 90200168, 1992 WL 535565 (OCAHO May 5, 1992) ....... 22
Ruiz v. New Garden Twnshp., 376 F.3d 203 (3d Cir. 2004)............................................................................... 43
Salem Inn, Inc. v. Frank, 522 F.2d 1045 (2nd Cir. 1975) .......................................................................... 87
Sandin v. Connor, 515 U.S. 472 (1995) ........................................................................................... 39
Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947 (1984) ........................................................................................... 88
Small v. United States, 333 F.2d 702 (3d Cir. 1964)............................................................................... 41
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 16 of 126
Smaller Manufacturers Council v. Council of City of Pittsburgh, 485 A.2d 73 (Pa. Commw. Ct. 1984)................................................................. 65
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) ............................................................................................ 32
St. Thomas-St. John Hotel & Tourism Assoc. v. Gov’t of the United States Virgin Islands, 218 F.3d 232 (3d Cir. 2000)............................................................................... 85
Sterling v. Borough of Minersville, 232 F.3d 190 (3d Cir. 2000)..........................................................................71-73
Sure-Tan v. NLRB, 467 U.S. 883 (1984) .......................................................................................... 92
Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948) ...................................................................................7-8, 62
Taubman Realty Group Ltd. v. Mineta, 320 F.3d 475 (4th Cir. 2003) ............................................................................. 86
Toll v. Moreno, 458 U.S. 1 (1982) .......................................................................................7-8, 29
Topo v. Dhir, 210 F.R.D. 76 (S.D.N.Y. 2002) ......................................................................... 93
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) ........................................................................................... 94
Tribune-Review Publ. Co. v. Allegheny County Hous. Auth., 662 A.2d 677 (Pa. Commw. Ct. 1995) .............................................................. 73
Tribune-Review Publ. Co. v. Bodack, 875 A.2d 402 (Pa. Commw. Ct. 2005) .............................................................. 73
Truax v. Raich, 239 U.S. 33 (1915) .................................................................................. 8, 34, 40
United States v. Gilbert, 813 F. 2d 1523 (9th Cir. 1987)........................................................................... 94
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Case 3:06-cv-01586-JMM Document 106 Filed 02/12/2007 Page 17 of 126
United States v. Hunter, 459 F.2d 205 (4th Cir. 1972) ............................................................................. 58
United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) ..................................................................................42, 45-46
United States v. Kim, 193 F.3d 567 (2d Cir. 1999)......................................................................... 21, 28
United States v. Locke, 529 U.S. 89 (2000) ........................................................................................ 9, 23
United States v. Lopez, 521 F.2d 437 (2d Cir. 1975) .........................................................................27-28
United States v. Maali, No. 6:02-CR-171ORL28KRS, 2005 WL 2204982 (M.D. Fla. Sept. 8, 2005) ................................................................................... 22
United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) ........................................................................................... 85
United States v. Williams, 124 F.3d 411 (3d Cir. 1997)............................................................................... 49
United Tavern Owners of Philadelphia v. Philadelphia Sch. Dist., 272 A.2d 868 (Pa. Commw. Ct. 1971)............................................................... 68
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) .......................................................................................... 56
Warht v Seldin, 422 U.S. 490 (1975) ........................................................................................... 96
Western Pennsylvania Restaurant Association v. Pittsburgh, 77 A.2d 616 (Pa. 1951) ...................................................................................... 68
Williams v. Guzzardi, 875 F.2d 46 (3d Cir. 1989)................................................................................. 67
Wis. Dep’t of Indus. v. Gould, 475 U.S. 282 (1986) .......................................................................................... 24
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Wong Wing v. United States, 163 U.S. 228 (1896) ........................................................................................... 91
Yeager v. Hackensack Water Co., 615 F. Supp. 1087 (D.N.J. 1985) ...................................................................... 72
Yick Wo v. Hopkins, 118 U.S. 356 (1886) .......................................................................................... 91
Zadvydas v. Davis, 533 U.S. 678 (2001) ............................................................................9, 11, 90-93
Zinermon v. Burch, 494 U.S. 113 (1990) .......................................................................................... 38
U.S. CONSTITUTION Supremacy Clause of the U. S. Constitution............................................................. 7 4th Amendment of the U.S. Constitution................................................................ 78 14th Amendment of the U. S. Constitution......................................................Passim
FEDERAL STATUTES 8 C.F.R. §§ 208.16-18 ............................................................................................. 13 8 C.F.R. § 212.5(f)................................................................................................... 12 8 C.F.R. § 274a.1(c)-(f) ........................................................................................... 18 8 C.F.R. § 274a.12(a)(11-13), (c)............................................................................ 11 24 C.F.R. § 5.508(e) ................................................................................................ 12 24 C.F.R. § 5.520..................................................................................................... 12 65 Fed. Reg. 58301............................................................................................ 15, 47 71 Fed. Reg. 16,333 (Mar. 31, 2006) ...................................................................... 36
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Fed. R. Civ. P. 10 ...........................................................................................100-101 Fed. R. Civ. P. 12(b)(6) ............................................................................................. 3 Fed. R. Civ. P. 17(a) .............................................................................................. 101 Fed. R. Civ. P. 56(a) .................................................................................................. 3 Fed. R. Civ. P. 56(c) ...............................................................................................4-5 8 U.S.C. 1101 et seq. ......................................................................................... 12, 27 8 U.S.C. Parts 240, 1240 ......................................................................................... 12 8 U.S.C. § 1101(a)(15) ............................................................................................ 15 8 U.S.C. § 1101(a)(20) ............................................................................................ 15 8 U.S.C. § 1154 ................................................................................................. 13, 27 8 U.S.C. § 1229a................................................................................................ 12, 27 8 U.S.C. § 1229b ..................................................................................................... 13 8 U.S.C. § 1229b(b)(2) ............................................................................................ 13 8 U.S.C. § 1231(b)(3) .............................................................................................. 13 8 U.S.C. § 1242a...................................................................................................... 18 8 U.S.C. § 1254a...................................................................................................... 11 8 U.S.C. § 1255(i).................................................................................................... 11 8 U.S.C. § 1255(m).................................................................................................. 11 8 U.S.C. § 1324a...............................................................................................Passim 8 U.S.C. § 1324a(a)(3) ............................................................................................ 19 8 U.S.C. §§ 1324a-b .......................................................................................... 26, 29 8 U.S.C. § 1324a(e) ................................................................................................. 31 8 U.S.C. § 1324a(h)(2) .......................................................................................31-32
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8 U.S.C. § 1324a note.............................................................................................. 17 8 U.S.C. § 1324b(a)(6) ............................................................................................ 19 8 U.S.C. § 1324b(k)................................................................................................. 22 8 U.S.C. § 1357(g)................................................................................................... 25 8 U.S.C. § 1365(b)................................................................................................... 10 8 U.S.C. § 1373 ..................................................................................................46-47 42 U.S.C. § 1981 ................................................................................6, 61, 62, 63-64 42 U.S.C. § 1981(a)............................................................................................61-62 42 U.S.C. §3601 et seq. ........................................................................................... 57 42 U.S.C. §3604 ...........................................................................................57-58, 96 42 U.S.C. §3604(a).......................................................................................57, 59-60 42 U.S.C. § 3604(a)-(c) ........................................................................................... 58 42 U.S.C. §3604(b).................................................................................................. 57 42 U.S.C. § 3604(c)................................................................................................. 59 42 U.S.C. § 3613 ..................................................................................................... 95 Title VII of the Civil Rights Act of 1964 .......................................................... 63, 93
PENNSYLVANIA CONSTITUTION Article I, § 1 of the Pennsylvania Constitution ....................................................... 40 Article 1, § 8 of the Pennsylvania Constitution ...................................................... 78 Article 9, § 2 of the Pennsylvania Constitution ...................................................... 66
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PENNSYLVANIA STATUTES 53 Pa. C.S.A. § 2961 ............................................................................................... 66 53 Pa. C.S.A. § 2962(c)(2) ...................................................................................... 68 53 Pa. C.S.A. § 2962(f) ........................................................................................... 66 53 P.S. § 37403...................................................................................................66-67 68 P.S. §§ 250.101, et seq. .................................................................................68-69 68 P.S. § 250.103..................................................................................................... 69 68 P.S. § 250.501................................................................................................71-72 68 P.S. § 250.502..................................................................................................... 70 68 P.S. § 250.502..................................................................................................... 72 68 P.S. § 250.503................................................................................................71-72 68 P.S. § 250.503-A .....................................................................................69, 71-72 68 P.S. §250.504-A ................................................................................................. 71 68 P.S. § 250.602..................................................................................................... 69
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OTHER AUTHORITIES 149 Cong. Rec. H 11582-01 (Nov. 19, 2003) ......................................................... 17 Brief of U.S. Attorney General in City of Chicago v. Shalala,
1999 WL 33632748 (Feb. 2000) at 13 n.7......................................................... 34 Erwin Chemerinsky, Constitutional Law: Principles and Policies,
536 (2002) .......................................................................................................... 42 Equal Employment Opportunity Comm’n, Rescission of Enforcement
Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws ....................................................... 93 Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, 249-50 (2001) ......................................................... 59 H.R. 4437, 109th Cong., § 202................................................................................ 21 H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649 .................................... 18, 21, 29, 31 Illegal Immigrant Reform and Immigrant Responsibility Act §§ 401, 402(a), Pub. L. No. 104-28 ............................................................................................. 17 Pub.L. 104-208, Div. C, Section 402(e).................................................................. 17 S. 1033, 109th Cong., § 402 .................................................................................... 18 S. 1438, 109th Cong., § 321 .................................................................................... 18 S. 2611, 109th Cong . .............................................................................................. 93
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I. INTRODUCTION AND PROCEDURAL HISTORY Beginning in July 2006, the City of Hazleton (“Hazleton”) introduced and
passed four ordinances (collectively “Ordinances”) to target and expel so-called “illegal aliens” from Hazleton. Hazleton and its representatives have argued that such Ordinances are required to address the alleged deficiencies in the federal government’s immigration policy. To further this political agenda and using the city and its residents as a test case, Hazleton has repeatedly tinkered with the Ordinances in response to Plaintiffs’ legal challenges in this Court, in an attempt to disguise the flaws imbedded in the Ordinances. Although none of these Ordinances are currently being enforced pursuant to Court order and stipulations between the parties, there nevertheless has been tangible harm to Plaintiffs and other residents of Hazleton. Since the original ordinances were introduced, businesses have shut down, customers and renters have dwindled, and families have left or are planning to leave town. Moreover, as set forth in this brief, the underlying violations of the federal and Pennsylvania state laws and constitutions found in the ordinances remain.
The procedural history of this case is set forth in Plaintiffs’ Second Amended Complaint. On July 13, 2006, Hazleton passed the “Illegal Immigration Relief Act Ordinance” (“Prior Ordinance”) and announced that such Ordinance would take effect in sixty days. A Complaint was filed with this Court on August 15, 2006 challenging that Prior Ordinance on several constitutional and other grounds and, on September 2, 2006, this Court approved a Stipulation whereby Hazleton agreed not to enforce the Prior Ordinance and Plaintiffs agreed not to seek an injunction of such Ordinance.

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Thereafter, on September 21, 2006, Hazleton enacted Ordinance 2006-18, also entitled the “Illegal Immigration Relief Act Ordinance” (“Immigration Ordinance”). In response, on October 30, 2006, the Plaintiffs filed a First Amended Complaint challenging, inter alia, the Immigration Ordinance on several constitutional and other grounds. On October 31, 2006, the Court entered a Temporary Restraining Order prohibiting Hazleton from enforcing the Immigration Ordinance until November 14, 2006. On November 3, 2006, the Court approved a Stipulation and Order, wherein the Court’s restraining Order was extended for 120 days or until a consolidated trial was held and a decision was rendered, whichever date was earlier.
On December 28, 2006, in response to the First Amended Complaint, Hazleton City Council adopted Ordinance 2006-40, which amended the Immigration Ordinance by adding §7 (Implementation and Process). Herein, the Immigration Ordinance as amended by Ordinance 2006-40 is referred to as the “Revised Immigration Ordinance.”
In addition to the Prior and Revised Immigration Ordinances, Hazleton enacted Ordinance 2006-13 ( “Tenant Registration Ordinance”) on August 15, 2006. On December 28, 2006, Hazleton enacted Ordinance 2006-35 (“Property Registration Ordinance”). Hazleton plans to implement and enforce the Tenant Registration Ordinance, notwithstanding its adoption of the Property Registration Ordinance, once this Court’s Order staying such implementation and enforcement is lifted.
On January 15, 2007, Plaintiffs filed their Second Amended Complaint. On January 23, 2007, Hazleton filed a Motion to Dismiss Plaintiffs’ Second Amended
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Complaint or, in the alternative, for entry of summary judgment in favor of Hazleton (“Motion to Dismiss”), together with a memorandum of law in support of Hazleton’s Motion to Dismiss (“Def. Brief”). However, as set forth in this memorandum of law, Hazleton’s Motion to Dismiss must be denied by the Court because it misstates the facts, is lacking in legal precedent and falls far short of demonstrating that the Second Amended Complaint is legally deficient or that Hazleton is entitled to summary judgment.
Simultaneously with this memorandum of law, Plaintiffs cross-move for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(a). Because the arguments showing that Hazleton’s Motion to Dismiss must fail are primarily the same arguments that show Plaintiffs are entitled to Summary Judgment, for sake of judicial economy, this memorandum is submitted both in opposition to Hazleton’s motion and in support of Plaintiffs’ cross motion for summary judgment. II. STATEMENT OF FACTS
The Plaintiffs incorporate by reference the separate Statement of Facts filed along with this Memorandum of Law. III. STANDARD OF REVIEW
When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court “must accept the allegations of the complaint as true and draw all reasonable inferences in the light most favorable to the Plaintiffs.” Langford v. City of Atlantic City, 235 F.3d 845, 850 (3d Cir. 2000) (citation omitted). The issue to be decided “is not whether [plaintiff] will ultimately prevail in a trial on the merits, but whether [a plaintiff] should be
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afforded an opportunity to offer evidence in support of [its] claims.” In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002). Thus, a Court may not grant a motion to dismiss for failure to state a claim “unless it appears beyond doubt that [a] plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.” 311 F.3d at 215 (emphasis added). See also Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984) (observing that the Court may grant a motion to dismiss only if no possible construction of alleged facts would entitle plaintiff to relief).
Applying this standard to the allegations in Plaintiffs’ Second Amended Complaint, the Court should deny Hazleton’s Motion to Dismiss. Accepting as true all of the allegations in Plaintiffs’ Second Amended Complaint together with all reasonable inferences therefrom, and without regard any additional supporting facts that Plaintiffs will learn through discovery which is ongoing, it is clear that Plaintiffs have stated valid claims against Hazleton and are entitled to relief under the several legal theories raised in their Second Amended Complaint.
Summary judgment is appropriate only when it is demonstrated that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107, 111 (3d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)); see also Fed. R. Civ. P. 56(c). An issue of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). In deciding a motion for summary judgment, all reasonable inferences must be drawn in favor of the non-movant. Id. Applying this standard in this case, it is clear that
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there are no genuine issues as to any material fact relating to Counts I-VII of the Second Amended Complaint and summary judgment should be granted on these Counts as a matter of law.
IV. QUESTIONS PRESENTED
A. Have Plaintiffs stated a claim that the Revised Immigration and Tenant Registration Ordinances violate the Supremacy Clause? Do the Revised Immigration and Tenant Registration Ordinances violate the Supremacy Clause? Suggested Answer: Yes.
B. Have Plaintiffs stated a claim that the Revised Immigration Ordinance violate Plaintiffs’ Procedural Due Process rights? Does the Revised Immigration Ordinance violate Plaintiffs’ Procedural Due Process rights? Suggested Answer: Yes.
C. Have Plaintiffs stated a claim that the Revised Immigration Ordinance violate Plaintiffs’ Equal Protection rights? Does the Revised Immigration Ordinance violate Plaintiffs’ Equal Protection rights? Suggested Answer: Yes.
D. Have Plaintiffs stated a claim that the Revised Immigration and Tenant Registration Ordinances violate the Fair Housing Act? Do the Revised Immigration and Tenant Registration Ordinances violate the Fair Housing Act? Suggested Answer: Yes.
E. Have Plaintiffs stated a claim that the Revised Immigration Ordinance violate 42 U.S.C. §1981? Does the Revised Immigration Ordinance violate 42 U.S.C. §1981? Suggested Answer: Yes.
F. Have Plaintiffs stated a claim that the Revised Immigration and Tenant Registration Ordinances violate Plaintiffs’ privacy rights
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under the United States and Pennsylvania Constitution? Do the Revised Immigration and Tenant Registration Ordinances violate Plaintiffs’ privacy rights under the United States and Pennsylvania Constitution? Suggested Answer: Yes.
G. Have Plaintiffs stated a claim that the Revised Immigration Ordinance violates the Pennsylvania Home Rule Charter Law? Does the Revised Immigration Ordinance violates the Pennsylvania Home Rule Charter Law? Suggested Answer: Yes.
H. Have Plaintiffs stated a claim that the Tenant Registration Ordinance violates the Pennsylvania Landlord and Tenant Act? Does the Tenant Registration Ordinance violate the Pennsylvania Landlord and Tenant Act? Suggested Answer: Yes.
I. Have Plaintiffs stated a claim that the Revised Immigration and Tenant Registration Ordinances exceed Hazleton’s legitimate police powers? Do the Revised Immigration and Tenant Registration Ordinances exceed Hazleton’s legitimate police powers? Suggested Answer: Yes.
J. Do the Plaintiffs possess standing to invoke the jurisdiction of this Court? Suggested Answer: Yes.
K. May the certain unnamed undocumented Plaintiffs proceed anonymously in this action? Suggested Answer: Yes.
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V. LEGAL ARGUMENT A. The Ordinances Are Preempted By Federal Immigration Law And Encroach On Exclusive Federal Authority To Regulate Immigration In its Motion to Dismiss, Hazleton asserts that neither the Revised
Immigration Ordinance nor the Registration Ordinance violates the Supremacy Clause of the United States Constitution. Def. Brief at 5. As Plaintiffs explain below, Hazleton’s arguments are unavailing and it is plain that the challenged Ordinances indeed violate the Supremacy Clause in multiple ways. Accordingly, Hazleton’s Motion to Dismiss must be denied and Plaintiffs’ motion for summary judgment on Count I of the Second Amended Complaint should be granted.
1. Framework of Supremacy Clause Analysis Local laws concerning immigration and foreign nationals are invalid under the Supremacy Clause of the United States Constitution if they (1) are conflict preempted because they “burden[] or conflict[] in any manner with any federal laws or treaties,” or “[stand] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress;” (2) are field preempted because they are an attempt to legislate in a field occupied by the federal government or (3) attempt to regulate immigration, which is “unquestionably exclusively a federal power.” De Canas v. Bica, 424 U.S. 351, 354, 362, 363 (1976). The Supreme Court has struck down numerous state statutes relating to noncitizens on one or more of the three grounds explained above. See, e.g., Toll v. Moreno, 458 U.S. 1, 10 (1982) (invalidating state denial of student financial aid to certain visa holders); Graham v. Richardson, 403 U.S. 365, 377-80 (1971) (invalidating state welfare restriction); Takahashi v. Fish & Game Comm’n, 334
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U.S. 410, 418-20 (1948) (invalidating state denial of commercial fishing licenses); Hines v. Davidowitz, 312 U.S. 52, 62-68 (1941) (invalidating state alien registration scheme); Truax v. Raich, 239 U.S. 33, 42 (1915) (invalidating state employer sanctions scheme under Fourteenth Amendment and suggesting Supremacy Clause violation); Chy Lung v. Freeman, 92 U.S. 275 (1876) (invalidating state statute that authorized state official to classify certain arriving immigrants as undesirable and indirectly bar their entry); Henderson v. Mayor of New York, 92 U.S. 259 (1876) (invalidating state bond requirement for arriving immigrants).
Courts are especially sensitive to Supremacy Clause concerns in the immigration area for several reasons. First, the U.S. Constitution itself establishes the “preeminent role of the Federal Government with respect to the regulation of aliens within our borders.” Toll, 458 U.S. at 10. In addition, laws relating to foreign nationals are inextricably intertwined with international relations and are therefore a particular concern of the federal government. Hines, 312 U.S. at 66-67; see also American Ins. Assoc. v. Garamendi, 539 U.S. 396, 420 & n.11 (2003) (discussing preemption concerns in foreign relations context); Mexico President Urges U.S. to Act Soon on Migrants, New York Times, Sept. 6, 2001 (noting the Mexican President raised issue of treatment of undocumented workers in bilateral meetings with President Bush). There is a special need for nationwide consistency in matters affecting foreign nationals, given the “explicit constitutional requirement of uniformity” (Graham, 403 U.S. at 382) in immigration matters and the myriad problems that would result for citizens and non-citizens alike if each of the 50 states – or, as in this case, each of the thousands of localities like Hazleton
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across the 50 states – adopted its own rules for the treatment of aliens. See Graham, 403 U.S. at 382; see also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (recognizing “the Nation’s need ‘to speak with one voice’ in immigration matters”).
Given the exceptionally strong federal interests in the area of immigration and the history of federal legislation directly addressing the same topics as the Ordinances, Hazleton’s assertion that a “presumption against preemption” should be applied in this case cannot stand. See United States v. Locke, 529 U.S. 89, 108 (2000) (“an ‘assumption’ of nonpre-emption is not triggered when the State regulates in an area where there has been a history of significant federal presence”). In any event, any such presumption is easily overcome in this case, where the Ordinances are preempted for multiple independent reasons.
a) The Ordinances are Preempted Because they Conflict with Federal Law.
Plaintiffs note at the outset that the case on which Hazleton places much reliance, De Canas v. Bica, did not find that the California statute at issue in that case was constitutional. Instead, De Canas explicitly reserved the question of whether the statute “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” 424 U.S. at 363-64 (quoting Hines v. Davidowitz, discussed below), and remanded the case for a determination of that question.1
1 The case was “dropped” on remand, so the conflict-preemption issues not never decided. See
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Separate and apart from issues of field and constitutional preemption, which are addressed in subsequent sections below, the Ordinances challenged in this case are invalid on the grounds reserved in De Canas: because they conflict with multiple provisions of federal law and because the Ordinances stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
b) The Ordinances Conflict With Individual Provisions Of Federal Law (1) Housing Provisions
The Revised Immigration Ordinance attempts to deny “alien[s] not lawfully present in the United States” the ability to obtain housing in Hazleton based on their immigration status, by providing that it is unlawful to knowingly “let, lease, or rent a dwelling unit to” such individuals, prohibiting such persons from “enter[ing] into a contract for the rental or leasing of a dwelling unit,” and deeming it a “breach[] of a condition of the lease” for an individual to enter into a lease for a dwelling unit while not lawfully present or to become unlawfully present during the term of the lease. Revised Immigration Ordinance §§ 5 and 7.B. These provisions seek to remove “illegal aliens” from Hazleton and deny new “illegal aliens” arriving in Hazleton admission to the city.
In its Motion to Dismiss, Hazleton makes much of the fact that the Ordinance uses the term “illegal alien,” which term appears in the federal code. Def. Brief at 29-31. Hazleton fails to recognize, however, that in the one federal law that defines the term, the federal contains a different definition than the Ordinance. Compare Revised Immigration Ordinance § 3.D. with 8 U.S.C. § 1365(b) (setting forth a definition relating specifically to aliens convicted of a
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felony and involving multiple factors that must be fulfilled “before the date of the commission of the crime”).
In fact, Section 5 of the Revised Immigration Ordinance is directly at odds with the federal immigration system because it rests on the fundamentally flawed assumptions that (1) the federal government desires the removal of every alien who lacks legal status and (2) a conclusive determination by the federal government that an individual may not remain in the United States can somehow be obtained outside of a formal removal hearing. Neither of these assumptions can be sustained and, in making them, the Revised Immigration Ordinance seriously conflicts with federal law.
First, Hazleton ignores the fact that the federal government actively permits numerous categories of persons who may technically be “not lawfully present in the United States” to live and work in the United States. See, e.g., 8 C.F.R. § 274a.12(a)(11-13), (c)(8-11, 14, 18-20, 22, 24) (listing categories of persons who can receive federal permission to work, and implicitly to stay, in the United States even though they may be violating immigration laws). These include, for example, persons who have pending applications to adjust to a lawful status pursuant to the Violence Against Women Act, see 8 U.S.C. § 1255(m), or under 8 U.S.C. § 1255(i), and persons who are applying for “temporary protected status” under 8 U.S.C. § 1254a. Persons released from detention pursuant to legal mandates and restrictions imposed by the Supreme Court, though subject to an order of removal, are permitted to stay and work in the U.S. See Clark v. Martinez, 543 U.S. 371 (2005); Zadvydas v. Davis, 533 U.S. 678 (2001). Federal officials may also
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exercise discretion not to deport persons who are otherwise removable. See 8 C.F.R. § 212.5(f).
In addition, the federal agency in charge of housing (the Department of Housing and Urban Development) expressly permits persons lacking immigration status to live with persons who are recipients of federal housing subsidies. See 24 C.F.R. § 5.508(e) (providing that “[i]f one or more members of a family elect not to contend that they have eligible immigration status, and other members of the family establish their citizenship or eligible immigration status, the family may be eligible for assistance . . . despite the fact that no declaration or documentation of eligible status is submitted for one or more members of the family.”); see also 24 C.F.R. § 5.520 (providing for prorated subsidies based on the number of persons in the household eligible for benefits). In sum, persons who may not be lawfully present are explicitly permitted to reside in housing partially subsidized by the federal government.
Second, and fundamentally, Hazleton fails to recognize that the federal government only decides whether it wishes to remove someone from the country through the formal procedures set out in the federal Immigration and Nationality Act (“INA”), 8 U.S.C. §§1101 et seq., and associated regulations, which include substantial procedural safeguards, including the availability of administrative appeal and judicial review. See generally 8 U.S.C. § 1229a (removal proceedings); 8 U.S.C. Parts 240, 1240 (“Proceedings to Determine Removability of Aliens in the United States”). It is the federal government’s burden to prove, in these adversarial proceedings, that the individual is an alien and removable. But that is only the first step of this procedure. Even aliens who lack immigration status at
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the outset of a removal proceeding may obtain temporary or permanent permission to remain in the United States during the course of the proceeding; individuals who may obtain relief from removal include spouses and other relatives of U.S. citizens and lawful permanent residents, victims of domestic violence, and individuals seeking protection from persecution or torture. See, e.g., 8 U.S.C. § 1154 (procedure for granting immigrant status to certain relatives of U.S. citizens and lawful permanent residents); 8 U.S.C. § 1229b (cancellation of removal for certain relatives of U.S. citizens and lawful permanent residents); 8 U.S.C. § 1229b(b)(2) (cancellation for certain battered spouses and children); 8 U.S.C. § 1231(b)(3) (restricting removal of individuals subject to persecution); 8 C.F.R. §§ 208.16-18 (deferral of removal under Convention Against Torture).
By denying abode to every individual who is “unlawfully present,” the Ordinance runs roughshod over the complex system of federal classification and discretion and the federal government’s policy decisions permitting the continued residence of mixed-status families within the United States. See Plyler v. Doe, 457 U.S. 202, 236 (1982) (Marshall, J., concurring) (“[T]he structure of the immigration statuses makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported”); id. at 241 n.6 (Powell, J., concurring) (“Until an undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be found to have a federal permission to reside in the country….”).
In an attempt to disguise these clear conflicts with federal law, Hazleton has set forth a procedure in the Revised Immigration Ordinance that makes penalties under that Ordinance contingent on federal “verification” of an individual’s status.
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Hazleton’s description of “the actual mechanism used” to obtain such verification, Def. Brief at 28-29, is entirely unsupported by any declaration or other evidence and must be disregarded by the Court in its determination of the Motion to Dismiss. Indeed, Hazleton has not executed a Memorandum of Understanding with the Federal government, or otherwise been granted authority to use or access, the Systematic Alien Verification for Entitlements (“SAVE”) program or any other Federal government immigration verification system for purposes of verifying the immigration status of renters and occupants of dwelling units. (Ex. 9 to Plaintiffs’ Statement of Fact in Support of Motion for Summary Judgment, pp. 298:11 – 310:1.).
Even assuming, however, that Hazleton’s assertion is true and that it will in fact attempt to use the SAVE database to determine whether individuals are “illegal aliens” as defined under the Immigration Ordinance, that attempt is futile. As its name indicates, SAVE is a database system designed to determine whether an applicant for a government benefit or entitlement is in an immigration status that qualifies him to receive that entitlement. It is not a substitute for the formal determination of status that occurs through a removal proceeding and judicial review. Accordingly, the federal government has instructed its agencies that SAVE does not provide such a determination:
[A federal] entity will “know” that an alien is not lawfully present in the United States only when the unlawful presence is a finding of fact or conclusion of law that is made by the entity as part of a formal determination that is subject to administrative review on an alien’s claim for any of the statutorily specified programs set out above. In addition, that finding or conclusion of unlawful presence must be supported by a
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determination by the Service or the Executive Office of Immigration Review, such as a Final Order of Deportation. A Systematic Alien Verification for Entitlements (SAVE) response showing no Service record on an individual or an immigration status making the individual ineligible for a benefit is not a finding of fact or conclusion of law that the individual is not lawfully present. 65 Fed. Reg. 58301 (emphasis added); see also Plyler, 457 U.S. at 241 n.6 (Powell, J., concurring) (“[E]ven the [federal immigration authorities] cannot predict with certainty whether any individual alien has a right to reside in the country until deportation proceedings have run their course.”). For similar reasons, the Tenant Registration Ordinance also conflicts with federal immigration law. That ordinance requires each individual occupant of any rental unit to obtain an occupancy permit from Hazleton, and requires applicants for occupancy permits to provide “proof of legal citizenship and/or residency.” Yet, as explained above, numerous individuals who are not lawfully present in the United States are nonetheless permitted to live and work here by the federal government. The Tenant Registration Ordinance’s attempt to exclude from residence in Hazleton all persons unable to tender “proof of legal citizenship and/or residency” thus squarely conflicts with the federal immigration scheme. In addition, the Tenant Registration Ordinance does not provide any definition of “legal … residency.” The closest approximation to such a status in the federal immigration law is lawful permanent resident status. See 8 U.S.C. § 1101(a)(20). However, there are numerous “nonimmigrant” visa holders and others who are allowed to live in the United States under the federal immigration system. See, e.g., 8 U.S.C. § 1101(a)(15). Therefore, to the extent the Tenant
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Registration Ordinance adopts the federal “lawful permanent resident” status to define whether someone can lawfully reside in Hazleton, it does so in a manner that conflicts with federal immigration law. Furthermore, to the extent the Tenant Registration Ordinance requires Hazleton to create its own definition of “legal … residency” and make its own determinations of who is or is not a legal resident, that too conflicts with the federal scheme. See, League, 908 F. Supp. at 770 (Congress has exclusively reserved to federal agencies the power to make independent determinations of immigration status).
Hazleton has offered virtually no argument in support of its contention that the Tenant Registration Ordinance is valid under the Supremacy Clause. See generally Def. Brief at 24-51. Indeed, Hazleton’s only statement in defense of that ordinance is its bald assertion that the Tenant Registration Ordinance:
does not involve any verification of status whatsoever. It merely requires tenants to provide any documents that they wish to submit, concerning their citizenship or alien status. The Ordinance does not say or imply that Hazleton Officials will verify the tenants’ claims or the documents submitted. Def. Brief at 42 (emphasis added). This assertion flies in the face of the plain language of the Ordinance, which “specifically require[s]” “[p]roper identification showing proof of legal citizenship and/or residency [of each occupant] in order” to issue an occupancy permit. Ordinance 2006-13, § 7.b.1 (emphasis added.) Moreover, it contradicts Hazleton’s own publications and the Mayor’s own statements clearly stating that Hazleton intends to require proof of status and to verify status. See, e.g., “Hazleton gears up to keep illegals out,” The Morning Call, July 15, 2006 (quoting Mayor as stating that “in the beginning, there
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will be a lot of work to check all the tenants in Hazleton”); Ex. 10 to Plaintiffs’ Statement of Facts in Support of Motion for Summary Judgment. Hazleton cannot save the Tenant Registration Ordinance now by averring that it does not mean what it says.
(2) Employment Provisions Like its housing provisions and the Tenant Registration Ordinance, the Revised Immigration Ordinance’s employment provisions conflict with multiple provisions of federal law. Its provisions mandating enrollment in the federal Basic Pilot Program conflict with Congress’ designation of the Basic Pilot Program as a voluntary, experimental program to be implemented by the Secretary of Homeland Security. See Illegal Immigrant Reform and Immigrant Responsibility Act (“IIRIRA”), §§ 401, 402(a), Pub. L. No. 104-28, Div. C (Sept. 30, 1996), codified as amended at 8 U.S.C. § 1324a note. Congress set forth a limited list of employers required to participate in the Basic Pilot or a related program—a list completely different from Hazleton’s. IIRIRA. § 402(e).2 Congress also specifically provided that the government “may not require any person or other entity to participate in a pilot program,” IIRIRA § 401(a) (emphasis added). See also id. § 404(h) (providing that government may not “utilize any information, data base, or other records assembled under this subtitle for any other purpose other than as provided for under a pilot program”).3 In contrast, the Revised
2 IIRIRA § 402(e) requires certain Federal entities to participate in a pilot verification program and provides that a federal administrative law judge may require an employer to participate in a pilot program as part of a cease and desist order issued under 8 U.S.C. § 1324a. 3 In addition, Congress specifically did not include a provision that would have given state and local governments access to the Basic Pilot program. See 149
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Immigration Ordinance mandates that businesses enroll in the federal Basic Pilot
Program in certain circumstances, §§ 4.B.6(b), 4.D., and even where the Ordinance does not require such enrollment, subjects businesses to the risk of exorbitant
penalties if they do not enroll, §§ 4.B.5, 4.E. The Ordinance’s attempt to force employers to enroll in Basic Pilot is incompatible with federal law.4
The Revised Immigration Ordinance also conflicts with federal law by
requiring businesses, individuals, non-profits, and other entities to ensure that any
person they “recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct … to perform work in whole or part within Hazleton” is an
authorized worker. § 4.A. In contrast, federal law does not require that employers
verify the immigration status of certain categories of workers, such as independent contractors and casual domestic workers, and does not apply to entities, such as
unions, that refer individuals for employment but without a fee or profit motive.
See 8 U.S.C. § 1242a; 8 C.F.R. § 274a.1(c)-(f); see also H.R. Rep. 99-682(I), at 57
Cong. Rec. H 11582-01 (Nov. 19, 2003) (statement of Rep. Jackson-Lee) (“I am pleased to note that the Senate removed a provision that would give State and local governments access to the information collected with this program …. [I]n fact, we have provided safeguard provisions to make this legislation work, to provide the information that is necessary to ensure the protection of the workplace, and also to provide due process rights for all who are involved”); id. (Statement of Rep. Berman) (noting support of proposal and that he had opposed previous version “in part because I had concerns about what was in section 3 of the bill allowing data to be shared with State and local governments”). 4 Notably, one aspect of the current debate regarding immigration reform involves whether and to what extent mandatory electronic employment verification will become a feature of the federal law. See, e.g., S. 1033, 109th Cong., § 402 (proposing electronic verification system); S. 1438, 109th Cong., § 321 (alternative verification proposal). Hazleton’s effort to force employers to use the Basic Pilot Program is an effort to short-circuit that national debate and impose a conclusion of Hazleton’s choosing notwithstanding the national legislative process.
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(stating that “[i]t is not the intent of this Committee that sanctions would apply in the case of casual hires” and noting an exception for unions and similar entities).
The provisions in § 7 do nothing to cure these conflicts and actually introduce additional incompatibilities. Specifically, one method of “correcting” a violation of the employment section under Ordinance 2006-40 is for the employer to obtain additional information from the worker and to reverify the workers’ status through the Basic Pilot Program. See § 7.C.2. Yet federal law prohibits reverification except under limited circumstances. 8 U.S.C. § 1324b(a)(6). Federal law also prohibits using the federal I-9 from “and any information contained in or appended to such form” for purposes other than enforcing the federal employer-sanctions provisions and certain federal criminal laws. 8 U.S.C. §1324a(b)(5). Further, this provision conflicts with 8 U.S.C. § 1324a(a)(3), which provides employers with a safe harbor if the employer complied in good faith with the verification requirements. See id. (“A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) of this section with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral.”).
Plaintiffs’ have adequately pled that the Ordinances are preempted and therefore Hazleton’s Motion to Dismiss must be denied. Further, because the Ordinances are preempted, Plaintiffs’ Motion for Summary Judgment should be granted.
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c) Interference With The Federal Government’s Regulatory Scheme.
Plaintiffs would be entitled to summary judgment, even if the Ordinances did not explicitly conflict with specific provisions of federal law, because Hazleton’s attempts to supplement federal immigration law nonetheless undermine the legislative scheme enacted by Congress, and therefore violate the Supremacy Clause.
In Hines v. Davidowitz, a case that arose in this District, the Supreme Court ruled that where the federal government had passed an alien registration scheme, Pennsylvania could not enforce its own state alien-registration law. The Court explained that “where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines, 312 U.S. at 6667. The Court further noted that the federal system attempted “to steer a middle path,” creating a “single integrated and all-embracing system … in such a way as to protect the personal liberties of law-abiding aliens through one uniform national registration system, and to leave them free from the possibility of inquisitorial practices and police surveillance” while also obtaining the information sought under the statute. Id. at 73-74. Accord Rogers v. Larson, 563 F.2d at 626 (invalidating Virgin Islands employer sanctions scheme and stating that “[b]ecause of the different emphasis the [Virgin Islands and federal employment] schemes
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place on the purposes of job protection and an adequate labor force, we conclude that [the Virgin Islands statute] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the INA”).
Similarly here, Congress has created an integrated scheme of regulation that includes provisions directed at both employer sanctions and harboring. These provisions strike careful balances reflecting the federal legislature’s view of the national interest. For example, with IRCA, Congress balanced the important goals of reducing employment of individuals who lack work authorization; creating a workable system for employers and employees; and avoiding harassment of or discrimination against employees. See H.R. Rep. 99-682(I),at 56-62. Thus, the statute contains safeguards such as a “safe harbor” provision for employers who are presented with facially valid documents; restrictions on reverification of employees after they are hired; extensive antidiscrimination provisions; prohibitions on employers’ requesting additional documents once an employee presents minimally adequate documentation; a ten-day cure period for good-faith violations of the document verification requirements; and a graduated series of penalties after adjudication by an administrative law judge. See 8 U.S.C. § 1324a.
Additionally, the INA’s harboring provision reflects Congress’ judgment on what balance should be struck regarding the statute’s reach and the penalties that should apply. Congress has amended the statute to alter that balance on numerous occasions. For example, in 1952 Congress amended the statute to provide that normal acts incident to employment would not be considered harboring, only to amend the statute again in 1986 to remove that proviso. See United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999). The federal system’s interpretation of the statute
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is not entirely settled, see United States v. Maali, No. 6:02-CR-171ORL28KRS, 2005 WL 2204982 (M.D. Fla. Sept. 8, 2005) (noting “uncertainty surrounding the meaning of harboring”), and recent legislative proposals would modify it yet further, see H.R. 4437, 109th Cong., § 202.
The effect of Hazleton’s Ordinances is clearly to upset the balances struck by Congress in each of these areas and in immigration law generally by implementing Hazleton’s own enforcement mechanism, penalties, and interpretations in place of the federal system, and simultaneously to bypass the discretion that system places in federal officials and procedures.
For example, Congress viewed IRCA’s provisions prohibiting discrimination by employers as a critical complement to the Act’s enforcement provisions. See, e.g., Roginsky v. Dep’t of Defense, OCAHO Case No. 90200168, 1992 WL 535565 (OCAHO May 5, 1992) (“IRCA demonstrates the congressional intent to treat the antidiscrimination and employer sanctions provisions as unitary”); accord Mir v. Federal Bureau of Prisons, OCAHO Case No. 92B00225, 1993 WL 604446, at *5-8 (OCAHO April 20, 1993). Indeed, Congress explicitly linked the employer verification provisions to the antidiscrimination provisions by forcing the latter to expire if the employer sanction provisions were repealed pursuant to 8 U.S.C. § 1324b(k). See 8 U.S.C. § 1324b(k) (“Termination dates. This section shall not apply to discrimination in hiring, recruiting, or referring, or discharging of individuals occurring after the date of any termination of the provisions of section 1324a of this title.”). Yet by enacting an enforcement-only scheme that contains no countervailing prohibition on discrimination by employers, Hazleton has undermined the balance Congress sought to achieve. This
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seriously interferes with the choices made by Congress in creating that system and threatens the ability of the system to work as an integrated and uniform whole – for if Hazleton can pass its own ordinances in these areas, so can every municipality in the country, each setting forth its own mechanisms, penalties, and interpretations.
In addition, the Ordinances place a significant burden on the federal government, as Hazleton insists the federal government will play a key role in the enforcement of the Ordinances. A federal court analyzing an ordinance similar in all relevant respects to § 5 of Hazleton’s Immigration Ordinance recently cited this burden, as well as the serious field preemption concerns, in issuing a Temporary Restraining Order against that ordinance.5 Garrett v. City of Escondido, ___ F.Supp.2d ____, 2006 WL 3613703, a *11 (S.D. Cal.) Nov, 20, 2006). Hazleton’s Ordinances – which are more comprehensive than those in the Escondido case, would only increase that burden.
Hazleton’s Ordinances simply cannot stand. See Hines; see also Garamendi, 539 U.S. at 423, 427 (California could not “employ[] ‘a different, state system of economic pressure’” to address an issue touching on foreign relations, nor “to use an iron fist where the [federal government] has consistently chosen kid gloves”); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 379 (2000) (state statute touching on foreign relations not saved by the fact that state and federal statute “share the same goals and … some companies may comply with both sets of restrictions,” because “the inconsistency of sanctions … undermines the congressional calibration of force”); United States v. Locke, 529 U.S. 89, 115
5 The city in that case subsequently stipulated to the entry of a permanent injunction barring enforcement of the ordinance at issue.
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(2000) (fact that state requirements were similar to federal not enough to avoid preemption; “[t]he appropriate inquiry still remains whether the purposes and objectives of the federal statutes, including the intent to establish a workable, uniform system, are consistent with concurrent state regulation”); Wis. Dep’t of Indus. v. Gould, 475 U.S. 282, 286, 288-89 (1986) (state statute touching on area governed by a “complex and interrelated federal scheme of law, remedy and administration” preempted because “conflict is imminent whenever two separate remedies are brought to bear on the same activity” and “[e]ach additional [state] statute incrementally diminishes the [agency’s] control over enforcement of the [federal law] and thus further detracts from the integrated scheme of regulation created by Congress”).
d) Hazleton Fails To Refute Plaintiffs’ Claim That The Ordinances Are Conflict Preempted
In its Motion to Dismiss, Hazleton fails to adequately address the specific conflicts with individual provisions of federal immigration law, discussed above. Hazleton instead invokes a number of unrelated statutory provisions as “overwhelming evidence of congressional intent to facilitate state and local efforts to address illegal immigration.” Def. Brief at 48, 42-59. For example, Hazleton asserts that “states and localities may require employers to participate in the [Basic Pilot] Program,” citing not to a statute, regulation, judicial decision, or even a statement of any governmental official, but rather testimony presented to a state legislative committee by an individual who appears to be associated with a nongovernmental group that favors restricting immigration. Def. Brief at 47 & n.4.
More significantly, Hazleton misconstrues the import of the various initiatives and programs referenced in its Motion to Dismiss. Rather than
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encouraging unbounded participation in immigration matters by state and local authorities, Congress has carefully authorized certain specific initiatives and programs and defined the limitations of those programs where it has determined that the state or local authorities may play a complimentary role. Congress has made no such determination here.
Because Hazleton’s Mayor appears eager to play a trailblazing role in immigration enforcement, it is particularly relevant to note that Congress has created a program to allows states and localities to enter into agreements with the federal government to engage in certain immigration-enforcement functions, pursuant to training and other requirements. See 8 U.S.C. § 1357(g), cited in Def. Brief at 61. Significantly, Hazleton has not entered into such an agreement. Instead, Hazleton has chosen to invent a wholly different, unauthorized, and conflicting system of local immigration regulation.
Hazleton’s Motion to Dismiss avoids discussion of the controlling Supreme Court precedent of Hines v. Davidowitz, 312 U.S. 52 (1941), perhaps hoping that because the Hines predates De Canas the Court will ignore it entirely. But Hines remains a vital precedent and a touchstone of the Supreme Court’s preemption jurisprudence.6 And the teaching of Hines is clear: local ordinances that address the same subject area as federal statutes and “conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations” cannot stand. Hines, 312 U.S. at 66-67. See also Rogers v. Larson, 563 F.2d 617, 626 (3d
6 In fact, the Court has cited Hines far more frequently than De Canas in the decades since De Canas was decided.
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Cir. 1977) (Third Circuit decision overturning Virgin Island employer sanctions scheme on conflict-preemption grounds less than two years after De Canas).
De Canas only reinforces the importance of Hines and the fact that the Ordinances here are preempted. De Canas specifically cited Hines in remanding the conflict-preemption issue to the California Supreme Court. 424 U.S. at 363-64. Moreover, De Canas emphasized that both Hines and Pennsylvania v. Nelson, 350 U.S. 497 (1956) (addressing the same statute as Hines) turned on the fact that “the federal statutes [at issue in those cases] were in the specific field which the States were attempting to regulate.” See 424 U.S. at 362. Here, the Immigration Reform and Control Act (“IRCA”), 8 U.S.C. §§ 1324a-b and other federal laws are precisely “in the specific field” which Hazleton is attempting to regulate.
Plaintiffs have sufficiently pled that the Ordinances are conflict preempted both because they conflict with individual provisions of federal law and because they interfere with the federal government’s regulatory schemes. Accordingly, Hazleton’s Motion to Dismiss must be denied. Indeed, the Ordinances are conflict preempted both because they conflict with individual provisions of federal law and because they interfere with the federal government’s regulatory schemes, Plaintiffs’ Motion for Summary Judgment as to Count I accordingly should be granted.
2. The Ordinances are Field Preempted The Ordinances are invalid for the separate and additional reason, in addition to the reasons discussed above, because the federal government has comprehensively legislated both in the field of immigration and specifically with respect to employer sanctions and harboring of undocumented aliens. See
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generally 8 U.S.C. § 1101 et seq.; see also 8 U.S.C. §§ 1324a-1324b (employer sanctions and antidiscrimination scheme), 1324 (harboring provision). Congress has left no room for Hazleton to pass its own versions of such laws.
a) Housing provisions There can be no doubt that the federal immigration law is a comprehensive, and complex, regulatory scheme. SeeHines, 312 At 69 (even in 1940, the immigration code was a “broad and comprehensive plan”). See also BaltazarAlcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (“[w]ith only a small degree of hyperbole, the immigration laws have been termed second only to the Internal Revenue Code in complexity.”) (citation omitted) (alteration in original). Today, the INA, 8 U.S.C. 1101 et seq., and its associated regulations in Title 8 of the Code of Federal Regulations, contain a myriad of interrelated provisions establishing, among other things, numerous immigration categories; civil and criminal sanctions for various violations; and extensive procedures for determining status and removability. See, e.g., 8 U.S.C. § 1154 (procedure for granting immigrant status); §§ 1228-1252 (relating to removal proceedings and judicial review of removal decisions); §§ 1255-1259 (relating to adjustment of status); 8 U.S.C. § 1229a (removal proceedings). Thousands of federal officials in numerous federal agencies enforce the statutes and regulations, confer benefits, make discretionary determinations, undertake adjudications, and otherwise administer the immigration laws. Because the Tenant Registration Ordinance creates independent immigration statuses and an independent system for determining status within that system, it is field preempted by the INA’s comprehensive alien classification scheme.
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Similarly, the Revised Immigration Ordinance’s “harboring” provision is, first and foremost, an attempt to prevent those defined as “illegal aliens” from living or working in Hazleton. The INA’s overall legislative scheme is devoted precisely to determining who may and who may not live in the United States, and it admits of no state or local legislation in the same field.
Moreover, federal immigration law has long contained provisions specifically directed at the harboring of immigration violators. Congress has carefully calibrated and modified the reach and penalties of the federal harboring statute over many years. See United States v. Kim, infra (analyzing 1986 amendments to harboring statute to determine whether harboring could apply to employment); United States v. Lopez, 521 F.2d 437, 440-41 (2d Cir. 1975) (describing legislative history in determining reach of earlier statute). There is no suggestion that Congress has invited or would countenance state laws in this field.
Hazleton’s Motion to Dismiss does not dispute that § 5 of the Immigration Ordinance is an attempt to legislate in the same field as federal law. Rather, Hazleton asserts that “[e]nacting such harboring provisions is well within the authority of a municipality under the doctrine of ‘concurrent enforcement activity.’” Hazleton derives this “doctrine” from Gonzales v. City of Peoria, a case in which the Ninth Circuit specifically “assume[d] that the civil provisions of the [INA] … constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration.” 722 F.2d 468, 474-75 (9th Cir. 1983). But Gonzales is entirely inapposite. At most, that case authorized state and local participation in criminal immigration enforcement through the use of the arrest power. In contrast, with these Ordinances Hazleton is not merely enforcing
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federal laws but creating its own immigration laws. Nothing in Gonzales authorizes such action.
b) Employment provisions Congress has created a detailed, comprehensive, and nationwide employment verification and employer sanctions scheme that specifically preempts state and local attempts to create their own sanctions schemes. See 8 U.S.C. § 1324a. Hazleton nonetheless argues that the Revised Immigration Ordinance’s employment provisions are not field preempted, relying primarily on De Canas, a 1976 decision issued a decade before Congress enacted the federal employer sanctions scheme. Hazleton’s anachronistic argument fails entirely to grapple with the significant changes that have occurred since De Canas. At the time that De Canas was decided, there was no federal employer sanctions scheme and no general prohibition on hiring unauthorized aliens. In addition, the limited federal law relating to employment of aliens actually invited state regulation, stating that it was “intended to supplement State action” and explaining that it did not displace obligations under “appropriate State law and regulation.” De Canas, 424 U.S. at 362 (emphasis added). Accordingly, in De Canas the Supreme Court found that California’s employer-sanctions statute was not field preempted. 424 U.S. at 352, 352 n.1, 353 n.2. The Court subsequently emphasized that it had “rejected the pre-emption claim” in De Canas because “Congress intended that the States be allowed” to impose some regulation in this area. Toll, 458 U.S. at 13 n.18 (emphasis in original). In 1986, however, Congress passed IRCA, after lengthy and careful consideration of various legislative options. See 8 U.S.C. §§ 1324a-b; H.R. Rep.
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99-682(I), at 53-56 (recounting history of legislation). IRCA added employer sanctions and antidiscrimination provisions to the INA for the first time, removing its earlier permission for state regulation of employment and enacting instead an express bar on such regulation.
Hazleton’s field preemption argument nonetheless relies on language in De Canas explaining that in 1976 the Congress had not occupied the field of laws restricting the employment of aliens, explaining that employment of aliens was not a “central concern of the INA” and that it did not contain provisions ousting state authority regarding the employment of aliens. Def. Brief at 32-36. But that reasoning clearly does not survive Congress’s subsequent addition of specific provisions restricting the employment of aliens and providing a statutory scheme sanctioning employers who violate those provisions.7
Hazleton also argues that § 4 of the Immigration Ordinance falls within a parenthetical exception to IRCA’s express preemption provision, § 1324a(h)(2), which provides that “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” is preempted. Def. Brief at 36-37. Hazleton argues that because the Ordinance penalizes businesses by denying, suspending, or revoking their licenses and by imposing a novel treble-
7 Indeed, De Canas specifically concluded that “Congress’ failure to enact [] general [employer] sanctions reinforces the inference that may drawn from other congressional action that Congress believes this problem does not yet require uniform national rules.” 424 U.S. at 361 n.9 (emphasis added). Congress has since enacted precisely what the Court found lacking there: a general scheme of employer sanctions directly addressing the activity with which the local law was concerned.
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damages private right of action, it is a “licensing [or] similar law,” and therefore not preempted.
Hazleton’s argument cannot be sustained. First, the Ordinance’s novel treble-damages private right of action could not be considered “similar” to a licensing law, even in the broadest reading of the word “licensing.” As to the remainder of § 4, the mere fact that a local employer sanctions scheme imposes penalties by revoking licenses does not make it a “licensing law.” That would lead to the absurd conclusion that Congress intended that any civil or criminal sanction scheme, no matter how slight the penalties, would be preempted in favor of the uniform federal scheme, but that a scheme imposing the enormous penalty of entirely shuttering a business would be permitted simply because it does so through the revocation of a license.
Rather, the statute’s reference to “licensing” encompasses “lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation” — a finding that can only be made after extensive federal proceedings, see 8 U.S.C. § 1324a(e) — or “licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662 (emphasis added). The Ordinance does not fall within either of these categories.8
8 Contrary to Hazleton’s contention, Def. Brief at 49-51, Plaintiffs do not present a theory that would render § 1324a(h)(2) surplusage. Section 1324a(h)(2) establishes that certain state and local enactments are not preempted, and its scope
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In any event, even if some part of § 4 did fall within the exception in § 1324a(h)(2), the section would still be invalid because it stands as an obstacle to federal law and policy, as explained above. See Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002) (“Congress’ inclusion of an express pre-emption clause does not bar the ordinary working of conflict pre-emption principles” (punctuation and citation omitted)); see also Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000) (finding conflict preemption even where state action fell outside express preemption clause).
3. The Ordinances Impermissibly Regulate Immigration. Finally, Hazleton’s Motion to Dismiss should be denied and Plaintiffs are entitled to summary judgment because the Ordinances are invalid for the separate and additional reason that they are impermissible attempts to regulate immigration. The regulation of immigration is constitutionally reserved to the federal government, such that even if Congress had not legislated on the same subject matter, the Ordinances would be invalid. State or local laws that encroach on this exclusive federal power can be described as “constitutionally preempted.” Admittedly, not all laws touching on aliens amount to impermissible attempts to regulate immigration. For example, in De Canas, the Supreme Court found that California’s law aimed narrowly at “strengthen[ing California’s] economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to
is explained above. The fact that § 1324a(h)(2) does not control this case does not make it meaningless.
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employment,” which had at most “some purely speculative and indirect impact on immigration,” was not constitutionally preempted. 424 U.S. at 355-56.
The Ordinances at issue here are very different. Taken together, they set forth a broad and integrated scheme that combines multiple provisions addressing different areas – tenant registration, harboring, and employment – to single out certain individuals on the basis of their immigration status and remove them from Hazleton by making it impossible for them to live or work in the locate, and going so far as to directly regulate who may rent housing within Hazleton based upon the immigration status of the tenants or occupants. See Immigration Ordinance § 7.B. The Supreme Court never has allowed states or municipalities to regulate aliens in this manner. Making rules about who may stay and who must depart, and effectuating that departure is the very core of immigration regulation.
Hazleton asserts that the De Canas Court’s statement that certain earlier cases whose “doctrinal foundations … [have been] undermined … remain authority that, standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted to the country, and the conditions under which a legal entrant may remain,” forecloses any finding that Hazleton’s Ordinances are constitutionally preempted. Id. at 355; Def. Brief at 26, 29.
Hazleton is mistaken. If that dicta set forth the entire scope of the exclusive federal immigration power, there would have been no reason for the De Canas Court to explain that the state statute focused on a local economic problem and that it had at most some purely speculative and indirect impact on immigration; the fact that the statute did not involve determinations of who was lawfully admitted and
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the conditions under which lawful entrants may remain would suffice to make it constitutional. The fallacy of Hazleton’s argument is apparent because the Supreme Court has repeatedly invalidated state statutes that amount to an “assertion of the right to deny entrance and abode” to aliens (emphasis added), even where the statutes did not expressly address admissions or set conditions on lawful entrance. See, e.g., Truax, 239 U.S. at 135; Graham, 403 U.S. at 380.
Furthermore, as a logical matter, the power to regulate immigration would be hollow if it did not include the power to expel those who violated admissions or other criteria – that is, if it did not include laws regulating “illegal,” as well as “legal entrants.”9 Otherwise, each city and town in the United States could, on its own, detain and actually deport any individual who was not in a lawful immigration status, or subject such an individual to arbitrary criminal penalties invented by the municipality. Such measures clearly are not consistent with the constitutional reservation of immigration power to the federal government. Nor are the Ordinances at issue here.
Hazleton’s novel proposed use of federal verification, even if such a system existed and had been approved for use, does not ameliorate the Ordinances’
9 See also In re Alien Children Education Litigation, 501 F. Supp. 544, 578 (S.D. Texas 1980) (“Measures intended to increase or decrease immigration, whether legal or illegal, are the province of the federal government.”), aff’d sub nom. Plyler v. Doe, 457 U.S. 202 (1982); Brief for the Secretary of Health and Human Services in Opposition to Petition for Writ of Certiorari, City of Chicago v. Shalala, 1999 WL 33632748 (Feb. 2000) at 13 n.7 (“De Canas stands only for the proposition that courts will not automatically strike down every state statute that adversely affects some group of aliens, if there is no conflict between the state and federal law. De Canas does not suggest that the federal government’s extensive power over aliens is limited to the power to make decisions about who should be permitted to immigrate.”) (Emphasis added.)
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encroachment on federal power. The presence or absence of federal verification does not alter the fact that Hazleton has, independently of the federal government, designed its own system of laws and enforcement that seek to regulate the presence of foreign nationals within Hazleton’s borders. This it cannot do.
Moreover, Hazleton has not included any verification procedure in the Tenant Registration Ordinance. The terms of that Ordinance require City officials to determine whether each tenant in Hazleton has presented “proof of legal citizenship and/or residency.”10 As explained above, this Ordinance requires Hazleton to create its own definition of “legal … residency” and empowers its officials to make Hazleton’s own determinations of who is or is not a legal resident for the purposes of the Tenant Registration Ordinance. These actions encroach on the federal immigration regulation power. Plyler, 457 U.S. at 225 (“The States enjoy no power with respect to the classification of aliens.”); id. at 236 (Marshall, J., concurring) (any attempt to “determine which aliens are entitled to residence … would involve the State in the administration of the immigration laws”); League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 769-771 (C.D. Cal. 1995) (invalidating state law provisions classifying aliens as unconstitutional regulation of immigration); accord Chy Lung, 92 U.S. at 279-81 (rejecting state statute that allowed state commissioner to classify arriving immigrants). In addition, Hazleton officials lack expertise in complicated immigration matters, will
10 Section 7 of Ordinance 2006-40 may restrict Hazleton officials from making independent determinations of status in the context of administering that Ordinance. It does not, however, purport to enact a general bar on any determination of status by Hazleton officials, and any such bar would conflict with the terms of the Tenant Registration Ordinance.
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be unable to identify or understand the many varieties of immigration documentation, and will undoubtedly make mistakes in attempting to enforce the Tenant Registration Ordinance.11
Taking the allegation sin the Second Amended Complaint, and all inferences thereform, it is clear that Plaintiffs have raised allegations that the Revised Immigration Ordinance and Tenant Registration Ordinance cannot stand under the Supremacy Clause. Given Hazleton’s reliance on cases with inapplicable holdings, the Ordinances’ clear conflict an interference with federal laws and intrusion into a field fully occupied by federal laws, the lack of any indication that Congress has granted authority relative to any immigration matter, and ample precedence demonstrating that local laws concerning immigration matters have been
11 Federal immigration law is infamously complex. See Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) (describing “the labyrinthine character of modern immigration law” as “a maze of hyper-technical statutes and regulations”); see also, e.g., Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988). Adding to the difficulty of determining status is the fact that many types of documents, such as court decisions, letters from federal immigration agencies, and passport inserts, may constitute valid proof of immigration status but may not be so regarded by untrained persons. And, to make matters still more complex, it cannot be assumed that a person who does not have identification documents clearly describing her immigration status is in the United States in violation of federal law. For example, many nationals of Honduras who have been granted Temporary Protected Status (“TPS”) have been issued Employment Authorization Documents (“EADs”) with an expiration date of July 5, 2006. The federal government has since extended the designation of Honduras for TPS by another year and has published a Federal Register notice indicating that these EADs are to be considered valid through January 5, 2007. 71 Fed. Reg. 16,333 (Mar. 31, 2006). Yet a person untrained in immigration law is likely to believe that an apparently expired EAD is an indication of “illegal alien” status.
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determined to be in violation of the Supremacy Clause under one or more of the three applicable standards, this Court should deny Hazleton’s Motion to Dismiss.
Plaintiffs have shown that the Ordinances are preempted because they regulate immigration, which is an area reserved solely to the federal government. Accordingly, this Court should grant summary judgment in Plaintiffs’ favor on Count I of the Second Amended Complaint.
B. The Revised Immigration Ordinance Violates Fourteenth Amendment Procedural Due Process Guarantee
Hazleton asserts that Plaintiffs do not have a legally cognizable liberty or property interest in housing or employment that would trigger procedural protections. Def. Brief at 51-56. Hazleton further asserts that, even if protectable interests are implicated, the Revised Immigration Ordinance affords sufficient due process. Def. Brief at 56-63. Thus, Hazleton argues its Motion to Dismiss should be granted. As discussed below, this Court should deny Hazleton’s motion on this claim because Hazleton’s argument is based on (1) facts outside of the pleadings, (2) facts that contradict allegations in the Second Amended Complaint, which must be accepted as true, (3) facts that are not supported by the evidence developed in discovery, and (4) on a disingenuous interpretation of the law. Because the Second Amended Complaint sufficiently alleges a violation of constitutional due process rights,12 Hazleton’s Motion on this claim should be denied. Moreover, based on the evidence developed during discovery, the Revised Immigration Ordinance is so procedurally deficient that in fact this Court should grant Plaintiffs’ summary judgment motion on the Fourteenth Amendment procedural due process claim.
12 Plaintiffs’ procedural due process allegations are found at paragraphs 56-83 and 132-45 of the Second Amended Complaint.
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1. The Law Regarding Procedural Due Process Claims is Well Established.
The Fourteenth Amendment provides that “no person shall be deprived of life, liberty, or property without due process of law.” U. S. Const. Amend. XIV. "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original; citations omitted). “Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978).
The Supreme Court has established a two-step test for examining procedural due process claims: the first asks whether there exists a liberty or property interest that has been interfered with by the State; the second examines whether the procedures that attend the deprivation are constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted); accord, Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).
The Revised Immigration Ordinance deprives Plaintiffs of both “property” and “liberty” interests. Property interests are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (citations omitted).13 “Liberty interests that trigger procedural due process
13 “One alleging a property interest in a benefit protected by due process must go beyond showing an unsubstantiated expectation of the benefit. To have a
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may be created by state law or by the federal constitution itself.” E.B. v. Verniero, 119 F.3d 1077, 1105 (3d Cir. 1997), cert. denied, 522 U.S. 1109 (1998), citing Sandin v. Connor, 515 U.S. 472 (1995).14
Once a protected liberty or property interest has been identified, the focus shifts to assessing the quality and timing of the process due. The test, first enunciated in Mathews v. Eldridge, 424 U.S. 319 (1976), requires this Court to balance three factors: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 334-35; accord E.B., 119 F.3d at
property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1256 (3d Cir. 1994) (citations omitted). 14 Protectable liberty interests extend beyond,
merely freedom from bodily restraint but also [to] the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed. Board of Regents v. Roth, 408 U.S. 564, 572 (1972) (emphasis added).
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1106-07. We now apply the procedural due-process analysis to the Revised Immigration Ordinance.
2. Section 4 of the Revised Immigration Ordinance Interferes with Liberty and Property Interests of both Employers and their Employees.
Both employers and employees have protected interests in the employment contract. From the employees’ perspective the ability to earn a living is critical: "[T]he significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood.” Loudermill, 470 U.S. at 543. As a result, for nearly a century courts have ruled that, “The right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within both the ‘liberty’ and ‘property’ concepts of the Fifth and Fourteenth Amendments.” Piecknick, 36 F.3d at 1259, quoting Greene v. McElroy, 360 U.S. 474, 492 (1959).15 Article I, § 1 of the Pennsylvania Constitution provides an independent state-law ground for this right. See Nixon v. Commonwealth, 839 A.2d 277, 288 (Pa. 2003).16
15 See also Conn v. Gabbert, 526 U.S. 286 (1999) (“Fourteenth Amendment's Due Process Clause includes some generalized due process right to choose one's field of private employment….”); Truax v. Raich, 239 U.S. 33, 41 (1915) (“the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure”). 16 Plaintiffs recognize that, “It is the liberty to pursue a particular calling or occupation and not the right to a specific job that is protected by the Fourteenth Amendment.” Piecknick, 36 F.3d at 1262 (citation omitted). But the effect of a Hazleton decision that a person is an unlawful worker is more akin to a situation “in which a person’s license to pursue a chosen occupation is revoked or substantially interfered with . . . or where there is harm to an individual’s
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From the employer’s perspective, the right is viewed as an interest in continuing the business and the right to contract with employees. See, e.g., College Savings Bank v. Florida Prepaid Postsecondary Educ. Exp. Bd., 131 F.3d 353, 361 (3d Cir. 1997) (“Clearly, a business is an established property right entitled to protection under the Fourteenth Amendment”), aff’d, 527 U.S. 666, 675 (1999) (“The assets of a business (including its good will) unquestionably are property, and any state taking of those assets is unquestionably a ‘deprivation’ under the Fourteenth Amendment”) (parenthetical in original); Roth, 408 U.S. at 572; Small v. United States, 333 F.2d 702, 704 (3d Cir. 1964). Section 4 effects deprivations of constitutionally protected liberty and property interests by giving Hazleton the power to suspend the business permit of any entity that has been accused of employing an “unlawful worker.” And while it is true that the federal immigration laws prohibit certain non-citizens from working, it cannot be assumed ex ante that Hazleton’s determinations about who is an “unlawful worker” are correct; it is precisely that determination that must be subjected to due process before we can know whether it is indeed correct and before sanctions may be imposed.
3. Section 5 of the Revised Immigration Ordinance Implicates Landlords’ and Tenants’ Property Interests.
Both landlords and tenants have a “property interest” in their homes and apartments because real property is considered a fundamental right under the U. S. and Pennsylvania Constitutions. The U.S. Supreme Court has ruled that the “right
reputation,” both of which implicate a protectable liberty interest. Id. at 1261. The decision is not about whether a person should or should not be in a “specific job”; it prohibits the person from any calling, occupation or indeed gainful employment within the City.
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to maintain control over [one’s] home, and to be free from governmental interference, is a private interest of historic and continuing importance.” United States v. James Daniel Good Real Property, 510 U.S. 43, 53-54 (1993).17 A corresponding right exists under state law: “An owner of property in this Commonwealth has a tremendously prized and fundamental Constitutional right to use his property as he pleases. . . .” Parker v. Hough, 215 A.2d 667, 669 (Pa. 1966) (citations omitted). The deprivation of real property need not be total or complete to trigger procedural protections. “[E]ven . . . temporary or partial impairments to property rights . . . ‘are subject to the strictures of due process.’” Connecticut v. Doehr, 501 U.S. 1, 12 (1991) (citations omitted).
Both landlords and tenants have protected interests in a government’s decision to terminate a tenancy. Procedural due process must attend governmental deprivations of both a landlord’s rental income, James Daniel Good Real Property, 510 U.S. at 54, and a tenant’s continued residence in the rental property, Greene v. Lindsey, 456 U.S. 444, 450-51 (1982). Consequently, Section 5 effects a deprivation of both landlords’ and tenants’ protected property interests.
17 See also, Erwin Chemerinsky, Constitutional Law: Principles and Policies, 536 (2002) (“There never has been doubt that the government must provide due process before it deprives a person of real or personal property”); Dennison v. Pennsylvania Dept. of Corrections, 28 F.Supp.2d 387, 400 (M.D.Pa. 2003) (“Real property ownership has been historically protected by the Constitution and is considered fundamental to American society”), quoting Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 229-230 (1985) (Powell, J., concurring).
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4. Hazleton’s Argument that Plaintiffs have no Protectable Liberty or Property Interest in Employment or Housing Stands Procedural Due Process Law on its Head.
Hazleton argues that Plaintiffs have no cognizable legal interest in employment or housing because if illegal aliens are involved those contractual relationships are illegal and “void ab initio.” Def. Brief at 51-56. This argument stands the concept of procedural due process on its head. The allegation that an employee is an “unlawful worker” or that a tenant is an “illegal alien,” which if determined to be true would under the Revised Immigration Ordinance deprive a person of his or her employment and housing in Hazleton, is precisely the determination that must be subjected to the crucible of due process. Hazleton’s argument assumes that which must be determined by the proceedings.
In addition, the cases on which Hazleton relies to make this argument are inapposite. See Def. Brief at 52-56. The cases all involve situations with no disputed facts, i.e., contracts that are illegal on their face, either because the employer was not authorized under state law to include the particular terms, see, e.g., Cooley v. Pennsylvania Housing Fin. Agency, 830 F.2d 469 (3d Cir. 1987); Demko v. Luzerne Co. Comm. College, 13 F. Supp. 2d 722 (M.D. Pa. 2000), or the agreement violated a zoning ordinance, see Ruiz v. New Garden Twnshp., 376 F.3d 203 (3d Cir. 2004). It was unnecessary to look beyond the terms of the contractual language to know the agreement was illegal and, thus, the documents could not support a property-interest finding. As the Supreme Court held recently, if there are no relevant facts in dispute, there is no due process right. See Connecticut Dept. of Pub. Safety v. Doe, 538 U.S. 1, 5 (2003) (“Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to
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establish in that hearing are relevant under the statutory scheme”). That characterization applies to the cases cited by Hazleton.
By contrast, in this case the employment or housing agreements are not facially illegal; they might be illegal if an employee is determined to be an “unlawful worker” or a tenant is found to be an “illegal alien” and if the employer or landlord had knowledge of that fact. But whether the person really meets the Revised Immigration Ordinance’s definition of “unlawful worker” or “illegal alien” is a determination that is dependent on facts beyond the four corners of the agreement. These are the key facts on which everything turns; facts that are likely to be disputed and, thereby, subject to procedural protections. By asserting that illegal immigrants have no rights and, therefore, do not deserve due process, Hazleton is putting the proverbial cart before the horse. Moreover, the argument contravenes black-letter law that even illegal immigrants enjoy due process rights. See, e.g., Kamara v. Attorney General of U.S., 420 F.3d 202, 216 (3d Cir. 2005) (“Due Process Clause of the Fourteenth Amendment applies to all ‘persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”) (citations omitted).
Therefore, this Court should reject Hazleton’s argument that the Revised Immigration Ordinance does not implicate protectable interests necessitating due process. We turn now to whether Hazleton has provided constitutionally adequate procedural protections in the employment and housing contexts.
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5. Hazleton’s Purported Procedural Due Process is Deficient Because the so-called Administrative Protections attend an as-yet Undefined and Unapproved Verification Process and the Judicial Protections send Aggrieved Parties to Tribunals with no Legal Authority to Resolve the Dispute.
Having established that the Ordinances will result in depriving Plaintiffs of protected interests in housing and employment, the analysis turns to what procedural protections are due. “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). See also, Mathews, 424 U.S. at 333 (The “right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”). Except in “extraordinary situations,” the due process must precede the deprivation. James Daniel Good Real Property, 510 U.S. at 53 (citations omitted).
The procedural due process afforded under the Revised Immigration Ordinance is not simply constitutionally deficient; it is illusory. The Revised Immigration Ordinance’s enforcement scheme fails to afford any aggrieved party, i.e., employers, employees, landlords or tenants, meaningful and constitutionally adequate due process, either prior to or even after, ordering the deprivation of protected liberty or property interests. The process is essentially the same for both the employment and housing sections. Compare Revised Immigration Ordinance, § 4.B. with § 5.B.
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Enforcement is initiated by a complaint, lodged with the Hazleton Code Enforcement Officer (hereafter “Code Officer”), which can be filed by virtually anyone, including Hazleton City employees. §§ 4.B.1 and 5.B.1. Within three days the Code Officer is required to “request identity information” from the business entity regarding the complained-about employee(s). Id. at § 4.B.3. The Ordinance does not define “identity information” and, as noted above, information collected as part of the federal employment-verification process is confidential under federal law. 8 U.S.C. § 1324a(b)(5). An employer’s failure to provide identity information within three days results in the suspension of the business permit, which makes continued operation illegal. Id. The Revised Immigration Ordinance’s housing section does not provide a corresponding process for obtaining identity information regarding the complained-about tenant, but Hazleton will already have that information through the Registration Ordinance, which requires tenants to provide “[p]roper identification showing proof of legal citizenship and/or residency” as a condition of receiving an occupancy permit. Ordinance 2006-13 § 7.b.1.g.
Upon receipt of the identity information, the Revised Immigration Ordinance directs the Code Officer to submit the documents to the federal government for verification. 2006-18 §§ 4.b.3 and 5.b.3. The Revised Immigration Ordinance is silent on exactly how this verification will work, except to say that it will occur “pursuant to United States Code Title 8, section 1373….” Id. That U.S. Code provision does not establish a verification mechanism.
Under the Revised Immigration Ordinance, Hazleton would submit an allegedly illegal employee’s or tenant’s identity papers (whatever those may be) to
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a completely undefined and as-yet-unapproved federal verification process. As of January 31, 2007, Hazleton could not identify to whom in the federal government the identity information would be sent and the details of how the verification would occur. See Barletta Jan. 31, 2007, deposition at 122:07 – 124:24. Significantly, as of that date no federal agency had approved a verification method that Hazleton could use to ascertain immigration status of individuals alleged to be illegally working or housed in the City. Id. There are no, and can be no, meaningful procedures because there is as yet no approved verification system and no federal agency designated to determine a immigrant’s status for the purposes contemplated by the Ordinances. If there is no verification mechanism in place any alleged due process protections are a sham. Hazleton’s claim that allowing employers (Def. Brief at 57) and landlords (id. at 60-61) to provide identity documents (but not get a hearing or any adversarial proceeding) constitutes “extensive due process” is greatly exaggerated to begin with, but the argument is farcical when viewed in light of the fact that there is no verification process to which procedural protections can be attached.18
18 Even assuming, arguendo, that the federal government eventually authorized Hazleton to use the SAVE system to conduct the verification, the procedural protections are still deficient. As discussed in the pre-emption section, supra, a SAVE “response showing no Service record on an individual or an immigration status making the individual ineligible for a benefit is not a finding of fact or conclusion of law that the individual is not lawfully present.” 65 Fed. Reg. 58301. Indeed, the determination that a individual is unlawfully present can be made only through formal procedures set forth in the INA and associated regulations, which procedures are subject to appeal and judicial review in the federal courts. Yet the Revised Immigration Ordinance makes a SAVE “verification” that a person is not “lawfully present” a “rebuttable presumption as to that individual’s status in any judicial proceedings brought pursuant to this ordinance” and purports to authorize courts to “take judicial notice” of the SAVE verification. 2006-40 § 7.G.
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Beyond the as-yet non-existent verification system, the purported judicial protections recently tacked in the Revised Immigration Ordinance are meaningless. Giving people access to local and state courts is an empty gesture because those tribunals have neither the expertise nor, more importantly, the legal authority to adjudicate immigration-status disputes. The venues provided by the Revised Immigration Ordinance for procedural due process are “the Magisterial District Court for the City of Hazleton, subject to the right of appeal to the Luzerne County Court of Common Pleas.” Ordinance 2006-40 § 7.F. See also Def. Brief at 57-58 and 61-63. But as discussed above, and as conceded by Hazleton, the determination of a person’s immigration status is one properly made at the federal level. Neither a local District Magistrate nor a Pennsylvania Common Pleas court judge is competent or legally authorized to determine a person’s immigration status. Consequently, the judicial process provided by Hazleton is also illusory.
Since Hazleton provides no meaningful procedural protections, either before or after depriving employers, employees, landlords and tenants of important rights, the Mathews factors clearly favor Plaintiffs. The “private interests” affected are important. The loss of livelihood and, even more so housing, creates a tremendous hardship. Since there are no administrative procedures (because there is no verification process to which they can be attached) and the judicial proceedings are effectively meaningless, there is no protection against “erroneous deprivation.” The absence of a meaningful process makes it irrelevant whether the law would allow the process to occur pre- or post-deprivation. On the third Mathews factor, a
Hazleton’s unapproved but proposed use of SAVE would be contrary to the parameters and guidelines of that system, compounding the pre-emption problems discussed earlier in this memorandum.
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“substitute procedural requirement” would be to await federal government action to identify, detain and deport people identified as being here illegally, a process that involves no “fiscal and administrative burdens” on Hazleton.
Taking the allegations in the Second Amended Complaint, and all inferences therefrom, it is clear that Plaintiffs have raised valid allegations that the Revised Immigration Ordinance is unconstitutional under Fourteenth Amendment Due Process standards. Accordingly, Hazleton’s Motion to Dismiss should be denied. Further, because it is clear that Hazleton’s Revised Immigration Ordinance fails to provide adequate procedural due process and thereby violates the Fourteenth Amendment, Plaintiffs Motion for Summary Judgment on Count II of the Second Amended Complaint should be granted.
C. The Revised Immigration Ordinance Uses Impermissible Classifications In Violation Of The Equal Protection Clause
The Revised Immigration Ordinance expressly allows the consideration of a person’s race and ethnicity to determine whether that person is an “unlawful worker” or “illegal alien” under the Ordinance. Specifically, the Ordinance allows Hazleton to consider those classifications as evidence of a violation when determining whether a complaint is valid, as defined by the Ordinance, as long as such evidence is not the primary basis for the complaint. By expressly allowing consideration of these suspect classifications19 in its enforcement scheme, the Ordinance violates the Equal Protection Clause of the Fourteenth Amendment.
Hazleton argues that Plaintiffs ground their equal protection claim on Hazleton’s disparate treatment of Plaintiffs based upon their immigration status.
19 See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985); United States v. Williams, 124 F.3d 411, 422 (3d Cir. 1997).
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Def. Brief at pp. 64-67. That assertion mischaracterizes Plaintiffs’ claim, which in fact targets the Ordinance’s reliance on classifications based on race, national origin and ethnicity. In fact, Plaintiffs have not only stated a claim that should not be dismissed under Fed. R.C.P. 12(b)(6) but have stated a claim for which summary judgment should be granted.
1. The Ordinance Expressly Permits Hazleton To Use Racial Classifications As Evidence Of A Violation
The Immigration Ordinance contains two parallel, and almost identical, complaint-based enforcement schemes, one to enforce the prohibitions against the employment of “unlawful workers” in the business permit context (Section 4.B.) and the other to enforce prohibitions against renting to “illegal aliens” section in the housing context (Section 5.B.). The business permits provisions state in part:
4.B. Enforcement: The Hazleton Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a written signed complaint to the Hazleton Code Enforcement Office submitted by any City official, business entity, or City resident. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
(2) A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.
(3) Upon receipt of a valid complaint, the Hazleton Code Enforcement Office shall, within three business days, request identity information from the business entity regarding any persons alleged to be unlawful workers. The Hazleton Code Enforcement Office shall
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suspend the business permit of any business entity which fails, within three business days after receipt of the request, to provide such information…. As set forth above, an enforcement action is initiated by means of a written signed complaint. If a complaint alleges the requisite information, it is to be considered a valid complaint, and an investigation is then mandated.20 Hazleton must make a request for certain identity information and, if the business entity does not respond within three days, Hazleton is directed to suspend its business permit indefinitely. The indefinite suspension can occur even before a finding of a violation of the Revised Immigration Ordinance.21 Under this Ordinance, Hazleton has committed itself to acing on complaints based in part upon race, ethnicity and national origin. The relevant text plainly states it is clear that as long as a complaint’s allegation of a violation is not “solely or primarily on the basis of national origin, ethnicity, or race,” the complaint is neither invalid nor unenforceable. Revised Immigration Ordinance, § 5.B.2. Accordingly, a complaint based in part on those suspect characteristics will be considered valid and enforceable. Hazleton’s suggestion that City officials will no act to enforce complaints based upon a prohibited characteristic does not solve the problem because the Revised Immigration Ordinance does not leave such matters
20 Though the procedures described are those dealing with allegations of business entities employing unlawful workers as set out in § 4.B, the procedures are identical for property owners alleged to have rented to “illegal aliens” under § 5.B.1 and 5b.2. However, the investigatory process under § 5.B.3 differs from that in § 4.B.3. 21 Under § 5.B.3 the Code Enforcement Office does not require property owners to provide the identity information of a tenant who is allegedly an “illegal alien” as § 4.B.3 does because that information, under Ordinance 2006-13, should already exist in Hazleton’s Tenant Registry.
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to the City’s discretion. That the Ordinance mandates that all valid complaints “shall” be enforced. Revised Immigration Ordinance §5.B.3.
Hazleton’s claim that the allowance for complaints partially based on national origin, race, or ethnicity is to allow for use of those characteristics on a purely descriptive basis is undermined by the text itself. Rather, the Revised Immigration Ordinance contemplates a “complaint which alleges a violation . . . on the basis of national origin, ethnicity, or race” and requires that the City take enforcement action based on such a complaint. Revised Immigration Ordinance, § 5.B.2 (emphasis added). In short, the provision goes to the core of the decisionmaking process within the enforcement mechanism, and does not merely restrict, as Hazleton suggests, the information that may be written in a complaint.
Hazleton further attempts to muddy the Court’s understanding of how the Revised Immigration Ordinance is to operate by reciting the language from § 4.B.1, which provision sets forth what allegations a complaint must contain for the complaint to be considered valid, including a requirement that a complaint describe “the alleged violator(s) as well as the actions constituting the violation.” Hazleton argues that § 4.B.1 somehow negates the plain meaning of § 4.B.2. In fact, § 4.B.1 in no way undercuts or alters the plain meaning of § 4.B.2. Section 4.B.2 is clearly intended to set forth the role that race, ethnicity and national origin are to play in Hazleton’s determination whether the allegations in a complaint adequately describe a violation of the Revised Immigration Ordinance. Section 4.B.2 expressly states that those factors – race, ethnicity, and national origin – can serve as evidence of “unlawfulness” so long as they are not the primary or sole evidence of the unlawfulness. Put more concretely, an allegation
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that a worker is Latino can serve as evidence of a worker’s unlawfulness; it just can not constitute the sole or primary evidence of the worker’s unlawfulness. As such, the Ordinance clearly relies on racial, ethic and national origin classifications in determining whether the complaint is valid.
2. The Equal Protection Clause Prohibits the Use of Race as Evidence of a Violation.
In order to be valid, the Revised Immigration Ordinance’s reliance on racial classifications must pass muster under the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court has made clear that “all racial classifications [imposed by government] . . . must be analyzed by a review court under strict scrutiny.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) (subcontractor denied contract as result of contract's incentives for hiring disadvantaged subcontractor had standing to seek forward-looking relief against future use of such clauses on equal protection grounds). “Under strict scrutiny, the government has the burden of proving that racial classifications ‘are narrowly tailored measures that further compelling governmental interests.” Johnson v. California, 543 U.S. 499, 505 (2005) (citing Adarand Constructors, supra) (strict scrutiny, rather than “reasonably related to legitimate penological interest” standard, governed inmate's challenge policy of initially placing new inmates with cellmates of same race); see also Lomack v. City of Newark, 463 F.3d 303, 307 (3d Cir. 2006) (racial balancing policy in fire department violated equal protection as racial classifications receive close scrutiny even if intended to burden or benefit the races equally).
The Johnson Court explained why strict scrutiny applies to any instance where the government uses racial classifications, even for so-called benign use:
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The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and again that, “[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining ••• what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. We therefore apply strict scrutiny to all racial classifications to “‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.” (citations omitted; emphasis in the original). Johnson, 543 U.S. at 505-06. The use of racial classifications in the administration of justice, as in the instant case, is particularly troublesome.
Race discrimination is “especially pernicious in the administration of justice.” And public respect for our system of justice is undermined when the system discriminates based on race. (citations omitted) Id. at 511. As explained above, the Ordinance relies on racial classifications by allowing race to serve as evidence of a worker’s or tenant’s unlawfulness for purposes of determining whether the allegations in a complaint constitute a valid complaint. Thus, the burden falls upon Hazleton to establish a compelling governmental interest to justify its actions. Hazleton knows it can not meet that burden and does not attempt to do so. In its Motion to Dismiss, Hazleton acknowledges that strict scrutiny applies where the government classifies according to race or national origin but then goes on to deny that the Revised Immigration Ordinance relies on racial classifications, a
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denial that, as shown above, is contrary to the plain language of the Ordinance. See Def. Brief at 65-67.
It is difficult to imagine what governmental interest could be so compelling so as to justify such an overtly discriminatory scheme. Hazleton cannot escape strict scrutiny by arguing that the Revised Immigration Ordinance is racially neutral and does not use race to either benefit or burden the alleged violator. The Court in Johnson resoundingly rejected this argument presented on behalf of the California Department of Corrections (CDC):
The CDC claims that its policy should be exempt from our categorical rule because it is “neutral”–that is, it “neither benefits nor burdens one group or individual more than any other group or individual.” … The CDC’s argument ignores our repeated command that “racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally.” Indeed, we rejected the notion that separate can ever be equal-or “neutral”–50 years ago in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and we refuse to resurrect it today. (citations omitted). Id. at 507. The constitutional infirmity is not cured by any claim that, under the Revised Immigration Ordinance, race does not serve as the “sole or primary” basis for establishing the validity of a complaint. Recognizing that is rare to see race as the only factor involved in any challenged practice, the constitutional bar on the use of racial classifications is not evaded, minimized, or undone simply because there are other factors involved in a process challenged as violating equal protection. See, e.g,. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268 (1977) (rarely are legislative or administrative decisions
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motivated by a single concern). By allowing selective prosecution or enforcement of laws based on the race of an individual, the Revised Immigration Ordinance violates equal protection standards. See also Christopher v. Nestlerode, 373 F.Supp.2d 503, 519 (M.D.Pa. 2005) (“selective enforcement of laws or regulations, based on race or ethnicity of an individual, may give rise to a violation of the Fourteenth Amendment,” citing Bradley v. United States, 299 F.3d 197, 206-07 (3d Cir. 2002) (in selective enforcement claim, passenger failed to prove that customs inspectors treated her differently than other similarly situated passengers). By making race a relevant consideration in enforcing the Ordinance, Hazleton “threatens to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility . . . [and] to reinforce racial and ethnic divisions.” Johnson v. California, 543 U.S. 507 (2005). The potential for aggravating racial hostilities is immense if Hazleton residents were permitted to single out other persons for prosecution under the Revised Immigration Ordinance based upon their race or ethnicity.22 This Court must not allow such a scheme to govern.
Plaintiffs have sufficiently alleged that the Revised Immigration Ordinance violates Equal Protection standards. Accordingly, Hazleton’s Motion to Dismiss must be denied. Further, the clearly apparent Equal Protection violations require that Plaintiffs’ Motion for Summary Judgment on Count III of the Second Amended Complaint be granted.
22 This is not a case like Brown v. Oneonta, 221 F3d. 329 (2nd Cir.) involving the use of race to describe a suspect; the Revised Immigration Ordinance permits the use of race as evidence of a violation of the Ordinance, not simply as a means to identify a suspected violator.
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D. The Ordinances Violate The Fair Housing Act In their Motion to Dismiss, Hazleton argues that “illegal aliens” are not within the class of persons protected by the Fair Housing Act (“FHA”), 42 U.S.C. §3601 et seq. and denies that the Ordinances have a discriminatory effect. The FHA prohibits discrimination based, inter alia, on race, color or national origin in all housing-related matters. 42 U.S.C. §3604 et seq. In particular, the FHA makes it unlawful: (1) “To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin” (42 U.S.C. §3604(a) (emphasis added)) and (2) “To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” (42 U.S.C. §3604(b) (emphasis added)). Discrimination under §§ 3604(a)-(b) can be established either on a theory of intentional discrimination (disparate treatment) or discriminatory effect (disparate impact). See, e.g., Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 141-44 (3d Cir. 1977). There can be no question that the harboring enforcement scheme of the Revised Immigration Ordinance violates the FHA. Hazleton’s reliance on race and national origin as a basis upon which a complaint can be made and investigated violates Sections 3604(a)-(c) of the FHA. As explained above, the Ordinance deems valid and enforceable any complaint which alleges a violation in part on the basis of national origin, ethnicity, or race. Accordingly, under the text of the Revised Immigration Ordinance, the basis or justification for the allegation itself
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may be, in part, one of the characteristics prohibited under the FHA. Such a race, national origin, or ethnicity-based allegation may then trigger enforcement against an individual and lead to eviction or displacement from the residence. Although Hazleton claims that its officials may only consider neutral reasons in determining whether the enforce a complaint, the plain words of § 5(B)(2) are to the contrary.
By the same token, § 5.B.2 makes an express statement that race, ethnicity, and national origin may be used as one factor in identifying persons not entitled to reside in Hazleton, in violation of 42 U.S.C. § 3604(c). See, e.g., United States v. Hunter, 459 F.2d 205, 210 (4th Cir. 1972) (emphasizing that § 3604(c) “applies on its face to ‘anyone’” making discriminatory statements); see also Mayers v. Ridley, 465 F.2d 630, 653 (D.C. Cir. 1972) (Wilkey, J., concurring) (describing the “discouraging psychological effect” discriminatory statements); Robert G. Schwemm, Discriminatory Housing Statements and 3604(c): a New Look at the Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, 249-50 (2001) (discussing § 3604(c)’s purpose of protecting minorities from the insult caused by statements of discrimination).
In the same way, the Revised Immigration Ordinance intentionally makes dwellings unavailable on the basis of race, ethnicity, and national origin, in violation of 42 U.S.C. § 3604(a). As the Third Circuit has made clear in the Fair Housing Act context: “Where a regulation or policy facially discriminates on the basis of the protected trait [e.g., race or national origin], in certain circumstances it may constitute per se or explicit . . . discrimination because the protected trait by definition plays a role in the decision-making process.” Community Services, Inc.
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v. Wind Gap Municipal Authority, 421 F.3d 170, 177 (3d Cir. 2005) (internal punctuation omitted).
In addition, as a result of Revised Immigration Ordinance’s sanctioned use of the prohibited categories of race, ethnicity, and national origin as the basis for a complaint, the Ordinance will have a disparate impact on the ability of persons of minority races, ethnicities, or national origins, and in particular Latinos, to obtain housing or continue to reside in Hazleton. See 42 U.S.C. § 3604(a).
Further, the Revised Immigration Ordinance’s reliance on race, ethnicity, or national origin as one factor, and not the “sole or primary” basis for a complaint does not lessen in any way Hazleton’s liability under the Fair Housing Act. It is well established that the FHA is violated as long as “some discriminatory purpose was a ‘motivating factor’ behind the challenged action. Wind Gap Municipal Authority, 421 F. 3d at 177. As the Third Circuit has emphasized: “[t]he discriminatory purpose need not be malicious or invidious, nor need it figure in ‘solely, primarily, or even predominantly’ into the motivation behind the challenged action.” Id.
Hazleton asserts that City employees “[]may only consider race/ethnicity/origin-neutral factors when deciding whether or not a complaint is a valid one that warrants further investigation.” See Def. Brief at 70. What Hazleton identifies as “neutral factors” are in fact impermissible factors under the statutory scheme and case law interpreting the Fair Housing Act.
Further, the Tenant Registration Ordinance’s requirement that tenants show proof of lawful immigration status, without a concomitant prohibition on discrimination by housing providers, will result in a disparate adverse impact on
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the ability of minority housing seekers to obtain housing in Hazleton, in violation of the FHA.
Plaintiffs have sufficiently alleged that the Revised Immigration Ordinance and Tenant Registration Ordinance raise disparate treatment and disparate impact claims under the FHA and that persons of minority races, ethnicities, or national origins, and in particular Latinos, in Hazleton will be subjected to unequal treatment in attaining and maintaining peaceful habitation upon the implementation of these Ordinances, in clear violation of the FHA. Accordingly, Hazleton’s Motion to Dismiss must be denied. Further, because the Ordinances plainly contravenes the FHA, Plaintiffs’ Motion for Summary Judgment on Count IV of the Second Amended Complaint should be granted.
E. The Ordinances Volate 42 U.S.C.§ 1981 Prohibition Against Alienage Discrimination
Section 1981 protects the right of “all persons” to, inter alia, make and enforce contracts and obtain the “full and equal benefit of all laws” on equal footing with “white citizens.” 42 U.S.C. § 1981(a). 23 Section 1981 thus prohibits
23 The statute provides in full: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of
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discrimination based on both race and alienage. Hazleton’s Ordinances violate § 1981 in several respects: by making both housing and employment unavailable based on race pursuant to the Revised Immigration Ordinance, as explained above; and by making housing unavailable based on alienage pursuant to both the Revised Immigration Ordinance and the Tenant Registration Ordinance.
Hazleton erroneously assert that Plaintiffs’ alienage discrimination claim under 42 U.S.C. § 1981 must be dismissed because § 1981 does not apply to persons lacking lawful immigration status. Def. Brief at 69.
First, Hazleton is wholly mistaken in its assertion that the protections of § 1981 do not extend to undocumented persons. The text of § 1981 itself makes clear that it applies to “[a]ll persons within the jurisdiction of the United States.” 42 U.S.C. § 1981(a). As the Supreme Court has repeatedly held: “Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.” Plyler v. Doe, 457 U.S. 202, 210 (1982). See also, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (“[The Fourteenth Amendment’s] provisions are universal in their application, to all persons within
contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 42 U.S.C. § 1981.
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the territorial jurisdiction.”) (emphasis added). The Supreme Court has expressly noted that the language of § 1981 is based on the Fourteenth Amendment: “[Section 1981] and the Fourteenth Amendment on which it rests in part protect ‘all persons’ against state legislation bearing unequally upon them either because of alienage or color.” Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419-20 (emphasis added). Thus, just as an “alien[] whose presence in this country is unlawful” is a “person[]” as that term is used in the text of the Fifth and Fourteenth Amendments to the U.S. Constitution (Plyler, 457 U.S. at 210), he or she is likewise a “person” within the meaning of § 1981.24 Hazleton’ argument – that undocumented persons are not “persons” – has been resoundingly rejected by the courts.
Second, Hazleton argues that if undocumented persons were protected by § 1981’s prohibition on alienage, then undocumented workers could bring § 1981 claims against employers for failing to hire them when those employers were merely trying to comply with federal immigration law. Def. Brief at 70-71. Hazleton misconstrues Plaintiffs’ claim. Nowhere do Plaintiffs claim that Hazleton has violated § 1981 by making it unlawful for employers to hire workers who lack authorization to work. See Second Amended Complaint at ¶¶176-83.
24 See also, e.g., Anderson v. Conboy, 156 F.3d 167, 173 (2d Cir. 1988) (“The use of ‘persons’ rather than ‘citizens’ [in § 1981] was deliberate. Because [that provision] was at least in part based on the Fourteenth Amendment, the change in language reflects the language of that newly enacted Amendment, which extended the country’s guarantee of the equal protection of the laws to ‘any person within its jurisdiction.’”) (quoting the Fourteenth Amendment). Cf., e.g., Chellen v. John Pickle Co., Inc., 344 F.Supp.2d 1278, 1292 (N.D. Okla. 2004) (undocumented workers are “employees” under FLSA); EEOC v. Tortilleria “La Mejor,” 758 F. Supp. 585, 593-94 (E.D. Cal. 1991) (undocumented workers are “employees” within the meaning of Title VII).
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Indeed, an employer who refuses to hire an individual because he lacks work authorization cannot be held liable for alienage discrimination under § 1981, because the employer’s action is motivated by the need to comply with federal law rather than by discriminatory animus. Plaintiffs’ claim is that Hazleton violates § 1981 and discriminates based on alienage by making it illegal for persons lacking proof of lawful immigration status to obtain housing in Hazleton.
Plaintiffs have sufficiently alleged that the Revised Immigration Ordinance violates § 1981, requiring that Hazleton’s Motion to Dismiss must be denied. Further, because the Ordinances violate § 1981, Plaintiffs’ Motion for Summary Judgment on Count V of the Second Amended Complaint should be granted.
F. Hazleton Exceeded Its Municipal Powers And Home Rule Charter In Enacting The Revised Immigration Ordinance
In its Motion to Dismiss, Hazleton denies that it the Revised Immigration Ordinance violates its municipal powers or the Home Rule Charter law, or conflicts with Pennsylvania employment law. Def. Brief at 75-77. Hazleton rests its argument in part on its contention that the City has not adopted a home rule charter. Id. at 76. However, irrespective of the form of this municipality, Hazleton lacks powers to add new substantive requirements to the employment relationship, to create a private right of action over employers and t allow certain employees to recover treble damages, as is provided in the Revised Immigration Ordinance. Hazleton’s Motion to Dismiss must therefore be denied and Plaintiffs are entitled to summary judgment on these claims.
“The general powers of all municipal governments, regardless of the style and plan selected, are limited to those bestowed by the state legislature.” See, e.g., In re Nomination Petition of Joseph Digiorlamo for Mayor, No. 0501736-31, slip.
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op. at 3 (Bucks County, Apr. 6, 2005). Municipalities are not sovereigns and have no original or fundamental power of legislation. Genkinger v. City of New Castle, 84 A.2d 303, 304 (Pa. 1951); see also Kline v. City of Harrisburg, 68 A.2d 182 (Pa. 1949). Rather, they have only the powers to enact ordinances which are given to them by the General Assembly. Genkinger, 84 A.2d at 304.
If Hazleton is in fact a home-rule-charter municipality, it derives its legislative powers from the Constitution of the Commonwealth of Pennsylvania and the Home Rule Charter law. 53 Pa.C.S.A. § 2961; see also Pa. Const. art. 9, § 2. Although those powers are broad, the General Assembly has circumscribed the ability of a home-rule-charter municipality, such as Hazleton, to regulate business and employment. According to the Home Rule Charter law:
[a] municipality which adopts a home rule charter shall not determine the duties, responsibilities or requirements placed upon businesses, occupations and employers. . . except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities. 53 Pa.C.S.A. § 2962(f) (emphasis added). To the extent that Hazleton has not adopted a home rule charter — an alternative factual scenario specifically pled in the Second Amended Complaint — its municipal powers are even more restricted. Municipalities that have not adopted home rule charters have only those powers expressly given to them by the Commonwealth. The Commonwealth has not granted cities of the third class, like Hazleton, the right to create a private California in favor of employees against employers. The powers vested in Hazleton are contained in the Third Class City Code, 53 P.S. § 37403. The Third Class City Code enumerates 68 specific powers
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in such specific and diverse areas as payment of debts and expenses, removal of garbage, destruction of dogs, the sale and use of fireworks, regulations of skating rinks, support of National Guard Units, inspection of milk, sprinkling of streets, and placing of electrical wires underground in certain districts. See 53 P.S. §37403 (1), (6), (9), (27), (31), (35), (44), (49) & (50). None of the 68 enumerated powers authorizes Hazleton to create private causes of action or alter existing Pennsylvania law governing the employer employee relationships.
Pennsylvania is an employee-at-will state. See, e.g., McCartney v. Meadow View Manor, Inc., 508 A.2d 1254, 1255 (Pa. Super. 1986). The Revised Immigration Ordinance imposes duties and responsibilities on employers in direct violation of the Home Rule Charter law and exceed the powers delegated under the Third Class City Code. See Smaller Manufacturers Council v. Council of City of Pittsburgh, 485 A.2d 73, 77 (Pa. Commw. Ct. 1984). Sections 4 and 7 of the Revised Immigration Ordinance add a unique set of immigration-related employment regulations neither contemplated nor authorized by state law. For example, Section 4.E. deems it an “unfair business practice” for a business in Hazleton to discharge “an employee who is not an unlawful worker,” if the business was not participating in the Basic Pilot Program and was employing an unlawful worker; empowers an “unfairly discharged employee” to sue the employer for the described “unfair business practice” and authorizes the “unfairly discharged employee” to recover actual damages, including three times the employee’s lost wages for a 120-day period, and attorneys’ fees and costs. Similarly, Section 4.A. add a new certification requirement for employers and a new substantive restriction on who may be employed in Hazleton. Sections 4.B.
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and 7.C. add a new enforcement scheme creating additional obligations on employers.
Because the Revised Immigration Ordinance improperly attempts to impose unique local duties and responsibilities upon employers and employees, as described above, it constitutes an ultra vires act and must be declared void. Hazleton’s motion to dismiss is therefore without merit and must be denied. Because Hazleton lacks authority to enact the Revised Immigration Ordinance, Plaintiffs are entitled to summary judgment on Count VI and IX of the Second Amended Complaint.
G. The Revised Immigration And Tenant Registration Ordinances Violate Pennsylvania’s Landlord/Tenant Act
In Count VII of the Second Amended Complaint, Plaintiffs request this Court to declare the Immigration Ordinance and the Registration Ordinance to be unenforceable because they contravene express provisions of Pennsylvania’s Landlord Tenant Act of 1951. 68 P.S. §§ 250.101, et seq. (“L/T Act”). In its Motion to Dismiss, Hazleton asserts that the L/T Act is inapplicable to contracts and agreements with “illegal aliens.”
In addition to prohibiting municipalities from regulating the employer/ employee relationship, the Home Rule Charter law proscribes municipalities from exercising “powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth.” 53 Pa.C.S.A. § 2962(c)(2) (emphasis added). These limitations were designed to reserve to the Commonwealth matters that are most appropriately dealt with on a state-wide level. Hartman v. City of Allentown, No. 2003-C-1846, slip. op. at 5 (Lehigh County, June 14, 2004). This law is consistent
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with state preemption principles, which apply irrespective of the form of Hazleton’s municipal government.
The Commonwealth has explicitly claimed authority over landlord-tenant issues by virtue of its enactment of the L/T Act. The legislature clearly expressed its intention that the L/T Act be the sole source of rights, remedies and procedures governing the landlord/tenant relationship. Lenair v. Campbell, 31 Pa. D. & C.3d 237, 241 (Phila. County 1984). The L/T Act states:
[A]ll other acts and parts of acts, general, local and special, inconsistent with or supplied by this act, are hereby repealed. It is intended that this act shall furnish a complete and exclusive system in itself. 68 P.S. § 250.602 (emphasis added).25 See also, Williams v. Guzzardi, 875 F.2d 46, 53, n.13 (3d Cir. 1989). More specifically, “[t]he Pennsylvania Landlord and Tenant Act of 1951, Pa. Stat. Ann., tit. 68, §§ 250.101-250.602, prescribes the exclusive procedures to be followed to evict a tenant.” Bloomsburg Landlords, Assoc., Inc. v. Town Of Bloomsburg, 912 F. Supp. 790, 803 (E.D. Pa 1995). State preemption applies where “there is such actual, material conflict between the state and local powers that only by striking down the local power can the power of the wider constituency be protected.” Hartman v. City of Allentown, 880 A.2d 737, 747 (Pa. Commw. Ct. 2005)(citing United Tavern Owners of Philadelphia v. Philadelphia Sch. Dist., 272 A.2d 868, 871 (Pa. Commw. Ct. 1971)). Accordingly, municipalities such as Hazleton are prohibited from altering
25 Section 250.103 of the L/T Act excludes existing laws under 10 specific situations from repeal or modification, and Section 250.503-A requires tenants to comply with all obligations, including those imposed by, inter alia, municipal ordinances.
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or supplementing that law. See, e.g., Council of Middletown Township v. Benham, 523 A.2d 311 (Pa. 1986) (citing Western Pennsylvania Restaurant Association v. Pittsburgh, 77 A.2d 616, 620 (Pa. 1951)).
The landlord/tenant provisions of the Revised Immigration Ordinance and Registration Ordinance directly conflict with the L/T Act. Section 5.A. of the Revised Immigration Ordinance makes it unlawful for any person or business entity that owns a dwelling unit (“landlord”) in Hazleton to knowingly, or in reckless disregard of the fact, harbor an illegal alien. Section 5.B.(3) requires the landlord to “correct a violation” within five business days or else have its license denied or suspended and prohibits the landlord from collecting any rent, payment, fee, or other form of compensation from, or on behalf of, any tenant in the dwelling unit during the period of suspension. Because harboring is defined to include permitting the occupancy by an illegal alien, and a separate violation is deemed to have been committed on each day that harboring occurs, the only way a landlord can avoid sanctions and “correct a violation” is within 5 days of written notice from Hazleton.
Similarly, the Registration Ordinance requires landlords to take reasonable steps to remove or register unauthorized occupants that are the guests of current occupants within ten days of learning of their unauthorized occupancy. The penalty for non-compliance is a one-time fine of $1,000 for each occupant without a permit, plus $100 per occupant for each day the landlord allows such an unauthorized occupant to occupy the rental unit.26
26 Occupants are defined to include any person merely residing in the rental unit that is 18 years or older. An occupant cannot obtain an occupancy permit, however, unless he/she can provide proof of legal citizenship and/or residency.
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The eviction provisions of the Revised Immigration Ordinance and Registration Ordinance require the landlord to violate the L/T Act. The L/T Act safeguards tenants even when they have done something meriting eviction. Under the L/T Act, removal is initiated by the filing of a complaint. The tenant is not required to appear before the justice of the peace to answer the complaint at a date less than seven days from the date of the summons. 68 P.S. § 250.502. And, even if a judgment is rendered in favor of the landlord, a writ of possession will not issue until the fifth day after the rendition of the judgment, and is not to be executed until the eleventh day following service upon the tenant, which is to occur within 48 hours of issuance. 68 P.S. § 250.503. Under the L/T Act, a tenant cannot be evicted for a minimum of 23 days. (This does not include the provisions for notice, which can add an additional 10 days at a minimum, unless the lease provides for a lesser time, or waives notice entirely. See 68 P.S. § 250.501.)
The Registration Ordinance also materially conflicts with the L/T Act. Under Section 10.b. of the Registration Ordinance, occupants who allow additional occupancy in a Rental Unit without first obtaining the written permission of the landlord, and without requiring that any additional occupant obtain his or her own permit, are in violation of the Registration Ordinance and are subject to conviction and fines similar to those the landlord is subject to, i.e., $1,000 per occupant, and $100 per day per occupant for which permission and a permit were not obtained.
Accordingly, landlords may have current tenants that will not meet the stringent citizenship and/or legal residency requirement of the Registration Ordinance. Landlords are, thus, faced with the Hobson’s choice of evicting such tenants (and losing rental income, perhaps also subjecting themselves to liability for breaching the lease) or paying exorbitant fines for not doing so.
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Under Section 250.504-A of the L/T Act, however, tenants have a right to invite social guests, family, or visitors for a reasonable period of time, as long as their obligations as a tenant under the L/T Act are observed. Although Section 250.503-A of the L/T Act lists Tenant’s duties as including complying with all obligations imposed upon tenants by applicable provisions of all municipal ordinances, the duty to obtain authorization for/and registration of guests in the Tenant Registration Ordinance is in direct conflict with a tenant’s rights to have visitors for a reasonable period of time under the L/T Act.
The Tenant Registration Ordinance also requires that landlords take reasonable steps to remove or register unauthorized occupants within ten days of learning of their occupancy. As described above, this requirement conflicts with the L/T Act’s notice under Section 250.501; the time limits for notice under Section 250.501; the time limits for removal under Sections 250.502 and 250.503; and tenant’s rights under Section 250.503-A.
In sum, Hazleton has clearly exceeded the municipal authority granted to it by the Commonwealth of Pennsylvania in enacting Sections 4.E. and 5.B.(3) of the Immigration Ordinance, and in enacting the Registration Ordinance. Accordingly, Hazleton’s Motion to Dismiss must be denied and Plaintiffs’ Motion for Summary Judgment on Count VII of the Second Amended Complaint should be granted.
H. The Ordinances Violate Guarantees Of Privacy Hazleton argues that no fundamental privacy right has been alleged by Plaintiffs. However, in determining whether information is entitled to privacy protection, the Third Circuit has looked at whether it is within an individual’s reasonable expectations of confidentiality. The more intimate or personal the
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information, the more justified is the expectation that it will not be subject to public scrutiny. Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 112 (3d Cir. 1987). As explained in Sterling v. Borough of Minersville, 232 F.3d 190, 197 (3d Cir. 2000), “our jurisprudence takes an encompassing view of [the] information entitled to a protected right to privacy.” Id. at 197 (citation omitted).
1. The Tenant Registration Ordinance Violates Plaintiffs’ Privacy Rights.
The information demanded by Hazleton under the Tenant Registration Ordinance would disclose the residence of every occupant who does not own their home, revealing not only a single home address but the associations that take place in the home.27 Unlike the telephone book, the disclosures required by the Tenant Registration Ordinance do not involve a single voluntary subscriber at a residence. The system put in place by Hazleton provides for no “unlisted numbers,” and is constructed to provide a comprehensive history of every resident of a rented dwelling in Hazleton. If an individual decides to move in with a paramour, she must register with Hazleton, and so too, if she decides to move out. If a married couple decide to establish separate residences, they must register with Hazleton; if an adult child moves back into his parents home, Hazleton demands disclosure.
27 Cf. Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 119 (3d Cir. 1987) (recognizing privacy of association and invalidating questions about association); Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), aff’d, 532 U.S. 514 ( 2001) (“As commonly understood, the right to privacy encompasses both the right ‘to be free from unreasonable intrusions upon [one's] seclusion’ and the right to be free from ‘unreasonable publicity concerning [one's] private life.’ Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir. 1991)”).
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These are matters of personal relationships which are shielded from overbearing government inquiry and disclosure by the constitutional right to privacy.28
Furthermore, in implementing the Tenant Registration Ordinance as an enforcement mechanism of the Revised Immigration Ordinance, Hazleton requires that applicants provide highly confidential documents such as birth certificates, alien residency cards, passports, naturalization documents and other document issued by the federal government. These documents contain information in which Plaintiffs have a reasonable expectation of privacy such as date of birth, country of birth, country of origin, date of entry into the United States, and whether they are protected by the federal government as a result of domestic violence. Disclosure of such information which could easily be used to usurp an individual’s identity and/or endanger the person’s safety.
In Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 118 (3d Cir. 1987), the court observed that an important element of the privacy inquiry is the degree to which sensitive information is safeguarded from disclosure. Finding “no statute or regulation that penalizes officials with confidential information from disclosing it,” the Court in that case held that even with respect to personal information that Philadelphia was entitled to collect from its employees, the absence of such penalties rendered the collection unconstitutional.
28 See Sterling v. Borough of Minersville, 232 F.3d 190, 197 (3d Cir. 2000) (sexual orientation is intimate and protected against involuntary disclosure by privacy right); Yeager v. Hackensack Water Co., 615 F. Supp. 1087, 1092 (D.N.J. 1985) (Water company’s collection of names of members of household violates privacy rights. “The right to be free from compelled disclosure of the names of household members is within the right of privacy which has been recognized by the courts”).
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Here, while § 12 of the Tenant Registration Ordinance announces that information collected will be “confidential,” the Ordinance establishes neither a definition of “confidentiality” nor any penalty for disclosure. Indeed the Tenant Registration Ordinance explicitly reserves the right to release the information “to authorized individuals” during the course of “an official City investigation.” Further, apparently such personal information may become subject to disclosure under the Pennsylvania Right to Know Act.29
Moreover, § 7.D. of Ordinance 2006-40 requires landlords to cure a violation by either initiating an eviction proceeding, giving notice to quit or extracting additional identifying information from the tenant and/or occupant. Hazleton has enacted no confidentiality obligation upon the landlord who receives such personal information. Even worse, the Revised Immigration Ordinance provides no prohibition against tenants being subject to these searches an unlimited number of times with an unlimited number of landlords, agents and business associates who have no disincentive from disclosing the private and personal information.
29 Compare Tribune-Review Publ. Co. v. Allegheny County Hous. Auth., 662 A.2d 677 (Pa. Commw. Ct. 1995) (refusing to disclose payroll records, but noting that “careful review of both federal and state law has revealed no statute restricting the release of government employees' home addresses and home telephone numbers”) and PG Publishing Co. v. County of Washington, 638 A.2d 422 (Pa. Commw. Ct. 1994) (authorizing release of cell phone records) with TribuneReview Publ. Co. v. Bodack, 875 A.2d 402 (Pa. Commw. Ct. 2005) (redacting telephone numbers because “In this era when identify theft is a national problem, release of a person's phone number to the public at large merely because that person called a public official or was called by some public official could cause such public records to operate to the prejudice or impairment of a person's reputation or personal security.”).
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Against these unprecedented impositions, Hazleton provides as justification only an empirically falsifiable claim that “illegal immigrants” threaten higher crime rates and burdens of public services, and a desire to enforce its federally preempted rules against “harboring” such individuals. Such claims are insufficient to justify the imposition of a “registration” regime on every renter and occupant of rented property in Hazleton.
Hazleton’s brief also asserts that the city will only collect the information in the event a complaint is filed. Def. Brief at 81. Hazleton does not assert any other reason for the collection of these documents. In the privacy balancing test mandated by Third Circuit precedent, Hazleton’s alleged interests simply do not weigh heavily enough to sustain the intrusion wrought by the Tenant Registration Ordinance.
Plaintiffs have sufficiently pled allegations regarding their privacy rights, requiring that Hazleton’s Motion to Dismiss be denied.
2. The Revised Immigration Ordinance Violates Federal Guarantees Of Privacy
The Revised Immigration Ordinance is also violative of Federal guarantees of privacy. However, Hazleton takes a much more reckless approach to gathering private and personal information from tenants under this scheme. While the Tenant Registration Ordinance makes a bald assertion that information collected by Hazleton is to be confidential, Hazleton does not even make such a minimal attempt in the Revised Immigration Ordinance.
Under Ordinance 2006-40, upon receipt of notice of a “harboring” violation, a landlord must either issue a notice to quit, seek additional information from tenant or commence an action of recovery of possession of real property against
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the tenant.30 The landlord must either convince the tenant to hand over personal information or incur the expense of instituting eviction proceedings. The tenant must either hand over personal and private documents to the landlord or risk losing the housing. Hazleton explained the options available to the landlord as follows: The landlord’s first opportunity to be heard is in his presentation of identity data to Hazleton.” Def. Brief at 57. “The property owner may correct the violation. Importantly, if an alien tenant maintains that he is lawfully present in the United States, he may provide information to his landlord, which can be forwarded to City of Hazleton for a second verification of status by the federal government.” (emphasis in original). Def. Brief at 57. In sum, the landlord must somehow obtain these documents from the tenant to show to the Code Office or initiate eviction proceedings.
Under Ordinance 2006-40, the onus is on the landlord to obtain highly confidential documents proving lawful status.31 While Ordinance 2006-40 gives the landlord the authority to seek private and confidential information, however, it does not create any penalties should the landlord distribute this information. The Ordinance does not inform the landlord of which documents it seeks. Thus, a cautious landlord will feel pressured to seek as much information as s/he could possibly obtain not knowing what is actually needed to cure the asserted violation. In fact, should a landlord want to secure personal information from a tenant, there is nothing that prohibits such landlord from being the complainant.
30 See Ordinance 2006-40 Section 7.D. 31 Documents likely to be sought after include Social Security cards, Resident Alien cards, Birth Certificates, and documents containing Visa information, all of which contain highly confidential and private information.
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There are no limits to how many times a tenant can be exposed to privacy violations, thus permitting multiple opportunities for the disclosure of private information, and disclosure to various landlords and agents over a lifetime. Under the Ordinances’ scheme, a tenant’s private information is to be disclosed to a landlord who suffers no penalties for disclosure and distribution of said information and has incentives to force a tenant to disclose the most information possible.32 Without any protections for tenants’ private and personal information, this ordinance should be declared unconstitutional under the U.S. Constitution.
3. The Ordinances Violate State Guarantees Of Privacy Article 1, § 8 of the Pennsylvania Constitution states that:
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
32 However, Hazleton is responsible for Privacy Rights violations that occur as a result of compliance with the ordinance. In Pitt News v. Fisher, 215 F.3d 354 (3d Cir. 2000), relying on Bennett v. Spear, 520 U.S. 154 (U.S. 1997). The Court held that The Pitt News, a school newspaper, could bring suit against the Pennsylvania Liquor Control Board (LCB). The Court explained: “In Bennett, the plaintiff sued one government agency, 'Agency A,' which had coerced a second agency, 'Agency B,' into enacting certain regulations that injured the plaintiff. The Court held that the plaintiff had standing to sue 'Agency A,' [][t]he rationale was that the plaintiff's injuries were directly traceable to the actions of 'Agency A,' because 'Agency B' would not have enacted the challenged regulation” Pitt News, at 361. Thus, by analogy, Hazleton (Agency A) which is coercing the landlord (Agency B) is still liable to tenant Plaintiffs for violations of privacy executed by the landlord.
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In Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), the Pennsylvania Supreme Court explained that although the language of Art 1, Section 8 parallels that of the 4th Amendment of the U.S. Constitution, the Pennsylvania Constitution “embodied a strong notion of privacy, notwithstanding federal cases to the contrary.” Edmunds at 898. The Court explained: “In Commonwealth v. Platou [312 A.2d 29 (Pa. 1973), cert. den. 417 U.S. 976 (1974)] and Commonwealth v. DeJohn [403 A.2d 1283 (Pa. 1979)], we made explicit that ‘the right to be free from unreasonable searches and seizures contained in Article 1, Section 8 of the Pennsylvania Constitution is tied into the implicit right to privacy in this Commonwealth’.” Id., quoting DeJohn, 403 A.2d at 1291.
From DeJohn forward, a steady line of case-law has evolved under the Pennsylvania Constitution, making clear that Article I, Section 8 is unshakably linked to a right of privacy in this Commonwealth. See Commonwealth v. Sell, 470 A.2d 457 (Pa. 1983); Commonwealth v. Miller, 518 A.2d 1187 (Pa. 1987); Commonwealth v. Blystone, 549 A.2d 81 (Pa. 1988); and Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989).
Both Ordinances violate Plaintiffs’ Pennsylvania Privacy rights by seeking personal and private information from tenants subjecting them to searches and privacy violations at the behest of the government. The Court in Commonwealth v Miller, at pp. 1191-1192, best explained the purpose of securing individual’s privacy, the protection: “[] is designed to protect us from unwarranted and even vindictive incursions upon our privacy. It insulates from dictatorial and tyrannical rule by the state, and preserves the concept of democracy that assures the freedom
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of its citizens. This concept is second to none in its importance in delineating the dignity of the individual living in a free society.”
The Revised Immigration and Tenant Registration Ordinances treat all tenants as individuals who do not have any privacy expectations in their personal and private information in spite of such guarantees by the Pennsylvania Constitution. Hazleton assert that “[t]he City of Hazleton makes use of this information for the purposes of contacting tenants in the instances of blight or property code enforcement, and for locating individuals in instances of emergency,” Hazleton does not assert any logical reason as to why having an individual’s alien number, birth certificate, visa category and all other private information sought would make it easier to identify individuals in case of emergency.
In the case of an alien, the information would be maintained in the event a complaint is filed. Def. Brief at 81. This is not a compelling reason to accumulate so much private, confidential and personal information. Hazleton analogizes providing these documents to providing information to receive a government license, permit, or the receipt of public benefits, or payment of taxes, but these scenarios are not comparable. In each instance, the government has articulated a compelling reason, such as to ensure the proper collection of taxes, that public benefits are issued to those eligible for them, or that voting mechanisms are accurate. When the government is asking for private and personal information, the information must be related to the function at hand. The government cannot collect this kind of information “just in case” as Hazleton seems to argue it can.
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Finally, Hazleton asserts that compliance with the Ordinances “do not involve any public disclosure of the information collected by Hazleton.” Def. Brief at 83. This is incorrect, as Ordinance 2006-40 provides that a landlord may demand additional personal information from a tenant or occupant to comply with the Revised Immigration Ordinance. Whether read together or apart, the Ordinances violate Plaintiffs’ Federal and State Privacy rights. Hazleton have not asserted any state interest in obtaining this information other than for use “if a valid complaint is initiated under the IIRA Ordinance.” Def. Brief at 81. Thus, the Motion to Dismiss must be denied.
I. Plaintiffs Have Stated A Claim For A Violation Of Legitimate Police Powers
Hazleton contends that Plaintiffs incorrectly allege that “the police powers of a state or municipality may only be used to respond to ‘nuisances.’” (Motion to Dismiss at 84). To the contrary, paragraphs 215-218 of the Second Amended Complaint make clear that Plaintiffs recognize that “police powers” may be used to “preserv[e] the public health, safety and morals” of Hazleton, as well as to abate public nuisances. Hazleton attempts to conceal the question at issue by focusing solely on whether police powers may be used for purposes other than abating a nuisance.
Despite this attempt to obfuscate the issue, it remains clear that, whether police powers are used to abate a public nuisance or to preserve the public health, safety and morals of Hazleton, the exercise of such powers “must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means . . . employ[ed] must have a real and substantial relation to the objects sought to be attained.” (Second Amended Complaint § 216). Hazleton has failed
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to address this issue, much less demonstrate that Plaintiffs have failed to plead sufficient facts to state a claim.33
The stated purpose of the Revised Immigration Ordinance is to:
secure to those lawfully present in the United States and this City . . . the right to live in peace free from the threat of crime, to enjoy the public services provided by this city without being burdened by the cost of providing goods, support and services to aliens lawfully present in the United States, and to be free from the debilitating effects on their economic and social well being imposed by the influx of illegal aliens. . . (Ordinance 2006-18 § 2.F.). The Revised Immigration Ordinance further states that “[i]llegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of case, contributes to other burdens on public services, increasing their cost and diminishing their availability to legal residents, and diminishes our overall quality of life.” (Ordinance 2006-18 § 2.C.). As alleged in the Second Amended Complaint, there is no evidence that “illegal immigration” has increased Hazleton’s crime rate, contributed to any burdens on public services, including hospitals and schools, or diminished the quality of life of any of Hazleton’s residents. Plaintiffs have alleged sufficient facts to show that there is no “real or substantial relation” between the stated purpose of the Revised Immigration Ordinance and the means
33 Ironically, despite Hazleton’s latest argument that a nuisance is not required to exercise its police powers, Hazleton relied on its authority to abate public nuisances in enacting the Immigration Ordinance. (See Ordinance 2006-18 § 2.D) (“That the City of Hazleton is authorized to abate public nuisances and empowered and mandated by the people of Hazleton to abate the nuisance of illegal immigration by diligently prohibiting acts and policies that facilitate immigration in a manner consistent with federal law and the objectives of Congress.” ).
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employed to achieve that purpose. Thus, Plaintiffs have stated a valid claim that the enactment of the ordinance was an abuse of Hazleton’s police powers.
It is well-established that “[A] law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.” Mahony v. Township of Hampton, 651 A.2d 525, 527 (Pa. 1995) (quoting Lutz v. Armour, 151 A.2d 108, 110 (Pa. 1959)) (emphasis in original); Gambone v. Commonwealth, 101 A.2d 634, 637 (Pa. 1954). An ordinance that simply declares that a nuisance or problem exists does not constitute evidence that there is an actual nuisance or problem. See Commonwealth v. Creighton, 639 A.2d 1296, 1299 (Pa. Commw. Ct. 1994) (citation omitted). “Rather, the ordinance must be phrased in such a way as to require the municipality to affirmatively establish that that a nuisance [or problem] in fact existed.” Id. Moreover, the actual means used to achieve the goal of abating an actual nuisance or remedying a problem must be “reasonably necessary and not unduly oppressive.” Id. at 1300.
Here, Hazleton enacted the Immigration Ordinance for the purported purpose of decreasing crime and relieving the supposed burdens that “illegal immigration” has placed on hospitals and schools. (Ordinance 2006-18 § 2). As alleged in the Complaint and confirmed in discovery, however, Hazleton has conducted absolutely no analysis as to whether illegal immigration has caused any problems or what measures are necessary to solve these purported problems. (Second Amended Complaint ¶ 220). Just because Hazleton claims that there are problems and challenges facing Hazleton does not make it so. Indeed, the violent
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crime rate has decreased steadily in Hazleton over the past five years. (Id. ¶¶ 22122). In addition, as alleged in the Complaint, Mayor Barletta has admitted that he has no “statistics or solid evidence to back up his claim that ‘illegal aliens’ have contributed significantly to any real or perceived problem in Hazleton.” (Id. ¶ 221).34
The Complaint describes, in great detail, many of the deficiencies in Hazleton’s conclusion that “illegal immigration” has negatively impacted the public welfare: (1) there is no evidence that illegal immigration has increased the crime rate in Hazleton; in fact, crime has decreased; (2) there are no statistics or analyses indicating that “illegal immigration” has increased medical costs for Hazleton; and (3) there are no statistics or analyses showing that “illegal immigration” has caused an increase in school budgets. (Id. ¶¶ 221-227). The Complaint therefore alleges sufficient facts to demonstrate that the Revised Immigration Ordinance bears no “real and substantial relation” to any demonstrated problem or nuisance in Hazleton.35
34 Indeed, the Court has recognized that Hazleton “offers only vague generalizations about the crime allegedly caused by illegal immigrants, but has nothing concrete to back up its claims.” (Order dated 1/31/06 at 8). 35 Hazleton cites DeCanas v. Bica, 424 U.S. 351 (1976), in support of its argument that municipalities may use their police powers to prohibit the employment of those immigrants deemed “illegal”. (Motion to Dismiss at 84). Such a broad contention does not resolve the matter at issue. As DeCanas dealt with a California state statute, it had nothing to say about the police powers of municipalities generally or Pennsylvania in particular and the De Canas Court recognized that the use of such powers must serve a legitimate purpose. i.e., “to protect workers within the State.” See DeCanas, 424 U.S. at 356. In the present case, Hazleton has not identified a legitimate or actual goal that bears a “real and substantial relation” to the restrictions contained in the Immigration Ordinance. Hazleton’s reliance on DeCanas regarding police powers is entirely misplaced.
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The Complaint also contains sufficient facts to demonstrate that the measures imposed to resolve the alleged problems in Hazleton are “unreasonable, unduly oppressive and patently beyond the necessities of the case.” As Plaintiffs alleged, despite having no immigration experience, the Code Office is expected to implement the Immigration Ordinance, the Tenant Registration Ordinance and the Property Registration Ordinance without any guidance from the Federal Government. (Id. ¶¶ 231-235). Nor does the Code Office know how it will enforce such ordinances. (Id. ¶ 235). As a result, the Ordinances suppress the freedom of individuals without any evidence that they will resolve any real or perceived problem in Hazleton. Such a result may not be justified as a legitimate exercise of police powers.
J. Plaintiffs Have Standing To Maintain This Action Contrary to Hazleton's assertions, each of the Plaintiffs has standing based on the harm they have and will suffer through the enactment of the Ordinances. In addition, viewing the Complaint in the light most favorable to the Plaintiffs, each of the Plaintiffs’ individual claims against Hazleton must stand. Hazleton argues that Plaintiffs who are landlords or employers have no standing to challenge the constitutionality of the Ordinances unless such Plaintiffs have harbored “illegal aliens” or hired “unauthorized workers.” Furthermore, Hazleton maintains that Plaintiffs who are tenants lack standing because (1) those Plaintiffs with lawful immigration status will not be harmed by the Ordinances and (2) any Plaintiff who has alleged unlawful status, has no legal right to be in Hazleton or the U.S. See Def. Brief at 21. Hazleton’s arguments are without merit.
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Hazleton would substitute a requirement that Plaintiffs actually violate the Ordinances with the well established test for showing standing:
First, the plaintiff must have suffered an “injury in fact”--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be “fairly ... trace[able] to the challenged action of Hazleton, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (ellipses in original, citations omitted).
While Plaintiffs bear the burden of establishing these elements, “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. (citations omitted). Consequently, at the current state of this litigation, “general factual allegations of injury resulting from Hazleton’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Id. (citation omitted).
Here, the Plaintiffs injuries are neither “conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 180 (2000). Hazleton argues that Plaintiffs must show that they would suffer violations under the Revised Immigration Ordinance in order to show any threat of injury. However, this proposition is unsupported by Third Circuit case law. Plaintiffs may
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sue so long as they can demonstrate an “identifiable trifle” constituting actual or threatened injury because such harm is sufficient to guarantee that plaintiffs have a concrete interest in the outcome of the litigation. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n. 14 (1973). The Third Circuit has consistently followed the standard for Article III injury-in-fact based on a Plaintiff showing “an identifiable trifle” of harm. See Bowman v. Wilson, 672 F.2d 1145, 1151 (3d Cir. 1982) (“The contours of the injury-in-fact requirement, while not precisely defined, are very generous”); Public Interest Research Group of New Jersey v. Powell Duffryn Terminals Inc., 913 F.2d 64, 71 (3d Cir. 1990) (“These injuries need not be large, an “identifiable trifle” will suffice.”); Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286 (3d Cir 2005) (“Injury-in-fact is not Mount Everest,” reversing grant of motion to dismiss); Pub. Interest Research Group of N.J., 913 F.2d at 71 (same). Certainly, for purposes of a motion to dismiss, Plaintiffs have pled the necessary injuries to satisfy the standing criteria.
1. Plaintiffs Have Standing to Claim that the Ordinances are Preempted by Federal Immigration Laws and Regulations.
Plaintiffs clearly have standing to raise their Supremacy Clause claim. Hazleton argues, however, that even if Plaintiffs meet the standing requirements overall, Plaintiffs lack standing to raise preemption claims because they do not fall within the “zone of interests” of the federal provisions that preempt the challenged Ordinances. Def. Brief at 8-10. Hazleton’s argument is completely foreclosed by the Third Circuit’s decision in St. Thomas-St. John Hotel & Tourism Assoc. v. Gov’t of the United States Virgin Islands, 218 F.3d 232 (3d Cir. 2000):
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We know of no governing authority to the effect that the federal statutory provision which allegedly preempts enforcement of local legislation by conflict must confer a right on the party that argues in favor of preemption. On the contrary, a state or territorial law can be unenforceable as preempted by federal law even when the federal law secures no individual substantive rights for the party arguing preemption. Id. at 240-41. Accord Planned Parenthood of Houston & Southeast Texas v. Sanchez, 403 F.3d 324, 331 (5th Cir. 2005) (rejecting Hazleton’s argument that the district court erred in reaching plaintiffs’ preemption claim where plaintiffs “were not seeking to vindicate any right or to enforce any duty running to them”); Taubman Realty Group Ltd. v. Mineta, 320 F.3d 475, 481 n.3 (4th Cir. 2003) (holding that the plaintiff “does not have to meet the additional standing requirement involving the zone of interests test with respect to its Supremacy Clause claim against the [Hazleton] County”); Pharma. Research & Manufs. Of America v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001) (“As the Third Circuit recently pointed out, an entity does not need prudential standing to invoke the protection of the Supremacy Clause.” (citing St. Thomas), aff’d sub nom. Pharma. Research & Manufs. of America v. Walsh, 538 U.S. 644 (2003).36
St. Thomas makes clear that a preemption plaintiff need not show that he is within a statutory “zone of interests” in order to have standing on his Supremacy
36 Indeed, as the Third Circuit noted in St. Thomas, Hazleton’s argument has also been implicitly rejected by the Supreme Court. See 218 F.3d at 241 (citing California Fed. Sav. & Loan Assoc. v. Guerra, 479 U.S. 272 (1987) (action by employers arguing that state law was preempted by Pregnancy Discrimination Act, which confers rights on pregnant employees), and Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) (action by tanker company arguing that state law was preempted by federal statute imposing various operation, safety, and environmental requirements on tanker companies)).
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Clause claim. Hazleton ignores this precedent and instead cites to an opinion on a stay application issued by a single justice of the Supreme Court in INS v. Legalization Assistance Project of the L.A. County Fed’n of Labor, 510 U.S. 1301 (1993) (O’Connor, Circuit Justice). That suit raised a claim against the federal government that particular immigration regulations were contrary to the Immigration and Nationality Act and the Constitution. That claim was not a preemption claim and Justice O’Connor’s decision in the stay application in Legalization Assistance Project does not in any way contradict the Third Circuit’s subsequent and controlling ruling in St. Thomas. As such, all of the Plaintiffs clearly have standing to challenge the Revised Immigration Ordinance and Tenant Registration Ordinance based upon their preemption claims.
2. Plaintiff Businesses and Landlords Have Standing. Plaintiff businesses and landlords have alleged “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997), quoting Lujan, 504 U.S. at 560. Specifically, these Plaintiffs would be burdened by the Revised Immigration Ordinance and Registration Ordinance, because these Ordinances would impose costs, time and resources regardless if whether those Plaintiffs were subjects of an enforcement action. See, e.g,. Salem Inn, Inc. v. Frank, 522 F.2d 1045, 1048, (2nd Cir. 1975) (holding that tavern operators had an interest in enjoining ordinance because of economic cost of compliance and threat of prosecution upon violation). Here, Plaintiff business owners who are employers must, above and beyond their preexisting duties under federal law (1) check the immigration status of all of their new hires, without recourse to federal safe-harbor
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provisions; (2) check the immigration status even of people who are not hired as regular employees, such as independent contractors, day laborers and other persons “dispatched;” and (3) enroll in the otherwise voluntary Basic Pilot in order to avoid liability and potential sanctions. Likewise, the Plaintiff landlords are burdened with (1) checking the immigration status of potential tenants; (2) checking the immigration status of existing tenants; and (3) registering themselves and paying the fee imposed by the Tenant Registration Ordinance. Both landlord and employer Plaintiffs — who are mainly small businesses or individuals — are forced to incur expense, time and resources to comply with the ordinances. Economic injury, both actual loss in the past and prospective loss in the future, plainly satisfy the standing requirement. See, e.g., Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 267 (1984); Secretary of State of Maryland v. Joseph H. Munson Co., Inc., 467 U.S. 947, 954-55 (1984).
Plaintiff employers and landlords also clearly satisfy the second prong of the test for standing: “there must be a causal connection between the injury and the conduct complained of--the injury has to be ‘fairly ... trace[able] to the challenged action of Hazleton, and not ... the result [of] the independent action of some third party not before the court.’” Lujan, 504 U.S. at 560 (citation omitted). Threatened action by a third party is sufficient for the causation prong of standing. Meese v. Keene, 481 U.S. 465, 472 (1987). The cause of the injuries here is Hazleton’s threat to enforce the Ordinances. By sanctioning anyone who provides shelter to “illegal aliens” or “dispatch[es]” unauthorized workers, and by enforcing the Ordinances against such persons, there is a casual relationship between the
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Ordinance (and Hazleton’s enforcement of it) and the injuries and economic losses suffered by these Plaintiffs.
The third element of the Lujan test also is clearly satisfied. The test requires that “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” 504 U.S. at 560. If this Court were to permanently enjoin enforcement of the Ordinances, employers and landlords would not be forced to expand costs, time and resources attempting to comply with the Ordinances and the threat of sanctions would be removed. Simply because the enforcement has not, to date, been directed against the Plaintiffs does not negate the Plaintiffs’ standing in this matter. Plaintiffs Lozano and Hernandez are either “Owners” or “Operators” of “Dwellings” as defined in Tenant Registration Ordinance. Plaintiffs Lechuga, Lozano and Hernandez are potential “Employers” as referred in the Immigration Ordinance. As such, pursuant to the plain reading of the Ordinances, they are required to comply with the Ordinances to avoid sanctions thereunder. See Friendship Medical Ctr, Ltd. v. Chicago Bd. of Health, 505 F.2d 1141 (7th Cir. 1974), cert. den., 420 U.S. 997 (holding that plaintiffs alleged sufficient threat of prosecution where “continuing restrictive effect placed on the plaintiffs by the regulations which is the basis of their complaint. In this case. . . we are dealing with recently enacted ordinances that have potentially very real criminal sanctions.”).
3. Plaintiff Tenants and Employees Have Standing. Hazleton argues in its brief that Plaintiff tenants do not have standing because they “have no legal interest in remaining anywhere inside the United States.” See Def. Brief at 19. However, Hazleton’s argument, and indeed their
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entire motion, is based on two related and erroneous assumptions. First, Hazleton proceeds as if the Ordinances will only affect persons who are in fact undocumented and who in fact have been determined by the federal government to be removable. Yet a key aspect of Plaintiffs’ claims is that because of the complexity of federal immigration law, the imprecise and overbroad nature of the Ordinances, and the complete lack of constitutionally mandated procedural protections, the Ordinances unlawfully impact a myriad of persons who are permitted by the federal government to continue to reside in the U.S., whether explicitly or implicitly. See, e.g., Second Amended Complaint ¶¶ 114-115. Further, Plaintiffs assert that the Ordinances impose additional burdens and risks on both landlords and employers, regardless of whether they have any tenants or employees falling within the Ordinances’ prohibitions.
Second, Hazleton’s argument appears to assume that undocumented persons have no legal rights, constitutional or otherwise. Yet in case after case, the federal courts, including the Supreme Court, have made clear that undocumented persons – even those who have been found removable – continue to have important substantive constitutional and statutory protections. As the Supreme Court emphasized in Zadvydas v. Davis, 533 U.S. 678 (2001), for example, “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Id. at 693 (citing cases). See also, e.g., Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law
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by the Fifth and Fourteenth Amendments.”); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.”) (citations omitted); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (“[The Fourteenth Amendment’s] provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”). Indeed, over a hundred years ago in Wong Wing v. United States, 163 U.S. 228 (1896), the Supreme Court squarely held that persons subject to final orders of deportation are entitled to substantive constitutional protections. As the Zadvydas Court reiterated more recently, Wong Wing “held that punitive measures could not be imposed upon aliens ordered removed because ‘all persons within the territory of the United States are entitled to the protection’ of the Constitution.” Zadvydas, 533 U.S. at 694 (quoting Wong Wing, 163 U.S. at 238).
It is likewise well-established that persons without lawful immigration status, including immigrant workers lacking work authorization, are entitled to numerous statutory protections under federal law.37 Undocumented workers are protected by a range of statutes including the National Labor Relations Act, Title
37 We should also be mindful of the fact that the U.S. Senate has under review a bill to legalize the status of certain undocumented foreign nationals. See S. 2611, 109th Cong. As such, those who are allegedly “illegal aliens” or “unauthorized workers” today under the Ordinances may very well be lawful residents of this country tomorrow.
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VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, and the Migrant and Seasonal Agricultural Worker Protection Act. See, e.g., Sure-Tan v. NLRB, 467 U.S. 883 (1984) (holding that employer had violated NLRA by reporting undocumented employees to INS in retaliation for participating in union activities); Rivera v. NIBCO, Inc., 364 F.3d 1057, 1069 (9th Cir. 2004) (concluding that “the overriding national policy against discrimination would seem likely to outweigh any bar against the payment of back wages to unlawful immigrants in Title VII cases”), cert. denied, 544 U.S. 905 (2005);38 Chellen v. John Pickle Co., Inc., 344 F.Supp.2d 1278, 2004 WL 2563265 (N.D. Okla. Aug. 26, 2004) (holding that undocumented workers are “employees” under FLSA); Martinez v. Mecca Farms, Inc., 213 F.R.D. 601, 604-05 (S.D. Fla. 2002) (holding that undocumented workers have standing to sue under the Migrant and Seasonal Agricultural Worker Protection Act). Numerous courts have even denied Hazleton’s attempts to seek information regarding a plaintiff’s immigration status, holding that such attempts would undermine the ability of immigrant plaintiffs to vindicate their statutory rights in a number of contexts. See Rivera, 364 F.3d at 1064-70 (Title VII); In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (FLSA); Centeno-Bernuy v. Perry, 219 F.R.D. 59 (W.D.N.Y. 2003) (Migrant and Seasonal Agricultural Worker Protection Act); Liu v. Donna Karan, Int’l, 207 F.Supp.2d 191, 192-93 (S.D.N.Y. 2002)
38 See also Equal Employment Opportunity Comm’n, Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws, EEOC DIRECTIVES TRANSMITTAL NO. 915.002, June 27, 2002, available at http://www.eeoc.gov/policy/docs/undocrescind.html (emphasizing “the settled principle that undocumented workers are covered by the federal employment discrimination statutes and that it is [] illegal for employers to discriminate against them”).
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(FLSA); De La Rosa v. Northern Harvest Furniture, 210 F.R.D. 237, 237-38 (C.D. Ill. 2002) (Title VII, FLSA, and state minimum wage law); Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y. 2002) (Federal Tort Claims Act).
4. Plaintiffs Have Standing to Claims that the Ordinances Violate Equal Protection and the Fair Housing Act.
Plaintiffs also have standing to bring their equal protection claims. The Immigration Ordinance expressly permits factors such as “national origin, ethnicity, or race” to be considered as some evidence that a violation of the ordinance has occurred. The Ordinance therefore creates specific barriers which prevent Plaintiffs from enjoying the same liberties other Hazleton residents, based on prohibited considerations. This discriminatory barrier or classification, which offends the Constitution, is sufficient to create standing. As the noted by the United States Supreme Court,
When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group need not allege that he would have obtained the benefit but for the barrier in order to establish standing. Northeastern Fla. Chapter of the Associated Gen. Contractors of America v. City of Jacksonville, Fla., 508 U.S. 656, 666 (1993). The “injury in fact” necessary to establish standing is “not the ultimate inability to obtain the benefit,” but rather, “the denial of equal treatment resulting from the imposition of the barrier” Id. Plaintiffs have clearly alleged and demonstrated, with specific facts, that the Ordinance subjects them to unequal treatment due to their “national origin, ethnicity, or race.” (Second Amended Complaint ¶¶ 1-38). Thus, they have pled sufficient facts to establish their standing to pursue an Equal Protection Claim.
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Hazleton presumes the standing requirements for Fair Housing Act (FHA) purposes could only be met if a tenant is not able to secure a tenant registration or if they are removed from their home solely as a result of the ordinances. Def. Brief at 19. Hazleton’s understanding of the purpose of the FHA is erroneous. To ensure that access to housing is not jeopardized in any manner Section 3602(i)(b) of the FHA defines an “aggrieved person” as someone who “ believes that such person will be injured by a discriminatory housing practice that is about to occur.” [Emphasis added]. Any private “aggrieved person” could bring a private right of action where “[] the court finds that a discriminatory housing practice has occurred or is about to occur[].” 42 U.S.C. § 3613 (c)1(a) ([emphasis added). The language of the Act is “broad and inclusive” and is subject to “generous construction.” Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972). The Act’s prohibition “appear [] to be as broad a prohibition as Congress could have made, and all practices which have the effect of making dwellings unavailable on the basis of race are therefore unlawful.” United States v. Gilbert, 813 F. 2d 1523, 1528 (9th Cir. 1987) (quoting 42 U.S.C. §3604) (emphasis added). In Trafficante, the U.S. Supreme Court found the Fair Housing Act’s language to reflect “a congressional intention to define standing as broadly as is permitted by Article III of the Constitution, citing Hacket v. McGuire Bros., Inc., 445 F. 2d 442 (3d Cir. 1971). The Court explained that the Fair Housing Act was not intended to allow claims only by persons who were the objects of discrimination, but by anyone who was affected by discriminatory practices.39 There is nothing in the statutory
39 To illustrate the scope of standing under the FHA see Heights Community Congress et al., v. Rosenblatt Realty, Inc., 73 F.R.D. 1, 12 (N.D. OH 1975), where the court approved three classes to proceed: “All residents [ ]who have been
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language of the Fair Housing Act or its jurisprudence that reflects an intention to limit standing only to cases where Plaintiffs have already lost or were already denied housing. Thus, Plaintiffs have standing to challenge the Ordinances as a prohibited discriminatory practice.40
5. Organizational Plaintiffs Have Standing. An association, like any other plaintiff, may establish standing in its own right. Here the Plaintiff organizations—Casa Dominicana, Hazleton Hispanic Business Association (HHBA) and Pennsylvania Statewide Latino Coalition (PSLC) —have each suffered injuries by the threatened enforcement of the Ordinances. Casa Dominicana has lost members, which in turn equates to less financial and other support for the organization. HHBA and PSLC have expended time, financial support and resources in order to advocate against enactment and enforcement of the Revised Immigration Ordinance and similar ordinances throughout the Commonwealth of Pennsylvania, as well as in providing assistance to its members impacted by the Revised Immigration Ordinance. See Second Amended Complaint, ¶¶ 25-38. The Plaintiff Organizations thus have alleged sufficient concrete and demonstrable injury with the consequent drain on the
deprived of the benefits of interracial association as a result of defendant’s conduct;” “All whites who have been 'steered' out []from their neighborhood” and all whites deprived of their continued right to interracial associations by the cumulative impact of the selective and racially motivated showing of real estate in segregating certain racially integrated neighborhoods[]”; and “All blacks steered away from predominantly white areas and into racially integrated neighborhoods in Cleveland Heights which deprive their class their continued rights of interracial associations by the cumulative impact of the selective and racially motivated showing of real estate in segregating certain neighborhoods[].” 40 The anti-harboring scheme is encapsulated by Section 5 of Ordinance 200618, Section D of Ordinance 2006-40 and Section 7 of Ordinance 2006-13.
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organization’s resources. See Havens Realty Corp v. Coleman, 455 U.S. 363 (1982) (holding that organization had standing in its own right where it suffered drain of resources by interference of organization’s ability to provide counseling and referral services for low-income home seekers and generally suffered impairment in promotion of open housing).
In addition to standing in its own right, the Plaintiff organizations have standing based on the claims of its members. An organization has associational standing where “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977). See also Pennsylvania Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 2002 WL 186008, at *3 (3d Cir. 2002). An organization has standing to sue to redress injuries suffered by its members without a showing of injury to the association itself. Warht v Seldin, 422 U.S. 490, 511 (1975). According to the Supreme Court, if even one of the members can allege injury as a result of the challenged government action, then the organization has associational standing. Id.
As Plaintiffs have alleged, members of each of the organizations include business owners, landlords, tenants or residents of Hazleton who are and will be negatively impacted by the enforcement of the Ordinances. Since each of these types of members have alleged demonstrable and concrete injury as set forth above, the organizations of which they are part also have associational standing. HHBA, for example, has members who are business owners and landlords who
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employ or leases to the immigrant (Hispanic) communities. These landlords and businesses will suffer in the same manner as Plaintiff Business Owners and Landlords due to (1) reduction in customer-base and loss of employees or tenants; (2) expenditures of time and resources trying to ascertain any “illegal alien”; (3) exposure to anti-discrimination lawsuits by requesting documentation from such persons; and (4) exposure to fines and penalties under the Ordinances by employing/leasing to alleged “illegal aliens.”
K. All Anonymous (John And Jane Doe) Plaintiffs May Proceed Anonymously In This Action
This Court already has held that “Plaintiffs (Does) may legitimately fear removal from the country and separation from their families if they reveal their identities.” Memorandum and Order, p. 6, dated Dec. 15, 2006. Plaintiffs have stated legitimate concerns that the public identification of the Doe Plaintiffs, amidst this highly publicized and controversial lawsuit, would make them easy targets of intense anti-immigrant and anti-Latino sentiment. This Court granted Plaintiffs a protective order to preserve the confidentiality of Plaintiffs Does’ names, identities, and immigration status in order to avoid “the danger of intimidation, the danger of destroying the cause of action” and risk of Plaintiffs’ loss in pursuing their constitutional and statutory rights, (citing Zeng Lui v. Donna Karan Internat’l, Inc., 207 F.Supp. 2d 191, 193 (S.D.N.Y. 2002), and Ansoumana v. Gristede’s Oper. Corp., No. 00 Civ. 0253 (S.D.N.Y. Nov. 8, 2000)). The Court’s reasoning similarly applies to the issue of the use of pseudonyms in the pleadings.
The Third Circuit has not expressly adopted a standard on the issue of the use of pseudonyms by Plaintiffs, Doe v. Evans, 202 F.R.D. 173, 175 (E.D. Pa.
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2001) fn. 5, nor has it reversed or denied jurisdiction to courts based on their use. The Federal Rules of Civil Procedure do not specifically address the use of a pseudonym by plaintiff parties. A significant number of courts have either explicitly,41 see Doe v. State of Alaska, 122 F.3d 1070 (9th Cir.1997) (unpublished), or implicitly permitted its use, see Roe v. Wade, 410 U.S. 113 (1973); Plyler v. Doe, 457 U.S. 202 (1982) (where illegal aliens were allowed to proceed anonymously in their successful constitutional challenge to the Texas law denying free public grammar school education to illegal alien children), John Doe I, et al. v. Village of Mamaroneck, --- F.Supp.2d ---, 2006 WL 3393247 (S.D.N.Y. 2006); Doe v. Matthews, 420 F. Supp. 865 (D.N.J. 1976) (allowing plaintiff to sue under a pseudonym without explanation); Doe v. Martin, 404 F. Supp. 753 (D.C. 1975) (allowing plaintiff to proceed anonymously without discussion). Thus, it is clear that a number of courts have allowed pseudonym Plaintiffs to proceed without seeking advance permission of the courts.
41 Under special circumstances, courts have allowed parties to use fictitious names, particularly where necessary to “protect[ ] privacy in a very private matter.” Doe v. Smith, 189 F.R.D. 239 (E.D.N.Y. 1998) , citing to, Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974); factors in determining whether a plaintiff may proceed anonymously, including privacy and security interests, as well as whether the plaintiff would be compelled to admit an intention to engage in illegal conduct, thereby risking criminal prosecution); Doe v. Bell Atl. Bus. Sys. Serv., Inc., 162 F.R.D. 418, 420 (D. Mass. 1995) (recognizing cases that have allowed Plaintiffs to proceed anonymously on grounds of social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the plaintiff’s identity); Doe v. Hodgson, 344 F. Supp. 964 (S.D.N.Y. 1972), aff’d, 478 F.2d 537 (2d Cir. 1973) (challenging legislation that excluded agricultural workers from certain benefits and protections in case filed by migrant agricultural laborers pseudonymously).
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Though Rule 10 of the Federal Rules of Civil Procedure provides that a party’s name be included in a civil action’s caption, rarely has a federal court dismissed a complaint merely because the plaintiff’s name was used anonymously. Only one court has used its discretion to interpret Rule 10 to render an anonymous filing generally ineffective to commence an action but only where the complaint failed to identify by true name at least one plaintiff in the filing of the action. Roe v. New York, 49 F.R.D. 279, 282 (S.D.N.Y. 1970). In contrast, this action has identified both a set of anonymous Plaintiffs and named Plaintiffs.
Courts have recognized that when Plaintiffs challenge an ordinance, or a governmental policy or law that affects a broad grouping of persons, and, not an individual defendant, Plaintiffs’ position should be favored. Hazleton is not disadvantaged by the lack of access to the names and identity data for the Plaintiff Does. Plaintiff Does do not have any “ulterior” motives to advance any fraudulent claims; they do have bona fide concerns about the adverse effects of the challenged Hazleton ordinances, their enforcement, and the effects on their basic rights to shelter, education, and, a livelihood. See, e.g., Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981) (in view of threats made against the Plaintiffs and the community hostility, Plaintiffs were entitled to proceed anonymously); Doe v. Rostker, 89 F.R.D. 158, 161 (N.D. Cal. 1981) (explaining that “[c]ourts have carved out limited exceptions to Rule 10 where the parties have strong interests in proceeding anonymously…. The common thread running through these cases is the presence of some social stigma or the threat of physical harm to the Plaintiffs attaching to disclosure of their identities to the public record.”).
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Hazleton’s reliance on Marcano v. Lombardi is misplaced and can be distinguished. There, the court ruling on defendant’s Motion for Summary Judgment held that though Plaintiff Marcano had not petitioned for permission to proceed under a pseudonym, he had “persistently and repeatedly” maintained a “false” alias, was unable to establish the Fed. R. Civ. P. 17(a) real party in interest requirement and had utterly failed to address the pseudonym issue. Marcano v. Lombardi, 2005 WL 3500063 at 4 (D.N.J. 2005) (not for publication); Dotson v. Bravo, 321 F.3d 663 (7th Cir. 2003) (case dismissed due to Plaintiff’s use of false name).
Plaintiffs have not used any false names or aliases. Each of the Doe Plaintiffs have genuine reasons to fear disclosure of their true names and identities, supra. The Plaintiffs have not engaged in “hide and seek” nor engaged in a “misleading shell game of interchangeable Plaintiffs” as Hazleton charge. As the Court found, there is “no merit to these contentions.” Id., Memorandum and Order, at 3. Indeed, as the Court found, Plaintiffs have sufficiently identified each plaintiff and did not engage in “some type of abuse of judicial process” simply by making “changes in an amended complaint which superseded the original complaint.” Id. at 5. Each of the individually numbered Plaintiffs John and Jane Does described in the Original Complaint (filed August 15, 2006), in the First Amended Complaint and in the Second Amended Complaint are indeed distinguishable and different.42
42 In the interim period under the Court’s temporary restraining order, during which Hazleton was considering the cessation of enforcement or repeal of the prior Ordinance, some Doe Plaintiffs had moved out of Hazleton due to its antiimmigration stand. A few no longer had claims under the amended ordinances.
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However, Plaintiffs’ allegations and facts as stated in their Second Amended Complaint are neither misleading nor have they unduly restricted Hazleton from assessing the allegations presented. Hazleton can not show that the adding and removal of various Doe Plaintiffs has subverted the ability of this Court or Hazleton from properly evaluating the claims raised by the Plaintiffs’ motion for a temporary restraining order and preliminary relief. VI. CONCLUSION
For the reasons set forth in this Memorandum of Law in Opposition to Hazleton’s Motion to Dismiss and in support of Plaintiffs’ Motion for Summary Judgment, the Plaintiffs respectfully request this Court to deny Hazleton’s Motion
These parties were effectively withdrawn. After the new Immigration Ordinance was passed in September 2006, additional Doe Plaintiffs were identified and joined to the litigation. After Hazleton City passed yet another set of Ordinances on December 28, 2006, Plaintiffs were required to file a Second Amended Complaint necessitating more changes to the Plaintiffs.
Plaintiffs John Doe 1, 2, 3, and 4, and Jane Does 1 and 3, in the Original Complaint, were removed. In the First Amended Complaint, the only original Doe remaining in the case, Jane Doe 2, thereafter became Jane Doe 1. All other John and Jane Does were added as new individual Plaintiffs, including, minor schoolage children John Does 5 and 6, and, Jane Does 3 and 4. Subsequent to the December 28, 2006 ordinances, Plaintiffs Brenda Lee Mieles, Jane Does 1 and 2 and John Does 2, 4 and 6 were withdrawn. All minor school age children Jane Does 3 and 4 and John Does 5 and 6 have been withdrawn. In the Second Amended Complaint, Plaintiffs Jane Doe 5 and John 7 were joined.
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to Dismiss in its entirety and grant Summary Judgment on each of the claims in their favor.
Respectfully submitted,
By: /s/ Thomas G. Wilkinson, Jr.
Thomas G. Wilkinson, Jr. Linda S. Kaiser Doreen Yatko Trujillo Thomas B. Fiddler Elena Park Ilan Rosenberg COZEN O’CONNOR 1900 Market Street Philadelphia, PA 19103 Tel. (215) 665-2000 Fax: (215) 665-2013
Lillian Llambelis Foster Maer Jackson Chin Denise Alvarez PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND 99 Hudson St. 14 Floor New York, NY 10013-2815 Tel. (212) 739-7575 Fax: (212)431-4276
George R. Barron 88 North Franklin Street Wilkes-Barre, PA 18701 Tel. (570) 824-3088 Fax: (570) 825-6675
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David Vaida 137 North 5th Street Allentown, PA 18102 Tel. (610) 433-1800 Fax: (610) 433-2985
Lee Gelernt Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 125 Broad St., 18th Fl. New York, NY 10004 Tel. (212) 549-2620 Fax: (212) 549-2654
Lucas Guttentag Jennifer C. Chang AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950
Witold J. Walczak AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 Tel. (412) 681-7864 Fax: (412) 681-8707
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Paula Knudsen AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 105 N. Front St., Suite 225 Harrisburg, PA 17101 Tel. (717) 236-6827 Fax: (717) 236-6895
Mary Catherine Roper AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 Tel. (215) 592-1513 ext. 116
Counsel for Plaintiffs
Shamaine Daniels Laurence E. Norton, II Peter Zurflieh COMMUNITY JUSTICE PROJECT 118 Locust Street Harrisburg, PA 17101 Tel. (717) 236-9486 Fax: (717) 233-4088
Counsel for Plaintiffs Rosa Lechuga, Jose Luis Lechuga, John Doe 3, John Doe 7, Jane Doe 5 and Casa Dominicana of Hazleton, Inc.
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, ET AL. :

:

Plaintiffs :

v.

:

:

CITY OF HAZLETON

:

:

Defendant :

CIVIL ACTION NO. 3:06-cv-01586-JMM (Hon. James M. Munley)

DEFENDANT CITY OF HAZLETON’S PROPOSED FINDINGS OF FACT AND LEGAL BRIEF

Table of Contents Proposed Findings of Fact…………………………………………………...……..1 Background ………………………………………………………………...………1 The Ordinances in Question ………………………………………………..…...…2 Mayor Louis Barletta ………………………………………………..…………......4 Chief Robert Ferdinand ……………………………………………….……..…...10 Detective Christopher Orozco …………………………………….………..…….20 Expert, Jared Lewis ………………………………………………….…………...21 Detective Corporal Jason Zola ……………………………………….………......22 Joseph Yanuzzi …………………………………………………………..……….23 Samuel Monticello ………………………………………………………....……..24 Robert Dougherty ……………………………………………………………..….27 Richard Wech …………………………………………………………...……..…34 Agapito Lopez …………………………………………………………..………..34 Jose and Rosa Lechuga ……………………………………………………..…....36 Jose Molina ………………………………………………………………..……..39 Rodolfo Espinal ……………………………………………………………..……41 Manuel Saldana ………………………………………………………………..…44 Doe Plaintiffs ………………………………………………………………...…...45 Pedro Lozano ……………………………………………………………...……...51
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Expert, Prof. Marc Rosenblum …………………………………………………..52 Expert, Ruben G. Rumbaut ……………………………………………………....57 Expert, Jack Martin …….………………………………………………………...58 Expert, Dr. Steven Camarota …………………………………………………….59 Expert, Michael Cutler ………………………………….………………………..63 Expert, Prof. George Borjas ………………….…………………………………..68 Expert, Stephen Yale-Loehr………………………………………………………70 Legal Argument ………………………………………………………………..…72
I. Does This Court Have Jurisdiction to Review the Old, Repealed Version of the IIRA Ordinance?.........................................................72
II. The Effect of the Amended Language on Plaintiffs’ Claims………..76 III. Recent Precedent on Preemption in Immigration Law Supports
Defendant……………………………………………………………79 IV. The IIRA Ordinance Mirrors Federal Law………………………….85 V. Mr. Yale-Loehr’s Theory of Illegality Has Been Rejected by
Every Federal Court to Consider it………………………………….88
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DEFENDANT CITY OF HAZLETON’S PROPOSED FINDINGS OF FACT
Background 1. Hazelton is a city located in Luzerne County in Northeastern Pennsylvania. 2. Pursuant to applicable Pennsylvania law, Hazleton is a city of the third class with an Optional Plan B. (Tr. vol. IV, p. 204). An Optional Plan B is a strong Mayoral form of government, similar to the federal government, where there are legislative and administrative branches of government, which place checks and balances on each other. (Tr. vol. IV, p. 204). City Council’s job is legislative without any administrative functions. (Tr. vol. IV, p. 205). City Council has no enforcement duties of city ordinances. (Tr. vol. IV, p. 205). 3. As an Optional Plan B city, Hazleton is only permitted to impose real estate taxes to a maximum rate of 25 mills, which is the current rate. (Tr. vol. IV, p. 205). 4. The City government of Hazleton is administered by various departments and offices, including the highway department, police department, fire department, code enforcement office, zoning office, health office and engineering office. (Tr. vol. IV, p. 206). 5. The Mayor of Hazleton is Louis Barletta. 6. Sam Monticello is the City Administrator, responsible for preparation
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of the City’s budget. (Tr. vol. IV, p. 206). 7. Robert Ferdinand is the Chief of Police. (Tr. vol. IV, p. 206). 8. Robert Dougherty is the Director of Public Works and the City
Engineer. (Tr. vol. IV, p. 207). He is responsible for enforcement of City ordinances including the ordinances at issue in this case. (Tr. vol. V, p. 49).
9. Mayor Barletta is fifty-one years of age and was born and raised in the City of Hazleton. (Tr. vol. IV, p. 191-192).
10. Mayor Barletta sought election to a position as City Council member in the 1990s because he was concerned about the negative mood of the city and the slowing economy. (Tr. vol. IV, p. 193).
11. Hazleton has a diverse ethnic background, with Italian, Irish, Slovak and Hispanic immigrants. (Tr. vol. IV, p. 193-194, 200).
The Ordinances in Question 12. On July 13, 2006, the City of Hazleton enacted Ordinance 2006-10, the “Illegal Immigration Relief Act Ordinance”. 13. On August 15, 2006, the City of Hazelton enacted Ordinance 200613, known as the “Rental Registration Ordinance”. 14. On September 21, 2006, Hazelton enacted Ordinance 2006-18, entitled the “Illegal Immigration Relief Act Ordinance” and 2006-19 entitled the “Official English Ordinance” to replace Ordinance 2006-10.
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15. On December 28, 2006, Hazleton enacted Ordinance 2006-35, to reinstate the old rental property registration system for owners of rental property that existed prior to the enactment of Ordinance 2006-13, in order to allow the city to continue its prior practices of registering owners of rental property.
16. On December 28, 2006, Hazleton enacted Ordinance 2006-40, entitled the “Illegal Immigration Relief Act Implementation Amendment,” which adds a final section to the Illegal Immigration Relief Act Ordinance and serves to codify various clarifications regarding the implementation of that Ordinance.
17. On March 21, 2007, Hazleton enacted Ordinance 2007-6, which eliminated the following language from §§ 4.B.2 and 5.B.2 of Ordinance 2006-18: “solely and primarily”. It also added the word “knowingly” to §4.A of Ordinance 2006-18 so that it now reads:
“It is unlawful for any business entity to knowingly recruit, hire for employment or continue to employ or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part within the City.” 18. Ordinance 2006-19 declares the English language to be the official language of Hazelton. It is not being contested in this lawsuit. The parties stipulated that various City documents already translated into Spanish will continue to be made available to the public. Those documents are available to the public at Hazleton’s City Hall. Mayor Louis Barletta
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19. Barletta was elected and sworn in as Mayor in 2000. (Tr. vol. IV, p. 194). When he was sworn into office, he took an oath to protect and defend the health, safety and welfare of Hazleton’s citizens. (Tr. vol. IV, p. 242). By proposing the ordinances in question, he was acting in his capacity to carry out his oath. Id.
20. At the time Barletta became Mayor, the City was suffering from a $1.2 million budget deficit against a total budget of $6 million. (Tr. vol. IV, p. 194). The City was in danger of going bankrupt at that time. (Tr. vol. IV, p. 195).
21. As part of his administration’s attempts to revive Hazleton, Mayor Barletta tried to rehabilitate blighted sections and encouraged real estate developers to reinvest in the City. (Tr. vol. IV, p. 196).
22. Additionally, Mayor Barletta increased industry within the city with the CAN-DO project. (Tr. vol. IV, p. 197). This project encouraged unskilled laborers to move into the city where the housing prices were low and the quality of life was increasing. (Tr. vol. IV, p. 198).
23. The increase in new laborers brought an increase in new businesses to the City. (Tr. vol. IV, p. 198).
24. Mayor Barletta welcomed new immigrants, who began rapidly expanding the population of the City in 2003-2004. (Tr. vol. IV, p. 198). He has welcomed legal immigrants during his seven years in office. (Tr. Vol. III, p. 57).
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25. Mayor Barletta turned around the deficit budget and established a budget surplus as early as 2002, which continued to grow in 2003-2004. (Tr. vol. IV, p. 199). The height of the budget surplus was $250,000.00. (Tr. vol. IV, p. 200). His budget surplus goal was $650,000.00. (Tr. vol. IV, p. 200).
26. Mayor Barletta spearheaded a project to rehabilitate a playground on Pine Street so that children would have a safe place to play. The Pine Street playground is located in a section of Hazleton occupied predominantly by Hispanics. (Tr. vol. IV, p. 201). The City provided $500,000.00 in funding for the revitalization and built twenty-five homes around it. (Tr. vol. IV, p. 201).
27. The current population in Hazleton is estimated to be between 30,000 and 33,000. (Tr. vol. IV, p. 209).
28. The U.S. Department of Justice recommends two police officers for every one thousand residents. (Tr. vol. IV, p. 169). In 2006, Hazleton only had thirty police officers. (Tr. vol. IV, p. 170).
29. Before he contemplated the Illegal Immigrant Relief Act (IIRA) Ordinance, Mayor Barletta received detailed incident reports regarding various crimes committed within the city. (Tr. vol. IV, p. 170).
30. Between 2003 and 2006, the number of violent crimes (homicide, rape, robbery and aggravated assault) increased from 52 to 83. (Tr. vol. IV, p. 172) (Tr. vol. VII, pp. 103-04; see also Exhibit D-249). This demonstrates a sixty
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percent increase in violent crime in a three year period. (Tr. vol. IV, p. 173). 31. The increase in violent crimes does not correlate with the number of
police officers on the street. In 2003, when the number of police officers was the lowest, so was the number of violent crimes. (Tr. vol. IV, p. 174).
32. Nobody knows the exact number of illegal aliens in Hazleton because they do not voluntarily identify themselves. (Tr. vol. IV, p. 177; Tr. vol. III, p. 6264). However, the police started seeing a trend in the number of undocumented aliens and confirmed illegal immigrants who were committing crimes within the city. (Tr. vol. IV, p. 212).
33. One of the indicators that the population of illegal immigrants was increasing in the City during the years 2000 to 2006 was the earned income tax. While the population had grown by an estimated fifty percent during that period, the earned income tax remained steady. (Tr. vol. IV, p. 180).
34. Approximately one third of the immigrants in Hazleton are illegal immigrants. (Tr. vol. IV, p. 181).
35. Thirty percent (30%) of those arrested for drug related crimes in recent years were illegal immigrants. (Tr. vol. IV, p. 213). Every time an illegal immigrant is arrested for committing a crime, it takes the police longer to investigate the crime because the Defendant does not have proper identification documents. (Tr. vol. IV, p. 213-214, 216, 218). For example, it took five hours to
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identify an illegal immigrant who was arrested for selling crack cocaine in the Pine Street Playground because he had five different social security cards. (Tr. vol. IV, p. 214).
36. Over one half of the 2006 overtime budget of the Hazleton Police Department was spent investigating the Derek Kichline murder, which involved illegal immigrants. (Tr. vol. IV, p. 214).
37. The Derek Kichline murder and a shooting and drug arrest at the Pine Street playground, both of which occurred on May 10, 2006, were the final criminal incidents which resulted in Mayor Barletta’s decision to propose the IIRA Ordinance. (Tr. vol. IV, p. 222).
38. During the day of May 10, 2006, a fourteen year old illegal immigrant fired a gun in the Pine Street playground, and when arrested was found to possess crack cocaine. (Tr. vol. IV, p. 222).
39. Later that evening, at 1:30 a.m., Chief Ferdinand called Mayor Barletta to inform him that Derek Kichline, 29, had been murdered. The police had arrested four illegal immigrants and charged them with the murder and related offenses. (Tr. vol. IV, p. 223). Residents demanded that the Mayor act to stop illegal immigrants from committing these crimes. (Tr. vol. IV, p. 223).
40. In June 2006, Mayor Barletta decided to propose the IIRA Ordinance, which he presented to City Council for a first reading on June 15, 2006. (Tr. vol.
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IV, p. 224.) 41. Mayor Barletta spoke at this City Council meeting and made the
following statement: “The Illegal Immigration Relief Act is intended to deter and punish any illegal immigrants in the City of Hazleton, whether they are from Eastern Europe, Latin America or the Far East.” (Tr. vol. IV, p. 225). “If you are in this country illegally….illegal is illegal. It does not matter where you come from.” Id.
42. Neither Ordinance No. 2006-18 nor 2006-40 (which modified 200618 (Tr. vol. III, p. 85)) make any reference to any particular ethnic group. Id.
43. Every municipal action or service taken or performed on behalf of or in response to an illegal alien is a drain on the resources of the municipal government of Hazleton. (Tr. vol. III, p. 98-99).
44. Mayor Barletta is confident, from his discussions with Phyllis Lancaster at the Department of Justice, that the City will have a Memorandum of Understanding with the Federal Government regarding the federal verification programs the City will be permitted to use in enforcing the IIRA. (Tr. vol. IV, p. 186).
45. Robert Dougherty and his staff in the Code Enforcement Office will be properly trained in enforcing the ordinances before the enforcement process begins. (Tr. vol. IV, p. 182-183). To date, they have not been trained because
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there is a temporary restraining order in place and it would be a waste of the taxpayer’s money. (Tr. vol. IV, p. 183).
46. The Rental Registration Ordinance was originally enacted several years ago as a result of the increasing problems with absentee landlords. City administration began receiving complaints from residents of overcrowded houses and homes in disrepair, but the City could not contact the landlords to correct the problems. (Tr. vol. IV, p. 186). Overcrowding of residences created a fire hazard for tenants. (Tr. vol. IV, p. 187). Homes were so overcrowded that, in some cases, each bedroom in a house was a separate living unit with different families. Id.
47. While the Hazleton Area School District is a separate governmental entity, the Mayor often speaks with people on the School Board and has constituents who send their children to the public schools. Those constituents complain to the Mayor that there is such overcrowding in the public schools that children are being taught in trailers. (Tr. vol. IV, p. 219-220).
48. The School District budget for the English as a Second Language program has increased from $500.00 in 1999 to $1.45 million in 2007. (Tr. vol. IV, p. 220). The projected budget deficit for the School District in 2007-2008 is $9 Million. Id.
49. The parties stipulated to the testimony of Sean Shamany, a Director
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on the Hazleton Area School Board (Exhibit “A” attached). 50. The Greater Hazleton Health Alliance delivers healthcare to the City
of Hazleton. (Tr. vol. IV, p. 221). Emergency room waits at Hazleton General are as much as six hours. Id.
51. The parties stipulated to the testimony of James Edwards, C.E.O. of the Greater Hazleton Health Alliance (Exhibit “B” attached).
52. No one has ever complained to Mayor Barletta of racial profiling occurring as a result of the IIRA. (Tr. vol. IV, p. 236).
53. Twenty-three new Hispanic businesses opened between June 13, 2006 and March 2, 2007. (Tr. vol. IV, p. 240). Mayor Barletta was invited to the grand opening and ribbon cuttings of several of these new businesses. (Tr. vol. IV, p. 240-241).
Chief Robert Ferdinand 54. Robert Ferdinand (hereinafter, “Chief Ferdinand”) is the Chief of Police for the Hazleton Police Department. 55. Chief Ferdinand routinely communicates with Mayor Barletta, both during weekly staff meetings and also outside of the meetings, and keeps Mayor Barletta informed regarding the trends in crimes, including those trends that involve illegal immigrants. (Tr. vol. 7, pp. 50-51). 56. Chief Ferdinand discussed the status of crimes in the Hazleton with
10

Mayor Barletta before the passages of the Hazleton’s immigration ordinances. (Tr. vol. 6, pp. 221).
57. Hazleton currently has thirty active police officers with three new officers in training. (Tr. vol. 7, p. 40).
58. Due to its limited number of police officers, Hazleton usually has only two or three police officers working on a shift (Tr. vol. 7, pp. 106-7) to cover 120 miles of streets (Tr. vol. 7, p. 109).
59. When police officers arrest a suspect, they must complete a booking process which can leave the City with one police officer or no police officers to patrol the streets. (Tr. vol. 7, pp. 107-9).
60. The booking process takes even longer with illegal immigrants because the police department is required to expend additional time to learn a suspect’s true identity. (Tr. vol. 7, pp. 108-9).
61. The investigation and arrest of any illegal immigrant constitutes a burden on Hazleton’s Police Department, as it takes the police officers away from other duties and creates unnecessary overtime charges. (Tr. vol. 7, p. 146).
62. Chief Ferdinand has witnessed an increase in violent crimes (Tr. vol. VII, pp. 103-04) and an increase in drug activity. (Tr. vol. 7, p. 47). Narcotics are linked with other crimes including robberies, theft of vehicles, home invasions and theft of firearms. (Tr. vol. 7, pp. 47-9).
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63. Chief Ferdinand has observed increasing contact between the Police Department and illegal immigrants. (Tr. vol. 7, pp. 44-46). In 2000 there were very few crimes involving illegal immigrants; however, in 2005 there were five documented arrests involving illegal immigrants and in 2006 there were nineteen documented arrests involving illegal immigrants. Id.
64. Crime committed by illegal immigrants is a problem because the types of crime committed by illegal immigrants now includes narcotics, gang activity, violent activity, carrying weapons, using weapons, large fights between gang members, all of which Hazleton did not see in the past. (Tr. vol. 7, pp. 44-47)
65. In 2006, the Hazleton Police Department Narcotics Division made thirty drug arrests and ten of the arrests were of illegal immigrants. (Tr. vol. 7, p. 49).
66. Illegal immigrants have been found dealing all types of drugs but particularly cocaine, crack cocaine and heroin. (Tr. vol. 7, p. 48). The drug dealers carry firearms. Id.
67. Hazleton produced all of the police reports that it could identify which involve the arrest of illegal immigrants (Tr. vol. 7, p. 79); however, these police reports do not accurately reflect every incident in which an illegal immigrant was arrested or cited for a violation:
a. The police reports referencing arrests of illegal immigrants were
12

identified by conducting a search of the Police Department’s Alert System computer database utilizing search specific terms. (Tr. vol. 6, pp. 226-8);
b. Chief Ferdinand also asked his Narcotics Detectives to compile a list of drug arrests from 2005 to the present that involved illegal immigrants. (Tr. vol. 6, p. 228);
c. Despite identifying all police reports through the Alert System that reference illegal immigrants, police officers often do not reference a criminal suspect’s immigration status in the reports on the Alert System because the immigration status has no bearing on the crimes committed. (Tr. vol. 7, p. 82). The reports are generated for investigation and prosecution of crime, and the immigration status has no bearing on the future prosecution of the criminal activity. Id.
d. Additionally, minor crimes including non-traffic citations, disorderly conduct or other crimes in which a citation is warranted would not be entered into the Alert System and there is no way to search to determine whether citations outside of the Alert System were issued to illegal immigrants. (Tr. vol. 7, pp. 1001).
68. Chief Ferdinand identified the following documented crimes which the City of Hazleton believes involved the arrests of illegal immigrants:
a. In February 2002, illegal immigrant Ramon Veras Santana was
13

arrested for sexually assaulting a six year old girl (Tr. vol. 7, pp. 84-86; see also Exhibit D-11);
b. In June 2004, illegal immigrant Hector Meregildo was arrested for assault of his girlfriend (Tr. vol. 7, pp. 86-7; see also Exhibit D-12);
c. In July 2005, illegal immigrant Cesar Emmanuel Andujar was arrested for narcotics (Tr. vol. 7, p. 87; see also Exhibit D-15);
d. In October 2005, illegal immigrant Aneudy Rosario was arrested for narcotics (Tr. vol. 7, p. 87; see also Exhibit D-16);
e. In March 2006, illegal immigrant Pedro Castro-Chico was arrested for a hit and run accident where Castro-Chico fled the scene because he was an illegal alien. (Tr. vol. 7, p. 88; see also Exhibit D-18);
f. In March 2006, illegal immigrant Michael Brito was arrested for drug trafficking (Tr. vol. 7, pp. 88-9; see also Exhibit D-19);
g. In June 2006, illegal immigrant Marco Paniagua was arrested for the forcible rape of his ex-girlfriend at knifepoint (Tr. vol. 7, p.89; see also Exhibit D22);
h. In July 2006, illegal immigrant Ednisson Delacruz was arrested for his involvement in a large gang fight and for resisting arrest. (Tr. vol. 7, p. 90; see also Exhibit D-23);
i. In July 2006, two illegal immigrants, Ivan Garcia-Lopez and Jesus
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Manuel Rivera Santos, were arrested for dealing drugs openly during daylight hours on the Pine Street playground while children were playing around them. (Tr. vol. 7, p. 91; see also Exhibit D-24);
j. In August 2006, illegal immigrant Victor Clemente was arrested for dealing cocaine (Tr. vol. 7, p. 91-2; see also Exhibit D-25);
k. In September 2006, three illegal immigrants, Armando Ledesma, Octavio Cadena, Urias Lopez and Imer Perez, were arrested based upon a traffic stop (Tr. vol. 7, p. 92; see also Exhibit D-26);
l. In September 2006, illegal immigrant Eustadquio Salinas-Flores was arrested for presenting false identification to police (Tr. vol. 7, p. 93; see also Exhibit D-28, D-5);
m. In November 2006, illegal immigrant Rafael Antonio Lora was arrested for dealing crack cocaine. (Tr. vol. 7, p. 93; see also Exhibit D-29);
n. In November 2006, illegal immigrant Pedro Jimenez was arrested for an assault with a knife (Tr. vol. 7, p. 94; see also Exhibit D-30);
o. In July 2006, two illegal immigrants, Fernando Hernandez Rafael Garcia and Juan Acosta, were arrested for disorderly conduct and underage drinking. (Tr. vol. 7, p. 96; see also Exhibits D-1; D-8);
p. In August 2006, illegal immigrant Jose Ascencio was arrested as a part of a large fight during which Ascencio was found possessing a BB gun. (Tr.
15

vol. 7, pp. 95-6; see also Exhibit D-3); and q. In November 2006, illegal immigrant Porfiria Viveros-Villowas
arrested for public drunkenness and disorderly conduct when he was found drunk in his car. (Tr. vol. 7, p. 96; see also Exhibit D-4).
69. In addition to the foregoing incidents, there were three events that came together in May 2006 and which precipitated Hazleton’s immigration ordinances. The first was a discharge of firearms in the Pine Street Playground which occurred on May 10, 2006 (“Playground Incident”). (Tr. vol. 7, p 55).
70. The Playground Incident involved an illegal immigrant, Yeremy Pimentel, and one of his friends who fired guns (.22 and .380) in the air at the playground. (Tr. vol. 7, p. 56).
71. Yeremy Pimentel was a 13 or 14 year old recruiter for the Bloods gang, who also sold drugs. (Tr. vol. 7, p. 58).
72. When Pimentel was arrested, an officer noticed crack cocaine under Pimentel’s mouth. (Tr. vol. 7, p. 59; see also Exhibit D-21).
73. Since Pimentel was an illegal immigrant, the police officers had him deported rather than prosecute him through the juvenile system, which would have resulted in nothing more than a slap on the wrist. (Tr. vol. 7, pp 59-60).
74. Hours after the playground incident, Derrick Kichline was murdered. Kichline was working on his car at night when two men walked up to him and at
16

pointblank range fired a shot through his eye and killed him. (Tr. vol. 7, p. 61; see also Exhibit D-44).
75. Four illegal immigrants were arrested in connection with Kichline’s murder. (Tr. vol. 7, pp. 61-2; see also Exhibit D-44).
76. All four of the illegal immigrants lived in Hazleton. (Tr. vol. 7, p. 131).
77. These four illegal immigrants were not only involved in the homicide, but they were also dealing narcotics (Tr. vol. 7, p. 62); one was found possessing the belongings of a victim of a home invasion in which the victim was stabbed (Tr. vol. 7, p. 62); and one is a member of the Latin Kings gang. (Tr. vol. 7, p. 64).
78. The Kichline homicide investigation was further complicated by the fact that the criminals were using aliases and it took several days of following blind leads before the police focused on the correct suspects. (Tr. vol. 7, pp. 63-4).
79. The investigation into the Kichline homicide involved over thirty-six hours of overtime incurred by almost every member of the Police Department. (Tr. vol. 7, p. 65). The police overtime expense for the investigation was approximately $17,000. (Tr. vol. 7, p. 128).
80. The third incident that precipitated the passage of Hazleton’s Immigration Ordinances was the May 18, 2006, culmination of the investigation into narcotics dealing from New York’s Finest Barbershop (hereinafter,
17

“Barbershop Enterprise”). (Tr. vol. 7, p. 66; see also Exhibit D-14). The investigation actually started a year earlier, in June 2005. (Tr. vol. 7, p. 67).
81. The Barbershop Enterprise was the hub of drug dealing on Wyoming Street and the drug dealers associated with the Barbershop Enterprise sold drugs all over Hazleton. (Tr. vol. 7, p. 70).
82. The Barbershop Enterprise was run by an illegal immigrant who has not yet been apprehended for his involvement (Tr. vol. 7, p. 72); however, the number-two person was an illegal immigrant named Carmen Rodriguez who was arrested on May 18, 2006. Id.; see also Exhibit D-14.
83. In addition to Carmen Rodriguez, other illegal immigrants were arrested in connection with the Barbershop Enterprise. (Tr. vol. 7, p. 71).
84. The May 18, 2006 arrests in the Barbershop resulted in the Hazleton Police Department incurring $10,591.28 in overtime hours (Tr. vol. 7, p. 129; see also Exhibit D-31).
85. Another concern for the City of Hazleton has been the increase in criminal gang activity since 2005. (Tr. vol. 7, p. 76).
86. Illegal immigrants are members of gangs. (Tr. vol. 7, p. 77-8) and many of the gang members live in Hazleton. (Tr. vol. 7, p. 28).
87. According to Chief Ferdinand, many illegal immigrants are attracted to gangs for several reasons: they come into the country without a strong support
18

system (Tr. vol. 7, p. 29); they may be looking for economic benefits, id.; they may be looking for a place to fit in, id.; or because the illegal immigrants already use false identities they have no difficulty operating anonymously. (Tr. vol. 7, p. 78).
88. Yeremy Pimentel, an illegal immigrant, was known to recruit for the Bloods in the high school by trying to impressing the students with money, power, and by trying to make it look “cool.” (Tr. vol. 7, p. 77).
89. Since the passage of the Ordinances, Chief Ferdinand has not received any complaints of police harassing Hispanic citizens. (Tr. vol. 7, p. 114).
90. Although the Police Department has received requests from business owners to increase police presence on Wyoming Street (Tr. vol. 7, p. 115), the Police Department has never received a request for a decreased police presence on Wyoming Street. (Tr. vol. 7, p. 116).
91. The Police Department has never received complaints about police officers entering the store owned by Plaintiffs Jose and Rosa Lechuga. (Tr. vol. 7, p. 116).
Detective Christopher Orozco 92. Detective Christopher Orozco has been employed by Hazleton police department since June 1998. (Tr. vol. VIII, p. 5). 93. He is Mexican and speaks Spanish and English. (Tr. vol. VIII, p. 6). 94. Currently, Detective Orozco is the coordinator of the newly formed
19

street crime unit in the Hazleton Police Department. (Tr. vol. VIII, p. 8). This unit was formed to combat the gang-related activity and crime which has been increasing over the past year. (Tr. vol. VIII, p. 8).
95. In 2005, Detective Orozco started noticing an increased presence of gangs and particularly, those members representing to be members of the Bloods. It was not until 2006 that he really started seeing patterns of behavior and identifying certain gang affiliations. (Tr. vol. VIII, p. 9).
96. Currently, he has been able to identify the presence of the following gangs operating in Hazleton: Latin Kings, Three Notarios, Bloods, Crips and MS13. (Tr. vol. VIII, p. 12).
97. Between 1998 and 2005 he did not see any patterns or signs of gangs operating within the City. (Tr. vol. VIII, p. 15-16).
98. From May 2006 until the date of trial, Detective Orozco has arrested fifteen people who have been definitely identified as being associated with gangs. (Tr. vol. VIII, p. 16). He is currently investigating well over fifty individuals who are affiliated with gangs. Id.
99. One third of the gang members have been definitively determined to be illegal immigrants. (Tr. vol. VIII, pp. 18, 21).
100. Detective Orozco is Hispanic (Tr. vol. VIII, p. 331), yet, nobody has even come to him and complained about racial profiling or any alleged adverse
20

effect the ordinances have had on them. Id. Expert, Jared Lewis 101. Jared Lewis, the director of Know Gangs, is an expert in gang
recognition and gang activity. (Tr. vol. VIII, p. 87). 102. MS-13 is the most dangerous gang in North America, known for
dismembering their victims with machetes. (Tr. vol. VIII, p. 131-132). 103. MS-13 are comprised of nearly 90 percent illegal immigrants. (Tr.
vol. VIII, p. 137). 104. One of the gang members recently arrested by Detective Orozco is a
confirmed MS-13 member who is wanted in Omaha, Nebraska on a criminal charge of murder. (Tr. vol. VIII, p. 136).
105. MS-13 members are migrating to small rural communities, such as Hazleton. (Tr. vol. VIII, p. 138).
106. Recently, a “gang party” was held in Hazleton where there was a violent fight. Officers found a bloody machete at the scene, indicative of an MS13 party. (Tr. vol. VIII, p. 140-141).
107. The Latin Kings, the second most dangerous gang in North American, is known for recruiting from the young illegal immigrant population. (Tr. vol. VIII, p. 144).
108. Mr. Lewis observed a dramatic increase in gang activity for a small,
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rural city, when he toured Hazleton with Detective Orozco. (Tr. vol. VIII, p. 147). Detective Corporal Jason Zola 109. Detective Corporal Jason Zola (hereinafter, “Detective Corporal
Zola”) has been a detective with the Hazleton Police Department’s Narcotics Division since July 2002 (Tr. vol. 8, p. 54).
110. The problem of illegal narcotics in Hazleton has increased from 2002 to the present. (Tr. vol. 8, p. 76).
111. Detective Corporal Zola was involved in the investigation and arrests in one of the largest drug operations operating out of Hazleton known as the “Barbershop Enterprise.” (Tr. vol. 8, pp. 56-57).
112. The Barbershop Enterprise was run out of a storefront on Wyoming Street by Carmen Rodriguez, who is an illegal alien. (Tr. vol. 8, p. 57).
113. The Hazleton Police Department learned about the Barbershop Enterprise through their own observations and through complaints from many of the businesses on Wyoming Street which were experiencing a drop in business because people were afraid to come into town because of the criminals purchasing powder and crack cocaine out of the barbershop. (Tr. vol. 8, pp. 58-9).
114. Four out of the seven people arrested as a result of the investigation of the Barbershop Enterprise were illegal aliens. (Tr. vol. 8, p. 69).
115. One of the illegal aliens who was arrested was also involved with the
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sale of illegal firearms. (Tr. vol. 8, p. 61). 116. The investigation and eventual arrest of members of the Barbershop
Enterprise was a burden on a police department with only 30 members (Tr. vol. 8, p. 63-4).
Joseph Yanuzzi 117. Joseph Yanuzzi (“Mr. Yanuzzi”) is the Hazleton City Council President. (Tr. vol. II, p. 127.) He has been on the Hazleton City Council for eight and a half years. (Tr. vol. II, p. 185.) He was president at the time that the IIRA Ordinance was proposed, as well as during the time when portions of the IIRA Ordinance was undergoing revision and/or being repealed. (Tr. vol. II, pp. 130131.) 118. In Yanuzzi’s opinion, the intended and primary purpose of the IIRA Ordinance was to control crime. (Tr. vol. II, p. 144, 149.) 119. Another purpose of the IIRA Ordinance was to reduce fiscal hardship to hospitals caused by illegal immigration. (Tr. vol. II, p. 154.) Yanuzzi made this finding based upon the statements of Jim Edwards, the chief executive officer of the Greater Hazleton Health Alliance, who appeared and testified before City Council on June 15, 2006. (Tr. vol. II, p. 152.) 120. Yanuzzi is generally aware of whether the costs to the City of Hazleton were increasing or decreasing and it was his perception that the City’s
23

budget had been strained in the past two years, (Tr. vol. II, p. 183.) He based this perception on his review of City financial statements each month and conversations with members of the City staff on a regular basis.
121. In the past, when discussing and/or considering an ordinance, City Council has never retained a consultant, statistician, criminologist, and/or other outside consultant or firm to give advice on whether or not to enact a given ordinance. (Tr. vol. II, p. 185.)
Samuel Monticello 122. Samuel Monticello is the City of Hazleton’s Director of Administration and Director of Community Development (Tr. vol. 5, pp. 142-3). He has worked for the City for over twenty-two years. (Tr. vol. 6, p. 180). 123. Despite the fact that Hazleton has an AAA Bond Rating, it has found it increasingly difficult to provide services for its population due to the population growth, because the City has not seen a corresponding increase in revenues which it would expect to see with the increased population. (Tr. vol. 6, p. 207). 124. Hazleton imposes and collects an earned income tax. The earned income tax is a fixed percentage rate of an individual’s income. (Tr. vol. 5, pp. 157-8). 125. Although the City’s population increased by approximately 10,000 people from the year 2000 to the present, the income generated from the City’s
24

earned income tax remained steady. (Tr. vol. 6, p. 188). In fact, the expected revenue generated from the earned income tax for 2002 was $1,418,848, and the expected revenue from the earned income tax for 2007 was $1,400,000 (Tr. vol. 6, pp. 190-91; see also Exhibits D-95 at p. 1 and D-105 at p. HZ1270), resulting in a decrease in revenue generated from the earned income tax during that tax period.
126. Monticello believes that the decrease in revenue generated from the earned income tax is the result of a segment of the population not paying earned income taxes. (Tr. vol. 6, p. 191).
127. Hazleton Ordinance 2006-13, the Tenant Registration Ordinance, serves an important governmental interest by helping the City of Hazleton to identify individuals who might be obligated to pay the City’s earned income tax. (Tr. vol. 6, pp. 191-93).
128. In 2006, Hazleton directly incurred financial burdens to investigate and arrest illegal aliens for crimes committed in the City. The investigation and arrest of illegal immigrants was directly attributable to police overtime charges of $16,870.26 on May 26, 2006, and $10,591.28 on June 9, 2006, for the investigations and arrests in the Derrick Kichline homicide and the Barbershop Enterprise. (Tr. vol. 6, pp. 198-200; see also Exhibit P-94). These charges reflect over $27,000 spent in 2006 for police overtime directly attributable to the investigation and apprehension of illegal aliens for crimes they committed in
25

Hazleton. Id. 129. In 2006, the Police Department exceeded its budget for police
overtime by more than any of the twenty-two years that Monticello worked for the City. (Tr. vol. 6, p. 205).
130. Although the 2006 budget for police overtime was $30,000, the police department actually incurred police overtime expenditures of $113,183 as of December 11, 2006. (Tr. vol. 6, pp. 202-5). Thus, in 2006 the police department exceeded its overtime budget by more than $83,000. (Tr. vol. 6, p. 205).
131. Although the City exceeded its budget for police overtime in the years prior to 2006, the Police Department had never exceeded the overtime budget as much as in 2006. Prior to 2006, the most the Police Department exceeded their budget for overtime hours occurred in 2005. (Tr. vol. 6, p. 202). During 2005, the police overtime budget was $30,000, and the Police Department actually incurred $66,903 in overtime, resulting in a difference of $36,903. Id.
132. The Tenant Registration Ordinance will not generate excessive fees. 133. Although the City’s 2007 proposed budget anticipates that the Tenant Registration Ordinance will generate $105,000 in revenue, this number is speculative because the City cannot know how much money the ordinance will generate until the ordinance is put into effect. (Tr. vol. 6, pp. 193-94). 134. As with any new Ordinance, Hazleton has no way of determining how
26

many people will actually comply with the law, so it has no way to determine the amount of revenue the Ordinance will generate. (Tr. vol. 6, pp. 193-94).
135. The City does not know how much it would cost to enforce the Ordinance, and might be required to hire additional code enforcement officers. (Tr. vol. 6, p. 195-96).
136. In the past, the City has adjusted the fees charged to issue permits. (Tr. vol. 6, p. 194). Thus, if the ordinance appears that it may generate excessive revenue, the City would look into reducing the cost of a Tenant Registration Permit. (Tr. vol. 6, pp. 194-95).
Robert Dougherty 137. Robert Dougherty has been Director of Planning and Public Works for the City of Hazleton for five years. (Tr. vol. V, p. 39.) He oversees the code enforcement office and the registration office in the City of Hazleton. (Tr. vol. V, p. 40.) 138. Mr. Dougherty has been trained in the use of the Basic Pilot Program, has been tested, and is certified to use the Program. (Tr. vol. V, p. 106.) Mr. Dougherty testified that his employees will obtain the same training on the Basic Pilot Program once the restraining order is lifted. (Tr. vol. V, p. 117.) 139. Mr. Dougherty is familiar with the user interface of the SAVE program and has read the SAVE program user manual. (Tr. vol. V, pp. 116-17.)
27

140. Neither the Basic Pilot Program nor the SAVE program involves faceto-face training with federal officials. All training occurs over the internet. (Tr. vol. V, p. 117-18.)
141. Mr. Dougherty will oversee the implementation and enforcement of the IIRA Ordinance. (Tr. vol. V, p. 49.) Mr. Dougherty will provide supervision, and guidance to Mr. Kattner and Mr. Wech in its enforcement. (Tr. vol. V, p. 48.)
142. Mr. Dougherty and his employees “have regular meetings to go over complaints, the status of complaints, [and] whether they have been resolved.” (Tr. vol. V, p. 105.)
143. No complaint under the IIRA Ordinance is automatically accepted by the City as “valid.” A review process must occur first, before any complaint is deemed to be valid. (Tr. vol. V, p. 72.)
144. Mr. Dougherty stated that a “valid” complaint under the IIRA Ordinance would have to include an address where the violation occurred, a description of the type of violation, and the signature of the complainant in order to even be considered by his office. Then further investigation would occur, including visiting the property in question and calling the complainant, before a complaint would be regarded as “valid” under the Ordinance. (Tr. vol. V, p. 99.) He noted that “[w]hen we receive complaints, there is always an investigation of that complaint”(Tr. vol. V, p. 99) and that “[o]ur first action is always to contact
28

the supposed violator …. prior to any correspondence being sent” (Tr. vol. V, p. 93). The nature of the allegations and the credibility of the complainant are assessed. (Tr. vol. V, p. 101.)
145. A complaint based on malice will be rejected as invalid. This is the practice of the City in enforcing other ordinances. (Tr. vol. V, pp. 90-100.)
146. A complaint will be investigated extensively by Mr. Dougherty’s office, often for days or weeks, before the City determines that it is a “valid” complaint. (Tr. vol. V, p. 101.) Mr. Dougherty testified that in determining a complaint’s validity, “there is no specific time frame to which a complaint must be acted upon” under the IIRA Ordinance (Tr. vol. V, pp. 101-102.)
147. A complaint based in any way on national origin, ethnicity, or race would not be regarded as “valid” under the IIRA Ordinance. (Tr. vol. V, p. 105.)
148. Mr. Dougherty testified that it is common practice for his office to develop forms for implementing an ordinance once the ordinances goes into effect. (Tr. vol. V, p. 96.) Guidelines for enforcement of the Tenant Registration Ordinance and IIRA Ordinance will be developed as implementation occurs. (Tr. vol. V, p. 96.)
149. Mr. Dougherty testified that it is his intention to include a section at the bottom of the IIRA complaint form that informs the complainant of the penalty for filing a false swearing and informs the complainant that by signing the
29

complaint he is swearing that the complaint is true. (Tr. vol. V, p. 97.) Discussions with City counsel regarding the inclusion of a false swearing section have already occurred. (Tr. vol. V, p. 97.)
150. A false swearing section was already included in the City’s affidavit that it had prepared for employers to sign, pursuant to the IIRA Ordinance. (Tr. vol. V, pp. 73-74.)
151. As a matter of policy, the City “tr[ies] to clear up problems before having to submit citations.” (Tr. vol. V, pp. 93.) One luxury of being a small town is the ability to notify people and try to remedy a given problem. (Tr. vol. V, p. 110.) Mr. Dougherty stated, “There are policies that we follow in trying to take care of complaints and possible violations with all ordinances that aren’t specifically outlined in those ordinances.” (Tr. vol. V, p. 120.)
152. Mr. Dougherty testified that next, “[i]f the violation cannot be cleared up with a discussion… a notice of violation would be sent, giving the person a period of time to clear that up and referencing the ordinance.” Only after such communication would enforcement of any ordinance proceed. Id.
153. The City’s process of investigating and talking to the individuals involved prior to determining that a complaint is valid applies to the Tenant Registration and IIRA Ordinances. As Mr. Dougherty testified, “An ordinance is an ordinance, and the process of investigating and then dealing with a complaint
30

and filing citations is the same for all ordinances.” (Tr. vol. V, p. 121.) 154. It is the City’s intention to notify the landlord or the employer, and
also attempt to notify the tenant and the employee that this particular complaint has been lodged. (Tr. vol. V, p. 110.)
155. If the Court lifts the restraining order, the City plans to conduct tenant registration over a four month period. (Tr. vol. V, p. 118.) The IIRA Ordinance would be enforced only after registration under the Tenant Registration Ordinance was completed. Id. This four months will be adequate to train City officials to use SAVE and the Basic Pilot Program. Id.
156. Mr. Dougherty testified regarding the procedure following a tentative non-confirmation from the federal government under the Basic Pilot Program. (Tr. vol. V, p. 107.) He explained that “if a non-confirmation is received, there is no change in the employee’s status. The individual remains employed. There is no action that can be taken.” (Tr. vol. V, p. 108.) Upon receipt of a tentative nonconfirmation, the employee would then have eight days to contest the tentative non-confirmation or provide additional information to the federal government to verify his or her status. (Tr. vol. V, p. 108-109.) Mr. Dougherty testified that only after the eight-day period ended or these contest procedures were exhausted, and the City received a final non-confirmation from the federal government indicating that a person was not work authorized, would the three-day period to correct a
31

violation under the IIRA Ordinance commence. (Tr. vol. V, p. 109.) 157. Information collected pursuant to the Tenant Registration Ordinance
will be confidential and will not be available for public review. City officials who violate this provision risk discipline, including the possibility of termination. (Tr. vol. V, p. 95.)
158. The Tenant Registration Ordinance does not require tenants to provide the City with their telephone numbers or their dates of birth. (Tr. vol. V, p. 94.)
159. The City will not scrutinize any documents that a tenant submits to obtain a tenant registration license under the Tenant Registration Ordinance. No registration license will be denied because a document does not appear to be valid. As Mr. Dougherty stated, “Nobody will be refused a tenant registration license, as long as they provide documentation that they indicates meets the requirements. … [A]nybody with any type of documentation is going to be given a tenant registration permit. Nobody will be refused.” (Tr. vol. V, p. 119.)
160. Mr. Dougherty testified regarding Section 4.A. of the IIRA Ordinance the City intended apply the “knowingly” standard contained in the affidavit section therein to all aspects of the Ordinance, even before the City Council amended to the Ordinance to insert the word “knowingly” elsewhere in Section 4.A. (Tr. vol. V, pp. 112-13.) He explained that “[i]n practice it means that if… the individual indicates that they will comply with that ordinance, or if they unknowingly had
32

done something, and they indicate that they can comply with the ordinance, we will consider that complaint as being resolved.” (Tr. vol. V, p. 113.)
161. Mr. Dougherty stated that if the owner of a given business was out of town when a complaint arrives at City Hall, he would use the contact information on file from the entity’s business license and “make every reasonable effort to contact an owner [and/or] business managers… before any enforcement would take place.” (Tr. vol. V, p. 113.)
162. The City will not enforce the Tenant Registration Ordinance or the IIRA Ordinance against any individual whose inability to speak English prevents him from knowing his obligations under the Ordinances. Mr. Dougherty explained, “[w]e often try to assist people who many not have been aware, honestly not knowing about something. Our first action would be to give them the opportunity to register without penalty.” (Tr. vol. V, pp. 92, 94.)
163. No City employees will attempt to independently determine any person’s immigration status. The City will refer all such determinations to the federal government. (Tr. vol. V, pp. 55-57.)
164. The City is a registered user of the Basic Pilot Program. (Tr. vol. V, pp. 58-60.)
Richard Wech 165. Richard Wech (hereinafter, “Wech”) is a Code Enforcement Officer
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for the City of Hazleton. (Tr. vol. 5, pp. 8-9). 166. Wech will receive training regarding the enforcement of the
ordinances and the interpretation of documents which would be acceptable under the ordinances if, and when, the Court lifts its Restraining Order. (Tr. vol. 5, p. 356).
Agapito Lopez 167. Dr. Agapito Lopez, a United States citizen originally from Puerto Rico, has lived in Hazleton for approximately five years. (Tr. vol. I, p. 61, 84-85.) 168. Until the passage of the ordinances in question, Dr. Lopez was a supporter of Mayor Lou Barletta. (Tr. vol. I, p. 85) 169. Lopez has believed and still believes that Mayor Barletta welcomes immigrants to Hazleton. (Tr. vol. I, p. 85) 170. On July 30, 2006, Lopez and approximately sixty additional people from Hazleton met at St. Gabriel’s Church and organized opposition to the ordinances. At that same meeting, approximately twenty people from Hazleton, including Lopez, joined PSLC for the purpose of opposing the ordinances. 171. Lopez never approached ethnic groups other than Latinos or Hispanics to oppose the ordinances. (Tr. vol. I, p. 92) 172. Lopez organized a prayer vigil outside of City Hall during the evening of July 15, 2006, when the second and third readings of the Ordinance was
34

coordinated by City Council. (Tr. vol. I, p. 95). 173. Chief Ferdinand assisted Lopez to assure the safety of those who
protested the Ordinances. Lopez said Chief Ferdinand was cooperative “one hundred percent of the time”. (Tr. vol. I, p. 95).
174. Lopez and PSLC invited people from other states to participate in the September, 2006 rally. (Tr. vol. I, p. 96). Between 100-300 people attended the rally, of which one half were not from Hazleton. (Tr. vol. I, p. 97). There are approximately ten thousand Hispanic and Latino people who live in Hazleton, and only about 50-150 of them attended the rally. (Tr. vol. I, p. 97)
175. Since the passage of the Ordinance, approximately thirty new Hispanic or Latino businesses have opened. (Tr. vol. I, p. 98). A true and correct copy of the list of new businesses that have opened since the passage of the Ordinance is identified in the trial record as Exhibit “D-250”.
176. Lopez does not have any financial information to provide evidence to his assumptions that Latino businesses suffered as a result of the passage of the Ordinance. (Tr. vol. I, p. 107).
177. There has been no decline in church attendance as a result of the ordinances and Spanish speaking masses at St. Gabriel’s Roman Catholic Church in Hazleton continues to be well attended. (Tr. vol. I, p. 112).
178. Lopez believes that illegal immigrants should not have the right to
35

work in the City of Hazleton. (Tr. vol. I, p. 114). Jose and Rosa Lechuga 179. Jose and Rosa Lechuga, originally from Mexico, resided in Hazleton
for sixteen years. (Tr. vol. I, p. 118.) Mr. and Mrs, Lechuga are permanent alien residents. (Tr. vol. I, pp. 119, 120).
180. They recently lost their home in a sheriff’s sale after being in arrears on their mortgage since February 2005 (16 months before the passage of the IIRA Ordinance).
181. Mr. Lechuga owned two businesses in Hazleton—a grocery store called Lechugas Mexican Products and a restaurant called Langria Lechuga. (Tr. vol. I, p. 127, 132).
182. He opened Lechuga’s Mexican Products in 2000 to provide authentic Mexican food to the increasing Mexican community. (Tr. vol. I, p. 128). He had no intention of hiring outside help. (Tr. vol. I, p. 151).
183. In the year 2003, Lechuga’s Mexican Products lost nearly $9,000.00. (Tr. vol. I, p. 142).In the same year, Mr. Lechuga closed a profitable cleaning business he had owned called Jose Lechuga’s New World of Cleaning in order to focus primarily on his grocery store which was then losing money. (Tr. vol. I, p. 142-143).
184. In 2004, the Lechugas realized a profit in Lechugas Mexican Products
36

and opened another grocery store in Tamaqua, PA. (Tr. vol. I, p. 143). 185. In 2005, while Lechugas Mexican Products realized an overall profit,
the Tamaqua store suffered losses. (Tr. vol. I, p. 130, 144). Mr. Lechuga attributes the loss of business in Tamaqua to a federal immigration raid on a local Wal-Mart which caused many of his clients to be deported or leave the communicate. (Tr. vol. I, p. 144-145). The IIRA Ordinance had nothing to do with the failure of the Tamaqua store. (Tr. vol. I, p. 145).
186. The federal raid also had a negative impact on the Lechuga’s Mexican Products Store in Hazleton. (Tr. vol. I, p. 146).
187. Lechuga’s Mexican Products Store in Hazleton also sustained some financial losses in 2005. (Tr. vol. I, p. 130). It sustained a loss of $6,599.36 alone in the second quarter of 2005. (Tr. vol. I, p. 149). In 2006, it sustained a second quarter loss of $5,676.60. (Tr. vol. I, p. 149).
188. Lechuga closed the Hazleton store in February 2007. (Tr. vol. I, p. 131).
189. The Lechugas opened Langria Lechuga in February 2006. It was operated only by family members. (Tr. vol. I, p. 132). He had no intention of ever hiring outside help. (Tr. vol. I, p. 151).
190. The Lechugas opened the restaurant because they were $10,000.00 in arrears in their mortgage payments and thought another business would get them
37

out of debt. (Tr. vol. I, p. 132, 146). 191. The money needed to lease the restaurant, purchase supplies and
operate the business was taken from receipts of the grocery store business in Hazleton. (Tr. vol. I, p. 146-147).
192. Langria Lechuga was opened in February 2007 and closed in July 2007.
193. The Lechugas offered no documentary proof that their businesses experienced a decrease in the number or amount of transactions or customers at either the grocery store or the restaurant after the Ordinances were considered or enacted, despite the fact that they maintained cash register receipts for both businesses.
194. After the Lechugas closed their restaurant, another Hispanic restaurant, Entre Nostros, opened at the same location. That restaurant was still open and operating as of March 12, 2007.
195. Mr. Lechuga said that he noticed people “staring” at him after the passage of the ordinances (Tr. vol. I, p. 149), but admitted that nobody told him why they were starting or if their staring had anything to do with the ordinances. (Tr. vol. I, p. 150).
196. Mr. and Mrs. Lechuga noticed an increase in crime in their neighborhood in 2005-2006. They attributed some of this increase to gang related
38

activities. (Tr. vol. I, p. 150, 158). 197. Mrs. Lechuga admitted that she was aware of a greater police
presence on Wyoming Street, in the heart of the Latino community, as a result of the increase in crime. (Tr. vol. I, p. 158).
198. While she did not want the police standing in front of her restaurant, she was glad they increased their presence since the neighborhood had a problem with crime. (Tr. vol. I, p. 161).
199. The Lechugas, who had originally made a claim for damages in the original Complaint, dropped that claim for damages in the Second Amended Complaint.
Jose Molina 200. The Pennsylvania Statewide Latino Coalition (“PSLC”) is a nonprofit, volunteer organization. (Tr. vol. II, p. 21.) 201. Jose Molina (“Mr. Molina”) is the regional director of the PSLC for the northeast section of the State of Pennsylvania. (Tr. vol. II, p. 22-23.) He does not live in the City of Hazleton, nor does he operate any businesses in the City. (Tr. vol. II, p. 51.) 202. Molina was unable to describe with specificity the amount of time and/or activity that the PSLC purportedly spent on or devoted to activities related to the IIRA Ordinance. (Tr. vol. II, p. 45-46.) He could not particularize any costs
39

incurred by the PSLC on activities related to the IIRA. (Tr. vol. II, p. 48.) No documents were presented to prove that the PSLC’s suffered any monetary loss due to increased costs and/or burdens associated with the IIRA Ordinance.
203. PSLC is not asserting a claim for money damages in this litigation. (Tr. vol. II, p. 57).
204. Molina was able to substantiate the membership of only three Hazleton residents who were PSLC members, and on behalf of whom the PSLC brought the lawsuit. (Tr. vol. II, p. 59.) He identified these individuals as Agapito Lopez, Jose Lechuga and Rosa Lechuga, who joined the PSLC on August 1, 2006 (Tr. Vol. II, pp. 57-59).
205. The PSLC was solicited by Dr. Lopez and other members of the Hazleton community to get involved in advocating on behalf of Latino members of the Hazleton community against the ordinances. (Tr. vol. II, p. 55.) The first meeting that the PSLC had within the City of Hazleton was on July 30, 2006. (Tr. vol. II, p. 53).
206. An incident occurred in which a brick was thrown through the window of a Latino-owned restaurant called Quisqueya. (Tr. vol. II, p. 33.) That incident occurred prior to the enactment of the IIRA Ordinance (Tr. vol. II, p. 66). It was never determined who threw the brick. (Tr. vol. II, p. 63.) The business is still open. (Tr. vol. II, p. 66.)
40

Rodolfo Espinal 207. The Hazleton Hispanic Business Association (“HHBA”) is a corporation comprised of business owners in Hazleton. (Tr. vol. II, p. 77.) 208. Rodolfo Espinal is the president of the HHBA. (Tr. vol. II, p. 78.) 209. The first official meeting of the HHBA took place on July, 11 2006, and the second meeting took place on July 18, 2006 (Tr. vol. II, p. 103-104). 210. During the July 18, 2006 meeting, at which lawyers were present, there was a discussion about proceeding with a lawsuit against the City of Hazleton as well as a discussion about who could be a plaintiff in the lawsuit. (Tr. vol. II, p. 105.) 211. HHBA was incorporated in August 18, 2006, after the IIRA Ordinance was enacted. (Tr. vol. II, p. 77). 212. HHBA was formed to oppose the IIRA Ordinance. (Tr. vol. II, p. 79.) 213. Although the HHBA keeps a membership list, it does not keep records of members who withdrew from the HHBA. (Tr. vol. II, p. 118.) It is unknown why any members withdrew from the HHBA. Id. 214. Although the HHBA claims that its business members were harmed by the IIRA, the HHBA did not produce any corroborating evidence on that issue. (Tr. vol. II, pp. 81 & 108). 215. For example, although the HHBA claims an Hispanic owned business
41

named Rubio’s Gift Shop was damaged financially in its money wire commissions, the amount of the Rubio’s wire transfer commissions ranged from a high of approximately $3,200 in May 2006 to a low of approximately $1,913.26 in November 2006. (Tr. vol. II, p. 109.) The amount of the Rubio’s wire transfer commissions in the months after the enactment of the IIRA Ordinance on July 13, 2006 were $2,592.04 in September 2006 and $2,165.28 in October 2006. Id. Rubio’s worst month for wire transfer commissions came in November 2006, a month after the court entered a temporary restraining order enjoining the City of Hazleton from enforcing the IIRA Ordinance. (Tr. vol. II, p. 111.)
216. Rubio’s store did not close subsequent to the enactment of the IIRA Ordinance. (Tr. vol. II, p. 83.)
217. El Mariachi was an HHBA member that had withdrawn from the HHBA. El Mariachi is still open and has retained a full and active clientele. (Tr. vol. II, p. 112.)
218. The HHBA produced no evidence to substantiate that Hispanic businesses had either closed or relocated out of the City of Hazleton since the passage of the IIRA Ordinance. (Tr. vol. II, p. 112.)
219. Smilex Florist and Cousins Restaurant had either moved or closed as a result of crime on Wyoming Street. Id.
220. Espinal is a resident of the City of Hazleton (Tr. vol. II, p. 68), owns
42

rental properties in the City of Hazleton (Tr. vol. II, p. 90), and owns a business in the City of Hazleton (Tr. vol. II, p. 75).
221. Despite his assertion that the IIRA Ordinance had a chilling effect on Hispanic business, Espinal opened Homex Realty, LLC on December 18, 2006 (Tr. vol. II, p. 75-76.), approximately five months after the IIRA Ordinance was enacted on July 13, 2006. (See IIRA Ordinance 2006-13.)
222. Although Espinal asserted that the IIRA caused him to lose two potential tenants in January 2007. (Tr. vol. II, pp. 93-94.), he admitted that he did not know where these two men lived; whether they lived in Pennsylvania or the City of Hazleton; or whether they had found a better and/or less expensive apartment. (Tr. vol. II, pp. 117-118.)
223. Although Espinal had shown the apartment to an additional four to six people who did not rent the apartment, (Tr. vol. II, p. 95) he did not provide details on specific conversations he had with these individuals regarding their reasons for not renting the apartment; did not explain whether and/or where these individuals eventually rented apartment; and did not indicate the immigration status and or nationality of these individuals.
224. Espinal is currently running for City Council in an effort to displace Joe Yanuzzi. (Tr. vol. II, pp. 115-116.)
Manuel Saldana
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225. Manuel Saldana (“Mr. Saldana”) is the president and founder of Casa Dominicana. (Tr. vol. III, pp. 6-7.) He is not a resident of the City of Hazleton. (Tr. vol. III, p. 4.)
226. Casa Dominicana has 80 members, of which 54 live in Hazleton. (Tr. vol. III, p. 12.) Casa Dominicana has never collected and deposited mandatory dues from members (Tr. vol. III, p. 23) Casa Dominicana is not pursuing monetary damages in this lawsuit. (Tr. vol. III, p. 28.)
227. Casa Dominicana permits illegal aliens to become members of the organization. (Tr. vol. III, p. 21.)
228. Although Casa Dominicana claims that it lost approximately 35 members as a result of the IIRA Ordinance, only three of those alleged 35 members were contacted by Casa Dominicana after they left. (Tr. vol. III, p. 25.)
229. The first member who purportedly left Casa Dominicana due to the IIRA Ordinance contacted Mr. Saldana in October 2006 via cell phone. Id. This individual, who was in the United States legally, explained to Mr. Saldana that he had sold his rental properties in the City of Hazleton because he was unable to find tenants to fill them. (Tr. vol. III, pp. 25-26.) Mr. Saldana admitted that he did not discuss with this individual whether his loss of tenants was attributable to the IIRA Ordinance. Id.
230. The second member who purportedly left Casa Dominicana due to the
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IIRA Ordinance contacted Mr. Saldana in December 2006 via cell phone. (Tr. vol. III, p. 26.) This individual, whom Mr. Saldana declined to identify, was an illegal alien. Id. This individual left due to fear of apprehension by the authorities based on his or her illegal status. Id.
231. The third member who purportedly left Casa Dominicana due to the IIRA Ordinance contacted Mr. Saldana in December 2006 via cell phone. (Tr. vol. III, p. 27.) This individual was an illegal alien. Id. This individual also left due to fear of apprehension by the authorities base on his or her illegal status. Id.
232. Two fundraisers were held by Casa Dominicana, the first in March of 2005 and the in November of 2006. (Tr. vol. III, p. 24.) The amount of money raised in the fundraiser in November 2006, several months after the IIRA Ordinance was enacted, was greater than the amount of money raised in March 2005. Id.
Doe Plaintiffs 233. John Doe No. 7, originally born in Columbia, moved to the United States in 2001. He is not a citizen or a permanent resident of the United States. (N.T. John Doe No. 7, January 26, 2007, pp. 9-10). He refused to answer any questions regarding his immigration status. (N.T. John Doe No. 7, January 26, 2007, pp. 13-14). 234. He does not read, write or speak English. (N.T. John Doe No. 7,
45

January 26, 2007, p. 17). 235. John Doe No. 7 admitted that he is opposing this ordinance out of fear
of deportation. (N.T. John Doe No. 7, January 26, 2007, pp. 31-32). 236. John Doe No. 7’s landlord has not evicted him, threatened to evict
him, or asked for proof of his immigration status. (N.T. John Doe No. 7, January 26, 2007, p. 30). In fact, his landlord has made no attempts at contacting John Doe No. 7 with regard to the IIRA. (N.T. John Doe No. 7, January 26, 2007, p. 31).
237. John Doe No. 7 only has one complaint about the ordinances. On approximately 5-10 occasions at the mall, people would look at him in a way he attributes to being racially charged as a result of the ordinances, even though no one has said anything to him. (N.T. John Doe No. 7, January 26, 2007, pp. 40-41, 45). He has no corroborating evidence that the people looked at him as a result of the ordinances. (N.T. John Doe No. 7, January 26, 2007, pp. 47-48, 49-51). Other than these specific times, there have been no other uncomfortable situations for John Doe No. 7 since the enactment of the ordinances. (N.T. John Doe No. 7, January 26, 2007, p. 46, 52).
238. Jane Doe No. 5, married to John Doe No. 7 and also originally born in Columbia, moved to the United States in 2001. She is not a citizen of the United States. (N.T. Jane Doe No. 5, January 26, 2007, pp. 15, 17).
239. She refused to answer any questions regarding her immigration status.
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(N.T. Jane Doe No. 5, January 26, 2007, pp. 18-19). 240. Jane Doe No. 5 admitted that she is opposing this ordinance out of
fear of deportation. (N.T. Jane Doe No. 5, January 26, 2007, pp. 54, 56, 57). 241. Nobody ever told Jane Doe No. 5 what was pled in the Complaint.
(N.T. Jane Doe No. 5, January 26, 2007, pp. 28-31). 242. Jane Doe No. 5’s landlord has not evicted her, threatened to evict her,
or asked for proof of her immigration status. (N.T. Jane Doe No. 5, January 26, 2007, p. 33). In fact, her landlord has made no attempts at contacting John Doe No. 5 with regard to the IIRA. (N.T. Jane Doe No. 5, January 26, 2007, p. 33, 53).
243. Jane Doe No. 5 only has two complaints she attributes to the ordinances. On an occasion in the Wal Mart in August 2006 a lady made a face at her and a pejorative statement about Hispanics. (N.T. Jane Doe No. 5, January 26, 2007, pp. 40). She has no corroborating evidence that the lady acted that way as a result of the ordinances. (N.T. Jane Doe No. 5, January 26, 2007, pp. 42-44, 5052).
244. One other incident occurred at Wendy’s restaurant where a lady gave her a look while she was speaking Spanish and the counter girl waiting began speaking to her in English. (N.T. Jane Doe No. 5, January 26, 2007, pp. 44-46). Again, she has no corroborating evidence that the lady acted that way as a result of the ordinances. (N.T. Jane Doe No. 5, January 26, 2007, pp. 47-49, 50-52).
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245. John Doe No. 1 did not prove his immigration status and whether he is illegally or legally present in the United States.
246. John Doe No. 1 believes that the United States Government approved an Application for Residency that his father filed on his behalf (N.T. John Doe No. 1, December 8, 2006, at pp. 24-25); however, he also believes that the United States Government can ask him to leave the country. (N.T. John Doe No. 1, December 8, 2006 at p. 26).
247. He does not know whether he is legally permitted to work while present in the United States. (N.T. John Doe No. 1, December 8, 2006 at p. 26).
248. He did not present any documentary evidence to establish his legal authority or lack of authority to remain in the United States and to work in United States.
249. Based upon the alleged approval of the Application for Residency that his father filed on his behalf, John Doe No. 1 believes that he will be able to obtain an Occupancy Permit from the City of Hazleton and would not be required to leave his apartment. (N.T. John Doe No. 1, December 8, 2006 at p. 48).
250. John Doe No. 1 has not been discriminated against or seen any discrimination since Hazleton passed its ordinances. (N.T. John Doe No. 1, December 8, 2006 at p. 40).
251. He has not lost any money because of the ordinances. (N.T. John Doe
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No. 1, December 8, 2006 at p. 68). 252. He would not mind showing immigration documents to a government
office. (N.T. John Doe No. 1, December 8, 2006 at p. 73). 253. The impact of Hazleton’s ordinances on John Doe No. 1’s children or
his children’s education is not at issue in this litigation. (N.T. John Doe No.1, December 8, 2006 at pp. 16-18).
254. He admitted that he presented his employer with an invalid Social Security Card to establish eligibility to work. (N.T. John Doe No. 1, December 8, 2006 at p. 32).
255. He has not proved that he pays local taxes, as he testified that he has copies of tax returns (N.T. John Doe No. 1, December 8, 2006 at p. 37); however, he did not produce any evidence in discovery or at trial to substantiate his claim.
256. John Doe No. 3 did not prove his immigration status and whether he is legally or illegal present in the United States.
257. He possesses documents identifying his citizenship (N.T. John Doe No. 3, December 8, 2006 at p. 11); however, he did not produce those documents through discovery nor introduce them as a evidence at trial.
258. He admitted that he does not have a valid Social Security Number; however, he refused to answer a question of whether he had provided a false Social Security Number to third parties and represented that it was a valid Social Security
49

Number. (N.T. John Doe No. 3, December 8, 2006 at pp. 16-20). 259. John Doe No. 3 has not proved that he pays local taxes, as he testified
that he has copies of tax returns (N.T. John Doe No. 3, December 8, 2006 at p. 34); however, he did not produce any evidence in discovery or at trial to substantiate his claim.
260. His landlord has never asked him to provide proof of his immigration status nor has the landlord told John Doe No. 3 that he needs to obtain an Occupancy Permit. (N.T. John Doe No. 3, December 8, 2006 at pp. 35-36).
261. He does not believe that he will evicted if Hazleton’s Registration Ordinance goes into effect. (N.T. John Doe No. 3, December 8, 2006 at p. 38).
262. Since Hazleton passed its ordinances, he has not been harassed or hassled because of his national origin. (N.T. John Doe No. 3, December 8, 2006 at p. 49).
263. John Doe No. 3 has not lost any money because of the ordinances. (N.T. John Doe No. 3, December 8, 2006 at p. 53).
264. He does not believe that he has been injured in any way because of the ordinances. (N.T. John Doe No. 3, December 8, 2006 at p. 53).
Pedro Lozano 265. Pedro Lozano (hereinafter, “Lozano”) is a landlord who owns a duplex in the City of Hazleton. (Tr. vol. 1, p. 165).
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266. Although Lozano claimed that he continually rented the duplex from the time of his purchase of the property on April 25, 2005, until the passage of ordinances (Tr. vol. 1, p. 165), this testimony is contradicted by the evidence of record.
267. Lozano claims he rented the two units in the duplex for $650.00 a month and $700.00 a month (Tr. vol. 1, p. 177); however, Lozano admitted that he only received $4,300.00 in rent for tax year 2005 and, in fact, the property was not occupied during the entire eight months from Lozano’s purchase until the end of the tax year. (Tr. vol. 1, pp. 178-180).
268. Prior to enactment of Hazleton’s ordinances, during tax year 2005, Lozano lost income of $8,795.00 on his rental property. (Tr. vol. 1, pp. 180-81; Exhibit D-240).
269. Lozano did not know the immigration status of any prospective tenants who have looked at his rental property. (Tr. vol. 1, pp. 183-84).
270. Lozano did not know the immigration status of any tenants who have moved from his property. (Complaint ¶ 2).
271. Lozano produced no testimony or evidence to support a claim that the reason any tenants moved from his property were because of the City of Hazleton’s ordinances.
272. Although Lozano testified that he has had trouble renting his property
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after the passage of Hazleton’s ordinances, Lozano never tried to advertise his property in a newspaper, and his efforts consisted of simply placing a sign on the property. (Tr. vol. 1, pp. 182-83).
273. Lozano does not know why any of the prospective tenants did not rent his property. (Tr. vol. 1, p. 183).
274. Lozano is having difficulty finding tenants for rental properties outside of the City of Hazleton as well as inside of the City limits. (Tr. vol. 1, p. 188).
Marc Rosenblum 275. Marc Rosenblum is an Associate Professor of Political Science at the University of New Orleans who teaches U.S.—Latin American relations, U.S. foreign policy, Latin American politics, quantitative methods, and statistics. (Tr. vol. IV, p. 7.) He was offered as an expert by Plaintiffs 276. Prof. Rosenblum has never used the Basic Pilot Program, the Systematic Alien Verification for Entitlements (SAVE) Program, or the Law Enforcement Support Center (LESC) to verify any person’s immigration status. (Tr. vol. IV, p.65.) 277. Prof. Rosenblum has never done any primary research concerning the Basic Pilot Program. (Tr. vol. IV, p. 71.) 278. Prof. Rosenblum has never done any analysis of employers or their
52

hiring decisions in Hazleton, Pennsylvania. (Tr. vol. IV, p. 78.) 279. Prof. Rosenblum was unaware of the fact that in 2007 a second
Westat study of the Basic Pilot Program was done, in which it was found that over 92% of queries from employers receive an instantaneous employment authorized response within 3 seconds. (Tr. vol. IV, p. 88.) (April 2007 Congressional testimony of USCIS official reporting “over 92%” result attached as Exhibit C.)
280. Prof. Rosenblum conceded that the new 2007 Westat study result is a significant improvement over the 2002 Westat/Temple statistics he relied upon. (Tr. vol. IV, p. 88-89.)
281. In the cases (representing 7-8% of the total) in which an instantaneous employment authorization response is not issued within 3 seconds by the Basic Pilot program, the follow-up process of manual verification by a USCIS officer begins automatically, without any need for the employer or employee to appeal the “tentative non-confirmation.” (Tr. vol. IV, p. 85.)
282. In the 7-8% of cases in which an instantaneous employment authorization is not issued in 3 seconds by the Basic Pilot Program, that does not result in an error concerning an alien’s work authorization. It only results in delay of the federal government’s verification of work authorization. (Tr. vol. IV, p. 97.)
283. Employers are already required by federal law to scrutinize job applicants’ documents establishing such applicants legal authorization to work in
53

the United States through the I-9 system. (Tr. vol. IV, pp. 76-77.) 284. Prof. Rosenblum stated that the Basic Pilot Program reduces the
problem of defensive non-hiring of certain ethnic groups, because the employer may rely upon the federal government’s verification, rather than his own judgment. (Tr. vol. IV, p. 80.)
285. The Hazleton ordinance would increase the incentive to use the Basic Pilot Program and would thereby decrease the likelihood of some forms of employer discrimination in hiring. (Tr. vol. IV, p. 80.)
286. Prof. Rosenblum last obtained reports regarding the Basic Pilot Program in the early summer of 2006, prior to USCIS’s centralization of work authorization in London, Kentucky, and prior to the 2007 Westat study results. (Tr. vol. IV, p. 91-92.)
287. Prof. Rosenblum was unaware when he testified that, in March 2007, USCIS began automatically sending electronic data regarding incoming visa holders to the central database in London, Kentucky from remote ports of entry, further reducing delays in verification. (Tr. vol. IV, pp. 92-93.)
288. Prof. Rosenblum was also unaware when he testified that, in March 2007, USCIS began using scanned images of original documents, further reducing the likelihood of any USCIS error in verifying aliens’ work authorization. (Tr. vol. IV, pp. 76-77.) (April 2007 Congressional testimony of USCIS official describing
54

improvements attached as Exhibit C.) 289. 99.9 percent of aliens whose work authorization is queried under the
Basic Pilot Program are confirmed to be work-authorized; only .06 percent are denied work authorization. (Tr. vol. IV, p. 98-99.)
290. Prof. Rosenblum regards the Basic Pilot Program as the “best existing Federal system to confirm a worker’s eligibility.” (Tr. vol. IV, p. 101.)
291. Prof. Rosenblum conceded that the Hazleton ordinance will likely increase the accuracy of employers’ hiring decisions (concerning whether prospective employees are work authorized). (Tr. vol. IV, pp. 101-02.)
292. According to the 2002 Temple/Westat study of the Basic Pilot Program, 45 percent of employers interviewed stated that the use of the Basic Pilot Program made them more likely to hire immigrants, whereas only 5 percent were less likely. (Tr. vol. IV, p. 104-05.)
293. Professor Rosenblum was unaware when he testified that the Hazleton complaint procedure would discourage employers from hiring immigrants that a citizens’ complaint procedure already exists under federal law at 8 U.S.C. 1324a(e)(1)(A). (Tr. vol. IV, p. 106-07.)
294. Prof. Rosenblum was unaware when he testified that federal law, like the Hazleton ordinance, prohibits the employment of an unauthorized aliens “knowing or in reckless disregard” of his unauthorized status, under INA Section
55

274a. (Tr. vol. IV, p. 113-14.) 295. Prof. Rosenblum’s predictions concerning defensive hiring practices
in Hazleton were concededly based on speculation and not on any survey data. (Tr. vol. IV, p. 117.)
296. Prof. Rosenblum’s predictions concerning “bad apple” employers who knowingly accept false documents were all based on a 1990 study that predated the existence of the Basic Pilot Program. (Tr. vol. IV, p. 121.)
297. Prof. Rosenblum was unaware when he testified that federal law, like the Hazleton ordinance, allows U.S. citizen or authorized alien employees to sue employers for treble damages caused by the employment of an unauthorized aliens, under 18 U.S.C. § 1961. (Tr. vol. IV, p. 138.)
298. The Hazleton ordinance’s provision requiring participation in the Basic Pilot Program by noncompliant employers is a mirror image of the federal practice of requiring participation as a consequence of employing unauthorized aliens. (Tr. vol. IV, p. 138.)
299. Prof. Rosenblum has no degree in economics. (Tr. vol. IV, p. 75.) 300. Prof. Rosenblum was unable to offer any studies supporting his assertion that stronger worksite enforcement against the employment of unauthorized aliens might decrease all wages. (Tr. vol. IV, p. 152.) Ruben G. Rumbaut
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301. Ruben G. Rumbaut was offered by Plaintiffs as an expert in the field of immigration and adaptation of immigrants. (Dep. Tr., Rumbaut, p. 30).
302. Illegal immigration in the United States has increased tremendously since 1994. (Dep. Tr., Rumbaut, p. 55). Dr. Rumbaut believes that 30 percent of all immigrants in the United States today are illegally in the country. (Dep. Tr. Rumbaut, p. 56).
303. Regarding the foreign born male prison inmate population between the ages of 18 and 39, Dr. Rumbaut did not have any statistics by which he could determine what percentage of that inmate population consisted of legal immigrants vs. illegal immigrants. (Dep. Tr., Rumbaut, pp. 110, 115, 116).
Jack Martin 304. Jack Martin (“Mr. Martin”) is the special projects director for the Federation for American Immigration Reform, a nonprofit organization in Washington, D.C. (Tr. Vol. VII, pp. 204-05.) He was an officer with the U.S. Department of state for 28 years. (Tr. Vol. VII, p. 205.) 305. The report by the Texas Comptroller regarding the fiscal impact of illegal immigration is flawed because the report included among the benefits of illegal immigration the product of the illegal alien labor. However, that labor would be replaced by legal alien labor or U.S. citizen labor. As Mr. Martin explained, “[I]t is not appropriate to consider that amount of product as an offset
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against the fiscal costs.” (Tr. Vol. VII, p. 226, 229.) 306. The State Criminal Alien Assistance Program (“SCAAP”) is a federal
program that reimburses state and local governments for the costs of incarcerating illegal aliens in their prisons. (Tr. Vol. VII, p. 235.)
307. State and local jurisdictions are not reimbursed for 90 percent of the cost of incarcerating illegal aliens who commit crimes. As Mr. Martin explained, under the SCAAP program “the amount of compensation that will return to the State is a very small percentage of the total cost [of illegal alien incarceration]… perhaps 10 percent of the documented costs of incarceration.” (Tr. Vol. VII, p. 238.)
308. Illegal immigrants are more likely to commit crimes in the United States than legal immigrants. (Tr. Vol. VII, p. 241.)
309. Legally admitted immigrants are less likely to commit crimes than the illegal alien population (Tr. Vol. VII, p. 243.), because legal immigrants are prescreened. (Tr. Vol. VII, p. 249.)
310. Legally admitted aliens are fingerprinted and checked against a criminal database.” (Tr. Vol. VII, p. 249.)
311. People who have come into the country illegally, either through crossing the border illegally or through fraud, are much more dependent upon supporting themselves through involvement in crime or coming into the country
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specifically for the purposes of crime. (Tr. Vol. VII, pp. 248-49.) Dr. Steven Camarota 312. Steven Camarota, (“Dr. Camarota”) is the Director of Research for the
Center for Immigration Studies in Washington, D.C. For the past seven years he has performed work for the U.S. Census Bureau, evaluating their data on immigrants and foreign-born individuals. (Tr. vol. VII, pp. 150-51.)
313. Roughly half of the aliens in the United States are illegal aliens. (Tr. vol. VII, pp. 161-62.)
314. Sixty percent of illegal aliens have not completed high school and twenty percent have only a high school degree. Their low average level of education means that their incomes are on average much lower than legal aliens or native U.S. citizens. As a result, illegals tend to be a lot poorer on average than natives. (Tr. vol. VII, pp. 159-60.)
315. Illegal aliens are a fiscal burden on government because they contribute relatively little in taxes. Illegals have less education, make less money and pay less in taxes. Only 50 to 60 percent of illegal aliens are paid on the books (Tr. vol. VII, p. 160) and Illegals’ tax compliance is dramatically lower than the rest of the population. (Tr. vol. VII, p. 160-61.)
316. Illegal-headed households also tend to be 17 percent larger than nonillegal households, on average. This large household size, combined with their low
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income levels, means that they are heavy users of public services and benefits and impose significant demands on certain types of public services. (Tr. vol. VII, p. 161.)
317. The average illegal alien household consumes $2,700 more in federal services than it contributes in federal taxes. (Tr. vol. VII, pp. 162-63.)
318. At the state and local level, the net fiscal drain imposed by each illegal alien household is over $5,000 per year. (Tr. vol. VII, p. 164-65.)
319. Illegal aliens impose a much larger fiscal burden on governments than legal aliens do because they are generally poorest, least educated share of the foreign-born population. (Tr. vol. VII, p. 165.) In contrast, legal aliens must demonstrate that they will not become a public charge in order to be admitted into the United States. (Tr. vol. VII, p. 166.)
320. The 2005 Bear Stearns study, which calculated that the net burden of illegal aliens at all levels of government in the United States is $65 billion per year, is a reasonable estimate, according to Dr. Camarota. (Tr. vol. VII, p. 167.)
321. The fiscal burden imposed by illegal aliens in Hazleton is larger than average, because Pennsylvania cities must rely on payroll taxes, and a large share of illegals do not pay any payroll tax. (Tr. vol. VII, pp. 167-68.)
322. Illegal aliens impose a net drain on the budget of the City of Hazleton. (Tr. vol. VII, p. 168.)
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323. The illegal alien population in the City of Hazleton is between 1,500 and 3,400 people (Tr. vol. VII, pp. 169-70.) and is above the national average. (Tr. vol. VII, p. 173.)
324. The fact that there has been little or no growth in Hazleton’s earned income tax revenues during a period in which the City’s population increased by 7,000-10,000 people indicates that a large share of the population growth in Hazleton is due to illegals. (Tr. vol. VII, p. 172.)
325. 25-50 percent of English as a Second Language (ESL) students come from illegal alien headed households. (Tr. vol. VII, p. 171.) Of those students, 4050 percent are themselves illegal aliens. (Tr. vol. VII, p. 191.)
326. 65 percent of illegal aliens do not have health insurance, compared to 11 percent of the native born population in Pennsylvania, and 20-25 percent of the legal alien population. (Tr. vol. VII, pp. 174-75.) In Hazleton, there are 1,1002,200 uninsured illegal aliens. (Tr. vol. VII, p. 193.) Illegal aliens make up 28-46 percent of the total uninsured population in Hazleton. (Tr. vol. VII, p. 194.)
327. Because illegal aliens are unlikely to have health insurance and they cannot be denied emergency room care, an increase in waiting times in emergency rooms is a direct and measurable consequences of an increase in the illegal alien population. (Tr. vol. VII, p. 175.)
328. Ruben Rumbaut’s report for Plaintiffs regarding incarceration rates
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was based on flawed data because Rumbaut relied on census data. (Tr. vol. VII, p. 177.) However, Census prison numbers are not reliable because prison administrators have to guess at 40 percent of prisoners’ nationality. (Tr. vol. VII, p. 178).
329. 20 percent of the inmates in the federal prison system are illegal aliens. (Tr. vol. VII, p. 199.)
330. Dr. Camarota predicts that if the Hazleton IIRA Ordinance succeeds in discouraging landlords from renting apartments to illegal aliens and reducing the illegal alien population, there will be a positive fiscal benefit for the City (Tr. vol. VII, pp. 181, 197.).
Mr. Michael Cutler 331. Michael Cutler is a fellow at the Center for Immigration Studies in Washington, D.C. (Tr. vol. VIII, p. 178), and served as a federal immigration enforcement officer for 31 years. (Tr. vol. VIII, pp. 179-81.) From 1975 on, he was an INS special agent, working with various units ranging from fraud, to worksite enforcement, to drug smuggling. (Tr. vol. VIII, p. 179-80.) 332. From the mid-1980s on, Mr. Cutler used and manipulated the INS’s computer data bases on a daily basis to determine whether aliens were legally present in the United States. (Tr. vol. VIII, p. 181.) He had access to the same data bases that are used by the Systematic Alien Verification for Entitlements
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(SAVE) Program and the Law Enforcement Support Center (LESC). He remains familiar with the computer data bases used by Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS). (Tr. vol. VIII, p. 183-84.)
333. USCIS estimates that “there are more than 150,000 federal, state, and local agency users that verify immigration status through the [SAVE] Program.” (Tr. vol. VIII, pp. 288-89.) “Users” refers to individuals within each agency, not to the agencies themselves. (Tr. vol. VIII, pp. 241-43.)
334. The federal government is responding to 13 million SAVE inquiries per year by government official around the country seeking to verify aliens’ statuses. (Tr. vol. VIII, p. 246.)
335. The SAVE Program is very easy for state or local government officials to use and requires logging on with a password and putting in the alien’s name, date of birth, and the numbers. (Tr. vol. VIII, p. 247.)
336. The SAVE Program does not require the state or local government official to make any independent determination about an alien’s status. (Tr. vol. VIII, p. 259.)
337. The Basic Pilot Program is as easy to use as the SAVE Program. (Tr. vol. VIII, p. 248.)
338. The Basic Pilot Program searches a subset of the same databases that
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the SAVE Program searches. (Tr. vol. VIII, p. 247.) 339. The Law Enforcement Support Center (LESC) has access to all of the
same databases used by the Basic Pilot Program and the SAVE Program. (Tr. vol. VIII, p. 247-48.)
340. Every year, approximately 500,000 inquiries from state or local officials about the legal status of aliens are answered by the LESC. (Tr. vol. VIII, p. 248.)
341. The Basic Pilot Program could easily handle the additional inquiries if every employer in Hazleton used the Program. Indeed, the Basic Pilot Program could easily handle the inquiries if every employer in 100 cities of Hazleton’s size used the program. (Tr. vol. VIII, p. 249.) The Basic Pilot Program is only operating at 32 percent of its capacity right now. If it the number of users increased to 100 percent of its capacity, the system would simply take longer—10 or 15 seconds—to electronically generate an answer. (Tr. vol. VIII, pp. 249-50.)
342. If a city government asks about an alien’s immigration status, the federal government is required to provide an answer, according to an Act of Congress passed in 1996. (Tr. vol. VIII, p. 250.)
343. Any local government can obtain a Memorandum of Understanding to become a user of the SAVE Program. (Tr. vol. VIII, p. 251.)
344. The SAVE Program would be the most appropriate system for the
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Hazleton Code Enforcement Office to use in enforcing the IIRA Ordinance. However, the Basic Pilot Program and the LESC could also be used if necessary. (Tr. vol. VIII, pp. 250-51.)
345. SAVE could be used by the City of Hazleton to verify the work authorization of an alien employed in Hazleton who is alleged to be an unauthorized alien. (Tr. vol. VIII, p. 251.)
346. The implementation of Hazleton’s Tenant Registration Ordinance and IIRA Ordinance would not burden the federal government in any way and “would make it easier for the federal government ultimately to carry out its responsibilities.” (Tr. vol. VIII, p. 252.)
347. There is no conflict between the Hazleton Ordinances and the law enforcement objectives of the federal government. (Tr. vol. VIII, pp. 287-88.)
348. USCIS is seeking to expand the number of users of the Basic Pilot Program and they anticipate that it will eventually be used by all employers in the country. (Tr. vol. VIII, p. 253.)
349. The Hazleton IIRA Ordinance does not interrupt or conflict with the eight day period to challenge a tentative non-confirmation under the Basic Pilot Program. The three-day period under the Hazleton Ordinance would only start once the tentative non-confirmation becomes final. The two periods would run sequentially, for a total of eleven days. (Tr. vol. VIII, p. 253-54.)
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350. The use of the SAVE Program has had a positive effect on the relationship between the federal government and state and local governments. (Tr. vol. VIII, p. 255.)
351. There are no situations in which an alien’s status is both lawful and unlawful. (Tr. vol. VIII, p. 255.)
352. The federal government regards an alien who holds temporary protected status as lawfully present while that status lasts. There is no ambiguity as to his status. (Tr. vol. VIII, p. 256.)
353. The federal government regards an alien who has been granted asylum as lawfully present in the United States. (Tr. vol. VIII, p. 257.)
354. The federal government regards an alien who receives a “cancellation of removal” as lawfully present in the United States. (Tr. vol. VIII, p. 257.)
355. The federal government regards an alien who is put into a “deferred action” as lawfully present in the United States. (Tr. vol. VIII, p. 258.)
356. An alien’s status may change. But, in the operation of federal law enforcement, there is no ambiguous period in which the alien can be both lawfully present and unlawfully present. (Tr. vol. VIII, p. 257.)
357. As soon as an immigration judge confers a change of status on an alien, that change of status is entered into the federal government’s computer databases. (Tr. vol. VIII, p. 257-58.)
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358. There is no situation in which the federal government would be unable to provide an answer as to whether an alien is lawfully present or not. (Tr. vol. VIII, p. 258, 259.)
359. Mr. Cutler testified that he is not aware of any occasion since the 1996 Act (requiring the federal government to answer state and local government inquiries) on which the federal government could not provide a definitive answer to a state or local official regarding an alien’s legal status. (Tr. vol. VIII, p. 260.)
360. An alien becomes an illegal alien at the moment he violates the law, whether he enters without inspection, overstays the period for which he was admitted, or accepts unauthorized employment. (Tr. vol. VIII, p. 259.)
361. When the federal government declines to take an illegal alien into custody or declines to initiate removal proceedings is not tacit approval for the person to remain in the United States.” (Tr. vol. VIII, p. 284), and decisions not to initiate removal proceedings in individual cases do not represent official federal government policy. (Tr. vol. VIII, p. 284-85.)
362. Individual federal immigration officers can exercise prosecutorial discretion not to initiate removal proceedings without consulting with superiors. (Tr. vol. VIII, p. 284-85.)
363. The decision not to initiate removal proceedings always came down to a lack of resources (Tr. vol. VIII, p. 286), as the objective is always to apprehend
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and remove as many illegal aliens as possible. Id. 364. An illegal alien who is apprehended by law enforcement, but is
released due to resource constraints, is not authorized to remain in the United States. (Tr. vol. VIII, p. 287.)
365. Federal law precludes a landlord from entering into a lease with an illegal alien if he knows the person is an illegal alien. (Tr. vol. VIII, p. 290.)
Professor George Borjas 366. George Borjas, (“Prof. Borjas”) is the Robert W. Scrivener Professor of Economics and Social Policy at the Kennedy School of Government at Harvard University. (Tr. vol. VI, pp. 4-5.) He teaches microeconomic theory, labor economics, and the economic impact of immigration. (Tr. vol. VI, p. 7.) 367. For every 10 percent increase in the number of workers that enter any skilled labor market due to immigration, the wages of pre-existing workers in that market will decrease by 3 to 4 percent. (Tr. vol. VI, pp. 27-28.) 368. With respect to unskilled workers, a 10 percent increase in the number of workers in a labor market due to immigration will cause an 8 percent decrease in the wages of the pre-existing low-skilled workers. (Tr. vol. VI, pp. 28-29.) 369. The bulk of unauthorized aliens are low-skilled workers. (Tr. vol. VI, p. 31.) 370. When the incoming workers are illegal rather than legal, the wage
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depression is even greater, because the unauthorized workers demand lower wages than do authorized workers, and the unauthorized workers have less power with employers when negotiating wages. (Tr. vol. VI, p. 30.)
371. If an influx of alien labor into a market is predominantly unauthorized workers, the wage depression impact is greater than 8 percent for each 10 percent increase in the total number of workers. (Tr. vol. VI, p. 30.)
372. The wage depression affect of illegal immigration lasts over the “short term,” which is often in the 5-10 year range. After that period, wages will gradually move toward their previous level. (Tr. vol. VI, pp. 34-36.)
373. These economic patterns and statistics apply in the Hazleton market (Tr. vol. VI, p. 32), and the presence of unauthorized workers has depressed the wage in Hazleton . (Tr. vol. VI, pp. 37, 41.)
374. The Hazleton construction and household services markets will experience a longer period of wage depression due to illegal immigration than will other industries, because those kinds of jobs “are not easily tradable across towns.” (Tr. vol. VI, pp. 36-37.)
375. If the Hazleton IIRA Ordinance is successful in encouraging employers to refrain from hiring unauthorized workers, wages will increase over the short term (extending potentially to 5-10 years). (Tr. vol. VI, pp. 37-38, 68-69.)
376. No economist has shown any positive impact of immigration for
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workers. (Tr. vol. VI, pp. 63-64.) 377. According to Prof. Borjas, the Hazleton City Council’s conclusion
that “unlawful employment of illegal aliens harms the welfare of authorized U.S. workers,” is correct and reasonable. (Tr. vol. VI, pp. 96-97.)
Mr. Stephen Yale-Loehr 378. Stephen Yale-Loehr is of counsel to the Miller Mayer law firm in Ithaca, New York, where he practices primarily business immigration law. (Tr. vol. VI, p. 100-101.) 379. Mr. Yale-Loehr is co-author of a treatise on immigration law, Immigration Law and Practice. The treatise has never been cited by a Federal court on a question of federal preemption. (Tr. vol. VI, p. 110.) 380. Mr. Yale-Loehr espouses a theory that a person is not an illegal alien until an Immigration Judge determines that he is unlawfully present in the United States and not eligible for relief, and all subsequent avenues of administrative and judicial review are exhausted. (Tr. vol. VI, pp. 141, 152.) 381. When Mr. Yale-Loehr testified, he was unaware of the decision in U.S. v. Atandi, 376 F.3d 1186, 1188 (10th Cir. 2004), and similar holdings from the Fifth, Ninth, and Circuits, all of which reject his theory that an alien only becomes unlawfully present upon issuance of a removal order by an Immigration Judge and
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the completion of further administrative and judicial review. (Tr. vol. VI, p. 14143.)
382. When Mr. Yale-Loehr testified, he was unaware of the holding in Equal Access Educ. v. Merten, 305 F. Supp. 2d 585 (E.D. Va. 2004), which expressly rejected his affidavit asserting that only an immigration judge can make independent determinations of immigration status and that the Immigration and Nationality Act precludes all others from doing so. (Tr. vol. VI, 143-46.)
383. Mr. Yale-Loehr agreed that the policy upheld in the Merten case and the ordinances in the case at bar were examples of localities denying benefits to aliens who are illegal. (Tr. vol. VI, p. 146.)
384. Mr. Yale-Loehr agreed that federal immigration law and regulations require aliens to carry documentation of their registration and lawful presence with them at all times. (Tr. vol. VI, p. 147.)
385. Mr. Yale-Loehr could not identify any federal court decision after the 1976 Supreme Court De Canas v. Bica decision holding that a state law penalizing illegal aliens was preempted, except for the LULAC v. Wilson cases. He was also unaware that the second LULAC decision found that state determinations of immigration status made in reliance on the SAVE system were not preempted. (Tr. vol. VI, pp. 154-55.)
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386. Mr. Yale-Loehr was unaware of the numerous recent cases holding that state laws penalizing illegal aliens are not preempted, including Merten and Incalza v. Fendi, 479 F.3d 1005 (9th Cir. 2007). (Tr. vol. VI, p. 155.)
387. Mr. Yale-Loehr agreed that an alien granted temporary protected status, cancellation of removal, or asylum is officially recognized as lawfully present in the United States. (Tr. vol. VI, p. 156-57.)
LEGAL ARGUMENT I. Does This Court Have Jurisdiction to Review the Old, Repealed Versions of the IIRA Ordinance?
At the outset, it must be reiterated that both parties agree that this Court has jurisdiction to review the final version of the IIRA Ordinance (assuming Plaintiffs have standing). It is well established that a federal court may exercise its equitable powers to rule on a changed policy or ordinance, even if the policy or ordinance is amended during litigation. See, e.g. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). This Court can and should use its equitable powers to issue a ruling on the final version of the Ordinance to resolve the current situation and avoid subsequent litigation.
However, Plaintiffs have also asked this Court to rule on older, repealed versions of the IIRA Ordinance. Rendering such an advisory opinion would be beyond the jurisdiction of this Court.
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Under Article III, Section 2, of the U.S. Constitution, federal judicial power extends only to cases and controversies. Nextel Ptnrs. v. Kingston Twp., 286 F.3d 687, 693 (3rd Cir. 2002). If a claim no longer presents a live case or controversy, the claim is moot, and a federal court lacks jurisdiction to hear it. Id; see also, Allen v. Wright, 468 U.S. 737, 750 (1984). The live case or controversy requirement must be met “through all stages of federal judicial proceedings, trial and appellate.” Nextel Ptners., 286 F.3d at 693 (quoting Lewis v. Continental Bank Corp., 494 U.S. 472 477 (1990)). If a claim is based on a statute or ordinance that is amended after the litigation has begun, the amendment may or may not moot the claim, depending on the impact of the amendment. Nextel Ptners., 286 F.3d at 693; citing Nextel West Corp. v. Unity Township, 282 F.3d 257 (3d Cir. 2002); see also Cmty. Servs. v. Wind Gap Mun. Auth., 2006 U.S. Dist. LEXIS 54948 (E.D. Pa. 2006). Specifically, “if an amendment removes those features in the statute being challenged by the claim, any claim for injunctive relief ‘becomes moot as to those features.’” Nextel Ptners. Inc., 286 F.3d at 693 (citing Unity Township, 282 F.3d at 262); see also, Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414-15 (1972) (holding that facial challenge was mooted by amendment that substantially altered objectionable provision).
Similarly, if an amendment provides sufficient relief to the plaintiff on a particular claim, that specific claim becomes moot. U.S. Dept. of Treasury v.
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Galioto, 477 U.S. 556, 559-60 (1986) (holding that an amendment giving plaintiffs a new administrative remedy mooted constitutional challenges regarding equal protection and irrebuttable presumptions); Black United Fund of New Jersey, Inc. Kean, 763 F.2d. 156, 160-61 (3d Cir. 1985).
In the case at bar, plaintiffs seek declaratory and injunctive relief not only against the final version of the IIRA Ordinance, but also against the version of the Ordinance that existed before the final amendment of the Ordinance was made during trial. That March 2007 amendment (Ordinance 2007-06) inserted “knowingly” in the first sentence in Section 4.A as follows: “It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker….” The amendment also deleted the words “solely or primarily” from the following sentence in Sections 4.B(2) and 5.B(2): “A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” In making these changes, the City of Hazleton rendered moot any specific claims based on the repealed language.
The only line of case law on which Plaintiffs might rely in asking the Court to adjudicate the older, repealed ordinance is the Supreme Court precedent of Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993), and its progeny. In Jacksonville, the
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city repealed its original ordinance that accorded preferential treatment to minority-owned businesses in the award of city contracts and replaced it with another ordinance which, although different from the repealed ordinance, still set aside certain contracts for certified minority-owned businesses. Id. Subsequently, the Court denied the respondents’ motion to dismiss the case as moot, because the new ordinance still contained discriminatory preferences. Because the challenged conduct could potentially continue, the case was not moot. Id. at 662-63.
There is a decisive distinctions between the Jacksonville case and the case at bar. The respondents in Jacksonville were seeking to dismiss the entire case as moot. In other words, the question before the Court was not, “Can the Court rule on both ordinances?” Rather, the question was, “Can the Court rule on any ordinance?” The Court did not address the question of whether it had the authority to review two ordinances at the same time. Id. at 661-63. In the case at bar, Defendants are not asking this Court to dismiss the entire suit as moot. Rather, Defendants are simply asking the Court to review only the final version of the IIRA Ordinance. Defendants are aware of no case law suggesting that a federal court can review both an existing ordinance and a repealed ordinance in the same case. An additional ruling on the repealed language is unnecessary to the resolution of this case and would constitute an impermissible “advisory opinion” because the controversy as to that language is now moot. This Court must “decline
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to issue what would be, in effect, an advisory opinion.” Allegheny Int'l, Inc. v. Allegheny Ludlum Steel Corp., 920 F.2d 1127, 1129 (3d Cir. 1990). II. The Effect of the Amended Language on Plaintiffs’ Claims
Throughout this litigation, Plaintiffs have attempted to twist the language of the IIRA Ordinance to create constitutional violations where none existed. The March 2007 amendment during trial was a direct response to such efforts, clarifying the IIRA Ordinance in two respects. As a result, three of Plaintiffs’ claims now no longer apply: violation of the Equal Protection Clause, preemption by the Fair Housing Act, and preemption of the employment provisions of the IIRA Ordinance by the INA.
First consider the Plaintiffs’ Equal Protection Clause claim. No provision of the IIRA Ordinance constitutes a suspect classification that treats people differently because of their race, ethnicity or national origin. The Ordinance only draws distinctions on the basis of immigration status. As the Supreme Court has made clear, “We reject the claim that ‘illegal aliens’ are a ‘suspect class.’” Plyler v. Doe, 457 U.S. 202, 219 n.19 (1982). Faced with this fact, Plaintiffs in their memoranda attempted to twist the anti-discrimination provisions of Sections 4.B(2) and 5.B(2) into discriminatory provisions. Plaintiffs asserted that the phrasing, “A complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid,” was actually an
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invitation for residents to allege a violation partially or secondarily on such factors. This was an unreasonable reading of the statutory language.
The modified language is not susceptible to such distortion. It states categorically and clearly that, “A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid.” This unambiguously indicates that any reliance on national origin, ethnicity, or race in a complaint renders that complaint invalid. As a result of this amendment, Plaintiffs’ Equal Protection Clause cannot stand. There is simply no reasonable way to read the IIRA Ordinance and find an invitation to discriminate on the basis of national origin, ethnicity, or race.
Second, the amendment renders the Plaintiffs’ claim of preemption under the Fair Housing Act implausible. Here again, Plaintiffs’ claim is premised upon the notion that the IIRA Ordinance invites Hazleton residents to discriminate on the basis of national origin, ethnicity, or race in the filing of harboring complaints. Plaintiffs suppose that this would in turn result in the eviction of a tenant on the basis of national origin, ethnicity, or race, in violation of 42 U.S.C. § 3604(b). The amendment of the Ordinance removes the first link in Plaintiffs’ chain of causation. There is no possibility that a complaint relying on national origin, ethnicity, or race would be deemed valid. It should also be noted that the second link in Plaintiffs’ argument is flawed. The enforcement process under the IIRA
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Ordinance is not in any way affected by a tenant’s national origin, ethnicity, or race. And as the Third Circuit has made clear, when a facial challenge is brought under the Fair Housing Act, “the focus is on the ‘explicit terms of the discrimination.’” Cmty. Servs. v. Wind Gap Mun. Auth., 421 F.3d 170, 177 (3d Cir. 2005) (quoting Int'l Union, United Auto. Aerospace & Agric. Implement Workers v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991)). There are no explicit terms involving such discrimination in the IIRA Ordinance.
Third, the March 2007 amendment weakens Plaintiffs’ claim that the employment provisions of the IIRA Ordinance are preempted. That amendment inserted “knowingly” in the first sentence in Section 4.A as follows: “It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ …any person who is an unlawful worker….” The word “knowingly” was already included in the next sentence of Section 4.A, which describes the affidavit that employers must sign. Although Plaintiffs did not raise this argument in their memoranda, at trial they suggested that perhaps the IIRA Ordinance might result in the suspension of the business permit of a business entity that did not knowingly employ an unauthorized alien worker. This amendment defeats Plaintiffs’ suggestion.
It should be noted, however, that the mere possibility of a conflict between the terms of federal law and local law is not enough to find preemption under the
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employment provisions of federal immigration law. As is explained below, the most recent circuit court decision on the subject requires that compliance with both federal and local law be impossible. “Conflict preemption occurs when … it is not ‘possible to comply with the state law without triggering federal enforcement action….’” Incalza v. Fendi, 479 F.3d 1005, 1010-11 (9th Cir. 2007). III. Recent Precedent on Preemption in Immigration Law Supports Defendant
A few days before the trial commenced, on March 7, 2007, the Ninth Circuit handed down a decision of significant relevance to this case. In Incalza v. Fendi, the Ninth Circuit reviewed a claim that a California state law was preempted by federal immigration law (specifically, the employment provision of 8 U.S.C. § 1324a(a)(2)). 479 F.3d 1005. The Court held that a California state employment law was not preempted by the employment provisions of the INA. Specifically, the Court addressed whether a state statute that prohibited employers from firing employees without good cause conflicted with 8 U.S.C. § 1324a(a)(2), which prohibits an employer from continuing to employ a person who has become an unauthorized alien. 479 F. 3d at 1009.
This holding is noteworthy for several reasons. Most importantly, the Ninth Circuit explained how high the hurdle is for conflict preemption to occur. “Conflict preemption occurs when either 1) it is not ‘possible to comply with the state law without triggering federal enforcement action,’ or 2) state law ‘stands as
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an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” Id. at 1009-10 (internal citations omitted).
This is a very difficult test for a party bringing a preemption claim to pass. The Court explained that the existence of potential conflict between the state and federal laws is not enough. Inevitable and unavoidable conflict is required for preemption to occur:
Tension between federal and state law is not enough to establish conflict preemption. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984). We find preemption only in “those situations where conflicts will necessarily arise.” Goldstein v. California, 412 U.S. 546, 554 (1973). A “hypothetical conflict is not a sufficient basis for preemption.” Total TV v. Palmer Communications, Inc., 69 F.3d 298, 304 (9th Cir. 1995). 479 F. 3d at 1010. Applying this standard, the Court held that because there was a way to comply with both federal and state law, the preemption claim failed. “It was possible for Fendi to obey federal law in this case without creating a conflict with state law because there were remedies short of discharge that were permissible under federal law.” Id. at 1010. Holding that conflict between the state employment law and federal immigration law was possible, but not inevitable, the Court concluded: “[I]n this case, California law does not conflict with federal law; it was possible to comply with and satisfy the purposes of both.” Id. at 1013. The same question must asked in the case at bar: is it possible for the
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Plaintiffs to comply with both federal law and local law in Hazleton? The answer is plainly yes. By declining to hire unauthorized aliens in the future, employers may comply with all of the requirements of 8 U.S.C. § 1324a while also complying with the IIRA Ordinance. By asking the Hazleton Code Enforcement Office to verify the legal presence of aliens seeking to rent from them, landlords may comply with 8 U.S.C. § 1324(a)(1)(A)(iii) (the federal law prohibiting harboring) while also complying with the IIRA Ordinance. Counsel for Plaintiffs have not explained how any of the Plaintiffs in this case could be placed in a position in which compliance with both federal and local law would be impossible. In addition, Counsel for Plaintiffs would then have to demonstrate that arriving at that position was inevitable. Indeed, it is difficult to imagine a situation in which a Plaintiff could not possibly comply with both federal and local law.
The only statement that Plaintiffs made at trial that even comes close is their suggestion that the 8-day period that an employee has to contest a “tentative nonconfirmation” under the basic pilot program is different than the 3-day period a business has to correct a violation under the IIRA Ordinance. However, Plaintiffs did not read the IIRA Ordinance carefully. The 3-day period to correct does not begin under the IIRA Ordinance until the federal government provides a “written confirmation of [the alien’s status] verification” and the City delivers that written confirmation to the employer. IIRA Ordinance Section 4.B(3). The issuance of a
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“tentative non-confirmation” through the Basic Pilot Program obviously is not a final non-confirmation. The IIRA Ordinance requires the City to refrain from taking any action until the federal government provides a final non-confirmation of an alien’s work authorization. IIRA Ordinance Section 7.D. Thus, the 3-day period under the IIRA Ordinance can only begin after the 8-day period to contest a tentative non-confirmation has run (and any contest has been resolved). At trial, Mr. Bob Dougherty, Director of Planning and Public Works for the City and the person who will direct the implementation of the IIRA Ordinance, testified that only after the 8-day period ended and the City received a final verification from the federal government confirming that a person was not work authorized, would the 3-day period to correct a violation under the IIRA Ordinance commence. (Tr. vol. V, p. 109.) In addition, Mr. Michael Cutler, a former INS special agent with extensive experience in worksite enforcement, confirmed that the Hazleton IIRA Ordinance would not conflict with the Basic Pilot Program’s procedures in any way. (Tr. vol. VIII, p. 253-54.) Finally, it must be noted that none of the Plaintiffs is in this situation at present, and none of the Plaintiffs has even suggested that he might be in this situation in the future.
The second preemption standard that the Ninth Circuit applied in Incalza v. Fendi is the same as the third prong of the immigration preemption test used by the Supreme Court in De Canas v. Bica—whether or not the state law “stands as an
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obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” 479 F. 3d at 1010 (quoting Volt Info. Sciences, Inc. v. Bd. of Trs. of the Leland Stanford Junior Univ., 489 U.S. 468, 477 (1989)); see De Canas v. Bica, 424 U.S. 351, 363 (1976).
In applying this test, the Ninth Circuit explained exactly what the purpose of the Immigration Reform and Control Act was:
In passing IRCA, Congress wished to stop payments of wages to unauthorized workers, which act as a “magnet … attract[ing] aliens here illegally,” and to prevent those workers from taking jobs that would otherwise go to citizens. P.L. 99-603, IMMIGRATION REFORM AND CONTROL ACT OF 1986 H.R. REP. 99-682(I), at 46, as reprinted in 1986 U.S.C.C.A.N. at 5650. 479 F.3d at 1011. This purpose is entirely consistent with the employment provisions of the IIRA Ordinance, which seek to discourage employers from hiring unauthorized workers. If the IIRA Ordinance prevents unauthorized workers from taking jobs in the future that would otherwise go to U.S. citizens or to authorized alien workers, then Congress’s objective are met. The Incalza decision also undercuts another claim made by Plaintiffs. Plaintiffs asserted in their memoranda, that Congress’s passage of the IRCA in 1986 had the effect of completely occupying the field, thereby displacing all state and local laws that touch on the employment of aliens. See Pl. Memo. Feb. 12, 2007, at p. 30, n. 7. If Plaintiffs’ sweeping field preemption theory were correct, the Incalza Court would have had to strike down the state law at issue, as it would
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have constituted impermissible state regulation in a field occupied by Congress. The Court did no such thing.
One final observation about the Ninth Circuit decision in Incalza must be made. This is yet another example of a recent court holding recognizing that a state or local law designed to discourage illegal immigration is not preempted. Such laws are entirely consistent with the unmistakable objectives of Congress— particularly as Congress has stepped up efforts to discourage and penalize illegal immigration in recent years. Recall that in 2004 the Eastern District of Virginia upheld against a preemption challenge a state policy in Virginia that barred illegal aliens from attending state postsecondary educational institutions. Equal Access Educ. v. Merten, 305 F. Supp. 2d 585 (E.D. Va. 2004). And in 2006, the Superior Court of Arizona upheld against a preemption challenge a state law that criminalized alien smuggling, holding that “concurrent enforcement enhances rather than impairs federal enforcement objectives.” Arizona v. Salazar, CR2006005932-003DT, Slip Op. at 9 (Ariz. Super. Ct., June 9, 2006).
Plaintiffs, on the other hand, have not presented any recent cases supporting their sweeping theory of federal preemption in immigration law. Indeed, the preemption cases that they do present are not only dated, but also inapposite, because the cases involved state laws that penalized legal aliens, contrary to congressional objectives. See, e.g., Hines v. Davidowitz, 312 U.S. 52 (1941); see
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also De Canas, 424 U.S. at 363 (“[T]he Pennsylvania statutes in Hines and Nelson imposed burdens on aliens lawfully within the country that created conflicts with various federal laws.”)
The one case that Plaintiffs’ counsel mentioned in the final rebuttal of his closing statement was not even a preemption case. He declared that a state court in Missouri had recently struck down a similar local ordinance in Valley Park Missouri. However, Plaintiffs’ counsel neglected to mention was that there was no preemption challenge before the Missouri court. Instead, the court ruled solely on state law grounds, holding that the ordinance imposed a fine that was above the amount permitted for a city of that class, and the ordinance conflicted with a provision of state law concerning the eviction of tenants. Reynolds v. Valley Park, Circuit Court of the County of Saint Louis, Missouri, 06-CC-3802, slip op. at 6-7 (Mar. 12, 2007). Thus, that ruling is entirely irrelevant to the case at bar. IV. The IIRA Ordinance Mirrors Federal Law
As noted above, to avoid preemption a local ordinance affecting aliens need not mirror federal law in every respect. It is only necessary that simultaneous compliance with both the federal law and the local law be possible, Incalza, 479 F. 3d at 1009-10, and that the ordinance pass the three-part test in De Canas. 424 U.S. 351. However, the IIRA Ordinance goes well beyond what is necessary to survive a preemption challenge and actually does mirror federal law, both in its
85

language and in its structure. Plaintiffs and their expert witness were unaware of several aspects of federal law that are reflected in the IIRA Ordinance. See Rosenblum testimony (Tr. vol. IV, pp. 106, 113-14, 138). Two aspects in which the IIRA Ordinance mirrors federal law are particularly noteworthy.
First, IIRA Ordinance Section 4.E creates a private cause of action for lawful employees who are unfairly discharged by an employer who is employing unauthorized aliens. It allows the discharged worker to seek treble damages with respect to the economic injury he suffers. This provision closely parallels federal law. In 1996, Congress amended the Racketeer Influenced and Corrupt Organizations (RICO) Act to make the employment of illegal aliens a RICO violation, and enable persons economically injured by the employment of illegal aliens to sue for treble damages in civil court. Those provisions are found at 18 U.S.C. § 1961(1)(F): “‘racketeering activity’ means any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens), . . . if the act indictable under such section of such Act was committed for the purpose of financial gain.” As the Eleventh Circuit recently noted in an immigration RICO case, “RICO’s civil-suit provision states that ‘[a]ny person injured in his business or property by reason of’ RICO’s substantive provisions has the right to ‘recover threefold the damages he sustains . . . .’ 18 U.S.C. § 1964(c).” Williams v. Mohawk Indus., 465 F.3d 1277, 1286 (11th Cir.
86

2006) (cert. denied 2007 U.S. LEXIS 2798 (Feb. 26, 2007)). Such suits seeking treble damages from employers have been brought by U.S. citizen employees and litigated in federal courts across the country. See Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004); Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002); Commer. Cleaning Servs. v. Colin Serv. Sys., 271 F.3d 374 (2d Cir. 2001). Plaintiffs describe the IIRA Ordinance’s private cause of action as “novel.” Pl. Memo. Feb. 12, 2007, at 30, 31. Plaintiffs would do well to familiarize themselves with these federal statutes. The IIRA Ordinance Section 4.E is based upon them.
Plaintiffs were evidently also unaware of the fact that federal immigration law also provides for enforcement in response to private complaints. Under federal law, investigations may be initiated either by immigration enforcement officials or by private individuals who file written, signed complaints, pursuant to 8 U.S.C. § 1324a(e)(1)(A). Like the federal system, Hazleton’s system is a hybrid, under which City officials may initiate investigations themselves or they may respond to complaints from the public. IIRA Ordinance Section 4.B(1) and 5.B(1). V. Mr. Yale-Loehr’s Theory of Illegality Has Been Rejected by Every Federal Court to Consider it
Central to Plaintiffs’ claim of preemption under federal immigration law is a theory articulated by their expert witness, Stephen Yale-Loehr, that neither local officials nor even the federal government itself can verify that an alien is unlawfully present in the United States unless a removal order has been issued by
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an immigration judge, and all available administrative and judicial review of that order has been exhausted. (Tr. vol. VI, p. 141.) Therefore, Plaintiffs imagine, it is impossible for the federal government to tell a Hazleton official whether or not a particular alien is unlawfully present in the United States.
This theory, although critical to the Plaintiffs’ claim of preemption, has been rejected by all of the federal courts of appeals that have considered it—the Fifth, Eighth, Ninth, and Tenth Circuits. The Tenth Circuit explored the theory thoroughly in U.S. v. Atandi, 376 F.3d 1186 (10th Cir. 2004), a case in which an alien argued that his unlawful presence did not begin when removal proceedings were initiated, but only when (a) the INS found a status violation while adjudicating an immigration benefit, or (b) an Immigration Judge found the alien to removable. The Tenth Circuit emphatically rejected this theory, ruling that an alien who is only permitted to remain in the U.S. for the duration of his or her status becomes “illegally or unlawfully in the US upon commission of a status violation.” U.S. v. Atandi, 376 F.3d 1186, 1188 (10th Cir. 2004). The court further clarified that “the government’s effort to remove an illegal alien does not somehow designate the alien as “lawfully” in the country … during the pendency of removal proceedings.” Id. at 1190. The Fifth and Eighth Circuits had previously addressed the same question, holding that an alien who commits a status violation is unlawfully in the United States, regardless of whether a removal order has been
88

issued. See U.S. v. Igbatayo, 764 F.2d 1039, 1040 (5th Cir. 1985); and U.S. v. Bazargan, 992 F.2d 844, 847 (8th Cir. 1993).
More recently, the Ninth Circuit has extended the Atandi rule to aliens who entered the U.S. illegal, again rejecting Mr. Yale-Loehr’s theory. U.S. v. BravoMuzquiz, 412 F.3d 1052, 1055 (9th Cir. 2005)(“The [Tenth] Circuit … expressly rejected the alien’s argument that he was authorized to remain in the United States pending resolution of his removal proceedings…. We agree with this statement by the Tenth Circuit.”). The Fifth Circuit has also recently applied the Atandi rule to confirm that illegal aliens with pending applications to adjust status are unlawfully in the U.S. U.S. v. Lucio, 428 F.3d 519 (5th Cir. 2005)(“[ An application to adjust status] does not connote that the alien’s immigration status has changed, as the very real possibility exists that the INS will deny the alien’s application altogether.”). This point is particularly relevant to the case at bar. Plaintiffs have asserted that the mere existence of an application to adjust status transforms an illegal alien into a legal alien who must be allowed to reside and work in Hazleton. Plaintiffs offer no case law to support their theory, because none exists.
This is not surprising, because if Plaintiffs’ theory were correct, then much of federal law would be incomprehensible. Three examples illustrate the point. First, consider 8 U.S.C. § 1373(c), which states: “The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local
89

government agency, seeking to verify or ascertain the citizenship or immigration status of any individual ….” (emphasis added). Congress expected states and localities to be making inquiries concerning aliens in their jurisdiction and expected that the INS (not an immigration judge) would be able to definitively determine such aliens’ legal statuses.
Second, 8 U.S.C. § 1621 (a) requires states and localities to deny “public benefits” to aliens who are “not qualified.” A “qualified alien” is defined as essentially any alien who is lawfully present in the United States. 8 U.S.C. § 1641(b). These provisions spurred the subsequent creation of the SAVE Program, so that states and localities could check the legal status of aliens in their jurisdiction. 8 U.S.C. § 1621(a) would make no sense if a definitive determination of an alien’s legal status could not be rendered by the federal government, absent an immigration hearing.
Third, 8 U.S.C. §1324a(h)(2) expressly allows state and local governments to apply sanctions “through licensing and similar laws” upon “those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” This provision entails the presumption that a state or local government can determine who is an “unauthorized alien.” In the case of the Hazleton IIRA Ordinance, that determination is made for Hazleton by the federal government, in perfect compliance with 8 U.S.C. § 1373(c).
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, ET AL. Plaintiffs,
v. CITY OF HAZLETON
Defendant.

: CIVIL ACTION NO. 3:06-cv-01586-JMM : : (Hon. James M. Munley) : : : : : :

PLAINTIFFS’ POST-TRIAL PROPOSED FINDNGS OF FACT AND BRIEF

Table of Contents
Page
I. Proposed Findings of Fact............................................................................... 1 A. The Plaintiffs.............................................................................................. 1 B. The Plaintiffs Have Standing To Challenge The Ordinances.................... 4 C. Hazleton’s History And Recent Population Growth ................................. 8 D. Hazleton’s Financial Picture .................................................................... 10 E. Hazleton’s Decision To Adopt The Immigration Ordinances................. 12 F. The Ordinances’ Findings Are Not Supported By The Evidence ........... 17 (1) Hazleton’s Per Capita Crime Rate Has Decreased Since 2001.......... 18 (2) There Is No Credible Evidence Of Illegal Immigrants Being Involved In Pervasive Gang Activity In Hazleton............................................. 24 (3) Barletta’s Claim That One Third of Drug Arrests in Hazleton Involve Illegal Immigrants Is Not Supportable ............................................... 25 (4) The City’s Budget And Financial Statements Do Not Reflect Expenses Or Concerns About Expenses Related to Undocumented Immigrants .......................................................................................... 26 (5) The City’s Police Overtime Expenses Do Not Reflect Substantial Cost Related To Illegal Immigration .......................................................... 27 (6) Hazleton Does Not Provide Any Funding To The School District.... 28 (7) Hazleton Does Not Provide Any Funding For Healthcare................. 30 (8) The Testimony Of Hazleton’s Expert George Borjas Is Neither Relevant Nor Credible ........................................................................ 35 (9) The Testimony Of Hazleton’s Expert John Martin Is Neither Credible Nor Relevant ....................................................................................... 37 G. Hazleton’s Ordinances Violate The Constitution And Federal Law....... 39 (1) Hazleton’s Ordinances Are Preempted............................................... 39 (a) Immigration Law Implicates National Policy Issues, None Of Which Hazleton Considered Or Was Competent to Consider ...... 39 (b) The Determination Of Immigration Status Requires Complex Analysis Under Federal Law ......................................................... 40
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(c) Unlike Federal Law, Hazleton’s Ordinances Require Employers To Check The Immigration Status Of Independent Contractors ........ 45
(d) Hazleton’s Immigration Ordinances Provide Shorter Response Times To Verify Immigration Status And Harsher Penalties ....... 46
(e) Hazleton’s Immigration Ordinance Require Use Of Basic Pilot, But Federal Law Does Not ............................................................ 47
(f) Unlike Federal Law, Hazleton’s Revised Immigration Ordinance Creates A Private Right of Action................................................. 48
(g) The Federal Government Has Adopted Programs To Aid Municipalities With Crimes Involving Illegal Immigrants ........... 49
(2) Hazleton’s Ordinances Do Not Comply With Fourteenth Amendment Procedural Due Process Requirements............................................... 50
(a) The Revised Immigration Ordinance Does Not Provide Adequate Notice Or Opportunity To Be Heard ............................................. 51
(b) The Tenant Registration Ordinance Does Not Provide Notice Of The New Registration Obligation To Non-English Speaking Residents........................................................................................ 53
(c) The Complaint and Verification Process Contemplated By The Ordinances Is Rife With Errors ..................................................... 55
(3) Hazleton’s Ordinances Promote Discrimination ................................ 64
(a) The Revised Immigration Ordinance’s Complaint-Based Enforcement System Promotes Discrimination ............................ 64
(b) Hazleton’s Immigration Ordinances Have Generated AntiImmigrant Hostility That Did Not Previously Exist ..................... 66
II. Plaintiffs’ Post-Trial Brief ............................................................................ 69
A. All of Plaintiffs’ Claims Are Valid Against the Ordinances As Amended .................................................................................................................. 69
(1) Even As Amended, the Ordinances Impose a Strict Liability Standard On Employers That Conflicts With Federal Law............................... 70
(2) Even As Amended, the Ordinances Are Invalid Under the Equal Protection Clause and Anti-Discrimination Laws.............................. 73
B. The Court Should Issue an Additional Declaration That the Immigration Ordinance Violates Federal Law When Considered Without The Latest Amendments ............................................................................................ 76
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C. The New Authority Cited By Defense Counsel Actually Strengthens Plaintiffs’ Legal Claims ........................................................................... 79
D. Conclusion ............................................................................................... 87
iii

Cases:

Table of Authorities

City of Mesquite v. Aladdin’s Castle, Inc. 455 U.S. 283 (1982) ........................................................................................... 78

County of Los Angeles v. Davis, 440 U.S. 625 (1979) ........................................................................................... 78

Doe v. Butler, 892 F.2d 315 (3d Cir. 1989).............................................................................. 76

Friends of the Earth, Inc. v. Laidlaw Env. Svcs., 528 U.S. 167 (2000) ........................................................................................... 78

Hines v. Davidowitz, 312 U.S. 52 (1952) ....................................................................................... 72, 81

Huntington Branch NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir.), aff’d, 488 U.S. 15 (1988) ............................................. 76

Incalza v. Fendi North America, Inc., 479 F.3d 1005 (9th Cir. 2007)...................................................................... 80, 81

Khodara Envtl., Inc. v. Beckman, 237 F.3d 186 (3d Cir. 2001)..........................................................................78-79

Penny Saver Pubs., Inc. v. Village of Hazel Crest, 905 F.2d 150 (7th Cir. 1990).............................................................................. 79

Pryor v. National Collegiate Athletic Ass’n., 288 F.3d 548 (3rd Cir. 2002) ............................................................................. 75

Reno v. Bossier Parish School Bd., 520 U.S. 471 (1997) ........................................................................................... 75

Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977)............................................................................... 76

Reynolds v. City of Valley Park, No. 06-CC-3802, at 5 (St. Louis Cty. Circuit Ct., Mar. 12, 2007) .................... 79

iv

Rogers v. Nelson, 563 F.2d 617 (3d Cir. 1977)............................................................................... 72
United States v. Atandi, 376 F.3d 1186 (10th Cir. 2004).....................................................................84-87
United States v. Bazargan, 992 F.2d 844 (8th Cir. 1993)........................................................................ 85, 86
United States v. Gov’t of the Virgin Islands, 363 F.3d 276 (3d Cir. 2004)............................................................................... 78
United States v. Igbatayo, 764 F.2d 1039 (5th Cir. 1985)............................................................................ 84
United States v. W.T. Grant Co., 345 U.S. 629 (1953) ........................................................................................... 78
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ........................................................................................... 75
Williams v. Mohawk, 411 F.3d 1252 (11th Cir. 2005), vacated, 126 S. Ct. 2016 (2006) .................... 84
Statutes: 27 C.F.R. § 478.11................................................................................................... 86 53 P.S. § 36011........................................................................................................ 77 8 U.S.C. § 1324(a)(3)(A)......................................................................................... 84 8 U.S.C. § 1324a(a)(1)(A), (b)(1)(A)(ii)................................................................. 72 8 U.S.C. § 1324a(a)(3) ............................................................................................ 72 18 U.S.C. § 922(g)..............................................................................................85-86 18 U.S.C. § 922(g)(5) .............................................................................................. 86 18 U.S.C. § 1961 et seq. .......................................................................................... 80 18 U.S.C. § 1964 ..................................................................................................... 83
v

42 U.S.C. § 3604 et seq. .......................................................................................... 76 vi

I. Proposed Findings of Fact1 Plaintiffs request this Court to make the following findings of fact
based on the evidence presented at trial: A. The Plaintiffs 1. Plaintiffs commenced this action to challenge as unconstitutional
recent ordinances enacted by the City of Hazleton concerning undocumented immigrants. (See Second Amended Complaint, Docket No. 82).
2. Plaintiff Pedro Lozano came to the United States from Colombia in 2002 in search of a better life. (Vol. 1/161:13-20). He is a lawful resident of the United States. (Vol. 1/161:21-24). After living in New York, he moved to Hazleton in search of affordable housing and better employment. (Vol. 1/164:1223). Lozano is currently seeking work in the Hazleton area. (Vol. 1/162:18163:18). In Colombia, Lozano was an official of the National Police Force for 35 years. (Vol. 1/162:10-17).
3. Plaintiffs Jose Luis Lechuga, and his wife, Rosa Lechuga (Vol. 2/118:10-15, 153:2-5), were born in Mexico and moved to the United States in 1982 without the federal government’s permission. (Vol. 2/118:20-119:5). They received amnesty in the late 1980s and became lawful permanent residents. (Vol. 2/119:6-120:7). The Lechugas came to the United States to make a life for themselves and their children. (Vol. 2/118:24-25). They moved to Hazleton in 1991 because of employment opportunities in the city. (Vol. 2/122:9-123:3, 153:610). The Lechugas have four children: one is a lawful permanent resident and three are United States citizens. (Vol. 2/120:9-11, 156:5-14).
1 Plaintiffs incorporate herein by reference their previously filed conclusions of law filed on March 2, 2007. (Docket No. 144).
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4. Plaintiff John Doe 1 moved to Hazleton in 2001. (P-200, John Doe 1 Dep. Tr. at 12:11-12). He was born in Mexico. (P-200, John Doe 1 Dep. Tr. at 14:24-25). He is neither a U.S. citizen nor lawful permanent resident. (P-200, John Doe 1 Dep. Tr. at 26:4-14). Although John Doe 1 is not yet a lawful permanent resident, his father filed a petition on his behalf for an immigrant relative visa, which has been approved. (P-200, John Doe 1 Dep. Tr. at 74:1-3). John Doe 1 is awaiting an appointment with the United States Citizenship and Immigration Service (“CIS”), after which he will become a lawful permanent resident. (P-200, John Doe 1 Dep. Tr. at 74:7-8).
5. Plaintiff John Doe 3 moved to Hazleton in 2003. (P-202, John Doe 3 Dep. Tr. at 9:18-22). He was born in Mexico. (P-202, John Doe 3 Dep. Tr. at 20:24-25). He is neither a U.S. citizen nor lawful permanent resident. (P-202, John Doe 3 Dep. Tr. at 11:8-10).
6. Plaintiffs Jane Doe 5 and John Doe 7 moved to Hazleton in 2001. (P203, Jane Doe 5 Dep. Tr. at 13:11-17; P-204, John Doe 7 Dep. Tr. at 10:4-8). Both were born in Colombia. (P-203, Jane Doe Dep. Tr. at 14:13-15; 16:16-17; P-204, John Doe 7 Dep. Tr. at 9:16-17). John Doe 7 worked as an architect in Colombia and has been married to Jane Doe 5 for over 28 years. (P-204, John Doe 7 Dep. Tr. at 10:1-3; P-203, Jane Doe 5 Dep. Tr. at 14:15-17). Neither is a U.S. citizen or lawful permanent resident. (P-203, Jane Doe 5 Dep. Tr. at 15:18-16:10; P-204, John Doe 7 Dep. Tr. at 10:16-24).
7. All of the John an Jane Doe plaintiffs work and pay taxes. (P-200, John Doe 1 Dep. Tr. at 30:21-24; 33:10-15; P-202, John Doe 3 Dep. Tr. at 21:1215; 33:1-21; 34:5-9); P-203, Jane Doe 5 Dep. Tr. at 35:15-17; 68: 19-69:19; P-204,
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John Doe 7 Dep. Tr. at 12:7-20). 8. Plaintiff Hazleton Hispanic Business Association (“HHBA”), is a not-
for-profit organization whose membership is comprised of approximately twentyseven Latino business and property owners from the Hazleton area. (Vol. 2/77:1521; 78:13-20; 80:22-24; 98:15-19). HHBA promotes the interests of its business members, projects an image of the Hispanic business community in Hazleton, and assists the community. (Vol. 2/77:27-78:3; 78:6-12).
9. Rodolfo Espinal, president of HHBA, came to the United States on vacation from the Dominican Republic in 1988, (Vol. 2/77:15-78:22; 68:10-17), overstayed his visa and became an undocumented immigrant. (Vol. 2/69:18-24). In 1992, Espinal obtained lawful permanent residency, (Vol. 2/71:13-72:4), and in 2006 became a U.S. citizen. (Vol. 2/68:12-15). He moved from New York to Hazleton with his family in December 2001. (Vol. 2/68:5-7; 73:18-22).
10. Plaintiff Pennsylvania Statewide Latino Coalition (“PSLC”), a notfor-profit organization established in 1994, (Vol. 2/52:16-18) has a mission to promote the social, political, economic and cultural development of Pennsylvania Latinos; develop leadership; and create networks among Latino leaders and communities. (Vol. 2/20:21-21:15; 22:14-20). PSLC’s organizational activities include an annual conference, youth development, and other advocacy activities. (Vol. 2/23:21-24:14). PSLC has approximately six thousand members and relies almost exclusively on the contributions of its members. (Vol. 2/22:12-13; 45:646:16). Approximately 20 of PSLC’s members reside in Hazleton (Vol. 2/52:1923), including Dr. Agapito Lopez, Anna Arias, Jose Luis Lechuga and Rosa Lechuga. (Vol. 1/64:5-14); (Vol. 2/56:7-57:15; 59:9-14; 120:15-21).
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11. Plaintiff Casa Dominicana de Hazleton, Inc. (“Casa”), a not-for-profit organization, was incorporated in August 2005. (Vol. 3/10:8-9). Casa provides assistance, orientation and education to the Latino community in Hazleton, and works to unify the ties between the Latino and non-Latino communities. (Vol. 3/7:22-25). Casa provides its members with information, legal referrals, and assistance with economic difficulties. (Vol. 3/8:1-9:3). Casa is committed to preventing youths from joining gangs. (Vol. 3/27:19-28:10).
B. The Plaintiffs Have Standing To Challenge The Ordinances 12. In order for the Court to rule on the legal claims raised against the ordinances, Plaintiffs need to identify only one individual or organization with standing. Many Plaintiffs satisfy the three-part test for standing. 13. Plaintiff Lozano owns two rental units in Hazleton that he has been unable to rent continuously since the enactment of the ordinances. (Vol. 1/163:2122; 165:2-21; 168:6-11; 175:12-24; 177:1-6). Both of his tenants moved after learning about the tenant registration requirements. (Vol. 1/167:17-168:5; 187:1315; 190:13-25). 14. While attempting to rent the units, Lozano informed prospective tenants of the City’s new requirement to register at City Hall prior to renting an apartment. (Vol. 1/168:12-18; 169:5-21). Those prospective tenants never returned to rent an apartment. (Vol. 1/168:12-15; 170:10-14). Lozano eventually rented one apartment to his daughter for a few months but did not charge her for utilities as he did to other tenants. Her tenancy ended in January 2007, and the apartment is now vacant. (Vol. 1/177:14-178:11; 180:17-25). 15. HHBA’s president, Espinal, owns a real estate agency (Vol. 2/75:213), and several rental units in Hazleton (Vol. 2/89:22-90:21; Vol. 2/91:20-92:3).
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He has had difficultly renting them since the enactment of the ordinances. Espinal received several inquiries regarding the apartment, including two Mexican families who expressed strong interest. But they did not return after Espinal informed them about the tenant-occupancy-permit requirement. (Vol. 2/92:22-95:19).
16. Under the immigration ordinances, Lozano and Espinal are obligated to ascertain the immigration status of all prospective tenants (P-2, § 5), and to rent to only those who produce a registration form required by Ordinance 2006-13. (P1). But for the ordinances they would not be obligated to perform either task.
17. Landlords are also considered to be a “business entity” under the Revised Immigration Ordinance, 2006-18. (Vol. 3/153:20-154:7). Lozano and Espinal both anticipate hiring independent contractors to do repairs to their housing units. (Vol. 1/174:23-175:7; Vol. 2/102:4-7). Accordingly, both must submit an affidavit to the City attesting that they do not hire illegal aliens. (P-2, § 4). They also must investigate the immigration status of everyone they hire. Again, but for the Ordinances, Lozano and Espinal would not be required to do so. These are discrete, particularized and certain injuries that will be caused by the ordinances and can be redressed by a decision from this Court. Consequently, Lozano and Espinal have met their burden to show that they are injured by the employment and harboring provisions of the Revised Immigration Ordinance and the Tenant Registration Ordinance.
18. All Doe plaintiffs are tenants, and as such are required to register under the Tenant Registration Ordinance. As undocumented immigrants, they will be unable to rent an apartment in Hazleton if the ordinances go into effect because they will be unable to obtain a tenant-registration permit and landlords who fear
5

sanctions will not lease to them. These injuries are definite, will be caused by the Ordinances, and can be redressed by a decision from this Court.
19. Even though this Court has enjoined enforcement of the ordinances, they have injured some plaintiffs. After the Tenant Registration Ordinance was passed but before the Court’s injunction, Hazleton placed a notice in the local newspaper advising of the obligation of tenants to register their immigration status and of landlords not to rent to unregistered tenants. (P-13). John Doe 1’s landlord told him he would have to move. John Doe 1 informed his landlord that because of his uncertain immigration status, he might be able to get an occupancy permit, and his landlord informed him that he “didn’t want any problems” and “didn’t want to take the risk.” (P-200, John Doe 1 Dep. Tr. at 52:11-17). Instead, his landlord insisted that John Doe 1 abandon the apartment, which he did at the end of October 2006. (P-200, John Doe 1 Dep. Tr. at 52:8-9). John Doe 1’s landlord did not want him to leave because he was “a good tenant” (P-200, John Doe 1 Dep. Tr. at 63:8), but felt compelled to comply with the ordinances. If the ordinances go into effect, John Doe 1 will be forced to leave Hazleton and be separated from his extended family. (P-202, John Doe 3 Dep. Tr. at 47:21-48:11).
20. John Doe 3 and his family have been tenants in Hazleton for four years. (P-202, John Doe 3 Dep. Tr. at 9:19-22). If the ordinances are enforced, John Doe 3’s landlord will be required to evict him, and Doe 3 will not be legally able to rent another apartment in Hazleton. He will thus be forced to leave Hazleton, his daughter will have to attend another school and will lose her friends. (P-202, John Doe 3 Dep. Tr. at 37:2-8, 33:10).
21. PSLC organized a community meeting on July 30, 2006 ,in the
6

basement of St. Gabriel’s Church. (Vol. 1/72:21-73:4); (Vol. 2/26:1-24). During that meeting, Latino residents and business owners complained about inadequate trash pick up from Latino homes, a brick being thrown at the window of a Mexican restaurant, Hazleton police officers stopping Latinos to request identification, and businesses losing customers due to the fear that the ordinances had created in the community. Latino residents also expressed concern about how their children would be treated in school and fears about attending bilingual services at church. (Vol. 2/27:7-28:24).
22. PSLC incurred out-of-pocket costs and expenses and devoted unusual amounts of human resources in excess of its budget for the Northeast Region to respond to the concerns of Hazleton residents. (Vol. 2/38:19-40:14; 45:23:-50:11).
23. HHBA President Espinal’s injuries as an employer and landlord, discussed above, suffice to give HHBA standing. Additionally, HHBAmembership-owned businesses have suffered significant monetary losses because of the ordinances. (Vol. 2/82:12-24). Some members were forced to close their business, others have lost significant clientele, and still others are no longer expanding their business as they had once planned. (Vol. 2/81:12-82:4). For example, Isabella Rubio’s Gift Shop and Santo Domingo Repair Shop lost numerous customers and significant income. Other businesses such as Royal Prestige were forced to close. (Vol. 2/82:5-83:12; 120:5-17).
24. Furthermore, the ordinances have caused HHBA’s membership to decline. Certain Latino-owned businesses, such as El Mariachi Restaurant, lost their Latino clientele but survived by replacing their customer base with nonLatino clientele. These businesses withdrew their membership from HHBA to
7

avoid alienating new clients by participating in this litigation. (Vol. 2/84:11-86:4; 111:21-112:6; 120:18-121:10).
25. Casa has 80 members who volunteer their time, approximately 55 of whom reside in Hazleton. (Vol. 3/12:21-23; 12:9-11; 18:24-19:3). They include tenants, landlords, and business owners, all of whom are directly impacted by the Ordinances. (Vol. 3/9:22-10:6).
26. Mr. Saldana estimates that between 20-23 of Casa’s members could be undocumented, i.e., have expired immigration status, have lost documents to show their immigration status, or are in the process of obtaining immigration documents. (Vol. 3/21:13-15; 29:9-30:1; 20:7-13).
27. Prior to the enactment of the ordinances, Casa’s membership grew steadily. Between December 2005 and June of 2006, its membership grew from 80 to 140. (Vol. 3/16:17:12). However, after the ordinances were proposed, Casa lost approximately ten members by July 2006 and another 35 by August 2006. (Vol. 3/17:13-21). One member informed Saldana that he had left town and terminated his membership because of the ordinances. (Vol. 3/17:22-18:18).
28. The loss of membership caused by the ordinances has prevented Casa from being able to provide many services. Because Casa’s services are now limited, it cannot justify charging a monthly membership fee. Once Casa’s membership becomes large enough to justify a fee, it will provide additional services. (Vol. 3/19:4-14).
C. Hazleton’s History And Recent Population Growth 29. The City of Hazleton is a City of the Third Class under Pennsylvania law. The City operates under an Optional Plan B form of government, in which the City is governed by a mayor as executive and five city council members, who
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form the City’s legislature. (Vol. 4/204:6-205:10). Hazleton does not have a home rule charter.
30. Since 2000, Hazleton’s population has noticeably increased. According to the 2000 census, 23,000 people resided in Hazleton. (Vol. 5/145:24146:4). Currently, the City’s population is estimated at 30,000 to 33,000. (P-148 at p.1-2; Vol. 6/163:24-164:8;. Vol. 3/39:21-40:8; 4:208:22-209:3). Some estimates place the City’s population as high as 40,000. (Vol. 6/164:9-17).
31. The significant increase in the City’s population is due largely to minorities moving into the community. (P-148), (Vol. 5/146:9-11). Most of the new minority residents are Hispanic. (Vol. 5/146:12-14).
32. After the September 11, 2001, attacks, numerous Latino families moved from New York and New Jersey to Hazleton in search of a better life, new employment and affordable housing. (Vol. 1/66:22-67:12; Vol. 3/29:22-30:1). The Latinos were lawful permanent residents, U.S. citizens, and undocumented immigrants. (Vol. 2/161:21-24; 2/175:25-176:3).
33. No one knows the percentage of Hispanics currently residing in Hazleton. (Vol. 5/146:15-20). In addition, no one knows the number of undocumented immigrants in Hazleton. (Vol. 5/146:21-25).
34. Immigrants and their family members, including those here illegally, engage in consumer spending, pay rent, pay sales taxes and otherwise generate economic activity that supports the local economy. (Vol. 3/67:21-70:21).
35. Prior to the ordinances, Latino residents maintained a cordial and cooperative relationship with their non-Latino neighbors. (Vol. 1/68:14-69:6). Even though Latinos may have different customs and speak a different language,
9

until recently they lived harmoniously with their native-born neighbors. (Vol. 1/68:14-69:6; Vol. 2/123:4-124:1; 153:13-154:3).
D. Hazleton’s Financial Picture 36. During Hazleton’s significant population increase, Louis Barletta has served as mayor of Hazleton. Barletta was elected to office in 2000. 37. According to his 2006 biography, Barletta has led the City “through one of the most impressive economic revitalizations in regional history.” (Vol. 5/154:12-19). Barletta assumed a “monumental” $1.2 million budget deficit on a $6 million municipal budget. (Vol. 3:40:16-41:15). By 2004, the City had a surplus of $212,065. (P-148 at pg. 2, Vol. 5/154:23-24). In 2005, the City had a surplus of $33,000. (P-148 at pg. 2;Vol. 5/154:25-155:1). The City currently has a “triple A” bond rating (Vol. 5/155:16-19), and has not cut services to its residents. (Vol. 6/211:13-20). 38. For the first time in the past ten years, Hazleton has seen tax assessments increase for three consecutive years. (P-148 at pg. 4; Vol. 3/45:1246:2). Tax assessments increase when residents and businesses renovate their properties. Increased tax assessments lead to increased tax revenue for the City. 2006 marked the largest annual-property-value increase in Hazleton’s history. (Vol. 3/46:4-46:15). 39. The City’s 2005 audited financial statements (P-154) (the most recent information available at trial) show the City’s net assets related to business type activities increased by $58,953 in 2005. (Vol. 6/173:17-21). They show an increase in 2005 of $1,193,778 (or 18%) in net assets for governmental activities. (Vol. 6/173:22-174:2), (P-154). The City’s expenses were $193,778 less than its revenues. (P-154). The City’s combined net assets — one measure of fiscal
10

health — increased to $12.9 million from $11.7 million the year before. (Vol. 6/174:10-16). In 2005, the City collected $599,014 more in earned income tax than originally anticipated. (Vol. 6/210:8-18), (P-154).
40. For 2007, Hazleton proposed and adopted a budget with no increase in taxes or service fees. (P-148 at 8; Vol. 3/50:14-50:20).
41. Even though Hazleton’s real estate tax assessments have increased, it has seen little increase in tax revenue because the Luzerne County Board of Assessment liberally grants taxpayer appeals and reduces property assessments. (Vol. 3/48:8-49:23; Vol. 5/154:2-4; P-148 at pg. 3).
42. The City’s real estate tax revenues have also plateaued because of a lack of developable land within the City limits. (Vol. 3/46:24-48:7; Vol. 5/153:1418; P-148 at pgs. 2-3). Hazleton’s lack of developable land has resulted in large, tax-rich industrial parks opening outside of Hazleton’s borders. (Vol. 3/75:6-78:4; Vol. 5/155:20-156:10). The City does not realize the real estate tax revenue from developments located outside of the City. (Vol. 5/156:23-157:2).
43. Notwithstanding Hazleton’s increase in population, the City has not seen an increase in its earned income tax (“EIT”) revenues. (Vol. 5/158:8-20). There are many possible explanations for the EIT remaining relatively flat in the face of a growing population. (Vol. 5/158:21-159:23). The City’s Director of Administration, Sam Monticello, insinuates without support that the flat EIT is caused by undocumented immigrants, who are working in Hazleton but not paying taxes. (Vol. 6/191:11-192:8). However, Monticello conceded on crossexamination that the flat EIT revenue could be attributable to many factors, including: unemployed residents residing in Hazleton; low wage jobs; the failure of
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citizens, lawful permanent residents and undocumented aliens to pay their taxes; and children residing in the community. (Vol. 5/159:2-23). The EIT is Hazleton’s largest source of revenue, yet the City has never studied why it has not increased with the population. (Vol. 5/160:5-14).
44. Because Hazleton’s revenues have not kept pace with its population growth, the City has balanced its budget by cutting expenses. The largest single expense in the City’s budget is the salaries and benefits for active City employees. (Vol. 5/160:15-19). 70.2% or $5,589,618 of the City’s expenses come from the salaries and benefits of the City’s active employees. (Vol. 5/160:20-161:2; P-148 at p. 10). The police department’s budget of $1,497,035 is the highest of any department in Hazleton. (Vol. 5/161:3-9; P-148 at pg. 9).
45. Mayor Barletta cut expenses by reducing the number of police officers from forty-two to twenty-three. (Vol. 3/41:16-42:25) (Vol. 5/170:18-171:1). As recently as 2006, Hazleton employed only between twenty seven to thirty officers. (Vol. 3/43:1-43:14). Currently, the City has 30 police officers, seven of whom are on extended sick leave. (Vol. 8/36:1-13).
E. Hazleton’s Decision To Adopt The Immigration Ordinances 46. On May 10, 2006, Derek Kichline was murdered in Hazleton. (P-81; Vol. 6/244:14-17). Four undocumented immigrants were arrested for the murder. (Vol. 6/245:6-8). Two of the four assailants lived in nearby Freeland, not Hazleton. (Vol. 3/80:20-81:9). None of those arrested have been tried or convicted. (Vol. 3/79:21-23). Since 2001, seven homicides have been committed in Hazleton. (P-195A, at pg. 2). The Kichline murder is the only one in which undocumented immigrants have been charged. 47. After the Kichline murder, Barletta concluded that Hazleton had a
12

problem with undocumented immigrants and decided to do something about the perceived problem. (Vol. 3/78:21-79:23; 81:10-81:13). Barletta asked an internetsavvy friend to find municipal ordinances, anywhere in the country, designed to address undocumented immigration. (Vol. 3/81:14-82:13). He only found an ordinance from San Bernardino, California, which was introduced but never adopted. (Vol. 3/82:12-83:6). Barletta and City Solicitor Chris Slusser, who has no immigration or civil-rights-law experience, made minor changes to the San Bernardino law to remove references to day laborers, and introduced it as Ordinance 2006-10. (Vol. 3/83:7-84:11).
48. Barletta did not discuss the proposed illegal immigration ordinance with Hazleton’s Director of Planning and Public Works, Robert Dougherty, or any of the other department head. (Vol. 5/45:14-46:6). Dougherty oversees and has ultimate responsibility for Code Enforcement and Tenant Registration, the offices charged with the enforcement of the immigration ordinances. (Vol. 5/39:2440:14). Dougherty has a Bachelors of Science degree in Engineering, a Masters of Science degree in Engineering and a Masters of Science degree in Urban Planning and Development. (Vol. 5/46:15-23).
49. In the past, Dougherty has been asked to give his input into new ordinances, which pertain to the offices that he oversees, before the ordinances are enacted. (Vol. 5/46:11-14). For example, Dougherty’s advice was sought for prior versions of the landlord registration ordinance. (Vol. 5/77:22-24).
50. Dougherty first learned that the City was contemplating an immigration ordinance when he read about it on the agenda for the June 2006 City Council meeting at which the original Immigration Ordinance was read for the first
13

time. (Vol. 5/44:23-45:8). 51. City Council President Joseph Yannuzzi admitted that City Council
had the authority to independently research, conduct or commission studies, or retain consultants or experts to make recommendations concerning the potential impacts of any of the challenged ordinances, but City Council failed to do so. (Vol. 2/144, 185, 203).
52. Prior to passage of the immigration, City Council did not review any written studies or data analyzing the effect of undocumented aliens on crime, the economy, healthcare, or education. City Council also did not commission or review any study on the expected impact or effectiveness of the ordinances. (Vol. 3/140:16-141:6).
53. On June 15, 2006, City Council had its first public reading of Ordinance 2006-10, i.e., the Original Immigration Ordinance. (P-10). Barletta stated at that meeting that the ordinance “is intended to deter and punish illegal immigrants. . .” (D-91 at pg.4; Vol. 4/254:22-255:21). Yannuzzi publicly stated that all illegal aliens, including those who overstay their visas, are “criminals,” and similar to people who break and enter into someone’s home. (Vol. 2/130; 161).
54. After the contemporaneous second and third readings on July 13, 2006, City Council adopted the Original Immigration Ordinance. (P-10).
55. Shortly after he introduced the Original Immigration Ordinance, Barletta testified before the U.S. Senate about the need for municipal laws such as Hazleton’s. (Vol. 3/197:2-198:2). Barletta testified that if the federal government had done its job Derek Kichline might still be alive today. (Vol. 3/197:19-198:2). Yannuzzi also expressed the view that the federal government had the power to
14

address immigration problems but was “not doing its job.” (Vol. 2/180-81, 196). 56. Barletta has repeatedly stated publicly that illegal immigrants have
“destroyed” Hazleton’s quality of life; drained municipal resources, making it hard to continue providing public services; sent the City “spiraling into debt;” led to increased crime; doubled violent crime; and led to the overcrowding of local hospitals and schools. (Vol. 3/91:9-93:22).
57. Prior to the adoption of the Original Immigration Ordinance, City Council never declared illegal immigration a public “nuisance” or made any of the findings in Ordinances 2006-10 or 2006-18. (Vol. 2/155:19-156:5).
58. On July 13, 2006, the City had its first public reading of (1) Ordinance 2006-13, i.e., Tenant Registration Ordinance (P-1). City Council enacted the Tenant Registration Ordinance into law on August 15, 2006, after the contemporaneous second and third readings. (P-1).
59. On August 15, 2006, this action was commenced. (Docket No. 1). Plaintiffs notified the City they intended to seek to enjoin the enforcement of the Original Immigration Ordinance. The City informed plaintiffs it intended to adopt a new ordinance to supplant the Original Immigration Ordinance. (See Stipulation and Order, dated September 1, 2006). The City agreed not to enforce the Original Immigration Ordinance until a new ordinance was enacted or it notified plaintiffs’ counsel in writing of its intent to enforce the original Ordinance. (Id.).
60. The Revised Immigration Ordinance, Ordinance 2006-18, (P-2), was drafted by the Federation for American Immigration Reform (“FAIR”) and the Mountain States Legal Defense Fund, both organizations that advocate for more restrictive immigration laws, tightened border security and a moratorium on
15

immigration from Mexico. (Vol. 2/147:9-18). Attorneys from both groups have entered their appearances in this case on behalf of Hazleton.
61. The Revised Immigration Ordinance was substantially different from the original. Indeed, the only definition carried over from the prior version was the definition of the “City of Hazleton.” (Vol. 2/149:7-23).
62. Notwithstanding the importance of the Revised Immigration Ordinance and its relation to the Original Immigration Ordinance, which had been stayed to resolved Plaintiffs’ impending preliminary injunction motion, Ordinance 2006-18 had its first reading at a special meeting on September 8, 2006, and was adopted after its second and third readings on September 12, 2006. (Vol. 2/147:9149:6). The Original Immigration Ordinance was repealed by Ordinance 2006-21. (P-68; Vol. 2/140:4-18).
63. Yannuzzi could not explain City Council’s rush to adopt the Revised Immigration Ordinance, especially when he asserted that the City did not intend to enforce it until after its employees were trained how to implement and enforce it. Barletta could not identify another Hazleton ordinance adopted within the short span of five days. (Vol.3/86:17-87:10).
64. On October 30, 2006, plaintiffs filed their First Amended Complaint. (Docket No. 29). Plaintiffs also filed a Motion for Preliminary Injunction and Temporary Restraining Order that same day. (Docket Nos. 30, 32).
65. On October 31, 2006, this Court entered a temporary restraining order, enjoining the enforcement of the Revised Immigration Ordinance, the Tenant Registration Ordinance and the Official English Ordinance. (Docket No. 35). By Stipulation and Order filed November 3, 2006, the parties agreed to
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extend the temporary restraining order until a consolidated preliminary injunction hearing and trial on the merits to occur no later than January 31, 2007. (Docket No. 39).
66. On December 28, 2006, Hazleton adopted Ordinance 2006-40, entitled “Illegal Immigration Relief Act Implementation Amendment” (the “Implementation Amendment”). (P-5). Ordinance 2006-40 amended Ordinance 2006-18 by adding §7, entitled “Implementation and Process.” (P-5).
67. On January 12, 2007, plaintiffs filed their Second Amended Complaint. (Docket No. 82).
68. Hazleton also intends to enforce the Revised Immigration Ordinance, as modified by Implementation Amendment and the Tenant Registration Ordinance if the court lifts the injunction. (Vol. 3/85:4-85:22).
69. During trial, Hazleton made yet more amendments to the Revised Immigration Ordinance. On the first day of trial, defense counsel advised that Hazleton would further amend the Revised Immigration Ordinance to remove the words “solely or primarily” from §§4.B.(2) and 5.B.(2). (Vol. 1/52:11-12). On the last day of trial, defense counsel informed the Court and Plaintiffs that the proposed amendment was adopted, and in addition the City added the word “knowingly” to the first part of §4.A. (Vol. 9/3:24-4:22).
F. The Ordinances’ Findings Are Not Supported By The Evidence 70. According to Section 2 of the Revised Immigration Ordinance, “illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services, increasing their cost and diminishing their availability to legal residents, and diminishes our overall quality of life.” (P-2 at §2.C.).
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71. At no time prior to the adoption of the ordinances did Hazleton compile, review, study, or analyze any information or statistics concerning the effect of undocumented immigration on crimes, healthcare, or public services. None of the “evidence” that the City now relies upon in support of the findings in its ordinances was considered, reviewed, or in many instances obtained until after the commencement of this lawsuit-.
(1) Hazleton’s Per Capita Crime Rate Has Decreased Since 2001
72. According to City Council President Yannuzzi, the primary basis for adoption of the ordinances was the perception that crime was being committed in inordinate percentages or amounts in Hazleton by illegal aliens. (Vol. 2/131). Yannuzzi viewed the Original Immigration Ordinance as “just an ordinary ordinance to control crime.” (Vol. 2/132:21-25).
73. Yannuzzi admitted that City Council did not receive or review any police reports, shift incident reports, crime data or statistics showing the numbers of crimes claimed to have been committed by illegal aliens. (Vol. 2/133:3-134:2). Yannuzzi admitted he was unaware of the criminal conviction of any illegal alien in Hazleton. (Vol. 2/203:4-9). Yannuzzi did not know Hazleton’s population or the number of undocumented aliens in Hazleton. (Vol. 2/134:3-8; 146:11-16).
74. City Council did not receive any evidence, data, statistics or crime rate information from the Police Department before adopting the Revised Immigration Ordinance. (Vol. 2/133:3-134:2). . Yannuzzi admitted City Council only heard from Barletta, who asserted that illegal immigration increased crime. The only crime mentioned to Council was the Kichline homicide. (Vol. 2/150:24151:20).
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75. Prior to the passage of the Immigration Ordinance, Police Chief Ferdinand did not provide Barletta with any statistics on crimes committed by undocumented immigrants. (Vol. 3/121:2-10). Ferdinand also did not provide Barletta with statistics on crimes committed by undocumented immigrants prior to the passage of the revised immigration ordinance. (Vol. 6/221:16-21). In fact, Ferdinand only sought to gather documents on crimes allegedly committed by undocumented immigrants in late January or early February of 2007, four to six weeks before the commencement of trial. (Vol. 6/222:3-23).
76. In discovery, Plaintiffs requested Hazleton to produce all pertinent crime statistics. The crime statistics produced by Hazleton do not support the conclusion in Section 2.
77. The Police Department does not keep information on the immigration status of those arrested and does not keep copies of the federal detainers, which evidence an undocumented alien being transferred to federal custody. (Vol. 6/225:25-226:21).
78. In response to Plaintiffs’ discovery requests, Police Chief Robert Ferdinand searched for police records for crimes involving undocumented persons for a period spanning from 2001 to 2006. (P-80; P-113; Vol. 6/243:11-244:13). The Hazleton Police Department keeps its police reports on the “Alert” computer system. (Vol. 6/223:21-224:5). The Alert System has several informational fields, but there is no field for immigration status. (Vol. 6/224:6-225:2).
79. To obtain information on crimes allegedly committed by illegal aliens, Chief Ferdinand (1) conducted a computer search of terms such as “illegal alien,” “illegal immigrant,” “ICE” and (2) instructed his narcotics detectives to identify
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those individuals they believed to be illegal aliens. (Vol. 6/226:22-229:7). 80. Chief Ferdinand’s initial document search returned twenty-one
incident investigation reports. (P-80). Five of those reports did not reflect crimes allegedly committed by undocumented aliens. (Vol. 6/229:24-238:2).
81. After an additional search, Chief Ferdinand produced nine Daily Information Sheets and one additional Incident Investigation Report. (P-113). Of those ten additional documents, four were duplicates of incidents reflected in other reports. (Vol. 6/239:10-241:10; Vol. 6/242:8-13). One of the additional ten did not evidence a crime by an undocumented person. (Vol. 6/241:11-242:7).
82. In total, the City was able to produce only 21 documents, which it believes reflect crimes committed by undocumented persons. (Vol. 6/ 230:11243:16). The City does not know whether any of the 21 crimes resulted in a conviction of an illegal immigrant from 2001 to 2006. (Vol. 6/247:15-248:16).
83. From 2001 to 2006, there were 4,288 Part I (more serious offenses) in Hazleton (Vol. 6/257:13-258:11), and 4,283 Part II (less serious offenses) (Vol. 6/257:13-258:11). In total, 8,571 total crimes were committed in Hazleton during that time period. (P-195A; Vol. 8/10:12-12:20).
84. In 2001 Hazleton experienced 1,358 total crimes. In 2006 it had 1397 total crimes. The population was approximately 10,000 more in 2006 than it was in 2001. Thus, from 2001 to 2006, the per capita crime rate actually decreased in Hazleton. (P-195A; Vol. 8/12:21-13:23).
85. When Barletta and Hazleton use the term “crime rate,” they refer to total crimes without reference to the size of the population. The FBI and other law enforcement agencies typically define crime rates as crimes per capita. (Vol.
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3/117:11-118:13). 86. From 2001 to 2006, there were 428 violent crimes (defined by the
Uniform Crime Reports to be murders, rape, robberies and aggravated assaults) committed in the City of Hazleton. (D-247; Vol. 8/13:24-15:22). The City produced evidence that three of the 428 violent crimes were allegedly committed by undocumented aliens. (Vol. 8/16:9-23:12).
87. Violent crimes are on the increase nationwide: homicides are up 10.2%; robberies are up 12.2%; aggravated assaults are up 3.1%; firearms offenses are up 10 %. (Vol. 8/25:9-26:6-8).
88. As a general rule, a population increase leads to an increase in crime. (Vol. 8/23:19-25). Although the population in Hazleton has increased, the number of crimes per capita have actually decreased.
89. The decrease in per capita crimes in Hazleton at a time when the immigrant population is increasing is consistent with the testimony of Plaintiffs’ expert Rueben Rumbaut, Ph.D. Dr. Rumbaut is a Professor in the Sociology Department at the University of California at Irvine. (P-210, Rumbaut Trial Dep., 9:1-10:1; Dep. Ex. 1). He has been teaching about immigration since 1978. (P210, Rumbaut Trial Dep. 11:19-12:18; Dep. Ex. 1). He has conducted grantfunded research work on immigrants’ experience and adaptability in the United States for nearly thirty-five years. (P-210, Rumbaut Trial Dep., 12:19-14:17; Dep. Ex. 1 at pp. 2-4). His research includes studies of criminal behavior by immigrants. (P-210, Rumbaut Trial Dep., 15:9-16:24). Dr. Rumbaut has received many honors and awards, and is an elected member of the Council of the American Sociological Association and the National Academy of Sciences’ Committee on
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Population. (P-210, Rumbaut Trial Dep. 14:18-15:8; Dep. Ex. 1 at pp. 4-5). He has written numerous peer-reviewed articles (P-210, Dep. Ex. 1 at pp. 6-13) and books (id. at 5-6, 19:19-20:14), and is editor or co-editor of various immigration textbooks and encyclopedias, (P-210, Dep. Ex. 1 at 6; Rumbaut Trial Dep., 20:1522:3). Dr. Rumbaut’s most recent article is entitled The Myth of Immigrant Criminality and the Paradox of Assimilation. Plaintiffs offered Dr. Rumbaut as an expert in immigration and the adaptation of immigrants in this country. (P-210, Rumbaut Trial Dep., 29:20-24. Defendant accepted Dr. Rumbaut’s expert qualifications. (P-210, Rumbaut Trial Dep., 30:12-34:9).
90. Studies show that Americans have a deeply-rooted perception that immigrants contribute to higher crime rates. (P-210, Rumbaut Trial Dep. 37:1640:6). History is replete with examples, especially during eras of mass migration, of nativists viewing the newcomers as threats. For example, such nativist views existed against the Irish, Jews, Italians, Chinese and Japanese. (P-210, Rumbaut Trial Dep. 40:7-43:15).
91. Immigrants do not vote and typically lack political power. Historically they have been treated as scapegoats. (P-210, Rumbaut Trial Dep., 43:16-45:10).
92. Dr. Rumbaut has assessed immigrants crime issues using federal government reports (including FBI crime reports), victimization studies and surveys from cities with high numbers of undocumented immigrants, like Miami, Los Angeles and Chicago. (P-210, Rumbaut Trial Dep. at 48:11-49:5). Since the federal government does not maintain statistics for crimes committed by undocumented immigrants, Dr. Rumbaut and others use the best available data to
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conduct their analysis. (P-210, Rumbaut Trial Dep., 49:6-58:2). 93. Dr. Rumbaut testified that those born in this country commit crimes at
five times the rate of immigrants, both documented and undocumented. (P-210, Rumbaut Trial Dep., 58:3-62:3). Immigrants’ incarceration rates are also much lower than for the native born. (P-210, Rumbaut Trial Dep., 67:24-69:10). Dr. Rumbaut’s findings have been confirmed by his own and other researchers’ longitudinal studies, which track behavior over times. (P-210, Rumbaut Trial Dep. at 69:11-72:10). The comparison of incarceration rates and crime rates, which plummeted between 1994 and 2005, demonstrates that the perceived immigrant criminality is in reality a myth. Indeed, studies reveal that the more immigration to an area, the lower the crime rate. (P-210, Rumbaut Trial Dep. 72:11-73:15). Dr. Rumbaut’s conclusions have been confirmed by other peer-reviewed studies. (P210, Rumbaut Trial Dep.73:17-76:25).
94. Determining the precise percentages of crimes committed by undocumented immigrants is difficult because criminal-justice agencies do not regularly determine immigration status and do not maintain reliable statistics. (P210, Rumbaut Trial Dep. 77:1-78:25). But using customized surveys and focusing on those demographic groups that comprise the largest number of undocumented immigrants, i.e., low-income, low-education Mexicans, Guatemalans and Salvadorans, Dr. Rumbaut and other researchers have concluded that undocumented immigrants commit crimes at lower rates than documented immigrants and much lower rates than native born persons. (P-210, Rumbaut Trial Dep., 79:1-81:16).
95. The finding in the Revised Immigration Ordinance that illegal
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immigration leads to higher crime rates is simply not supported by Hazleton’s experience or national trends.
(2) There Is No Credible Evidence Of Illegal Immigrants Being Involved In Pervasive Gang Activity In Hazleton
96. Police Chief Ferdinand claims Hazleton has experienced problems with gang activity in recent years. (Vol. 8/26:9-16). According to Ferdinand, the gangs operating in Hazleton include the Latin Kings, Bloods, Crips, Dominicans Don’t Play (DDP), Mara Salvatrucha (MS-13), the East Side Gang, the Trinitarios, and the Soldiers. (Vol. 8/27:11-24). Hazleton concludes that the presence of gangs means illegal immigrants are involved with the gang activity in the City.
97. Although Chief Ferdinand believes that some illegal immigrants are gang members, he concedes that gangs are not comprised solely of undocumented persons; some gang members are United States citizens; some gang members are lawful permanent residents; and not all undocumented persons are gang members. (Vol. 8/29:18-30:5). Chief Ferdinand does not know what percentage of gang members are undocumented persons. (Vol. 8/30:6-8).
98. Detective Christopher Orozco heads the Police Department’s Street Crimes Task Force. Orozco has been on Hazleton’s police force for nine years. (Vol. 8/36:7-9). The Street Crimes Task Force was recently created to deals with all street crime issues, including gang activity. (Vol. 8/45:11-15).
99. During Orozco’s tenure, the Police Department has only arrested five alleged gang members: one from MS-13, one from DDP, one from the Latin Kings, one from Trinitarios, and one from East Side Gang. (Vol. 8/32:13-33:11).
100. To attempt to bolster the testimony of Orozco and Ferdinand, Hazleton called purported gang expert Jared Lewis. Lewis opines that gang
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activity exists and is increasing in Hazleton and that local gangs are largely comprised of undocumented persons. Those opinions are not credible.
101. Lewis does not base his opinions on facts specific to Hazleton, but rather on his study of gangs located in other parts of the country. Hazleton did not provide Lewis with any police Incident Investigation Reports, Daily Incident Reports, summary of crime statistics or any other information about crimes allegedly committed by gang members or undocumented persons prior to or subsequent to Lewis rendering his opinions. (Vol. 8/162:1-5).
102. Prior to rendering his opinions, Lewis also did not (1) meet with Detective Orozco, Police Chief Ferdinand or any other Hazleton police officer or (2) visit Hazleton. His only trip to Hazleton, a brief one, was made the day before his trial testimony. (Vol. 8/124:14-19; 164:6-9).
103. Lewis’ opinion that 90% of gang members in Hazleton consist of undocumented persons is not credible. Lewis did not review any facts relating to alleged gang activity in Hazleton, crimes in Hazleton or the number of undocumented persons in Hazleton. Moreover, this conclusion, which was not contained in his report, was not supported by independent research shared with the Court. Instead, Lewis claims this statistic was contained in a recent FBI press release that he did not produce and about which he could not provide any specific information. (Vol. 8/168:21-169:20).
104. There is no credible evidence of undocumented aliens being involved in pervasive gang activity in Hazleton.
(3) Barletta’s Claim That One Third of Drug Arrests in Hazleton Involve Illegal Immigrants Is Not Supportable
105. Barletta asserts that one-third of all recent drug arrests in the City
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have involved illegal immigrants. (Vol. 3/119:14-22). Barletta’s assertion is not supported by the record.
106. Hazleton called Detective Jason Zola, a member of the Police Department’s narcotics division to testify about drug arrests. (Vol. 8/54:16-22). The narcotics division has four police officers. (Vol. 8/75:9-10). Zola testified that there were 10 drug arrests out of 30 in the City of Hazleton in 2006 involving illegal immigrants. (Vol. 8/56:9-18).
107. However, Zola clarified on cross-examination that the 10 drug arrests were only those made by the narcotics unit, which has four police officers. (Vol. 8/74:12-19, 74:24-75:5). The 26 other officers in the Hazleton Police Department make arrests for narcotics violations too. (Vol. 8/75:6-16). In total, there were 235 drug-related arrests in Hazleton from 2001 to 2006. (P-75; P-76; P-188 to P-191). United States citizens, lawful residents and undocumented aliens all sell and use drugs. (Vol. 8/75:17-19).
108. There is no evidence to suggest that one-third of Hazleton’s drug arrests were of undocumented immigrants. To the contrary, the record reflects that only 10 out 235 drug arrests involved illegal aliens.
(4) The City’s Budget And Financial Statements Do Not Reflect Expenses Or Concerns About Expenses Related to Undocumented Immigrants
109. Two of most important documents concerning the City’s financial condition are its annual budget and its audited financial statements.
110. Every September, the City’s Director of Administration Sam Monticello prepares the City budget for the upcoming year with the direction and input of Mayor Barletta. (Vol. 5/148:15-149:9).
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111. The 2007 budget includes a narrative written by Monticello with Barletta’s input. (Vol. 5/150:10-19). Monticello’s goal in writing the budget narrative is to summarize where the City stands financially and to highlight the important activities in the City. (Vol. 5/150:20-151:22). He only includes those things that are material. (Vol. 5/151:23-152:9).
112. There is nothing in the 2007 Budget narrative about the alleged costs that undocumented immigrants have forced upon the City. (Vol. 5/152:10-13; Vol. 3/50:21-51:16).
113. In addition to the budget, Hazleton is required by law to prepare audited financial statements to reflect an accurate picture of the City’s’ financial condition. (Vol. 6/166:18-24). Barletta and Monticello provide input into and review and the completed financial statements to ensure their accuracy. (Vol. 6/168:1-9; 168:13-16; 169:20-24).
114. The financial statements list all material things affecting the City’s financial condition. (Vol. 6/169:25-171:3). The City’s 2005 audited financial statements are its most recent. There is no mention of the alleged costs associated with illegal immigration in the City’s 2005 audited financial statements. (Vol. 6/ 172:1-173:16).
115. The alleged costs of illegal immigration are not contained in either the City’s budget or financial statements, which suggests that the cost of undocumented immigrants is not material to Hazleton’s finances. There is no evidence in the record showing that “illegal aliens” significantly burden the City’s finances.
(5) The City’s Police Overtime Expenses Do Not Reflect Substantial Cost Related To Illegal Immigration
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116. Hazleton contends that it has incurred substantial police overtime expenses related to crimes allegedly committed by undocumented immigrants. The record does not support Hazleton’s conclusion.
117. Every year the City’s budget includes an allocated amount for police overtime. (Vol. 5/161:18-25). Hazleton always exceeds the allocated amount. For example, the City exceeded its police overtime budget by $36,903 in 2005 (P-149; Vol. 5/162:19-163:11); by $35,101 in 2004 (P-150; Vol. 5/163:12-23); and by $21,732 in 2003 (P-151; Vol. 5/163:24-164:2).
118. In 2006, the City budgeted $30,000 for police overtime and spent $113,000. (P-95; Vol. 5/165:4-166:8). City Administrator Monticello could only identify two months, May (the Kichline murder investigation) and June (the Wyoming Street raid), out of the year in which he could say for certain that police overtime expenditures related to from crimes allegedly committed by illegal aliens. The total police overtime for those two months was $17,000. (P-94; Vol. 5/166:20-170:13). However, the Hazleton Police Department does not keep records of what crimes result in police overtime. (Vol. 8/138:20-23). It is likely that the overtime for May and June of 2006 include police activity for crimes in addition those allegedly committed by illegal aliens. (Vol. 5/171:1-13).
(6) Hazleton Does Not Provide Any Funding To The School District
119. Hazleton’s finding in the Revised Immigration Ordinance that Illegal Immigration significantly burdens public schools is not supported by the record.
120. City Council did not receive any data or information from the Hazleton Area School District (“HASD”) about the perceived impact of the children of undocumented persons attending schools who require English as
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second language (“ESL”) tutoring. No HASD representative appeared before City Council or provided HASD’s cost to City Council. (Vol. 2/173).
121. The HASD serves Hazleton and 13 other communities. (Vol. 5/175:718). Not all of the schools in the HASD are located in the City. (Vol. 5/175:1315). Only 43.8% of HASD’s students live in the City. (Shamany Stip. at 8).
122. The HASD is a separate legal entity from the City of Hazleton and has its own budget and taxing power. (Vol. 5/175:19-21).
123. Mayor Barletta is unaware of the number or percentage of undocumented immigrants students enrolled in the HASD. (Vol. 3/103:6-104:1).
124. Although the Original Immigration Ordinance claimed that undocumented immigrants contribute to “overcrowded classrooms,” the Mayor knew only that some students were taught in trailers, and did not know how many trailers were being used or the district’s average class size. (Vol. 3/110:5-110:10). Similarly, even though the Original Immigration Ordinance claims that schools are failing, the Mayor did not know how many schools were “failing” or whether average student test scores were trending up or down. (Vol. 3/110:11-112:5). Nor is there any evidence in the record to support either claim.
125. The HASD has not taken any position with respect to the Ordinances challenged in this action. (Shamany Stip. at 18).
126. Enrollment counts for the HASD show that between the 2000-2001 and 2006-2007 student numbers increased steadily from 8,387 to 10,079, respectively. (Shamany Stip. at 7).
127. The HASD is not legally permitted to ask students, their parents or legal guardians about the immigration status of any student. Therefore, the HASD
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does not have any information concerning the number of students who are undocumented immigrants or are U.S. citizens whose parents are undocumented immigrants. (Shamany Stip. at 16-17).
128. The HASD is also required by Pennsylvania law to provide, and provides, “English as a Second Language” (“ESL”) programs for students whose dominant language is not English. The students involved in HASD’s ESL program speak a variety of languages. (Shamany Stip at 10-11).
129. The number of “English Language Learner” students, defined as students learning to speak English as a second language, increased from 136 during the 2000-2001 school term, to 804 during the 2006-2007 school term. (Shamany Stip. at 9).
130. Although the HASD did not keep budget and expenditure records for the English Language Learner program until 2002, its records reflect the actual expenditures for the program have always exceeded the budget amount. (Shamany Stip. at 12-13). Moreover, the HASD has applied for and received federal Title III reimbursement for ESL expenditures. (Shamany Stip. at 14).
131. The City does not provide any funding to the HASD. (Vol. 5/176:1720). No one from the HASD, including superintendent or the school board members, have ever asked the City for any funding for English as second language courses. (Vol. 5/179:20-177:13).
132. The City’s conclusion that illegal immigration places a strain on Hazleton’s schools is not supported by the record.
(7) Hazleton Does Not Provide Any Funding For Healthcare 133. The Revised Immigration Ordinance states that illegal immigration “subjects our hospitals to … substandard quality of care[.]” However, no person
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who appeared before City Council expressed that view and no document provided to City Council supported that finding. (Vol. 2/134; P-2 at § C.2). This finding is not supported by the record.
134. The Greater Hazleton Healthcare Alliance (“GHHA”) is the primary healthcare provider for Hazleton and the surrounding communities. (Vol. 5/172:17-173:1). As a regional healthcare system, GHHA serves more than just Hazleton residents. GHHA operates the Hazleton General Hospital, which is located in Hazleton. (Vol. 5/173:2-4).
135. GHHA is a not-for-profit corporation, which has a charitable mission. (Vol. 5/173:5-10). The City does not provide any financial support to GHHA. (Vol. 5/173:11-174:5; Vol. 3/112:6-113:9). GHHA has never asked the City for funding. (Vol. 5/174:17-23). GHHA has not taken any position with respect to the Ordinances challenged in this action. (Edwards Stip. at 26).
136. GHHA did not present to City Council any GHHA costs or losses or financial statements showing the hospital’s costs to provide medical services to undocumented persons, or to show that a material number of those who cannot afford or do not pay for medical care are undocumented persons. (Vol. 2/151-53).
137. Barletta does not know the percentage of GHHA patients from Hazleton. (Vol. 3/115:2-115:13). Neither Barletta nor GHHA officials know how many undocumented immigrants are treated by the hospitals. (Vol. 3/113:10114:16). Despite claiming that undocumented immigrants lead to long emergencyroom waits, Barletta is unaware of any study or data to support his claims. Nor does he know whether other hospitals around the country were experiencing similar waiting periods. (Vol. 3/115:14-118:9).
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138. GHHA has consolidated all in-patient and emergency services at Hazleton General Hospital, while all out-patient services are provided at the Hazleton-St. Joseph campus. (Edwards Stip. at 6). Before the consolidation of emergency room services, GHHA had seven treatment rooms and one triage room at Hazleton General Hospital. (Edwards Stip. at 10). Consolidation of GHHA’s emergency room facilities involved a two phase program. Phase I involved the construction of eight new treatment rooms and two new triage rooms, which opened in July of 2006. Phase II involved the demolition of seven treatment rooms and one triage room to build ten new treatment rooms, which are now operational. GHHA’s emergency unit now has eighteen treatment rooms and two triage rooms at Hazleton General Hospital. (Edwards Stip. at 9, 11-13).
139. The new emergency department facilities and staffing have resulted in improved patient satisfaction, and patient wait times are comparable to those of other hospitals. (Edwards Stip. at 14-15). Also, emergency room visits to GHHA decreased by more than 4,000 from 2005 to 2006, with the average cost per visit of $168 for 2005, and $174 for 2006. (Edwards Stip. at 17, 19).
140. The GHHA treats all patients who appear at the emergency department regardless of age, race, color, national origin, religious creed, financial status, handicap, sex or sexual preference, and will not deny treatment for inability to pay for services. (Edwards Stip. at 18). Patients who cannot pay for services are entitled to a discount or waiver of the charges. (Edwards Stip. at 20-21).
141. The GHHA does not ask patients about their immigration status, and does not know the number of undocumented immigrants who have visited the emergency room between 2005 and 2006. (Edwards Stip. at 24).
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142. The GHHA had an operating profit of $1.2 million in 2005, and $4 million in 2006. (Edwards Stip. at 23).
143. At trial, Hazleton called purported expert Steven Camarota to testify to the “the fiscal impact of illegal aliens, the number of illegal aliens, the use of census data on calculating such numbers, and the impact of illegal aliens in hospital emergency rooms.” (Vol. 7/150:10-13). Camarota’s testimony is not credible or relevant.
144. Camarota is the Director of Research for the Center for Immigration Studies (“CIS”) (Vol. 7/150:16-18), an organization whose mission includes reducing the number of immigrants who enter the United States, both lawfully and unlawfully. (Vol. 7/155:19-156:3; 7/157:18-22).
145. Camarota’s opinion that undocumented immigrants are a fiscal burden on hospitals in Hazleton is not credible because he does not know the number of undocumented immigrants in Hazleton who do not have health insurance or who have utilized emergency services in Hazleton. Rather than rely on local data, he relied on national figures to estimate the number of undocumented immigrants in Hazleton who are uninsured. (Vol. 7/192:8-15).
146. In addition, the majority of individuals in the United States who lack health insurance are not undocumented immigrants. Camarota conceded that, of the 46 million individuals in this country who are uninsured, only 6-7 million are undocumented immigrants. (Vol. 7/193:12-25). Moreover, undocumented immigrants utilize free healthcare less often than uninsured citizens. (Vol. 7/195:1-196:4).
147. Camarota’s conclusions are also contradicted by the well reasoned
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opinions of Plaintiffs’ expert, Leighton Ku, Ph.D. By agreement of the parties, the Court admitted Dr. Ku’s expert report (P-107), in lieu of live testimony to rebut the opinions of Camarota. (Vol. 8/177:16-25).
148. Dr. Ku is a Senior Fellow at the Center on Budget and Policy Priorities, a non-profit policy organization in Washington, DC. (P-107 at 1). Dr. Ku has a Ph.D. in Health Policy and two masters’ degrees, including an M.P.H. degree. P-108 at 1). He has served as a researcher at various institutions for over twenty years. (Id.). He has expertise in immigrant health issues, including insurance coverage, access to care, language barriers and medical care use and expenditures. (Id.). He has written numerous papers on these topics, testified before Congress, and been a member of expert panels on immigrant health. (Id.). He has conducted extensive primary and secondary research into these topics. (Id.). He also serves as an adjunct professor of public policy at George Washington University. (Id.). The Court accepted without objection Dr. Ku as an expert on immigrant health issues, including cost issues related thereto. (Vol. 9/123).
149. On average, immigrants, and particularly undocumented immigrants, have much lower medical care costs than native born citizens. Two published reports cited by Dr. Ku support this research and conclusions. (P-107 at 2).
150. Camarota stated, without citing any sources or studies, that even though undocumented individuals use less medical care than U.S. born persons and documented non-citizens, that fact is “trump[ed]” by the fact that they are uninsured at higher rates. (Vol. 7/195:25-196:4; 195:1-11). The published figures cited by Ku contradict that assertion. A 2006 study published in the journal Health
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Affairs found undocumented individuals, on average, had lower public, private, and out of pocket health care expenses than native-born citizens. (P-107 at 2).
151. Camarota criticizes the Health Affairs report in part because it classifies “U.S.-born children of illegal aliens” as native born citizens in calculating their health care expenditures. (D-1773 at 6). Camarota’s criticism is baseless because all U.S.-born children are U.S. citizens, regardless of the immigration status of their parents.
152. Ku’s report credibly concludes that 74% of those who are uninsured in the United States are native born. (P-107 at 3). This conclusion demonstrates that the lack of health insurance is not just a problem for undocumented persons.
153. The federal government provides two sources of funding to help offset the expenses incurred by state and local health care providers, providing emergency care for undocumented immigrants. Local health care providers often fail to make full use of these funds. For example, in the first quarter of 2006, Pennsylvania hospitals claimed only $69,122 of $1.4 million available for such reimbursements in the first quarter of 2006. (P-107 at 3). There is no indication that the Hazleton Health Care Alliance or the City Council pursued any such federal funding.
(8) The Testimony Of Hazleton’s Expert George Borjas Is Neither Relevant Nor Credible
154. Hazleton called labor economics expert George Borjas, who opined as to the alleged adverse economic effect of undocumented persons. Borjas’ testimony is irrelevant to the factual issues in dispute.
155. Borjas’ analysis is not relevant because he did not study the economies or labor markets of Hazleton, Luzerne County, Northeastern
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Pennsylvania or the Commonwealth of Pennsylvania. (Vol. 6/18:3-19:19; 23:2224:4). Borjas’ broad conclusions simply extrapolate national data. (Vol. 6/66:2568:3). Furthermore, Borjas admits that he did not distinguish between the effects of legal and illegal immigration on wages. (Vol. 6/14:11-15:15).
156. Borjas also did not review the ordinances in question. Rather, he reviewed an unidentified ordinance on the “Small Town Defenders” website. (Vol. 6/69:13-17). Based on this unidentified ordinance and his assumption that it would be perfectly enforced, Borjas opined that Hazleton would drive out all unauthorized workers and create an urgent and immediate demand for low-skilled workers and a consequential increase in wages. (Vol. 6/75:12-18; 91:1-14). Borjas did not realize that Hazleton’s Implementation Amendment created a safe haven for unauthorized workers currently employed in Hazleton and acknowledged that in light of the amendment, the Revised Immigration Ordinance would have a potentially inconsequential economic effect on the City. (Vol. 6/91:1-25).
157. Because Borjas did not review any local data, he did not consider the number of low-skilled workers or businesses employing them in Hazleton. He also did not consider whether a particular need exists for low-skilled workers in Hazleton or whether businesses are able and willing to pay higher wages. (Vol. 6/42:21-43:4; 46:18-47:1; 70:10-24; 74:7-75:988:13-24).
158. Borjas conceded that his conclusions are the subject of an ongoing debate in the academic world, and other highly respected academics disagree with his opinions. (Vol. 6/55:10-57:8). One such academic is Dr. David Card, professor of Economics at the University of California, Berkeley, and a prominent expert in the field, according to Borjas. In an article entitled “Is the New
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Immigration Really So Bad?,” N.B.E.R. Working Papers 11547, National Bureau of Economic Research, Inc. (2005), Dr. Card concluded that the wages of low skilled workers “have remained nearly constant since 1980, despite pressures from immigrant inflows that have increased the relative supply of dropout labor and despite the rise in wage gap between other education groups in the U.S. economy.” (Vol. 6/55:10-57:8).
159. Plaintiffs’ expert Marc Rosenblum, Ph.D. also disagrees with Borjas’ claim that undocumented immigration drives down wages, and cited to studies by other academics disagreeing with Borjas. (Vol. 5/150:8-151:4).
160. Borjas background also demonstrates his bias anti-immigrant bias. His curriculum vitae identifies him as an active member of CIS, the anti-immigrant lobby that supplied another of Hazleton’s experts, Camarota. (D-170; Vol. 6/11:22-13:12).
161. Borjas’ testimony does not provide any credible support or justification for Hazleton’s adoption of the ordinances.
(9) The Testimony Of Hazleton’s Expert John Martin Is Neither Credible Nor Relevant
162. In its case, Hazleton presented John Martin over Plaintiffs’ objection to testify as to the costs of incarcerating undocumented immigrants. Martin’s testimony was not credible or relevant.
163. Martin is not experienced in statistical or fiscal data. He does not have a postgraduate degree in demography, economics or other related fields of study. None of his publications has been subject to an academic peer review process. (Vol. 7/215: 21-216:6). He does not belong to any professional or academic associations and has never before been qualified by any court as an
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expert. (Vol. 7/216:9-13; 217:4-8). He has not conducted any primary research on the “fiscal impact” of immigration. (Vol. 7/225:6-16).
164. Martin is a Director at FAIR, an advocacy organization that argues for a substantial reduction in lawful and unlawful immigration. (Vol. 7/219:4-6). The “legal arm of FAIR,” the Immigration Reform Law Institute (“IRLI”), supported Hazleton in this litigation and was “involved in the process of the creation of ordinance that is under discussion here.” (Vol. 7/222:9-16). Trial counsel for Hazleton, Kris Kobach, has worked closely with the IRLI. (Vol. 7/224:14-17).
165. Martin’s conclusions have been criticized by the Office of the Comptroller for overestimating the costs of undocumented immigrants on the State of Texas. Martin included in his estimates the costs of educating U.S. citizen children born to undocumented parents, and his estimates did not include the $500,000,000 in federal reimbursement for those very expenditures. (Vol. 7/230:13-19). Additionally, Martin failed to analyze the benefits undocumented persons provide, such as the economic products of their labor. (Vol. 7:226-13-25).
166. The Officer of the Comptroller concluded that undocumented immigrants were a net fiscal benefit to Texas, not a fiscal burden as Martin had concluded. (Vol. 7/226:5-227:2).
167. Martin conceded that his statistics for costs of incarcerating immigrants included all aliens, and he could not distinguish what costs were attributable to legal aliens and what costs were attributable to undocumented aliens. (Vol. 7/243:15-244:17). Martin did not cite specific sources for the incarceration costs of immigrants but instead referred generally to State Criminal Alien Assistance Program (or SCAAP) data. (Vol. 7/247:11:18). Martin also
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conceded that his analysis of incarceration costs did not apply to Hazleton, which does not operate a prison facility that receives SCAAP funding. (Vol. 7/247:21:24).
168. Martin failed to research or analyze the burdens and benefits associated with undocumented aliens residing in Hazleton. His analysis does not support Hazleton’s claim that illegal immigration imposes a fiscal burden on the City.
G. Hazleton’s Ordinances Violate The Constitution And Federal Law (1) Hazleton’s Ordinances Are Preempted (a) Immigration Law Implicates National Policy Issues, None Of Which Hazleton Considered Or Was Competent to Consider
169. Neither Barletta nor City Council considered the implications of its anti-illegal-immigration ordinances on foreign policy generally, or how it might affect relations with, for instance, Guatemala or Mexico. (Vol. 3/88:2-89:22). Their only concern was for Hazleton, which they were elected to serve. (Id.).
170. Neither Barletta nor City Council considered the possible effects of the ordinances on the nation’s economy, or the economic impact of many municipalities passing similar ordinances. (Vol. 3/89:25-91:1).
171. Immigration enforcement takes two forms: border enforcement, which involves trying to keep unauthorized persons from entering the country, and interior enforcement, which involves trying to distinguish between legal and undocumented immigrants already in this country and attempting to remove the latter. (Vol. 4/14:3-18).
172. For interior enforcement, it is important to strike a balance between
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preventing undocumented immigration and employment without accidentally removing legal immigrants and citizens and without imposing an excessive burden on employers and workers. (Vol. 4/14:19-15:20).
173. Under the political system in the United States, Congress, with the help of the Executive branch, has responsibility to strike the balance on immigration enforcement. (Vol. 4/15:21-24). If enforcement is too lax, i.e., the filter is set too low, it will not prevent undocumented people from entering the country and being employed. On the other hand, if the enforcement is too high i.e., the enforcement is too aggressive, it will wrongly deny employment to U.S. citizens and legal immigrants. (Vol. 4/14:19-15:20). How the balance is struck affects U.S. employers. (Vol. 4/15:25-16:11; 4:18:3-19:10).
174. Increased enforcement adds bureaucracy and slows the hiring process, making it more difficult for employers to operate. (Id.) How the balance is struck also affects our foreign relations, with excessive enforcement jeopardizing our alliances and cooperation with other countries, on things such as immigration enforcement, drug interdiction and terrorism investigations. (Vol. 4/16:12-18:2).
175. Congress understands that immigration presents a delicate balancing act but does not agree on how to strike that balance, a problem that has stalled comprehensive immigration-reform legislation. (Vol. 4/19:11-19:23).
176. Hazleton was not concerned with, did not consider and did not address the many national and international issues involved with immigration law and policy.
(b) The Determination Of Immigration Status Requires Complex Analysis Under Federal Law
177. Mayor Barletta’s mantra concerning Hazleton’s efforts to curtail
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illegal immigration is “illegal is illegal.” (Vol. 4/225:18-25). Hazleton’s Revised Immigration Ordinance is premised on the notion that immigration status can be quickly and accurately determined. Barletta’s mantra and Hazleton’s notion misrepresent federal immigration law and policy.
178. Under the Revised Immigration Ordinance, on receipt of a valid complaint, the Code Enforcement officer has three business days to request “identity information” on the suspected illegal alien from the business entity. (P-2 at §4.B.3.; Vol. 3/155:9-155:14). The ordinances do not define “identity information,” but Hazleton interprets this to mean whatever the federal government would accept. (Vol. 2/155:15-156:1).
179. As part of their case, Plaintiffs called Professor Stephen Yale-Loehr. Professor Yale-Loehr is an experienced immigration law practitioner, an adjunct professor of law at Cornell Law School, and co-editor of the leading treatise on immigration law and procedure. (P-205). He has practiced immigration law continuously since 1982. (Vol. 6/101:2-7). He teaches immigration law and directs Cornell’s political asylum clinic. (Vol. 6/101:14-102:14). He has taught at Cornell since 1991, and previously taught at Georgetown Law School. (Vol. 6/102:11-13). He has published extensively in the field of immigration law, covering a wide range of topics in articles and books. (Vol. 6/103:7-21). Professor Yale-Loehr is also co-editor of a twenty-volume treatise on immigration law and procedure that is updated four times a year, covers a wide variety of relevant topics, and has been frequently cited by federal courts. (Vol. 6/103:22-106:4; 111:5-7).
180. The Court accepted Professor Yale-Loehr as an expert on federal
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immigration law, the acquisition and maintenance of immigration status, and the operation of the federal immigration system. (Vol. 6/107:5-9; 111:1-2).
181. In rebuttal, and over Plaintiffs’ objection, Hazleton called and the Court accepted Michael Cutler as an expert in the field of immigration law enforcement. Cutler lacks both the academic credentials and professional experience to opine on matters related to the substance and interpretation of immigration law. (Vol. 8/191:4-192:18). Therefore, his testimony regarding legal matters cannot be accorded any weight.
182. The Revised Immigration Ordinance defines “illegal alien” as an “an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq.” (P-2 at §3.D; Vol. 3/149:19150:18).
183. There is no general definition of the phrase “illegal alien” in the Immigration and Nationality Act. (Vol. 6/130:3-14). There is also no general definition of the phrase “lawfully present” in the Immigration and Nationality Act. (Vol. 6/130:15-131:1).
184. There are two broad categories of lawfully admitted aliens under federal law: non-immigrants (i.e.,, persons in the country temporarily); and immigrants (i.e., lawful permanent residents or green card holders). While there is no definition of the phrase “lawful resident” under federal immigration law, the closest approximation to that phrase is “lawfully admitted for permanent residence,” i.e., green card holders. (Vol. 6/131:23-132:5). (Vol. 6/111:12-16; 112:13-113:3). Millions of persons a year enter the United States as nonimmigrants. (Vol. 6/111:19). Individuals can obtain immigrant (i.e., lawful
42

permanent resident) status in a variety of ways, including family or employment characteristics, the so-called diversity green card lottery, or relief such as asylum. (Vol. 6/112:22-113:1).
185. There is also a third category of aliens: persons not currently in an immigrant or non-immigrant status under federal immigration law. (Vol. 6/113:413). The number of people in this third category is often estimated at 12 million. (Vol. 6/113:16-17).
186. It is inappropriate to consider all of these individuals in this third category as “illegal.” (Vol. 6/114:8-25; 128:7-19). The fact that a person does not currently have a lawful immigration status does not mean that the federal government wishes, or is even lawfully permitted, to remove that person from the United States. (Vol. 6/114:14-25; 127:13-16).
187. The federal government frequently exercises its discretion not to attempt to remove persons from the United States, even though they may lack lawful immigration status. (Vol. 6/114:16-25; 117:3-10; 124:18-125:23).
188. Individuals who currently lack legal status may obtain lawful status in different ways, (Vol. 6/113:21-114:7), such as adjustment of status, asylum, cancellation of removal, and cancellation under the Violence Against Women Act. (Vol. 6/115:1-13). In some instances, individuals can affirmatively apply for regularization of status. In other instances, regularization of status is only available after an individual has been placed in removal hearings by the federal government (even if the operative facts justifying relief predate the commencement of the removal hearing). (Vol. 6/118:22-121:8).
189. The act of submitting an application does not change the applicant’s
43

immigration status, even if the application is bona fide and will ultimately be approved. (Vol. 6/116:18-117:5; 118:6-17; 161:8-21). It may take months or years for an applicant to adjust status, obtain relief, or otherwise regularize status. (Vol. 6/128:20-129:19; 116:14-24; P-200, John Doe 1 Dep. Tr. 74:1-8).
190. The federal government does not know whether an out-of-status person has a valid claim to regularize status until an application is filed and a decision is rendered under the laws and procedures of the federal immigration system. (Vol. 6/117:23-118:5; 121:15-17; 128:2-6). Accordingly, no database can accurately determine whether the federal government will choose to remove a given individual from the United States.
191. A person who has a valid claim to remain in the United States but who currently lacks immigration status frequently will not have any documents to demonstrate that he has such a claim. (Vol. 6/121:9-14; 127:17-128:1).
192. The federal government does not decide whether a person should be removed from the country based on a telephone call or even on documents and information within the federal government’s possession. (Vol. 6/135:13-20). Rather, the federal government only decides if a person must leave the country after holding hearings at which an Immigration Judge (an official of the Department of Justice) determines whether the DHS has proved by clear and convincing evidence that the individual is removable under applicable law. (Vol. 6/133:7-134:22). The Immigration Judge will also determine whether the individual is eligible for relief from removal. (Vol. 6/118:25-119:24).
193. The federal government has the discretion to decide whether to initiate removal proceedings against a given person. (Vol. 6/114:23-25; 124:22-125:7).
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194. Removal hearings include significant procedural safeguards, such as the right to counsel and the right for both sides to present witnesses and evidence beyond what is already in a person’s administrative file. (Vol. 6/134:8-22; 135:515). The individual may seek review of the Immigration Judge’s status determination within the Department of Justice and in the federal courts. (Vol. 6/135:21-136:5).
195. The federal government generally permits persons in removal proceedings to remain in their communities in the United States while the proceedings are pending, even though the DHS has alleged that they are removable. (Vol. 6/136:14-21).
196. Some persons who the Immigration Judge determines should be removed and who have not have established relief from removal are nonetheless permitted to live in the United States by the federal government, or are entitled to do so under controlling Supreme Court case law. (Vol. 6/123:7-124:17).
197. The federal government routinely grants work authorization to individuals who lack lawful immigration status. (Vol. 6/124:3-13; 125:24-126:6; 127:4-6; 149:2-14). Work authorization and immigration status are separate concepts. A person can be work-authorized, but lack lawful immigration status, or have lawful status but lack work authorization. (Vol. 6/126:15-127:6).
(c) Unlike Federal Law, Hazleton’s Ordinances Require Employers To Check The Immigration Status Of Independent Contractors
198. The Revised Immigration Ordinance applies to all “business entit[ies],” which are defined broadly to include all persons, groups of persons and employers who hire, employ or somehow compensate a worker. (P-2 at §3.A; Vol. 3/146:20-147:15). Hazleton interprets business entity to include landlords. (Vol.
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3/153:20-154:7). 199. The requirements apply to all “contractors,” independent, sub and
otherwise. (P-2 at §3.C; Vol. 3/147:16-148:4). The ordinances apply to anyone engaged in “work,” which is defined broadly to include, “any job, task, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including but not limited to all activities conducted by business entities.” (P-2 at §3.F; Vol. 3/149:4-149:10). In sum, the employment requirements apply not just to employers and contract employees, but to anyone getting work or help from anyone else. (Vol. 3/149:11-149:18).
200. It makes no difference under the Revised Immigration Ordinance whether the complained-about worker is an employee or an independent contractor. (Vol. 3/156:2-156:16).
201. Under federal law employers do not need to check identity documents of independent contractors. (Vol. 4/57:10-58:3).
(d) Hazleton’s Immigration Ordinances Provide Shorter Response Times To Verify Immigration Status And Harsher Penalties
202. The amount of time provided in the Revised Immigration Ordinance for Hazleton to determine the immigration status of an employee or tenant is substantially less than the time allotted under federal law.
203. Within three days of a request from the Code Enforcement Officer, a business must produce the identity information on the complained-about worker or the business’ permit to operate in the City shall be suspended. (P-2 at §4.B.3.).
204. Hazleton’s ordinances undermine the already-weak due process protections that exist under federal law. For instance, under the ordinances employers must terminate a complained-about employee within three days if the
46

employer fails to produce identity documents or the employee is non-confirmed by the verification system. (Vol. 4/46:11-47:4).
205. By way of comparison, the federal Basic Pilot program gives workers eight days to appeal a non-confirmation. Congress is contemplating expanding that period. Even eight days is often insufficient time to track down necessary documents and evidence. (Vol. 4/145:17-147:2).
206. Another difference between federal law and Hazleton’s ordinances is that under federal law failure to produce identity documents upon demand results in a small civil penalty. Under Hazleton’s ordinances , it results in the loss of a business license, which effectively requires the employer to cease operations. (Vol. 4/123:19-124:10).
(e) Hazleton’s Immigration Ordinance Require Use Of Basic Pilot, But Federal Law Does Not
207. The Revised Immigration Ordinance makes participation in the federal government’s Basic Pilot Program mandatory for business entities if (a) desiring an “award of any City contract or grant . . . for which the value of employment, labor or, personal services shall exceed $10,000….” (P-2 at §4.D.); and (b) “[w]here two or more of the unlawful workers were verified by the federal government to be unauthorized aliens….” (P-2 at §4.B.6.b.; Vol. 3/164:12-165:13).
208. Under federal law, the Basic Pilot program is voluntary. (Vol. 4/23:23-24:4; 27:25-28:8). Congress has recently considered making Basic Pilot mandatory, but has declined to do so because of concerns that the system has too many errors, leading to citizens and work-authorized legal immigrants being “nonconfirmed” for employment despite their lawful status. Vol. 4/24:5-25:17).
209. Congress has not considered, much less passed or made mandatory, a
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verification system involving private housing. (Vol. 4/54:2-54:12). (f) Unlike Federal Law, Hazleton’s Revised Immigration Ordinance Creates A Private Right of Action
210. The Revised Immigration Ordinance establishes an “unfair business practice claim” in favor of “unfairly discharged workers.” (P-2 at §4.E.). This private cause of action allows a terminated employee who is not an illegal immigrant to sue if his or her employer was not signed up for the Basic Pilot Program and has an illegal alien on its payroll. (Id.) The “unfairly discharged worker” can recover treble damages for up to 120 days, as well as costs and attorneys’ fees. (Id.) Under the plain language of the ordinance, it does not matter why the employer discharged the worker, or even if it was for cause, so long as the foregoing elements of the claim are met. (Vol. 3/172:8-175:11).
211. City Council has never before declared or adopted an ordinance regarding “unfair business practice,” as found in Ordinance 2006-18, § 4.E, nor has it adopted a new private right of action or private lawsuit ordinance. (Vol. 2/169170). The unfair business practice provision was not supported by any legal opinion from the City Solicitor. (Vol. 2/172).
212. There is no similar provision in federal law, and Congress has not considered one. (Vol. 4/60:13-60:23).
213. Defense counsel’s suggestion during cross examination of Plaintiffs’ expert, Dr. Rosenblum, that the Hazleton’s private right of action (§ 4.E.) is equivalent to federal law is misplaced. (Vol. 4/137:1-140:21). The provision referred to by defense counsel is the RICO statute, 18 U.S.C. § 1961, which does not recognize a federal private right of action that resembles the Revised Immigration Ordinance in any meaningful way. The elements of a civil RICO
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claim include a series of predicate federal criminal offenses; a racketeering “enterprise” akin to a conspiracy, involving multiple actors; and proof that the plaintiff's damages were proximately caused by the racketeering activity. These elements are entirely absent from the Ordinance's novel treble-damages provision.
(g) The Federal Government Has Adopted Programs To Aid Municipalities With Crimes Involving Illegal Immigrants
214. Both Mayor Barletta and City Council President Yannuzzi have expressed the view that the federal government has the power to address immigration problems but is “not doing its job.” (Vol. 3/197:19-198:2; Vol. 2/18081, 196). The evidence shows that the federal government has successfully cooperated with Hazleton in crimes involving illegal immigrants and has established a formal program to coordinate law enforcement efforts with municipalities, which Hazleton has not taken advantage of.
215. The Hazleton Police Department has successfully worked with ICE and federal law enforcement officials to investigate crimes involving undocumented immigrants, including the Wyoming Street raid in which two of the five people arrested were illegal immigrants. (Vol. 8/37:7-14; 38:2-5; 44:11-45:6). Chief Ferdinand told ICE’s Larry O’Donnell: “It’s nice to have your support when we do encounter them [i.e., illegal immigrants] (such as in the recent homicide).” (P-83 at HAZ 00178; Vol. 8/36:6-10).
216. As described by the federal government, the 287g program, is a law enforcement partnership between DHS, ICE, and local law enforcement agencies. (P-83 at HAZ 00167). It is designed to allow local police departments, like Hazleton’s, to assist the federal government with processing the deportation of criminal aliens. (P-83; Vol. 8/32:4-14). It also allows state and local police
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officers, detectives and investigators to work in conjunction with ICE officers. (P83 at HAZ 00167).
217. The 287g program allows local and state law enforcement officers access to (a) the necessary resources and latitude to pursue investigations relating to violent crime, gang activity, narcotics, etc., (b) increased resources and support in more geographic locations, and (c) more robust coverage throughout the United States. (P-83 at HAZ 00167). The 287g program acts as a “force multiplier,” creating investigative leads, arrests and convictions of criminal aliens. (P-83 at HAZ 00167; Vol. 8/35:13-16).
218. Chief Ferdinand did not inquire about the 287g program until August of 2006, after the initial immigration ordinances were proposed and adopted. (P83 at HAZ 00168). Hazleton’s Police Department applied to participate in the 287g program, (Vol. 8/35:17-19), but has not yet obtained 287g status because it has not completed the requirements. (Vol. 8/36:2-13).
219. The City’s law enforcement powers stop at its borders, making it impossible for the City to investigate companies outside of its borders who may be employing undocumented immigrants. (Vol. 8/38:20-40:10). Moreover, both Detective Orozco and Police Chief Ferdinand recognized that gangs are not a local concern, but rather operate nationally and internationally. (Vol. 8/28:1-5). Because the gangs claimed to be present in Hazleton are located in numerous locations, effective law enforcement requires multi-jurisdictional cooperation. (Vol. 8/43:7-44:6).
(2) Hazleton’s Ordinances Do Not Comply With Fourteenth Amendment Procedural Due Process Requirements
50

(a) The Revised Immigration Ordinance Does Not Provide Adequate Notice Or Opportunity To Be Heard
220. The Revised Ordinance’s employment provisions do not require Hazleton or the employer to give notice of either the complaint or the verification results to the affected worker. (P-2 at § 4.B.3.; Vol. 3/159:23-160:13). The harboring section of the Revised Immigration Ordinance does not require Hazleton or the landlord to give notice to the aggrieved tenant that his or her verification has been rejected. (P-2 at §5).
221. Once Hazleton notifies the business entity that a worker’s status has not been verified, the entity has three days to “correct” the violation. (P-2 at §4.B.3.; Vol. 3/160:14-160:23). Because the Revised Immigration Ordinance does not specify how to “correct” a violation, Hazleton passed the Implementation Amendment (Ordinance 2006-40) to define “correction.” (P-5 at §7.C.; Vol. 3/160:24-161:7). Under the Implementation Amendment, a business entity can “correct” a violation by (1) terminating the worker or (2) asking Hazleton to request additional verification from the federal government, based on additional identity information. (P-5 at §7.C.; Vol. 3/161:8-164:11). Although §7.C. lists three options for “correcting” a violation, both the first and third options require the business entity to terminate the employee.
222. The Revised Immigration Ordinance takes a strict liability approach, allowing no exceptions to the three-business-day-production requirement. If a business fails to produce identity information within the prescribed period, regardless whether there is good cause for the failure, the City must suspend the entity’s operating permit. (Vol. 3/156:19-158:14). For a second or subsequent violation, the Code Office is required to suspend the entity’s business permit for
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twenty days. (P-2 at §4.B.7). 223. The harboring section gives landlords found to be leasing to illegal
aliens five days to “correct” the violation, slightly more time than under the employment section. (P-2 at §5.B.4). The Implementation Amendment (2006-40) provides three ways for a landlord to “correct” a violation. (P-2 at §7.D.; Vol. 3/185:22-188:9). The landlord can issue a notice to quit, seek an additional verification based on new identity information, or file a court action to recover possession of the property. (P-2 at §7.D.1-3.). The first and third options require the landlord to take steps to evict the tenant. (Vol. 3/186:17-187:13).
224. If an owner fails to correct a violation, the Revised Immigration Ordinance requires Hazleton to suspend the landlord’s license, without exception. (P-2 at §5.B.4; Vol. 3/187:14-188:9).
225. The ordinance does not afford aggrieved landlords or tenants an administrative hearing to contest the determination. (Vol. 3/188:10-188:23).
226. The judicial remedy afforded by the Revised Immigration Ordinance affords the same judicial remedy to aggrieved landlords and tenants as under the employment section. Aggrieved parties can file an action with the District Magistrate, with a right of appeal to the Luzerne County Common Pleas Court. The court is bound by a rebuttable presumption that the federal status determination is correct. (P-2 at §5.F.; Vol. 3/189:14-190:2).
227. The Ordinances do not provide either a pre- or post-termination administrative hearing to a business entity notified of a violation or to a worker determined to be unlawful or terminated by the employer as a result of such a finding. Mayor Barletta was unable to identify any Hazleton administration
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process to provide aggrieved workers with an opportunity to contest the termination or for business entities to contest notice to terminate the employee on penalty of losing the operating license. (Vol. 3/166:24-168:20).
228. The only procedure established by the Revised Immigration Ordinance for an aggrieved business entity or worker is to file an action in the “Magisterial District Court for the City of Hazleton, subject to the right of appeal to the Luzerne County Court of Common Pleas.” (P-5 at §7.F.; Vol. 3/168:22169:10). In any judicial challenge, the Implementation Amendment requires the reviewing court to treat the federal government’s status determination as a “rebuttable presumption.” (P-5 at §7.G.).
(b) The Tenant Registration Ordinance Does Not Provide Notice Of The New Registration Obligation To NonEnglish Speaking Residents
229. The Tenant Registration Ordinance, Ordinance 2006-13, amended an existing registration ordinance pertaining only to landlords. (Vol. 3/190:6-190:16).
230. The Tenant Registration Ordinance requires landlords to register their properties with the City and pay a $5 registration fee. (Vol. 5/83:3-14; P-1 at §7). Landlords registering must complete a form prepared by the City. (Vol. 5/82:1183:17; P-12). The ordinance applies to every living unit that a property owner allows someone else to occupy and to every occupant who is over age 18, regardless whether they have a lease. (Vol. 3/190:17-191:11).
231. Tenants must complete an application for an occupancy permit provided by the Code Enforcement Office and must include “[p]roper identification showing proof of legal citizenship and/or residence.” (P-1 at §7.b.1.).
232. The Code Enforcement Office’s form requires a tenant to provide his
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or her name, date of birth, mailing address, proof of United States citizenship or proof of legal residency in the United States. (P-69; Vol. 5/84:5-85:12). Tenants must pay a $10.00 fee at the time they register. (P-69, § 7.B.; Vol. 5/86:1-15). If more than one tenant resides in an apartment, each tenant must pay the registration fee. (Vol. 5/86:8-10). If a tenant moves, he or she must re-register with the City and pay an additional $10.00. (Vol. 5/86:11-15).
233. A landlord is not permitted to allow a person to occupy a living unit unless the person presents a tenant permit. (Vol. 3/192:13-192:15).
234. Prior to the entry of this Court’s temporary restraining order, the City notified residents of the tenant registration obligation with a newspaper advertisement. (P-13; Vol. 3/192:13-193:9; P-66; Vol. 5/86:22-24; 87:9-12). The notice informs residents of the obligation of every tenant to register in person at the Code Enforcement Office. (Vol./3/193:17-193:22). It also identifies the documents that tenants are required to present to register. (Vol. 3/193:23-194:10).
235. The notice advises U.S. citizens that they must bring certain documents to prove citizenship and sign a statement declaring their citizenship. (P-13; Vol./3194:11-194:22). Similarly, the notice describes the documents an alien must present. (P-13; Vol. 3/194:23-195:14).
236. The notice of the tenant registration obligation, which the City placed in the newspaper, was in English. (P- 66; Vol. 5/87:24-25).
237. The City is aware that some residents in Hazleton do not speak English. (Vol. 5/89:14-21). Spanish is the predominant language of people individuals in Hazleton who do not speak English. (Vol. 5/89:17-21). In the past, the City has used Spanish language forms and notices in order to communicate
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with those residents who do not speak English. (P-67). The City did not place a

notice of the tenant registration obligation in Spanish or any other language

because of the Official English Ordinance, 2006-19. (Vol. 5/89:9-13).

238. The penalty for failure to comply with the tenant-registration

requirement is a fine of not less than $100 or more than $300, plus costs, or

imprisonment for a term not to exceed ninety days in default of payment. (P-1 at

§10; Vol. 3/196:2-196:13).

239. The registration of all tenants in the City is a large undertaking. (Vol.

5/79:4-13). To handle tenant registration, Hazleton created a new position and

hired former Fire Chief, Thomas J. Powell. (Vol. 5/79:14-80:22). Powell has

received no training on the documents that establish valid U.S. residency. (P-84;

Vol. 5/79:19-80:6). (c)

The Complaint and Verification Process Contemplated By The Ordinances Is Rife With Errors

240. The Revised Immigration Ordinances makes it “unlawful for any

business entity to recruit, hire for employment, or continue to employ, or to permit,

dispatch, or instruct any person who is an unlawful worker to perform work in

whole or part within the City.” (P-2 at §4.A.).

241. The Revised Immigration Ordinance also requires that “[e]very

business entity that applies for a business permit to engage in any type of work in

the City shall sign an affidavit, prepared by the City Solicitor, affirming that they

do not knowingly utilize the services or hire any person who is an unlawful

worker.” (P-2 at §4.A.). No business entity, including stores, businesses and

landlords, can operate in Hazleton without a permit. (Vol. 3/153:20-154:7).

242. The Revised Immigration Ordinance establishes a complaint-initiated

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enforcement system. (P-2 at §4.B.; Vol. 3/154:8-154:22). Anyone who lives in the City can file a complaint, including Hazleton employees. (Vol. 3/154:15154:24; Vol. 5/50:4-13; 61:1-10).
243. The Revised Immigration Ordinance also makes it illegal for any person or business entity to “let, lease, or rent a dwelling unit to an illegal alien.” (P-2 at §5.A.1.; Vol. 3/182:12-182:21). Each day that a landlord harbors each illegal alien is a separate violation, e.g., three illegal aliens harbored for three days would be nine violations. (P-2 at §5.A.2; Vol. 3/182:22-183:4).
244. The Revised Immigration Ordinance makes it a violation for a landlord to fail to provide identity information within three business days, which is parallel to the employment provisions. (P-2 at §5.A.3.; Vol. 3.183:5-183:12).
245. The harboring provisions include a complaint-initiated system that operates identically to the one described in the employment section. (P-2 at §5.B.; Vol. 3/183:13-183:19). As with the employment section, the verification process contemplated by §5.B.3 has not been approved and is not operational. (Vol. 3/184:8-184:18).
246. Code Enforcement Officers Richard Wech and Paul Kattner are the City employees who will receive complaints. (Vol. 5/72:22-73:2). Wech and Kattner report directly to Robert Dougherty, the Director of Hazleton’s Department of Planning and Public Works. (Vol. 5/49:3-9; 72:22-73-2).
247. A complaint is deemed “valid” if it “include[s] an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.” (P-2 at §4.B.1.).
248. Although the Code Enforcement Office has prepared certain forms
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relative to the ordinances at issue, it has not prepared a form for a complaint under the Revised Immigration Ordinance. (Vol. 5/50:14-51:5; 61:11-14).
249. An invalid complaint is one that is primarily or solely based on race, ethnicity or national origin. (P-2, § 4.B.2.; Vol. 5/62:4-18). The Revised Immigration Ordinance, which is the subject of the Second Amended Complaint, does not deem invalid a complaint in which race, ethnicity or national original is a factor, so long as they are not the primary or sole factor in the making of the complaint. (P-2, § 4.B.2.; Vol. 5/63:6-64:8).
250. The City has not developed any written guidelines concerning the investigation of the immigration status of an individual or any written standards to aid Wech and Kattner in determining whether a complaint is based primarily or solely on race, ethnicity or national origin. (Vol. 5/15:25-16:5; 21:2-5; 64:9-19). In fact, Dougherty, has not had any conversations with Wech or Kattner about the enforcement of the immigration ordinance. (Vol. 5/64:20-22).
251. Dougherty agrees that it is impossible to determine a complainant’s motivation in filing a complaint under Section 4 or Section 5 of the Revised Immigration Ordinance, 2006-18. (Vol. 5/71:25-72:16). There are, therefore, no meaningful anti-discrimination safeguards in the Revised Immigration Ordinance’s enforcement provisions.
252. City Council did not receive information from any federal agency or public comment concerning the use, operation, availability or accuracy of either the Basic Pilot Program or the SAVE program before adopting the Original Immigration Ordinance (or the Revised Immigration Ordinance). When asked about Basic Pilot’s accuracy rate, Yannuzzi answered: “I have no idea. Nothing
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has 100 percent really.” (Vol. 2/169:25-170:5). 253. The Code Enforcement Office has never before been required to
verify the citizenship or legal residency status of anyone in Hazleton. (Vol. 5/131:11-20). The Code Enforcement Officers have never actually reviewed resident alien cards, green cards or other such documentation. (Vol. 5/134:14-21). Dougherty has not received any training to determine immigration status based on the presentation of documents. (Vol. 5/54:19-22). Wech and Kattner also have not received training to determine the validity of the documents that establish lawful residency or on how to determine whether identity documents are authentic. (Vol. 5/11:19-12:4; 17:22-18:2; 54:23-55:1; 134:14-21).
254. Wech and Kattner have never had any direct contact with the United States Department of Homeland Security, the United States Citizenship and Immigration Services (“USCIS”) or any other federal agency that deals with immigration issues. (Vol. 5/135:21-25). They are unfamiliar with the Basic Pilot and SAVE programs and have never received any training on their purpose or use. (Vol. 5/16:6-14). Moreover, the computer systems in the Code Enforcement Office, which would presumably be used to access the federal databases, are outdated. (Vol. 5/17:3-7). The budget cuts for the Code Enforcement Office suggest that the computer systems will not be updated any time soon. (Vol. 5/17:8-15).
255. Even if Wech and Kattner had the requisite experience and training, the Basic Pilot and SAVE programs have serious functional flaws that prohibit its use as contemplated by Hazleton.
256. At trial, Plaintiffs called Marc Rosenblum, PhD. an expert about the
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federal government’s employment verification systems and immigration policy. Dr. Rosenblum, is an associate professor of political science at University of New Orleans. He has a Ph.D. in political science from University of California at San Diego. He has ten years of research experience, scholarship and publications in the fields of political science, foreign policy and immigration. In 2006 he spent six months as a fellow working on the United States Senate Immigration Subcommittee, which was considering changes to employment-verification laws. He has authored six to seven peer-reviewed journal articles and contributed an entry on international politics and migration to the Encyclopedia of American Immigration. (P-196; Vol. 4/4:9-13:19).
257. The Court accepted Dr. Rosenblum as an expert in employment verification and in U.S. immigration policy making. (Vol. 4/13:20-13:25).
258. Dr. Rosenblum testified about the federal employment verification systems. (Vol. 4/13:20-13:25). Basic Pilot is an electronic verification system, whereby an employer submits employee identity information, which is then checked against various government databases. (Vol. 4/27:3-27:24). If the system produces a match with the database, then the person is permitted to work; if not, then the employer is advised that the person is not permitted to work. (Id.)
259. Under the Revised Illegal Immigration Ordinance, Hazleton will not make the determination whether a person is an “illegal alien.” (Vol. 3/175:17175:23). The Ordinance purports to establish a verification process whereby the federal government will make the determination. The Revised Immigration Ordinance directs the Code Office to “submit identity data required by the federal government to verify, pursuant to United States Code Title 8, section 1373, the
59

immigration status of such person(s)….” (P-2 at §4.B.3). 260. If the complaint is that the worker is an “illegal alien,” the Ordinance
requires Hazleton to send the identity information obtained from the employer to the federal government for verification of immigration status. (P-2 at §4.B.3; Vol. 3/158:15-158:22).
261. If the federal government verifies the worker’s status, the Ordinances require Hazleton to “provide the business entity with written confirmation of that verification.” (P-2 at §4.B.3.).
262. Hazleton does not have a Memorandum of Understanding (“MOU”) with any federal agency to conduct the verification contemplated by either the employment (§ 4.B.3.) or the housing (§ 5.B.3.) provisions of the Revised Illegal Immigration Ordinances. (Vol. 3/175:17-181:14).
263. The City has entered into a MOU with the federal government for the Basic Pilot program for city employees. (P-94; Vol. 5/58:23-59:12). The Basic Pilot program is a federal computer database available to employers to verify the residency status of immigrants and is not intended to be used by local or state governments or for other purposes. (Vol. 5/123:10-18; Vol. 3/176:20-178:1). Since the City’s Basic Pilot MOU limits its use to checking the status of new City employees, it will not and cannot be the verification system contemplated by the ordinances to check on the business entities’ employees or the landlord’s tenants.
264. The City has not had discussions with DHS or ICE about their willingness and capability to assist Hazleton in determining whether a person who is the subject of a complaint is lawfully present in this country. (Vol. 5/55:2-20).
265. While Barletta claims the federal government would rely on the
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SAVE system to conduct the verifications, such an agreement requires an MOU. The DHS has not entered into any such agreement with Hazleton, and no federal official has told Hazleton that the requisite MOU is forthcoming. (Vol. 3/181:1181:23; 184:8-184:18). Thus, the verification system contemplated by the Revised Immigration Ordinance is neither approved nor operational.
266. Congress commissioned a study of Basic Pilot, known as the TempleWestat Study, which was published in 2002. (P-125; Vol. 4/25:18-26:15). The study concluded that the program should not be expanded to a mandatory or largescale program until problems in the system are fixed. (Vol. 4/26:21-27:2).
267. Basic Pilot produces a relatively high number of “false negatives,” meaning that the system fails to confirm work-authorized persons. These mistakes frequently occur because of data entry errors such as misspelled names and transposed numbers. (Vol. 4/28:10-29:18).
268. Congress has also resisted making Basic Pilot mandatory because the system does not contain adequate procedural protections to prevent false negatives. Currently, notice of non-confirmation goes only to the employer. The TempleWestat Study found that 73% of employers do not properly notify non-confirmed employees of the findings or of their appeal rights, and about half of employers subject such employees to “adverse employment conditions” during the appeal. (Vol. 4/30:22-32:5; 33:6-34:6). Most citizens are confirmed right away, but about 10% of immigrants or non-citizens are initially non-confirmed. (Vol. 4/32:6-33:5).
269. In June 2006, Richard Stana, Director of Homeland Security and Justice at DHS, testified before the General Accounting Office (“GAO”) in Congress that Basic Pilot still makes many mistakes, both failing to prevent the
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hiring of illegal workers (false positives) and failing to confirm authorized workers (false negatives). (P-55; Vol. 4/35:8-38:7). The report concluded that current weaknesses in the Pilot Program “have to be fully addressed to help ensure the efficient and effective operation of an expanded or mandatory pilot system or similar automated employment verification program, and the cost of additional resources would be a consideration.” (P-55 at pg. 21; Vol. 4/38:8-39:1).
270. Currently, only 14,500 employers out of more than 6 million employers nationwide have voluntarily signed up to use Basic Pilot. (Vol. 4/34:18-35:7; 157:21-158:12; 159:1-5).
271. Congress is concerned about Basic Pilot’s deficient due process protections, especially with regard to notice to the affected worker. Under current law, the MOU outlines employers’ responsibilities for using the system, including notifying workers of tentative non-confirmations, notifying workers of the appeal process and not penalizing workers during these steps. Studies show that many employers disregard these protections. (Vol. 4/49:9-50:7). Since Hazleton’s ordinances shorten the time frame for employers to act and increase the penalties for retaining undocumented workers, it enhances employers’ incentives to not notify workers and simply to terminate them, compounding the errors and the likely discrimination. (Vol. 4/50:8-50:19; 58:4-58:21).
272. Even under the most restrictive (or anti-immigration) legislation proposed in Congress, including the Sensenbrenner bill from the last session, H.R. 4437 (P-16), Congress would not make Basic Pilot or any other electronicverification system mandatory for at least six years. (Vol. 4/159:6-159:22). None of the bills include provisions, like Hazleton’s, to suspend employers’ operating
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licenses or to create private causes of action for discharged native-born workers. (Vol. 4/62:24-64:13; 53:1-54:1). Thus far not a single government study has determined that Basic Pilot is ready for large-scale expansion or universal use. (Vol. 4/159:23-160:1; 167:6-167:18).
273. The latest government study introduced into evidence was conducted by the Inspector General at the Social Security Administration (“SSA”), issued in December 2006. See, Accuracy of the Social Security Administration’s NUMIDENT File, (P-197; Vol. 4/161:1-161:20). The report found that the NUMIDENT database, which is used by both Basic Pilot and SAVE, found errors in 4.1% of the records, which translates into errors in 17.8 million records. (Vol. 4/161:21-162:23). These errors could lead to incorrect responses in the form of false positives and false negatives. (Vol. 4/162:25-163:13).
274. Congress has set a benchmark of 99% accuracy in the first verification step as a pre-requisite for making the Basic Pilot program mandatory. (Vol. 4/126:16-128:1).
275. If Hazleton’s ordinances and other similar municipal laws adopted in other communities went into effect, it would drastically increase the number of queries to federal verification systems. Both DHS and SSA have expressed concerns about being able to handle accurately a significantly larger volume of queries. (Vol. 4/163:8-164:13).
276. Although defense counsel suggested during his questioning Dr. Rosenblum that the flaws in the Basic Pilot program have been corrected by DHS, neither defense counsel nor any witness has produced documentary or other evidence to support this claim. (Vol. 4/88:9-95:22; 135:13-136:24; 160:11-
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160:25). (3) Hazleton’s Ordinances Promote Discrimination (a) The Revised Immigration Ordinance’s ComplaintBased Enforcement System Promotes Discrimination
277. Section 4.B.1’s complaint-initiated mechanism is likely to increase discrimination and/or wrongful discharges. The burden to prove that the worker is lawful rests with the employer. There are no protections against people initiating complaints against business competitors. And there are no protections built into the law to prevent retaliatory and discriminatory complaints. (Vol. 4/50:20-52:25).
278. Section 4.E of the Revised Immigration Ordinance, creating a private right of action in favor of “unfairly discharged employees,” is also likely to exacerbate the discriminatory effects of Hazleton’s law because it provides employers an additional incentive to be defensive. (Vol. 4/59:4-60:12; 82:582:18).
279. Hazleton’s ordinances do not change the federal verification systems. They are based on the existing infrastructure and merely make the penalty structure harsher. (Vol. 4/39:14-40:3; 44:8-44:21). Hazleton’s ordinances shorten compliance timelines and introduce new ways to file complaints. (Vol. 4/40:340:6).
280. Professor Rosenblum testified that the passage of the IRCA in 1986, which for the first time established an employer-sanctions-enforcement system (commonly referred to as the I-9 system), provides a historical analogue for assessing the likely effect of Hazleton’s ordinances. (Vol. 4/21:13-23:13; 40:740:19). Congress “tweaked” IRCA in 1996, adding inter alia a new pilot program for electronic verification known as the Basic Pilot program. (Vol. 4/23:14-22).
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281. Although Hazleton’s ordinances have never taken effect because of this Court’s injunction, government and private studies of IRCA’s effects are pertinent in assessing the likely effects of Hazleton’s ordinances. (Vol. 4/62:862:23; 78:18-78:23; 112:10-112:23). Studies about the effects of the Immigration Reform and Control Act (“IRCA”) are the “best historical example” of how Hazleton’s ordinances will affect employers and employees (and, given the parallel operational structures, landlords and tenants). (Vol. 4/40:10-40:14).
282. Government and academic studies have exhibited widespread consensus about three IRCA effects. (Vol. 4/40:15-41:5). First, it has failed to curtail employment of undocumented workers. (Vol. 4/40:25-41:9). Second, IRCA has driven down wages, not just for immigrants but for all U.S. workers. (Vol. 4/41:10-41:13). Third, IRCA has led to greater employment discrimination against Latinos. (Vol. 4/41:14-41:16).
283. Most of the evidence derives from a 1990 GAO report, Immigration Reform, Employer Sanctions and the Question of Discrimination. (P-56). The report found that 7% of employers simply stopped hiring people who looked Latino and a significant percentage of employers required more documentation from people who looked or sounded foreign than from native-born people. (Vol. 4/41:17-43:17).
284. Hazleton’s Ordinances are likely to encourage employers to engage in “defensive hiring” and “defensive firing.” Defensive hirings and firings occur because even well-meaning employers, who want to comply with the law, have difficulty determining who is and who is not legal. They err on the side of caution and protect themselves by not hiring, or firing, people who might be illegal. Since
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80% of the people in this country illegally are Hispanic, employers take an “information shortcut” and act based on the assumption that Hispanics are more likely than others groups, both native-born citizens and foreign-born from other nations, to be illegal. Hazleton’s Ordinances will exacerbate problems of defensive hiring and firing by creating a greater incentive for employers to simply terminate workers to avoid being getting penalized. (Vol. 4/47:8-49:4; 54:13-56:3; 60:24-62:7; 113:2-113:24).
285. The errors endemic in Basic Pilot also exist in SAVE since the two systems rely on the same databases. (Vol. 4/147:3-147:20). The same defensive hiring and firing practices generated by Basic Pilot would occur if Hazleton used the SAVE system. The employers and landlords who must “eyeball” the applicant and decide whether to hire or rent are likely to err on the side of caution by not hiring or renting to a person who looks as if he belong to an ethnic group more likely to include undocumented immigrants. (Vol. 4/147:21-148:19).
286. Since the ordinances’ harboring provisions operate essentially the same as the employment provisions, the incentives for landlords not to rent in the first place or to evict people who look and sound foreign, especially Hispanics, are the same. (Vol. 4/52:8-52:25).
(b) Hazleton’s Immigration Ordinances Have Generated Anti-Immigrant Hostility That Did Not Previously Exist
287. Plaintiffs presented testimony of an atmosphere of discrimination that arose after the adoption of the ordinances, which must be considered in reviewing the ordinances’ discriminatory effect. From the time the ordinances were first proposed in June 2006, the climate of cordiality in Hazleton began to change dramatically and a division grew in the community between Latino and non-Latino
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residents. (Vol. 1/79:9-18). 288. For example, Dr. Agapito Lopez, a long time resident of Hazleton,
was subjected to discriminatory and hostile treatment immediately preceding and after the enactment of the ordinances. In particular, Lopez received three pieces of racist hate mail.
289. The first piece of hate mail was a pamphlet slipped underneath Dr. Lopez’s office door on July 12, 2006, the day before the ordinances were enacted. (Vol. 1/73:12-74:4; Vol. 2/4:13-5:4). A handwritten note on the envelope stated, “Read This! You Might Learn Something.” (Vol. 2/5:5-11); (P-185). The enclosed pamphlet described the danger of allowing Latinos to gain political power in the United States. (Vol. 2/5:19-6:6); (P-185). It warned that “Whites will be quickly stripped of their rights with our wealth confiscated for redistribution to non-whites as is taking place in South Africa.” (Vol. 2/6:3-6); P-185). It also warned that the United States is “under invasion by millions of unskilled Mexicans” (Vol. 2/5:16-18; P-185), stated that “the consequences which this immigration disaster holds for our children is horrendous” (Vol. 2/5:25-6:1; P185), and queried whether the United States would become the “United States of Mexico.” (Vol. 2/6:7-9; P-185).
290. A few days after the ordinances were enacted, Dr. Lopez received at his office a second piece of hate mail, sent from nearby Wilkes Barre. (Vol. 1/78:1-7; Vol. 2/7:7-16; 16:20-17:3). The handwritten letter signed “disgruntled citizens” complained about Dr. Lopez’s actions in “defending” the “Latin community” and the purported harm that the “Latin community” was causing Hazleton. (Vol. 2/7:17-24; 8:14-15; 17:4-11); (P-186). The letter did not
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distinguish between documented and undocumented immigrants (Vol. 2/7:22-24; P-186), and described the purported problems cited by the mayor and other proponents of the ordinances. (Vol. 2/6:24-7:6; 7:21-9:11; 15:6-22); (P-186).
291. Dr. Lopez received a third piece of hate mail at his home in October 2006. (Vol. 1/78:10-12; Vol. 2/9:12-23); (P-187). The envelope contained a photograph of a Latino man who appeared to be wearing a Mexican hat, containing the words, “Subhuman Spic Scum.” The caption of the photograph stated, “If it’s Brown, Flush it Down.” (Vol. 2/10:4-12); (P- 187).
292. Receiving the hate mail made Dr. Lopez aware of the hostility that now exists in his city and made him fearful for himself and his family. (Vol. 1/78:20-79:5; Vol. 2/6:17-23; 8:16-9:11; 10:13-22).
293. Latinos, regardless of whether they were documented or even U.S. citizens, are experiencing a rising tide of anti-Latino hostility and animosity from the city’s non-Latino residents. For example, Dr. Lopez noticed that his once “friendly” relationship with his neighbors turned “a bit cold.” (Vol. 1/83:9-20).
294. After the enactment of the ordinances, the Lechugas, Jane Doe 5 and John Doe 1 all experienced hostility and discriminatory treatment from their Hazleton neighbors. (Vol. 2/124:2-125:5; 152:1-7; 134:17-135:4); (P-200, John Doe 1 Dep. Tr. at 43:21-25); (P-203, Jane Doe 5 Dep. Tr. at 74:14-22). In contrast, prior to the enactment of the ordinances, they had not experienced such treatment, and felt secure and tranquil in the community. (Vol. 2/154:4-5; P-200, John Doe 1 Dep. Tr. at 43:21-25; P-203, Jane Doe 5 Dep. Tr. at 74:14-22).
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II. Plaintiffs’ Post-Trial Brief Plaintiffs submit this post-trial brief to address the amendments to the
Immigration Ordinance announced by Defendant on the first and last day of trial and to respond briefly to new arguments and authority raised by defense counsel during the course of trial. As explained in Part A. below, all of Plaintiffs’ causes of action remain valid against the challenged Ordinances, even as amended by Ordinance 2007-6, and this Court accordingly should issue the requested relief with respect to the Ordinances as amended. In addition, as explained in Part B. below, the Court should issue a declaration that the Immigration Ordinance as it stood at the outset of trial – that is, without the amendments made by Ordinance 2007-6 (herein, the “existing Ordinance”) – likewise violates the Constitution and applicable laws. Finally, as explained in Part C. below, Defendant’s new arguments and authority do not refute, and actually strengthen, Plaintiffs’ claims.
A. All of Plaintiffs’ Claims Are Valid Against the Ordinances As Amended
In the midst of his opening statement, the City’s counsel informed the Court that Hazleton had decided to make a further amendment to its immigration regulation scheme, in additional to the several previous changes made since the outset of this case. The revision announced on the first day of trial would remove the words “solely or primarily” from §§ 4(B)(2) and 5(B)(2) of the Immigration Ordinance, provisions that then stated: “a complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” (Vol. 1/52:11-12; Exh. P-2). Then, on the final day of trial, defense counsel announced further amendments, informing the Court that, the night before, Hazleton had not only amended the Immigration
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Ordinance to remove the words “solely or primarily” from §§ 4(B)(2) and 5(B)(2), but also had made another change. Vol. 9, Part I/3:24-4:22). This second change added the word “knowingly” to the first section of § 4(A), the provision that made it “unlawful for any business entity to recruit, hire for employment, or continue to employee … any person who is an unlawful worker.” These latest amendments to the Immigration Ordinance are contained in Ordinance 2007-6 (Exh. D-271).
The parties agree the Court may and should decide whether Plaintiffs’ claims are valid against the existing Ordinances. Defendant has not argued – nor could it – that the latest revisions have any effect on Plaintiffs’ field and constitutional preemption claims; the multiple conflicts Plaintiffs have identified between Hazleton’s scheme and federal law (except as discussed in Part A.1. below); Plaintiffs’ claims under the Due Process Clause; Plaintiffs’ privacy claims; or Plaintiffs’ state law claims. Indeed, with respect to the latest amendments, the disagreement between the parties is narrow and confined to two discrete aspects of Plaintiffs’ case: (1) Plaintiffs’ assertion that the Ordinances impose a strict liability standard on employers that conflicts with federal law; and (2) Plaintiffs’ assertion that the Ordinances violate federal constitutional and statutory anti-discrimination provisions. As explained below, all of the previously identified conflicts still exist with respect to the existing Ordinance. In addition, Plaintiffs’ discrimination claims are still valid despite the revisions to the Ordinances.
(1) Even As Amended, the Ordinances Impose a Strict Liability Standard On Employers That Conflicts With Federal Law
Plaintiffs and Amicus U.S. Chamber of Commerce have identified a number of serious conflicts between the challenged Ordinances and federal law, including conflicts with federal classifications of non-citizens, Pl. Mem. in Support of Their
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Opp. to Def’s Mot. to Dismiss and Cross-Mot. for Summary Judgment (“Pl. Mem.”) at 11-12, 15-16; federal policy choices regarding mixed-status families, Pl. Mem. at 12; federal law and procedure regarding the determination of immigration status, Pl. Mem. at 12-17; federal law governing the Basic Pilot Program, Pl. Mem. at 18; Brief Amicus Curiae of the Chamber of Commerce of the United States of America (“Chamber Br.”) at 16-19; federal law exempting certain work relationships from work authorization verification, Pl. Mem. at 18-19; federal law restricting reverification of workers and use of immigration documentation, Pl. Mem. at 19; Chamber Br. at 19 n.13; and Congress’ overall regulatory scheme, Pl. Mem. at 20-24.
None of the preceding conflicts is in any way resolved by the latest amendments in Ordinance 2007-6, and each continues to serve as an independent basis for sustaining Plaintiffs’ Supremacy Clause cause of action (and Plaintiffs’ claims that the Ordinances are field-preempted, Pl. Mem. at 26-32 and impermissibly regulate immigration, Pl. Mem. at 32-37).
In Plaintiffs’ (and the Chamber of Commerce’s) preemption argument, they claim the Immigration Ordinance imposes a strict liability standard on employers that directly conflicts with the comprehensive federal employer sanctions scheme established by the Immigration Reform and Control Act of 1986 (“IRCA”). See Pl. Mem. at 19; Chamber Br. at 13-15. Because Ordinance 2007-6 adds the word “knowingly” to § 4(A) of the Immigration Ordinance, Defendant will likely argue that it cures this conflict with federal law. However, because the Ordinance’s enforcement and sanctions provisions, even after the latest amendment, operate as a strict liability scheme, a direct conflict continues to exist.
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In IRCA Congress prohibited only the “knowing” employment of unauthorized workers and provided employers with protection from liability if the employee “provides a document or combination of documents that reasonably appears on its face to be genuine” and is listed as acceptable by the federal government. 8 U.S.C. § 1324a(a)(1)(A), (b)(1)(A)(ii); see 8 U.S.C. § 1324a(a)(3) (good faith compliance with documentation process is an affirmative defense to claim of IRCA violation); see also Chamber Br. at 12-13; id. at 5-7 & n.4 (explaining legislative history). Hazleton’s local employer sanctions scheme, which imposes strict liability and does not take into account an employer’s compliance with the documentation process, clearly conflicts with IRCA.
The Immigration Ordinance’s treble-damages private right of action has no employer-knowledge element whatsoever and does not exempt from liability employers that comply with the documentation process. Immigration Ordinance § 4(E); see Chamber Br. at 13. Similarly, the Ordinance’s complaint and sanctions procedures turn entirely on whether a worker is found to be an unlawful worker and make no provision for any inquiry regarding the employer’s knowledge or compliance with IRCA’s documentation process. Immigration Ordinance §§ 4(B), 7(C). These clear conflicts with federal law, and the others outlined by Plaintiffs and the Chamber of Commerce, compel the Court to invalidate the Ordinance as amended. See, e.g., Hines v. Davidowitz, 312 U.S. 52, 66-67 (1952) (state laws cannot “conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations”); Rogers v. Nelson, 563 F.2d 617, 626 (3d Cir. 1977) (invalidating Virgin Islands employer sanctions scheme as conflict preempted).
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(2) Even As Amended, the Ordinances Are Invalid Under the Equal Protection Clause and Anti-Discrimination Laws
Defense counsel explained Hazleton had deleted the words “solely or primarily” from §§ 4(B)(2) and 5(B)(2) of the Immigration Ordinance in order to “remove the equal protection challenge” from this case. (Vol. 1/52:6). Defendant has not succeeded in this effort. Plaintiffs’ equal protection claim survives because, in the circumstances presented here, Defendant’s re-endorsement of the Immigration Ordinance at the end of trial requires a finding that Defendant has impermissibly engaged in racial discrimination. In addition, and independent of Defendant’s motivations in re-endorsing the Immigration Ordinance, the evidence at trial plainly established the Ordinances have a discriminatory effect that violates the Fair Housing Act.
In pre-trial briefing, Plaintiffs’ equal-protection analysis focused on the most obvious evidence of the Immigration Ordinance’s discriminatory nature: its provisions establishing that only “[a] complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” Ordinance 2006-18 (pre-amendment), §§ 4(B)(2), 5(B)(2) (emphasis added). The existing Ordinance contemplated – and indeed required – that Hazleton take enforcement actions against individuals based on complaints that were motivated in part based on race or national origin. Pl. Mem. at 49-53; accord Vol. 1/53:22-23 (defense counsel acknowledging that “solely or primarily implies that case [sic] [race] be used secondary in such a complaint”). Plaintiffs explained, and Defendant ultimately did not deny, such mixed-motive discrimination requires strict judicial scrutiny and would fail such analysis. Pl. Mem. at 53-56.
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At trial, Plaintiffs’ expert, Professor Marc Rosenblum, Ph.D., testified that, for reasons unrelated to the “solely or primarily” language, the Ordinance is likely to increase discrimination in employment and housing, especially against people of Latino descent. (Vol. 4/21:5-12). Prof. Rosenblum explained the Ordinance will exacerbate the phenomenon of “defensive hiring” – that is, employers will choose not to hire (and landlords will choose not to rent to) individuals who “might be illegal.” (Vol. 4/47:17-48:20). Similarly, the Ordinance gives landlords and employers an incentive simply to terminate their relationship with someone accused or suspected of being an “illegal alien,” does not afford any notice or meaningful protections to the accused, and does not provide sufficient time to respond to complaints, all of which increase the likelihood that individuals will be terminated merely because they “might be illegal.” (Vol. 4/48:21-52:25; 54:1756:3; 59:4-60:12; 82:5-82:18). This especially effects people of Latino backgrounds, because employers and landlords take an “informational shortcut” and act based on the assumption that Latinos are more likely than other groups to be “illegal.” (Vol. 4/60:24-62:7).2 Defendant did not present any evidence casting doubt on any of Prof. Rosenblum’s testimony regarding the discriminatory nature of the Ordinance.
2 Prof. Rosenblum based his conclusions on government studies and published data regarding the effects of employer verification systems generally and his analysis of the particular scheme envisioned under the Hazleton ordinance. Prof. Rosenblum did not rest his conclusions regarding discrimination on the “solely or primarily” language in the Ordinance or the explanation of its operation offered by Plaintiffs in their briefs. In fact, Prof. Rosenblum recognized that the Immigration Ordinance included purportedly anti-discriminatory language but explained that language would not negate its discriminatory effect. Vol. 4/51:22-52:3.
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After Prof. Rosenblum testified, explaining why the Ordinance will have discriminatory impacts and effects on the Latino community in Hazleton, the City Council met to consider passage of Ordinance 2007-6. A specific purpose of the amendment was to address equal protection issues in the Ordinance. (Vol. 1/52:6(. Yet, despite the uncontroverted evidence that the Ordinance will result in racial discrimination even with the proposed amendment, neither the Mayor nor the Council took any steps to further modify the Ordinance’s language or to incorporate anti-discrimination safeguards. In fact, the Mayor indicated he would enforce the Ordinances even if they had a discriminatory effect. (Vol. 4/263:9-16).
The significance of Prof. Rosenblum’s testimony for Plaintiffs’ discrimination claims is twofold. First, Defendant’s re-endorsement of the Immigration Ordinance’s discriminatory scheme in these circumstances gives rise to an inference that Defendant has impermissibly engaged in intentional racial discrimination that violates the constitutional guarantee of equal protection. “[T]he impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions.” Reno v. Bossier Parish School Bd., 520 U.S. 471, 487 (1997); see also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267 (1977) (noting specifically “[t]he specific sequence of events leading up [to] the challenged decision also may shed some light on the decisionmaker’s purposes …. Departures from the normal procedural sequence also might afford evidence that improper purposes were playing a role”); Pryor v. National Collegiate Athletic Ass’n., 288 F.3d 548, 564-68 (3rd Cir. 2002) (finding plaintiffs had stated a claim for improper discrimination where they alleged that defendant specifically knew of
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discriminatory results of policy and acted with purpose of causing such results). This intentional discrimination also violates the Fair Housing Act, 42 U.S.C. § 3604 et seq. See Pl. Mem. at 57-59.
Second, and wholly apart from any question of Defendant’s intent, Prof. Rosenblum’s unrebutted testimony establishes the Ordinances’ housing-related provisions will have a disparate adverse effect on Latino residents of Hazleton, regardless of their immigration status, strong proof of Plaintiffs’ Fair Housing Act claim. Disparate impact is a sufficient basis for a claim under the Fair Housing Act, regardless of intent. Pl. Mem. at 57, 59-60; see, e.g., Doe v. Butler, 892 F.2d 315, 323 (3d Cir. 1989); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 141-44 (3d Cir. 1977); see also Huntington Branch NAACP v. Town of Huntington, 844 F.2d 926, 937 (2d Cir.) (discriminatory effect may be proven by showing an “adverse impact on a particular minority group”), aff’d, 488 U.S. 15 (1988).
B. The Court Should Issue an Additional Declaration That the Immigration Ordinance Violates Federal Law When Considered Without The Latest Amendments
In addition to finding the challenged Ordinances invalid in their current iterations and issuing the requested relief with respect to those Ordinances, the Court should declare that the existing Immigration Ordinance – the version in effect until the final day of trial – violates the Constitution and federal and state law as alleged by Plaintiffs. Defendant’s words and actions convey that Defendant has not accepted that the existing Ordinance is unlawful. Hazleton made its latest modifications for the express purpose of preventing this Court from ruling on Plaintiffs’ claims as pleaded in their Complaint, Amended Complaint, and Second Amended Complaint. In these circumstances, the interests of all of the parties and
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the Court are served by a ruling that reaches both the existing Ordinances and the
last amended version of the Immigration Ordinance.
Hazleton’s many revisions to the challenged Ordinances, before and during
trial, have come at the urging and direction of its trial counsel. (See, e.g., Vol.
2/146:9-18; Vol. 3/149:1-3 (admitting that Ordinance 2006-18 was written by trial
counsel)). By Defendant’s own admission, the revisions were undertaken solely to
enhance Defendant’s litigation position. (See, e.g., Vol. 1/52:6). Defendant rushed
several significant amendment through the City Council in defiance of its ordinary
procedures, without subjecting the changes to any genuine deliberation by the legislative body.3 The latest amendments took place in the midst of trial and some
seven months after the litigation began. Throughout, Defendant stubbornly has
insisted in court that the prior versions of the Ordinances were valid and sound.
(See, e..g., Vol. 9/34:11 (addition of “knowingly” was “just a clarification”)).
3 Ordinance 2006-18, which replaced wholesale the original Immigration Ordinance with a significantly different and more elaborate scheme, was introduced in an emergency meeting late on a Friday afternoon and was given a second and third reading the following Tuesday, shortcutting the usual deliberative process by cutting the 10-day period usually allowed for consideration and deliberation between the introduction of a new bill and its second reading to the legal minimum. Vol. 2/147:4-148:6. Similarly, Ordinance 2007-6 was introduced on March 15, 2007, which was not a scheduled meeting date for the City Council. See http://www.hazletoncity.org/public/council-category/council-meeting-dates2.html. On March 21, 2007 – six days later – the City Council gave Ordinance 2007-6 a second and third reading, amended it to include the new provision relating to the word “knowingly,” and enacted it.
Hazleton’s hasty addition of the “knowingly” provision, a wholly new topic not encompassed in the original bill, violates not only Hazleton’s own customs, but also state law governing the introduction and consideration of municipal ordinances. See 53 P.S. § 36011 (“[Proposed ordinances] shall not be so altered or amended on their passage through council as to change their original purpose.”)
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“[A] defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice ” City of Mesquite v. Aladdin’s Castle, Inc. 455 U.S. 283, 289 (1982). The legality of a challenged practice is appropriately decided unless “there is no reasonable expectation that the wrong will be repeated….” County of Los Angeles v. Davis, 440 U.S. 625 (1979). To do otherwise would “leave the defendant ... free to return to [its] old ways,” United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). The defendant faces a “‘heavy,’ even ‘formidable’ burden of persuading the court that the challenged conduct cannot reasonably be expected to resume.” United States v. Gov’t of the Virgin Islands, 363 F.3d 276, 285 (3d Cir. 2004) (quoting Friends of the Earth, Inc. v. Laidlaw Env. Svcs., 528 U.S. 167, 189-90 (2000)).
On multiple occasions, courts have decided the legality of a statute or ordinance that has been repealed. In City of Mesquite, for example, the Supreme Court considered whether a particular provision of a city ordinance was unconstitutionally vague even though the city had repealed that provision. 455 U.S. at 289. The Court explained “the city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.” Id. See also, e.g., Penny Saver Pubs., Inc. v. Village of Hazel Crest, 905 F.2d 150, 153-154 (7th Cir. 1990) (claim for declaratory relief in challenge to ordinance was not moot, even though ordinance was amended so as not to apply to plaintiff, because “there still remains a live controversy between the parties as to whether the ordinance was unlawful”).4 Of
4 In the course of finding a challenge to a repealed act of Congress moot, the Third Circuit has noted the Fourth Circuit’s holding that “statutory changes that discontinue a challenged practice are usually enough to render a case
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particular relevance here, a Missouri court considering a challenge to an anti-
immigrant ordinance very similar to Hazleton’s recently declared the ordinance
void and permanently enjoined its enforcement, even though the municipality had
repealed the ordinance during the course of litigation. Reynolds v. City of Valley
Park, No. 06-CC-3802, at 5 (St. Louis Cty. Circuit Ct., Mar. 12, 2007) (appeal
docketed).
In this case, Defendant’s latest rushed amendment of the Immigration
Ordinance, in the midst of and to enhance its position in this litigation, and without
any acknowledgment of the infirmity of the existing Ordinance, simply cannot
establish that “there is no reasonable expectation that the wrong will be repeated.”
Accordingly, in addition to issuing Plaintiffs the requested relief with respect to the
Ordinances as amended by Ordinance 2007-6, the Court should declare that the
existing Immigration Ordinance violates the Constitution and state and federal law
for the reasons set forth in Plaintiffs’ previous submissions. C. The New Authority Cited By Defense Counsel Actually Strengthens Plaintiffs’ Legal Claims
moot.” Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 194 (3d Cir. 2001) (emphasis added) (citing Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir. 2000)). However, the Circuit has also rejected a government actor’s claims of mootness where the action allegedly mooting the case was taken “with litigation lurking a few days away” and where the circumstances suggested “that the impending litigation was the cause of the determination.” Virgin Islands, 363 F.3d at 285; cf. Penny Saver, 905 F.2d at 153 n.1 (noting that District Judge in a related case found that defendant “acted on advice of its trial counsel” (punctuation omitted)). The Virgin Islands court additionally found that the government actor’s “continued defense of the validity and soundness of the [challenged practice] prevents the mootness argument from carrying much weight[,]” because that “stance does not bespeak of a genuine belief that the [practice] was of a type that would not be contemplated again.” Virgin Islands, 363 F.3d at 286.
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Defendant relied on two legal arguments in the course of trial that had not been highlighted in its briefs: first, the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1961 et seq., negates Plaintiffs’ preemption claims with respect to the Ordinances’ treble damages private right of action; and second, a series of cases involving the federal firearms statutes contradicts Plaintiffs’ description and analysis of federal immigration law. (See, e.g., Vol. 4/137:1-140:24; Vol. 6/141:17-143:3). Additionally, on several occasions during the trial, defense counsel referred to a newly decided case from the Ninth Circuit, Incalza v. Fendi North America, Inc., 479 F.3d 1005 (9th Cir. 2007) (see, e.g., Vol. 1/45:16-46:8; Vol. 9, Part II/37:10-38:3) and has recently informed Plaintiffs that Defendant intends to reference congressional testimony delivered after the close of evidence in its post-trial submissions. None of these developments undermines Plaintiffs’ claims; rather, they underscore the points Plaintiffs have made throughout.
Defense counsel cited Incalza as support for its position that, in order for conflict preemption to be found, “[t]here has to be inevitable conflict so the person cannot stand within the legal protection, so to speak, or be legal under both statutes.” (Vol. 9, Part II/38:1-3). Yet Incalza did not reach that question. Incalza involved a suit by an Italian national who claimed his employment was wrongly terminated in violation of an implied contract and California anti-discrimination law. 479 F.3d at 1008. The employer argued in response that it was required to terminate the employee under IRCA and, to the extent California law required a different result, it was preempted. Id. at 1009. The Ninth Circuit determined IRCA did not require the employee’s termination, so there was no conflict between
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federal law and state law as alleged by the employer, and the state law’s provision of a damages remedy to the employee for improper termination did not create a conflict between state law and federal law. Id. at 1010-19. The court specifically did not address whether the state law would be conflict-preempted where compliance with both state and federal law was technically possible but potentially at cross-purposes. Id. at 1010.
Incalza actually applied the same standard in its conflict preemption analysis advanced by Plaintiffs in their briefs. The court applied the Hines v. Davidowitz standard – a state law is conflict-preempted where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 1010; cf. Pl. Mem. at 9-10 (relying on Hines standard). To be sure, the Incalza court recognized the conflict must be a genuine one: mere “tension … is not enough” to find preemption. 479 F.3d at 1010. But Plaintiffs do not rest their conflict preemption claims on mere tension; rather, Plaintiffs (and the Chamber of Commerce) have identified specific, pervasive incompatibilities between the Ordinances and federal law. Pl. Mem. at 9-26; Chamber Br. at 12-20.
Moreover, Incalza’s analysis of the purposes of IRCA echoes Plaintiffs’ position and strongly supports a finding of conflict between the Hazleton Ordinances and federal law here. Incalza finds, consistent with the testimony of Plaintiffs’ witnesses in this case, that one of Congress’s purposes in IRCA was “protecting the rights of lawful alien workers” and that members of Congress had “repeatedly expressed” “[c]oncern with protecting such workers from discrimination based on national origin engendered by IRCA’s employer sanctions.” 479 F.3d at 1011 (citing legislative history); see id. at 1012 n.6 (noting
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anti-discrimination provisions in IRCA and creation of Office of Special Counsel for Immigration-Related Unfair Employment Practices). The court noted, “[a]llowing employers to place employees on leave without pay while problems or concerns with their immigration status are resolved protects lawful employees from discharges by employers who, concerned with liability under IRCA, would otherwise terminate those employees first and ask questions later.” Id. The Ordinances provide no such safety valve and will result in precisely the sort of harm the Ninth Circuit recognized Congress was seeking to avoid. (See Vol. 4/48:21-52:25; 54:17-56:3; 59:4-60:12; 82:5-82:18 (discussing “defensive firing”); Chamber Br. at 16 n.10).
In cross-examination of Plaintiffs’ expert witness, Professor Rosenblum, defense counsel made reference to unpublished statistics that, he asserted, showed that “93 percent of all employees run through Basic Pilot are verified electronically in less than three seconds.” (Vol. 4/88:18-20; Vol. 4/135:16-136:23). Defense counsel has now informed Plaintiffs that he intends to provide the Court with the April 24, 2007 Congressional testimony of a Department of Homeland Security official [“Cong. Test.”] stating variously that “over 92%” or “nearly 92%” of initial Basic Pilot queries are initially electronically verified. (Cong. Test. 1, 3). An error rate of 8% (or 7%) does not represent a radical departure from previous statistics, resolve the problems that Professor Rosenblum noted with the Basic Pilot system and Hazleton’s use of it, or remove the likelihood that it will cause discrimination. (Vol. 4/88:17-89:12, 97:1-14).
In fact, consistent with Professor Rosenblum’s testimony, the April 24 DHS statement explains the notice requirements under the Basic Pilot system and the
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eight-day window that it provides for employees to contest tentative nonconfirmations – a period that Professor Rosenblum described as “one of the most important differences between the Hazleton system and the Basic Pilot.” (Vol. 4/46:11-47:4; Cong. Test. at 3; see also Chamber Br. at 16-17 (describing conflict between Hazleton scheme and eight-day period)).
Moreover, the April 24 statement demonstrates clearly that Basic Pilot is neither a mandatory system nor ready to be made mandatory, even by the federal government. There are a number of significant improvements to the system still to be made, and current federal proposals “recognize the challenges of implementing a mandatory national system and seek to minimize the burdens placed on employers.” Cong Test. at 5. Indeed, DHS endorses a “gradual approach” that would “phase in” electronic verification requirements. Id. at 6. Municipalities like Hazleton cannot overrule (and make irrelevant) Congress’ decisions regarding employer verification systems by unilaterally making the voluntary Basic Pilot system a mandatory one.
The first of Defendant’s new legal arguments relates to the civil RICO statute, 18 U.S.C. § 1964. Plaintiffs previously have explained the Immigration Ordinance’s treble-damages private right of action, § 4(E), conflicts with both federal and state law. Pl. Mem. at 30-31, 63-65; see also Chamber Mem. at 10, 13. At trial, the City’s counsel made the remarkable assertion that § 4(E) is actually an example of “Hazleton matching Federal law.” (Vol. 9, Part II/35:5-6). The provision of Federal law that is being “match[ed]”, counsel claimed, is the civil provisions of RICO. (Vol. 9, Part II/35:5-20).
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Apart from the fact both involve treble damages, there is virtually no similarity, much less any identity, between § 4(E) and RICO’s civil provisions. As the cases Defendant cited make clear, the elements of a civil RICO claim include a series of predicate federal criminal offenses;5 a racketeering “enterprise” akin to a conspiracy, involving multiple actors; and proof that the plaintiff’s damages were proximately caused by the racketeering activity. See, e.g., Williams v. Mohawk, 411 F.3d 1252 (11th Cir. 2005), vacated, 126 S. Ct. 2016 (2006) (RICO case cited by Defendant in which plaintiffs alleged that defendant’s employees and thirdparty recruiters traveled to the border to recruit undocumented workers, transported them to work sites, knowingly and recklessly accepted false documents, and helped unauthorized workers evade detection; allegations amounted to “hundreds, even thousands, of violations of immigration law”). These predicate elements are entirely absent from the Ordinance’s novel treble-damages provision.
The vast differences between civil RICO and § 4(E) of the Immigration Ordinance illustrate Congress’ caution in creating any private remedy even for egregious violations of federal restrictions on the employment of non-citizens. These differences illustrate, yet again, that Hazleton’s attempts to create its own immigration regulation scheme will wreak havoc on Congress’ choices in this area.
Defendant’s second new argument relates to a number of cases involving the federal firearms statutes, United States v. Atandi, 376 F.3d 1186 (10th Cir. 2004), United States v. Igbatayo, 764 F.2d 1039 (5th Cir. 1985), and United States v.
5 The RICO “racketeering activity” that relates directly to employment of unauthorized alien workers is 8 U.S.C. § 1324(a)(3)(A), which makes it a federal crime to “knowingly hire[] for employment at least 10 individuals with actual knowledge that the individuals are [unauthorized] aliens” during a twelve-month period.”
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Bazargan, 992 F.2d 844, 847 (8th Cir. 1993). Defense counsel raised these cases during cross-examination of Plaintiffs’ expert witness, Professor Stephen YaleLoehr, and again during closing argument. (Vol. 6/141:17-143:3; Vol. 9, Part II/46:20-49:11). Defendant asserts these cases provide a definition of unlawful status that is relevant to this case; suggest that immigration status is not as indefinite or complex as Plaintiffs (and the evidence) have shown; and somehow contradict Plaintiffs’ assertion that, under federal law, the only way to determine whether someone must leave the country is through the removal hearing procedure prescribed by the Immigration and Nationality Act. (Vol. 9, Part II/46:20-49:4).
To the contrary, Atandi and the other firearms cases simply illustrate that federal laws and regulations and federal courts have developed a specific definition of what it means to be “illegally or unlawfully in the United States” as that phrase is used in the federal firearms statutes. See 18 U.S.C. § 922(g) (“It shall be unlawful for any person ... who, being an alien ... is illegally or unlawfully in the United States ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition….”). In Atandi, the Tenth Circuit held:
an alien who is only permitted to remain in the United States for the duration of his or her status (as a student, for example) becomes “illegally or unlawfully in the United States” for purposes of § 922(g)(5)(A) upon commission of a status violation. We look to the date of the status violation to determine when the alien's presence became unauthorized, not to when that violation is recognized by official decree.
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376 F.3d 1186, 1188 (emphasis added);6 accord Bazargan, 764 F.3d at 848
(determining whether defendant was “a legal alien for the purposes of 18
U.S.C. § 922(g)(5) during the period of time that he possessed the firearms”
(emphasis added)). The Atandi court relied in part on a federal regulation,
27 C.F.R. § 478.11, which defines certain terms used in the firearms statutes
for the purpose of administering those statutes, stating in particular that an
alien “illegally or unlawfully in the United States” for the purpose of this
statute is an alien “not in valid immigrant, nonimmigrant or parole status.”
Defendant now claims that § 478.11 provides a definition relevant to this
case. (Vol. 9, Part II/48:25-49:3).
Hazleton is plainly incorrect in claiming interpretations of one
immigration-related term in the federal firearms laws by the federal courts
and the federal government somehow apply to Hazleton’s use of different
terms for a very different purpose. Eligibility under federal law to purchase
firearms and ability to reside in the United States under federal immigration law and policy are totally distinct inquiries.7 Indeed, these cases prove the
6 Counsel repeatedly omitted the key term “for purposes of § 922(g)(5)(A)” when purporting to quote this passage verbatim to Plaintiffs’ expert witness and to the Court. Vol. 6/142:10-14; Vol. 9, Part II/46:20-47:5. 7 Bazargan illustrates this point perfectly. The defendant in that case was admitted as a student, violated the terms of his admission by transferring between schools without notifying the government, and later applied for asylum. 992 F.2d at 845. At the time of the firearms purchase in April 1991, Bazargan had submitted an asylum application, which was pending, but was not in a lawful status because he had violated his terms of admission. Id. at 845-46. Still, he had federal work authorization as a result of his asylum application. Id. at 845. When he was put in removal proceedings, he was granted asylum by the immigration judge and so was not removed from the country. Id. at 846.
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point that there is no single definition of “legal” immigration status in federal law for all purposes and the complexity of federal immigration law makes it particularly difficult to interpret terms that are not precisely defined in the Immigration and Nationality Act.8 As Plaintiffs’ evidence and citations show, the federal government decides whether someone should depart from the United States only through removal proceedings, and Hazleton’s Ordinances run roughshod over that process and the complex system of classification the federal government employs. Pl. Mem. at 12-13.
D. Conclusion For the reasons set forth above, Plaintiffs respectfully request that the Court adopt Plaintiffs’ previously-submitted Proposed Conclusions of Law, make such further Conclusions of Law as are suggested by Part A. above, grant Plaintiffs’ requested relief with respect to the Ordinances as amended, and declare that the existing Immigration Ordinance violates the Constitution and federal and state law.
Under Hazleton’s theory, it would have been proper for any municipality in the United States to deny Barzagan abode in April 1991, notwithstanding that he was known to the federal government and authorized to work in the United States and notwithstanding that the federal government ultimately decided that he should not removed from the United States because he had a well-founded fear of persecution in his country of origin. 8 For example, the Tenth Circuit concluded the district court in Atandi erred by assuming the term “unlawful presence,” which has special meaning in the immigration code, was the same as being “illegally or unlawfully in the United States.” United States v. Atandi, 228 F. Supp. 2d 1285, 1288 (D. Utah 2002), rev’d, 376 F.3d 1186 (10th Cir. 2004).
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Dated: May 14, 2007

Respectfully submitted,
By: /s/ Thomas B. Fiddler Thomas G. Wilkinson, Jr., Esquire Linda S. Kaiser, Esquire Doreen Yatko Trujillo, Esquire Thomas B. Fiddler, Esquire Elena Park, Esquire Ilan Rosenberg, Esquire COZEN O’CONNOR 1900 Market Street Philadelphia, PA 19103 Tel. (215) 665-2000 Fax: (215) 665-2013
Foster Maer, Esquire Jackson Chin, Esquire Denise Alvarez, Esquire PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND 99 Hudson St. 14 Floor New York, NY 10013-2815 Tel. (212) 739-7575 Fax: (212)431-4276
George R. Barron, Esquire 88 North Franklin Street Wilkes-Barre, PA 18701 Tel. (570) 824-3088 Fax: (570) 825-6675
David Vaida, Esquire 137 North 5th Street Allentown, PA 18102 Tel. (610) 433-1800 Fax: (610) 433-2985
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Lee Gelernt, Esquire Omar C. Jadwat, Esquire AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 125 Broad St., 18th Fl. New York, NY 10004 Tel. (212) 549-2620 Fax: (212) 549-2654
Lucas Guttentag, Esquire Jennifer C. Chang, Esquire AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950
Witold J. Walczak, Esquire AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA 313 Atwood Street Pittsburgh, PA 15213 Tel. (412) 681-7864 Fax: (412) 681-8707
Mary Catherine Roper, Esq. AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA P.O. Box 40008 Philadelphia, PA 19106 Tel. (215) 592-1513 ext. 116
Counsel for Plaintiffs
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Shamaine Daniels, Esq. Laurence E. Norton, II, Esq. Peter Zurflieh, Esq. COMMUNITY JUSTICE PROJECT 118 Locust Street Harrisburg, PA 17101 Tel. (717) 236-9486 Fax: (717) 233-4088 Counsel for Plaintiffs Rosa Lechuga, Jose Luis Lechuga, John Doe 3, John Doe 7, Jane Doe 5 and Casa Dominicana of Hazleton, Inc.
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CERTIFICATE OF SERVICE I, Thomas B. Fiddler, counsel for Plaintiffs, hereby certify that I did cause a true and correct copy of Plaintiffs’ Post-Trial Proposed Findings of Fact to be served electronically by ECF to all counsel for Defendant City of Hazleton.

Dated: May 14, 2007

By: /s/ Thomas B. Fiddler

91

ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL

DRAFT

 
 Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 1 of 206
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

PEDRO LOZANO,

: No. 3:06cv1586

HUMBERTO HERNANDEZ,

:

ROSA LECHUGA,

: (Judge Munley)

JOSE LUIS LECHUGA,

:

JOHN DOE 1,

:

JOHN DOE 3,

:

JOHN DOE 7,

:

JANE DOE 5,

:

CASA DOMINICA OF HAZLETON, :

INC.,

:

HAZLETON HISPANIC BUSINESS :

ASSOCIATION, and

:

PENNSYLVANIA STATEWIDE

:

LATINO COALITION,

:

Plaintiffs

:

:

:

v.

:

:

CITY OF HAZLETON,

:

Defendant

:

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 2 of 206
TABLE OF CONTENTS I. Preliminary Issues
A. Standing...........................................................13
1. Constitutional standing...................................14 a. Individual named plaintiffs..............................16 b. Organizations...................................................24 c. Tenant plaintiffs................................................37 2. Prudential standing..........................................45 B. Anonymous Does.............................................57 1. Factors favoring anonymity ...........................64 2. Factors favoring disclosure............................80 C. Amendments to the ordinances......................85
II. Federal Constitutional Issues A. Federal pre-emption........................................91 1. Employment provisions...................................93 a. Express pre-emption.........................................93 b. Implied pre-emption.........................................100 i. Field ..................................................................100 ii. Conflict ..........................................................111 2. Tenancy provisions........................................122
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a. Housing illegal aliens..........................................122 b. Tenant registration ordinance............................123 B. Procedural due process......................................131 1. Employment provisions......................................132 2. Landlord/tenant...................................................141
C. Equal Protection..................................................146 D. Privacy rights ......................................................156
III. Federal Statutory Causes of Action A. Fair Housing Act...................................................163 B. Section 1981..........................................................166
IV. State Law Causes of Action A. Pennsylvania municipality law.............................170 B. Landlord/Tenant Law............................................181 C. Police powers .......................................................184 Conclusion.................................................................186 Verdict.........................................................................190 Appendix.....................................................................193
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DECISION This case addresses Defendant City of Hazleton’s authority to enact ordinances that regulate the presence and employment of illegal aliens.1 Before the court for disposition is plaintiffs’ complaint challenging the validity of those ordinances. Trial has been held on this matter, and the parties have filed briefs setting forth their respective positions. The matter is thus ripe for disposition. Background including findings of fact Defendant City of Hazleton is located in Luzerne County in northeastern Pennsylvania. The city’s executive is a mayor and the city’s legislature is a city council. Under Pennsylvania law, Hazleton is a City of the Third Class and operates under an Optional Plan B form of government. (Notes of trial testimony (hereinafter “N.T”) 3/15/07 at 20405). At the time of the 2000 census, Hazleton’s population was 23,000. (N.T. 3/16/07 at 145-46). Since 2000, Hazleton’s population has increased sharply, and now has an estimated 30,000 to 33,000 residents.
1The parties vary in their use of the terms “illegal alien,” “unauthorized alien,” “illegal immigrant” and “undocumented alien.” We will use the terms interchangeably.
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(P-148, 2007 Budget Proposal, at 1-2; N.T. 3/19/07 at 163-64). The increase in Hazleton’s population can be explained largely by a
recent influx of immigrants, most of whom are Latino. (N.T. 3/16/07 at 146). After the September 11, 2001 terrorist attacks, many Latino families moved from New York and New Jersey to Hazleton seeking a better life, employment and affordable housing. (N.T. 3/12/07 at 66-67; N.T. 3/14/07 at 29-30). Those moving to Hazleton included United States citizens, lawful permanent residents and undocumented immigrants. (N.T. 3/13/07 at 161; N.T. 3/14/07 at 29-30).
The number of undocumented immigrants in Hazleton is unknown. (N.T. 3/16/07 at 146). Immigrants, both legal and undocumented, support the local economy through consumer spending, paying rent and paying sales taxes. (N.T. 3/14/07 at 67-70).
Beginning on July 13, 2006, the City of Hazleton enacted numerous ordinances aimed at combating what the city viewed as the problems created by the presence of “illegal aliens.” On July 13, 2006, Ordinance 2006-10, the city’s first version of its “Illegal Immigration Relief Act Ordinance” was passed. This ordinance prohibits the employment and harboring of undocumented aliens in the City of Hazleton. On August 15,
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2006, the city passed the “Tenant Registration Ordinance,” Ordinance 2006-13 (“RO”). This ordinance requires apartment dwellers to obtain an occupancy permit. To receive such a permit, they must prove they are citizens or lawful residents.
On September 21, 2006, Hazleton enacted Ordinance 2006-18, entitled the “Illegal Immigration Relief Act Ordinance” (“IIRA”) and Ordinance 2006-19, the “Official English Ordinance.” These two ordinances replaced the original Illegal Immigration Relief Act. On December 28, 2006, Hazleton enacted Ordinance 2006-40, which amended IIRA by adding an “implementation and process” section. During the trial of the above matter, the city enacted the final ordinance at issue in this case, Ordinance 2007-6, which made minor, but important, changes to the language of portions of IIRA.2
At issue in the instant case are IIRA3 and RO. 4 IIRA defines “illegal
2Ordinance 2007-6 eliminated the phrase “solely and primarily” from sections 4.B.2 and 5.B.2 of IIRA and inserted the word “knowingly” to section 4.A of Ordinance 2006-18.
3For the remainder of the opinion we will refer to Ordinance 2006-18, as amended by Ordinance 2006-40 and Ordinance 2007-6 collectively as “IIRA” or “Ordinance.”
4The details of these ordinances are discussed more fully below where appropriate.
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Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 7 of 206
alien” as an “alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq.” (IIRA § 3.D.). Title 8, section 1101, et seq. is commonly referred to as the Immigration and Nationality Act or “INA”. The INA provides no definition for the term “illegal alien” or the term “lawfully present.” (N.T. 3/19/07 at 130).
Generally, under federal law, aliens can be present in the country as: 1) lawfully admitted non-immigrants, i.e., visitors, those in the country temporarily; and 2) lawful immigrants, lawful permanent residents, referred to sometimes as “green card holders.” (N.T. 3/19/07 at 112-13). Lawfully admitted for permanent residence status can be attained in various ways, including family or employment characteristics, the “green card lottery” or relief such as asylum. (Id. at 112-13).
A third category of aliens present in the country are “undocumented aliens” who lack lawful immigration status. These aliens may have overstayed their time in the United States or entered the country illegally. (Id. at 113). The number of these individuals is approximately twelve million. (Id.). Hazleton’s use of the term “illegal alien” evidently is aimed at these individuals.
On August 15, 2006, plaintiffs filed the instant action to challenge the
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validity of the Hazleton ordinances. On October 30, 2006, an amended complaint was filed along with a motion for a preliminary injunction and temporary restraining order seeking to enjoin the defendant from enforcing the ordinances.
On October 31, 2006, the court granted the plaintiffs’ request for a Temporary Restraining Order. (Doc. 35). The court ordered that the Temporary Restraining Order remain in effect until November 14, 2006 and scheduled a hearing on the preliminary injunction motion for November 13, 2006. (Doc. 36). In order to conduct discovery and fully brief the issues raised in the amended complaint, the parties entered into a stipulation to extend the Temporary Restraining Order for 120 days or until trial and resolution of the matter. (Doc. 39).
On January 12, 2007, plaintiffs filed a second amended complaint. (Doc. 82). The second amended complaint seeks a declaratory judgment that IIRA and RO violate the Supremacy Clause, the Due Process Clause and the Equal Protection Clause of the Constitution of the United States. Plaintiffs also claim that the ordinances violate 42 U.S.C. § 1981; the Fair Housing Act, 42 U.S.C. §§ 3601 et seq.; plaintiffs’ privacy rights; Pennsylvania’s Home Rule Charter Law, 53 PA. CONS. STAT. §§ 2961; et
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Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 9 of 206
seq., the Landlord and Tenant Act 68 PENN. STAT. §§ 250.101 et seq.; and its police powers.
The following plaintiffs filed the second amended complaint: - Pedro Lozano, a lawful permanent resident of the United States, who immigrated from Colombia in January 2002 in search of a better life. (N.T. 3/12/07 at 161). He served as an official in the National Police force for thirty-five years in Colombia. (N.T. 3/12/07 at 162). He moved to Hazleton from New York City to find affordable housing and better employment. (N.T. 3/12/07 at 164). - Jose Luis Lechuga and his wife, Rosa Lechuga, who immigrated illegally to the United States from Mexico in 1982 to forge a better life for themselves and their children. (N.T. 3/12/07 at 118-119). In the late 1980s, they received amnesty and became lawful permanent residents. (N.T. 3/12/07 at 119-120). In 1991, the Lechugas moved to Hazleton for its employment opportunities. (N.T. 3/12/2007 at 122-123). - Humberto Hernandez is listed in the complaint as a plaintiff. (Doc. 81, ¶¶ 3-4). Plaintiffs presented no testimony at trial regarding Hernandez; therefore, he will be dismissed. - John Doe 1 has lived in Hazleton for six years, but was born in
9

Case 3:06-cv-01586-JMM Document 409 Filed 07/26/2007 Page 10 of 206
Mexico. (See Doc. 189, Dep. John Doe 1 at 12). John Doe 1 is not a United States citizen or legal permanent resident, though his father filed a document with the federal government seeking to change his immigration status. (Id. at 16, 19). John Doe 1 is unsure of his immigration status, though he thought that the federal government could order him removed from the country. (Id. at 22). John Doe 1 is also unsure of whether he has legal authorization to work. (Id.).
- John Doe 3 moved to Hazleton four years ago. (Doc. 190, Dep. John Doe 3 at 8). He is not a U.S. citizen or a lawful permanent resident. (Id. at 11).
- Jane Doe 5 and John Doe 7 moved to Hazleton more than five years ago. (Doc. 191, Dep. Jane Doe 5 at 13). Neither is a U.S. citizen nor a lawful permanent resident. (Doc. 191, Dep. Jane Doe 5 at 15, Doc. 192, Dep. John Doe 7 at 10-11). They were both born in Colombia, where John Doe 7 worked as an architect, and have been married for over twenty-eight years. (Doc. 191, Dep. Jane Doe 5 at 16, Doc. 192, Dep. John Doe 7 at 9-11).
- Hazleton Hispanic Business Association is an organization comprised of approximately twenty-seven Hispanic business and property
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owners from the Hazleton area. (N.T. 3/12/07 at 77, 78, 80, 98). Members include landlords in the city of Hazleton. (Id. at 98).
- Pennsylvania Statewide Latino Coalition is a not-for-profit organization with a mission to promote the social, political, economic and cultural development of Pennsylvania Latinos and to develop leadership and create networks among Latino leaders and communities. (N.T. 3/12/07 at 20-22).
- Casa Dominicana de Hazleton, Inc. is an organization that provides assistance, orientation and education to the Latino community in Hazleton and attempts to unify ties between the Latino and non-Latino communities. (N.T. 3/14/07 at 7-9). It provides members with information, legal referrals and assistance with economic difficulties. (Id. at 8-9). It also works to keep youth from joining gangs. (Vol. 3, 27-28).5
Plaintiffs seek an injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining Hazleton from implementing or enforcing the ordinances. Additionally, plaintiffs seek the costs incurred in this litigation including attorneys’ fees pursuant to 42 U.S.C. § 1988.
5Further factual findings are made below where appropriate. However, as most of the issues we face are purely legal, we need not make extensive factual findings.
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On January 23, 2007, defendant filed a motion to dismiss the second amended complaint. (Doc. 84). Plaintiffs filed a brief in opposition to the motion to dismiss and a motion for summary judgment on February 12, 2007. (Doc. 106). On February 22, 2007, we held a pretrial conference where we indicated that we would consolidate the motion to dismiss and the motion for summary judgment into the trial. Defendant filed a memorandum in opposition to the summary judgment motion on March 2, 2007. (Doc. 150).
The court held a hearing on the preliminary injunction motion from March 12, 2007 through March 22, 2007. We notified the parties that this hearing would be the final trial on the injunctive matter. See FED. R. CIV. PRO. 65(a)(2)(“Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.”). After the completion of the trial transcript on April 20, 2007, the parties submitted their post-trial briefs on May 14, 2007. (Doc. 218, 219). The matter is thus ripe for disposition. Jurisdiction
As this case is brought pursuant to federal statues and the federal
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constitution, we have jurisdiction pursuant to 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). We have authority to issue a declaratory judgment under 28 U.S.C. § 2201 (explaining that “any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration[.]”). We have supplemental jurisdiction over the plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. Discussion
Before we address the merits of plaintiffs’ complaint we must address several preliminary matters. These matters include standing, the propriety of several plaintiffs proceeding anonymously and which version of the ordinances should be addressed.
I. Preliminary issues A. Standing
Defendant argues that all plaintiffs lack standing to bring this lawsuit. Courts have identified two types of standing, constitutional and prudential, and defendant contends that plaintiffs fail to meet the requirements of
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either type. We will address each in turn. 1. Constitutional Standing “No principle is more fundamental to the judiciary’s proper role in our
system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 37 (1976). Standing provides “justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III.” Warth v. Seldin, 422 U.S. 490, 498 (1975). The Supreme Court has held that “the standing question in its Art. III aspect is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.’” Simon, 426 U.S. at 38 (quoting Warth, 422 U.S. at 498-99). The Court has described three elements that comprise the “irreducable constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must first “have suffered an ‘injury in fact’–an invasion of a legally protected interest which is (a) concrete and particularized [citations omitted] and (b) ‘actual or imminent, not ‘conjectural or hypothetical.’” Id. (quoting Los Angeles v. Lyons, 461
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U.S. 95, 102 (1983)). The injury suffered by the plaintiff must also be causally connected to the conduct of which the plaintiff complains: “the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court.’” Id. (quoting Simon, 426 U.S. at 41-42. Finally, “it must be ‘likely’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. (quoting id. at 38, 43).
“The party invoking federal jurisdiction bears the burden” of proof to demonstrate standing. Lujan, 504 U.S. at 561. The level of proof required of a party conforms to “the manner and degree of evidence required at the successive stages of the litigation.” Id. In the initial stage of the litigation, when the plaintiff need only meet the pleading standards, “general factual allegations of injury resulting from the defendant’s conduct may suffice.” Id. When the issue in question is summary judgment, though, “the plaintiff can no longer rest on such ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the summary judgment motion will be taken as true.” Id. (quoting FED. R. CIV. P. 56(e)). At trial, “those facts (if controverted) must be ‘supported adequately by the evidence adduced at trial.’” Id. (quoting Gladstone,
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Realtors v. Village of Bellwood, 441 U.S. 91, 115 n.31 (1979)). a. Named Plaintiffs i. Landlord Plaintiffs
Defendant argues that the landlord plaintiffs lack standing to bring this suit.6 Those plaintiffs, defendant claims, did not suffer an injury caused by the ordinances which this court could redress. Plaintiff Pedro Lozano, a native of Columbia who is a legal resident of the United States, lives in Hazleton. (N. T. 3/12/07 at 161, 163). Lozano and his wife purchased a two-family home in Hazleton in April 2005. (Id. at 164). They planned to rent half of the house to “have assistance with the mortgage.” (Id. at 164). This rental property, Lozano insists, forms the basis for his standing in this case. The defendant disputes this assertion.
We reject the defendant’s position and find that Lozano has standing to sue regarding both the tenant registration and the employer portions of Hazleton’s ordinances. First, Lozano has suffered an injury that is both concrete and particular and actual or imminent. Lozano rented the property
6At the time the plaintiff filed the lawsuit, the defendant challenged the standing of the two named landlord plaintiffs. One of those plaintiffs has been dropped from the suit, but the defendant’s arguments nevertheless apply to the remaining landlord plaintiff.
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immediately after signing the mortgage, and continued to do so until the City passed the ordinances.7 (Id. at 165). Once the ordinances passed, Lozano had more difficulty renting the property, “and the tenants that were there ran away.” (Id.). His tenants left after he informed them that they may have to obtain a permit from the City to rent the apartment. (Id. at 167). After the ordinances passed, Lozano “sporadically” rented the property, but the house was not occupied “continuously.” (Id. at 168). He showed the apartment to at least five or six people, who seemed interested in the property but failed to complete the transaction. (Id.). Lozano’s difficulties in renting the apartment constitute an injury.
Lozano also had hired others to do more complicated repairs on his property, such as roofing. (Id. at 175). He anticipated hiring a contractor to repair his roof sometime in the future. (Id.). He would thus be forced, as an employer of labor, to comply with the employer requirements of the
7Cross-examination revealed that Lozano had not made a profit on his rental of the property in 2005, and that the apartment may not have been occupied continually during that period. (See N. T. 3/15/07 at 177181). We note, however, that Lozano testified that at least part of his purpose for renting the apartment was to assist with his mortgage payments. In that sense, the purpose of the investment appears to extend beyond simply making money, and we should not evaluate standing based solely on previous profitability. Defendant has demonstrated, however, that renting the apartment may not have been as easy as Lozano claimed.
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IIRA, adding a burden of time and expense to his operations. Therefore, he has suffered an actual or imminent injury sufficient to meet the constitutional standing requirements. See Pennell v. City of San Jose, 485 U.S. 1, 8 (1988) (finding that landlords who challenged zoning requirements related to hardship tenants had standing because “[t]he likelihood of enforcement, with the concomitant probability that a landlord’s rent will be reduced below what he or she would otherwise be able to obtain in the absence of the ordinances, is a sufficient threat of actual injury to satisfy Art. III’s requirement that ‘a plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.’”) (quoting Babbitt v. Farm Workers, 422 U.S. 289, 298 (1979)).8
We disagree with the defendant that these injuries cannot be recognized by the law because they constitute a complaint about an inability to rent to illegal immigrants. The plaintiffs testified that they were unaware of the immigration status of their renters. No evidence, therefore, indicates that the renters they lost were illegal immigrants. Such tenants may have been legal residents who did not desire to live in a town that
8We note that our database incorrectly cited Babbitt v. Farm Workers as 422 U.S. 289. The correct citation for that case is 442 U.S. 289 (1979).
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appeared (to them) to seek to exclude Spanish-speaking residents. Such tenants may also have concluded that they did not want to register with the town and provide private information to the City as a condition of residing there. Perhaps they found the fees required for a permit onerous. In any case, we will not assume that the renters plaintiff lost were necessarily illegal immigrants.
Further, Lozano’s injuries are caused by the defendant’s ordinances. Potential renters’ concerns with the registration requirements of the ordinances and the attitude towards immigrants their passage conveyed undermined Lozano’s ability to secure tenants. Lozano had informed the prospective tenants that the ordinance’s registration requirements mandated that they bring immigration documents to the City, and those prospective renters never returned. (N. T. 3/12/07 at 168). In addition, complying with the ordinances requires action that will cause him time and expense and expose Lozano to potential adverse enforcement actions. If the ordinances did not exist, the landlord plaintiffs would not be required to follow these procedures. The injury Lozano claims is therefore caused by the defendant’s actions. See Lujan, 504 U.S. at 561-62 (holding that “[w]hen the suit is one challenging the legality of government action or
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inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or foregone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will address it.”).
Redressabiltiy is also apparent: if this court declares the ordinances unconstitutional and enjoins their enforcement, Lozano and the other landlord plaintiffs will not be forced to comply with them. As a result, those plaintiffs will not be required to examine and ensure the immigration status of their tenants, facing the possibility of fines and other penalties from the City for failing to do so. The burdens they face from such compliance will not exist, and their injury will be eliminated.
ii. Rosa and Luis Lechuga Defendant also challenges the standing of the plaintiffs Rosa and Luis Lechuga, who when they filed suit were business owners in the City. Plaintiff Jose Lechuga, a resident of Hazleton, had lived in the City of Hazleton with his wife Rosa and their five children for sixteen years. (N. T. 3/12/07 at 118). When he came originally to the United States from
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Mexico in 1982, he did not have legal authorization to do so, but he is now a legal permanent resident of the country. (Id. at 118-19). He and his wife used a 1980s federal amnesty program to adjust their immigration status. (Id. at 120).
Lechuga opened a store, Lechuga’s Mexican Products, in 2000. (Id. at 128). The store sold “[t]ortillas, cheese, chorizo, canned chiles, different canned products, [and] also sodas from Mexico.” (Id.). His family worked in the store with him, including his wife and children. (Id. at 129). The business was not always profitable; in 2005 the Lechugas “didn’t have much of a profit, but . . . [were] still in business.” (Id. at 130). Business improved in 2006, but began decreasing after the City passed the ordinances. (Id. at 131). By early 2007, business had become “terrible,” and in February 2007, Lechuga closed the store. (Id.).
Lechuga opened another business, a restaurant called Langria Lechuga, in February 2006. (Id. at 132). Lechuga’s wife Rosa operated that business, doing the cooking. (Id.). When he found the time, Lechuga helped by serving, taking orders, washing dishes and cleaning. (Id.). This business was no more successful than the Lechugas’ store. (Id. at 133).
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Lechuga blamed his lack of business on the City’s activities.9 (Id.). A police car was often parked across the street from the restaurant, and after a police officer paid a visit, “people began to comment that the police [were] there to take the clients away when they came to eat.” (Id. at 133). This made potential customers feel “intimidated, and that is the reason why we lost our business.”10 (Id.). In neither of these businesses did Lechuga employ anyone; he testified that he had never had any plans to employ anyone at either store. (Id. at 150-51).
Plaintiffs have suffered an injury here in the loss of business they experienced after the ordinances passed. To experience an injury sufficient to create standing, a plaintiff need not allege a large quantum of harm. The Third Circuit Court of Appeals, in Belitskus v. Pizzingrilli, 343 F.3d 632 (3d Cir. 2003), found that a plaintiff who complained that he could not afford a $100 filing fee to campaign for public office had stated an injury sufficient to confer standing. Id. at 640. Plaintiff had only $50 in
9Rosa Lechuga testified that the restaurant opened in February 2006, and had been profitable in its first week: “Things were going very well, and then when the ordinances were enacted, my business began to suffer.” (N. T. 3/12/07 at 154-55).
10On cross examination, Lechuga attributed his loss of business to the ordinances.” (N. T. 3/12/07 at 138).
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campaign funds and “paying the required fee would have completely depleted his campaign funds and required him to delve into his limited personal assets.” Id. (holding: “‘All that the Article III’s injury-in-fact element requires is ‘an identifiable trifle’ of harm’”) (quoting Joint Stock Soc’y v. UDV N. Am., Inc., 266 F.3d 164, 177 (3d Cir. 2001) (citation omitted)). The injury of which plaintiffs complain, like the potential injury in Belitskus, is one that pushed their financial condition from bad to worse, contributing ultimately to disaster. Such an injury surely constitutes an “identifiable trifle.”
The Lechuga’s injury was caused at least in part by the defendant’s ordinances. While other factors apparently contributed to the decline of the Lechuga’s businesses, we find that they have presented evidence that Hazleton’s approval of the ordinances contributed at least in part to the decline of customers for Lechuga’s store and restaraunt, and therefore, the injury they suffered is at least fairly traceable to the defendant.
Our decision on the constitutionality of the ordinances would not, however, allow the Lechugas redress from their injuries. Their businesses, unfortunately, have now closed. They did not testify that they planned to reopen their businesses pending resolution of this lawsuit, and the plaintiffs
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do not seek monetary damages from the defendant.11 Accordingly, no action by this court would provide relief to the Lechugas, and they lack standing to sue. The Lechuga’s lack of standing, however, does not mean that other business-owner plaintiffs, who will be forced to comply with the terms of the ordinances in order to operate their business in Hazleton, lack standing to sue, as we explain below.
b. Organizational Plaintiffs Defendant argues that the organizational plaintiffs–Casa Dominicana of Hazleton, Inc., the Hazleton Hispanic Business Association and the Pennsylvania Statewide Latino Coalition–all lack standing. Defendant argues that none of the individual members of these associations have standing, and that the organizations cannot claim representational standing. Defendant also contends that none of the organizational plaintiffs can allege a concrete injury to their own interests, because any membership loss experienced by the organizations since the passage of the ordinances is connected by only a speculative thread to the ordinances
11Indeed, the Lechugas testified that they had decided to move out of state. See (N. T. 3/12/07 at 136-37).
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themselves.12 Any claim of public hostility to the organizations generated
by the ordinances is too generalized, defendant claims, to constitute an
injury in fact. Defendant also contends that plaintiffs have not proved any
causal connection between the ordinances and the injuries suffered by the
plaintiff organizations. Finally, defendant insists that an injunction against
the ordinances would not be likely to redress the injuries plaintiffs claim.
An organization seeking to participate in a lawsuit must demonstrate
that it has standing to sue. While an organization can have standing in its
own right, “an association may have standing solely as the representative
of its members.” Warden, 422 U.S. at 511. Still, such standing “does not
eliminate or attenuate the constitutional requirement of a case or
12Defendant claims that “[t]he loss of membership is not an injury to a legally cognizable interest, where maintaining desired levels of membership requires continuing membership of aliens unlawfully present in the United States.” (Memorandum of Law in Support of Defendant’s Motion to Dismiss (Doc. 87) at 22). Plaintiffs’ claim is not that the ordinances, by attempting to exclude illegal aliens from Hazleton, have harmed the organizations’ ability to recruit undocumented people to their ranks. We will not assume, as defendant appears to do, that membership in such organizations is populated in large numbers by people without legal authorization to remain in the United States. Indeed, the problem highlighted by these organizations–that the ordinances have created a climate of fear which causes people to avoid association with groups that express interest in the rights of immigrants and Latinos–is partly reflected in defendant’s claims here, which seem to associate Latino political activity with illegality.
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controversy.” Id. Courts have found that an organization can have “representational standing” when “‘1) the organization’s members would have standing to sue on their own, 2) the interests the organization seeks to protect are germane to its purpose, and 3) neither the claim asserted nor the relief requested requires individual participation by its members.’” Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 70 (3d Cir. 1990) (quoting Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333 (1977)).
Defendant challenges the standing of the Hazleton Hispanic Business Association (“HHBA”). Rudolfo Espinal, the president of the HHBA, testified at trial as a representative of that organization. (N. T. 3/13/07 at 77). Espinal testified that the HHBA, formed in August 2006, is “a group of Hispanic businessowners that got together in the City of Hazleton to work towards common goals,” especially to “promote the interest of our business members and to project the image of the Hispanic business community and to also help the community any way that we can.” (Id. at 77-78). Most of the businesses in the association are located in Hazleton, though some operate in the neighboring town of West Hazleton. (Id. at 78). The association promoted access to health insurance and
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accounting services, but also aimed to protest the anti-illegal immigration ordinances that the City had proposed. (Id. at 79). Twenty-seven members joined the organization. (Id. at 80). The passage of the ordinances harmed organization members; some lost their businesses or a significant portion of their patrons, and many members abandoned plans to expand their businesses.13 (Id. at 81). The organization also lost members, as “some of [them] didn’t want to be part of the organization anymore.” (Id. at 83). The HHBA lost resources, as members were required to pay $75 in dues and fewer dues-paying members remained. (Id. at 84).
Espinal himself lost business as a result of the ordinances. Espinal owned three rental properties in the City of Hazleton. (Id. at 90). At the time of trial, two of those units were undergoing repairs, and one was occupied. (Id.) That building consisted of four apartment units. (Id.). Espinal lived in one of those units and rented out two others. (Id.). The fourth sat vacant. (Id.). Espinal testified that after the City passed its
13Espinal testified that “Royal Prestige had to close and move out of the City. Isabella’s Gift Shop had complained about losing revenue, and basically I would say all of my members have complained. People are talking about that they have lost sales maybe between 15 or 50 percent of what they used to have before.” (N.T. 3/13/07 at 82).
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ordinances “it is harder to rent apartments now, and besides that, I think that I lost tenants, potential tenants because of the ordinance.” (Id. at 9293). After showing the apartment to prospective tenants and discussing rental prices, those tenants had indicated a desire to rent the unit. (Id. at 93). Following a discussion with these prospective tenants of the registration requirements under the ordinances, however, Espinal “didn’t hear from them.” (Id.). A similar process repeated itself with several other prospective renters. (Id. at 95). Espinal planned to offer his other properties for rent, but needed to perform repairs such as painting, carpeting and electrical work before doing so. (Id. at 96). Espinal intended to perform some of that work himself, but would also hire workers to perform “whatever area I don’t feel comfortable with.” (Id. at 96). As president of the HHBA, Espinal knew of other organization members who were landlords in Hazleton. (Id. at 98). These members had the same concerns for the effect of the ordinances on leasing their apartments. (Id.). Espinal also testified that he understood the ordinances to require that he obtain information on immigration status from tenants that he normally would not seek.14 He had no “training in evaluating a person’s immigration
14Espinal testified that “when you rent an apartment, you ask people about their ability to pay the rent, if they are working or not, that kind of
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status or their documents.” (Id. at 102). The HHBA has representational standing in this case. Individual
business owners who are members of the HHBA have standing to sue. Espinal, like Lozano, would have standing to sue as a landlord and as an employer. Espinal also testified that members of the HHBA would be required to comply with the procedures required for employers under the IIRA. They would then face onerous paperwork requirements created by the ordinances for maintaining their licenses. These injuries would be caused by the ordinances and could be redressed by enjoining their enforcement. Since the HHBA is designed to protect the interests of Hispanic business owners in the city and the lawsuit attacks city-created regulations of business, the organization is seeking to protect interests germane to its purpose. Finally, the claim asserted here by the organization attacks the ordinances on their face; such an attack does not require the factual specificity or individual experience required of a lawsuit over a specific event. Accordingly, the participation of individual members is not required for the court to address adequately the issues raised by the
stuff. I don’t think you should ask about their family composition or their religion or anything like that or their immigration status.” (N.T. 3/13/07 at 99).
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lawsuit. Defendant argues that the business-owner plaintiffs do not face an
“actual or imminent risk” that the city will enforce the IIRA ordinance against them because these plaintiffs do not know if they have any illegal alien employees and cannot say they definitely will hire such employees in the future. In any case, defendant insists, plaintiffs have no legal right to employ illegal aliens and cannot have an injury from an ordinance that prevents such action. Because the law operates only prospectively, plaintiffs can suffer an injury from the ordinance only if they hire an unauthorized worker according to the defendant. Since no plaintiff has declared an intention to hire an undocumented alien, defendant contends, the plaintiffs have no injury. Plaintiffs who claim to have suffered a loss of business commerce as a result of the ordinances also cannot demonstrate an injury, defendant insists, since “[n]o-one has a legally cognizable interest in profiting from the continuing sales of products to aliens unlawfully present in the United States.” (Memorandum of law in Support of Defendant’s Motion to Dismiss (Doc. 87) at 18). Defendant further contends that the plaintiffs cannot prove that the alleged injuries to their businesses were caused by the ordinances and cannot meet the causation
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requirement for standing. We reject this argument. The business-owner plaintiffs do not
complain that the ordinances limit their ability to sell products to and hire illegal aliens. They complain that the City’s ordinances damage them by hindering the operation of their businesses and by requiring them to seek immigration information from employees in a way that violates federal law. Their injury comes in the operation and requirements of the ordinances, not in their inability to sell, hire or rent to undocumented persons.
Defendant also challenges the standing to sue of Casa Dominicana de Hazleton (“Casa”). At trial Manuel Saldana, President of the organization, testified as a representative of the organization. (See N.T. 3/14/07 at 7). Casa is a not-for-profit corporation founded in August 2005. (Id.). The organization’s offices are located in Hazleton. (Id. at 10). Around fifty Casa members live in Hazleton. (Id. at 12). Twenty to twentythree members may lack legal authorization to reside in the United States.15 (Id. at 21). Casa’s purpose is “[t]o offer assistance, orientation,
15Saldana clarified this figure on re-direct: “I say 23 members, approximately . . . I would have to go over each individual’s case to see what their actual [immigration] status is, because many individuals have expired or lost documents or are in the process of obtaining documents. Those are the individuals that I refer to as illegals.” (N.T. at 3/14/07 at 29).
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education, keep the unity within the community and unify the ties between the Hazleton community and the Latin community.” (Id. at 7). Members of the organization included “[i]ndividuals, people renting, employees, different businesses, owners of businesses, drivers, chauffeurs,” “a crosssection of the Hazleton community[.]” (Id. at 9-10). To its members, the organization provides services to help with orientation and education. (Id. at 8). Casa also sponsors concerts and raises money to assist members through periods of financial difficulty. (Id.). The organization also assists members with problems in their immigration status by directing them to attorneys and providing assistance through “orientation.” (Id. at 8-9).
Casa members petitioned the organization to participate in the instant lawsuit. (Id. at 11). They feared the impact of the ordinances. (Id. at 14). Members, both legal and illegal residents, expressed “fear of not being able to obtain housing at a moment when it was needed” as well as concerns about having to produce identification at work and the effect of the ordinances on their children at school.16 (Id.). The organization lost
16Saldana testified that “[t]he concern was not only from the illegal residents, but also from the legal residents. An individual that has a document or visa that is expired, according to law, it is no longer valid. However, the individual is legally registered within the country, and the problem of receiving a valid document once again takes at least a month’s time, the same way as if you lose a document, and that is the case with
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thirty-five members in August 2006, after the City passed its ordinances. (Id. at 17). One member who left the organization decided to leave Hazleton because “he found that the measures that were about to be approved were hateful and uncomfortable for him.” (Id. at 18). This loss of membership, Saldana testified, harmed the organization because it diminished the number of volunteers available to carry out the group’s activities and limited the number of services Casa could offer members. (Id. at 18-19).
Casa has representational standing. Members of the organization are both tenants and employees in Hazleton, and would be required to comply with the terms of the ordinances. They would have to participate in the rental registration program or lose their housing in the city. They would have to supply their employers with immigration information or face losing their jobs. Those injuries for individual members would be fairly traceable to the ordinances, which institute the registration and employment regulations. If we were to enjoin enforcement of the ordinances as the plaintiffs here seek, we could redress the Casa’s injuries in this case.
some individuals who enter the country legally, and they are going through the process of legalizing themselves. They have a work permit, however, they don’t have residency.” (N.T. 3/14/07 at 15).
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Casa’s purpose, to promote the interests of Dominicans in their relationships in the Hazleton community, would be served by this litigation. Finally, since this case consists of a facial challenge to the City’s ordinances, the interests of the litigation can be advanced without requiring the participation of individual plaintiffs. Casa has representational standing for its members.
The defendant likewise challenges the standing to sue of plaintiff Pennsylvania Statewide Latino Coalition (“PSLC”). Jose Molina testified as representative of the PSLC during the trial in this case. PSLC “is a nonprofit organization that promotes social, financial, political and cultural development of the Latino community in the State of Pennsylvania.” (N.T. 3/13/07 at 20). The organization’s goal “is to have a network of Latinos” addressing the interests of Latino communities statewide. (Id. at 21). The organization was founded by volunteers from across the state. (Id.). Of the 6,000 statewide PSLC members approximately twenty reside in Hazleton. (Id. at 52). Among the activities the PSLC has engaged in are lawsuits protesting discriminatory hiring practices for police officers and teachers, the promotion of professional certification for nurses and teachers from Puerto Rico, and promotion of voter registration and voters’
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rights. (Id. at 23). The organization also promotes education for Latinos in
the state. (Id. at 24). Before engaging in activities like litigation, PSLC
representatives “sit down with residents and people that are affected.”
(Id.). Such conversations are often initiated by these people, who reach
out to the PSLC for help. (Id.).
The PSLC became involved in the Hazleton litigation partly as a
result of requests from Hazleton community activists. (Id. at 25). On July
30, 2006, the PSLC organized a meeting in Hazleton to discuss the
ordinances. (Id. at 26). Between fifty and sixty people, including
“homeowners . . . business owners . . . [and] landlords,” attended this
meeting. (Id. at 27). The fears that attendees at this meeting expressed
to Molina convinced him that the issues raised by the ordinances would affect people far beyond Hazleton’s borders.17 (Id. at 28-29). Members of
the organization who expressed these concerns included several who lived
17Molina described the feelings of residents: “They had people that were in fear because the police were stopping them on the sidewalks or stopping them on the driveway and asking for documentation just because of their looks. We have businessowners saying, we have bricks through our [windows], and we can’t identify who [threw the brick], but obviously it was because of the environment where we are living, where people think that it is okay to show that Latinos are not welcome here. There was all kind of fear, and what is going to happen with our sons. Should we still send them to school? What is going to happen to our church? Should we still go to our church?” (N.T. 3/13/07 at 28).
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in Hazleton and who “decided to join and become members right away in the thinking that this is something that may help us, because we want to stay in this community.” (Id. at 30).18 Among these members were Anna Arias, who rented out half of her home and “the Rubio family,” who owned a gift shop. (Id. at 65-66). Another member owned a barber shop, and Molina pointed to “a few more” members who were business owners. (Id. at 66).
The PSLC has representational standing. Members of the organization include residents of Hazleton who face actual or imminent injury from the ordinances because they are landlords or business owners who will be required to comply with the ordinances’ terms. They will have to register if they intend to rent apartments, providing personal and potentially confidential information to the City. If they are employees, they will also have to provide information about their immigration status. Similarly, members who are employers will be burdened with IIRA’s requirements and face liability if challenged on their employment practices. Accordingly, these plaintiffs have or will suffer an imminent injury from the ordinances. These injuries, since they are or would be caused by the
18Jose Lechuga is a member of the PSLC. (N. T. 3/12/07 at 120-21). 36

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operation of the ordinances, are fairly traceable to the defendant’s actions. Finally, an injunction would prevent the plaintiffs from being required
to comply with the terms of the ordinances, and would thus provide redress. Participation in the litigation would serve the purposes of the PSLC, since the social and financial interests of Latinos in Hazleton are threatened by the terms of the ordinances and the PSLC’s involvement in the litigation seeks to protect those interests. In addition, since this is a challenge to ordinances that involves constitutional concerns rather than litigation about a particular event or interest, the individual participation of the represented members is not required to insure that their interests are protected.
c. Tenant Plaintiffs Defendant argues that the plaintiffs who are tenants in Hazleton, all of whom attempt to proceed anonymously, lack standing to sue. These plaintiffs, defendant contends, ground their claim in a belief that they may not obtain occupancy permits from the City and will, therefore, be required to leave Hazleton. Defendant insists that this injury is not one which the court can address. Those plaintiffs who are not lawfully present in the United States do not have a legal interest in residing in Hazleton or
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anywhere in the United States and cannot claim an injury from ordinances that seek to prevent their residence in the City. Defendant also argues that those tenant plaintiffs who are lawfully present in the United States cannot show that they will likely suffer any injury-in-fact. IIRA, after all, will not cause them to be removed from the City or be denied an occupancy permit. If a tenant can show proof of legal residency or citizenship, that tenant must receive a rental permit and will suffer no injury from the ordinance. Even if a resident filed a complaint against a legal resident, such a plaintiff would not be injured: “an alien lawfully present in the United States can have no reasonable expectation that the federal government would regard him as unlawfully present.” (Memorandum of Law in Support of Defendant’s Motion to Dismiss (Doc. 87) at 20).
Plaintiff John Doe 1 testified by deposition on December 8, 2006. (See Doc. 189, Dep. John Doe 1). He has lived in Hazleton for six years, but was born in Mexico. (Id. at 12). John Doe 1 is not a United States citizen or legal permanent resident, though his father filed a document with the federal government seeking to change his immigration status. (Id. at 16, 19). He testified that he was unsure of his immigration status, though he thought that the federal government could order him removed from the
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country. (Id. at 22). John Doe 1 was also unsure whether he had legal authorization to work. (Id.). When he began working for his present employer, John Doe 1 presented identification that included an international driver’s license and a Social Security card. (Id. at 27). John Doe 1 was forced to vacate one apartment after a landlord told him he would “have to move” after passage of the Hazleton ordinances. (Id. at 43). Though John Doe 1 thought he may be able to get a residency permit, his landlord told him “maybe, but he didn’t want to take the risk” of having to pay a fine. (Id. at 44). John Doe 1 felt that his landlord wished he could stay in the apartment “because I’m a good tenant and we’re family, but when he saw the ordinance, he was afraid.” (Id. at 53).
John Doe 3 likewise testified by deposition on December 8, 2006. (See Doc. 190, Dep. John Doe 3). He was born in Mexico and is a citizen of that country. (Id. at 17). He is a tenant in Hazleton, where he lives with his wife and two daughters. (Id. at 12-13). Joe Doe 3 is not a lawful permanent resident of the United States. (Id. at 24). He understands his immigration status to be “illegal.” (Id. at 26). If this court were to allow the Hazleton ordinances to go into effect, John Doe 3 fears that he will be evicted from his residence. (Id. at 31).
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Jane Doe 5 testified by deposition on January 26, 2007. (See Doc. 191, Dep. Jane Doe 5). Jane Doe 5 rented an apartment in Hazleton, the city where she had lived for the past five years. (Id. at 12-13). She was born in Columbia, and is not a United States citizen or lawful permanent resident. (Id. at 14-15, 56). She fears apprehension and removal by United States authorities if the City enforces its ordinances. (Id. at 56). Jane Doe 5 does not want to lose her residence, and for that reason hopes the ordinance will not be enforced. (Id. at 61-62). She did not want to speak to her landlord about the registration ordinance because she feared that the landlord would feel he had to ask her family to vacate their home. (Id. at 74). If the ordinances were enforced, Jane Doe 5 fears that she would have trouble finding a place to live in the City. (Id. at 81).
John Doe 7 testified by deposition on January 26, 2007. (See Doc. 192, Dep. John Doe 7). Like his wife, Jane Doe 5, John Doe 7 was born in Columbia. (Id. at 9). He is not a United States citizen or lawful permanent resident. (Id. at 10). Trained as an architect, Doe 7 came to the United States in 2001. (Id.). For the previous seven or eight months, Doe had worked as a gardener. (Id. at 12). He and his wife lived in a rented home in Hazleton. (Id. at 14-15). John Doe 7 testified that he had not spoken
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frequently with his landlord out of fear that “because of the ordinances, he’s going to ask them to leave the house, evict them from the house.” (Id. at 58). That would require him “to find another house and it’s going to be so difficult” to do so. (Id.). He fears he would be forced to leave Hazleton. (Id.).
These plaintiffs claim that the rental registration requirements and harboring provisions of IIRA violate their rights under federal law and the United States Constitution, including their right to privacy. We find that the anonymous plaintiffs have standing to challenge Hazleton’s ordinances. They have suffered concrete and particularized injuries which are actual or imminent. These plaintiffs have either been forced from the property which they had rented or had been told by their landlords that they would have to be evicted due to the ordinances. The loss (or imminent loss) of one’s apartment and the inability to rent a new one is certainly an actual and concrete injury. See Babbitt v. United Farm Workers, 442 U.S. 289, 298 (1979) (holding that “[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement [citation omitted] [b]ut [one] does not have to await the consummation of threatened injury to obtain preventive
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relief. If the injury is certainly impending that is enough.”). Similarly, plaintiffs would suffer an injury to their privacy rights if forced to turn over private information in order to gain a rental permit. Such an injury is imminent, as plaintiffs intend to remain in Hazleton and would be required to obey the ordinance if it is enforced.
The tenant plaintiffs also meet the causation requirements of constitutional standing. But for IIRA’s requirements that plaintiffs obtain a rental permit by presenting documentation that proves their legal immigration status, plaintiffs would not face the loss of their apartments or the exposure of potentially private information. Plaintiffs face eviction by their landlords only because of IIRA’s harboring provisions.
Plaintiffs’ injuries would also be redressed by a favorable decision in this case. If plaintiffs prevail here, this court will issue a permanent injunction against the enforcement of the ordinances that has caused their injuries. The tenant plaintiffs thus have constitutional standing to proceed in this case.
We reject defendant’s argument that these plaintiffs lack standing because they do not have authorization to reside in the United States and have not suffered an injury for which they could gain relief. First, the
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defendant appears to argue that because plaintiffs would be denied residency permits under the Hazleton ordinance they lack authorization to reside anywhere in the United States. No court has made such a determination for any of these plaintiffs. No evidence has been presented that removal orders exist for any of the anonymous tenant plaintiffs. None has ever been arrested, and none testified they were being sought by immigration authorities. In other words, as of the time of their depositions, none of these plaintiffs would have been forced by any determination of the federal government to leave the City. To find otherwise at this point would be to ignore every principle of due process. The tautology of this argument is likewise apparent: defendant contends that plaintiff would not be able to obtain a residency permit in the city and therefore cannot complain about being required to do so.
This argument appears to be a species of argument often heard in recent discussions of the national immigration issue: because illegal aliens broke the law to enter this country, they should not have any legal recourse when rights due them under the federal constitution or federal law are violated. We cannot say clearly enough that persons who enter this country without legal authorization are not stripped immediately of all their
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rights because of this single illegal act.19 The Fourteenth Amendment to
the United States Constitution provides that no State may “deprive any
person of life, liberty or property, without due process of law; nor deny any
person within its jurisdiction the equal protection of the laws.” U.S. CONST.
amend. XIV § 1. (emphasis added). The United States Supreme Court has
19Fundamental to the American legal tradition is the notion that those accused of and convicted of crimes possess fundamental rights which are not abrogated simply because of such person’s alleged behavior. A person accused of a crime is entitled, among other rights, to be free of unreasonable search and seizure; to the presumption of innocence; to the proof of her guilt beyond a reasonable doubt; to minimally competent legal representation; to access to any potentially exculpatory evidence; to be free of cruel and unusual punishment; and to seek a writ of habeas corpus. See, e.g., U.S. CONST. amends. IV, V, VIII; Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). Strickland v. Washington, 466 U.S. 668, 685 (1984) (holding that “[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.”). We note, however, that an alien subjected to a deportation hearing “whether for crime or for other reasons, [is] protected only by the procedural requirements of the Due Process Clause.” DANIEL KANSTROOM, United States Immigration Policy at the Millenium: Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1889, 1896 (2000). The contemporary concern with and opprobrium towards undocumented aliens does not lead us to the conclusion that those who violate the laws to enter the United States can be subject without protest to any procedure or legislation, no matter how violative of the rights to which those persons would normally be entitled as persons in the United States. Our legal system is designed to provide rights and exact justice simultaneously.
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consistently interpreted this provision to apply to all people present in the United States, whether they were born here, immigrated here through legal means, or violated federal law to enter the country. See Plyler, 457 U.S. at 210 (holding that “[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”). The anonymous plaintiffs are persons, and they seek to vindicate rights guaranteed them under the federal constitution. They have standing to sue in this court.
2. Prudential Standing Having found that all plaintiffs possess constitutional standing, we now address defendant’s argument that plaintiffs lack prudential standing. Even if a court finds that plaintiffs meet the “threshold” requirements of constitutional standing, that court may nevertheless “impose” “a variety of prudential limits” on standing. Wright, Miller and Cooper, FEDERAL PRACTICE AND PROCEDURE at § 3531. Courts have concluded that “the aim of this form of judicial self-governance is to determine whether the plaintiff is ‘a proper party to invoke judicial resolution of the dispute and the
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exercise of the court’s remedial powers.’” Mariana v. Fisher, 338 F.3d 189, 204 (3d Cir. 2003) (quoting Oxford Assocs. v. Waste Sys. Auth. of E. Montgomery County, 271 F.3d 140, 145 (3d Cir. 2001)). Courts invoking prudential standing analysis seek “‘to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.’” Davis v. Philadelphia Housing Auth., 121 F.3d 92, 96 (3d Cir. 1997) (quoting Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir. 1994)). The Third Circuit Court of Appeals has articulated a three-part test for prudential standing: 1) “a litigant [must] assert his or her own legal interests rather than those of a third party”; 2) “courts [should] refrain from adjudicating abstract questions of wide public significance amounting to generalized grievances”; and 3) “a plaintiff must demonstrate that his or her interests are arguably within the ‘zone of interests’ that are intended to be protected by the statute, rule, or constitutional provision on which the claim is based.” Mariana, 338 F.3d at 205; see also Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (holding that “we have explained that prudential standing encompasses ‘the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication
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of generalized grievances more appropriately addressed in the
representative branches, and the requirement that a plaintiff’s complaint
fall within the zone of interests protected by the law invoked.’”) (quoting
Allen v. Wright, 468 U.S. 737, 751 (1984)).
Defendant argues that none of the plaintiffs meet the requirements of
prudential standing because they do not fall within the “zone of interests” of the Immigration and Nationality Act.20 We note, first, that defendant faces
a difficult burden to establish that these plaintiffs lack prudential standing,
as they do not seek to assert the rights of others or to challenge the way
that an agency has applied a particular law, but instead seek to challenge
ordinances which they claim would violate their rights under federal and state law.21 The United States Supreme Court has declared that “[w]here a
20We note that the defendant does not address the two other elements required for prudential standing: 1) “a litigant [must] assert his or her own legal interests rather than those of a third party”; 2) “courts [should] refrain from adjudicating abstract questions of wide public significance amounting to generalized grievances.” Mariana, 338 F.3d at 205. We would in any case find that plaintiffs meet these requirements, since they assert their own interests or the interests of the members of their organizations and because the grievances are specific to the ordinances and their intended application in Hazleton.
21The requirements of prudential standing and the zone of interests test in the Third Circuit also mean that plaintiffs’ task here is not particularly onerous. Courts use prudential standing “to ensure that only those parties who can best pursue a particular claim will gain access to the courts.”
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party champions his own rights, and where the injury alleged is a concrete
and particularized one which will be prevented or redressed by the relief
requested, the basic practical and prudential concerns underlying the
standing doctrine are generally satisfied when the constitutional requisites
are met.” Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59,
80-81 (1978).22
Defendant insists that plaintiffs fall outside of the zone of interests
protected by the statutes and constitutional provisions invoked in this
lawsuit because the Immigration and Nationality Act (“INA”) was not
Oxford Associates v. Waste Sys. Auth. Of E. Montgomery County, 271 F.3d 140, 145 (3d. Cir. 2001). In terms of the “zone of interests” test, the Third Circuit Court of Appeals has concluded that the test was “‘not meant to be especially demanding.’” Id. at 146 (quoting Davis v. Philadelphia Housing Authority, 121 F.3d , 101 (3d Cir. 1997)).
22A recent Supreme Court case that determined a plaintiff lacked prudential standing, Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1 (2004), turned on the fact that the respondent, who sued the school district and argued that a requirement that students use the phrase “under God” when reciting the Pledge of Allegiance violated the establishment clause of the First Amendment, had brought the case on behalf of a daughter who did not necessarily feel injured by the language to which her father objected. In addition, the girl’s mother–the ex-wife of the respondent–objected to the claim. Id. at 17 (holding that “it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff’s claimed standing.”).
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designed to protect “employers who unlawfully employee [sic] illegal aliens
and landlords who harbor illegal aliens.” (Memorandum of Law in Support
of Defendant’s Motion to Dismiss (Doc. 87) at 9). Accordingly, “those who
break federal immigration law by employing or harboring illegal aliens have
no standing to raise a challenge that is based on federal immigration law.”
(Id.). Similarly, illegal aliens, the defendant contends, do not fall within the
zone of interests of the INA and lack standing to raise a preemption claim
under that statute; an illegal alien, defendant insists, “does not have
standing to invoke the protection of the INA in attempting to displace a
state or local ordinance.”23 (Id. at 9).
23Implied in this argument is again the claim that people who break the laws to enter, work or reside in this country should not have access to the courts because they are “criminals” undeserving of the rights those courts seek to protect. “Illegal means illegal,” after all. Such argument, however, flies in the face of long-established principles of constitutional law, not to mention the concept of justice. All persons in the United States have rights under the Fourteenth Amendment to the United States Constitution, whether they are citizens or not. See Plyler, 457 U.S. at 210 (holding that “[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (holding that “[t]he Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial
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The prudential standing doctrine indeed requires that “a plaintiff’s grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 163 (1997); see also Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 300 (3d Cir. 2003). In this suit, plaintiffs invoke several different statutory and constitutional provisions in their numerous claims seeking to prevent enforcement of Hazleton’s ordinances. Plaintiffs, for instance, charge that the ordinances violate their constitutional privacy rights and the equal protection and due process guaranteed them under the Fourteenth Amendment. They also allege that the ordinances violate rights granted them by federal Fair Housing Act, 42 U.S. § 1981, and Pennsylvania statutory and common law. Finally, plaintiffs claim that the regulatory scheme set out under federal immigration law pre-empts Hazleton’s efforts to control the presence of illegal immigrants in the City and the ordinances violate the Supremacy Clause of the United States Constitution.
Our question, therefore, is whether these grievances fall within the
jurisdiction, without regard to any differences of race, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”).
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zone of interests protected by the various constitutional and statutory provisions invoked by the plaintiffs in raising them. This case is different from most of the federal cases that invoke the zone of interests test, since the plaintiffs do not seek to challenge any application of a particular federal law.24 See, e.g., National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998) (finding that private banks and the American Bankers Association were within the zone of interests of the Federal Credit Union Act and had standing to challenge a federal agency’s interpretation of that act’s membership restrictions); Assoc. of Data Processing Service Orgs. v. Camp, 397 U.S. 150 (1970) (finding that data processing companies were within the zone of interests of federal banking law and had standing to challenge the Comptroller of the Currency’s ruling that national banks could make data processing services available to other banks and bank customers); Arnold Tours, Inc. v. Camp, 400 U.S. 45 (1970) (finding that travel agents had standing to challenge Comptroller of
24Indeed, it appears that the “zone of interests” test should not be an issue in this case at all, since the plaintiffs here do not challenge the application of a particular provision of federal or state law, but are instead seeking to vindicate their rights against enactment of ordinances to which they are clearly subject. Litigating the “zone of interests” test in a case where the plaintiffs bring suit against ordinances aimed at them and their interests appears exceedingly pointless.
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the Currency’s ruling that banks could offer travel services). While the courts have not foreclosed application of the zone of interests test to cases that do not involve a federal agency action, such cases nevertheless involve some sort of agency action against which the plaintiffs protest. See 2 Am Jur 2d Administrative Law § 430 (arguing that “[t]he zone-of-interests test is relevant only where the action under attack is that of a government agency.”).
Here, the action against which the plaintiffs protest is a local legislative enactment which they contend violates rights guaranteed them in a variety of ways under state and federal law. Plaintiffs do not claim that the application or interpretation of a law by some state or local agency to which they have no connection is inappropriate but instead claim that their legal rights are violated by a legislative enactment aimed directly at the operation of their businesses or their ability to work or rent property in the City of Hazleton.25 Accordingly, plaintiffs arguably fall within the zone of
25In any case, federal courts have found that a challenge to a state law that argues for pre-emption based on a contrary provision of federal law does not implicate the “zone of interests” test because the lawsuit does not seek to vindicate rights secured under a particular statute, but implicates the principles protected by the Supremacy Clause of the Constitution. See Pharma. Research & Manufs. of America v. Walsh, 249 F.3d 66 (1st Cir. 2001) (holding that “[plaintiff] has not asserted an action to enforce rights under the Medicaid statute, however, but rather a
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interests of the statutes at the center of this lawsuit, and they have
prudential standing to sue.
Defendant’s use of INS v. Legalization Assistance Project of the L.A.
County Fed’n of Labor, 510 U.S. 1301 (1993), to argue that plaintiffs do not
fall within the zone of interests here is misplaced. In that case, Justice
Sandra Day O’Connor, sitting as a Circuit Justice,26 considered the then-
preemption-based challenge under the Supremacy Clause. In this type of action, it is the interests protected by the Supremacy Clause, not by the preempting statute, that are at issue.”); St. Thomas-St. John Hotel & Tourism Ass’n v. Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000) (holding that “[w]e know of no governing authority to the effect that the federal statutory provision which allegedly preempts enforcement of local legislation by conflict must confer a right on the party that argues in favor of preemption. On the contrary, a state or territorial law can be unenforceable as preempted by federal law even when the federal law secures no individual substantive rights for the party arguing preemption.”); Burgio and Compofelice, Inc. v. NYS Dep’t of Labor, 107 F.3d 1000, 1006 (2d Cir. 1997) (holding that “‘the Supremacy Clause creates an implied right of action for injunctive relief against state officers who are threatening to violate the federal Constitution or laws.’”) (quoting C. Wright, A. Miller & E. Cooper, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2d § 3566 (1984)). These cases indicate that plaintiffs’ supremacy clause challenge to local law solves any problem the plaintiffs may have with the zone of interests for their supremacy claim.
26Justice O’Connor described her role in that setting: “As a Circuit Justice dealing with an application like this, I must try to predict whether four [Supreme Court] Justices would vote to grant certiorari should the Court of Appeals affirm the District Court order without modification; try to predict whether the Court would then set the order aside; and balance the so-called ‘stay equities.’ [citation omitted]. This is always a difficult and speculative inquiry, but in this case it leads me to conclude that a stay is
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Immigration and Naturalization Service’s (“INS”) request for a stay pending
appeal of a district court’s order. Id. At issue in the litigation were the
procedures that the INS used to determine whether immigrants in the
country without legal authorization were eligible for an amnesty offered in
the 1986 Immigration Reform and Control Act (“IRCA”). Id.; see 8 U.S.C. §
1255a. The respondents were “organizations that provide legal help to
immigrants” who believed that the INS had interpreted IRCA too narrowly.
Id. Justice O’Connor noted that these respondents sought court review of
the actions of a federal agency, and that Congress “ha[d] explicitly limited
such review to claims brought by ‘person[s] suffering legal wrong[s]
because of agency action’ (not applicable to the respondent organizations
involved here) or by persons adversely affected or aggrieved by agency
action within the meaning of a relevant statute.’” Id. (citing 5 U.S.C. § 702).
Justice O’Connor found that “only in cases brought by a person whose
warranted.” Legalization Assistance Project, 510 U.S. at 1301. Because of the nature of this decision–a speculative opinion by one Supreme Court Justice sitting as a Circuit Court Justice–and the fact the decision served only to delay implementation of an order pending appeal, we do not consider that opinion as binding , but rather as persuasive authority. We find defendant’s assessment that “[t]he Supreme Court has stated [that none of the plaintiffs are within the INA’s zone of interest] with respect to the landlords and employers of illegal aliens” to overstate both Justice O’Connor’s findings and the role that her colleagues played in that decision. (Doc. 87 at 8).
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putative injuries are ‘within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint’” did a plaintiff have standing to sue over an agency decision. Id. (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 883 (1990)). The organizations, Justice O’Connor found, did not fall within the zone of interests protected by the statute because “IRCA was clearly meant to protect the interests of undocumented aliens, not the interest of organizations such as respondents.” Id. Though IRCA had assigned such organizations a role in the process of determining amnesty eligibility, “there is no indication that IRCA was in any way addressed to their interests.” Id. Accordingly, Justice O’Connor found that those organizations did not fall within the zone of interests of IRCA.
Whatever precedential value we should assign to the stay of a district court order issued by a single Supreme Court Justice sitting as a Circuit Judge, we are not persuaded that this case leads to the conclusion that plaintiffs lack prudential standing under the zone of interests test. The decision addressed the standing of advocacy groups seeking to challenge the operation of the amnesty program established under IRCA, not the standing of employers or landlords seeking to determine whether the
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federal scheme of regulating immigration preempted a local ordinance. Like most zone of interest cases, the court in this case was required to consider whether a plaintiff had standing to challenge an interpretation of a federal statute that did not directly regulate that group. Defendant’s reading of the decision to state a general proposition that plaintiffs lack standing in cases involving preemption under the INA, therefore, is far too broad. Indeed, Justice O’Connor concluded that illegal immigrants seeking to adjust their status were within the IRCA’s zone of interests. Plaintiff organizations in INS v. Legal Assistance Project had sued the federal government. Here, by contrast, plaintiffs challenge local ordinances that would directly regulate their activities as employers, employees, landlords and tenants. Justice O’Connor’s opinion is not applicable to the situation here, and does not alter our determination that plaintiffs have prudential as well as constitutional standing.
Accordingly, we find that all of the plaintiffs in this case except Jose and Rosa Lechuga have both constitutional and prudential standing, and we will deny defendant’s motion to dismiss on that point. The landlord plaintiffs have standing to challenge the provisions of the ordinances related to housing, as well as the employment restrictions. The tenant
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plaintiffs also have standing to sue over the registration provisions of the housing ordinance, as well as for alleged violation of their privacy rights. They also have standing to challenge the employment provisions of IIRA. In short, plaintiffs have proved standing sufficiently for all of their claims to proceed. B. Anonymous/Doe Plaintiffs
The defendant argues that the Doe Plaintiffs may not proceed anonymously. Federal Rule of Civil Procedure 10(a), defendant contends, requires that each complaint set forth the names of all the parties. Federal Rule of Civil Procedure 17(a) mandates that every action be prosecuted in the name of the real party in interest. These pleading requirements, defendant insists, are not satisfied by the “anonymous or generic” description provided for the anonymous parties in plaintiffs’ amended complaint. (Memorandum of Law in Opposition to Plaintiffs’ Motion for Summary Judgment (Doc. 150) at 105). Additionally, defendant insists that plaintiffs did not seek leave from the court to proceed anonymously, as required by the federal rules. Defendant also argues that the disclosure of immigration status is not a matter so highly personal and sensitive that anonymity is required to protect a plaintiff’s interest. Finally,
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defendant insists that “a court of the United States cannot recognize and
affirm any Plaintiff’s interest in evading the laws of the United States,
particularly when such laws are not challenged in the case before the
court.” (Id. at 107).27 We find no merit to the defendant’s arguments, but
27We do not find that Rule 17(a) applies to our decision of whether to allow plaintiffs to proceed using pseudonyms. The requirement that an action be “prosecuted in the name of the real party in interest” relates to attempts to ensure that those who have an interest in a legal action are actually represented in the case. This rule enshrines the principle that “the action must be brought by the person who, according to the governing substantive law, is entitled to enforce the right.” Wright and Miller, FEDERAL PRACTICE AND PROCEDURE § 1543; see Schupack v. Coveli, 512 F. Supp. 1310, 1313 (W.D. Pa. 1981) (finding that plaintiff was the “real party of interest” in the case because she “possessed legal title to the stock in question; . . . retained and paid plaintiff’s counsel in this action; and . . . plaintiff’s counsel takes his instructions solely from” her). Here, the anonymous plaintiff’s claim that they live and work in Hazleton and will be harmed by the implementation of the ordinances in question. There is no doubt that they have participated in the lawsuit and that the attorneys in their case work at least in part for them. They claim the ordinance violates their rights under the United States constitution and laws of the United States and the Commonwealth of Pennsylvania. They are certainly entitled to seek enforcement of those rights and clearly are the real parties of interest in the case. The one case to which defendant cites that connects anonymity of a plaintiff to Rule 17(a) addresses a plaintiff who used an alias in pursuing a lawsuit against prison officials, and who did not seek to proceed under a pseudonym because of concerns about the consequences of using his own name but had instead used an alias at the time of his arrest to avoid deportation for a previous criminal conviction. See Marcano v. Lombardi, No. Civ. 02-2666, 2005 WL 3500063, *4 (D. N.J. Dec. 20, 2005) (finding that “because Plaintiff never petitioned the Court to proceed under an alias, his persistence in maintaining his false identity mandates dismissal of his case). The facts are clearly different here. The plaintiff in Marcano used an alias, not a pseudonym, and did so
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we shall address them all.
As set forth above, all of the John and Jane Doe plaintiffs have an
uncertain immigration status. The Federal Rules of Civil Procedure
demand that litigants provide “the names of all the parties.” FED. R. CIV. P.
10(a). The public nature of lawsuits and the public interest inherent in the
rights vindicated in courtrooms makes open and transparent proceedings
imperative to equitable outcomes. See M.M. v. Zavaras, 139 F.3d 798,
803 (10th Cir. 1998) (holding that “[l]awsuits are public events. A plaintiff
should be permitted to proceed anonymously only in those exceptional
cases involving matters of a highly sensitive and personal nature, real
only in attempt to prevent authorities from discovering his true identity and deporting him because of a prior criminal conviction. He did not acknowledge that he was using a false name. In addition, his case had nothing to do with immigration, but was a civil rights suit based on his treatment in jail. Because plaintiff tried to fool the defendant about who he was, the court rightly concluded that the suit was not instituted in the name of the real party in interest. Here, plaintiffs are not trying to mislead the court or the defendant about who they are. They acknowledge that the pseudonyms are not their real names. We note as well that the case that defendant cites to argue that we may raise plaintiff’s failure to comply with Rule 17(a) sue sponte nowhere mentions that Rule. See Doe v. United States Dep’t of Justice, 93 F.R.D. 483 (D. Colo. 1982). Indeed, the judge in that case did not act sua sponte, but only after both parties filed motions, the plaintiff to proceed anonymously and the defendant for a more definite statement that included the name of the plaintiff. Id. at 483. Accordingly, we find that Rule 17(a) does not apply to the plaintiff’s efforts to proceed anonymously.
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danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity. The risk that a plaintiff may suffer some embarrassment is not enough.”) (quoting Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992)). Courts have long recognized, however, that the circumstances of a case, particularly where litigants may suffer extreme distress or danger from their participation in the lawsuit, may require that plaintiffs proceed without revealing their true names. Courts have found that plaintiffs could proceed anonymously because they feared that revealing their true identities would lead to physical violence, deportation, arrest in their home countries and retaliation against the plaintiffs’ families for bringing suit. Doe v. Advanced Textile Corp., 214 F.3d 1058, 1063 (9th Cir. 2000). They have also allowed children who were undocumented immigrants to proceed without revealing their true names in a suit seeking to overturn a law that prevented their access to schools in Texas. Plyler, 457 U.S. at 202. People seeking access to abortions at a time when they were generally illegal also received leave to proceed using pseudonyms. See Roe v. Wade, 410 U.S. 113 (1973). Courts have allowed those suffering from mental illness to use pseudonyms. See, e.g., Doe v. Colautti, 592 F.2d 704 (3d Cir. 1979).
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Children bringing a controversial challenge to a school-sponsored religious program were also granted anonymity in the face of threatened harm for their views. Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981).
Those federal courts which have ruled on the propriety of anonymous plaintiffs have held that “a district court must balance the need for anonymity against the general presumption that parties’ identities are public information and the risk of unfairness to the opposing party.” Advanced Textile, 214 F.3d at 1068. The Ninth Circuit Court of Appeals, for example, has noted that “we allow parties to use pseudonyms in the ‘unusual case’ when nondisclosure of the party’s identity ‘is necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment.’” Id. at 1067-68 (quoting United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981)). The Fourth Circuit Court of Appeals has similarly found that “[f]ederal courts traditionally have recognized that in some cases the general presumption of open trials–including identification of parties and witnesses by their real names–should yield in deference to sufficiently pressing needs for party or witness anonymity.” James v. Jacobson, 6 F.3d 233, 242 (4th Cir. 1993).
The Third Circuit Court of Appeals has not articulated a standard to
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weigh litigants’ efforts to proceed anonymously. Federal district courts in the Third Circuit, however, have held that “[i]n determining whether a party may proceed under a pseudonym, the public’s right of access should prevail unless the party requesting pseudonymity demonstrates that her interests in privacy or security justify pseudonymity.” Doe v. Evans, 202 F.R.D. 173, 175 (E.D. Pa. 2001). They have also articulated factors weighing in favor and against the use of pseudonyms for plaintiffs. Those factors include: “(1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant’s identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his refusal to pursue the case at the price of being publically identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives.” Doe v. Hartford Life and Accident Ins. Co., 237 F.R.D. 545, 549 (D. N.J. 2006) (quoting Doe v. Provident Life & Accident Ins. Co., 176 F.R.D. 464, 467-68 (E.D. Pa.
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1997)). Factors against use of pseudonyms are: “(1)the universal level of
public interest in access to the identities of the litigants; (2) whether,
because of the subject matter of the litigation, the status of the litigant as a
public figure, or otherwise, there is a particularly strong interest in knowing
the litigant’s identities, beyond the public’s interest which is normally
obtained; and (3) whether the opposition to pseudonym by counsel, the
public, or the press is illegitimately motivated.” Id. at 550 (quoting Id. at
468).
We find that plaintiffs are entitled to proceed anonymously in this
matter.28
28We agree with the defendant that plaintiffs should have sought formal leave of the court to proceed anonymously. Such failure is not grounds to grant a procedural default to the defendant because we addressed this issue at a preliminary stage of the litigation and no prejudice has occurred to the defendant. Early in the discovery period, plaintiffs sought a protective order from this court directing the defendant not to request information from the Doe plaintiffs that revealed their identities or immigration status. (See Motion for Protective Order (Doc. 65)). Defendant offered various reasons why such an order was inappropriate, including an argument that “[n]umerous federal precedents establish clearly that anonymity may not be utilized to avoid disclosure of the identity of an illegal alien.” (Brief in Opposition to Motion for a Protective Order (Doc. 67) at 1). After considering these arguments, we granted this motion for a protective order on December 15, 2006. That protective order reads: “The John or Jane Doe Plaintiffs in this proceeding do not have to produce, or otherwise respond to discovery requests seeking disclosure of, ‘Protected Material’, i.e. those documents, things, information and testimony containing information about their immigration
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We will consider each of the factors raised by district courts in the Third
Circuit in addressing such matters.
1. Factors Favoring Anonymity
a. Preservation of Anonymity
The first factor is the extent to which the anonymity of the plaintiffs
seeking to use pseudonyms has been preserved. In this case, plaintiffs
have vigorously attempted to maintain their anonymity through the trial and
deposition process, and no evidence suggests that those attempts have
been unsuccessful. These plaintiffs have not given media interviews in
which they revealed their names, they have not appeared in public in
forums in which they could easily be recognized, and they did not testify
status, actual residence, or place of work that would allow someone to identify them or their immigration status.” (Memorandum and Order (Doc. 72) at 7) (emphasis added). While we recognize that our ruling on this issue did not address directly whether plaintiffs could proceed anonymously, this order did approve of the unnamed plaintiffs’ unwillingness to reveal their real names. Our order came in response to a motion from the plaintiffs for a protective order regarding discovery of their names or immigration status. This early attention to the issue of anonymity cured any prejudice that could have resulted from the failure of plaintiffs to request leave to proceed without revealing their true names. The parties were aware of the presence of this issue in the litigation, we ruled on an immediate and contentious issue related to anonymity, and the parties were able to prepare the litigation without the names of these plaintiffs. Accordingly, we will consider the question of anonymous plaintiffs on the merits.
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live at trial. The record provides no indication that plaintiffs have waived their claim on anonymity by allowing others to discover their true names. This factor weighs in favor of plaintiffs’ attempt to proceed anonymously.
b. Bases for Request of Anonymity Second, courts evaluate the bases for the claim that anonymity is necessary and the legitimacy of those bases. Here, plaintiffs seek to avoid disclosure of their identities because they fear the consequences of such public knowledge and are concerned that defendant may disclose their names to federal immigration authorities. The plaintiffs argue that they have “stated legitimate concerns that the public identification of the Doe Plaintiffs, amidst this highly publicized and controversial lawsuit, would make them easy targets of intense anti-immigrant and anti-Latino sentiment.” (Brief in Opposition to Defendant’s Motion to Dismiss (Doc. 106) at 97). Plaintiffs also contend that such disclosure may affect “their basic rights to shelter, education, and a livelihood.” (Id. at 99). We find these compelling reasons for allowing plaintiffs to proceed anonymously. In Jane Doe 1 v. Merten, the Federal District Court for the Eastern District of Virginia refused to allow plaintiffs who sought to challenge a Virginia law that prevented illegal immigrants from obtaining admission to
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state colleges and Universities to proceed anonymously. 219 F.R.D. 387 (E.D. Va. 2004). The students had claimed: “[I]f they are required to reveal their identities, the federal government will seek to deport them or their families and they will thus likely decide not to proceed with this suit, effectively rendering them unable to vindicate their rights in this matter.” Id. at 390. Defendant cites to this case to support its argument that plaintiffs should be required to reveal their identities, in part because the court in that case found that the plaintiffs seeking to proceed anonymously did not have a strong interest in keeping information about their immigration status confidential.
The court in Merten concluded that “unlawful or problematic immigration status is simply not the type of ‘personal information of the utmost intimacy’ that warrants abandoning the presumption of openness in judicial proceedings.” Id. We find that the facts and context of this case lead to a different assessment of the nature of information about one’s immigration status.29 Unlike Merten, where plaintiffs were seeking
29The court cited no authority that supported this finding about the nature of information on immigration status (though defendant cites approvingly to the holding), but instead pointed to Southern Methodist University Association of Women Law Students v. Wynne & Jaffe, a case that refused a request by plaintiffs who were women law students to proceed anonymously in their challenge to a law firm’s hiring practices.
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admission to state colleges and universities, the plaintiffs in this case do
not seek to receive any goods provided by the state. Further, their
immigration status does not determine whether they will be subject to the
terms of the ordinance. Accordingly, the individual identities and interests
of the plaintiffs are not at issue in this case to the degree they were in
Merten and are not necessary to reach the issues of constitutionality raised
by the lawsuit. The intense public interest in this case makes the risks
from exposing sensitive information about one’s identity exponentially more
See Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979). We find that the situations faced by women law students during their job search are quite different from those faced by undocumented immigrants who face the possibility that their opponents in a lawsuit will reveal information that could have dire legal consequences. The women law students did not, after all, face the possibility of deportation or exposure to an angry public convinced that their mere presence in the community was a threat to social order. The Court in Merten nevertheless acknowledged that in Plyler, the Supreme Court permitted “illegal aliens . . . to proceed anonymously in their successful constitutional challenge to the Texas law denying free public grammar school education to illegal alien children.” Merten, 219 F.R.D. at 391. In a footnote, the Merten court pointed out that “it should be noted that in neither Plyler nor Roe [v. Wade] does it appear that the issue of anonymity was contested or litigated.” Id. at 391 n.12. We assign more importance than the Merten court did to the fact that plaintiffs in the Plyler and Roe cases proceeded anonymously. Apparently, no federal court which examined the Plyler case found the use of anonymous plaintiffs troubling enough to address the issue, but instead concluded that the plaintiffs had legitimate reasons for refusing the reveal their true names in that high-profile case. The fact that the parties did not litigate the issue is certainly not evidence that the use of pseudonyms was not vital to allowing the plaintiffs in that case (or in Roe for that matter) to vindicate their rights.
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dire than in Merten and make more persuasive plaintiffs’ reasons for seeking to proceed without revealing their true names.
The manner in which public interest has manifested itself in this case demonstrates why anonymity is necessary for plaintiffs who lack a legal immigration status. Trial testimony indicated the intense public interest in the ordinances led at times to harassment and intimidation that created fear even among those with a more secure social and legal status than the anonymous plaintiffs. Dr. Agapito Lopez, a Hazleton resident who became a leader in the attempt to have the ordinances overturned, testified that he organized a candlelight vigil to be held on the steps of the building where the city council met the night before the ordinances had their second reading. (N.T. 3/12/07 at 73). Attendees at the meeting were very afraid of the consequences of their participation, particularly of the city officials who at Lopez’s request videotaped the crowd in an attempt to gather evidence in case of a potential disturbance.30 The fear of those in his group came “because there was another group that was intimidating us at
30The protestors’ reaction to these cameras, despite the benign nature of their presence, indicates that the publicity generated by the ordinances also generated fear among immigrants and particularly Latinos in Hazleton that they would be the subject of government-sponsored harassment and intimidation.
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that time by showing their presence, shouting slogans, and a lot of tension in the area.” (Id. at 75). At the ordinance’s second reading the City’s supporters were “very, very tense with stares at the small group of Latinos that were there.” (Id.). While the City Council was conducting its business that evening a fight had broke out in the street between opponents and supporters of the ordinances. (Id. at 76-77). Lopez rushed back out to the street in front of the City Council building to find “[f]ederal justice agents, department of justice agents and policemen in the street dividing two groups.” (Id. 77). The two groups, consisting of recent immigrants and another group of those supporting the ordinances had faced off, “and there was shouting from one side to the other side.” (Id.).
The day before the vigil organized by opponents of the ordinances, Lopez received what he described as “hate mail” underneath the door of his office. (Id. at 73). The letter Lopez received purported to describe the effects of illegal immigration, contending that “European Americans are being dispossessed of their own nation. We are under invasion by millions of unskilled Mexicans who threaten to bankrupt us.” (N. T. 3/13/07 at 5). The letter further warned that “coloreds” would eventually take control of state governments, Congress and the presidency, and that “[w]hites will
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quickly be stripped of their rights with our wealth confiscated for
redistribution to non-whites as is taking place in South Africa.” (Id. at 6).
After the ordinances had their second reading Lopez received two
other pieces of offensive mail; this mail made him feel both fearful and
“offended, because it was hate mail. It indicated hate against me as a
person.” (N.T. 3/12/07 at 78-79).31 The first piece of mail suggested that
Lopez and his “cohort, that bold, brazen Anna Arias, should spend some
time on a few streets in town before defending your (Latin Community).”
(N.T. 3/13/07 at 7). After describing what the letter-writer saw as the waste
and crime caused by the immigrant residents of Hazleton, the author
declared that “[w]e think you and Anna [Arias] had better think twice before
31We note, too, that the ordinances apparently had the effect of increasing racial tension in the City. Jose Luis Lechuga, who first arrived in the United States from Mexico in 1982, had lived in Hazleton since 1991. (N.T. 3/12/07 at 118, 122). When he first came to the City, he felt “like a part of the community. People no longer looked at me like a stranger, because they knew that my wife and I were working people, and so I was accepted in the community.” (Id. at 123). After the passage of the ordinances, however, Lechuga discovered that “apparently the racial hatred and the racism has awoken. We notice and see that people no longer look at us–they look at us like their enemies now, not our friends.” (Id. at 124). That Lechuga, a legal resident of the United States, felt such discomfort as a result of the controversy over the ordinances demonstrates the public controversy created by the ordinances and helps to justify the fears expressed by the anonymous plaintiffs, who do not possess the same legal status as Lechuga.
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you speak.”32 Lopez saw this letter as evidence of “the effect that the
ordinance has had on the population,” which now failed to “distinguish
between undocumented immigrants and Latinos. For them, they are all the
same.” (Id. at 9). The final letter Lopez received33 contained a clipping
from a newspaper describing the effects of illegal immigration as well as a
picture of a “warrior” wearing “a huge Mexican hat.” (Id. at 10). Scrawled
near this picture were the phrases, “[s]ubhuman spic scum” and “[i]f it is
brown, flush it down.”34 (Id.). Lopez interpreted this mail as an attempt to
32That statement seems to be connected to a claim that activists like Lopez did nothing to address the crime present in Hazleton, but instead complained about the treatment of immigrants. The passage from which that statement was taken reads: “We think you and Anna had better think twice before you speak. Where were you Friday p.m. when Pine Street playground was once again a scene of trouble? Never see you two show your faces. Signed disgusted citizens.” (N.T. 3/13/07 at 8).
33The letter was postmarked Hartford, Connecticut. (N.T. 3/13/07 at 9). That the letter did not come from Hazleton demonstrates the wide publicity received by the case, which we find heightens the concerns of the most vulnerable plaintiffs about their participation in the case.
34This piece of mail listed a website, www.nsm88.com, which Hazleton’s attorney discovered was attached to the “nationalist socialist movement.” (N.T. 3/13/07 at 12). After an introductory page that highlights Nazi imagery and declares the organization to be “Fighting for Race and Nation” the website declares itself “the Official Home Page of the National Socialist Movement, an organization dedicated to the preservation of our Proud Aryan Heritage, and the creation of a National Socialist Society in America and around the world.” http://www.nsm88.com/index2.html.
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“silence” and “intimidate” him. (Id. at 11). He also “felt afraid” after receiving letters both at his office and at home; the mail let him know that “they know where I live and where I used to work and where my wife works.” (Id.).
Public expressions of support for Hazleton’s ordinances have continued to lead to controversy and confrontations, as well as anger at those who challenge the City’s position. On June 3, 2007, several hundred ordinance supporters held a rally in Hazleton to express support for the city’s attempts to control illegal immigration. Nichole Dobo, Barletta Backers Harass Writer, SCRANTON TIMES-TRIBUNE, June 5, 2007, at A1. Amilcar Arroyo, publisher of EL MENSAJERO, a Hazleton-based Spanishlanguage newspaper, attempted to cover the event for his publication. Id. Arroyo, an American citizen, is not involved in the lawsuit against the City. Id. Several members of the crowd at the rally began to shout at Arroyo after a rumor circulated that he was one of the plaintiffs in the lawsuit against the ordinances. Id. Confronting Arroyo, a few rally participants shouted at him to “‘get out of the country’” while others chanted “‘traitor.’” Id. Police escorted Arroyo from the rally for his own protection. Id.
We find that this record of hostility to the plaintiffs in the lawsuit and
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the climate of fear and hostility surrounding the debate over the ordinances creates a justified fear about revealing the anonymous plaintiffs’ identities. Dr. Lopez and Mr. Arroyo faced public condemnation and confrontation based on their real or perceived participation in the lawsuit, and they are United States citizens. Those with a more tenuous legal status have an exponentially greater concern over the dangers of participating in a lawsuit that has generated such intense sentiment.
In addition, we find that the defendant does not have a strong need to obtain the identity of the anonymous plaintiffs in order to defend against plaintiffs’ suit, thus adding to the reasonableness of plaintiffs’ request to keep their identity anonymous. Plaintiffs seek to keep their identities private largely because of their problematic immigration status; they fear the consequences of a public admission of unauthorized residence and employment in the United States. Courts have concluded that plaintiffs may refuse to turn over information on their immigration status when that status is not relevant to the lawsuit. See Topo v. Dihir, 210 F.R.D. 76, 78 (S.D. N.Y. 2002). Here, defendant has claimed to need information on the unnamed plaintiffs’ immigration status in order to determine whether they have standing to bring suit in the case. Plaintiffs have admitted that they
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lack legal authorization for their presence and employment in the country, and defendant therefore has all the information necessary to challenge the anonymous plaintiffs’ presence in the suit.35 Defendant’s arguments about the standing of such undocumented plaintiffs are based not on the specific facts of each undocumented plaintiff’s legal status, but instead on the notion that plaintiffs who are not legally in the United States cannot be injured by the ordinances. The information provided by the anonymous plaintiffs about their immigration status gives the defendant all the information necessary to make this standing claim.
Indeed, plaintiffs have expressed a legitimate fear that exposing their names could lead to adverse legal consequences that go beyond the public disapprobation they face. If threats of exposure of one’s legal status can intimidate plaintiffs and prevent them from participating in a lawsuit, the defendant’s own statements and actions have added weight to these fears. During discovery in this case, the parties disagreed over whether the anonymous plaintiffs should be required to turn over immigration documents to the defendant. After a telephone conference, this court
35We accept these plaintiffs’ representations about their immigration status, since such representations are against their legal interest. These plaintiffs admit to a problematic legal status that could lead to their deportation.
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ordered the parties to enter into a confidentiality agreement to protect the identities of the Doe plaintiffs. (See Order (Doc. 63)).
After the court issued this order, plaintiffs informed us that a local newspaper had quoted defendant’s attorney, who claimed that the order violated 8 U.S.C. § 1373(c) by preventing the city from turning over to the federal government information on the plaintiff’s immigration status. See Munley’s IIRA Order Violates Federal Law, Attorney Says, STANDARD SPEAKER, December 13, 2006 (attached to Motion for a Protective Order (Doc. 64)). The federal law “says no government entity, federal, state or local, may in any way restrict the transfer of information concerning an alien’s legal status to the federal government,” Hazleton’s attorney asserted. (Id.). The attorney expressed “surprise” at the order, which he claimed “violates federal law.” (Id.). Plaintiffs informed us of these statements as part of their motion seeking a protective order preventing disclosure of their identities and immigration status. Given these public statements and court filings, plaintiffs could legitimately fear that defendant was determined to expose their legal status to federal authorities. Such fears could cause plaintiffs to abandon their attempt to secure rights guaranteed them under federal law. We conclude, therefore, that plaintiffs
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have offered good and compelling reasons for not revealing their identities. The second factor, then, weighs heavily in favor of anonymity.
c. Magnitude of the Public Interest Involved in Maintaining Confidentiality The third factor, the magnitude of the public’s interest in maintaining the confidentiality of the litigants’ identities, also weighs in the anonymous plaintiffs’ favor. Hazleton’s ordinances have become the subject of wide public debate, and has also served as a model for other communities seeking to act against what they perceive to be the problem of illegal immigration. See Anabelle Garay, Attempts to Curb Illegal Immigration Prove Costly, WASHINGTON POST, May 6, 2007, at A12 (reporting that “[d]ozens of cities and counties have proposed or passed laws that prohibit landlords from leasing to illegal immigrants, penalize businesses that employ undocumented workers or train police to enforce federal immigration laws.”). The public has an interest in determining the constitutionality of ordinances like the one passed in Hazleton, and particularly in determining whether such ordinances violate the constitutional rights of immigrants who lack authorization to enter or work in the United States. Without the protection of anonymity, future such plaintiffs would likely decline to participate in the lawsuit, and the public’s
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interest in testing the constitutionality of certain aspects of such ordinances could remain unexplored.
d. Legal Nature of the Issues in the Case The fourth factor, whether the purely legal nature of the issues in the case make for an atypically weak public interest in the actual identity of the litigants, also weighs in favor of anonymity. Because this case exists as a test of ordinances passed by Hazleton that seek to transform the role of municipalities in dealing with the presence of undocumented aliens in their jurisdictions, the issues in this case are largely related to the interaction between federal, state and local laws, the application of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, the meaning of standing in federal jurisprudence and the limits of the privacy protections afforded by the Constitution. This case does not contain the complicated factual scenarios of the typical employment discrimination or prisoner civil rights action faced daily in every federal district court. The decision in this case does not turn on judgements about the credibility of particular witnesses, but instead on an assessment of the parties’ legal arguments. Indeed, the only reason defendant cites for needing to know the identity of the anonymous plaintiffs
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is to address their standing to sue. While standing is a clear constitutional requirement, it is also a preliminary question and one we find we can answer for the anonymous plaintiffs without discovery of their identities. Defendant makes no argument that other factual or legal issues in the case require knowing the identity of plaintiffs. Defendant, therefore, has less interest in the identity of the particular plaintiffs than in the resolution of the legal issues in this case. This factor clearly weighs against disclosure of the plaintiffs’ identities.
e. Danger of Adverse Outcome to Unnamed Plaintiffs We find that the fifth factor, the undesirability of an outcome adverse to the pseudonymous parties and attributable to their refusal to pursue the case at the price of being publically identified, has a neutral weight in our analysis. While an adverse outcome for the anonymous plaintiffs could have significant consequences, limiting their ability to find housing and secure employment, that adverse outcome would not be solely or even primarily attributable to the anonymous plaintiffs’ refusal to participate because of the possibility of being identified publically. This case, which will be decided largely by answering legal questions on issues like federal preemption, does not turn on the particular facts of the plaintiffs’
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experience with the law. Other named litigants who could press the issue of the constitutionality of the ordinances would remain, and the outcome of the case would not be determined by the decision of the anonymous plaintiffs to abandon their lawsuit. This factor, therefore, does not weigh significantly for either side of the argument.
f. Whether Plaintiffs Have Ulterior Motives for Seeking Anonymity
We find that the sixth factor, whether the plaintiffs seeking to proceed anonymously have illegitimate ulterior motives, weighs in favor of the plaintiffs’ anonymity. The reason for the plaintiffs’ desire to use pseudonyms in this case is clear: they wish to avoid the potential harm that will come from disclosure of their names to the defendant and to the public. They fear that disclosing their identities could expose them to danger and adverse legal action unrelated to the rights they seek to vindicate in this litigation. Defendant does not point to any improper motive of the plaintiffs in seeking to proceed without being identified.36 We thus find no improper
36In an earlier response to a plaintiff’s motion for a protective order preventing disclosure of identity and information related to immigration status, however, defendant argued that plaintiff’s had engaged in a “shell game” of substituting different anonymous plaintiffs. We found that problem not genuine at the time we issued the protective order; we find that problem even less likely now, as defendant has had the opportunity to depose the anonymous plaintiffs and has attached them to a particular set
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motive behind plaintiffs’ request to proceed without identifying themselves. This factor weighs in favor of anonymity.
2. Factors Favoring Disclosure a. Public Interest in Plaintiffs’ Identities
Of the factors in favor of disclosure of the anonymous plaintiffs’ identities, we find that the first of those factors, the universal level of public interest in access to the identities of the litigants, does not support a need for disclosure. There is widespread public interest in this case, but that interest is focused not on the identities of the plaintiffs, but on the legal issues at the heart of the case. We find no evidence of a widespread, much less universal, public interest in the identities of the plaintiffs. The public’s interest in this case is in the right of Hazleton to press forward with its legislation, not in a dispute between the parties. Accordingly, the public’s interest in the identities of the individual plaintiffs is not so strong as to justify the danger of disclosing the identity of plaintiffs with a legitimate fear for the consequences of that disclosure.
b. Subject Matter of the Litigation The next factor in favor of disclosure asks whether, because of the
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subject matter of the litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant’s identities, beyond the public’s normal interest. This factor too does not weigh in favor of disclosure. The subject matter of this litigation is primarily constitutional law, and the identities of the particular plaintiffs are not as important to the outcome of the litigation as the legal arguments they raise. In addition, the plaintiffs seeking anonymity here are not public figures, and thus there is scant public need to follow their activities in order to prevent abuse of some public trust.
c. Motivation for Seeking Identity The final factor for the court to consider addresses whether the opposition to pseudonyms by counsel, the public, or the press is illegitimately motivated. While we do not find persuasive power in defendant’s argument that learning the identity of the anonymous plaintiffs is necessary to determine whether they have standing to sue, we have no evidence to indicate that defendant adopted this position for illegitimate reasons. We note, however, that federal courts have recognized that inquiries into immigration status can have an in terrorem, effect, limiting the willingness of plaintiffs to pursue their rights out of fears of the
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consequences of an exposure of their position. See Topo v. Dihir, 210 F.R.D. 76, 78 (S.D.N.Y. 2002) (holding that “[c]ourts have generally recognized the in terrorem effect of inquiring into a party’s immigration status when irrelevant to any material claim.”); Zeng Liu v. Donna Karan International, Inc., 207 F. Supp. 2d 191, 193 (S.D.N.Y. 2002) (finding that disclosing immigration status when not relevant to the case presents a “danger of intimidation [that] would inhibit plaintiffs in pursuing their rights.”). In this case, then, we lack evidence that defendant had illegitimate motives in challenging plaintiffs’ use of anonymity, but recognize the potential intimidation that accompanied that challenge. We find, therefore, that this factor weighs neither for nor against disclosure.
In sum, we find that the factors in favor of confidentiality for the plaintiffs who seek to proceed anonymously outweigh those that recommend disclosure. The highly legal nature of the issues here, combined with the intense public interest and strong level of emotion connected with the issue mean that the undocumented immigrants who seek to participate in this action face extraordinary circumstances that require anonymity if they hope to proceed without facing unsupportable burdens. The public’s interest in learning the identity of the litigants does
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not outweigh the anonymous plaintiff’s concerns, and defendant can defend itself adequately without information about the anonymous plaintiffs’ identities. Accordingly, we find that the anonymous plaintiffs may proceed without identifying themselves.
We note, finally, that we find misplaced defendant’s concern that this court’s acknowledgment of the Doe plaintiffs’ right to proceed anonymously would “recognize” and “affirm” an “interest in evading the laws of the United States.” (Memorandum of Law in Opposition to Plaintiffs’ Cross-Motion for Summary Judgment (Doc. 150) at 107). A venerable principle of constitutional law holds that all persons in the United States have rights under the Fourteenth Amendment to the United States Constitution, whether they are citizens or not.37 See Plyler v. Doe, 457 U.S. 202, 210 (1982) (holding that “[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even
37We note that the descendants of non-Asian immigrants who entered this country before the immigration restrictions of the 1920s who condemn present-day illegal immigrants by pointing out that “when my relatives came to this country, they followed the law” ignore one very crucial fact: virtually no law existed to prevent anyone from entering the country prior to that period. No federal crime for unauthorized entry existed until 1929. See Mae M. Ngai, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF AMERICA, 60 (2004). For a broader reading on United States immigration history please see the appendix.
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aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (holding that “[t]he Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”). The Doe plaintiffs’ interest in this case is in vindicating rights they claim are guaranteed them under the Constitution, and those rights exist whatever their status under the nation’s immigration laws. Allowing the Doe plaintiffs to proceed anonymously in the unique conditions of this case would not reward them for evading the country’s immigration laws.38 It would instead provide them an opportunity to secure
38Indeed, even if we were to agree with every argument made by the plaintiffs in this case and issue a permanent injunction preventing Hazleton from enforcing any of the challenged ordinances, the federal government could still independently of this action discover the identities of the anonymous plaintiffs and deport those whose presence in the United States is contrary to federal law.
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the rights guaranteed them by the Constitution of the United States. C. Amendments to the Ordinance
On March 15, 2007, during this court’s trial of this matter, defendant introduced Ordinance 2007-6, which has since become law in the city. See Ordinance 2007-6 (Defense Ex. 251). This Ordinance Amended Sections 4B(2) and 5(B)(2) of IIRA. Id. As originally written, “a complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity or race” would not be enforced. Ordinance 2006-18 at § 4B(2). The 2007 amendment removed the words “solely or primarily” from these provisions, meaning that “a complaint which alleges a violation on the basis of national origin, ethnicity or race shall be deemed invalid and shall not be enforced.” Ordinance 2007-6. The amendment also altered Section 4.A of the Ordinance by adding the word “knowingly” to a provision prohibiting the recruitment and hiring of illegal aliens. Id.; see Ordinance 2006-18 at § 4.A (establishing that: “It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City.”). At the end of the hearing on the plaintiffs’ complaint, we asked the parties for briefs on the effect of this amendment
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on the instant litigation. The parties agree that the court has jurisdiction to issue a decision
on the current version of the ordinance. Plaintiffs argue, however, that we should also rule on the version of the ordinance that existed until the March amendment. Defendant amended the ordinance, plaintiffs argue, to avoid having this court rule on the constitutionality of the ordinance as it then existed. That amendment did not come, plaintiffs insist, because Defendant recognized that the previous version of the ordinance violated the constitution, but simply to improve defendant’s litigation position. Accordingly, the court could reasonably conclude that defendant will not cease the illegal practice embodied in the earlier version of the ordinance.
The dispute between the parties here is over whether we should also consider the version of the ordinance that was in effect through most of the litigation in this matter. We find that we do not have jurisdiction to rule on the constitutionality of a version of an ordinance that no longer exists, particularly when we have–as both sides admit–jurisdiction to examine the current version of that ordinance. The cases cited by the plaintiffs to argue that we should rule on that older version of IIRA all address whether a court has jurisdiction to hear a challenge to a practice or an ordinance that
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the defendant has voluntarily terminated, not whether a court has jurisdiction to address both the old and new versions of an amended ordinance. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) (finding that voluntarily abandoning a challenged practice does not moot answering the question raised by the lawsuit, since “the city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgement were vacated.”); United States v. Government of the Virgin Islands, 363 F.3d 276, 286 (3d Cir. 2004) (finding that “when a party does not change its ‘substantive stance’ as to the validity of the contract but merely terminates it for allegedly purely practical reasons (such as avoiding litigation), the termination of the contract does not render the case moot” because nothing would prevent the defendant from engaging in the same or similar contracts); Penny Saver Pubs., Inc. v. Village of Hazel Crest, 905 F.2d 150 (7th Cir. 1990)39; Reynolds v. City of Valley Park, No. 06-CC-3802 (St.
39The facts of this case do not support plaintiffs’ position. Plaintiffs argue that “the Circuit Court has also rejected the government actor’s claims of mootness where the action allegedly mooting the case was taken ‘with litigation lurking a few days away’ and where the circumstances suggested that the impending litigation was the cause of the determination.” (Doc. 218 at 79). In that case, plaintiff, a suburban newspaper company, sought an injunction against a village ordinance that limited solicitation of real-estate clients. Penny Saver, 905 F.2d at 152.
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Louis County, MO Circuit Court, March 12, 2007) (available at
http://clearinghouse.wustl.edu/chDocs/public/IM-MO-0001-0017.pdf).40
Those courts did not address whether a court could decide on two versions
of the same ordinance, the second of which amended the first. Instead,
they addressed whether repealing an ordinance or terminating a contract
necessarily made a plaintiffs’ case against that ordinance or contract moot.
Like those courts, we conclude that the amendment of the IIRA did not
While the litigation was pending, the Village amended the ordinance to exempt newspapers. Id. Separate litigation over the amended ordinance continued. Id. at 153. The court found that litigation over the previous ordinance was moot “because the Ordinance, as amended, cannot be applied to Penny Saver.” Id. The entire case was not moot, however, since the plaintiff had a “viable claim for declaratory and monetary relief” based on the village’s actions in relation to the previous ordinance. Id. The facts of this case actually do more to support our conclusion that we lack authority to rule on the constitutionality of the previous version of the ordinance.
40This case dealt with a similar ordinance meant to control illegal immigration. The city of Valley Park had passed ordinances in July 2006 that penalized “‘aid[ing] and abet[ting] illegal aliens or illegal immigration’ and “‘leasing or renting’ property to illegal aliens. Reyonlds, at ¶¶ 3-4. The City apparently repealed those ordinances after litigation began. Id. at ¶ 10. The court nevertheless decided that the case was not moot, since “a defendant cannot unilaterally moot the litigation by repealing the ordinance.” Id. at Conclusions of law ¶ 2). Here, then, the court ruled on the old ordinances because they had been repealed, but no new ordinances had been passed on which the court could rule. That situation is different from the situation here, since we can rule on the current form of the ordinance, which raises concerns quite similar to the old one.
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moot the case; our duty is to address IIRA as it now stands. In any case, the controversy over the earlier version of IIRA is moot.
That ordinance no longer exists, and plaintiffs’ complaints about that former ordinance are no longer operative. See, e.g., Nextel Partners, 286 F.3d at 693 (holding that “[I]f a claim no longer presents a live case or controversy, the claim is moot, and a federal court lacks jurisdiction to hear it.”). In addition, because we have before us a version of IIRA in which plaintiffs find constitutional infirmities similar to those in the previous IIRA, little danger exists that our decision not to rule on the previous IIRA would allow defendant to evade review and reenact that earlier ordinance. See City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 283 n.1 (2001) (holding that “a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.”); City of Mesquite, 455 U.S. at 289 (determining that repeal of a statute did not moot the lawsuit because “the city’s repeal of objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.”). Though courts have recognized that “a matter is not necessarily moot simply because the order attacked has expired; if the underlying dispute between the parties is one ‘capable
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of repetition, yet evading review, it remains a justiciable controversy within the meaning of Article III.” New Jersey Turnpike Authority v. Jersey Central Power and Light, 772 F.2d 25, 31 (3d Cir. 1985). Here, the fact that we will rule on the successor to the Ordinance that provoked the original suit demonstrates that the issues raised by the first set of ordinances are available for review, and we find no need to rule on the previous versions.
Now that the preliminary matters have been disposed of, we will address the underlying merits of the plaintiffs’ case. Plaintiffs’ complaint raises federal constitutional issues, federal statutory issues and state law issues. We shall address each in turn.
II. FEDERAL CONSTITUTIONAL ISSUES Plaintiffs first three causes of action and the eighth cause of action are brought pursuant to 42 U.S.C. § 1983 (hereinafter “section 1983”) for constitutional violations. In pertinent part, section 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
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secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress[.] 42 U.S.C. § 1983. Thus, to establish a claim under section 1983, two criteria must be met. First, the conduct complained of must have been committed by a person acting under color of state law. Second, the conduct must deprive the complainant of rights secured under the Constitution or federal law. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998). In the instant case, no question exists as to whether the defendant acted under the color of state law in enacting the ordinances at issue. The only issue with regard to section 1983, therefore, is whether the ordinances violate plaintiffs’ constitutional rights. Plaintiffs assert that the defendant violated the United States Constitution’s Supremacy Clause, Due Process Clause, Equal Protection Clause and privacy guarantees. We will address each separately. A. Federal Pre-emption Plaintiffs’ Amended Complaint asserts that Hazleton’s ordinances violate the Supremacy Clause of the United States Constitution, which provides that federal law is the supreme law of the land. (Second
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Amended Complaint (Doc. 82) (hereinafter “Compl.”) ¶¶ 100-131). In
particular, the Constitution provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. CONST. art. VI, cl. 2.
Accordingly, “[t]he Supremacy clause of the United States
Constitution invalidates state laws that ‘interfere with or are contrary to’
federal law.” New Jersey Payphone Ass’n, Inc. v. Town of West New York,
299 F.3d 235 (3d Cir. 2002) (quoting Gibbons v. Ogden, 22 U.S. 1, 211
(1824)). This invalidation is termed federal pre-emption. Federal pre-
emption can be either express or implied. Olde Discount Corp. v. Tupman,
1 F.3d 202, 216 (3d Cir. 1993). We will discuss each in turn. As the
ordinances at issue have two distinct provisions, one directed to
employment issues and one aimed at landlord/tenant issues, we will
discuss each topic separately with regard to pre-emption beginning with the employment provisions.41
41Defendant contends that we should apply a presumption that the Congress does not intend to supersede state law. In support of this proposition, defendant cites Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). Medtronic does set forth such a presumption; however, it also
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1. Employment provisions of IIRA
a. Express pre-emption
Initially, plaintiffs assert that the federal law expressly pre-empts
IIRA. Under federal law, “Congress can define explicitly the extent to
which its enactments pre-empt state law.” English, 496 U.S. at 78. Pre-
emption is “express” when a statute explicitly commands that state law be
displaced. Green v. Fund Asset Management, L.P., 245 F.3d 214, 222 (3d
Cir. 2001) (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 382
(1992)).
Plaintiffs assert that the federal Immigration Reform and Control Act
of 1986 (hereinafter “IRCA”), which deals with the employment of
unauthorized aliens, contains an express pre-emption clause that pre-
states that this presumption applies “particularly . . . in a field which the States have traditionally occupied.” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The presumption is inapplicable “when the State regulates in an area where there has been a history of significant federal presence.” United States v. Locke, 529 U.S. 89, 108 (2000). Immigration is an area of the law where there is a history of significant federal presence and where the States have not traditionally occupied the field. In fact, as set forth more fully below, immigration is a federal concern not a state or local matter. Therefore, we do not apply the presumption against pre-emption. If, however, we were to apply the presumption, our ultimate conclusion would not change as Congress has made it sufficiently clear and manifest that federal law pre-empts state law in the area covered by Hazleton’s ordinances.
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empts the employer portions of IIRA. Defendant argues that IIRA does not fall within IRCA’s express pre-emption clause. After a careful review, we agree with the plaintiffs that IIRA’s employment provisions are expressly pre-empted.
IRCA is a “comprehensive scheme” that prohibits the employment of unauthorized workers in the United States. Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 147 (2002). “IRCA ‘forcefully’ made combating the employment of illegal aliens central to ‘[t]he policy of immigration law.’” Id. (citing INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 194, and n. 8 (1991)).
The law prohibits the employment of aliens who are 1) not lawfully present in the United States; and 2) not lawfully authorized to work in the United States. 8 U.S.C. § 1324a(h)(3). In order to prevent the employment of unauthorized workers, IRCA requires that employers verify the identity and eligibility for work of all new hires. This verification is accomplished with the employer’s review of specified documents. 8 U.S.C. § 1324(a)(b). An employer cannot hire an alien who is unable to present proper documentation. 8 U.S.C. § 1324(a)(1).
Under IRCA, where an employer unknowingly hires an unauthorized
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alien or if an employee becomes unauthorized, the employer must discharge the employee when his status becomes known. 8 U.S.C. § 1324a(a)(2). Violations of IRCA by employers is punishable by civil fines and criminal prosecution. 8 U.S.C. §1342a(e)(4)(A); 1324a(f)(1). Prospective employees are subject to criminal prosecutions and fines for providing fraudulent documents. 8 U.S.C. §1324c(a).
IRCA contains an express pre-emption clause that pre-empts State or local laws dealing with the employment of unauthorized aliens. The preemption clause provides: “The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2).
The plaintiffs assert that this section expressly pre-empts IIRA. Defendant disagrees, contending that it has followed 8 U.S.C. § 1324a(h)(2) with “exacting precision.” (Doc. 87, Def. Brief at 37). According to Hazleton, it has “eschewed the imposition of criminal or civil penalties and has instead taken those actions expressly permitted by Congress.” (Id.). Instead of criminal and civil sanctions, IIRA penalizes a business for employing an unauthorized alien by suspending its business
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permit. Such a business permit suspension amounts to “licensing and similar laws” as provided by the IRCA preemption section according to the defendant. In other words, Hazleton interprets the statute so as to allow regulation of employers with regard to hiring unauthorized workers as long as instead of a criminal or civil sanction, the sanction that is imposed is the suspension of the employer’s business permit.
We reject Hazleton’s interpretation of the express pre-emption provision. Under Hazleton’s interpretation of the provision, a state or local municipality properly can impose any rule they choose on employers with regard to hiring illegal aliens as long as the sanction imposed is to force the employer out of business by suspending its business permit–what we could call the “ultimate sanction.” This interpretation is at odds with the plain language of the express pre-emption provision, which is concerned with state and local municipalities creating civil and criminal sanctions against employers. It would not make sense for Congress in limiting the state’s authority to allow states and municipalities the opportunity to provide the ultimate sanction, but no lesser penalty. Such an interpretation renders the express preemption clause nearly meaningless.
In addition to being counterintuitive to the plain language of the
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provision, Hazleton’s interpretation is contrary to its legislative history. In
House Report No. 99-682(I), the United States Congress provides its
interpretation of the type of “licensing” permitted under the statute. The
“licensing” that the statute discusses refers to revoking a local license for a
violation of the federal IRCA sanction provisions, as opposed to revoking a
business license for violation of local laws.
The Report authored by the House Committee on the Judiciary
states:
The penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral of undocumented aliens. They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. Further, the Committee does not intend to preempt licensing or “fitness to do business laws,” such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens. H.R. No. 99-682(I) at 5662.
Therefore, the express pre-emption clause applies generally, except
for state or local laws dealing with “suspension, revocation or refusal to
reissue a license” to an entity found to have violated the sanction
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provisions of IRCA. In the instant case, Hazleton suspends the business permit of those
who violate its Ordinance, not those who violate IRCA.42 Thus, the licensing exception to State and local pre-emption is not applicable.
The other express pre-emption exception is for “fitness to do business laws” such as state farm labor contractor laws or forestry laws. 8 U.S.C. § 1324a(h)(2). Hazleton’s ordinances are not “fitness to do business laws such as state farm labor contractor laws or forestry laws.” Fitness to do business laws generally deal with a person’s character as it relates to his or her ability to be engaged in a certain business activity. An example of such a law is the California statute describing the prerequisites for issuance or renewal of a farm labor contractor license. CAL. LABOR CODE § 1684 (West 2006). This statute requires that those seeking such a license must, inter alia: provide a statement that they possess the character, competency and responsibility to conduct the operations of the business; provide a bond based upon the amount of their payroll; take part in certain training; and not be found in violation of certain laws and
42As explained more fully below, the Hazleton Ordinance differs significantly from IRCA.
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regulations.43 Id. By way of comparison, IIRA is aimed at preventing employers from hiring undocumented aliens. Thus, they are not fitness to do business laws. Therefore, this exception to pre-emption does not apply.
As the exceptions to pre-emption do not apply, IRCA expressly preempts the employment provisions of IIRA.
Additionally, IIRA provides more than the sanction of business permit suspension. It creates a cause of action for discharged employees. IIRA makes it an “unfair business practice” for an employer to discharge a worker who is not “unlawful” if, at the time, it employs an unlawful worker. (IIRA § 4.E.1). It provides that such a discharged worker may commence a private cause of action against the business and seek treble damages, attorney’s fees and costs. (IIRA § 4.E.2(a) and (b)). Without providing any cogent analysis, defendant asserts that this sanction is similar to licensing, and therefore, is not pre-empted. We are unconvinced. This sanction certainly falls within the express pre-emption clause. It does not involve licensing or anything similar to licensing.
43A person must also be registered as a farm labor contractor pursuant to the federal Migrant and Seasonal Agricultural Worker Project Act (“MSAWPA”, 29 U.S.C. 1801 et seq.) in order to obtain a license under the California law. For registration under the MSAWPA, a person must not violate IRCA. 29 U.S.C. § 1813(a)(6).
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For all of the above reasons, we find that IRCA’s express preemption provision applies to IIRA’s employment provisions. Thus, the Ordinance’s employment provisions violate the Supremacy Clause of the United States Constitution.
b. Implied pre-emption Although we find IIRA is expressly preempted, for purposes of completeness we will also discuss implied pre-emption. Even if Congress places an express pre-emption clause in a statute, implied pre-emption may still be applicable. Freightliner Corp. v. Myrick, 514 U.S. 280, 288-89 (1995). Plaintiffs allege that IIRA unconstitutionally conflicts with federal immigration law. Implied pre-emption can be found where the scope of the federal law at issue “indicates that Congress intended federal law to occupy the field exclusively” or where state or local laws conflict with federal laws. Id. at 287. Implied pre-emption thus includes two separate concepts, field preemption and conflict preemption. We will discuss each.
i. Field pre-emption Field pre-emption occurs where Congress has occupied a given subject area to the preclusion of State or local laws. Where field preemption is present “the subject matter of the federal and local laws is such
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that the two laws or regulatory schemes must inherently either conflict or be duplicative. That is, under this test it is impossible to have local regulation in the subject area that does not conflict with or duplicate federal regulation. Rogers v. Larson, 563 F.2d 617, 621 (3d Cir. 1977). Field preemption exists where the federal regulatory scheme is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230 (1947). Field pre-emption is present where 1) “the pervasiveness of the federal regulation precludes supplementation by the States”’; 2) “the federal interest in the filed is sufficiently dominant” or 3) “the object sought to be obtained by the federal law and the character of obligations imposed by it reveal the same purpose.” Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988).
In the instant case, the first two of these situations are met, and we shall discuss them separately.
aa. Federal interest in the field The first factor we will consider is the dominance of the federal interest in the field of immigration. The history of federal regulation of immigration is one of the creation of an intricate and complex bureaucracy
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that restricted who could immigrate to the United States and under what terms. Those immigration regulations have also come to define the conditions under which aliens can find employment in the country. The creation of this complex federal bureaucracy not only altered the role of the federal government in relation to immigration. It also transformed the status of immigrants in American society. A foreign-born person in the United States in 1870 had a presumptively legal statutes; no careful legal inquiry was required to determine whether that person had a right to reside in the country. By 1990, however, determining whether a foreign-born person enjoyed a legal right to remain in the United States demanded a detailed legal examination that involved numerous federal status, several adjudicatory bodies, and a number of appeals and exceptions. More than one hundred years of federal regulation have made the federal supremacy over immigration an intricate affair. We provide here a general summary of nature of federal immigration regulation since the first such regulation appeared at the end of the nineteenth century. For a more detailed examination of the history of federal immigration regulation, see the appendix to this decision.
The federal government possesses an especially strong interest in
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immigration matters. The United States Constitution provides that Congress shall have the power “[t]o establish an uniform Rule of Naturalization[.]” U.S. CONST. art. I, sect. 8, cl. 4. Thus, “[t]he power to regulate immigration-an attribute of sovereignty essential to the preservation of any nation-has been entrusted by the Constitution to the political branches of the Federal Government.” United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982). The Valenzuela-Bernal Court states that “[o]ne cannot discount the importance of the Federal Government’s role in the regulation of immigration.” Id. (citing Mathews v. Diaz, 426 U.S. 67, 81(1976) (“For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government”); Galvan v. Press, 347 U.S. 522, 531(1954) (“that the formulation of [immigration] policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government”).
Conversely, the individual states, or municipalities located in those states, do not have a strong interest in immigration. The Supreme Court has explained that
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“[t]he States enjoy no power with respect to the classification of aliens. See Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). This power is “committed to the political branches of the Federal Government.” Mathews[v. Diaz], 426 U.S. [67], at 81 [1976)]. Although it is “a routine and normally legitimate part” of the business of the Federal Government to classify on the basis of alien status, id., at 85, 96 S.Ct., at 1894, and to “take into account the character of the relationship between the alien and this country,” id., at 80, 96 S.Ct., at 1891, only rarely are such matters relevant to legislation by a State. See Id., at 84-85, 96 S.Ct., at 1893-1894; Nyquist v. Mauclet, 432 U.S. 1, 7, n. 8, 97 S.Ct. 2120, 2124, n. 8, 53 L.Ed.2d 63 (1977). Plyler v. Doe, 457 U.S. 202, 225 (1982).
Bearing in mind the interests of the local government versus the
federal government in the areas of immigration, we proceed to our analysis
of whether the federal government has pervasively regulated this field.44
44Both Hazleton’s mayor and city council president acknowledged during the trial that the federal government has the power to address the immigration problem but they also expressed the opinion that the federal government is not adequately addressing the issue. (N.T. 3/14/07 at 19798; N.T. 3/13/07 at 180-81, 195-96). A federal program exists that creates a law enforcement partnership between the Department of Homeland Security, Bureau of Immigration and Customs Enforcement and local law enforcement agencies. (P-83, HAZ 00167). The program allows local law enforcement officers to work in conjunction with U.S. Immigration and Customs Enforcement Officers and assist the federal government with processing the deportation of criminal aliens. (Id., N.T. 3/20/07 at 32). It provides for the federal government to enter into “agreements with state and local enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Understanding (MOU), provided that the local law enforcement officers
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bb. Pervasiveness of regulations
The second factor we consider is the pervasiveness of the federal
regulations. Schneidewind, 485 U.S. at 300. Congress has occupied the
field of employment of unauthorized aliens with IRCA. The Supreme Court
has noted that IRCA is “a comprehensive scheme prohibiting the
employment of illegal aliens in the United States.” Hoffman Plastic
Compounds, Inc. v. National Labor Relations Board, 535 U.S. 1275, 1282
(2002) (emphasis added). The Supreme Court has explained IRCA as
follows:
As we have previously noted, IRCA “forcefully” made combating the employment of illegal aliens central to “[t]he policy of immigration law.” INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 194, and n.8, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991). It did so by establishing an extensive “employment verification system,” § 1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are
receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) Officers.” (P-183 at HAZ 00167). Hazleton’s police chief did not inquire into this program until after the instant ordinances were passed. (P-83, at HAZ 00168). The police department has since applied for the program but has not yet followed through on the application as police chief believes the benefits would not outweigh the costs. (N.T. 3/21/07 at 35-36). The police chief sees very little benefit because the ICE has already been “very responsive” to their requests regarding criminal aliens. (Id. at 36).
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not lawfully authorized to work in the United States, § 1324a(h)(3). This verification system is critical to the IRCA regime. To enforce it, IRCA mandates that employers verify the identity and eligibility of all new hires by examining specified documents before they begin work. § 1324a(b). If an alien applicant is unable to present the required documentation, the unauthorized alien cannot be hired. § 1324a(a)(1). Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 147-48 (2002)(footnote omitted).
IRCA occupies the field to the exclusion of State or local laws
regarding employers hiring, employing, recruiting or referring for a fee for
employment unauthorized aliens. Congress has indicated that one of the
central features of federal immigration policy is controlling the employment
of unauthorized workers. Id. IRCA provides for the prohibition of
employing unauthorized workers and explains the manner in which an
employer may be found liable for violating the statute and also how the
employer can seek review of adverse decisions. See generally, 8 U.S.C. §
1324a(e). It provides for various penalties. 8 U.S.C. § 1324a(e)(5)
(providing for civil fines); 8 U.S.C. § 1324a(f)(providing a criminal penalty);
8 U.S.C. § 1324c (providing penalties for document fraud). IRCA also
contains a section that prohibits unfair immigration-related employment
practices. 8 U.S.C. § 1324b.
Thus, IRCA is a comprehensive scheme. It leaves no room for state
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regulation. As explained more fully below, where we discuss conflict preemption, any additions added by local governments would be either in conflict with the law or a duplication of its terms–the very definition of field pre-emption.
Accordingly, we conclude that the Ordinance as it applies to employers is field pre-empted. Immigration is a national issue. The United States Congress has provided complete and thorough regulations with regard to the employment of unauthorized aliens including anti-immigration discrimination provisions. Allowing States or local governments to legislate with regard to the employment of unauthorized aliens would interfere with Congressional objectives.
The case that defendant primarily relies upon as controlling precedent is DeCanas v. Bica, 424 U.S. 351 (1976). DeCanas addressed a California statute that provided “(n)o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” Id. at 352 quoting California Labor Code Ann. § 2805(a). A trial court in California found that federal law pre-empted the California statute. Id. at 353. The California Court of Appeal found the statute to be an attempt to
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regulate the conditions for admission of foreign nationals. Id. Congress has exclusive authority over immigration and naturalization, thus, the statute was preempted according to the California court. Id. The Supreme Court of California denied review, and the United States Supreme Court granted certiorari. Id. at 354.
The Supreme Court disagreed with the California courts. It concluded that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” Id. at 354. The Court explained, however, that just because a statute touches upon immigration, does not make it an impermissible regulation of immigration. Not “every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted.” Id. at 355. A “regulation of immigration. . . is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id. 45
The Court proceeded to discuss field pre-emption. With regard to field pre-emption, the Court reviewed the Immigration and Naturalization
45Plaintiffs argue that the instant ordinances are impermissible regulations of immigration. Based upon this definition of “regulation of immigration” however, we find that the laws are not unconstitutional on that ground. They do not regulate who can or cannot be admitted to the country or the conditions under which a legal entrant may remain.
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Act (“INA”) and found its central concern is “with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” Id. at 359. The Court noted that although the statute provided a comprehensive scheme for the regulation of immigration and naturalization “without more” it could not conclude that the employment of illegal aliens was within the “central aim” of the law. Id. The Court only found a peripheral concern with the employment of illegal entrants in the INA. Id. at 360. This peripheral concern was evidenced in a proviso to one of the statute’s sections that indicated employment of an illegal entrant was not harboring. Id. Thus, field pre-emption with regard to the employment of illegal aliens was inapplicable. 46
Since, DeCanas, however, Congress has passed IRCA. Instead of employment being only addressed in a proviso to one section of the INA, a complete statutory scheme has now been enacted that addresses the employment of unauthorized workers. Therefore, defendant’s reliance on
46 The Court then reviewed conflict pre-emption. It concluded that the record was not sufficiently complete to provide a conflict-preemption review and remanded the case to the California court for this determination. DeCanas, 424 U.S. at 363.
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DeCanas is misplaced.47
As set forth in detail above, Congress has in fact enacted a
comprehensive legislative scheme with regard to the employment of
unauthorized aliens and occupies the field to the exclusion of state law.
See Adullah v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999)
(finding implied field pre-emption with regard to air safety standards as the
Federal Aviation Act and other federal regulations establish complete and
thorough safety standards for interstate and international air
47Defendant also relies on Incalza v. Fendi North America, Inc., 479 F.3d 1005 (9th Cir. 2007) to support its position that pre-emption is applicable. This case does not support the defendant’s position. Incalza holds that it is not a conflict with IRCA for an employer to place an employee on unpaid leave while that employee’s work authorization problems are remedied. Id. 1010-11.
The court only examined conflict pre-emption and did not discuss field pre-emption. Defendant reasons that: “If Plaintiff’s sweeping field preemption theory were correct, the Incalza Court would have had to strike down the state law at issue, as it would have constituted impermissible state regulation in a field occupied by Congress.” (Doc. 219, Def.’s Br. at 83-84). We disagree. The court simply did not decide the field preemption issue. In fact, it noted that the parties did not argue the issue of field pre-emption, and conflict pre-emption was the only type of preemption at issue. Id. at 1010, n.2. Defendant asserts that Incalza is “yet another example of a recent court holding recognizing that a state or local law designed to discourage illegal immigration is not preempted.” Id. at 84. Defendant’s interpretation of Incalza is incorrect. The ruling can more accurately be seen as providing more rights to aliens in that it holds that immediate termination is not required under IRCA when an alien is found to be unauthorized. Instead, an employee with a work authorization problem may be placed on unpaid leave until that issue is resolved.
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transportation).48
ii. Conflict pre-emption
The final form of pre-emption is conflict pre-emption.49 Conflict pre-
emption exists where either (1) the state law “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
48Defendant asserts that state courts have found IRCA does not preempt state laws. In support of this position defendant cites Safeharbor Employer Servs. I, Inc. v. Cinto Velazquez, 860 So. 2d 984, 986 (Fl. Ct. App. 2003). Defendant’s reliance on Safeharbor is unconvincing. In that case, the District Court of Appeal of Florida held that the Florida Workers’ Compensation Act allows benefits to illegal aliens, and IRCA does not preempt the award of such benefits. Id. at 986. Safeharbor does not address the issue of whether a state or municipality is pre-empted from enacting legislation addressing the issue of employment of unauthorized workers. Workers’ compensation laws such as those addressed in Safeharbor deal with compensating workers injured on the job, not the hiring and employment of those aliens. See also,Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219 (2d Cir. 2006) (finding that federal law did not pre-empt New York law that allowed injured undocumented workers to recover compensatory damages for lost earnings); Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 329 (Minn. 2003) (explaining that IRCA does not pre-empt state workers’ compensation laws as it is not aimed at impairing existing state labor protections). Once again, however, defendant has cited a case that provides rights to illegal aliens, which is inconsistent with its overall theme that such individuals have no rights.
49The Supreme Court has explained that field pre-emption and conflict pre-emption are not “rigidly distinct.” “Indeed, field pre-emption may be understood as a species of conflict pre-emption: a state law that falls within a pre-empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation.” English v. General Elec. Co., 496 U.S. 72, 79 n.5 (1990).
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Congress” or (2) it is “impossible for a ... party to comply with both state and federal law.” Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 899 (2000).
IIRA and IRCA have similar purposes in that both address the employment of unauthorized aliens. For example, IRCA makes it unlawful “to hire, or to recruit or refer for a fee for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment” or to hire for employment an individual without first complying with the act’s verification requirements. 8 U.S.C. § 1324a(a)(1).
Likewise, IIRA provides: “It is unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City [of Hazleton].” (IIRA § 4.A.)
Although the federal and local laws have a similar goal, the means to reach that goal are different. Under federal law, to establish that they are not hiring unauthorized workers, employers can utilize the I-9 Employment Eligibility Verification Form. 8 C.F.R. § 274a.2(a); Getahun v. Office of Chief Administrative Hearing Officer, 124 F.3d 591, 596 (3d Cir. 1997). In
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addition to completing this form prospective employees must present documents to establish both their identity and their employment eligibility.50 The employer must examine these documents to determine if they reasonably appear on their face to be genuine. 8 U.S.C. § 1324a(b)(1)(A)(ii).
Under the Hazleton Ordinance, an employer must collect from the employee “identification papers” and provide them to the Hazleton Code Enforcement Office.51 The Code Enforcement Office then verifies with the federal government whether the employee is an unauthorized worker. (IIRA § 4.B.(3)). The primary conflict in this area is that under federal law, the employer has the responsibility to review the documents, and in the Hazleton Ordinance, the employer is required to present the documents to the Code Enforcement Office, which contacts the federal government to determine the status of the worker. The Hazleton Ordinance, therefore,
50Such documents include, inter alia: 1) a United States passport; 2) alien registration receipt card; 3) an unexpired foreign passport; and 4) an unexpired employment authorization document. 8 C.F.R. § 274a.2(b)(v)(A). See also 8 U.S.C. § 1324a(b)(1)(c). Additionally, the potential employees may establish their identities with, inter alia, 1) a driver’s license; 2) a photographic school identification card; 3) a voter’s registration card; and 4) a U.S. military card or draft record. 8 C.F.R. § 274a.2(b)(v)(B). See also 8 U.S.C. § 1324a(b)(1)(D).
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supplements the requirements of federal law. IIRA also conflicts with federal law in that under federal law,
employers need not verify the immigrant status of certain categories of workers. For example, casual domestic workers and independent contractors are not covered by the federal requirements. 8 C.F.R. § 2741a.1. IIRA contains no such exclusions.
IRCA prohibits employers from knowingly hiring or knowingly continuing to employ aliens who are unauthorized to work in America. See 8 U.S.C. § 1324a(a)(1)(A). Initially plaintiffs pointed out that IIRA does not require the element of knowledge. (IIRA § 4.A.). A last minute amendment during the trial of this matter added the element of knowledge to section 4.A. Nonetheless, IIRA still provides for strict liability, without the element of knowledge, with regard to the civil cause of action that it creates. See IIRA § 4.E. The federal IRCA statute does not create such a cause of action.
IIRA also conflicts with IRCA in its treatment of the Basic Pilot Program. “The Basic Pilot Program is a voluntary, experimental program created by Congress to permit employers to electronically verify workers’ employment eligibility with the U.S. Dep. Of Homeland Security and the
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Social Security Administration.” Note following 8 U.S.C. § 1324a. Under federal law, participation in the Basic Pilot Program is not mandatory. Under IIRA, participation in the Basic Pilot Program is at times mandatory. See IIRA § 4.C. (providing that all Hazleton city agencies must participate in the Basic Pilot Program); § 4.D. (requiring that all businesses that seek a City contract or grant must participate in the Basic Pilot Program).
Another conflict exists in the time frames utilized by each enactment. Under IRCA, an employee can contest a nonconfirmance (that is an initial finding that he is unauthorized to work) by the Basic Pilot Program within eight (8) days. 62 C.F.R. 48309(IV)(B)(2)(a). The Social Security Administration and federal immigration officials have ten (10) federal work days to respond. (Id.) The employer may not terminate the employee or take other adverse action against him based upon his employment eligibility status during this time period. (Id.). Under IIRA, no appeal right is provided to the employee, and in fact, the employer must terminate the employee within three (3) business days. (IIRA § 4.B.3). Thus, in direct conflict with IRCA, Hazleton seeks to force an employer to terminate an employee where under federal law the employer is prohibited from terminating that employee. Additionally, under the Hazleton Ordinance, the
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only appeal right appears to be held by the employer who may toll the three (3) day termination period. (IIRA § 7.C.(2)). Without providing any appeal rights to the employee, IIRA is in conflict with the federal law.
Thus, this case is analogous to Rogers v. Larson, 563 F.2d 617 (3d Cir. 1977). Rogers dealt with a Virgin Islands law relating to the admission and employment of nonimmigrant aliens. The law called for the termination of a nonimmigrant’s employment if a qualified resident worker was available for the position. Id. at 619. Although federal law also addressed the employment of nonimmigrant aliens, the federal law provided more protection for the nonimmigrant aliens than the Virgin Islands law did. Nonimmigrant aliens challenged the law as federally preempted. The court noted that both the federal laws and the Virgin Island law had the same purposes of “assuring an adequate labor force . . . and to protect the jobs of citizens[.]” Id. 626. However, in order to serve both these goals, “any statutory scheme . . . must inevitably strike a balance between the two goals.” Id. In that case, as the Virgin Islands and the United States had struck the balance between the goals differently, the Virgin Islands’ law amounted to “an obstacle to the accomplishment and execution of the full purposes and objectives of the” federal law. Id.
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Likewise in the instant case, although it appears that the goals of the two laws may be similar, a different balance between the rights of businesses and workers and the goal of preventing illegal employment is struck and IIRA ultimately ignores one of IRCA’s main objectives. A bit of a background on immigration enforcement is helpful to understand this issue.
Under federal law there are two types of immigration enforcement: border enforcement, which is keeping unauthorized persons from entering the country; and interior enforcement, which is distinguishing between legal and undocumented immigrants already in the country and removing the latter. (N.T. 3/15/07 at 14). In interior enforcement, officials must strike a balance between finding and removing undocumented immigrants without accidently removing immigrants and legal citizens, all without imposing too much of a burden on employers and workers. (Id. at 15). Too stringent of an enforcement system will result in the wrongful removal of United States citizens and legal immigrants. (Id.) United States foreign relations is affected by the manner in which the balance is struck. Excessive enforcement jeopardizes our alliances and cooperation with regard to matters such as immigration enforcement, drug interdiction and counter-
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terrorism investigations. (Id. at 16-17). Accordingly, the United States political system places the responsibility for striking this balance with the United States Congress and the executive branch. (Id. at 15). In discussing the ordinances in the instant case, city council and the mayor did not consider the implications of the ordinances on foreign policy. (N.T. 3/14/07 at 87-89). Their only concern, as might be expected, was for Hazleton. (Id.)
Thus, IRCA and IIRA share a similar purpose: to prevent the employment of persons not authorized to work in the United State while not overburdening the employer in determining whether an employee or perspective employee is an authorized worker. The two laws, however, strike a different balance between these interests. The laws, therefore, conflict.
IRCA also seeks to prevent discrimination against legally admitted immigrants. The law makes it an unfair immigration-related employment practice to discriminate against a person with respect to hiring, recruitment or referral for a fee because of a person’s national origin or because of an individual’s citizenship status. 8 U.S.C. § 1324b. IIRA has no antidiscriminatory provisions, and this omission represents another conflict.
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This case is also analogous to Hines v. Davidowitz, 312 U.S. 52 (1941). In Hines, the Commonwealth of Pennsylvania enacted an Alien Registration Act, which required aliens 18 years of age or older to register once a year, provide certain information, pay a registration fee and receive an alien identification card that they had to carry at all times. Id. at 56. The law further required aliens to present the identification card whenever demanded by a police officer or agent of the Department of Labor and Industry, and present the card before obtaining a driver’s license or buying an automobile. Id. Violators of the act were subject to possible fines and imprisonment. Id. at 60. The federal government also had in effect an alien registration statute. This law required a single registration of aliens fourteen (14) years of age and older, certain information and fingerprinting. Id. at 60. It also provided for the secrecy of the federal files, and it did not require the aliens to carry a registration card or require them to exhibit it to the police or others. Id. 60-61. Violators of the act were subject to possible fines and imprisonment. Id. at 61.
The Pennsylvania law was challenged as precluded by the federal alien registration scheme. The Supreme Court held: “[W]here the federal government, in the exercise of its superior authority in this field, has
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enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement the federal law, or enforce additional auxiliary regulations.” Id. at 66. In finding that the law was unconstitutional, the Court noted: “And it is . . . of importance that this legislation deals with the rights, liberties and personal freedoms of human beings[.]” Id. at 68.
In support of its position that its Alien Registration Act was constitutional, Pennsylvania cited numerous cases where state legislation was upheld although it applied to aliens only. Id. 69 n.23. The Court noted, however, that in these cases Congress had not passed legislation on the subject of the various acts. Id.
In Hines as well as the instant case, however, Congress passed legislation aimed at the very issue addressed by the State or local law. Specifically, in this case, the federal government in exercising its superior authority in the field of immigration has enacted a complete scheme of regulation on the subject on the employment of unauthorized aliens. Hazleton cannot conflict, interfere, curtail or complement this law. As set forth above, Hazleton’s Ordinance does conflict, interfere with and
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complement IRCA. It is therefore conflict pre-empted. Defendant seems to argue that the law is constitutional because it is
aimed at illegal aliens who have no right to be in the United States. Defendant’s position fails to acknowledge that the law will affect more than illegal aliens. It will affect every employer, every employee who is challenged as an illegal alien and every prospective employee especially those who look or act as if they are foreign. As noted above, the Ordinance, unlike its superior federal counterpart, contains no antidiscrimination provisions.
The United States Supreme Court has noted: “Opposition to laws permitting invasion of the personal liberties of law-abiding individuals, or singling out aliens as particularly dangerous and undesirable groups, is deep-seated in this country. Hostility to such legislation in America stems back to our colonial history[.]” Id. at 70. The Court further noted: “As early as 1641, in the Massachusetts ‘Body of Liberties’ ,we find the statement that “Every person within this Jurisdiction, whether Inhabitant or forreiner, shall enjoy the same justice and law that is generall for the plantation ***.’” Id. at 71 n.27.
In conclusion, the employment provisions of IIRA differ from and
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conflict with IRCA. It is thus in violation of the Supremacy Clause of the United States Constitution.
2. Tenancy provisions The Hazleton ordinances contain two sets of provisions affecting tenancy in the city. The first is a “harboring” provision of the IIRA that prohibits the housing of certain aliens. (IIRA §§ 5 and 7.B.) The second is the Tenant Registration Ordinance, (hereinafter “RO”), which requires all occupants of rental units to obtain an occupancy permit.52 In order to receive such a permit, an applicant must provide “proof of legal citizenship and/or residency.” (RO § 7.b.1.g). We will discuss the provisions of these two laws separately and then analyze the pre-emption arguments.
a. Housing illegal aliens Plaintiffs assert that the “harboring” portion of IIRA is conflict preempted because it is directly at odds with the federal immigration system.
52The official title of the ordinance is: “ORDINANCE 2006-13,
ESTABLISHING A REGISTRATION PROGRAM FOR RESIDENTIAL RENTAL
PROPERTIES; REQUIRING ALL OWNERS OF RESIDENTIAL RENTAL PROPERTIES TO DESIGNATE AN AGENT FOR SERVICE OF PROCESS; AND PRESCRIBING DUTIES OF OWNERS, AGENTS AND OCCUPANTS; DIRECTING THE DESIGNATION OF AGENTS;
ESTABLISHING FEES FOR THE COSTS ASSOCIATED WITH THE REGISTRATION OF
RENTAL PROPERTY; AND PRESCRIBING PENALTIES FOR VIOLATIONS.” (EX. A, DOC. 82-2).
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It prohibits landlords from “harboring” “illegal aliens.” (IIRA § 5.A.) “Harboring” is defined as letting, leasing or renting a dwelling unit to an illegal alien or permitting the occupancy of a dwelling unit by an “illegal alien” knowingly or in reckless disregard of the fact that the alien has come to, entered or remains in the United States in violation of the law. (Id.).
Generally, IIRA provides a complaint procedure where a Hazleton official, business entity or resident can file a written complaint that a landlord is harboring an “illegal alien.” (IIRA § 5.B.(1)). The Code Enforcement Office next obtains “identity data” from the owner regarding the tenant. (IIRA § 5.B.(3)). The Code Enforcement Office then consults with the federal government to determine the tenant’s immigration status. If the verification reveals that the owner is in violation of the harboring provisions, he must correct the violation or face fines and suspension of his rental license. (IIRA § 5.B.(4) & § 5.B.(8)). 53
b. Tenant Registration Ordinance The second housing provision at issue, RO, requires, inter alia, that each person who seeks to occupy a rental dwelling obtain an “occupancy
53The provisions of the harboring regulations are addressed more particularly below with respect to the due process issues.
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permit” from Hazleton.54 In order to obtain a permit, a potential tenant must supply to the Code Enforcement Office “proper identification showing proof of legal citizenship and/or residency.” (RO § 7.b.1.g)). A landlord is prohibited from allowing occupancy of a rental unit unless all the occupants have obtained an occupancy permit. (RO § 7.b.).
If a landlord allows a tenant who does not have an occupancy permit to occupy a rental unit he faces a $1,000.00 fine “for each Occupant that does not have an occupancy permit and $100 per Occupant per day for each day that the Owner or Agent continues to allow each such Occupant to occupy the Rental Unit without an occupancy permit after Owner or Agent is given notice of such violation[.]” (RO § 10.b.).
If a tenant has an occupancy permit, but he allows other occupants to reside at the premises who do not have permits, he is in violation of the ordinance and faces the same $1,000.00/$100 per occupant per day fine.55
54The permit costs ten dollars, but the fee is waived for those over age 65. (RO § 7.b.).
55The city passed Ordinance 2006-35 subsequent to passing this ordinance. Ordinance 2006-35 has the same title as this “Tenant Registration” ordinance, but, it does not contain the occupancy permit requirements. Ordinance 2006-35 evidently did not repeal this ordinance, however, and was meant only to fill the gap with regard to registering residential rental properties while the “Tenant Registration” is challenged.
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(RO § 10.b.). Plaintiffs argue that the housing provisions of IIRA and RO are
conflict pre-empted. As set forth above, a local ordinance is conflict preempted where either (1) the local ordinance “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” or (2) it is not possible to comply with both the federal and state law. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 899 (2000).
Plaintiffs assert that the IIRA and RO are in direct conflict with federal law because they are based upon the assumption that: 1) the federal government seeks the removal of all aliens who lack legal status and 2) “a conclusive determination by the federal government that an individual may not remain in the United States can somehow be obtained outside of a formal removal hearing.” (Doc. 106, Pl. Br. at 11). After a careful review, we agree.
Initially, we note that it is completely within the discretion of the federal officials to remove persons from the country who are removable.56 Indeed, the federal government permits several categories of persons who
56In fact at trial, Stephen Yale-Loehr, an expert in immigration law, testified that the federal government frequently exercises its discretion not to try to remove persons from the country even though they may lack lawful immigration status. (N.T. 3/19/2007 at 114, 127).
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may not be technically lawfully present in the United States to work and presumably live here. For example, the following can receive permission from the federal government to work in the United States: 1) aliens who have completed an application for asylum or withholding of removal; 2) aliens who have filed an application for adjustment of status to lawful permanent resident; 3) aliens who have filed an application for suspension of deportation; 4) aliens paroled into the United States temporarily for emergency reasons or reasons deemed strictly in the public interest; 5) aliens who are granted deferred action “an act of administrative convenience to the government which gives some cases lower priority[.]” 8 C.F.R. § 274a.12(c) ¶¶ 8-11, 14. Additionally, aliens who have a final order of deportation against them but are released on an order of supervision may obtain permission to work. Id. ¶ 18; see also 8 C.F.R. § 274a.12(a) ¶¶ 11 - 13; 18 - 20, 22, 24) (listing more categories of aliens who may be violating immigration laws but may nonetheless obtain permission to work in the United States by the federal government). In addition, aliens who have final orders of removal against them may be ordered released from detention by the courts if there is no likelihood of their removal in the foreseeable future. See Zadvydas v. Davis, 533 U.S.
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678 (2001). Although these aliens are permitted to work and implicitly to remain in the United States, they would be denied housing in Hazleton under the IIRA and RO. The ordinances thus conflict with federal law.
Furthermore, changing status from authorized to unauthorized is complex. For example, some individuals can affirmatively apply for regularization of status. In other instances, regularization of status is only available after an individual has been placed in removal proceedings by the federal government (even if the operative facts justifying relief predate the commencement of the removal hearing). (N.T. 3/19/07 at 118-121). It may take months or years for an applicant to adjust status, obtain relief or otherwise regularize status. (N.T. 3/19.97 at 128-129). Submitting an application does not change an individual’s immigration status, even if the application is bona fide and will ultimately be approved. (N.T. 3/19/07 at 116-117). A person who is proceeding through the procedure to adjust his immigration status but who currently lacks immigration status frequently will not have any documents to indicate whether he has a valid claim to remain in the country.57 (N.T. 3/19/07 at 121).
57For example, during the trial testimony indicated that during the 1990s Congress enacted an adjustment of immigration status referred to as “245(I).” This statute allowed certain persons in the United States illegally to pay a $1,000.00 penalty and then their status would be adjusted
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The ordinances also conflict with federal law in that they assume that the federal government seeks the removal of all undocumented aliens. As the Supreme Court has noted: “An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen.” See, e.g., 8 U.S.C. §§ 1252, 1253(h), 1254 (1976 ed. and Supp.IV).” Plyler, 457 U.S. at 226. The United States government, however, determines whether to remove an alien only through formal procedures set forth in the Immigration and Nationality Act, 8 U.S.C. § § 1101 et seq. and related regulations. Furthermore, the federal process provides procedural safeguards that include administrative appeal and judicial review. See 8 U.S.C. § 1229a; 8 C.F.R. 240, 1240.
Even if an alien is deemed removable after removal proceedings, they may nonetheless be allowed to stay in the United States. For example, relief from removal may be obtained by spouses and other
and they would receive a green card. Hundreds of thousands of individuals applied for relief under this enactment before it expired on April 30, 2001, but they have not yet all received their green cards. Technically, these people are removable from the country although once their applications are processed they will have a green card. N.T. 3/19/07 116117. Immigration officials use their discretion not to remove these individuals with green card applications pending. N.T. 3/19/07 at 117. These individuals would not be allowed to live in Hazleton under its ordinances.
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relatives of United States citizens, 8 U.S.C. § 1154; 8 U.S.C. § 1229b;
victims of domestic violence, 8 U.S.C. § 1229b(b)(2); and those seeking
protection from persecution or torture under the Convention Against
Torture, 8 U.S.C. § 1231(b)(3); 8 C.F.R. § § 208.16-18.
Additionally, under 8 U.S.C. 1229b, the United States Attorney
General
may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien - - (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. 8 U.S.C. § 1229b.
Hence, the federal immigration rules and the decision whether an
alien should be removed are very complex. More than resorting to the
Basic Pilot Program or the Systematic Alien Verification for Entitlements
(“SAVE”)58 is necessary to determine if federal government seeks the
58SAVE “is an existing federal eligibility system used to verify status for various federal-state cooperative programs such as the Aid to Families with Dependent Children (“AFDC”), Food Stamps, Medicaid and Unemployment Compensation programs under which eligibility is dependent on lawful immigration status. See 42 U.S.C. § 1320b-7(b)(1) and 45 C.F.R. § 233.50 (AFDC); 42 U.S.C. §§ 1320b-7(b)(2) and
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removal of an individual from the United States. As Supreme Court Justice Blackmun noted: “[T]he structure of the
immigration statuses makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.” Plyler, 457 U.S. at 236 (Blackmun, J., concurring). Additionally, Supreme Court Justice Lewis F. Powell stated: “Until an undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be found to have a federal permission to reside in the country.” Plyler, 457 at 241 n.6 (Powell, J., concurring).
Hazleton’s ordinances burden aliens more than federal law by prohibiting them from residing in the city although they may be permitted to remain in the United States. The ordinances are thus in conflict with federal law and pre-empted.
RO is additionally in conflict with federal law because it calls upon the employees of the Hazleton Code Enforcement Office to examine the
1396b(v)(1) (Medicaid); 7 U.S.C. § 2015(f) and 42 U.S.C. § 1320b-7(b)(4) (Food Stamps).” League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 770 (C.D.Cal. 1995). Defendant’s brief indicates that the United States Bureau of Citizenship and Immigration Services at the Department of Homeland Security confirmed with defendant’s counsel that it intended to use SAVE when responding to verification requests regarding Hazleton tenants. (Doc. 87, Def. Br. At 28-29).
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paperwork of those seeking permits and determine if they are properly in the country. This procedure is in direct conflict with federal law. Immigration status can only be determined by an immigration judge. 8 U.S.C. § 1229a(a)(1) (“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.”). Further, the proceeding before the immigration judge is the “sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.” 8 U.S.C. § 1229a(a)(3) (emphasis added).
Thus, for all the reasons set forth above, the housing provisions of the IIRA and the Tenant Registration Ordinance are preempted by federal law and are unconstitutional. B. Procedural Due Process
Plaintiffs’ second cause of action asserts that the ordinances at issue violate the procedural protections of the Due Process Clause found in the Fourteenth Amendment of the United States Constitution. (Compl. ¶¶ 132 - 145). The Due Process Clause prohibits a deprivation of “life, liberty or property” without due process of the law.
Plaintiffs assert that the ordinances at issue impinge on both their
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property and liberty interests and provide only illusory process. Defendant argues that the plaintiffs have no legitimate interest at stake, and regardless, the ordinances provide sufficient process. After a careful review, we agree with the plaintiffs. We will address first the interests that are at stake and then examine the process provided by the ordinances. Once again we will address the employment provisions and housing provisions of the ordinances separately.
1. Employment Provisions a. Protected interest
In order to determine whether the protections of the due process clause apply, we must first determine whether the interests involved are encompassed in the Fourteenth Amendment’s protection of liberty or property. Baraka v. McGreevey, 481 F.3d 187, 205 (3d Cir. 2007). “‘Liberty’ and ‘property’ are broad and majestic terms. They are among the ‘(g)reat (constitutional) concepts . . . purposely left to gather meaning from experience . . . (T)hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.’” National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter J.,
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dissenting) quoted in The Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972). The analysis of the interests asserted in the instant case is not overly complex; the appellate courts have already discussed interests similar to those asserted by the plaintiffs.
The employer plaintiffs, including the members of the Hazleton Hispanic Business Association, possess Fourteenth Amendment property and liberty interests in running their businesses. “[A] business is an established property right entitled to protection under the Fourteenth Amendment.” College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 361 (3d Cir. 1997). Additionally, the individual plaintiffs have an interest in their employment. The United States Supreme Court has explained that “the significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985). The Court further noted: “While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job.” Id.
In a case dealing with an Arizona state statute that discriminated
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against aliens, the Court further noted: “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41 (1915). These rights are both ‘liberty’ and ‘property’ rights. Green v. McElroy, 360 U.S. 474, 492 (1959) cited in Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1259 (3d Cir. 1994). Defendant argues that employers have no right to enter into employee contracts with unauthorized workers; therefore, no protected interests are at stake. Defendant’s argument is unconvincing. The argument presupposes that the Ordinance will affect only unauthorized workers. Actually, however, the IIRA affects all who are challenged under the law and all employers who have employees challenged.
Regardless, the Due Process Clause of the Fourteenth Amendment applies to all “‘persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Kamara v. Attorney General of U.S., 420 F.3d 202, 216 (3d Cir. 2005) (quoting Zadvydas v. Davis, 533 U.S. 678, 693 (2001)); see also Plyler v. Doe, 457 U.S. 202, 210 (1982)(“Whatever his status under the immigration laws, an
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alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”).
As significant constitutional due process rights are at issue, the question then becomes whether the Ordinance provides sufficient procedural safeguards to protect these important interests. In other words, we now must determine whether the Ordinance provides process sufficient to satisfy the Fourteenth Amendment.
b. Process due “The fundamental requirements of due process are notice and a meaningful opportunity to be heard, but the concept is flexible, calling for procedural protection as dictated by the particular circumstances.” Harris v. City of Philadelphia, 47 F.3d 1333, 1338 (3d Cir. 1994) (internal quotation marks and citation omitted). “‘[D]ue process’ is a flexible concept . . . the processes required by the Clause with respect to the termination of a protected interest will vary depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur. ” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305,
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320 (1985).
Accordingly, we must examine the process available under the
ordinances to determine whether adequate notice and hearing are
provided. With regard to the employment provisions of the Ordinance,
enforcement commences with the filing of a complaint alleging that a
business entity employs unlawful worker(s) with the Hazleton Code
Enforcement Office. (IIRA § 4.B.(1)). A complaint can be filed by "any
official, business entity, or City resident." Id. Next, the city determines if
the complaint is valid. The Ordinance does not indicate how the validity of
a complaint is determined, it merely states that a complaint alleging a
violation based upon national origin, ethnicity, or race is invalid.59 Once a
59Robert Dougherty, Hazleton’s Director of Planning and Public Works oversees the Code Enforcement Office, which includes the Rental Registration Office. (N.T. 3/16/07 at 39-40). As such, Dougherty is designated to oversee the implementation and enforcement of IIRA. (Id. at 48-49). Dougherty indicated that not all complaints will be deemed valid. Id. at 72. To be valid, the complaint must be in writing, have an address for the violation and the type of violation. It would have to be signed by the complainant and dated. Id. at 99. An investigatory process would be utilized to determine if the complaint was valid. Id. at 72, 99. Examples of an investigation include driving by the property and calling the complainant to obtain additional information. Id. at 99. He also testified that they would attempt to notify the tenant and employee that a complaint had been lodged. Id. at 110. Nothing in the Ordinance requires such notice or explains the investigation that the Dougherty intends to implement. As we are dealing with a facial challenge to the Ordinance and not an “as applied” challenge, we do not have to take into consideration the testimony of the
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complaint is deemed valid, the city obtains "identity information" within three days from the business entity and verifies with the federal government the immigration status of the challenged employee under 8 U.S.C. § 1373(c). (IIRA § 4.B.(3)). The term "identity information" is not defined in the Ordinance.
If the employer fails to provide the identity information within three (3) days, the Code Office must suspend the employer’s business permit. (IIRA § 4.B.3). This suspension is mandatory and it is not dependent upon a finding that an “unlawful worker” has been hired.
If the employer fails to provide the identity information, and the challenge to the worker is that he is an unauthorized alien as defined in 8 U.S.C. § 1324a(h)(3), the Code Office must “submit the identity data required by the federal government to verify, pursuant to United States Code Title 8, section 1373, the immigration status of such person(s)[.]” 4.B.3. The Ordinance does not provide a procedure for such verification besides reference to 8 U.S.C. § 1373, which does not establish a verification mechanism. It merely requires the Immigration and
manner in which the Code Enforcement Office intends to enforce the ordinances.
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Naturalization Service to respond to inquiries from federal, state and local government seeking the citizenship or immigration status of individuals.
Once the verification is completed, the Code Office provides the results to the employer. (IIRA § 4.B.3). If the employer is in violation of IIRA, it must correct the violation within three (3) business days. (IIRA § 4.B.4). Such correction includes either a) termination (or attempted termination) of the worker’s employment; b) acquiring from the worker additional information and requesting a secondary or additional verification from the federal government of the worker’s authorization. (IIRA § 7.C). If the employee challenges his termination in a Pennsylvania court, the three (3) day period is tolled. (IIRA § 7.C.(3)).
If the employer fails to correct the violation within the required time frame, the Code Office must suspend the entity’s business permit. (IIRA § 4.B.(4)). If, however, the business had previously used the federal government’s “Basic Pilot Program” to verify the worker’s status, the Code Office will not suspend the business’s permit. (IIRA § 4.B.(5)).
If a business license is suspended, it can be restored in one business day after a sworn affidavit is provided stating that the violation ended. (IIRA § 4.B.(6)). The affidavit must provide the name, address and
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other “adequate identifying information” of the unlawful worker. (IIRA § 4.B.(6)(a)). If the appropriate authorities verify that the business entity employed two or more workers who are unlawful due to being “unauthorized aliens” as defined in 8 U.S.C. § 1324a, the business entity also must provide documentation that it has enrolled and will participate in the Basic Pilot Program. (IIRA § 4.B.(6)(b)). Where a business entity violates the Ordinance a second time or subsequent times, its business permit is suspended for twenty days by the Code Office. (IIRA § 4.B.(7)). The sole procedural protection provided to employees or employers under the Ordinance is to file an action “in the Magisterial District Court for the City of Hazleton, subject to the right of appeal to the Luzerne County Court of Common Pleas.” (IIRA § 7.(F)).
Now that we have discussed the procedures available under IIRA, we must determine if they provide notice and an opportunity to be heard. We find that they do not.
As set forth above, notice is the cornerstone of due process. IIRA fails to require that anyone provide notice to an employee when a complaint is filed or at any time during the proceedings. In fact, when a complaint is filed, the employer could merely fire the employee and avoid
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the hassle of determining the employees immigration status. Nothing in IIRA provides protection to the employee from such action. Thus, it violates the fundamental principle of due process and is unconstitutional.
Additionally, when a complaint is filed, the Code Enforcement Office requires the employer to provide "identity information."60 IIRA does not specify the nature of this information. Therefore, the employers are left not knowing what documents they need for the "hearing." The employer can request a second or additional verification, however, no such right is provided to the affected employee. Such notice, therefore, is inadequate.
The final level of "hearing" that both the employer and employee may use according to IIRA is resort to the Pennsylvania court system. The Pennsylvania courts, however, do not have the authority to determine an alien’s immigration status. Federal law makes no provision for a state court to make a decision regarding immigration status. Such status can only be determined by an immigration judge. 8 U.S.C. § 1229a(a)(1) (“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.”). Furthermore, the proceeding
60Under federal law, when identity information is required, the law sets forth specifically what type of documentation is necessary. See, e.g., 8 U.S.C. § 1324a(b)(1) (setting forth the documents that an employer must examine to verify that an individual is not an authorized alien).
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before the immigration judge is the “sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.” 8 U.S.C. § 1229a(a)(3).61
Thus, IIRA attempts to provide procedural protection to those affected by it by resorting to courts that do not have jurisdiction over determinations of immigration status. To refer those affected by IIRA to a court that cannot hear their claim is a violation of due process.
For the above reasons, we find that IIRA violates the due process rights of both the employers and employees and is thus unconstitutional.
2. Landlord/tenant provisions a. Protected right
The other group of issues involve landlords and tenants. These individuals, like the employers and employees, possess interests protected
61We note that for federal proceedings to determine the status of an alien, significantly more rights are provided to the alien. For example, an alien has the right to counsel, the right to a reasonable opportunity to examine the evidence against him, the right to present his own evidence, and the right to cross examine witnesses. 8 U.S.C. § 1229a(b)(4). These protections are considerably different from those provided by the ordinances, which do not even require that an alien be notified when a complaint is filed.
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by the Due Process Clause. According to the Supreme Court of the United States: “It cannot be disputed that tenants have a property interest in their apartments for the term of their lease.” Lindsey v. Normet, 405 U.S. 56, 72 (1972)(explaining that a "lease or rental agreement gives [a tenant] the right to peaceful and undisturbed possession of the property.").62 As owners of the property, the landlords also have an interest in it as well as in an interest in the rights to income on the property. Id. at 72.
b. Process due As the landlords and tenants both have Fourteenth Amendment property interests, we must examine the process provided by IIRA to determine if sufficient process is provided. Like the employment provisions, enforcement of IIRA commences upon the filing of a complaint with the Hazleton Code Enforcement Office that a landlord is harboring illegal aliens. (IIRA § 5.B.1). A complaint can be filed by "any official, business entity, or resident of the City." Id. If the
62As Justice William O. Douglas noted: “Modern man's place of retreat for quiet and solace is the home. Whether rented or owned, it is his sanctuary. Being uprooted and put into the street is a traumatic experience.” Lindsey v. Normet, 405 U.S. 56, 82 (1972) (Douglas, dissenting in part).
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complaint is considered valid–the Ordinance does not indicate how the validity of a complaint is determined, it merely states that a complaint alleges a violation based upon national original, ethnicity, or race is invalid–the city obtains identity information from the landlord and verifies with the federal government under 8 U.S.C. sec 1373(c), the immigration status of the person at issue.63 The Code Enforcement Office then informs the landlord of the immigration status of the tenant. (IIRA § 5.B.(3)). If the tenant is an illegal alien, the landlord then has five (5) days to "correct" the violation or his rental license is suspended. (IIRA § 5.B.(4)). Corrections can be made as follows: 1) eviction of the tenant; 2) the landlord may collect additional information from the alien and request a second or additional verification under 8 U.S.C. sec 1373(c); or 3) the landlord may commence action against the tenant for recovery or possession of the property. (IIRA § 7.D.).
63Section 1373 provides: (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
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If unsatisfied with the results of the process provided, either the tenant or landlord may bring an action in the Magisterial District Court for the City of Hazleton, with a right to appeal to the Luzerne County Pennsylvania Court of Common Pleas. (IIRA § 7.F.).
Now that we have discussed the procedures available under the Ordinance, we must determine if they provide notice and an opportunity to be heard. For the same reasons discussed above with regard to the employment provisions, we find that procedures provided in the Ordinance are not sufficient to satisfy the requirements of due process.
First and foremost, the Ordinance does not provide any notice whatsoever to a tenant who is the subject of a challenge. An ordinance which could cause people to lose their residences but provides them no notice before eviction certainly does not meet the requirements of due process.64 Thus, the determination can be made without the challenged individual’s participation at all.
Additionally, the statute that the defendant relies upon for the proposition that the federal government must reply to their inquiry with
64The IIRA is silent as to the process the city engages in to obtain “identity data” after a complaint has been filed. Evidently, the Code Enforcement Office obtains the information from the owner of the property and has no dealings at all with the challenged tenant. (IIRA § 5.B.3).
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regard to immigration status, 8 U.S.C. § 1373, does not state the nature of the “identity data” that is needed to verify the tenant’s immigration status. Therefore, the owners are left not knowing what documents they need for the "hearing." To provide for a hearing for which an interested party cannot adequately prepare is a violation of due process.
The owner/landlord can request a second or additional verification, however, no such right is provided to the affected tenant. (IIRA § 7.D.(2).
The final level of "hearing" that both the tenant and owner/landlord may use is resort to the Pennsylvania court system–this is actually the first level of review provided to the tenant. However, as set forth more fully above, the Pennsylvania courts do not have the authority to determine an alien’s immigration status. Such status can only be determined by an immigration judge. Once again, the IIRA seeks to provide a remedy in a court that lacks jurisdiction. This procedure does not comport with the requirements of due process.
Because the IIRA does not provide notice to challenged employees or tenants, does not inform the employers and owners/landlords of the types of identity information needed, and provides for judicial review in a court system that lacks jurisdiction, it violates the due process rights of
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employers, employees, tenants and owners/landlords. It is therefore unconstitutional. C. Equal Protection
Plaintiffs’ third cause of action claims that IIRA violates the Equal Protection Clause of the Fourteenth Amendment by allowing the City to consider race, ethnicity or national origin in determining whether a complaint under the Ordinance is “valid.” (Compl. ¶¶ 146-155). Even though defendant amended IIRA to remove language that plaintiffs argued gave explicit sanction to racial classification, plaintiffs continue to insist that IIRA violates their right to equal protection of the laws. Defendant argues that IIRA implicates neither a fundamental right or a suspect class, and therefore must be judged by the most deferential form of scrutiny. Under this form of scrutiny, defendant contends, IIRA does not violate plaintiffs’ right to equal protection.
The Fourteenth Amendment to the United States Constitution declares that a State may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV § 1. When a plaintiff challenges a policy established by the government, the key question becomes the level of scrutiny to apply to that policy. For policies
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that implicate a fundamental right or use “[s]uspect classifications, such as those based on race, national origin, or alienage” the “‘most exacting scrutiny’” applies. United States v. Williams, 124 F.3d 411, 422 (3d Cir. 1997) (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)); see also Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating a state anti-miscegenation law on equal protection grounds in part because “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”). The United States Supreme Court has called this type of examination “‘strict scrutiny.’” Gratz v. Bollinger, 539 U.S. 306, 326 (2003) (quoting Adarand Contractors, Inc. v. Peña, 515 U.S. 200, 227 (1995)). “This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” Id. Courts use this level of scrutiny “to ’smoke out’ illegitimate uses of race [or other suspect classifications] by assuring that [the government] is pursuing a goal important enough to warrant use of a highly suspect tool.’” Id. (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)). If, however, no suspect class or fundamental right and no classification based on sex is involved, “the statute must be sustained if it bears a rational relationship to a legitimate state interest.”
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Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 53 (3d Cir. 1985).65 In their complaint and pre-trial briefing, plaintiffs argued that the
City’s scheme for enforcing IIRA, where the City responded to complaints from the public about improper hiring or housing of immigrants, violated equal protection rights. This system required the City’s Code Enforcement Office to seek identity information from landlords and employers whenever a City resident, official or business entity submitted a “valid” complaint. Ordinance 2006-18 at §§ 4.B.1, 4.B.3. IIRA also declared that “[a] complaint which alleges a violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” Id. at § 4.B.2. Plaintiffs contended that this language allowed the City to consider race, ethnicity or national origin in enforcing IIRA, and that the policy therefore implicated a suspect classification. They argued that the City had articulated no compelling state interest for the policy, and that the court must therefore find that IIRA violates Equal Protection.
As set forth above, the City has amended IIRA since the plaintiffs filed their second amended complaint. As presently amended, the
65Defendant refers to this level of scrutiny as “minimal scrutiny.” We prefer the term “rational basis” as it derives from the court cases that established the test, better describes the legal standard and does less to imply the outcome of the inquiry.
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Ordinance holds invalid “[a] complaint which alleges a violation on the basis of national origin, ethnicity, or race.” In informing the court of this amendment, Hazleton’s trial counsel argued that the City had made this change “in an effort to simplify this issue and remove the equal protection challenge” from the case. (N.T. 3/12/07 at 52).66 We have already determined that we should evaluate the latest version of the statute, and will do so here. See supra, section IC.
Plaintiffs argue that the latest version of IIRA violates equal protection, even though the City removed language that required enforcement on the basis of race, ethnicity or national origin. They have apparently shifted their emphasis from a focus on the language of the policy itself to an inquiry into the defendant’s intent in amending IIRA. This approach requires a slightly different analysis. The equal protection “clause prohibits states from intentionally discriminating between individuals on the basis of race.” Antonelli v. New Jersey, 419 F.3d 267,
66Hazleton’s counsel declared that the City Council would meet on “Thursday, March 15th, to take out the three words that the Plaintiffs object to and have objected to continuously for page after page in all of their briefs. Those are the words solely or primarily found in Section 4B2 and 5B2 of the ordinance . . . We are doing this to try to remove the issue, to try to accommodate the Plaintiffs.” (N.T. 3/12/07 at 52).
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274 (3d Cir. 2005)). “To prove intentional discrimination by a facially neutral policy, a plaintiff must show that the relevant decisionmaker (e.g., a state legislature) adopted the policy at issue ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pryor v. National Collegiate Athletic Ass’n, 288 F.3d 548, 562 (3d Cir. 2002) (quoting Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). Further, “[a] mere awareness of the consequences of an otherwise neutral policy will not suffice.” Id. “Even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.” Pers. Administrator, 442 U.S. at 272. A party can demonstrate this “intentional discrimination” by, in relevant part, demonstrating that “a facially neutral law or policy that is applied evenhandedly is motivated by discriminatory intent and has a racially discriminatory impact.” Antonelli v. New Jersey, 419 F.3d 267, 274 (3d Cir. 2005).
Plaintiffs point to the testimony of immigration expert Marc Rosenblum, Ph.D., to argue that IIRA will “exacerbate the phenomenon of ‘defensive hiring,’” the practice by which employers choose not to hire
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individuals who “‘might be illegal.’” (N.T. 3/15/07 at 48). A similar problem, he found, would exist for landlords in the same situation. (Id. at 52). Dr. Rosenblum also argued that employers and landlords, facing steep fines and only limited process to protect their rights, would probably choose to end a relationship with anyone accused of illegal status, whether that accusation was warranted or not. (Id. at 59-60). Plaintiffs contend that these actions would more likely affect Latinos than members of other groups, since employers and landlords would utilize an “‘informational shortcut’” and operate on the assumption that illegal aliens are most likely Latinos. (Id. at 61). The City was aware of this testimony about the likely discriminatory effect of IIRA when it passed the amended version of it, plaintiff points out, yet did nothing to address the discrimination that would likely result. This failure to act in the face of knowledge of likely discrimination, plaintiffs argue, should lead the court to conclude that plaintiffs intended to discriminate with their revised IIRA.
Plaintiffs cannot demonstrate discriminatory intent in passing the amended IIRA. They point to the testimony of Hazleton’s mayor and the actions of its council as evidence of a discriminatory intent. At trial, plaintiffs’ attorney asked Louis Barletta, the mayor of Hazleton, whether he
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would “reconsider” the ordinances if evidence appeared that they would have a “discriminatory effect.” (N.T. 3/15/07 at 263). The mayor responded that he did “not believe that it will have a discriminatory effect,” but would in fact “have the opposite” impact. (Id.). When asked if he would repeal the ordinances if evidence indicated that they would have a discriminatory effect, the mayor responded that “I believe if the ordinances are legal, I believe we have the right to enforce them. As long as they’re legal, that is my concern.” (Id.). When asked if he would enforce the ordinances if they were declared legal but had a discriminatory effect, the mayor declared that “if they were legal, and I believe they had a discriminatory effect, I would not present it. If they are legal, and I believe they do not have a discriminatory effect, I would pass the ordinance.” (Id.). An opinion that the ordinances were legal from a court, despite a finding by experts that they were likely discriminatory, would not cause the mayor to change his resolve to enforce the ordinances, since “[e]ven experts have their own biases and opinions.” (Id. at 264). Defendant also apparently passed the amendments more quickly than is usually the case for such legislation, foregoing second and third readings of the statute.
We do not find that the mayor’s testimony or his knowledge of Dr.
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Rosenblum’s testimony about the potential impact of the ordinances demonstrates a discriminatory intent on the part of the mayor sufficient to find IIRA, even with its changed language, violates equal protection. “Discriminatory intent ‘implies that the decision-maker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.’” Antonelli, at 419 F.3d at 274 (quoting Personnel Adm’r, 442 U.S. at 279). At worst, Mayor Barletta testified to an intention to enforce IIRA when a court declared it legal, and he perhaps admitted that he had been aware that the ordinances potentially had a discriminatory effect. He did not testify that his desire was to discriminate or that he urged the City to amend the ordinances out of a desire to obscure its illegal intent. No evidence indicates that Mayor Barletta approved of the ordinances because of their potential discriminatory impact. Similarly, the mere fact that the defendant, in the face of litigation, amended IIRA outside of the usual procedure followed by the City Council does not constitute evidence of a discriminatory intent.67 Instead, the Council appeared to have acted
67Plaintiffs point to Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1979) to argue that a departure from a city’s normal procedures could be evidence of a discriminatory intent. The court in Arlington Heights did find that “[d]epartures from the normal procedural sequence also might
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on the advice of counsel to eliminate provisions in the original ordinance
that could lead to a declaration of unconstitutionality. Plaintiffs offer no
evidence that this change was designed to mask a discriminatory motive.
Plaintiffs therefore have not presented evidence that the ordinances,
despite their facially neutral form, were motivated by a discriminatory
purpose. No equal protection violation exists on those grounds.
As another ground for an equal protection challenge, plaintiffs have
argued that IIRA improperly allows the City to consider race, ethnicity or
national origin in enforcing it. As currently written, the ordinances do not
implicate a fundamental right or use a suspect classification. IIRA’s
enforcement provisions are now facially neutral, since they declare that no
complaint that uses race, ethnicity or national origin will be enforced. The
plaintiffs also do not contend that they implicate a fundamental right, such
afford evidence that improper purposes are playing a role.” Id. at 267. In providing examples of how changes to normal procedures or policies could be evidence of discrimination, the Court cited cases where cities or municipal bodies changed policies to prevent development that threatened to promote integration. See id. at n.16 and n.17. The court did not define what would constitute an “improper departure from a normal procedural sequence.” Id. at 267. In distinction from the cases cited by the court (and the Arlington Heights case itself), however, the City Council in Hazleton did not depart from procedure by refusing to provide permits normally granted to applicants. Instead, the council rushed through an amendment to the Ordinance in an attempt to save that Ordinance from being found in violation of the United States Constitution.
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as marriage. We need not examine the policy using strict scrutiny.
Accordingly, our equal protection analysis must only explore whether IIRA
has “a rational relationship to a legitimate state interest.” Kranson, 755
F.2d at 53. We agree with the defendant that the ordinances meet this
standard. As its interest in passing this legislation, the City claims that it
was motivated by a desire to protect public safety by limiting the crimes
committed by illegal immigrants in the city and to safeguard community
resources expended on policing, education and health care.68 The City
presented evidence that some crimes were committed by illegal aliens.69
Assuming that the City has the right to regulate the presence of illegal
68Testimony at trial indicated that funding for hospitals and schools in Hazleton did not come from the budget of the City of Hazleton. This evidence indicates that Hazleton has overstated the direct cost to the city of the presence of undocumented aliens in town. Nevertheless, we find that many costs for both the City and City residents can be associated with the increased population, particularly when those residents are undocumented workers who present special problems of communication and government-resident interaction.
69Certain testimony at trial concerned violated crimes committed by illegal aliens in Hazleton. The City cited these crimes as the reason for passing its ordinances. The plaintiffs disputed the connection between illegal immigration and crime in Hazleton, arguing that the crime rate had actually decreased during the years when increasing numbers of immigrants moved to the City. Our disposition of this matter focuses on legal issues that do not require us to resolve this dispute. For our analysis on the issue of equal protection, it is sufficient for us to find that the City identified serious crimes committed by illegal aliens as a problem.
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aliens in the city, the City program that provides penalties for those who employ or provide housing for undocumented persons in the City is rationally related to the aim of limiting the social and public safety problems caused by the presence of people without legal authorization in the City. We therefore find that Ordinance 2006-18, as amended, does not on its face violate the plaintiffs’ right to the equal protection of the laws. D. Privacy Rights
Plaintiffs’ eighth cause of action claims IIRA and RO violate their right to privacy as protected in the United States and Pennsylvania Constitutions. (Compl. ¶¶ 200-212).
The City’s Tenant Registration Ordinance mandates the collection of certain information from those who seek authorization to dwell in rental properties. The Ordinance requires “all Occupants” of rental properties to “obtain an occupancy permit.” Ordinance 2006-13 at § 7.b. An applicant for such a permit must supply several pieces of information: “a) Name of Occupant; b) Mailing address of Occupant; c) Street address of Rental Unit for which Occupant is applying, if different from mailing address; d) Name of Landlord; e) Date of lease commencement; f) Proof of age if claiming exemption from the permit fee; g) Proper identification showing proof of
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legal citizenship and/or residency.” Id. at § 7.b.1(a-g). IIRA does not define what constitutes “proper identification showing
proof of legal citizenship and/or residency.” Id. at § 7.b.1.g. RO promises to keep the information “collected by the City . . . confidential.” Ordinance 2006-13 § 12. That information “shall not be disseminated or released to any individual, group or organization for any purpose except as provided herein or required by law.” Id. That “[i]nformation may be released only to authorized individuals when required during the course of an official City, state or federal investigation or inquiry.” Id.
IIRA also requires that the City collect information about the identity of various persons. Under section 4 of IIRA, which deals with “Business Permits, Contracts, or Grants,” the Hazleton Code Enforcement Office is required, upon receipt of a “valid complaint,” to “request identity information from the business entity regarding any persons alleged to be unlawful workers.” Ordinance 2006-18 at § 4.B.3. If the unlawful worker cited in the valid complaint is alleged to be an “unauthorized alien, as defined in United States Code Title 8, subsection 1324(a)(h)(3),”70 the Code enforcement
70That section of the United States Code defines an “unauthorized alien as “an alien [who is] not . . . either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.”
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office is required to “submit identity data required by the federal
government to verify, pursuant to United States Code Title 8, section 1373,
the immigration status of such person(s)[.]”71 The “harboring” provision of
71Title 8 section 1373 of the United States Code reads: “(a) In general. Notwithstanding any other provision of Federal, State or local law, a Federal, State or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities. Notwithstanding any other provision of Federal, State or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. (c) Obligation to respond to inquiries. The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.” We presume that the Ordinance, in declaring that the Code Enforcement Office will “submit identity data required by the federal government to verify” a workers’ status, intends to establish that the Office will provide whatever information the government requests. The Ordinance does not, however, explain what information might be required. We note that 8 U.S.C. § 1324a(b)(1)(C)(i-ii) describes the “(d)ocuments evidencing employment authorization” as “(i) social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States); or (ii) other documentation evidencing authorization of employment in the United
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IIRA requires owners to provide the Code Enforcement Office with “identity data needed to obtain a federal verification of immigration status” within three days of receiving written notice of a complaint to avoid penalties. Ordinance 2006-18 § 5.A.3. A separate provision of the Ordinance specifies that the Code Enforcement Office will “submit identity data required by the federal government to verify immigration status,” but that the Office will “forward identity data provided by the owner to the federal government.” Id. at § 5.B.3.
Courts have recognized two areas of privacy rights: “‘one is in the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.’” United States of America v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir. 1980). This case falls into the first of those categories. “There is no absolute protection against disclosure” of such confidential information. Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 812 F.2d 105, 110 (3d Cir. 1987). When a court evaluates “right to privacy claims, we . . . balance a possible and responsible government interest in disclosure against the individual’s privacy interests.”
States which the Attorney General finds, by regulation, to be acceptable for purposes of this section.” 8 U.S.C. §1324a(b)(1)(C)(i-ii).
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Sterling v. Borough of Minersville, 232 F.3d 190, 195 (3d Cir. 2000). Courts have concluded that “in performing the necessary balancing inquiry . . . ‘the more intimate or personal the information, the more justified is the expectation that it will not be subject to public scrutiny.’” Id. (quoting Fraternal Order of Police, 812 F.2d at 118). Further, in considering whether private information should be disclosed, a court weighs seven factors: “(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognizable interest favoring access.” Doe v. Southeastern Pennsylvania Transportation Authority, 72 F.3d 1133, 1140 (3d Cir. 1995) (citing United States v. Westinghouse Electric Corp., 638 F.2d 570, 578 (3d Cir. 1980)).
For reasons that will become apparent, we will address only the question of whether the ordinances implicate private information. The Records Requested
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Hazleton’s ordinances do not explain with precision which documents are required to complete a valid tenant registration, answer a valid complaint about an illegal worker, or meet the requirements of IIRA’s harboring provisions. The ordinances require only that an applicant under RO provide “proper identification showing proof of legal citizenship and/or residency.” Ordinance 2006-18 at §7.b.1.g. In its brief, defendant contends that the information required by the Ordinance would “[include]: name, address, telephone number, date of birth and proof of citizenship (passport, birth certificate or naturalization document), or in the case of aliens, documentation of status (documentation of lawful permanent residency or ‘green card,’ nonimmigrant visa, or other relevant document issued by the federal government).”72
IIRA is even less clear on what records will be required of businesses and landlords attempting to refute the charges contained in a valid complaint. Business owners charged with employing an unlawful worker
72We note that none of these documents are mentioned in the ordinances. Since we must judge the ordinances on their face, and not how defendant claims the ordinances will be implemented, we cannot accept defendant’s version of the meaning of “proper identification showing proof of legal citizenship and/or residency.” We are also unsure what constitutes other “relevant document[s] issued by the federal government” to establish a legal right to reside in the United States.
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are required to “submit identity data required by the federal government to verify, pursuant to United States Code Title 8, section 1373, the immigration status of such person(s)[.]” Ordinance 2006-18 § 4.B.3. Landlords charged with “harboring” illegal aliens must supply the City with “identity data needed to obtain a federal verification of immigration status.” Id. at § 5.A.3.
We are left to conclude that the ordinances are too vague for us to determine on their face exactly what documents renters, employers and landlords must submit in order to comply. Testimony at trial did not clarify this matter. The ordinances do not require the presentation of any specific documents, and even the sections of the immigration statute that the ordinances cite do not provide a list of documents the government would use to answer the City’s request for a verification of status. See 8 U.S.C. § 1373(c). Without a clearer statement of the documents required from those seeking rental permits or fighting off complaints under IIRA, we cannot determine the discrete types of documents at issue in this case.
We find that we lack adequate information to balance the plaintiffs’ privacy interest in the data requested with the City’s need for that information. Neither party has presented sufficient evidence of what type
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of information will be required from plaintiffs, and plaintiffs have not adduced case law that would allow us to conclude that immigration information is on its face private data. We will therefore dismiss the plaintiffs’ privacy rights complaint.
III. FEDERAL STATUTORY CAUSES OF ACTION In addition to federal constitutional claims, plaintiffs’ complaint raises issues with regard to the federal Fair Housing Act and 42 U.S.C. § 1981. We now turn our attention to these issues. A. Fair Housing Act The plaintiff’s fourth cause of action asserts that the ordinances violate the federal Fair Housing Act (hereinafter “FHA”), 42 U.S.C. §§ 3601 et seq. (Second Am. Compl. ¶ ¶ 157-164.) The FHA prohibits discrimination in residential real estate-related transactions on the basis of “race . . . or national origin.” 42 U.S.C. § 3604(a). Plaintiffs assert that the Defendant’s ordinances discriminate based upon race and national origin in violation of the FHA. (Second Am. Compl. ¶ 163). Plaintiffs challenge the harboring provisions of the IIRA under the FHA. At the time that plaintiffs filed the Second Amended Complaint, these provisions provided: “A complaint which alleges a violation solely or
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primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” (IIRA § 5.B.2) (emphasis added). Plaintiffs’ position is that the wording of the Ordinance allows national origin and race to be relied upon, in part, for a complaint, therefore, the Ordinance violates the FHA.
Plaintiffs also challenge Hazleton’s Tenant Registration Ordinance under the FHA. The Tenant Registration Ordinance requires tenants to show proof of lawful immigration in order to obtain an occupancy permit. (Ordinance 2006-13). This ordinance, however, does not contain a prohibition against discrimination by housing providers. Plaintiffs assert that because the ordinance fails to prohibit discrimination, minority housing seekers will suffer an adverse disparate impact in obtaining housing. In other words, plaintiffs assert that the Tenant Registration Ordinance will be discriminatory in its effect.
We find that plaintiffs’ challenge to these ordinances based upon the FHA is without merit. The defendant amended the IIRA in March 2007, and the Ordinance now reads: “A complaint which alleges a violation on the basis of national origin, ethnicity or race shall be deemed invalid and shall not be enforced.” (Def. Ex. 251, Ord. 2007-7). As the defendant
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removed the offending language from the Ordinance, plaintiffs now argue that, like the Tenant Registration Ordinance, the IIRA will be discriminatory in effect.
Plaintiffs cite the testimony of Dr. Rosenblum that the ordinances are likely to increase discrimination in housing, particularly against those of Latino descent. (See, e.g.,Vol. 4/21:5-12; 47:17- 48:20). We are unconvinced by plaintiffs’ argument.
Plaintiffs present a facial challenge to the ordinances, not an “asapplied” challenge.73 Therefore, we must determine whether the statutes, as written, could not be read to conform to the law. See United States v. Salerno, 481 U.S. 739, 745 (1987) (holding that “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”); Belitskus v. Pizzingrilli, 343 F.3d 632, 648 n.10 (3d Cir. 2003) (holding that “[i]n order to successfully prosecute such a challenge, plaintiffs would have to establish that no set of circumstances exist under which mandatory filing fees are valid.”). In any case, because the statutes have not yet gone into effect,
73Plaintiffs could not bring an “as-applied” challenge as the ordinances have not yet been applied.
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we cannot know whether they would have the discriminatory effect that
plaintiffs claim. We therefore cannot find a Fair Housing Act violation
based on Professor Rosenbaum’s testimony on the predicted effects of the
ordinances.
B. Section 1981
The Fifth Cause of Action found in plaintiffs' complaint asserts a
violation of 42 U.S.C. § 1981 (hereinafter "section 1981"). (Compl. ¶ 165 -
172). Section 1981 provides that “all persons” shall, inter alia, have the
same right to make and enforce contracts and have the full and equal
benefit of all laws to the same extent enjoyed by “white citizens.”74
74Section 1981 provides: (a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) "Make and enforce contracts" defined
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
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Plaintiffs' position is that section 1981 prohibits discrimination based upon alienage and race and that the Ordinance violates this prohibition. More particularly, the plaintiffs claim that defendant violates § 1981 by making it impossible for unauthorized aliens to enter into lease agreements due to the Tenant Registration Ordinance and the housing portions of the IIRA. Defendant asserts that illegal aliens are not persons under section 1981 and therefore, they are not afforded its protections. We disagree with the defendant.
Generally, an alien is a “person” as that term is used under section 1981. Takahashi v.Fish and Game Comm’n, 334 U.S. 410, 419 (1948), see also Graham v. Richardson, 403 U.S. 365, 377 (1971) (“The protection of this statute has been held to extend to aliens as well as to citizens.”). The Supreme Court, however, has not yet addressed whether the protections of section 1981 extend to undocumented aliens, i.e. whether an undocumented alien is a “person” under section 1981. The Court has, in the context of the Fourteenth Amendment, held that “[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as
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‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.” Plyler, 457 U.S. at 210. This reasoning applies equally to a section 1981 analysis as to the Fourteenth Amendment analysis, especially because the language used in section 1981 is based in part on the language of the Fourteenth Amendment. Takahashi, 334 U.S. at 420. Accordingly, we find that aliens, regardless of their status under the immigration laws, are persons under section 1981.
Defendant contends that section 1981 is not commensurate with the Fourteenth Amendment. We agree, but that does not alter our analysis. Plaintiffs do not argue that section 1981 is commensurate with the Fourteenth Amendment, but rather that the definition of “person” found in section 1981 should be construed to include undocumented workers just as the same term has been construed under the Fourteenth Amendment. Therefore, the cases that defendant cites to establish that gender discrimination, religious discrimination, national origin discrimination and age discrimination are not covered by section 1981 are not persuasive.
Further, defendant argues that to find that undocumented aliens have rights under section 1981 would be inconsistent with Congress’s intent of prohibiting employment of such persons as evidenced by the passage of
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IRCA. This argument is unconvincing. When Congress passes two laws which conflict, the more recent law
can be viewed as a implied repeal of the earlier act in order to bring it in line with the newer law. Posadas v. Nat’l City Bank of New York, 296 U.S. 497, 503 (1936) (explaining that when two statutes “are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one.”) quoted in Tineo v. Ashcroft, 350 F.3d 382, 391 (3d Cir. 2003). Thus, as the more recent of the laws, IRCA can be viewed as an implied repeal of the earlier statute to the extent of any conflict. The conflict that we are presented with is that section 1981 provides that undocumented aliens have the same right to contract as “white citizens.” IRCA provides that unauthorized aliens do not have the right to enter into employment contracts.75 IRCA works as a repeal of section 1981 to the extent that section 1981 would allow unauthorized workers to enter into employment contracts. Otherwise, the unauthorized workers have the
75IRCA involves the employment of unauthorized workers. It does not mention other types of contracts including contracts to provide housing. Further, as discussed above with regard to pre-emption, the federal government allows certain aliens to work in the United States and implicitly to live here. To forbid these individuals from entering into housing contracts would be inconsistent with their being allowed to remain in the country.
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same right to contract as other citizens. Accordingly, section 1981 forbids the defendant from prohibiting
undocumented aliens from entering into leases. Thus, the Tenant Registration Ordinance and the housing provisions of the IIRA, which forbid such contracts, are in violation of section 1981.
IV. STATE LAW CAUSES OF ACTION The final causes of action we need to address are plaintiffs’ state law claims. Plaintiffs assert that the ordinances violate the Pennsylvania Home Rule Charter Law and the Pennsylvania Landlord and Tenant Act. In addition, plaintiffs assert that in enacting the ordinances defendant exceeded its legitimate police powers. We will address these issues in seriatim. A. Pennsylvania Municipality Law Plaintiffs’ sixth cause of action argues that the employment provisions of IIRA violate Pennsylvania municipality law. (Compl. ¶¶ 174186). The City limits the conditions under which an employer may discharge an employee and provides discharged employees with a cause of action. Plaintiffs contend that Hazleton has added conditions to the
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terms of employment in the city in violation of the Third-Class City Code.76 Since Pennsylvania is an at-will employment state, Hazleton may not add conditions to employment through an anti-illegal immigration ordinance. Defendant argues that plaintiffs have not demonstrated that IIRA violates any particular provision of Pennsylvania law or the Pennsylvania Constitution, and that nothing in IIRA is contrary to such law. In addition, defendant argues that Pennsylvania law does not prohibit IIRA’s restrictions on employment based on immigration status. Such restricts, defendant contends, already exist in provisions of federal law that prohibit businesses from knowingly employing workers without proper documentation. In addition, “at will” employment does not preclude a worker from filing suit for wrongful discharge, and defendant merely provides a private cause of action for workers seeking to vindicate such rights.
Hazleton is a City of Third Class with an Optional Plan B form of
76In their briefs, the parties disagree over whether Hazleton is a Home-Rule Charter City or a municipality organized under some other plan. (See Doc. 87 at 76, Doc. 82 at ¶ 174; Doc. 106 at 64-65; Doc. 150 at 83). The arguments they provide are premised on the powers enjoyed by these different types of cities. Because the testimony makes clear that Hazleton is a city of the Third Class with an Optional Plan B (strong mayorcouncil) form of government, we will base our analysis on the powers accorded such cities in Pennsylvania law.
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government. (N.T. 3/15/07 at 204). The powers a city has in Pennsylvania are limited, and are defined largely by the plan of government that locality adopts. Under Pennsylvania law, “[m]unicipalities are not sovereigns; they have no original or fundamental power of legislation; they have the right and power to enact only those ordinances which are authorized by an act of the legislature.” Genkinger v. City of New Castle, 84 A.2d 303, 304 (Pa. 1951); see also Cleaver v. Board of Adjustment of Tredyffrin Twp., 200 A.2d 408, 412 (Pa. 1964); Devlin v. City of Philadelphia, 862 A.2d 1234, 1242 (Pa. 2004); Deebow v. Borough of Leetsdale, 729 A.2d 1113,1118 (Pa. 1999) (holding that “[m]unicipal corporations have no inherent powers and may do only those things which the Legislature has expressly or by necessary implication placed within their power to do.”). “‘Any fair, reasonable doubt as to the existence of power is resolved by the courts against its existence in the corporation, and therefore denied.’” Kline v. City of Harrisburg, 68 A.2d 182, 185 (Pa. 1949) (quoting DILLON ON MUNICIPAL CORPORATIONS, § 89).
Pennsylvania law defines the basic powers of a City of the Third Class in 53 PENN. STAT. § 37402. Under that section, a Third-Class city may “(1) sue and be sued; (2) purchase land and hold real and personal
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property for the use of the city”; “(3) lease, sell and convey any real or personal property owned by the city,” make orders that serve the interests of the city in doing so; (4) form contracts in order to carry out city affairs; “(5) have and issue a corporate seal”; (6) display the Pennsylvania flag on public buildings; and (7) appropriate and use money appropriated to the city by other sources. 53 PENN. STAT. 37402(1-7).
In addition, the Third Class City Code enumerates sixty-eight specific powers enjoyed by such municipalities. These powers include the power to pay debts and expenses, arrange for garbage collection and removal, dispose of dangerous dogs, inspect and regulate fireplaces, number buildings, prohibit nuisances, regulate signs and prevent riots. 53 PENN. STAT. § 37403(1),(6),(9),(10)(19),(16),(17),(25). A third-class city also has the power “to make and adopt all such ordinances, by-laws, rules and regulations, not inconsistent with or restrained by the Constitution and laws of this Commonwealth, as may be expedient or necessary for the proper management, care and control of the city and its finances, and the maintenance of the peace, good government, safety and welfare of the city, and its trade, commerce and manufactures.” 53 PENN. STAT. § 37403(60). A city may pass legislation “necessary in and to the exercise of
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the powers and authority of local self-government in all municipal affairs.” Id. A city can establish fines for violations of ordinances, but may not enact ordinances that “[contravene] or [violate] any of the provisions of the Constitution of the United States or the Commonwealth, or of any act of the Assembly heretofore or that may be hereafter passed and in force in said city.” Id.
In general, Hazleton has the power to issue licenses for businesses to operate within the City. See Girard Trust Co. v. Philadelphia, 9 A.2d 883, 884 (Pa. 1939) (holding that “[t]he authority to inspect and license elevators is based upon the exercise of police power, the residual source of which is in the Commonwealth and inheres in its subdivisions upon their creation.”). Thus, “municipalities in the exercise of the police power may regulate certain occupations by imposing restrictions which are in addition to, and not in conflict with, statutory regulations.” Western Pennsylvania Restaurant Ass’n v. Pittsburgh, 77 A.2d 616, 620 (Pa. 1951). In a general sense, then, Hazleton has the power to license businesses under any terms that are not in conflict with state law. Since no state statute regulates the employment of illegal aliens, Hazleton’s restrictions on the employment of such workers do not violate state law.
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The private right of action supplied by the city to workers who lose their jobs to illegal aliens, however, alters the terms of employment established under state law and exceeds Hazleton’s power as a municipality by contradicting the terms of state law. Pennsylvania is an atwill employment state, meaning that an employee can “be discharged at any time unless her discharge was wrongful in that it violated a clearly recognized public policy.” McCartney v. Meadow View Manor, Inc., 508 A.2d 1254 (Pa. Super. Ct. 1986). Thus, “[a]bsent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.” Geary v. United States Steel Corp., 319 A.2d 174, 176 (Pa. 1974); see also Knox v. Bd. of Directors of Susquenita School Dist., 888 A.2d 640, 647 (Pa. 2005) (holding that “Pennsylvania has long subscribed to the atwill employment doctrine. Exceptions to that doctrine have generally been limited to instances where a statute or contract limits the power of an employer unilaterally to terminate the employment relationship.”).
IIRA disrupts this well-settled principle of state law. An employer in any other Pennsylvania city is not liable to civil suit from that employee if
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the employer happens to employ an “unlawful worker.”77 At-will
employment means that an employer can terminate a workers’ employment
at any time unless the termination violates a clearly defined statutory right
or public policy.78 Here, in the absence of the Ordinance, an employer
77We note that this cause of action appears to impose strict liability on the employer, as it defines as an “unfair business practice” “the discharge of any employee who is not an unlawful worker by a business entity in the City” and provides the “discharged worker” with a private right of action against the employer for this unfair practice. IIRA § 4.E(1-2). Presumably, an employee who brought that cause of action would not have to prove any mens rea on the employer’s part, but need only show that the employer had employed an unauthorized worker to prevail in that private claim. Such a private cause of action would thus appear to serve as a positive enforcement mechanism, requiring an employer to take positive steps to insure that no “unlawful workers” remained on the payroll to avoid an expensive lawsuit.
78An employer who is sued after terminating an employee on the basis of “race, color family status, religious creed, ancestry, handicap or disability, age, sex, national origin, the use of a guide or support animal because of blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals” cannot resort to the defense that Pennsylvania is an “at-will” employment state because such an employee has a clear legal right to dispute such firing. 43 PENN. STAT. § 953; see also, Cisco v. United Parcel Services, Inc., 476 A.2d 1340, 1343 (Pa. Super. Ct. 1984) (holding that “‘[t]he sources of public policy [which may limit the employer’s right of discharge] include legislation; administrative rules, regulation, or decision; and judicial decision. In certain instances, a professional code of ethics may contain an expression of public policy . . . Absent legislation, the judiciary must define the cause of action in case-by case determinations.’”) (quoting Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505, 512 (N.J. 1980)). We note here that this statute gives no cause of action to a worker discriminated against because of legal immigration status.
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would not face civil liability under Pennsylvania law for terminating a
worker’s employment while employing another worker defined by the
Hazleton Ordinance as “unlawful.” Whatever liability an employer might
face under federal law for employing such a worker, neither state nor
federal law gives discharged employees the right to sue based on an
employer’s unlawful employment of another.79 Defendant’s
79Marc Rosenblum, an expert witness for the plaintiffs, testified that no “comparable provision” like the private right of action in Section 4.E exists under federal law. (N.T. 3/15/07 at 60). On cross-examination, defendant challenged this claim, arguing that “the 1996 [Illegal Immigration Reform and Immigration Responsibility] act amended Title 18, Section 1961 of the U.S. Code and created a private right of action for employees who have suffered economic injury by employers because of employers who hire unauthorized aliens[.]” (Id. at 138). That statute, counsel pointed out, allowed injured employees to recover treble damages against employers who violate the act. (Id. at 139). Defense counsel cited to three cases which he claimed underscored the similarity between Hazleton’s private right of action and provisions of federal law authorizing workers to sue their employers for firing them while continuing to employ undocumented workers, Williams v. Mokawk Industries, Inc., 411 F.3d 1252 (11th Cir. 2005), Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002) and Trollinger v. Tyson Foods, Inc., 370 F.3d 602 (6th Cir. 2004). We find this claim unpersuasive; those cases do not hold what defendant claims they do. The statute to which defendant cites, 18 U.S.C. § 1961, is part of the Racketeer Influenced and Corrupt Organizations Act (RICO), a section of the United States Code that addresses organized crime. One provision of that act indeed offers a private right of action, providing that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter [18 U.S.C. § 1962] may sue therefor in any appropriate court and shall recover threefold the damages he sustains and the cost of the suit.” 18 U.S.C. § 1964(c). To prevail on a claim under the statute, a plaintiff must prove “(1) conduct (2) of an enterprise (3) through a
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argument that the ability of a discharged worker to bring a cause of action
for wrongful termination in Pennsylvania courts, “whether or not” the cause
is “meritorious” is unavailing; defendant’s Ordinance would make
meritorious a cause of action that would previously have been dismissed
as lacking a legal basis. Accordingly, the private right of action contained
pattern (4) of racketeering activity.” Sedima v. Imrex Co., 473 U.S. 479, 496 (1985). Further, “a plaintiff may sue under § 1964(c) only if the alleged RICO violation was the proximate cause of the plaintiff’s injury.” Anza v. Ideal Steel Supply Corp., 126 S. Ct. 1991, 1994 (2006). In Williams, the court found that a plaintiff could state a civil RICO claim against an employer who had violated section 274 of the Immigration and Nationality Act, “related to bringing in and harboring certain aliens.” Williams, 411 F.3d at 1257. Plaintiff had alleged that defendant engaged in a scheme to hire hundreds of illegal immigrant workers, and that this conduct could constitute part of a racketeering claim. Id. We find that defendant reads this case–and other cases that find that plaintiffs can state a RICO claim (in part) by alleging that defendant violated federal immigration law–too broadly. A plaintiff cannot, as defendant insists, state a claim for damages against an employer merely because that employer hired an unauthorized worker. Instead, to state a RICO claim a plaintiff must also allege that the employer’s illegal conduct was part of an enterprise engaged in a pattern of illegal activity and that the employer’s conduct was the proximate cause of plaintiff’s injury. Under the Hazleton Ordinance, by contrast, a plaintiff must only demonstrate that the employer knowingly kept a single unauthorized worker on staff after terminating the plaintiff. Indeed, the only real similarities between the Hazleton Ordinance and the RICO statute are the availability of treble damages to plaintiffs and the fact that employment of an unauthorized worker could be part of the basis for a lawsuit. To adopt defendant’s reasoning that Hazleton’s private cause of action “matches” that available under RICO, we would have to ignore all of the elements of a civil RICO claim except the fact that damages are trebled. We decline to do so. No private cause of action mirroring that in the Hazleton Ordinance exists in federal law.
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in IIRA is “inconsistent with or restrained by the Constitution and laws of
this Commonwealth,” and is invalid.80 53 PENN. STAT. § 37403(60).
While the Pennsylvania legislature could add a private right of action
to Pennsylvania law that did not violate the federal constitution or disrupt a
federal statutory scheme,81 the distribution of powers between the
80The City, in its post-trial memorandum, again points to the RICO statute to argue that the private cause of action created by IIRA is not a “‘novel’” provision, but is instead one grounded in rights expressly established by federal law. (Doc. 219 at 87). Defendant points to the cases cited in the previous footnote and declares that “[p]laintiffs would do well to familiarize themselves with these federal statutes. The IIRA Ordinance Section 4.E is based upon them.” (Id.). Plaintiffs’ post-trial memorandum makes clear that they have familiarized themselves with the private cause of action contained in the RICO statute. Indeed, unlike the defendant, plaintiffs have recognized the elements required to maintain a private cause of action under the RICO statute. Defendant fails to recognize that causes of action are not similar simply because both offer the possibility of treble damages for certain violations of immigration laws.
81We reject the defendant’s contention that IIRA does not disrupt the employer-employee relationship in Pennsylvania because employers are required to examine employee’s identification documents by federal law, and because federal law prohibits the knowing employment of an illegal alien. Citing 8 U.S.C. § 1324. This argument seems contrary to the principles of preemption discussed supra at part IIA. If federal law prohibits employment of undocumented workers and provides an enforcement mechanism for doing so, Hazleton’s efforts to add new document checks and private rights of action to enforce those provisions of federal law appear to interfere with a scheme already established by federal legislation. We decline to adopt the argument that a city may avoid restrictions on its action under state law by claiming a right to enforce federal law, especially when that federal law contains no provisions for such enforcement.
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Commonwealth and subdivisions of the Commonwealth does not permit a
municipality to burden the Commonwealth’s courts with new causes of
action. Hazleton could argue that the city’s power to enforce ordinances
permitted the use of this private right of action, but such private causes of
action are unnecessary to the city’s regulatory scheme.82 The city has its
own system for enforcing this portion of IIRA and its own penalties for
those who employ unlawful workers. An employer is not found in violation
of IIRA by a court decision that grants an “aggrieved worker” compensation
for lost wages, but instead after an investigation by the Code Enforcement
Office. We conclude that this private right of action contained in IIRA is
simply an attempt to add to the rights workers have in the city, and such
action is prohibited by the Third Class City Code and the effort of
82Indeed, the City’s scheme as presently constructed appears inconsistent: an employer is liable to fines from the City only when that employer “knowingly” employs an illegal alien. Ordinance 2007-6. The employer may avoid liability by participating in the Basic Pilot program. Ordinance 2006-18 § 4.B.5. Under the private right of action, however, the City makes an employer liable to any discharged worker who shows continued employment of an unauthorized worker. Id. at § 4.E. That liability applies regardless of whether the employer knew of the violation or not. Id. at § 4.E.1 (establishing that “[t]he discharge of any employee who is not an unlawful worker by a business entity in the City is an unfair business practice if, on the date of the discharge, the business entity was not participating in the Basic Pilot program and the business entity was not employing an unlawful worker.”). In other words, an employer can comply with IIRA and still be liable to ex-employees under IIRA.
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Pennsylvania to operate as an at-will employee state. Accordingly, we find that the provisions of Section 4.E of IIRA that
provides a private right of action to discharged worker are ultra vires and may not be enforced. Since provisions of IIRA are severable, our decision on this matter affects only Section 4.E of the IIRA. See Ordinance 2006-18 at § 6.B (establishing that “[I]f any part of [sic] provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part of [sic] provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.”). B. Landlord and Tenant Act
Count VI of plaintiffs' second amended complaint asserts a cause of action under Pennsylvania's Landlord and Tenant Act of 1951, 68 PENN. STAT. § 250.101 et seq. (hereinafter L/T Act). Plaintiff argues that the L/T Act is meant to be the sole source of rights, remedies and procedures governing the landlord/tenant relationship in Pennsylvania and municipalities may not alter or supplement the law. The Hazleton ordinances, according to the plaintiffs, add requirements to landlords and
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tenants and thus violates the L/T Act. Defendant contends that the ordinances do not violate the L/T Act. We agree with the defendant.
Generally, the L/T Act governs the relationship between landlords and tenants including rights and duties for both, and it also provides procedures for eviction. See, generally, 68 PENN. STAT. §§ 250.101et seq. In addition, the L/T Act provides: “All other acts and parts of acts, general, local and special, inconsistent with or supplied by this act, are hereby repealed. It is intended that this act shall furnish a complete and exclusive system in itself.” 68 PENN. STAT. § 250.602. Plaintiffs assert that this clause and the remainder of the L/T Act pre-empts the ordinances.
The Pennsylvania Supreme Court, however, has held that the L/T Act sets forth the procedures for eviction and does not address the substantive issue of when a landlord has a right to evict. Warren v. City of Philadelphia, 115 A.2d 218, 221 (Pa. 1955). Warren holds that Pennsylvania did not pass the L/T Act pursuant to its police powers; therefore, local municipalities may enact local laws affecting landlord/tenant law pursuant to their police powers as long as those laws do not conflict with the L/T Act. Id. at 221.
Plaintiffs assert that the ordinances do conflict with the L/T Act. After
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a careful review, we disagree. Plaintiffs argue that the time frame provided by IIRA conflicts with the L/T Act because it requires that a landlord correct a violation within five (5) days of notice of the violation from Hazleton. (IIRA § 5.B.(3)). Under the L/T Act, according to the plaintiffs’ calculations - which we accept as true for the purposes of this analysis - a tenant cannot be evicted for a minimum of twenty-three (23) days. We find no conflict here. In order to correct a violation under IIRA, the landlord merely has to provide a notice to quit or commence an action for the recovery of possession of the property. (IIRA § 7.D.). In other words, the landlord must begin the eviction process within five days, it does not have to be completed within those five days. Thus, the laws do not conflict.
Plaintiff also argues that the Tenant Registration Ordinance conflicts with the L/T Act because it requires a landlord to take reasonable steps to “remove or register” unregistered occupants of apartments within ten (10) days of learning of the unauthorized occupancy. (RO § 9.b.). Once again, this section does not conflict with the L/T Act. It does not require an eviction within ten days, it merely requires that reasonable steps be taken within that period. Reasonable steps would be steps in compliance with the L/T Act.
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Next, plaintiffs argue that the Tenant Registration Ordinance violates the L/T Act because it requires additional occupants of a rental unit to obtain the written permission of the landlord and obtain an occupancy permit. (RO § 10.b.) Plaintiffs argue that this requirement is in conflict with the L/T Act’s because under the L/T Act tenants have a right to invite social guests, family, or visitors for a reasonable period of time.
We agree that the L/T Act permits such visitors. See 68 PENN. STAT. § 250.504-A. The Tenant Registration Ordinance, however, does not forbid visitors or guests. The occupancy permit requirements apply to one who is an “occupant.” “Occupant” is defined in the Ordinance as “a person age 18 or older who resides at a Premises.” (RO § 1.m.). Thus, it is inapplicable to social guests and visitors and not in conflict with the L/T Act. For the above reasons, we find that the harboring provisions of IIRA and RO do not violate the L/T Act. C. Police powers
Plaintiffs' ninth cause of action is that defendant's ordinances exceed its legitimate police powers. (Compl. ¶¶ 214-237). Defendant contends that the passage of the ordinances was a legitimate exercise of its police powers.
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Generally, a municipality possesses "police powers" that can be used
to enact legislation to promote public health, safety and general welfare.
Balent v. City of Wilkes-Barre, 669 A.2d 309, 314 (Pa. 1995).
[T]he police power delegated by the state is not infinite and unlimited. The action taken thereunder must be reasonable, it must relate to the object which it purports to carry out, and it must not invade the fundamental liberties of the citizens. Warren v. Philadelphia, 382 Pa. 380, 115 A.2d 218 (1955); Otto Milk Company v. Rose, 375 Pa. 18, 99 A.2d 467 (1953). It must also be remembered that even legitimate legislative goals cannot be pursued by means which stifle fundamental personal liberty when the goals can be otherwise more reasonably achieved. See Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). Commonwealth v. Sterlace, 354 A.2d 27 (Pa. Commw. Ct. 1976)(finding
that a municipality's ordinance dealing with the distribution of advertising
material unconstitutionally burdened the First Amendment).
As we have found that the defendant's ordinances violate the
plaintiffs’ fundamental rights under the United States Constitution we need
not determine whether they are otherwise a valid exercise of its police
powers.83 In other words, enacting an unconstitutional ordinance is in itself
83We note that generally, it is "within the mainstream of . . . police power regulation" to prohibit the knowing employment of aliens who are not entitled to permanent residence. DeCanas, 424 U.S. at 356. Additionally, the Pennsylvania Supreme Court has held that rent and eviction controls are valid exercises of the police power.” Warren v. City of Philadelphia,
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a violation of the defendant's police powers. See id. Accordingly, we find that plaintiff has prevailed on its ninth cause of
action in that the defendant violated its police powers with these ordinances. Conclusion
Federal law prohibits Hazleton from enforcing any of the provisions of its ordinances. Thus, we will issue a permanent injunction enjoining their enforcement. With respect to each particular count we conclude as follows:
We find for the plaintiffs on Count I of the complaint. Federal law pre-empts IIRA and RO. The ordinances disrupt a well-established federal scheme for regulating the presence and employment of immigrants in the United States. They violate the Supremacy Clause of the United States Constitution and are unconstitutional.
We find for the plaintiffs on Count II of the complaint as well. The
115 A.2d 218, 220 (Pa. 1955). Plaintiffs’ argument is very fact-based. They assert that testimony at
the trial established that the ordinances do not serve the health safety and welfare of the ‘citizens of Hazleton. We need not address these factual issues to determine that the enactment of the ordinances was in fact an improper exercise of the police powers.
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Hazleton ordinances violate the procedural due process protections of the Fourteenth Amendment to the United States Constitution. They penalize landlords, tenants, employers and employees without providing them the procedural protections required by federal law, including notice and an opportunity to be heard. Our analysis applies to illegal aliens as well as to legal residents and citizens. The United States Constitution provides due process protections to all persons.
We will dismiss Counts III and IV of the complaint regarding Equal Protection and the Fair Housing Act, 42 U.S.C. §§ 3601, et seq., respectively. Neither IIRA nor RO facially discriminate on the basis of race, ethnicity or national origin.
On Count V, which alleges a violation of plaintiffs’ right to contract under 42 U.S.C. § 1981, we find for the plaintiffs. Just as with the Fourteenth Amendment analysis, illegal aliens are “persons” under that statute, and the City may not burden their right to contract more than that of other persons.
Plaintiffs prevail in part on Count VI, which challenges the power of the City under Pennsylvania law to enact the employment-related provisions of IIRA. The defendant acted ultra vires in enacting the portion
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of IIRA which creates a private cause of action for a dismissed employee. The City, however, has the power to license businesses in ways that do not violate Pennsylvania law. Thus, we will dismiss the remaining portion of the count.
We will dismiss Count VII, which challenges the power of the City to enact the housing provisions of the ordinances under the Pennsylvania Landlord Tenant Act, 68 PENN. STAT. §§ 250.101 et seq. The ordinances provide renters the procedural protections the statute requires.
We find that we lack sufficient evidence to make a determination on Count VIII of the complaint, which contends that the Hazleton ordinances violate plaintiffs’ privacy rights. As written, the ordinances are too vague for us to analyze what information will be required from workers and tenants. We therefore cannot determine whether the ordinances violate plaintiffs’ privacy rights.
Plaintiffs prevail on Count IX, which contends that defendant exceeded its police powers. Defendant exceeded its police powers by enacting unconstitutional ordinances.
Whatever frustrations officials of the City of Hazleton may feel about the current state of federal immigration enforcement, the nature of the
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political system in the United States prohibits the City from enacting ordinances that disrupt a carefully drawn federal statutory scheme. Even if federal law did not conflict with Hazleton’s measures, the City could not enact an ordinance that violates rights the Constitution guarantees to every person in the United States, whether legal resident or not. The genius of our Constitution is that it provides rights even to those who evoke the least sympathy from the general public. In that way, all in this nation can be confident of equal justice under its laws. Hazleton, in its zeal to control the presence of a group deemed undesirable, violated the rights of such people, as well as others within the community. Since the United States Constitution protects even the disfavored, the ordinances cannot be enforced. An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO,

: No. 3:06cv1586

HUMBERTO HERNANDEZ,

:

ROSA LECHUGA,

: (Judge Munley)

JOSE LUIS LECHUGA,

:

JOHN DOE 1,

:

JOHN DOE 3,

:

JOHN DOE 7,

:

JANE DOE 5,

:

CASA DOMINICA OF HAZLETON, :

INC.,

:

HAZLETON HISPANIC BUSINESS :

ASSOCIATION, and

:

PENNSYLVANIA STATEWIDE

:

LATINO COALITION,

:

Plaintiffs

:

:

v.

:

:

CITY OF HAZLETON,

:

Defendant

:

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

VERDICT

AND NOW, to wit, this 26th day of July 2007, we hereby DECLARE

that Hazleton Ordinance Nos. 2006-18, 2006-40 and 2007-6 (hereinafter

“IIRA”) and Hazleton Ordinance No. 2006-13, (hereinafter “RO”), are

unconstitutional. We PERMANENTLY ENJOIN the defendant from

enforcing IIRA and RO.

All the plaintiffs have standing to pursue this action except Rosa

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Lechuga and Jose Luis Lechuga. The Lechugas lack standing because this lawsuit would not remedy the injury they have suffered.84
Due to the unique nature of the issues in this lawsuit, the intense public interest in the outcome and the public antipathy expressed towards participants in the case, the unnamed plaintiffs are allowed to proceed anonymously.
We have addressed the ordinances as amended through March 2007. The ordinances in their amended versions do not eliminate the grounds for plaintiffs’ constitutional challenges.
With regard to each count of the complaint, our verdict is as follows: Count I, the Supremacy Clause, we find FOR PLAINTIFFS. Federal law pre-empts IIRA and RO. Count II, Due Process, we find FOR PLAINTIFFS. IIRA and RO violate the procedural due process protections of the Fourteenth Amendment to the United States Constitution. Counts III and IV, Equal Protection and the Fair Housing Act, 42 U.S.C. § § 3601, et seq., respectively, are DISMISSED. Neither IIRA nor
84Plaintiff Humberto Hernandez is dismissed as plaintiffs have presented no evidence regarding him.
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RO facially discriminate on the basis of race, ethnicity or national origin. Count V, 42 U.S.C. § 1981, we find FOR PLAINTIFFS. Illegal aliens
are “persons” under 42 U.S.C. § 1981. IIRA and RO impermissibly burden their right to contract.
Count VI, Home Rule Charter Law, we find partially FOR PLAINTIFFS, and we DISMISS partially. We find FOR PLAINTIFFS with regard to the portion of IIRA which creates a private cause of action for a dismissed employee. With regard to the other portions of IIRA and RO, defendant did not act beyond its municipal powers, and we DISMISS that portion of the count.
Count VII, Pennsylvania Landlord and Tenant Act, 68 PENN. STAT. §§ 250.101 et seq is DISMISSED. Neither IIRA nor RO violate the procedural protections required under the Landlord and Tenant Act.
Count VIII, privacy rights, is DISMISSED. We lack sufficient evidence to make a determination with regard to plaintiffs’ privacy rights.
Count IX, police powers, we find FOR PLAINTIFFS. Enacting unconstitutional laws is beyond the defendant’s police powers.
BY THE COURT: s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court
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APPENDIX HISTORY OF IMMIGRATION REGULATION IN AMERICA The history of federal regulation of immigration is one of a transformation from a largely open system to one where federal rules govern nearly every aspect of the immigrant experience, from the conditions under which new residents may enter to the terms under which they may labor. Prior to the end of the nineteenth century, immigration restriction was minimal: the government “counted the number of immigrants for statistical purposes, and it decreed certain minimum living conditions aboard ship.” JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925, 43 (1983); see also SUCHENG CHAN, European and Asian Immigration into the United States in Comparative Perspective, 1820s to 1920s, in IMMIGRATION RECONSIDERED: HISTORY, SOCIOLOGY AND POLITICS, 62 (Virginia Yans-McLaughlin, ed.,1990) (finding that “[e]xcept for the sedition laws passed in the early years of the republic, the United States had no immigration laws until 1875, when prostitutes and convicts were excluded.”).85 In 1882, Congress denied entry to “convicts,
85Although this does not signify that all groups immigrating to America before the late nineteenth century were welcomed. From the
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lunatics, idiots, and persons likely to become a public charge.” Id. This
law added to the basic restrictions first instituted by the federal government
in 1875, when Congress excluded from entry “persons convicted of ‘crimes
involving moral turpitude’ and prostitutes.” MAE M. NGAI, IMPOSSIBLE
SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA, 59 (2004).
Though these federal laws restricted who could enter the United
States, they did not place any numerical quotas or absolute restrictions on
any class of persons. Reflecting a society dominated by the proposition
that racial identity determined one’s capacity to participate in society,
however, late nineteenth-century immigration law enacted much more
robust restrictions on immigration from countries identified by contemporary ideology as populated by “inferior” races.86 Years of
earliest colonial settlements in the 1600s, more-established residents often reacted negatively to immigrants perceived as different or in some way threatening.
86Congress often aimed such legislation at Asians. Examples include: the 1882 Chinese Exclusion Act; the “Gentlemen’s Agreement of 1907,” which prevented the immigration of Japanese men; and the 1924 Immigration Act’s exclusion of “aliens ineligible for citizenship,” which included “peoples of all the nations of East and South Asia.” Ngai at 37. An 1877 Congressional Report on the proposed Chinese Exclusion Act demonstrates the racial attitudes that drove these policies: the report contended that “‘[t]here is not sufficient brain capacity in the Chinese race to furnish motive power for self-government. Upon the point of morals, there is no Aryan or European race which is not far superior to the
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agitation led to new restrictions on who could enter the United States in the
years during and after the First World War.87 In 1917, Congress restricted
Chinese.” Kitty Calavita, The Paradoxes of Race, Class, Identity, and “Passing”: Enforcing the Chinese Exclusion Acts, 1882-1910, 25 LAW & SOC. INQUIRY 1, 4.
87This opposition to immigration came from a wide variety of groups and perspectives. Labor unions, fearful that immigrants drove down wages, frequently agitated for restrictions on entry, though their positions were equivocal; many union leaders–like Samuel Gompers of the American Federation of Labor–were immigrants or deeply connected to the immigrant experience. Higham at 70-72. The Ku Klux Klan, originally organized in the South after the Civil War to intimidate black voters, reappeared in northern areas in 1915 to take part in the debate about immigration, arguing for restrictions. See Higham, 286-99. This version of the Klan, unlike “the first Klan, which admitted white men of every type and background . . . accepted only native-born Protestant whites and combined an anti-Negro with an increasingly anti-foreign outlook.” Id. at 288. Other groups argued that immigrants were responsible for crime and disorder in America’s rapidly growing cities, and that social order and control required restrictions on who could enter the country. See, e.g. Higham at 90 (finding that “[a]nti-foreign sentiment filtered through a specific ethnic stereotype when Italians were involved; for in American eyes they bore the mark of Cain. They suggested the stiletto, the Mafia, the deed of impassioned violence.”). Finally, some contended that immigrants, particularly those who were from southern and eastern Europe and were Catholic or Jewish, were diluting American culture by undermining its traditional bases. See Higham at 95-96 (establishing that “[h]ardly had the new [southern and eastern European] immigration begun to attract attention when race-conscious intellectuals discovered its hereditary taint. In 1890 the Brahmin president of the American Economic Association alerted his fellow scholars to the new tide of ‘races . . . of the very lowest stage of degradation.’ About the same time [U.S. Senator] Henry Cabot Lodge noticed the shift away from northwestern Europe and began to bristle at its racial consequences.”). See also Ngai, IMPOSSIBLE SUBJECTS at 93 (finding that “[t]he Johnson-Reed Immigration Act of 1924 was
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immigration by political radicals88 and imposed a literacy test on those seeking entry.89 Higham at 202. The 1921 Immigration Act tightened
restrictions on immigration, establishing “the first sharp and absolute
numerical restrictions on European immigration” in United States history
and implementing “a nationality quota system based on the pre-existing
composition of the American population.” Id. at 311. These attempts at
restricting immigration culminated in the Immigration Act of 1924, which
capped yearly entries into the United States at 150,000, with quotas
assigned to each country based on two percent of the foreign-born
individuals of each nationality in the United States in 1890. RONALD
TAKAKI, STRANGERS FROM A DIFFERENT SHORE: A HISTORY OF ASIAN
motivated primarily by political concerns over the country’s ethnic and racial composition, but economic factors were still relevant.”).
88The law “exclude[d] from the United States not only individual advocates of violent revolution but also those who advocated sabotage or belonged to revolutionary organizations; [and] second, [determined] to deport any alien who at any time after entry was found preaching such doctrines.” Higham at 202.
89The literacy test prevented entry for “adult immigrants unable to read a simple passage in some language,” with only two exceptions: “[a]n admissible alien might bring in members of his immediate family despite their illiteracy, and in the interest of Russian Jews the same exemption applied to all aliens who could prove they were fleeing from religious persecution . . . refugees from political prosecution received no such exemption.” Higham at 203.
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AMERICANS, 209 (2d ed., 1998). The Act also excluded “aliens ineligible for
citizenship” from entry, adding Japanese people to the list of those who
were excluded from immigrating altogether.90 The Act did not, however,
restrict immigration from Mexico or other countries in the Western
Hemisphere, though it did establish regulations for entry.91 Ngai,
IMPOSSIBLE SUBJECTS at 50.
Historian Mae Ngai has noted that passage of the 1924 act meant
90Previous laws had excluded Chinese and Asian Indian immigrants from entering the United States; the 1924 Act simply solidified these efforts to restrict Asian immigration. Takaki at 209. Because the Philippines became a United States possession after the 1898 war with Spain, however, the act did not restrict Filipino migration to Hawaii or the United States mainland. Filipino migration therefore increased dramatically after 1924 as more jobs became available. Ngai at 103. In 1930, 56,000 Filipinos, most of them men, lived on the west coast. Id. That number represented a tenfold increase from 1920. Id. Their presence sometimes led to violence from locals. In 1927, a Washington apple grower brought eleven Filipino workers he hired to a local jail for protection after he learned that white people had threatened to “‘deport’” them. Id. at 105. At the same time, more than 500 Filipinos left the Yakima Valley region “after white residents threatened to attack them.” Id.
91According to historian Mae Ngai, “while practicing exclusion toward Asia and restriction toward Europe, Congress imposed no practical restrictions on immigration from the countries of the Western Hemisphere.” Ngai continues to say that many nativistic Americans, however, supported exclusion or restriction of Mexican immigrants, who were considered part of an “unstable ‘mongrel race.’” Mae Ngai, The Lost Immigration Debate: Border Control Didn’t Always Dictate Policy, 3, BOSTON REVIEW (September/October 2006). Retrieved July 23, 2007 from http:/bostonreview.net/BR31.5/ngai.html.
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“that numerical restriction created a new class of persons within the
national body–illegal aliens–whose inclusion in the nation was at once a
social reality and a legal impossibility.” Ngai, IMPOSSIBLE SUBJECTS at 57.
Much of federal immigration law in subsequent decades would be aimed at
identifying and controlling these illegal residents, provisions not previously
present in American law.92 Before the changes brought by the immigration
regulation of the 1910s and 1920s, the process of entering the United
States as an immigrant was fairly simple, if invasive: an immigrant need
only present herself at the border for inspection.93 Once immigrants
92We note that the descendants of non-Asian immigrants who entered this country before the restrictions of the 1920s who condemn present-day illegal immigrants by pointing out that “when my relatives came to this country, they followed the law” ignore one very crucial fact: virtually no law existed to prevent anyone from entering the country prior to that period. No federal crime for unauthorized entry existed until 1929. See Ngai, IMPOSSIBLE SUBJECTS at 60.
93Historian Mae Ngai notes that Mexican immigrants were still subject to immigration requirements in the 1924 law, which included presentation of a passport or visa; payment of a head tax; and inspection at entry. Ngai, Lost Immigration Debate at 4. Ngai describes this process as it occurred for Mexicans seeking to enter the United States in a later period: “[inspection at the Mexican border involved a degrading procedure of bathing, delousing, medical-line inspection, and interrogation. The baths were new and unique to Mexican immigrants, requiring them to be inspected while naked, have their hair shorn, and have their clothing and baggage fumigated. Line inspection, modeled after the practice formerly used at Ellis Island, required immigrants to walk in single file past a medical officer.” Ngai, IMPOSSIBLE SUBJECTS at 68.
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cleared this initial hurdle (represented to many by Ellis Island), they were
free to enter the country, and did not need to carry any documents or do
anything to prove particular status.94 The passage of quotas and other
restrictions on immigration, however, meant that the status of many aliens
in the United States had become far from clear.95 Much of the subsequent
history of American immigration law is the history of an attempt to
determine the status of aliens living in the United States.96 Only in 1929
94One notable exception would be Chinese immigrants who had fraudulently obtained reentry certificates or become “paper sons.”
95Mae Ngai points out that after the 1924 Act, “many Mexicans entered the United States through a variety of means that were not illegal but comprised irregular, unstable categories of lawful admission, making it more difficult to distinguish between those who were lawfully in the country and those who were not.” Ngai, IMPOSSIBLE SUBJECTS at 70.
96This situation was reflected by the changing role that deportation played in federal policy. An 1875 federal law that excluded convicts and prostitutes from entry failed to “provide for their deportation except as an immediate part of the exclusion process.” Daniel Kanstroom, United States Immigration Policy at the Millenium: Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1889, 1909 (2000). Only in 1891 did Congress pass legislation providing for the deportation of aliens who became public charges within a year of their arrival, provided that the condition that caused the alien’s hardship existed prior to arrival in the country. Ngai, IMPOSSIBLE SUBJECTS at 59. The steamship companies that had carried such an immigrant to the country was liable for the cost of the immigrant’s return. Id. Congress otherwise established no means or funding for deportation.
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did the United States first provide penalties for unlawful entry, making the
first such entry a misdemeanor punishable by up to a year in jail or a
$1,000 fine and the second offense a felony, punishable by two years
imprisonment or a $2,000 fine. Ngai, IMPOSSIBLE SUBJECTS at 60.
Congress made occasional changes to this immigration system over
the next forty years,97 but the use of quotas and the principal of national
exclusion remained central to the federal scheme. The most fundamental
97Examples of such changes include: the establishment of contract labor programs involving West Indian agricultural laborers in the Southeast, Puerto Rican agricultural workers in the Northeast (who were U.S. citizens) and the well-known Bracero Program, by which 4.6 million Mexican workers traveled to the United States to work in agriculture between 1942 and 1964 (Ngai, IMPOSSIBLE SUBJECTS at 138-39); the end of Chinese exclusion in 1943 (Id. at 204); the Chinese Confession Program that began in 1956 and allowed Chinese persons who confessed that they “had entered the country by fraudulent means” the opportunity to adjust their status (under law current at the time seven years of continuous United States residency or ninety days service the armed forces could lead to permanent residency) (Id. at 218); the 1948 Displaced Persons Act, which “provided for the admission of 202,000 European refugees over two years” (Id. at 236); the 1952 McCarran-Walter Act, which “brought many fragments of the nation’s immigration and naturalization laws under a single code,” capped immigrants at 155,000 per year under the quota system, maintained the national origins basis for national quotas, imposed quotas on former British colonies in the Caribbean and lifted restrictions on Japanese and Korean immigration (Id. at 238); and the asylum extended by the United States government to Vietnamese “boat people” in the 1970s. Aristide R. Zolberg, Reforming the Back Door: The Immigration Reform and Control Act of 1986 in Historical Perspective, 322, in IMMIGRATION RECONSIDERED (YANS-MCLAUGHLIN, ed.).
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change in federal regulation of immigration came with the passage of the Immigration Act of 1965. This act abolished the national-origins quotas established in the 1924 act and allowed an annual admission of 170,000 Immigrants from the Eastern Hemisphere and 120,000 from the Western. Takaki, at 419. The restrictions on immigration for the Western Hemisphere represented a radical change in restrictions on immigration from that part of the world.98 Ngai, IMPOSSIBLE SUBJECTS at 258. The law still provided for national quotas, but distributed them equally, not on the basis of previous immigration in particular years. Takaki at 419. The law also exempted from the quota spouses, minor children and parents of United States citizens. Id. Immigrants would be admitted according to certain preference categories for adult family members, professionals, workers for unfilled positions and refugees. Id. These changes led to an even more active role for the federal government in investigating and determining the status of immigrants, since “strict positive certification was
98Ngai notes that a change in the law in 1976 that assigned a 20,000 annual-immigrant quota to all countries in the western hemisphere “recast Mexican migration as ‘illegal.’ When one considers that in the early 1960s annual ‘legal’ Mexican migration comprised 200,000 braceros and 35,000 regular admissions for permanent residency, the transfer of migration to ‘illegal’ form should have surprised no one.” Ngai, IMPOSSIBLE SUBJECTS at 261.
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required to ensure that they would not compete with Americans.” Aristide
R. Zolberg, Reforming the Back Door: The Immigration Reform and Control
Act of 1986 in Historical Perspective, 320, in IMMIGRATION RECONSIDERED
(YANS-MCLAUGHLIN, ed.). Still, the 1965 Act represented a major change in
the focus of immigration policy from a race-based policy to one that:
“clearly institutionalized family reunion as the leading principle governing general immigration.” Id.99
Congress extended its reach over the lives of aliens in the United
States with the 1986 Immigration Reform and Control Act (“IRCA”). The
Act established sanctions for employers who hired illegal aliens, providing
a civil penalty of $250 to $2,000 for each worker hired and criminal
99Congress has established other means by which potential immigrants can enter the country outside of the established immigrationregulation measures. The most prominent of these is asylum, “which offers permanent protection for aliens who fear future persecution, or who have suffered past persecution, in their home country.” Patricia A. Seith, Note: Escaping Domestic Violence: Asylum as a Means of Protection for Battered Women, 97 COLUM. L. REV. 1804, 1816 (1997). A person seeking asylum must file an application with Immigration and Customs Enforcement after arrival in the United States. Id. An officer reads the application and interviews the applicant. Id. If the applicant does not convince this officer to grant him asylum, he is generally referred to an immigration judge for removal. Id. at 1816-17. An applicant who faces an unfavorable decision can appeal to the Board of Immigration Appeals, and eventually to the federal courts. Id. at 1817. That process might take years. Id.
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penalties for a “pattern and practice” of illegal hiring, including a fine of up to $3,000 and six month prison sentences. Zolberg at 334. Such employers also had to verify the immigration status of all job applicants. Id. at 335. The Act also provided a means for illegal aliens to obtain amnesty by “apply[ing] for legal status within an eighteenth-month period starting six months after the bill became law.” Id. at 334.100
During the 1990s Congress implemented procedures to limit the rights of aliens to court review of administrative determinations of their status. The Anti-terrorism and Effective Death Penalty Act (“AEDPA”) of 1996 “eliminated judicial review of deportation and exclusion orders for noncitizens convicted of ‘aggravated felonies.’” Lenni B. Benson, Back to the Future: Congress Attacks the Right to Judicial Review of Immigration Proceedings, 29 CONN. L. REV. 1411, 1412. The act also removed a longestablished waiver of deportability for long-term lawful United States
100Gloria Sandrino-Glasser describes the provisions of IRCA as: “(1) legalization of undocumented immigrants residing in the U.S. continuously since 1982; (2) sanctions for employers who hire undocumented aliens; (3) reimbursement of governments for added costs of legalization; (4) screening of welfare applicants for migration status; and (5) special programs to bring in agricultural laborers.” Gloria Sandrino-Glasser, Los Confundidos: De-Conflating Latinos/as’ Race and Ethnicity, 19 CHICANOLATINO L. REV. 69 at n.38.
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residents. Id. at 1412. That same year, Congress placed new restrictions
on immigration and review of agency removal decisions in the Illegal
Immigration Reform and Immigrant Responsibility Act (“IIRAIRA”). Id.
That legislation increased resources for enforcement of the immigration
laws, made more aliens eligible for deportation or exclusion, limited agency
discretion to change immigrants’ status and increased the penalties for
violating immigration laws. Peter J. Spiro, Learning to Live with
Immigration Federalism, 29 CONN. L. REV. 1627, 1633 (1997). That act
also limited review of deportation orders in certain circumstances,
particularly those who had been convicted of certain crimes or based their
petition on certain “disfavored claims.”101 Id. at 1645.
101The most important provisions of this act in relation to review of immigration status included “new, and more restrictive, procedures for the granting of discretionary waivers of removal on hardship grounds . . . new grounds of excludability (now called ‘inadmissibility’) and deportability, some of them designed to visit more lasting disabilities on former illegal aliens . . .substantially revised the procedures and criteria for granting asylum to refugees . . . made deep inroads on the availability of judicial review, both in individual cases and in class litigation . . . imposed massive reliance on detention of aliens who may be subject to removal . . . established new procedures for the ‘expedited removal’ of certain categories of arriving aliens . . . revised . . . benefits restrictions and affidavit of support procedures, and expanded the exclusion ground for aliens deemed likely to become a public charge.” Gerald L. Neuman, Symposium: Admissions and Denials: A Dialogic Introduction to the Immigration Law Symposium, 29 CONN. L. REV. 1395, 1396-97 (1997).
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The history of federal regulation of immigration, then, is one of the creation of an intricate and complex bureaucracy that restricted who could immigrate to the United States and under what terms. Those immigration regulations have also come to define the conditions under which aliens can find employment in the country. The creation of this complex federal bureaucracy not only altered the role of the federal government in relation to immigration; it also transformed the status of immigrants in American society. A foreign-born person in the United States in 1870 had a presumptively legal status; no careful legal inquiry was required to determine whether that person had a right to reside in the country. By 1990, however, determining whether a foreign-born person enjoyed a legal right to remain in the United States demanded a detailed legal examination that involved numerous federal statutes, several adjudicatory bodies, and a
The IIRAIRA also permitted states to develop “pilot programs under which undocumented aliens are denied driver’s licenses” and allowed the Attorney General of the United States “to deputize state and local authorities to enforce federal immigration law.” Spiro at 1645. The Personal Responsibility Act, passed at around the same time as this other legislation, permitted “the states to extend certain benefits to aliens at their option. With respect to federally funded Medicare and what is colloquially known as ‘welfare’ (now called ‘temporary assistance to needy families’), states may make independent determinations on the eligibility of legal resident aliens.” Id. at 1637.
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number of appeals and exceptions. More than one hundred years of federal regulation have made the federal supremacy over immigration an intricate affair.
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 Lozano v. City of Hazleton, 241 F.R.D. 252 (2007)

241 F.R.D. 252 United States District Court,
M.D. Pennsylvania.
Pedro LOZANO, Humberto Hernandez, Rosa Lechuga, Jose Luis Lechuga, John Doe 1, John Doe 3, John Doe 7, Jane Doe 5, Casa Dominica of
Hazleton, Inc., Hazleton Hispanic Business Association, and Pennsylvania Statewide Latino
Coalition, Plaintiffs v.
CITY OF HAZLETON, Defendant.
No. 3:06cv1586. | Feb. 27, 2007.
Attorneys and Law Firms
*253 Barry H. Dyller, Law Office of Barry H. Dyller, Wilkes-Barre, PA, David Vaida, Law Office of David Vaida, Allentown, PA, Denise Alvarez, Foster Maer, Jackson Chin, Lillian Llambelis, Puerto Rican Legal Defense and Education Fund, Ghita Schwarz, Lee Gelernt, American Civil Liberties Union Foundation, New York City, Doreen Y. Trujillo, Ilan Rosenberg, Linda S. Kaiser, Thomas B. Fiddler, Thomas G. Wilkinson, Jr., William J. Taylor, Cozen O’Connor, Philadelphia, PA, Douglas W. Frankenthaler, Cozen O’Connor, Cherry Hill, NJ, Elena Park, Cozen O’Connor, West Conshohocken, PA, George R. Barron, Wilkes-Barre, PA, Jennifer C. Chang, Lucas Guttentag, Mary Catherine Roper, Omar C. Jadwat, American Civil Liberties Union Foundation, San Francisco, CA, Paula Kay Knudsen, American Civil Liberties Union of Pa, Laurence E. Norton, II, Peter Zurflieh, Shamaine A. Daniels, Community Justice Project, Harrisburg, PA, Witold J. Walczak, American Civil Liberties Union of Pa, Pittsburgh, PA, David Vaida, Law Office of David Vaida, Allentown, PA, for Plaintiffs.
Juan P. Morillo, Steven Thomas Cottreau, Sidley Austin Brown & Wood LLP, Washington, DC, Peter L. Matson, Lewisburg, PA, Randall L. Wenger, Clymer & Musser, P.C., Lancaster, PA, for Defendant.
Opinion
MEMORANDUM
MUNLEY, District Judge.
Before the court are various motions in limine in the instant case. The matters have been briefed and are thus ripe for decision.

I. Background This cases arises out of the passage by Defendant City of Hazleton, Pennsylvania (“The City”) of a series of ordinances designed to limit the impact of illegal immigrants on the city. Plaintiffs filed suit on August 15, 2006, seeking an injunction that would prevent enforcement of the ordinances (Doc. 1) on constitutional grounds. On October 31, 2006, we granted plaintiffs’ request for a Temporary Restraining Order prohibiting enforcement of the ordinances until we reached a conclusion on the injunctive motion (Doc. 35). Trial in this matter is scheduled to commence on March 12, 2007.
We will examine each of the parties’ motions in turn.
II. Defendant’s Motions
A. Motion to exclude evidence regarding any unidentified members of association plaintiffs The defendant seeks to prevent the introduction of testimony regarding the effects *254 of the immigration ordinances on unidentified members of the associations who are plaintiffs in the case (Doc. 92). Defendant alleges that the designees of these organizations during depositions refused to provide the names of past and present members of the various associations who had been effected by the ordinances. These refusals, defendant contends, have prejudiced the defendant’s case by making it impossible for defendant to investigate the impact of the ordinances, the issue at the heart of the case. Preclusion of testimony about these unidentified individuals, defendant insists, should result from this refusal to provide names. Plaintiffs contend that defendant sought privileged information from the organizations’ membership lists, and that they were not required to provide such information. In addition, plaintiffs claim, they provided defendant with the names of organization members impacted by the ordinances, and made them available for deposition. Plaintiffs declaim any intention to call unidentified witnesses, and argue that any attempt to exclude testimony of such witnesses until they are called would be premature.
[1] We agree with the plaintiffs because we find that the exclusion of testimony from unidentified members of the organizations in question would be premature. In order to preclude testimony from parties not identified during depositions as a discovery sanction, a court must consider several factors: “Along with the importance of the excluded testimony,” a court examines “the prejudice or surprise in fact to the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the
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Lozano v. City of Hazleton, 241 F.R.D. 252 (2007)
rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or other cases in the court; and (4) bad faith or willfulness in failing to comply with the district court’s order.” Quinn v. Consolidated Freightways Corp., 283 F.3d 572, 577 (3d Cir.2002). We do not at this point know whether such any witnesses may be called, nor do we know the circumstances of why those witnesses have not yet been identified. Defendant has not pointed to any specific potential witness whose testimony should be excluded. Instead, defendant appears to complain that the City was unable to use plaintiff organizations’ membership lists in discovery, though the defendant does not provide argument to dispute plaintiffs’ claims that such material is privileged. We do not possess information necessary to weigh these factors in relation to witnesses not named and are unable to make a determination about whether the circumstances of plaintiffs’ refusal to identify that particular witness justify preclusion. We will accordingly deny the defendant’s motion as premature.
B. Motion to preclude testimony and evidence about the immigration status of John Doe 1 Defendant seeks to exclude any testimony or evidence about the immigration status of Plaintiff John Doe 1 (Doc. 94). Defendant claims that John Doe 1 has placed his immigration status at issue in the litigation and cannot testify about that status without first allowing defendant the opportunity to assess the value of his claims. John Doe 1, citing his anonymous status, had refused to respond to two interrogatories seeking documentation on his citizenship or nationality status. His response, however, had promised to produce “responsive, non-privileged documents” on the matter. Plaintiff Doe did not produce this material, nor did he provide a privilege log to document the information he refused to turn over. Defendant contends that failure to turn over this information, which defendant insists would have been covered by a confidentially agreement, justifies sanctions from the court. Defendant also points to Plaintiff Doe’s statement at his deposition that he believed he had become a permanent resident and argues that this statement means Doe no longer has standing in this court. Plaintiffs argue that this Court’s order of December 15, 2006, which allowed the Doe plaintiffs in the case to refrain from disclosing information and documents disclosing their identities justified Plaintiff Doe’s refusal to turn over the requested documentation and makes a sanction unjustified. They agree, however, not to introduce documents pertaining to Doe’s immigration status at trial. Plaintiffs also argue that Doe’s testimony *255 about his immigration status-much less his own knowledge of that status-is far from clear. Since defendants have a right to recall Doe for another deposition, no prejudice exists from the current state of affairs.

[2] We exclude evidence rarely, since “exclusion of critical evidence is an ‘extreme’ sanction, [citation omitted], not normally imposed absent a showing of willful deception or ‘flagrant disregard’ of a court order by the proponent of the evidence.” Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir.1977). On this matter, we note that the court has previously issued an order allowing the John and Jane Doe plaintiffs to maintain their confidentiality while pursuing their suit for injunctive relief. Defendant’s motion seems partly aimed at convincing us to reconsider our decision concerning the need for the anonymous plaintiffs to turn over specific information about their immigration status; we concluded that documentation about the anonymous plaintiffs’ immigration status was not necessary to resolve the issues presented by the case. Defendants now seek exclusion of a plaintiff partly because he has not provided such information. A motion in limine is not a proper forum for reconsideration of that decision.
We find, however, that Plaintiff Doe has not clearly alleged, either in the complaint or in his deposition, that he is not a legal resident of the United States. In the second amended complaint, Doe states that he is “a tenant and resident of Hazleton.” (Second Amended Complaint at ¶ 18). He also alleges that he has lived in the United States for more than twenty years and that he was born in Mexico. (Id.). He makes no assertion as to whether he is a legal resident or not. In his deposition, Plaintiff Doe 1 also failed to state that he was in the United States without legal sanction. In fact, Doe explained that his father had filed an application that would have granted him legal residency and that the application had been “approved.” (See Deposition of John Doe 1, attached as Exhibit B to Brief in Support of Defendant’s Second Motion in Limine (Doc. 94) at 25). At the same time, however, Doe asserted that “the United States Government can tell me that I should leave this country,” and that he could not provide information on his legal status “because I don’t know very much. I only know what my lawyer has told me.” (Id. at 26, 25).
[3] If Doe does not claim he is in the country illegally, he would not be covered by our protective order and would be required to turn over documents verifying his status. We find the matter of Doe’s assertions about his citizenship to be confused and unclear, however, and therefore find that dismissing him from the case or ordering production of all documents pertaining to his immigration status would at this point be premature. Instead, we order John Doe 1 to produce any evidence in his possession that establishes he is a legal resident of the United States. Failing to do so could lead to sanctions for violations of the discovery rules. Thus, the motion will be granted to the extent discussed above, and denied in all other respects without prejudice1.
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1

For clarification, the motion is granted to the extend

that John Doe 1 is required to produce any documents

in his possession that establish he is a legal resident of

the United States.

C. Motion to preclude testimony of plaintiffs’ expert witness, Stephen Yale-Loehr Defendant seeks to exclude testimony from one of plaintiffs’ expert witnesses, Stephen Yale-Loehr (Doc. 96). Defendant argues that this expert’s testimony should be excluded because Professor Yale-Loehr proposes to provide a legal opinion to the court, and would therefore exceed the role provided for an expert in the Federal Rules of Civil Procedure. They point to several paragraphs of the expert report which contain legal conclusions about whether Hazleton’s ordinances trespass on federal authority over immigration. Plaintiffs respond that defendant misstates the role of an expert witness in a bench trial, and that as an expert in the complex field of immigration law his testimony would be relevant and helpful to the trier of fact in reaching a proper conclusion in the case. Further, the defendant did not depose the expert, and plaintiffs contend that the *256 City therefore cannot challenge his qualifications.
[4] We will deny this motion. Defendant correctly notes that an expert witness generally may not provide legal opinions, though courts appear to be more concerned about an expert who presents legal conclusions to a jury rather than to a judge. See United States v. Leo, 941 F.2d 181, 196 (3d Cir.1991) (finding that “it is not permissible for a witness to testify as to the governing law since it is the district court’s duty to explain the law to the jury.”). An expert witness may, however, be used by the finder of fact to help unsnarl complicated factual issues. Federal Rule of Evidence 702 provides, in pertinent part, that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” a fully qualified expert may testify. See also United States v. Velasquez, 64 F.3d 844, 849 (3d Cir.1995) (recognizing “the ‘strong and undeniable preference for admitting any evidence having some potential for assisting the trier of fact’ which is embodied in the Federal Rules of Evidence’ ” [citations omitted] and noting that “Rule 702, which governs the admissibility of expert testimony, specifically embraces this policy.”). The plaintiffs propose to have Professor Yale-Loehr, a leading authority on federal immigration law, to help explain to the court the intricacies of the federal immigration system. Defendant does not dispute Prof. Yale-Loehr’s qualifications, but only the subject of his testimony. While any legal conclusions from Mr. Yale-Loehr about whether Hazleton’s ordinances violate the Constitution would be inappropriate, we agree with

the plaintiffs that testimony about the nature and extent of federal immigration law-a large and complex body of doctrine-would help us to reach our own decision about the constitutionality of the ordinances. Additionally, any determination that Professor Yale-Loehr’s testimony would offer inappropriate legal conclusions is premature.
D. Motion to preclude witness testimony and evidence Defendant seeks to exclude the testimony of witnesses and evidence and exhibits not identified by the plaintiffs in answer to interrogatories (Doc. 98). Defendants submitted interrogatories prior to the close of discovery. The interrogatories asked the plaintiffs to identify all witnesses, evidence and exhibits they intended to use at trial. Plaintiffs responded that they had not identified who they would call or what evidence they would use, but promised to supplement their answers as required by the Federal Rules of Civil Procedure. The plaintiffs did not supplement their answers before the close of discovery, and defendant contends that this failure should preclude the calling of witnesses not previously identified. Plaintiffs respond that defendants had knowledge of the witnesses and evidence they intended to use through the discovery process, and that they had supplemented their interrogatories as promised, before filing a response to the instant motion.
[5] We will deny this motion. We find no credible claim of prejudice related to this alleged delay in supplementing plaintiffs’ answers to defendant’s interrogatories. In any case, the plaintiffs have now answered the interrogatories, making extreme sanctions for failing to provide answers inappropriate. This delay, which plaintiffs have cured, does not justify the “extreme sanction” of excluding critical evidence. Meyers, 559 F.2d at 905.
E. Motion to exclude trial testimony of Rodolfo Espinal regarding his former tenants Defendant seeks to exclude the testimony of Rodolfo Espinal regarding former tenants of his rental property (Doc. 100). At his deposition, Espinal had testified that a former tenant had left after the City passed anti-illegal immigrant ordinances. He refused to answer questions from defense counsel about the identity of this former tenant.
Plaintiffs do not oppose this motion; accordingly, we will grant it.
F. Motion to dismiss claims of Humberto Hernandez or, in the alternative, to preclude his testimony Defendant seeks to dismiss plaintiff Humberto Hernandez
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Lozano v. City of Hazleton, 241 F.R.D. 252 (2007)
from the case, or at least to *257 preclude him from testifying (Doc. 102). Hernandez is a named plaintiff, defendant points out, and has asserted a number of claims against the City. Despite his involvement in the case, the City claims it has been prevented from taking the defendant’s testimony. Defendant attempted on several occasions to schedule a deposition for Mr. Hernandez, and each time plaintiff cancelled the deposition. Defendant insisted that a scheduled deposition take place; neither Plaintiff Hernandez or his attorney appeared on the scheduled date. Mr. Hernandez’s attorney eventually informed the defendant that she could not schedule a deposition for her client before discovery closed, because she did not feel he was mentally or emotionally able to undertake such a proceeding. This unwillingness to undergo a deposition, defendant claims, compels this court either to dismiss plaintiff Hernandez from the case or to prevent him from testifying in the upcoming trial. Plaintiff disputes the facts alleged by the defendant in relation to scheduling difficulties for the deposition, alleging that defendant scheduled a deposition for a time defendant knew plaintiff could not attend, sent an attorney who had not entered an appearance in the case, all in an effort to support a claim that Plaintiff Hernandez had refused to attend the scheduled deposition. Plaintiff also contends that his father’s death had left him unable to participate in a deposition before discovery closed, but that he remains available for deposition today. Plaintiffs claim they have granted a similar courtesy to a defense witness who did not become available until after discovery closed.
[6] We agree with the plaintiff that dismissing Plaintiff Hernandez from the case at this point would be premature. To this point, plaintiff’s failure to appear for a deposition has largely been the result of family tragedy, miscommunication between the parties, and plaintiff’s illness related to his father’s death. None of these circumstances demonstrate the “flagrant bad faith” required to justify dismissal as a sanction, nor do they meet the factors considered by the Third Circuit for judging the appropriateness of sanctions. See Ali v. Sims, 788 F.2d 954, 958 (3d Cir.1986) (reversing discovery sanctions because failure to respond to interrogatories was the result of a long delay in the case and a change in defense counsel, not “flagrant bad faith.”); Id. at 957 (listing the factors for judging whether to exclude testimony as: “1) the extent of the plaintiff’s personal responsibility; 2) a history of dilatoriness; 3) whether the attorney’s or party’s conduct was willful or in bad faith; 4) meritoriousness of the claim (i.e. whether the allegations in the pleadings support recovery; 5) prejudice to the other party; and 6) appropriateness of alternative sanctions.”). The parties are ordered to schedule a deposition of this plaintiff at their earliest convenience. Defendant may have cause to renew its motion if Mr. Hernandez refuses to make himself available for examination in a timely fashion.

III. Plaintiffs’ Motions
A. Motion to preclude any testimony about the impact of illegal aliens on education, healthcare and public services The plaintiffs move to exclude any evidence concerning the impact of illegal aliens on education, healthcare and public services (Doc. 104). These impacts provided the stated rationale for the City’s immigration-related ordinances. Plaintiffs argue that defendant has not produced any evidence to support claims that illegal immigration has depleted City resources for education, healthcare and public services, and has instead relied on “conjecture” and “speculation” to make their argument. Because of this lack of specific evidence, plaintiffs argue, any testimony on the impact of illegal immigrants would lack the foundation in personal knowledge required of competent witnesses and should be excluded. The City responds that the testimony of defense experts will provide the necessary foundation for testimony on the impact of illegal immigration, and that the testimony of Mayor Louis Barletta also provided a factual foundation for this claimed impact. Further, defendants claim, Mayor Barletta’s testimony about what he believed to be the impact of immigrants on the City is relevant, since it *258 helps explain why the City passed its ordinances.
[7] We will deny this motion. While we recognize that the testimony of each lay witness in the case must be based on that witnesses’ personal knowledge, we also recognize that competent testimony can be provided by witnesses about what they have seen, heard and experienced, even when they cannot reduce that testimony to neat statistical categories. See Fed.R.Evid. 602 (establishing that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). In addition, we recognize that Mayor Barletta’s testimony about events that convinced him of the need for ordinances aimed at illegal immigration are relevant to the City’s motivation for passing the ordinances, even if we were to conclude that the Mayor was mistaken in his reading of the facts. See Fed.R.Evid. 401 (defining “relevant evidence” as “evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.”). We will weigh the relevancy and foundational sufficiency of each witness’s testimony in turn. The duty of the factfinder, after all, is to assess the value of the evidence and the credibility of witnesses. We find that it would be premature and too sweeping to conclude that defendant cannot provide any foundation of personal knowledge for testimony about the impact of illegal immigration on city finances and services in Hazleton.
4

Lozano v. City of Hazleton, 241 F.R.D. 252 (2007)
B. Motion to preclude the testimony of defendant’s expert witnesses, George Borjas and Jared Lewis The plaintiffs’ move to preclude the testimony of Jared Lewis and George Borjas, experts for the defendant (Doc. 105). They argue that the City failed to provide timely notice of these experts, supplying the plaintiffs with Dr. Borjas’s expert report and curriculum vitae on February 2, 2007, four days before discovery closed in this matter, and with Jared Lewis’s expert report on February 6, 2007, the day discovery ended. This delay in disclosure, plaintiffs contend, prevented them from composing a successful challenge to the contents of the reports and the qualifications of the experts. Plaintiffs accuse the defendant of engaging in “dilatory tactics,” pointing out that Jared Lewis’s report was dated December 8, 2006. Plaintiffs also argue that the reports fail to include information about the experts’ qualifications required by Federal Rule of Civil Procedure 26(a)(2)(B). Plaintiffs also claim the reports are irrelevant because they do not adequately address the issues at dispute in the case but make general statements about the impact of immigrants on crime and economic conditions. Defendant responds that delays in disclosing the expert reports were both justified and harmless to the plaintiffs. The need for such experts, defendant argues, did not become apparent to defendant until discovery had begun. Defendant also contends that no harm to the plaintiffs occurred from the delays, since the information was provided well in advance of trial and defendant offered plaintiffs an opportunity to depose the witnesses. Defendant also disputes plaintiffs’ argument that the experts’ reports lack necessary information and are irrelevant to the case.
[8] Federal Rule of Civil Procedure 37(c)(1) provides that “a party that without substantial justification fails to disclose information required by [Rule 26(e) or amend such disclosures] is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.” We agree with the defendant that plaintiffs were not prejudiced by delays in providing the expert reports, and that the failure to provide the information earlier was harmless. Those reports were provided well in advance of the trial date, giving plaintiff ample time to prepare for cross examination of the witnesses or to engage an expert to counter defendant’s witnesses. Defendant has supplemented the expert reports, providing signatures and information about qualifications left off the previous reports. The failure to provide this information earlier caused no prejudice to the plaintiffs. We also find the experts’ testimony, on the effect of illegal *259 immigration on crime and economic conditions, to be relevant to the case, since they relate to defendant’s stated reasons for passing the immigration ordinances. Therefore, whatever our ultimate view of the usefulness of this

testimony, we find that it meets the standards of relevancy and reliability required by the courts. As with the other expert testimony in the case, we will rely on the parties to expose any deficiencies in these expert opinions, noting that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
ORDER
AND NOW, to wit this 27th day of February, 2007:
1) The defendant’s motion to exclude evidence regarding any unidentified members of association plaintiffs (Doc. 92) is hereby DENIED;
2) Defendant’s motion to preclude testimony and evidence about the immigration status of John Doe 1 (Doc. 94) is GRANTED to the extent discussed in the accompanying memorandum and DENIED in all other respects;
3) Defendant’s motion to preclude the testimony of plaintiffs’ expert witness, Stephen Yale-Loehr (Doc. 96) is hereby DENIED;
4) Defendant’s motion to preclude witness testimony and evidence (Doc. 98) is hereby DENIED;
5) Defendant’s motion to exclude trial testimony of Rodolfo Espinal regarding his former tenants (Doc. 100) is hereby GRANTED;
6) Defendant’s motion to dismiss claims of Humberto Hernandez or in the alternative to preclude his testimony (Doc. 102) is hereby DENIED;
7) Plaintiffs’ motion to preclude testimony about the impact of illegal aliens on education, healthcare and public services (Doc. 104) is hereby DENIED; and
8) Plaintiffs’ motion to preclude the testimony of defendant’s expert witnesses, George Borjas and Jared Lewis (Doc. 105) is hereby DENIED.
Parallel Citations
68 Fed.R.Serv.3d 1
	  
5

Lozano v. City of Hazleton, 241 F.R.D. 252 (2007) 6

 
 Lozano v. City of Hazleton, Not Reported in F.Supp.2d (2007)

2007 WL 775589 Only the Westlaw citation is currently available.
United States District Court, M.D. Pennsylvania.
Pedro LOZANO, Humberto Hernandez, Rosa Lechuga, Jose Luis Lechuga, John Doe 1, John Doe 3, John Doe 7, Jane Doe 5, Casa Dominica of
Hazleton, Inc., Hazleton Hispanic Business Association, and Pennsylvania Statewide Latino
Coalition, Plaintiffs v.
CITY OF HAZLETON, Defendant.
No. 3:06cv1586. | March 11, 2007.
Attorneys and Law Firms
David Vaida, Law Office of David Vaida, Allentown, PA, Denise Alvarez, Foster Maer, Ghita Schwarz, Jackson Chin, Richard Bellman, Puerto Rican Legal Defense and Education Fund, Lee Gelernt, Omar C. Jadwat, American Civil Liberties Union Foundation Immigrants’ Rights Project, New York, NY, Doreen Y. Trujillo, Ilan Rosenberg, Linda S. Kaiser, Thomas B. Fiddler, Thomas G. Wilkinson, Jr., William J. Taylor, Cozen O’Connor, Mary Catherine Roper American Civil Liberties Union of Pennsylvania, Philadelphia, PA, Douglas W. Frankenthaler, Cozen O’Connor, Cherry Hill, NJ, Elena Park, Cozen O’Connor, West Conshohocken, PA, George R. Barron, Wilkes-Barre, PA, Jennifer C. Chang, Lucas Guttentag, American Civil Liberties Union Foundation, San Francisco, CA, Witold J. Walczak, American Civil Liberties Union, Pittsburgh, PA, for Plaintiffs.
Carla P. Maresca, Harry G. Mahoney, Andrew B. Adair, Deasey, Mahoney & Bender, Ltd., Philadelphia, PA, Kris W. Kobach, Kansas City, MI, Michael M. Hethmon, Immigration Reform Law Institute, Washington, DC, William Perry Pendley, Elizabeth Gallaway, Mountain States Legal Foundation, Lakewood, CO, for Defendant.
Opinion
ORDER
JAMES M. MUNLEY, United States District Judge.
*1 Before the court for disposition is the plaintiffs’ motion to strike “Exhibit A” of defendant’s pretrial memorandum, report of proposed expert Jan Ting and to preclude his testimony at trial. (Doc. 171). The parties have briefed their respective positions, and the matter is

ripe for decision.
On March 8, 2007, the defendant filed a “supplemental pre-trial memorandum” in which it identified a heretofore undisclosed expert witness, Jan Ting, professor of law at Temple University’s Beasley School of Law. (Doc. 163). Plaintiffs move to strike Ting’s expert report, and they seek to preclude him from testifying at trial. Plaintiffs assert that the disclosure of this witness comes after the deadline for expert reports and only two business days prior to the trial. Plaintiffs claim that this late disclosure is prejudicial to them. In addition, they assert that Ting’s proposed testimony would not aid the court in understanding the immigration law issues in this case. According to the plaintiff, Ting lacks practical real-world experience in immigration law and procedure and possesses strong and controversial opinions on immigration that render his report and proposed testimony unduly biased.
Defendant’s position is that Ting’s testimony is being presented merely as rebuttal to the testimony of plaintiffs’ expert witness Stephen Yale-Loehr. Defendant moved to preclude the testimony of Yale-Loehr, and this court denied the motion on February 22, 2007. In denying the motion, we found that Yale-Loehr’s testimony about the “nature and extent of federal immigration law-a large and complex body of doctrine-would help us to reach our own decision about the constitutionality of the ordinances.” (Doc. 125 at 8). Defendant asserts that it did not know of the need to use Ting as an expert until the court ruled that Yale-Loehr could testify. Lastly, defendant states that Ting will not be called until late in defendant’s case.1

1

We were advised by counsel that this trial will last

approximately two weeks.

After a careful review, we will deny the plaintiffs’ motion. We will accept defendant’s position that it did not foresee the need for this expert until February 22, 2007, and although the expert witness was revealed on the eve of trial, this lateness will be excused.2 For the reasons set forth in our order of February 27, 2007, regarding Yale-Loehr’s testimony, we find that Ting’s testimony could be helpful to the court in understanding the immigration laws at issue in this case. Defendant must, however, allow for the plaintiffs to depose Ting prior to his testimony and no later than Thursday, March 15, 2007. Ting’s testimony will be strictly limited to a rebuttal of Yale-Loehr’s testimony. Thus, any prejudice suffered by the plaintiffs will be kept to a minimum. Further, we find the plaintiffs can address Ting’s purported lack of expertise and bias on cross examination. The court will then be able to determine the weight, if any, to ultimately provide the testimony. Accordingly,
1

Lozano v. City of Hazleton, Not Reported in F.Supp.2d (2007)

2

Were it otherwise, and if the expert was called as more

than a rebuttal witness to plaintiffs’ expert, the court

would not be so lenient in allowing for the expert’s

testimony.

plaintiffs’ motion to strike “Exhibit A” of defendant’s pretrial memorandum, report of proposed expert Jan Ting and to preclude his testimony at trial. (Doc. 171) is hereby DENIED.
	  

AND NOW, to wit, this 11th day of March 2007, the

2

 
 Lozano v. City of Hazleton
United States District Court for the Middle District of Pennsylvania March 9, 2007, Decided ; March 9, 2007, Filed No. 3:06cv1586

Reporter: 2007 U.S. Dist. LEXIS 17118; 2007 WL 775589 PEDRO LOZANO, HUMBERTO HERNANDEZ, ROSA LECHUGA, JOSE LUIS LECHUGA, JOHN DOE 1, JOHN DOE 3, JOHN DOE 7, JANE DOE 5, CASA DOMINICA OF HAZLETON, INC., HAZLETON HISPANIC BUSINESS ASSOCIATION, and PENNSYLVANIA STATEWIDE LATINO COALITION, Plaintiffs v. CITY OF HAZLETON, Defendant
Subsequent History: Injunction granted at, Complaint dismissed at, in part Lozano v. City of Hazleton, 2007 U.S. Dist. LEXIS 54320 (M.D. Pa., July 26, 2007)
Prior History: Lozano v. City of Hazleton, 241 F.R.D. 252, 2007 U.S. Dist. LEXIS 13295 (M.D. Pa., 2007)
Counsel: [*1] For Pedro Lozano, Humberto Hernandez, Rosa Lechuga, Hazleton Hispanic Business Association, Plaintiffs: David Vaida, LEAD ATTORNEY, Law Office of David Vaida, Allentown, PA; Denise Alvarez, Foster Maer, Ghita Schwarz, Jackson Chin, Lillian Llambelis, Richard Bellman, LEAD ATTORNEYS, Puerto Rican Legal Defense and Education Fund, New York, NY; Doreen Y. Trujillo, Ilan Rosenberg, Linda S. Kaiser, Thomas B. Fiddler, Thomas G. Wilkinson, Jr., William J. Taylor, LEAD ATTORNEYS, Cozen O'Connor, Philadelphia, PA; Douglas W. Frankenthaler, LEAD ATTORNEY, Cozen O'Connor, Cherry Hill, NJ; Elena Park, LEAD ATTORNEY, Cozen O'Connor, West Conshohocken, PA; George R. Barron, LEAD ATTORNEY, Wilkes-Barre, PA; Jennifer C. Chang, LEAD ATTORNEY, American Civil Liberties Union Foundation, San Francisco, Ca; Lee Gelernt, Omar C. Jadwat, LEAD ATTORNEYS, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY; Lucas Guttentag, LEAD ATTORNEY, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA; Mary Catherine Roper, Witold J. Walczak, LEAD ATTORNEYS, American Civil Liberties Union of Pennsylvania, Philadelphia, PA.
For John Doe, John Doe, [*2] John Doe, 3 a Minor, By His Parents, Jane Doe, 1, Jane Doe, 3, John Doe, a Minor, By His Parents, Plaintiffs: David Vaida, LEAD ATTORNEY, Law Office of David Vaida, Allentown, PA; Denise Alvarez, Foster Maer, Jackson Chin, Lillian Llambelis, Richard Bellman, LEAD ATTORNEYS, Puerto Rican Legal Defense and Education Fund, New York, NY; Doreen Y. Trujillo, Ilan Rosenberg, Linda S.

Kaiser, Thomas B. Fiddler, Thomas G. Wilkinson, Jr., William J. Taylor, LEAD ATTORNEYS, Cozen O'Connor, Philadelphia, PA; Douglas W. Frankenthaler, LEAD ATTORNEY, Cozen O'Connor, Cherry Hill, NJ; Elena Park, LEAD ATTORNEY, Cozen O'Connor, West Conshohocken, PA; George R. Barron, LEAD ATTORNEY, Wilkes-Barre, PA; Jennifer C. Chang, LEAD ATTORNEY, American Civil Liberties Union Foundation, San Francisco, Ca; Lee Gelernt, Omar C. Jadwat, LEAD ATTORNEYS, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY; Lucas Guttentag, LEAD ATTORNEY, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA; Mary Catherine Roper, Witold J. Walczak, LEAD ATTORNEYS, American Civil Liberties Union of Pennsylvania, Philadelphia, PA.
For Jane Doe, 2, Plaintiff: Denise [*3] Alvarez, Richard Bellman, LEAD ATTORNEYS, Puerto Rican Legal Defense and Education Fund, New York, NY; Laurence E. Norton, II, Peter Zurflieh, Shamaine A. Daniels, LEAD ATTORNEYS, Community Justice Project, Harrisburg, PA; Linda S. Kaiser, Thomas B. Fiddler, LEAD ATTORNEYS, Cozen O'Connor, Philadelphia, PA; Doreen Y. Trujillo, Cozen O'Connor, Philadelphia, PA; George R. Barron, Wilkes-Barre, PA; Jennifer C. Chang, American Civil Liberties Union Foundation, San Francisco, Ca; Lucas Guttentag, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA.
For Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Plaintiffs: Denise Alvarez, Ghita Schwarz, Richard Bellman, Foster Maer, Jackson Chin, Lillian Llambelis, LEAD ATTORNEYS, Puerto Rican Legal Defense and Education Fund, New York, NY; Laurence E. Norton, II, Peter Zurflieh, Shamaine A. Daniels, LEAD ATTORNEYS, Community Justice Project, Harrisburg, PA; Linda S. Kaiser, Thomas B. Fiddler, LEAD ATTORNEYS, Cozen O'Connor, Philadelphia, PA; Doreen Y. Trujillo, Ilan Rosenberg, Cozen O'Connor, Philadelphia, PA; Douglas W. Frankenthaler, Cozen O'Connor, Cherry Hill, NJ; Elena Park, Cozen O'Connor, West [*4] Conshohocken, PA; George R. Barron, Wilkes-Barre, PA; Jennifer C. Chang, American Civil Liberties Union Foundation, San Francisco, Ca; Lucas Guttentag, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA; Omar C.

2007 U.S. Dist. LEXIS 17118, *4

Jadwat, American Civil Liberties Union Foundation,

Immigrants' Rights Project, New York, NY.

Judges: James M. Munley, JUDGE.

Page 2 of 3

For Pennsylvania Statewide Latino Coalition, Plaintiff: Denise Alvarez, Ghita Schwarz, Richard Bellman, Foster Maer, Jackson Chin, Lillian Llambelis, LEAD ATTORNEYS, Puerto Rican Legal Defense and Education Fund, New York, NY; Linda S. Kaiser, Thomas B. Fiddler, LEAD ATTORNEYS, Cozen O'Connor, Philadelphia, PA; Doreen Y. Trujillo, Ilan Rosenberg, Cozen O'Connor, Philadelphia, PA; Douglas W. Frankenthaler, Cozen O'Connor, Cherry Hill, NJ; Elena Park, Cozen O'Connor, West Conshohocken, PA; George R. Barron, Wilkes-Barre, PA; Jennifer C. Chang, American Civil Liberties Union Foundation, San Francisco, Ca; Kathryn C. Harr, Trujillo Rodriguez & Richards, LLC, Philadelphia, PA; Lucas Guttentag, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA; Omar C. Jadwat, American Civil Liberties Union Foundation, Immigrants' [*5] Rights Project, New York, NY.
For Jane Doe 5, John Doe 7, Plaintiffs: Denise Alvarez, Richard Bellman, LEAD ATTORNEYS, Puerto Rican Legal Defense and Education Fund, New York, NY; Linda S. Kaiser, LEAD ATTORNEY, Cozen O'Connor, Philadelphia, PA; George R. Barron, Wilkes-Barre, PA; Thomas B. Fiddler, Cozen O'Connor, Philadelphia, PA.
For Jose Luis Lechuga, Plaintiff: Denise Alvarez, Richard Bellman, Ghita Schwarz, LEAD ATTORNEYS, Puerto Rican Legal Defense and Education Fund, New York, NY; Linda S. Kaiser, LEAD ATTORNEY, Cozen O'Connor, Philadelphia, PA; George R. Barron, Wilkes-Barre, PA; Thomas B. Fiddler, Cozen O'Connor, Philadelphia, PA.
For City of Hazleton, Defendant: Carla P. Maresca, Harry G. Mahoney, LEAD ATTORNEYS, Deasey, Mahoney & Bender, LTD, Philadelphia, PA; Kris W. Kobach, LEAD ATTORNEY, Kansas City, MI; Michael M. Hethmon, LEAD ATTORNEY, Immigration Reform Law Institute, Washington, DC; William Perry Pendley, LEAD ATTORNEY, Elizabeth Gallaway, Mountain States Legal Foundation, Lakewood, CO; Andrew B. Adair, Deasey, Mahoney & Bender, Philadelphia, PA.
For Chamber of Commerce of the United States of America, Amicus: Juan P. Morillo, LEAD ATTORNEY, [*6] Sidley Austin Brown & Wood LLP, Washington, DC; Peter L. Matson, LEAD ATTORNEY, Lewisburg, PA; Steven Thomas Cottreau, LEAD ATTORNEY, Sidley Austin LLP, Washington, DC.
For Judicial Watch, Inc., Amicus: Leonard G. Brown, Randall L. Wenger, Clymer & Musser, P.C., Lancaster, PA.

Opinion by: James M. Munley
Opinion
MEMORANDUM and ORDER
Before the court for disposition is the plaintiffs' request to present the testimony of the Doe Plaintiffs through their depositions in lieu of testifying live in the courtroom in the trial of this matter. The parties have briefed their respective positions, and the matter is ripe for decision.
Deposition testimony is normally considered inadmissible hearsay. See, generally,FED. R. EVID. 801(c)(defining hearsay); FED. R. EVID. 802 (providing that hearsay is generally inadmissible). Federal Rule of Civil Procedure 32 provides an exception to the general rule of inadmissibility. In pertinent part Rule 32 provides as follows:
[t]he deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: upon application and notice, that such exceptional circumstances [*7] exist as to make it desirable, in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.FED. R. CIV. PRO. 32(a)(3)(E)(emphasis added).
The Third Circuit Court of Appeals has indicated that testimony by way of deposition is "freely admissible" where the conditions set forth in the Federal Rules of Civil Procedure are met. Derewecki v. Pennsylvania Railroad Co., 353 F.2d 436, 441 (3d Cir. 1965)(discussing former Rule 26(d)(3), the predecessor of rule 32(a)(3)(E), which is identical to rule 32(a)(3)(E) for our purposes).
The determination of whether exceptional circumstances exist is very fact sensitive and different for each case. The Doe Plaintiffs argue that exceptional circumstances are present in the instant case to justify the use of their deposition testimony. They assert that due to the intense media coverage this case has engendered, a significant risk is present that the identity of the Does will be revealed although we have ruled that they can proceed anonymously. Counsel for the Doe plaintiffs have "been inundated with intensely hostile correspondence" [*8] and "hate mail threatening violence" from anti-immigrant groups regarding their representation of the plaintiffs. (Pl. Letter Brief at 3). Thus, they are concerned that such groups may attend the trial and attempt to identify and/or harass the Does if they testify live. Finally, the Does argue

2007 U.S. Dist. LEXIS 17118, *8

Page 3 of 3

that in the event that the ordinances become effective, they Moreover, defendant has not presented any specific areas

face losing their homes and livelihoods by revealing relevant to the trial that they

themselves through this attempt to assert their alleged did not address at the depositions. The testimony of the Does

constitutional rights.

appears to be complete for the purposes of the case. Bearing

in mind that this case involves a non-jury trial, the court is

Defendant Hazleton argues that the depositions were taken confident that it will be able to make appropriate findings as merely for the purposes of discovery. Defendant asserts that to the Does' veracity and credibility by reviewing the

the Does never indicated that they planned to use the depositions. Further, this case involves mainly legal issues as

depositions at trial in lieu of live testimony; therefore, the to the validity of the contested ordinances, and issues of fact defendant did not fully cross examine the Does and did not will not be the predominant feature of this case. Accordingly,

fully challenge their testimony and credibility. Admitting the

depositions, according to the defendant, "would be AND NOW, to wit, this 9<th> day of March 2007, the Doe

tantamount to conceding to their veracity and credibility." Plaintiffs' request to submit their depositions in lieu of

(Def. Brief at 4).

testifying live at trial is hereby GRANTED. This motion was

originally filed "For Attorney's Eyes Only" pursuant to the

After a careful review of the positions of the parties and the parties' confidentiality agreement. As the matter has been

depositions themselves, we will grant the Doe Plaintiffs' resolved, [*10] the Clerk of Court is directed to docket the request. We find that situation that the Does find themselves plaintiffs' request and the defendant's response thereto.

in, as explained above, is an exceptional [*9] circumstance

that makes the use of the depositions at trial appropriate. BY THE COURT:

While we understand the defendant's concerns, we find that it

will suffer no prejudice by the submission of the depositions. s/ James M. Munley

During the depositions, the defendant thoroughly cross examined the Does on the issues pertinent to this case. JUDGE

United States District Court

 
 10-772

MONDAY, JUNE 6, 2011
CERTIORARI -- SUMMARY DISPOSITION HAZLETON, PA V. LOZANO, PEDRO, ET AL.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___ (2011).

 
 Case 3:06-cv-01586-JMM Document 460 Filed 10/06/15 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO,

:

No. 3:06cv1586

HUMBERTO HERNANDEZ,

:

ROSA LECHUGA,

:

(Judge Munley)

JOSE LUIS LECHUGA,

:

JOHN DOE 1,

:

JOHN DOE 3,

:

JOHN DOE 7,

:

JANE DOE 5,

:

CASA DOMINICA OF HAZLETON, :

INC.,

:

HAZLETON HISPANIC BUSINESS :

ASSOCIATION, and

:

PENNSYLVANIA STATEWIDE

:

LATINO COALITION,

:

Plaintiffs

:

:

:

v.

:

:

CITY OF HAZLETON,

:

Defendant

:

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

ORDER

AND NOW, to wit, this 6th day of October 2015, the plaintiffs’ petition for attorneys’ fees and costs (Doc. 416) and plaintiffs’ amended petition for attorneys’ fees and costs (Doc. 443) are GRANTED IN PART as follows:
As set forth in the accompanying Appendix, plaintiffs are awarded attorneys’ fees in the amount of $1,379,089.51 and $47,594.70 in costs as set forth below:
a) Cozen O’Connor - $22,512.12

Case 3:06-cv-01586-JMM Document 460 Filed 10/06/15 Page 2 of 2
b) ACLU of Pennsylvania - $8,522.48 c) ACLU Foundation Immigrants’ Rights Project - $7,279.75 d) Puerto Rican Legal Defense and Education Fund: - $6,400.77 e) Community Justice Project - $2,879.58 These amounts will be due on January 15, 2016, and the parties are directed to attempt to devise a payment schedule in the meantime.
BY THE COURT: s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court
2

Case 3:06-cv-01586-JMM Document 460-1 Filed 10/06/15 Page 1 of 3

Order Appendix

Total Attorneys' Fee Award

Thomas Wilkinson, Jr. Thomas B. Fiddler Doreen Y. Trujillo
Linda Kaiser Conley Ilan Rosenberg Elena Park Robert G. Katz
Raymond T. Letulle Douglas Frankenthaler
Joseph A. Arnold Gabriela Salazar Nicola S. Rochester Daniel J. Luccaro Margaret Gallizia Catherine M. Branka Barbara B. Melvin
Rachael White Michael Cox
Gianine M. Kopishke Christa Iannone
Steffany Jackson-Ings Jill Poretta
Tracy Maleef
Total Cozen O'Connor Attorneys' Fees:

Cozen O'Connor

Requested

$

341,172.40 $

$

237,387.70 $

$

116,050.00 $

$

112,660.50 $

$

122,570.80 $

$

106,157.50 $

$

4,851.00 $

$

20,942.00 $

$

4,256.00 $

$

3,200.50 $

$

2,070.00 $

$

1,997.50 $

$

1,300.00 $

$

71,276.50 $

$

12,267.50 $

$

4,035.00 $

$

2,030.50 $

$

449.50 $

$

280.50 $

$

201.50 $

$

49.00 $

$

48.00 $

$

36.00 $

$ 1,165,289.90 $

Awarded 170,248.18 109,648.52 52,222.50 50,697.23 60,672.06 49,976.00 3,395.70 9,423.90 1,915.20 1,440.23 931.50 898.88 585.00 32,468.18 5,520.38 1,815.75 913.73 202.28 126.23 90.68 22.05 21.60 16.20
553,251.93

1

Case 3:06-cv-01586-JMM Document 460-1 Filed 10/06/15 Page 2 of 3

Attorney Dyller

Requested

Barry H. Dyller $

27,562.50 $

Awarded 12,403.13

Attorney Barron

Requested

George R. Barron $

25,993.50 $

Awarded 11,697.08

Attorney Vaida

Requested

David Vaida $

48,875.00 $

Awarded 21,993.75

American Civil Liberties Union of Pennsylvania (“ACLUPA”)

Requested

Witold Walczak $

443,833.00 $

Awarded 235,702.60

American Civil Liberties Union Found. Immigrant’s Rights Project “(ACLUF”)

Requested

Omar C. Jadwat $ Jennifer Chang Newell $

215,228.75 $ 83,072.25 $

Kenneth Sugarman $
Dror Ladin $

8,435.00 $
7,852.50 $

Total ACLUF Attorneys' Fees: $

314,588.50 $

Awarded 124,825.44 51,251.51 5,904.50 5,496.75
187,478.20

2

Case 3:06-cv-01586-JMM Document 460-1 Filed 10/06/15 Page 3 of 3

Puerto Rican Legal Defense and Education Fund (“PRLDEF”)

Requested

Foster Maer $

286,775.50 $

Jackson Chin $

162,228.00 $

Denise Alvarez $

87,907.50 $

Lillian Llambelis $

75,757.50 $

Ghita Schwarz $

35,992.50 $

Richard Bellman $

26,190.00 $

Christina Iturralde $

33,835.50 $

Marisabel Kanioros $

9,334.00 $

Jose Perez $

7,728.00 $

Roberto Concepcion $

3,577.50 $

Elizabeth Joynes $

3,352.50 $

Total PRLDEF Attorneys' Fees: $

732,678.50 $

Awarded 139,893.48 76,372.10 39,558.38 34,090.88 18,131.25 11,785.50 16,532.85 4,200.30 5,409.60 2,504.25 2,346.75
350,825.33

Community Justice Project (“CJP”)

Shamaine Daniels

Requested

$

12,750.00 $

Awarded 5,737.50

Requested

Total Attorneys'

Fees

$ 2,771,570.90 $

Awarded 1,379,089.51

3

 
 O'CONNOR,

GEORGE R. BA&RON
ATTORNEY

;pi'~p:* BARRY M, DYkkEW

ATf DRMEYI$A T L A W

~ *:,@p4

M*hnxl**+BI*II I

David Vaida
Attorney

The Communitv Justice Proiecf

By Hand and Facsimile

August 15,2006

Mr. Louis Barletta Mayor, City of Hazleton 40 North Church Street Hazleton, PA. 18201

Dear Mayor Barletta:

Today, a number of Hazleton residents, local businesses and community organizations filed a lawsuit against the City of Hazleton seeking to void the ordinance it recently passed entitled the "Illegal Immigration Relief Act Ordinance" ("Ordinance"). As our earlier letter of July 11,2006, stated, we believe that the Ordinance will be found to violate the United States and Pennsylvania Constitutions and various civil rights laws. As made clear by the Congressional Research Service's legal analysis report concerning the Ordinance already in your possession, it is quite likely that the courts will grant the relief plaintiffs seek.

The plaintiffs and their attorneys would prefer to resolve this matter amicably. We request that, at its August 15,2006, meeting the City Council revoke its enactment of the Ordinance and agree to enter into a consent decree providing that it will not subsequently enact any ordinance that attempts to regulate immigration or is otherwise dependent upon a person's immigration status in its intentions, implementation or impact.

If the City agrees to resolve this matter in this fashion, the plaintiffs and their attorneys will agree not to apply for attorneys fees and expenses as well as all other relief to which the plaintiffs will be entitled.

We hope you will consider this offer seriously. If you do not accept it, we will move shortly after your August 15" Council meeting for preliminary relief seeking to enjoin its implementation.

Page Two August 15,2006 Letter to City of Hazleton and Mayor Louis Barletta
This Ordinance, if allowed to stand, will take Hazleton, and the towns that enact laws mimicking it, back to the worst days of America where certain kinds of people could not by law own property, run businesses nor live in certain places. Many of those affected by the overly broad ordinance are here legally and have lived, worked and worshiped in Hazelton for a long time. In desperation and fear, some of those residents have already decided to close their businesses, move out of Hazleton, or, simply hide as best they can behind closed doors.
On all of their behalf, we ask that you reconsider the enactment of this Ordinance.
Yours truly,

Lee Llambelis, Esq. Jackson Chin, Esq. Puerto Rican Legal Defense & Education Fund 99 Hudson St., 14 Floor New York, NY 10013
Thomas G. Wilkinson, Esquire Doreen Yatko Trujillo, Esquire Linda S. Kaiser, Esquire William J. Taylor, Esquire Elena Park, Esquire Douglas W. Frankenthaler, Esquire Ilan Rosenberg, Esquire COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103

Omar C. Jadwat, Esq. American Civil Liberties Union Foundation
Immigrants' Rights Project 125 Broad St., 18th F1. New York, NY 10004
Jennifer C. Chang, Esq. American Civil Liberties Union Foundation
Immigrants' Rights Project 39 I l r u m Street San Francisco, CA 94111
Witold J. Walczak, Esq. Paula Knudsen, Esq. Mary Catherine Roper, Esq. American Civil Liberties Union of Pennsylvania

Laurence E. Norton, 11, Esq. Peter Zurflieh, Esq. Shamaine Daniels, Esq. Community Justice Project 118 Locust Street Harrisburg, PA 17101

George R. Barron, Esq. 88 North Franklin Street Wilkes-Barre, Pennsylvania 18701
Barry H. Dyller, Esq. 88 North Franklin Street Wilkes-Barre, PA 18702

David Vaida, Esq. 137 North 5h Street Allentown, PA 18201

Cc: All City Council Members City Solicitor

 
 ORDINANCE 2006-10
ILLEGAL IMMIGRATION RELIEF ACT ORDINANCE
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF HAZLETON AS FOLLOWS:
SECTION 1. - TITLE
This chapter shall be known and may be cited as the “City of Hazleton Illegal Immigration Relief Act Ordinance.”
SECTION 2. - FINDINGS AND DECLARATION OF PURPOSE
The People of the City of Hazleton find and declare:
A. That illegal immigration leads to higher crime rates, contributes to overcrowded classrooms and failing schools, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services, increasing their cost and diminishing their availability to lawful residents, and destroys our neighborhoods and diminishes our overall quality of life.
B. That the City of Hazleton is authorized to abate public nuisances and empowered and mandated by the People of Hazleton to abate the nuisance of illegal immigration by diligently prohibiting the acts and policies that facilitate illegal immigration and punishing the people and businesses that aid and abet illegal aliens.
C. This ordinance seeks to secure to those lawfully present in the United States and this City, whether or not they are Citizens of the United States, the right to live in peace free of the threat of illegal alien crime, to enjoy the public services provided by this city without being burdened by the cost of providing goods, support and services to any whose presence in the United States is contrary to its laws and to be free of the debilitating effects on their economic and social well being imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the Commonwealth of Pennsylvania.

SECTION 3. DEFINITIONS
Whenever used in this chapter, the following terms shall have the following meanings:
“City” means the City of Hazleton. “Contract employer” means any person who obtains the services of one or more individuals through a day labor agency. “Illegal Alien” means any person whose initial entry into the United States was illegal and whose current status is also illegal as well as any person who, after entering legally, has failed to leave the United States upon the expiration of his or her visa. “Legal Work Status” means that a person’s employment is not in violation of any law of the United States, the Commonwealth of Pennsylvania or this Ordinance. “Vehicle” means a vehicle as defined in Pennsylvania Vehicle Code as the same now reads or may hereafter be amended.
SECTION 4. BUSINESS PERMITS, CONTRACTS OR GRANTS
Any entity or any parent, affiliate, subsidiary or agent of any entity (other than a charity recognized as exempt from federal income taxation under Sec. 501 of the Internal Revenue Code of the United States and which has obtained and continues to have in force an exemption from federal income taxation), that employs, retains, aids or abets illegal aliens or illegal immigration into the United States, whether directly or by or through any agent, ruse, guise, device or means, no matter how indirect, and even if the agent or entity might otherwise be exempted from this section, or violates any provision of this Ordinance, shall from the date of the violation or its discovery, whichever shall be later, be denied and barred from approval of a business permit, renewal of a business permit, any city contract or grant as follows:
(1) For the first violation for a period of five years,
(2) For any subsequent violation, for a period of ten years.
A. “Aids or abets” includes, but is not limited to:
(i) hiring or attempted hiring of illegal aliens,
(ii) providing, renting or leasing real or personal property to illegal aliens,
(iii) funding or providing goods and services to illegal aliens, except as provided in Sec. 4 C.,

(iv) funding, providing goods and services to or aiding in the establishment or continuation of any day labor center or other entity providing similar services, unless the entity acts with due diligence to verify the legal work status of all persons whom it employs, provides job assistance for or in any way assists or facilitates in obtaining any employment.
B. Except as provided in C., any action or failure to act done within the boundaries of this City that aids and abets illegal aliens or facilitates their avoiding detection and apprehension anywhere in the United States, its territories or possessions violates this Ordinance.
C. This Ordinance shall not be construed to prohibit rendering emergency medical care, emergency assistance or legal assistance.
SECTION 5. RENTING TO ILLEGAL ALIENS
A. Illegal aliens are prohibited from leasing or renting property. Any property owner or renter/tenant/lessee in control of property, who knowingly allows an illegal alien to use, rent or lease their property shall be in violation of this section.
B. Any person or entity that violates this Ordinance shall be subject to a fine of not less than $1,000.00.
C. A separate violation of this Ordinance shall be deemed to have been committed on each day during or on which a violation occurs or continues.
SECTION 6. ENGLISH ONLY
A. The City of Hazleton declares that English is the official language of the City.
B. Unless explicitly mandated by the federal government, the state of Pennsylvania or the City of Hazleton, all official city business, forms, documents, signage will be written in English only.
SECTION 7. SEVERABILITY
If any part of provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable

by any court of competent jurisdiction, such part of provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.
ORDAINED by Council this 13th day of July, 2006.

First Reading
(June 15, 2006)

Second Reading
(July 13, 2006)

Third Reading
(July 13, 2006)

Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

Graham Nilles N Y Y Y Y

Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

Graham Yannuzzi Y Y Y N Y

Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

Graham Yannuzzi Y Y Y N Y

ORDINANCE PASSES JULY 13, 2006

 
 CITY COUNCIL SPEECH BY MAYOR LOU BARLETTA JULY 13, 2006
THANK YOU ALL FOR COMING TONIGHT.
AS I DID AT THE LAST MEETING, I ASK THAT OUR DISCUSSION BE SERIOUS AND SINCERE, BUT RESPECTFUL AND POLITE.
NOTHING GOOD WILL COME FROM VICIOUS AND PERSONAL ATTACKS, AND THEY WILL NOT BE TOLERATED.
ABOUT A MONTH AGO, I PROPOSED THE ILLEGAL IMMIGRATION RELIEF ACT.
SINCE THEN, MY OFFICE HAS RECEIVED MORE THAN 8,000 EMAILS SUPPORTING THE MEASURE.
WE HAVE RECEIVED OVERWHELMINGLY POSITIVE RESPONSES FROM LITERALLY EVERY STATE IN THE UNION, FROM MAIN TO HAWAII AND ALASKA.
BUT WE DON’T HAVE TO LOOK FAR TO SEE SOME OF OUR MOST VOCAL SUPPORT.
GRANT STREET, LOCUST STREET, LAUREL STREET, ARTHUR STREET,
FULTON COURT, BERNER AVENUE, SOUTH PINE STREET, BIRCH STREET, CHURCH STREET, NINETEENTH STREET, SEVENTH STREET, DIAMOND AVENUE….
WE RECEIVED HUNDREDS OF LETTERS OF SUPPORT FROM EVERY SECTION OF THE CITY.
ONE PERSON WROTE, ‘ I HAVE LIVED IN THIS CITY ALL MY LIFE AND HAVE ALWAYS LOVED THE CITY OF HAZLETON. NEVER HAVE I BEEN SO PROUD….’
ANOTHER FAMILY WROTE, ‘JUST WANTED TO LET YOU KNOW HOW VERY PROUD WE ARE OF EVERYTHING YOU ARE DOING TO KEEP US SAFE AND CHANGE OUR CITY. WE WERE GOING TO SELL OUR HOUSE, BUT NOW WE HAVE RECONSIDERED.
WE HAVE ALSO HEARD FROM FORMER RESIDENTS, SOME OF WHOM HAVE HEARTBREAKING STORIES TO TELL.
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‘I SPENT SEVEN YEARS IN HAZLETON AND SAW WHAT WAS HAPPENING
TO HAZLETON WAS WHAT I HAD ALREADY WITNESSED HAPPENING IN MY HOMETOWN, READING, PENNA.’,
A WOMAN WROTE - FIVE YEARS AGO, I CAME TO SUGARLOAF, JUST TO GET AWAY FROM THE MANY FACETS OF ANOTHER DETERIORATING CITY. I DO THINK YOU ARE CATCHING HAZLETON IN TIME TO SAVE THE CITY.’
A COUPLE WROTE, ‘MY WIFE AND I USED TO DO MOST OF OUR BUSINESS THERE. HOWEVER, OVER THE PAST 15 YEARS OR SO, WE HAVE SINCE RETREATED FROM YOUR ONCE SAFE CITY.
A MAN FROM SCOTTSDALE, ARIZONA, WROTE THAT HE GRADUATED FROM HAZLETON AREA HIGH SCHOOL IN 1994. HE WROTE THAT HE IS CONSIDERING MOVING BACK TO THE AREA, ADDING ‘HAZLETON WAS A NICE PLACE FOR ME TO GROW UP, AND I WOULD LIKE IT TO BE JUST AS NICE FOR MY SON TO GROW UP THERE.’
FOR THE RECORD, WE HAVE RECEIVED EXACTLY one –ONENEGATIVE RESPONSE FROM A LOCAL RESIDENT.
BUT I COULD READ HUNDREDS OF STORIES FROM RESIDENTS, FORMER RESIDENTS, AND PEOPLE ACROSS AMERICA WHO HAVE SEEN ILLEGAL ALIENS DESTROY THEIR TOWNS AND THEIR QUALITY OF LIFE.
AS THE MAYOR, I SEE HOW ILLEGAL ALIENS ARE SAPPING OUR CITY RESOURCES.
ENOUGH IS ENOUGH!
SINCE OUR LAST MEETING, WE HAVE MADE SOME CHANGES TO THE PROPOSAL THAT STRENGTHENS BOTH THE ORDINANCE AND THE CITY’S POSITION.
FOR INSTANCE, LANDLORDS WILL NOT BE REQUIRED TO CHECK ALL DOCUMENTATION FROM POTENTIAL TENANTS.
INSTEAD, THEY WILL ONLY HAVE TO CHECK FOR ONE PERMIT: AN OCCUPANCY PERMIT FROM THE CITY OF HAZLETON.
2

TENANTS AND POTENTIAL TENANTS MUST COME TO CITY HALL AND APPLY FOR THESE PERMITS.
AFTER DOCUMENTATION IS CHECKED, A PERMIT WILL BE ISSUED, AND THESE LEGAL RESIDENTS WILL BE ABLE TO MOVE INTO A LANDLORD’S PROPERTY.
IF THE TENANT IS FOUND TO HAVE PROVIDED FALSE DOCUMENTATION TO THE CITY, LANDLORDS WILL NOT BE HELD ACCOUNTABLE.
IN EXCHANGE FOR THIS PROVISION, THE CITY IS IMPOSING TWO MEASURES.
FIRST, WE ARE IMPOSING A FEE FOR THESE OCCUPANCY PERMITS.
SECOND, LANDLORDS CAUGHT KNOWINGLY RENTING TO THOSE WITH NO PERMIT OR FALSE DOCUMENTATION OF ANY KIND WILL BE FINED $1,000 PER ILLEGAL TENANT PER DAY.
BUSINESSES WHO KNOWINGLY HIRE ILLEGAL
IMMIGRANTS WILL LOSE CITY BUSINESS FOR FIVE YEARS AFTER THEIR FIRST OFFENSE, AND FOR 10 YEARS FOLLOWING THEIR SECOND.
AGAIN, LET ME STRESS THAT THIS ORDINANCE DOES NOT TARGET ANY PARTICULAR RACE. IF YOU READ IT, YOU WILL NOT FIND ANY REFERENCE TO SPECIFIC RACES, NOR WILL YOU FIND ANY REFERENCE TO ANY LANGUAGE OTHER THAN ENGLISH.
OVER THE PAST MONTH OR SO, WE HAVE BEEN ACCUSED OF BEING RACIST, INTOLERANT, AND UNFAIR.
BUT LET ME REPEAT WHAT I HAVE BEEN SAYING ALL ALONG……. ILLEGAL IS ILLEGAL!
WE DO NOT CARE WHERE THEY COME FROM, WE DO NOT CARE WHAT LANGUAGE THEY SPEAK, BUT AN ILLEGAL ALIEN IS NOT WELCOME IN HAZLETON!
THOSE WHO ARE HERE ILLEGALLY CONTINUE TO DRAIN CITY RESOURCES.
3

THE OTHER DAY, POLICE RESPONDED TO A SIMPLE NOISE COMPLAINT AND FOUND THREE ILLEGAL ALIENS.
THE OFFICERS WHO WENT TO THAT SCENE, WERE TAKEN AWAY FROM OTHER PATROLS.
THOSE THREE YOUNG MEN WERE NOT SUPPOSED TO BE IN THE UNITED STATES TO BEGIN WITH, BUT THE HAZLETON POLICE DEPARTMENT HAD TO SHIFT RESOURCES AWAY FROM OTHER LAW ENFORCEMENT DUTIES TO RESPOND TO THAT COMPLAINT.
EARLIER THIS MONTH, CITY POLICE OFFICERS HAD TO PHYSICALLY SUBDUE A MAN WHO LATER CLAIMED HE WAS AN ILLEGAL IMMIGRANT.
THIS MAN ALLEGEDLY FOUGHT WITH OUR POLICE AND TRIED TO TAKE THE GUN OUT OF THE HANDS OF ONE OF OUR DETECTIVES.
WE MUST DRAW THE LINE, AND WE ARE DRAWING IT TONIGHT!
ON A PERSONAL NOTE, I HAVE BEEN ACCUSED OF NOT ONLY BEING A RACIST, BUT ALSO DOING THIS FOR OTHER REASONS, FOR POLITICAL GAIN, OR TO HELP OTHER ELECTED OFFICIALS.
I AM PERSONALLY OFFENDED BY THOSE ACCUSATIONS, NOT BECAUSE THEY INSULT ME, I AM OFFENDED BECAUSE THEY INSULT THE FAMILY OF DEREK KICHLINE, WHO WAS ALLEGEDLY GUNNED DOWN – MURDERED- BY FOUR ILLEGAL ALIENS.
THEY INSULT THE CHILDREN WHO ARE NO LONGER ALLOWED ON THE PINE STREET PLAYGROUND BECAUSE AN ILLEGAL ALIEN FIRED A GUN THERE.
THEY INSULT THE FATHERS AND MOTHERS, BROTHERS AND SISTERS, SONS AND DAUGHTERS, OF THOSE IN OUR COMMUNITY WHO ARE ADDICTED TO THE DRUGS SOLD BY ILLEGAL IMMIGRANTS.
I AM THE MAYOR OF HAZLETON.
I SWORE AN OATH TO PROTECT THE RESIDENTS OF THIS CITY – THE LEGAL RESIDENTS OF THIS CITY.
WHEN PEOPLE ARE GUNNED DOWN OUTSIDE THEIR HOMES, I CANNOT SIT BY AND WAIT FOR A SOLUTION.
4

WHEN RESIDENTS ARE AFRAID TO WALK DOWN A CITY STREET, I CANNOT IGNORE THEIR COMPLAINTS. WHEN CHILDREN – CHILDREN- ARE AFRAID TO GO TO A PLAYGROUND, I MUST ACT.
THERE ARE THOSE IN THE COMMUNITY WHO HAVE ATTEMPTED TO JUSTIFY CRIMINAL CONDUCT. THEY SAY THAT CROSSING THE BORDER WITHOUT PAPERS, OR BUYING SOMEONE ELSE’S IDENTITY, OR OVERSTAYING A TOURIST OR STUDENT VISA IS NOT ILLEGAL. BELIEVE IT OR NOT, THERE ARE THOSE WHO ALSO SAY THAT WE HAVE ALWAYS HAD MURDERS OR EVEN MASSACRES – IN HAZLETON, THAT IT IS PART OF OUR LOCAL CULTURE. THAT A 14 YEAR OLD FIRING A GUN AT A PLAYGROUND IS JUST A KID PLAYING AROUND. THESE PEOPLE COULD NOT BE MORE WRONG! WHEN YOU START JUSTIFYING ONE CRIMINAL ACT, IT BECOMES EASIER AND EASIER TO JUSTIFY MORE. ILLEGAL IS ILLEGAL! PERIOD AS I TOLD THE SENATE COMMITTEE AND COUNTLESS MEDIA OUTLETS ACROSS THE COUNTRY OVER THE PAST SEVERAL WEEKS, HAZLETON IS SMALL TOWN USA. WE ARE AN ALL AMERICAN CITY. WE ARE A PLACE WHERE PEOPLE SHOULD BE ABLE TO RAISE THEIR FAMILIES FREE OF FEAR. A CITY WHERE RESIDENTS AND LEGAL IMMIGRANTS CAN LIVE SIDE BY SIDE, COMMUNICATING WITH AND LOOKING OUT FOR EACH OTHER. ONE COMMUNITY OF LEGAL, HARDWORKING, LAW ABIDING TAXPAYING CITIZENS.
5

 
 Board of Directors
Amb. Gabriel Guerra-Mondragón Chair Diana A. Correa, Esq. Vice Chair Robert F. Rosario, CPA Treasurer Diana Orantes Ceresi, Esq. Secretary David JB Arroyo, Esq. Vernon S. Broderick, Esq. Linda Hernández Rosado Manuel R. Pietrantoni, Esq. John Quiñones, Esq. Laura Quintano, Esq. Karla Sanchez, Esq. Jorge Suárez-Vélez Ronald J. Tabak, Esq. Debra M. Torres, Esq. Frank Vásquez Cid D. Wilson Martin H. Zuckerman, Esq. Honorary Director
Cesar A. Perales President & General Counsel
PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND 99 Hudson Street New York, NY 10013-2815 Tel: 212 219 3360 Fax: 212 431 4276 800 328 2322

By Telefax and Mail

July 11, 2006

Louis Barletta Mayor, City of Hazleton 40 North Church Street Hazelton, PA 18201

Dear Mayor Louis Barletta:

The signatories to this letter write on behalf of their Hazleton area clients to express their opposition to the “Illegal Immigration Relief Act” under consideration by the Hazleton City Council and to express their intention to challenge the Act in court, if passed by the Council. We believe that the Act is unlawful on a number of grounds and will be invalidated by the courts.

Most significantly, this Act would violate the United States Constitution as it infringes on the exclusive federal power over immigration. By using immigration status as criteria to prohibit individuals from obtaining housing, using other commercial or private premises, obtaining any sort of employment, or communicating with City employees in a language other than English, the Act is effectively trying to regulate immigration. Though the City of Hazleton may not be satisfied with the job the federal government is doing in that regard, neither Hazleton nor the thousands of other cities and municipalities across this country may lawfully take on that task.

Further, the impracticality of attempting to comply with the law on the part of property owners, businesses, or employers raises a number of other possible legal challenges. Persons subject to the ordinance cannot reasonably be expected to know which acts are necessarily prohibited and which acts are permissible under the Act. Such insurmountable obstacles to compliance with the Act make it fundamentally unfair and thus violative of the due process guarantees in the federal Constitution.

Lastly, the Act’s prohibition of any City employee communicating in a language other than English violates the First Amendment as it infringes upon the right to petition the government for redress of grievances, a fundamental right that lies at the core of our democracy. A resident who can better communicate in a language other than English should not be prohibited from doing so with City employees when otherwise appropriate.

We suggest also that you consider something we believe you have ignored: all persons within the United States, including those without proper documentation, are obligated to obey our laws. They also have rights under our Constitution and federal laws.
As we stated at the outset, we intend to challenge this Act in court if passed. If such a challenge is upheld, the City of Hazleton, and you as its Mayor, will be subject to injunctive relief, possible monetary damages, and the payment of attorney fees and costs, both for the City’s attorneys and for the attorneys who bring the challenge, which can be quite substantial in a case like this. We hope that such a challenge will not be necessary.
We thank you in advance for consideration of this matter and look forward to a prompt reply.
Yours truly,
Foster Maer, Esq. Lee Llambelis, Esq. Jackson Chin, Esq. Puerto Rican Legal Defense and Education Fund 99 Hudson St. New York, NY 10013
Laurence E. Norton, II, Esq. Peter Zurflieh, Esq. Shamaine Daniels, Esq. Community Justice Project 118 Locust Street Harrisburg, PA 17101
Witold J. Walczak, Esq. Paula Knudsen, Esq. American Civil Liberties Union of Pennsylvania
George R. Barron, Esq. 88 North Franklin Street Wilkes-Barre, Pennsylvania 18701
Barry H. Dyller, Esq. 88 North Franklin Street Wilkes-Barre, PA 18702
David Vaida, Esq. 137 North 5th Street Allentown, PA 18201
Cc: All City Council Members City Attorney

 
 Memorandum

June 29, 2006

TO:

Hon. Paul E. Kanjorski

Attention: Tom Nicholls

FROM:

Jody Feder & Michael Garcia Legislative Attorneys American Law Division

SUBJECT: Legal Analysis of Proposed City of Hazleton Illegal Immigration Relief Act Ordinance

This memorandum is in response to your request for legal analysis of the proposed “City of Hazleton Illegal Immigration Relief Act Ordinance,” particularly as it relates to federal law concerning the “aiding and abetting” of illegal immigrants in the United States, Title VII of the Civil Rights Act, and the Fair Housing Act (FHA). Among other things,1 the proposed ordinance would (1) deny business permits, city contracts, or grants to for-profit entities that have “aided and abetted” illegal aliens or immigration anywhere within the United States, including by employing or renting/leasing property to illegal aliens, or aiding in the establishment of a day laborer center that does not verify legal work status; and (2) impose civil monetary penalties upon illegal aliens who rent or lease property, and persons who knowingly rent/lease property to such aliens. For the reasons described below, there is reason to believe that state and federal courts would be precluded on preemption grounds from enforcing many aspects of the proposed ordinance, as such matters are already regulated under the Immigration and Nationality Act (INA). While the proposed ordinance does not facially violate Title VII of the Civil Rights Act or the FHA, it might nonetheless give rise to legal challenges if it results in discrimination on the basis of national origin rather than citizenship.
Relevant Federal Immigration Law
Through the INA, the federal government has instituted a comprehensive framework to regulate the admission and removal of aliens. Persons who violate INA requirements are

1 Section 6 of the proposed ordinance, which would declare English to be the official language of Hazleton and require official documents to be in English unless otherwise specified by federal, state, or local law, does not facially appear to raise any notable legal concerns. See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001) (finding that private individuals could not bring suit under Title VI of the Civil Rights Act against Alabama on account of the alleged, disparate, discriminatory impact of its “English-only” policy).
Congressional Research Service Washington, D.C. 20540-7000

CRS-2
potentially subject to criminal and/or civil penalty. The following discussion briefly describes relevant federal laws prohibiting various forms of assistance to illegal aliens. It does not consider provisions relating to such matters as document fraud.2
Hiring Unauthorized Aliens. INA§ 274A generally prohibits the hiring, referring, recruiting for a fee, or continued employment of illegal aliens. Violators may be subject to cease and desist orders, civil monetary penalties, and (in the case of serial offenders) criminal fines and/or imprisonment for up to 6 months. Notably, INA § 274A expressly preempts any state or local law imposing civil or criminal sanctions upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.3 However, state and local regulation of such practices through licensing and similar laws is exempted from this general preemption requirement.4
It should also be noted that under INA § 274B, employers are prohibited from discriminating against any individual (other than an unauthorized alien) on account of that alien’s national origin or citizenship status.
Harboring Unauthorized Aliens or Encouraging or Inducing Them to Enter or Reside in the United States. INA § 274 criminalizes various activities relating to the bringing in and harboring of aliens who lack the lawful authority to enter or remain in the United States, and also criminalizes certain other activities concerning the transportation of such aliens or the encouragement or inducement of such aliens to reside in the United States. Courts have generally interpreted the scope of INA § 274 broadly. For example, some courts have found that the mere sheltering of an alien, knowing or in reckless disregard of the alien’s unlawful status, is a ground for criminal liability, regardless of whether it was done surreptitiously.5 Further, at least one federal appellate court has found that in order for a person to be held criminally liable for encouraging or inducing an unauthorized alien to enter or reside in the United States, “all that the government needed to establish was that...[the individual] knowingly helped or advised the alien[].”6
Under INA § 274, aiding and abetting the commission of a listed offense (other than bringing an alien to the United States without authorization or hiring smuggled aliens) is itself a criminal offense. Additionally, in accordance with 18 U.S.C. § 2, a person who “aids,
2 For a discussion of the various federal restrictions on immigration-related document fraud, see CRS Report RL32657, Immigration-Related Document Fraud: Overview of Civil, Criminal, and Immigration Consequences, by Michael John Garcia.
3 INA § 274A(h)(2); 8 U.S.C. § 1324a.
4 Id. See generally H.R. REP. 99-682(I), at 58 (1986) (describing purpose behind licensing exemption).
5 E.g., United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) (finding that a church official violated the harboring provision when he invited an illegal alien to stay in an apartment behind his church, and interpreting harboring statute as not requiring an intent to avoid detection); United States v. Rubio-Gonzalez, 674 F.2d 1067 (5th Cir. 1982) (suggesting that “harboring” an alien is a broader concept than other smuggling provisions relating to the concealment of an alien or the shielding of an alien from detection); United States v. Acosta De Evans, 531 F.2d 428 (9th Cir. 1976) (upholding harboring conviction of defendant who provided illegal aliens with apartment, and concluding that harboring provision was not limited to clandestine sheltering only).
6 United States v. Fuji, 301 F.3d 535, 540 (7th Cir. 2002).

CRS-3
abets, counsels, commands, induces or procures” the commission of a criminal offense against the United States may be punishable as a principal.
Unlawful Entry and Reentry of Aliens. Aliens who enter or attempt to enter the U.S. without proper authorization are subject to exclusion or removal.7 In addition, INA § 275(a) makes it a criminal offense for an alien to (1) enter or attempt to enter the United States at any time or place other than as designated by immigration officers; (2) elude examination or inspection by immigration officers; or (3) attempt to enter or obtain entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact.8 In many circumstances, such aliens may also be subject to civil monetary penalties. Pursuant to INA § 276, aliens who unlawfully reenter the United States in violation of an order of removal or exclusion are subject to heightened criminal penalties.
Persons who aid and abet violations of INA §§ 275-276 may be charged under the federal aiding and abetting statute, 18 U.S.C. § 2, thereby subjecting them to the same criminal (as opposed to civil) penalties as the principal. As discussed previously, such persons could also be charged under INA § 274 (concerning the bringing in and harboring of illegal aliens).
Preemption Issues Related to the Proposed Ordinance
Background on Preemption of State and Local Immigration Regulation. The Supremacy Clause of the U.S. Constitution provides that federal laws and treaties are “the supreme Law of the Land.”9 Accordingly, when Congress acts within the scope of its constitutional authority, the laws it enacts may preempt state or local action within that field. State or local action may be preempted by federal law on a number of grounds. In general, a valid act of Congress may preempt state or local action in a given area if (1) an express statement of preemption is given; (2) it appears that Congress intended to occupy the regulatory field, implicitly precluding state or local action in that area; or (3) state or local action conflicts with the federal scheme.10
While federal and state power to regulate certain matters is concomitant, the Supreme Court has long recognized that the regulation of immigration “is unquestionably exclusively a federal power.”11 In the 1941 case of Hines v. Davidowitz,12 the Supreme Court ruled that enforcement of a Pennsylvania statute requiring the registration of aliens was precluded by the Federal Alien Registration Act of 1940, which established a comprehensive federal scheme for the registration of aliens. Although the federal law did not expressly preempt the
7 E.g., INA §§ 212(a)(6)-(7),(9), 237(a)(1); 8 U.S.C. §§ 1182(a)(6)-(7),(9), 1227(a)(1). 8 8 U.S.C. § 1325(a). INA §275 also imposes criminal penalties upon persons who engage in marriage or commercial enterprise fraud for the purpose of evading immigration requirements. 8 U.S.C. § 1325(c)-(d). 9 U.S. CONST. art. VI, cl. 2. 10 See, e.g., Silkwood v. Kerr-McGee Corp, 464 U.S. 238, 248-249 (1984); Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n, 461 U.S. 190, 203-204 (1983). 11 DeCanas v. Bica, 424 U.S. 351, 354 (1976). 12 Hines v. Davidowitz, 312 U.S. 52 (1941).

CRS-4
earlier state law, the Court, noting that the “basic subject of the state and federal laws [was] identical,”13 held that:
the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, the act of congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it. And where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation...states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.14
Although federal law preempts most state or local action addressing immigration, the Supreme Court has never held that “every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted.”15 In the 1976 case of DeCanas v. Bica, the Supreme Court held that state regulation of matters only tangentially related immigration would, “absent congressional action[,]...not be an invalid state incursion on federal power.”16
Preemption Issues Related to the Proposed Ordinance. As an overarching matter, the proposed ordinance would impose new regulations upon immigration matters wholly separate from those enacted by the federal government. These regulations would govern many types of conduct already covered or contemplated by federal immigration law, but do so in a different manner.17 Some of the regulations contained in the proposed ordinance would be coextensive in geographic breadth as federal immigration law, covering activities occurring anywhere in the United States. In sum, the proposed ordinance would arguably create a new immigration regulatory regime independent from the federal system. Such a regime would very likely be found by a reviewing court to be preempted in whole or in part by federal immigration laws, just as similarly-comprehensive state and local laws regulating immigration matters have been.18
Some provisions of the proposed ordinance appear to raise significant preemption concerns, as they involve conduct that comes under the purview of federal immigration law. For example, § 5 of the proposed ordinance would impose civil penalties upon illegal aliens
13 Id. at 60.
14 Id. at 66-67 (internal citations omitted).
15 DeCanas, 424 U.S. at 355.
16 Id. at 356.
17 For example, the proposed ordinance would regulate many activities relating to “illegal aliens,” and limit persons’ ability to interact with persons falling in such category (e.g., through hiring or employing such persons, or renting property to them). While the INA designates certain categories of aliens as subject to exclusion or removal, ineligible for employment, or disqualified from receiving public benefits, these categories are not identical in scope, and the INA does not define persons in any such category as “illegal aliens.”
18 E.g., Hines, 312 U.S. at 52; League of United Latin American Citizens v. Wilson, 908 F.Supp. 755 (C.D.Cal. 1995) (finding that voter-approved California initiative measure requiring state personnel to verify immigration status of persons with whom they come into contact, report persons in United States unlawfully to state and federal officials, and deny those persons certain benefits was preempted by the INA).

CRS-5
who rent or lease property in Hazleton, as well as upon persons who knowingly rent or lease property to such aliens. As previously discussed, the INA establishes a comprehensive scheme regulating the admission and removal of aliens, and imposes additional civil and (in certain cases) criminal penalties upon aliens present in the United States in violation of the INA. Further, the INA regulates and imposes penalties upon various forms of assistance given to illegal aliens, including providing shelter to such aliens or encouraging or inducing them to reside in the United States. While Congress has not expressly preempted states and localities from imposing additional penalties upon persons who commit such violations, it may have nonetheless preempted such activity by occupying the regulatory field of immigration law enforcement. The proposed ordinance appears to impose “additional or auxiliary regulations” upon illegal aliens and persons who assist them in remaining in the United States, beyond those that had been intended by Congress when it enacted the INA.19 Per the reasoning of the Supreme Court in Hines, enforcement of § 5 of the proposed ordinance would arguably be preempted by the INA.
It should also be noted that provisions of the proposed ordinance concerning the renting/leasing of property to illegal aliens might potentially conflict with the regulations of certain federal housing assistance programs. Some of these programs permit the renting/leasing of housing to “mixed families,” defined as families whose members include both those with citizenship or eligible immigration status and those without citizenship or eligible immigration status.20 To the extent that the requirements of §§ 4-5 of the proposed ordinance concerning renting /leasing to illegal aliens conflict with federal regulations and policies, they might be subject to legal challenge on preemption grounds.21
Nonetheless, it appears that the City of Hazleton could potentially regulate some “aiding and abetting” conduct under § 4 of the proposed ordinance without giving rise to preemption concerns. As previously mentioned, the INA expressly provides that it does not preempt states and localities from independently regulating the employment of illegal aliens through licensing and similar laws. Accordingly, it does not appear that Hazleton would necessarily be preempted from denying licenses to businesses that employ illegal aliens (at least within the City of Hazleton), though it is unclear whether this exemption would also cover the denial of city contracts and grants to business entities that violate the proposed ordinance. Additionally, some of the conduct prohibited in the proposed ordinance,
19 It could potentially be argued that, in denying certain persons city contracts, grants, and business permits under the proposed ordinance, the City of Hazleton would be acting as a market participant, and accordingly its actions would not be subject to certain preemption-related restrictions otherwise placed upon state and local regulatory power. See White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204 (1983). However, the “market participant” doctrine serves as a defense in cases where the federal government has not enacted an “interrelated scheme of law, remedy, and administration” that explicitly or implicitly preempts state or local activity in a given field, especially when such activity is of such a restrictive nature as to be “tantamount to regulation.” Wisconsin Dept. of Industry, Labor and Human Relations v. Gould, Inc., 475 U.S. 282 (1986). Given the scope of activity covered by the proposed ordinance, as well as the comprehensive nature of federal immigration law, it appears unlikely that a reviewing court would apply the “market participant doctrine” to uphold the proposed ordinance against a preemption challenge.
20 See 24 C.F.R. §§ 5.504, 5.520; William O. Russell, III, Deputy Assistant Secretary for Public Housing and Voucher Programs, U.S. Dept. of Housing and Urban Development, Memorandum on Eligibility of Mixed Families for Public and Assisted Housing, March 11, 2004.
21 It should be noted that many federal housing assistance programs permit states and localities to retain significant regulatory authority over housing matters.

CRS-6
including the establishment of day laborer centers that do not verify legal work status, is not regulated by the INA. It therefore does not appear that a locality is necessarily preempted from regulating such conduct (at least when such activity is within its jurisdiction), given the Supreme Court’s analysis in DeCanas permitting state and local regulation which is only indirectly related to matters covered under the INA.
However, even if state and local regulation of certain conduct involving immigration is not preempted in all circumstances, the manner and scope of such regulation may nevertheless trigger preemption or other constitutional concerns. One factor that courts may consider in determining whether a local ordinance is preempted by federal immigration law is whether the ordinance “focuses directly upon...essentially local problems and is tailored to combat effectively the perceived evils.”22 Section 4 of the proposed ordinance would impose civil penalties on an entity that “aids and abets” (or has a parent or subsidiary that “aids and abets”) illegal aliens anywhere in the United States, rather than simply in the City of Hazleton. The scope of § 4 of the proposed ordinance does not appear narrowly tailored to address particular, essentially local problems facing the residents of Hazleton, and instead appears aimed at deterring U.S. immigration violations nationwide. Accordingly, it does not appear that a preemption challenge against the proposed ordinance could be answered on the grounds that the ordinance in narrowly tailored to focus upon a local problem.
Notably and separate from the issue of preemption, while a state or locality may regulate the activities of a foreign (i.e., non-state or non-local) corporation within the state or locality, the Due Process Clause of the Fourteenth Amendment prohibits it from regulating or interfering with what the corporation does wholly outside of its territory.23 Therefore, it does not appear that Hazleton could regulate the conduct of for-profit entities occurring outside its jurisdiction that may “aid and abet” illegal aliens.
The manner in which Hazleton chooses to implement the proposed ordinance might also raise significant preemption issues. While § 4 of the proposed ordinance prohibits any activity by a for-profit entity that “aids and abets illegal aliens or illegal immigration,” it does not provide a mechanism to determine whether a immigration violation has occurred. Indeed, the proposed ordinance does not define the meaning of the term “illegal alien,” and this term is not used or defined under the INA. Even the INA does not completely preempt the City of Hazleton from regulate persons on account of activities related to alienage status, it is not clear that Hazleton could regulate conduct relating to alienage using different categorizations than those employed by the INA.
The INA generally vests authority to the Attorney General and Secretary of Homeland Security to administer and enforce all laws relating to immigration and naturalization, including determinations regarding the immigration status of aliens (though such determinations are subject to judicial review in many circumstances).24 Accordingly, it would appear that states and localities are preempted by federal law from making their own independent assessment as to whether an alien has committed an immigration violation and imposing penalties against such aliens (along with persons who have provided them with assistance) on the basis of that assessment. Such authority is conferred exclusively to
22 Id. at 357.
23 E.g., St. Louis Cotton Compress Co. v. State of Arkansas, 260 U.S. 346 (1922).
24 INA §§ 103, 242, 287; 8 U.S.C. §§ 1103, 1252, 1357.

CRS-7
designated federal authorities by the INA.25 The proposed ordinance might have a better chance of surviving a preemption challenge if its penalties were triggered by a federal determination of an alien’s unlawful status, rather than a determination by local Hazleton authorities.
Relationship to Federal Civil Rights Statutes
As part of your request, your office questioned whether the proposed ordinance would conflict with existing federal anti-discrimination laws. Specifically, you questioned whether the ordinance could lead to violations of Title VII of the Civil Rights Act and the Fair Housing Act (FHA). Under Title VII of the Civil Rights Act,26 employers are prohibited from discriminating on the basis of race, color, religion, sex, or national origin.27 However, the Supreme Court has ruled that, with respect to Title VII, “the term ‘national origin’ does not embrace a requirement of United States citizenship.”28 In reaching this result, the Court reasoned that national origin refers to the country in which someone is born or from which his or her ancestors came. Since individuals who share the same national origin do not necessarily share the same citizenship status, the Court determined that Title VII’s prohibition on national origin discrimination does not necessarily make it illegal for employers to discriminate on the basis of citizenship status or alienage. Thus, the proposed ordinance in question does not, on its face, appear to conflict with Title VII.29
However, it is possible that the proposed ordinance could, when applied, result in violations of Title VII in situations where discrimination on the basis of citizenship would have the effect or purpose of discriminating on the basis of national origin. For example, employers who are concerned about inadvertently hiring unauthorized aliens may become reluctant to hire individuals from certain ethnic backgrounds, and such reluctance could have the unlawful effect of discriminating on the basis of national origin. In other cases, an employer might use a citizenship test as a pretext to disguise what is in fact national origin discrimination. As the Court has noted, “Title VII prohibits discrimination on the basis of
25 It should be noted that states and localities are not prohibited from enforcing federal immigration law in many circumstances. It is generally recognized that states and localities may enforce the criminal provisions of the INA. E.g., Gonzalez v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983); United States v. Vasquez-Alvarez, 176 F. 3d 1294 (10th Cir. 1999). See generally CRS Report RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement, by Lisa M. Seghetti, Stephen Vina, and Karma Ester. Further, under INA § 287(g), the Attorney General is permitted to enter agreements with states and localities to permit their law enforcement officers to perform additional duties relating to immigration law enforcement. However, the ability of states and localities to enforce federal immigration law does not permit them to impose new and additional penalties upon persons on account of federal immigration violations. While the former is permitted in certain circumstances, the latter is generally precluded pursuant to the Supremacy Clause.
26 42 U.S.C. §§ 2000e et seq.
27 Id. at §2000e-2.
28 Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (U.S. 1973).
29 Title VII contains a preemption provision that states, “Nothing in this title shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title.” 42 U.S.C. § 2000e-7. In other words, state laws that conflict with Title VII are preempted.

CRS-8
citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.”30 Thus, the proposed ordinance could give rise to legal challenges under Title VII.
Like Title VII, the FHA prohibits discrimination on a number of grounds, including national origin, although the FHA forbids discrimination in the sale or rental of housing rather than employment.31 In the housing context, as in the employment context, courts have found that citizenship discrimination does not automatically constitute national origin discrimination under the FHA, although courts have held that the FHA would prohibit citizenship discrimination if such discrimination had the purpose or effect of discriminating on the basis of national origin.32 As a result, it appears that the proposed ordinance does not directly conflict with the FHA,33 although it could give rise to legal challenges under the FHA if landlords’ compliance with the ordinance results in national origin discrimination.
It is also possible that the ordinance could give rise to violations of 42 U.S.C. § 1981. This provision, which was originally enacted as part of the Civil Rights Act of 1870, states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
The Supreme Court has held that § 1981 prohibits alienage discrimination by governmental actors.34 The Court, however, has never addressed the question of whether § 1981 bars alienage discrimination by private actors, and the federal courts of appeals that have considered the issue are split with regard to this question.35 As a result, it is possible, but not certain, that a court might find that an employer or landlord who, in complying with the proposed ordinance, refused to employ or rent to an unauthorized alien was violating § 1981.
30 Farah, 414 U.S. at 92. 31 42 U.S.C. §§ 3604(a). 32 See, e.g., Espinoza v. Hillwood Square Mut. Asso., 522 F. Supp. 559 (D. Va. 1981). 33 Like Title VII, the FHA contains a preemption provision that states, “Nothing in this title shall be construed to invalidate or limit any law of a State or political subdivision of a State, or of any other jurisdiction in which this title shall be effective, that grants, guarantees, or protects the same rights as are granted by this title; but any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this title shall to that extent be invalid.” 42 U.S.C. § 3615. 34 Takahashi v. Fish & Game Com., 334 U.S. 410, 419 (U.S. 1948). 35 See, e.g., Anderson v. Conboy, 156 F.3d 167, 180 (2d Cir. 1998) (holding that § 1981 prohibits alienage discrimination by private parties); Duane v. Government Employees Ins. Co., 37 F.3d 1036, 1042-43 (4th Cir. 1994) (holding that § 1981 prohibits alienage discrimination by private parties); contra Bhandari v. First Nat’l Bank of Commerce, 829 F.2d 1343, 1351-52 (5th Cir. 1987) (holding that § 1981 does not prohibit private discrimination on the basis of alienage).

 
 ORDINANCE 2006-16
ILLEGAL ALIEN IMMIGRATION RELIEF ACT ORDINANCE
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF HAZLETON AS FOLLOWS:
SECTION 1. - TITLE
T his chapter shall be know n and m ay be cited as the “ C ity of H azleton Illegal A lien Im m igration Relief A ct O rdinance.”
SECTION 2. - FINDINGS AND DECLARATION OF PURPOSE
The People of the City of Hazleton find and declare:
A. That illegal immigration leads to higher crime rates, contributes to overcrowded classrooms and failing schools, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services, increasing their cost and diminishing their availability to lawful residents, and destroys our neighborhoods and diminishes our overall quality of life.
B. That the City of Hazleton is authorized to abate public nuisances and empowered and mandated by the People of Hazleton to abate the nuisance of illegal immigration by diligently prohibiting the acts and policies that facilitate illegal immigration and punishing the people and businesses that aid and abet illegal aliens.
C. This ordinance seeks to secure to those lawfully present in the United States and this City, whether or not they are Citizens of the United States, the right to live in peace free of the threat of illegal alien crime, to enjoy the public services provided by this city without being burdened by the cost of providing goods, support and services to any whose presence in the United States is contrary to its laws and to be free of the debilitating effects on their economic and social well being imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the Commonwealth of Pennsylvania.
SECTION 3. DEFINITIONS
Whenever used in this chapter, the following terms shall have the following meanings:

“ C ity” m eans the C ity of H azleton. “ Illegal A lien” m eans any person w hose initial entry into the U nited States w as illegal and whose current status is also illegal as well as any person who, after entering legally, has failed to leave the United States upon the expiration of his or her visa.
SECTION 4. BUSINESS PERMITS, CONTRACTS OR GRANTS
Any entity or any parent, affiliate, subsidiary or agent of any entity (other than a charity recognized as exempt from federal income taxation under Sec. 501 of the Internal Revenue Code of the United States and which has obtained and continues to have in force an exemption from federal income taxation), that knowingly employs, retains, aids or abets illegal aliens or illegal immigration into the United States, whether directly or by or through any agent, ruse, guise, device or means, no matter how indirect, and even if the agent or entity might otherwise be exempted from this section, or violates any provision of this Ordinance, shall from the date of the violation or its discovery, whichever shall be later, be denied and barred from approval of a business permit, renewal of a business permit, any city contract or grant as follows:
(1) For the first violation for a period of five years,
(2) For any subsequent violation, for a period of ten years.
A. “ A ids or abets” includes,but is not lim ited to:
(i) hiring of illegal aliens,
(ii) providing, renting or leasing real property to illegal aliens,
(iii) funding, providing goods and services to or aiding in the establishment or continuation of any day labor center or other entity providing similar services, unless the entity acts with due diligence to verify the legal work status of all persons whom it employs, provides job assistance for or in any way assists or facilitates in obtaining any employment.
B. Except as provided in C., any action or failure to act done within the boundaries of this City that aids and abets illegal aliens or facilitates their avoiding detection and apprehension anywhere in the United States, its territories or possessions violates this Ordinance.
C. This Ordinance shall not be construed to prohibit rendering emergency medical care, emergency assistance or legal assistance.

SECTION 5. RENTING TO ILLEGAL ALIENS

A. Illegal aliens are prohibited from leasing or renting property in the city. Any property owner or renter/tenant/lessee in control of property, who knowingly allows an illegal alien to use, rent or lease their property shall be in violation of this section.

B. Any person or entity that violates this Section shall be subject to a fine of $1,000.00.

C. A separate violation of this Section of this Ordinance shall be deemed to have been committed on each day during or on which a violation occurs or continues.

SECTION 6. ENGLISH ONLY

A. The City of Hazleton declares that English is the official language of the City.

B. Unless explicitly mandated by the federal government, the state of Pennsylvania or the City of Hazleton, all official city business, forms, documents, signage will be written in English only.

SECTION 7. SEVERABILITY

If any part or provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part or provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.

Any Ordinances or parts of Ordinances inconsistent with or contrary to the provisions of this Ordinance are hereby repealed.

ORDAINED by Council this ________ day of September, 2006.

First Reading

Second Reading

Third Reading

Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

 
 Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 1 of 56
CLOSED,SCR,SETOFF
United States District Court Middle District of Pennsylvania (Scranton) CIVIL DOCKET FOR CASE #: 3:06−cv−01586−JMM

Lozano et al v. City of Hazleton Assigned to: Honorable James M. Munley Referred to: Magistrate Judge Martin C. Carlson (Settlement) Case in other court: Third Circuit Court of Appeals, 07−03531 Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 08/15/2006 Date Terminated: 07/26/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Pedro Lozano

represented by Barry H. Dyller Law Office of Barry H. Dyller 88 North Franklin St. Gettysburg House Wilkes−Barre, PA 18701 570−829−4860 Email: barry.dyller@dyllerlawfirm.com TERMINATED: 12/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Vaida Law Office of David Vaida 137 North 5th Street Allentown, PA 18102 610−433−1800 Email: dvaida@vaidalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Alvarez Puerto Rican Legal Defense and Education Fund 99 Hudson Street 14th Floor New York, NY 10013 212−739−7582 Email: denise_alvarez@prldef.org TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Doreen Y. Trujillo Cozen O'Connor 1900 Market St. Philadelphia, PA 19103 215−665−5593 Email: dtrujillo@cozen.com TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas W. Frankenthaler Cozen O'Connor 457 Haddonfield Road Suite 300 Cherry Hill, NJ 08002 856−910−5045 TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 2 of 56
Elena Park Cozen O'Connor 200 Four Falls Corporate Center Suite 400 West Conshohocken, PA 19428 610−941−2359 Email: epark@cozen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster Maer Puerto Rican Legal Defense And Education Fund 14th Floor 99 Hudson St. New York, NY 10013 212−739−7507 Email: foster_maer@prldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron 88 North Franklin Street Wilkes−Barre, PA 18701 570−824−3088 Fax: 570−825−6675 Email: grb@georgebarronlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz Puerto Rican Legal Defense & Education Fund 99 Hudson Street New York, NY 10013 212−739−7504 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 215−665−4621 Email: irosenberg@cozen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin LatinoJustice PRLDEF 99 Hudson St. 14th Floor New York, NY 10013 212−219−3360 x7572 Email: jchin@latinojustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell American Civil Liberties Union Foundation 39 Drumm St. San Francisco, Ca 94111 415−343−0774

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 3 of 56
Email: jchang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St. 18th Floor New York, NY 10004 212−549−2616 Email: lgelernt@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian Llambelis Puerto Rican Legal Defense And Education Fund 14th Floor 99 Hudson St. New York, NY 10013 212−739−7575 Email: lee_llambelis@prldef.org TERMINATED: 03/14/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser Cozen O'Connor 1900 Market street Philadelphia, PA 19103 215−665−2099 Email: lkaiser@cozen.com TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0773 Email: lguttentag@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Roper American Civil Liberties Union of Pennsylvania P.O. Box 40008 Philadelphia, PA 19106 215−592−1513 ext 116 Email: mroper@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat American Civil Liberities Union Foundation 125 Broad St., 18th Fl. New York, NY 10004 212−549−2620

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 4 of 56
Email: ojadwat@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula K Knudsen Burke Pennsylvania NewsMedia Association 3899 N. Front Street Harrisburg, PA 17110 717−703−3032 Fax: 717−703−3001 Email: paulak@pa−news.org TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Bellman Puerto Rican Legal Defense & Education Fund 99 Hudson Street 14th Floor New York, NY 10013 212−739−7576 TERMINATED: 04/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Fiddler White and Williams LLP 1650 Market Street One Liberty Place Philadelphia, PA 19103 215−665−2000 Email: fiddlert@whiteandwilliams.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas G. Wilkinson Cozen O'Connor One Liberty Place 1650 Market Street Philadelphia, PA 19103 215−665−3737 Email: twilkinson@cozen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Taylor Cozen O'Conner 1900 Market Street Philadelphia, PA 19003 215−665−2035 Email: wtaylor@cozen.com TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Witold J. Walczak American Civil Liberties Union of PA 313 Atwood Street Pittsburgh, PA 15213 (412) 681−7864 Email: vwalczak@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 5 of 56

Plaintiff Humberto Hernandez

represented by Barry H. Dyller (See above for address) TERMINATED: 12/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Vaida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 6 of 56
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula K Knudsen Burke (See above for address) TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Bellman (See above for address) TERMINATED: 04/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas G. Wilkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Taylor (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 7 of 56

Plaintiff Rosa Lechuga

represented by Barry H. Dyller (See above for address) TERMINATED: 12/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Vaida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 8 of 56
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula K Knudsen Burke (See above for address) TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas G. Wilkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Taylor (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 9 of 56

Plaintiff John Doe, (1)

represented by Barry H. Dyller (See above for address) TERMINATED: 12/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Vaida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 10 of 56

Plaintiff John Doe, (2)

Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula K Knudsen Burke (See above for address) TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas G. Wilkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William J. Taylor (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barry H. Dyller (See above for address) TERMINATED: 12/01/2006

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 11 of 56
LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Vaida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 12 of 56

ATTORNEY TO BE NOTICED

Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paula K Knudsen Burke (See above for address) TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas G. Wilkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Taylor (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
John Doe, 3 a Minor, By His Parents

represented by Barry H. Dyller (See above for address) TERMINATED: 12/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Vaida (See above for address)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 13 of 56
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 14 of 56

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paula K Knudsen Burke (See above for address) TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas G. Wilkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Taylor (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jane Doe, 1

represented by Barry H. Dyller (See above for address) TERMINATED: 12/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Vaida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Alvarez (See above for address)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 15 of 56
TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 16 of 56

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paula K Knudsen Burke (See above for address) TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas G. Wilkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Taylor (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jane Doe, 2

represented by Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence E. Norton , II Community Justice Project 118 Locust St. Harrisburg, PA 17101 717−236−9486 Fax: 17172334088 Email: lnorton@palegalaid.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda S. Kaiser (See above for address)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 17 of 56

TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Zurflieh Community Justice Project 118 Locust St. Harrisburg, PA 17101 (717) 236−9486 ext 210 Email: pzurflieh@palegalaid.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shamaine A. Daniels P.O. Box 5347 Harrisburg, PA 17102 717−884−9172 Email: Danielslaw@outlook.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 ATTORNEY TO BE NOTICED

George R. Barron (See above for address) ATTORNEY TO BE NOTICED

Jennifer C. Newell (See above for address) ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jane Doe, 3

represented by Barry H. Dyller (See above for address) TERMINATED: 12/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Vaida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 18 of 56
Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 19 of 56

Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paula K Knudsen Burke (See above for address) TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas G. Wilkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Taylor (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
John Doe, (4) a Minor, By His Parents

represented by Barry H. Dyller (See above for address) TERMINATED: 12/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Vaida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 20 of 56
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Park (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Foster Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 21 of 56

Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paula K Knudsen Burke (See above for address) TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas G. Wilkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Taylor (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Brenda Lee Mieles

represented by Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence E. Norton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 22 of 56
Peter Zurflieh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Bellman (See above for address) TERMINATED: 04/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shamaine A. Daniels (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Elena Park (See above for address) ATTORNEY TO BE NOTICED
Foster Maer (See above for address) ATTORNEY TO BE NOTICED
George R. Barron (See above for address) ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 23 of 56

Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Casa Dominicana of Hazleton, Inc.

represented by Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence E. Norton , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Zurflieh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Bellman (See above for address) TERMINATED: 04/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shamaine A. Daniels (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 ATTORNEY TO BE NOTICED

Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED

Elena Park (See above for address) ATTORNEY TO BE NOTICED

Foster Maer (See above for address)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 24 of 56

ATTORNEY TO BE NOTICED

George R. Barron (See above for address) ATTORNEY TO BE NOTICED

Ilan Rosenberg (See above for address) ATTORNEY TO BE NOTICED

Jackson Chin (See above for address) ATTORNEY TO BE NOTICED

Jennifer C. Newell (See above for address) ATTORNEY TO BE NOTICED

Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Hazleton Hispanic Business Association

represented by Barry H. Dyller (See above for address) TERMINATED: 12/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Vaida (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elena Park (See above for address) LEAD ATTORNEY

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 25 of 56
ATTORNEY TO BE NOTICED
Foster Maer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula K Knudsen Burke

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 26 of 56

(See above for address) TERMINATED: 02/01/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Bellman (See above for address) TERMINATED: 04/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas G. Wilkinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William J. Taylor (See above for address) TERMINATED: 09/12/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Witold J. Walczak (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Pennsylvania Statewide Latino Coalition

represented by Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Winebrake Winebrake & Santillo, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 215−884−2491 Fax: 215−884−2492 Email: pwinebrake@winebrakelaw.com TERMINATED: 01/08/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Bellman (See above for address) TERMINATED: 04/02/2014

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 27 of 56
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. Fiddler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Doreen Y. Trujillo (See above for address) TERMINATED: 09/12/2013 ATTORNEY TO BE NOTICED
Douglas W. Frankenthaler (See above for address) TERMINATED: 03/27/2014 ATTORNEY TO BE NOTICED
Elena Park (See above for address) ATTORNEY TO BE NOTICED
Foster Maer (See above for address) ATTORNEY TO BE NOTICED
George R. Barron (See above for address) ATTORNEY TO BE NOTICED
Ilan Rosenberg (See above for address) ATTORNEY TO BE NOTICED
Jackson Chin (See above for address) ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) ATTORNEY TO BE NOTICED
Kathryn C. Harr Trujillo Rodriguez & Richards, LLC 1717 Arch Street Suite 3838 Philadelphia, PA 19103 215−731−9004 Email: kharr@trrlaw.com TERMINATED: 03/14/2007 ATTORNEY TO BE NOTICED
Lillian Llambelis (See above for address) TERMINATED: 03/14/2007 ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 28 of 56

Plaintiff Jane Doe 5
Plaintiff John Doe 7
Plaintiff Jose Luis Lechuga

represented by Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED
Thomas B. Fiddler (See above for address) ATTORNEY TO BE NOTICED
represented by Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Bellman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED
Thomas B. Fiddler (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 29 of 56
Denise Alvarez (See above for address) TERMINATED: 10/05/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda S. Kaiser (See above for address) TERMINATED: 09/19/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Bellman (See above for address) TERMINATED: 04/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George R. Barron (See above for address) ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED
Thomas B. Fiddler (See above for address) ATTORNEY TO BE NOTICED

V. Defendant City of Hazleton

represented by Carla P. Maresca Deasey, Mahoney, Valentini & North LTD. 1800 JFK Blvd. Suite 1300 Philadelphia, PA 19103 215−587−9400 Fax: 12155879456 Email: cpmaresca@dmvnlaw.com TERMINATED: 11/24/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harry G. Mahoney Deasey, Mahone Valentini & North LTD 1601 Market Street Suite 3400 Philadelphia, PA 19103−2301 (215) 587−9400 Email: hgmahoney@dmvlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kris W. Kobach Kobach Law LLC 4701 N. 130th Street Kansas City, MI 66109

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 30 of 56

913−638−5567 Email: kkobach@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael M. Hethmon Immigration Reform Law Institute 1666 Connecticut Ave., NW Suite 402 Washington, DC 20009 202−232−5599 Email: mhethmon@irli.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Perry Pendley Mountain States Legal Foundation 2586 South Lewis Way Lakewood, CO 80227 303−292−2021 Fax: 303−292−1980 Email: wppendley@mountainstateslegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew B. Adair Deasey, Mahoney, Valentini & North LTD. 103 Chesley Drive Suite 101 Media, PA 19063 610−892−2732 Fax: 610−892−2926 Email: abadair@dmbphila.com TERMINATED: 11/24/2014 ATTORNEY TO BE NOTICED

Elizabeth Gallaway Beatty & Wozniak, P.C. 216 16th Street Suite 1100 Denver, CO 80202 303−407−4493 Fax: 303−407−4494 Email: lgallaway@bwenergylaw.com ATTORNEY TO BE NOTICED

Amicus
Chamber of Commerce of the United States of America

represented by Juan P. Morillo Sidley Austin Brown & Wood LLP 1501 K Street, NW Washington, DC 20005 202−736−8063 Fax: 12027368711 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter L. Matson 222 Market Street Lewisburg, PA 17837 570/523−3285 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Thomas Cottreau

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 31 of 56

Sidley Austin LLP 1501 K Street, N.W. Washington, DC 20005 202−736−8000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Judicial Watch, Inc.

represented by Leonard G. Brown Clymer & Musser, P.C. 408 W. Chestnut Street P.O. Box 1766 Lancaster, PA 17608−1766 717−299−7101 Fax: 17172995115 Email: len.brown@clymerlaw.com ATTORNEY TO BE NOTICED

Randall L. Wenger Independence Law Center 23 N. Front Street Harrisburg, PA 17101 717−657−4990 Email: rwenger@indlawcenter.org ATTORNEY TO BE NOTICED

Amicus
Pennsylvania Immigrant Rights Coalition

represented by Meetali Jain International Human Rights/Rule of Law Project Center for Social Justice, Seton Hall University School of 833 McCarter Highway Newark, NJ 07102 973−642−8700 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/15/2006
08/16/2006 08/16/2006
08/17/2006 08/22/2006

# Docket Text
1 COMPLAINT against City of Hazleton ( Filing fee $350, Receipt Number 843400), filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Civil Cover Sheet # 2 Exhibit(s))(kn, ) (Entered: 08/16/2006)
Summons Issued as to City of Hazleton and provided to Attorney Dyller for service on Defendant(s). (kn, ) (Entered: 08/16/2006)
2 AFFIDAVIT of Service for Summons and Complaint served on City of Hazleton by Mayor Louis Barletta as Chief Executive Officer for City of Hazleton on 08/15/06, filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2. (Dyller, Barry) (Entered: 08/16/2006)
3 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by all plaintiffs. Attorney Lee Gelernt is seeking special admission. Filing Fee: 25.00 Receipt Number: 333 107525 (ga, ) (Entered: 08/17/2006)
4 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Lucas Guttentag on behalf of all plaintiffs Attorney Lucas Guttentag is seeking special admission. Filing Fee: 25.00 Receipt Number: 333 107591 (ga, ) (Entered: 08/22/2006)

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08/23/2006
08/23/2006 08/23/2006 08/23/2006
08/23/2006
08/23/2006 08/23/2006 08/23/2006 08/23/2006 09/01/2006 09/01/2006 09/08/2006

5 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Jennifer C. Chang on behalf of John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2 Attorney Jennifer C. Chang is seeking special admission. Filing Fee: 25.00 Receipt Number: 111 146281. (crh, ) (Entered: 08/23/2006)
6 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Elena Park on behalf of Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga Attorney Elena Park is seeking special admission. Filing Fee: 25.00 Receipt Number: 111 146281. (crh, ) (Entered: 08/23/2006)
7 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Ilan Rosenberg on behalf of Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga Attorney Ilan Rosenberg is seeking special admission. Filing Fee: 25.00 Receipt Number: 111 146281. (crh, ) (Entered: 08/23/2006)
8 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Doreen Y. Trujillo on behalf of Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga Attorney Doreen Yatko Trujillo is seeking special admission. Filing Fee: 25.00 Receipt Number: 111 146281. (crh, ) (Entered: 08/23/2006)
9 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Douglas W. Frankenthaler on behalf of Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga Attorney Douglas W. Frankenthaler is seeking special admission. Filing Fee: 25.00 Receipt Number: 111 146281. (crh, ) (Entered: 08/23/2006)
10 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Omar C. Jadwat on behalf of Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga Attorney Omar C. Jadwat is seeking special admission. Filing Fee: 25.00 Receipt Number: 111 146282. (crh, ) (Entered: 08/23/2006)
11 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Jackson Chin on behalf of Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga Attorney Jackson Chin is seeking special admission. Filing Fee: 25.00 Receipt Number: 111 146283. (crh, ) (Entered: 08/23/2006)
12 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Lillian Llambelis on behalf of Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga Attorney Lillian Llambelis is seeking special admission. Filing Fee: 25.00 Receipt Number: 111 146284. (crh, ) (Entered: 08/23/2006)
13 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Foster Maer on behalf of Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga Attorney Foster Maer is seeking special admission. Filing Fee: 25.00 Receipt Number: 111 146285. (crh, ) (Entered: 08/23/2006)
14 NOTICE of Appearance by Andrew B. Adair on behalf of City of Hazleton (Adair, Andrew) (Entered: 09/01/2006)
15 ORDER and STIPULATION re response to complaint.Signed by Judge James M. Munley on 9/1/06. (sm, ) (Entered: 09/01/2006)
17 SPECIAL ADMISSIONS FORM APPROVED as to Lucas GuttentagSigned by Judge James M. Munley on 9/8/06. (sm, ) (Entered: 09/08/2006)

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09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 10/02/2006 10/02/2006 10/30/2006
10/30/2006 10/30/2006
10/30/2006
10/30/2006
10/31/2006

18 SPECIAL ADMISSIONS FORM APPROVED as to Foster MaerSigned by Judge James M. Munley on 9/8/06. (sm, ) (Entered: 09/08/2006)
19 SPECIAL ADMISSIONS FORM APPROVED as to Lillian LlambeliSigned by Judge James M. Munley on 9/8/06. (sm, ) (Entered: 09/08/2006)
20 SPECIAL ADMISSIONS FORM APPROVED as to Jackson ChinSigned by Judge James M. Munley on 9/8/06. (sm, ) (Entered: 09/08/2006)
21 SPECIAL ADMISSIONS FORM APPROVED as to Omar C. JadwatSigned by Judge James M. Munley on 9/8/06. (sm, ) (Entered: 09/08/2006)
22 SPECIAL ADMISSIONS FORM APPROVED as to Jennifer C. ChangSigned by Judge James M. Munley on 9/8/06. (sm, ) (Entered: 09/08/2006)
23 SPECIAL ADMISSIONS FORM APPROVED as to Douglas W. FrankenthalerSigned by Judge James M. Munley on 9/7/06. (sm, ) (Entered: 09/08/2006)
24 SPECIAL ADMISSIONS FORM APPROVED as to Doreen Yatko TrujilloSigned by Judge James M. Munley on 9/7/06. (sm, ) (Entered: 09/08/2006)
25 SPECIAL ADMISSIONS FORM APPROVED as to Ilan RosenbergSigned by Judge James M. Munley on 9/7/06. (sm, ) (Entered: 09/08/2006)
26 SPECIAL ADMISSIONS FORM APPROVED as to Elena ParkSigned by Judge James M. Munley on 9/8/06. (sm, ) (Entered: 09/08/2006)
27 CONSENTED MOTION for Extension of Time to File Answer re 1 Complaint, (sm, ) (Entered: 10/02/2006)
28 ORDER granting 27 Motion for Extension of Time to Answer City of Hazleton answer due 11/3/2006. Signed by Judge James M. Munley on 10/2/06 (sm, ) (Entered: 10/02/2006)
29 AMENDED COMPLAINT against City of Hazleton, filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Exhibit(s) A−C)(Trujillo, Doreen) (Entered: 10/30/2006)
CONFERENCE CALL TOMORROW, 10/31/06 at 10:30. (sm, ) (Entered: 10/30/2006)
30 MOTION for Preliminary Injunction and Temporary Restraining Order by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Exhibit(s) A − D# 2 Proposed Order)(Trujillo, Doreen) Modified on 11/1/2006 (ch, ). (Entered: 10/30/2006)
31 MOTION to Exceed Page Limitation and Supporting Brief, Certificate of Service and Certificate of Concurrence by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Proposed Order)(Trujillo, Doreen) (Entered: 10/30/2006)
32 BRIEF IN SUPPORT re 30 MOTION for Preliminary Injunction and Temporary Restraining Order filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2.(Trujillo, Doreen) (Entered: 10/30/2006)
35 MEMORANDUM AND ORDER GRANTING Plaintiffs' motion for a temporary restraining order; The Defendant City of Hazleton is prohibited from enforcing the Illegal Immigration Relief Act Ordinance 2006−18 and Registration Ordinance 2006−13. A hearing on the preliminary injunction will be set by further order of court.

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10/31/2006 11/01/2006 11/01/2006 11/01/2006
11/01/2006 11/03/2006
11/06/2006 11/13/2006 11/13/2006 11/13/2006 11/13/2006
11/13/2006 11/13/2006 11/17/2006 11/21/2006

This temporary restraining order shall remain in effect until NOVEMBER 14,2006, unless extended by the Court; This order shall take effect upon the posting of a $200.00 security bond by the plaintiffs w/the Clerk of Court.Signed by Judge James M. Munley on 10/31/06. (sm, ) (Entered: 10/31/2006)
40 ORDER granting 31 Motion for Leave to File Excess Pages Signed by Judge James M. Munley on 10/31/06 (sm, ) (Entered: 11/06/2006)
At the request of Attorney Barry Dyller exhibits E−H of doucument 30 were deleated. Attorney will be refiling exhibits E−H. (ch, ) (Entered: 11/01/2006)
36 NOTICE of Hearing on Motion 30 MOTION for Preliminary Injunction Motion Hearing set for 11/13/2006 09:00 AM in Scranton before Honorable James M. Munley.Signed by Judge James M. Munley on 11/1/06. (sm, ) (Entered: 11/01/2006)
37 EXHIBIT E through Exhibit H to the Motion for Preliminary Injunction and Temporary Restraining Order by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2 re 30 MOTION for Preliminary Injunction and Temporary Restraining Order. (Trujillo, Doreen) (Entered: 11/01/2006)
38 RECEIPT FOR $ 200.00 SECURITY BOND, PER ORDER DATED 10/31/2006. receipt number 333000009 (bg, ) (Entered: 11/01/2006)
39 STIPULATION and ORDER:The restraining order issued 10/31/06 shall be extended for 120 days ; Pretrial Conference set for 1/12/2007 at a time to be annountced ;Trial/Preliminary Injunction Hearing shall be held no later than 1/31/2007 and at a date and time to be announced ;Discovery shall close by 1/5/2007. Motions in Limine due by 1/8/2007.** SEE ORDER FOR FURTHER SPECIFICS***Signed by Judge James M. Munley on 11/3/06. (sm, ) (Entered: 11/03/2006)
SPECIAL ADMISSION FORM AND ECF REGISTRATION FORM SENT to Thomas B. Fiddler, Esquire. (jc) (Entered: 11/06/2006)
41 NOTICE of Appearance by Carla P. Maresca on behalf of City of Hazleton (Maresca, Carla) (Entered: 11/13/2006)
42 NOTICE of Appearance by Harry G. Mahoney on behalf of City of Hazleton (Mahoney, Harry) (Entered: 11/13/2006)
43 STENO NOTES (1 of 2) filed by S. Halko of TRO Hearing before Judge James Munley on 10−31−06. (Court Reporter Notes/Tapes are not viewable pdf documents). (tivsec3, ) (Entered: 11/13/2006)
44 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Thomas B. Fiddler on behalf of John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2 Attorney Thomas B. Fiddler is seeking special admission. Filing Fee: 25.00 Receipt Number: 333000128 (ts, ) (Entered: 11/13/2006)
45 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Kris W. Kobach on behalf of City of Hazleton Attorney Kris W. Kobach is seeking special admission. Filing Fee: 25.00 Receipt Number: 333000132. (ao, ) (Entered: 11/13/2006)
46 NOTICE of Appearance by Kris W. Kobach on behalf of City of Hazleton. (ao, ) (Entered: 11/13/2006)
47 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Michael M. Hethmon on behalf of City of Hazleton Attorney Michael M. Hethmon is seeking special admission. Filing Fee: 25.00 Receipt Number: 333000193. (ao, ) (Entered: 11/17/2006)
48 SCHEDULING ORDER: Pretrial Conference set for 1/12/2007 09:00 AM in Scranton before Honorable James M. Munley; SEE ORDER FOR SPECIFICS RE REQUIREMENTSSigned by Judge James M. Munley on 11/21/06. (sm, ) (Entered: 11/21/2006)

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11/21/2006
11/24/2006 11/29/2006 12/01/2006 12/01/2006
12/01/2006 12/01/2006 12/01/2006 12/01/2006
12/04/2006 12/04/2006 12/04/2006 12/08/2006 12/13/2006
12/14/2006
12/14/2006 12/14/2006 12/14/2006 12/14/2006

49 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by William Perry Pendley on behalf of City of Hazleton Attorney William Perry Pendley is seeking special admission. Filing Fee: 25.00 Receipt Number: 333000225. (bg, ) (Entered: 11/21/2006)
Doc. 50 deleted awaiting direction from Chambers. (ep, ) (Entered: 11/24/2006)
50 SPECIAL ADMISSIONS FORM APPROVED as to William Perry PendleySigned by Judge James M. Munley on 11/29/06. (sm, ) (Entered: 11/29/2006)
51 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Barry H. Dyller terminated on behalf of plaintiffs Pedro Lozano, et al.. (Dyller, Barry) (Entered: 12/01/2006)
53 BRIEF IN OPPOSITION re 30 MOTION for Preliminary Injunction and Temporary Restraining Order filed by City of Hazleton. (Attachments: # 1 Exhibit(s) # 2 Exhibit(s) # 3 Supplement # 4 Proposed Order # 5)(Maresca, Carla) (Entered: 12/01/2006)
56 First MOTION to Dismiss Amended Complaint by City of Hazleton.(Maresca, Carla) Additional attachment(s) added on 12/4/2006 (ga, ). (Entered: 12/04/2006)
57 BRIEF IN SUPPORT re 56 First MOTION to Dismiss Amended Complaint filed by City of Hazleton.(Maresca, Carla) (Entered: 12/04/2006)
58 STATEMENT OF FACTS re 56 First MOTION to Dismiss Amended Complaint filed by City of Hazleton.(Maresca, Carla) (Entered: 12/04/2006)
61 BRIEF IN OPPOSITION re 30 MOTION for Preliminary Injunction and Temporary Restraining Order filed by City of Hazleton. (Attachments: # 1 Supplement Certificate of Service# 2 Proposed Order # 3 Exhibit(s) Arizona State Court Ruling# 4 Exhibit(s) SAVE Memo)(Maresca, Carla) (Entered: 12/04/2006)
55 Praecipe to Strike Docket Number 52. (Maresca, Carla) (Entered: 12/04/2006)
Document #'s 52,54 & 60 deleted (Motion to Dismiss). Attorney re−filed as Docs. 56,57, & 58 (Motion, Brief & Statement of Facts). (ga, ) (Entered: 12/04/2006)
Document #59 deleted (Brief in Opposition). Attorney re−filed as Doc. #61 (Brief in Opposition w/attachments). (ga, ) (Entered: 12/04/2006)
63 ORDER re discoverySigned by Judge James M. Munley on 12/8/06. (sm, ) (Entered: 12/08/2006)
64 Proposed MOTION for Protective Order regarding information about identity and immigration status of Doe Plaintiffs by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2.(Maer, Foster) (Entered: 12/13/2006)
65 MOTION for Protective Order by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Proposed Order)(Maer, Foster) (Entered: 12/14/2006)
66 BRIEF IN OPPOSITION re 64 Proposed MOTION for Protective Order regarding information about identity and immigration status of Doe Plaintiffs filed by City of Hazleton.(Maresca, Carla) (Entered: 12/14/2006)
67 BRIEF IN OPPOSITION re 65 MOTION for Protective Order filed by City of Hazleton. (Attachments: # 1 Proposed Order)(Maresca, Carla) (Entered: 12/14/2006)
69 ORDER directing counsel to comply w/ LR5.1 when filing.Signed by Judge James M. Munley on 12/14/06. (sm, ) (Entered: 12/14/2006)
70 STIPULATION AND ORDER re briefing re motion to dismiss.Signed by Judge James M. Munley on 12/14/06. (sm, ) (Entered: 12/14/2006)

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12/15/2006 12/15/2006 12/19/2006 12/19/2006 12/19/2006 12/22/2006 01/05/2007 01/08/2007 01/08/2007
01/08/2007 01/12/2007
01/19/2007
01/23/2007 01/23/2007 01/23/2007 01/23/2007 01/26/2007 01/26/2007 02/01/2007

71 NOTICE of Appearance by Kathryn C. Harr on behalf of Pennsylvania Statewide Latino Coalition (Attachments: # 1 Declaration of Service)(Harr, Kathryn) (Entered: 12/15/2006)
72 MEMORANDUM AND ORDER GRANTING plaintiffs' request for a protective order.***SEE ORDER FOR DETAILS***Signed by Judge James M. Munley on 12/15/06. (sm, ) (Entered: 12/15/2006)
73 SPECIAL ADMISSIONS FORM APPROVED as to Michael M. HethmonSigned by Judge James M. Munley on 12/8/06. (sm, ) (Entered: 12/19/2006)
74 SPECIAL ADMISSIONS FORM APPROVED as to Kris KobachSigned by Judge James M. Munley (sm, ) (Entered: 12/19/2006)
75 SPECIAL ADMISSIONS FORM APPROVED as to Thomas FiddlerSigned by Judge James M. Munley on 12/8/06. (sm, ) (Entered: 12/19/2006)
77 PROPOSED STIPULATION. (sm, ) (Entered: 12/22/2006)
78 MOTION for Certificate of Appealability by City of Hazleton. (Attachments: # 1 Exhibit(s) A)(Adair, Andrew) (Entered: 01/05/2007)
79 ORDER denying 78 Motion for Certificate of Appealability Signed by Judge James M. Munley on 1/8/07 (sm, ) (Entered: 01/08/2007)
80 SCHEDULING ORDER: Per telephonic conference held 1/8/07, Pretrial Conference is rescheduled for 2/22/2007 03:00 PM ; Trial set for 3/12/2007 09:00 AM in Scranton before Honorable James M. Munley. Discovery due by 2/6/2007. Motions in limine due by 2/9/2007; the TRO issued on 10/31/06 will remain in effect until the disposition of the preliminary injunction motion,Signed by Judge James M. Munley on 1/8/07. (sm, ) (Entered: 01/08/2007)
81 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Peter D. Winebrake terminated on behalf of Pennsylvania Statewide Latino Coalition. (Attachments: # 1 Declaration)(Winebrake, Peter) (Entered: 01/08/2007)
82 AMENDED COMPLAINT Second Amended Complaint against all defendants, filed by Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 3, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, John Doe, 1. (Attachments: # 1 Exhibit(s) A−E)(Fiddler, Thomas) (Entered: 01/12/2007)
83 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Denise Alvarez on behalf of John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2 Attorney Denise Alvarez is seeking special admission. Filing Fee: 25.00 Receipt Number: 333000773. (ga, ) (Entered: 01/19/2007)
84 First MOTION to Dismiss Plaintiffs' Second Amended Complaint by City of Hazleton. (Attachments: # 1 Proposed Order)(Maresca, Carla) (Entered: 01/23/2007)
85 STATEMENT OF FACTS re 84 First MOTION to Dismiss Plaintiffs' Second Amended Complaint filed by City of Hazleton.(Maresca, Carla) (Entered: 01/23/2007)
86 SPECIAL ADMISSIONS FORM APPROVED as to DENISE ALVAREZSigned by Judge James M. Munley on 1/23/07. (sm, ) (Entered: 01/23/2007)
87 BRIEF IN SUPPORT re 84 First MOTION to Dismiss Plaintiffs' Second Amended Complaint filed by City of Hazleton.(Kobach, Kris) (Entered: 01/24/2007)
88 STIPULATED ORDER OF CONFIDENTIALITYSigned by Judge James M. Munley on 1/26/07. (sm, ) (Entered: 01/26/2007)
DOCUMENT 88 REFILED (sm, ) (Entered: 01/26/2007)
89 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Paula Kay Knudsen terminated on behalf of Plaintiffs. (Knudsen, Paula) (Entered: 02/01/2007)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 37 of 56

02/06/2007 02/06/2007 02/09/2007
02/09/2007 02/09/2007 02/09/2007 02/09/2007 02/09/2007 02/09/2007 02/09/2007 02/09/2007 02/09/2007 02/09/2007 02/09/2007 02/09/2007
02/09/2007

90 Mail Returned as Undeliverable. Doc. #88 "Undeliverable as Addressed" Mail sent to Denise Alvarez (ga, ) (Entered: 02/06/2007)
91 STIPULATION AND ORDER re response due 2/12/07Signed by Judge James M. Munley on 2/6/07. (sm, ) (Entered: 02/06/2007)
92 First MOTION in Limine by City of Hazleton. (Attachments: # 1 Proposed Order # 2 Affidavit # 3 Exhibit(s) "A"−Letter from Defense to Plaintiff re documents re PSLC# 4 Exhibit(s) "A"−Response from Plaintiff re information requested of PSLC# 5 Exhibit(s) "B"−Excerpts re Plaintiff's objections at Mr. Saldana's deposition for Casa Dominicana# 6 Exhibit(s) "C"_Letter from Defense to Plaintiff re information requested at Mr. Espinal's deposition for HHBA# 7 Exhibit(s) "C"−Mr. Chin's response to Defense re request for information from HHBA)(Maresca, Carla) (Entered: 02/09/2007)
93 BRIEF IN SUPPORT re 92 First MOTION in Limine filed by City of Hazleton. (Attachments: # 1 Affidavit of Service# 2 Exhibit(s) "A"# 3 Exhibit(s) "A"# 4 Exhibit(s) "B"# 5 Exhibit(s) "C"# 6 Exhibit(s) "C")(Maresca, Carla) (Entered: 02/09/2007)
94 Second MOTION in Limine by City of Hazleton. (Attachments: # 1 Proposed Order # 2 Affidavit of Service# 3 Affidavit of Good Faith/Concurrence)(Maresca, Carla) (Entered: 02/09/2007)
95 BRIEF IN SUPPORT re 94 Second MOTION in Limine filed by City of Hazleton. (Attachments: # 1 Exhibit(s) A and B)(Maresca, Carla) (Entered: 02/09/2007)
96 Third MOTION in Limine by City of Hazleton. (Attachments: # 1 Proposed Order # 2 Affidavit of Service)(Maresca, Carla) (Entered: 02/09/2007)
97 BRIEF IN SUPPORT re 96 Third MOTION in Limine filed by City of Hazleton. (Attachments: # 1 Exhibit(s) "A")(Maresca, Carla) (Entered: 02/09/2007)
98 Fourth MOTION in Limine by City of Hazleton. (Attachments: # 1 Proposed Order # 2 Affidavit of Service# 3 Affidavit of Good Faith/Concurrence)(Maresca, Carla) (Entered: 02/09/2007)
99 BRIEF IN SUPPORT re 98 Fourth MOTION in Limine filed by City of Hazleton. (Attachments: # 1 Exhibit(s) "A")(Maresca, Carla) (Entered: 02/09/2007)
100 Fifth MOTION in Limine by City of Hazleton. (Attachments: # 1 Affidavit of Service# 2 Proposed Order # 3 Affidavit of Good Faith/Concurrence)(Maresca, Carla) (Entered: 02/09/2007)
101 BRIEF IN SUPPORT re 100 Fifth MOTION in Limine filed by City of Hazleton. (Attachments: # 1 Exhibit(s) "A")(Maresca, Carla) (Entered: 02/09/2007)
102 Sixth MOTION in Limine by City of Hazleton. (Attachments: # 1 Affidavit of Service# 2 Affidavit of Good Faith/Concurrence# 3 Proposed Order)(Maresca, Carla) (Entered: 02/09/2007)
103 BRIEF IN SUPPORT re 102 Sixth MOTION in Limine filed by City of Hazleton. (Attachments: # 1 Exhibit(s) "A"# 2 Exhibit(s) "B"# 3 Exhibit(s) "C"# 4 Exhibit(s) "D"# 5 Exhibit(s) "E"# 6 Exhibit(s) "E")(Maresca, Carla) (Entered: 02/09/2007)
104 First MOTION in Limine To Preclude the Defendant from Introducing Evidence Concerning Any Claimed Impact of Illegal Aliens on Education, Healthcare and Public Services by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Exhibit(s) Exhibit A# 2 Exhibit(s) Exhibit B# 3 Exhibit(s) Exhibit C)(Fiddler, Thomas) (Entered: 02/09/2007)
105 Second MOTION in Limine to Preclude the Testimony of Defendant?s Proposed Experts, George Borjas and Jared Lewis by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John

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02/12/2007
02/13/2007 02/15/2007 02/15/2007 02/16/2007
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02/16/2007 02/16/2007 02/16/2007

Doe, 2. (Attachments: # 1 Exhibit(s) Exhibit A# 2 Exhibit(s) Exhibit B# 3 Exhibit(s) Exhibit C# 4 Exhibit(s) Exhibit D# 5 Exhibit(s) Exhibit E# 6 Exhibit(s) Exhibit F# 7 Exhibit(s) Exhibit G# 8 Exhibit(s) Exhibit H)(Fiddler, Thomas) (Entered: 02/09/2007)
106 BRIEF IN SUPPORT of Plaintiffs' Opposition re 84 First MOTION to Dismiss Plaintiffs' Second Amended Complaint filed by John Doe, 3, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1. (Attachments: # 1 Counter−Statement# 2 Motion for Summary Judgment# 3 Statement of Facts# 4 Index of Exhibits# 5 Exhibits 1−4# 6 Exhibits 5−8# 7 Exhibits 9−10# 8 Exhibits 11−13# 9 Exhibit 14# 10 Proposed Order # 11 Certificate of Service)(Fiddler, Thomas) (Entered: 02/12/2007)
107 Mail Returned as Undeliverable. Doc. #91 "Not deliverable as addressed" Mail sent to Denise Alvarez (ga, ) (Entered: 02/13/2007)
108 REQUEST for amendment to scheduling order. (sm, ) (Entered: 02/15/2007)
109 ORDER DENYING 108 Request to amend scheduling order.Signed by Judge James M. Munley on 2/15/07. (sm, ) (Entered: 02/15/2007)
110 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Ghita Schwarz on behalf of John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2 Attorney Ghita Schwarz is seeking special admission. Filing Fee: 25.00 Receipt Number: 333001090 (bg, ) (Entered: 02/16/2007)
111 BRIEF IN OPPOSITION re 104 First MOTION in Limine To Preclude the Defendant from Introducing Evidence Concerning Any Claimed Impact of Illegal Aliens on Education, Healthcare and Public Services filed by City of Hazleton. (Attachments: # 1 Proposed Order # 2 Exhibit(s) A# 3 Exhibit(s) B# 4 Exhibit(s) C)(Maresca, Carla) (Entered: 02/16/2007)
112 BRIEF IN OPPOSITION re 104 First MOTION in Limine To Preclude the Defendant from Introducing Evidence Concerning Any Claimed Impact of Illegal Aliens on Education, Healthcare and Public Services Memorandum of Law filed by City of Hazleton.(Maresca, Carla) (Entered: 02/16/2007)
113 BRIEF IN OPPOSITION re 96 Third MOTION in Limine to Preclude Testimony of Plaintiffs' Expert Witness Stephen Yale−Loehr, Esquire filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Memorandum of Law# 2 Proposed Order # 3 Exhibit(s) Exhibit "A" to Memorandum of Law# 4 Certificate of Service)(Barron, George) (Entered: 02/16/2007)
114 BRIEF IN OPPOSITION re 105 Second MOTION in Limine to Preclude the Testimony of Defendant?s Proposed Experts, George Borjas and Jared Lewis filed by City of Hazleton. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B)(Maresca, Carla) (Entered: 02/16/2007)
115 BRIEF IN OPPOSITION re 105 Second MOTION in Limine to Preclude the Testimony of Defendant?s Proposed Experts, George Borjas and Jared Lewis Memorandum of Law filed by City of Hazleton.(Maresca, Carla) (Entered: 02/16/2007)
116 BRIEF IN OPPOSITION re 98 Fourth MOTION in Limine to Preclude the Presentation of any Witness Testimony and Evidence at Trial filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Memorandum of Law# 2 Exhibit(s) Exhibit "a" to Memorandum of Law# 3 Proposed Order # 4 Certificate of Service)(Barron, George) (Entered: 02/16/2007)

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117 TRIAL BRIEF Plaintiffs' PreTrial Memorandum by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Exhibit(s) Exhibit A# 2 Exhibit(s) Exhibit B# 3 Exhibit(s) Exhibit C# 4 Exhibit(s) Exhibit D# 5 Exhibit(s) Exhibit E)(Fiddler, Thomas) (Entered: 02/16/2007)
118 PRETRIAL MEMORANDUM by City of Hazleton. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) A# 3 Exhibit(s) A# 4 Exhibit(s) A# 5 Exhibit(s) C# 6 Exhibit(s) C# 7 Affidavit of Service)(Maresca, Carla) (Entered: 02/16/2007)
119 BRIEF IN OPPOSITION re 92 First MOTION in Limine filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B# 3 Exhibit(s) C# 4 Exhibit(s) D# 5 Exhibit(s) E# 6 Exhibit(s) E)(Barron, George) (Entered: 02/16/2007)
120 BRIEF IN OPPOSITION re 94 Second MOTION in Limine filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Exhibit(s) A# 2 Certificate of Service)(Barron, George) (Entered: 02/16/2007)
121 Proposed Pretrial Order regarding Plaintiff's SECOND Motion in Limine by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Barron, George) (Entered: 02/16/2007)
122 REPLY BRIEF re 102 Sixth MOTION in Limine filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Certificate of Service)(Barron, George) (Entered: 02/16/2007)
123 EXHIBIT F by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2 re 119 Brief in Opposition,,. (Barron, George) (Entered: 02/16/2007)
124 STIPULATION AND ORDER re response by dft to cross motion for sum/jgm extended to 3/2/07.Signed by Judge James M. Munley on 2/21/07. (sm, ) (Entered: 02/21/2007)
125 MEMORANDUM and ORDER re MOTIONS IN LIMINE: 1.denying dft's 92 Motion in Limine; 2. granting in part and denying in part 94 dft's Motion in Limine;3. denying dft's 96 Motion in Limine; 4. denying 98 Motion in Limine; 5. granting dft's 100 Motion in Limine;6. denying 102 dft's Motion in Limine; 7. denying 104 pltfs' Motion in Limine; and 8. denying 105 pltfs' Motion in Limine Signed by Judge James M. Munley on 2/27/07 (sm, ) (Entered: 02/27/2007)
126 NOTICE of Appearance by Peter L. Matson on behalf of Chamber of Commerce of the United States of America, participating as amicus curiae (lg, ) (Entered: 03/01/2007)
127 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Juan P. Morillo on behalf of Chamber of Commerce of the United States of America Attorney Juan Pablo Morillo is seeking special admission. Filing Fee: 25.00 Receipt Number: 444000195. (lg, ) (Entered: 03/01/2007)

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128 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Steven Thomas Cottreau on behalf of Chamber of Commerce of the United States of America Attorney Steven Thomas Cottreau is seeking special admission. Filing Fee: 25.00 Receipt Number: 444000194. (lg, ) (Entered: 03/01/2007)
129 MOTION for Leave to File an Overlength Brief by Chamber of Commerce of the United States of America. (Attachments: # 1 Proposed Order)(ga, ) (Entered: 03/01/2007)
130 MOTION Addressing Defendant's Assertion of Privilege and Requesting In Camera Review by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2.(Fiddler, Thomas) (Entered: 03/01/2007)
131 BRIEF IN SUPPORT re 130 MOTION Addressing Defendant's Assertion of Privilege and Requesting In Camera Review filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Attachments: # 1 Exhibit(s) Exhibit A# 2 Exhibit(s) Exhibit B# 3 Exhibit(s) Exhibit C# 4 Exhibit(s) Exhibit D# 5 Exhibit(s) Exhibit E# 6 Exhibit(s) Exhibit F# 7 Exhibit(s) Exhibit G# 8 Exhibit(s) Exhibit H# 9 Proposed Order # 10 Affidavit Certificate of Service)(Fiddler, Thomas) (Entered: 03/01/2007)
132 STIPULATION by City of Hazleton. (Maresca, Carla) (Entered: 03/01/2007)
134 MEMORANDUM OF LAW by City of Hazleton In support of Oral Motion in Limine. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B)(Maresca, Carla) (Entered: 03/02/2007)
135 ANSWER TO STATEMENT OF FACTS IN OPPOSITION filed by City of Hazleton.(Maresca, Carla) (Entered: 03/02/2007)
136 SPECIAL ADMISSIONS FORM APPROVED as to Steven Thomas CottreauSigned by Judge James M. Munley on 3/2/07. (sm, ) (Entered: 03/02/2007)
137 SPECIAL ADMISSIONS FORM APPROVED as to Juan Pablo MorilloSigned by Judge James M. Munley on 3/2/07. (sm, ) (Entered: 03/02/2007)
138 ORDER granting 129 Motion for Leave to File − Chamber of Commerce of the USASigned by Judge James M. Munley on 3/2/07 (sm, ) (Entered: 03/02/2007)
139 STIPULATION AND ORDER re ordinance 2006−19Signed by Judge James M. Munley on 3/2/07. (sm, ) (Entered: 03/02/2007)
140 ORDER re designee of US Dept of Homeland Security as witness. Signed by Judge James M. Munley on 3/2/07. (sm, ) ***ORDER RESCINDED PER 162 3/7/07 order of Court****(sm, ). (Entered: 03/02/2007)
141 MEMORANDUM OF LAW by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2 in Opposition to Defendant City of Hazleton's Oral Motion In Limine. (Attachments: # 1 Proposed Order Proposed Order)(Fiddler, Thomas) (Entered: 03/02/2007)
142 EXHIBIT Proposed Order by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2 re 141 Memorandum of Law,. (Fiddler, Thomas) (Entered: 03/02/2007)
143 BRIEF IN OPPOSITION re 130 MOTION Addressing Defendant's Assertion of Privilege and Requesting In Camera Review filed by City of Hazleton. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B# 3 Exhibit(s) C# 4 Exhibit(s) D# 5 Proposed Order Proposed Order)(Adair, Andrew) (Entered: 03/02/2007)

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144 STATEMENT OF FACTS and Conclusions of Law filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2.(Fiddler, Thomas) (Entered: 03/02/2007)
145 (LETTER faxed to Court) MOTION for Reconsideration.(sm, ) (Entered: 03/02/2007)
146 ORDER denying 145 (letter) Motion for Reconsideration Signed by Judge James M. Munley on 3/2/07 (sm, ) (Entered: 03/02/2007)
147 MEMORANDUM OF POINTS & AUTHORITIES by City of Hazleton. (Maresca, Carla) (Entered: 03/02/2007)
148 MOTION for Leave to File Amicus Brief with expanded page limit by Judicial Watch, Inc.. (Attachments: # 1 Proposed Order # 2 Proposed Amicus Brief)(Wenger, Randall) (Entered: 03/02/2007)
149 BRIEF IN SUPPORT re 148 MOTION for Leave to File Amicus Brief with expanded page limit filed by Judicial Watch, Inc..(Wenger, Randall) (Entered: 03/02/2007)
150 BRIEF IN OPPOSITION re 84 First MOTION to Dismiss Plaintiffs' Second Amended Complaint Opposing Plaintiffs' Cross Motion for Summary Judgment filed by City of Hazleton.(Kobach, Kris) (Entered: 03/02/2007)
151 ORDER re privilege issue to Judge Edwin Kosik.Signed by Judge James M. Munley on 3/5/07. (sm, ) (Entered: 03/05/2007)
152 NOTICE of Appearance by Leonard G. Brown on behalf of Judicial Watch, Inc. (Brown, Leonard) (Entered: 03/05/2007)
153 DISCLOSURE STATEMENT PURSUANT TO FRCP 7.1 Amicus Curiae who is Judicial Watch, Inc.. (Brown, Leonard) (Entered: 03/05/2007)
154 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Richard Bellman on behalf of John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2 Attorney Richard Bellman is seeking special admission. Filing Fee: 25.00 Receipt Number: 333001294. (ga, ) (Entered: 03/05/2007)
155 BRIEF IN OPPOSITION re 130 MOTION Addressing Defendant's Assertion of Privilege and Requesting In Camera Review (Supplemental) filed by City of Hazleton. (Attachments: # 1 Exhibit(s) A)(Adair, Andrew) (Entered: 03/05/2007)
156 BRIEF IN OPPOSITION "Brief of the Chamber of Commerce of the United States of America as Amicus Curiae in Support of Plainitffs' Opposition To Defendant's Motion to Dismiss and Cross Motion For Summary Judgment" re 84 First MOTION to Dismiss Plaintiffs' Second Amended Complaint, 56 First MOTION to Dismiss Amended Complaint filed by Chamber of Commerce of the United States of America.(ga, ) (Entered: 03/05/2007)
157 ORDER granting 148 Judicial Watch's Motion for Leave to File briefSigned by Judge James M. Munley on 3/5/07 (sm, ) (Entered: 03/05/2007)
158 BRIEF IN SUPPORT re 30 MOTION for Preliminary Injunction and Temporary Restraining Order filed by Judicial Watch, Inc..(sm, ) (Entered: 03/06/2007)
document 159 incorrectly filed; to be refiled. (sm, ) (Entered: 03/06/2007)
159 ORDER re dft's discovery materialSigned by Judge James M. Munley on 3/6/07. (sm, ) (Entered: 03/06/2007)
160 MEMORANDUM OF LAW by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Hazleton Hispanic Business Association, Humberto Hernandez, Jane Doe 5, John Doe 7, John Doe, 1, John Doe, 2 and all other Plaintiffs Concerning Emails Supplied to Judge Kosik for In Camera Review. (Fiddler, Thomas) (Entered: 03/06/2007)

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161 ORDER re privilegeSigned by Judge Edwin M. Kosik on 3/7/07. (sm, ) (Entered: 03/07/2007)
162 ORDER RESCINDING 140 3/2/07 Order of Court.Signed by Judge James M. Munley on 3/7/07. (sm, ) (Entered: 03/07/2007)
163 PRETRIAL MEMORANDUM by City of Hazleton. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B)(Mahoney, Harry) (Entered: 03/08/2007)
164 STENO NOTES/TAPE OF PROCEEDINGS filed by S. Halko of Pretrial Conference before Judge Munley on 2/22/07, in Scr., 1 of 1.. (Court Reporter Notes/Tapes are not viewable pdf documents). (ga, ) (Entered: 03/08/2007)
165 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by David Vaida on behalf of Pedro Lozano Attorney David Vaida is seeking special admission. Filing Fee: 25.00 Receipt Number: 333001365. (ga, ) (Entered: 03/09/2007)
166 NOTICE of Appearance by Elizabeth Gallaway on behalf of City of Hazleton. (Gallaway, Elizabeth) (Entered: 03/09/2007)
167 Exhibit List Amended by City of Hazleton.. (Mahoney, Harry) (Entered: 03/09/2007)
168 LETTER/MOTION in Limine re testimony of Doe plaintiffs.(sm, ) (Entered: 03/09/2007)
169 LETTER /BRIEF IN OPPOSITION re 168 MOTION in Limine filed by defendants(sm, ) (Entered: 03/09/2007)
170 MEMORANDUM and ORDER granting 168 Motion in Limine Signed by Judge James M. Munley on 3/9/07 (sm, ) (Entered: 03/09/2007)
171 MOTION to Strike 163 Pretrial Memorandum Exhibit A, of defendant City of Hazleton filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Hazleton Hispanic Business Association, Humberto Hernandez, Jane Doe 5, John Doe 7, John Doe, 1, John Doe, 2.(Fiddler, Thomas) (Entered: 03/09/2007)
172 Witness List by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Hazleton Hispanic Business Association, Humberto Hernandez, Jane Doe 5, John Doe 7, John Doe, 1, John Doe, 2. (Fiddler, Thomas) (Entered: 03/09/2007)
173 Supplement by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Hazleton Hispanic Business Association, Humberto Hernandez, Jane Doe 5, John Doe 7, John Doe, 1, John Doe, 2. to 172 Witness List. (Fiddler, Thomas) (Entered: 03/09/2007)
181 SPECIAL ADMISSIONS FORM APPROVED as to DAVID VIEDASigned by Judge James M. Munley on 3/9/07. (sm, ) (Entered: 03/13/2007)
174 BRIEF IN OPPOSITION re 171 MOTION to Strike 163 Pretrial Memorandum Exhibit A, of defendant City of Hazleton filed MOTION to Strike 163 Pretrial Memorandum Exhibit A, of defendant City of Hazleton filed with Accompanying Response in Opposition and Proposed Order filed by City of Hazleton.(Maresca, Carla) (Entered: 03/10/2007)
175 ORDER denying 171 plaintiffs' Motion to Strike Exhibit A, report of proposed expert, of dft's pretrial memorandum.Signed by Judge James M. Munley on 3/11/07 (sm, ) (Entered: 03/11/2007)
176 NOTICE by Pedro Lozano et al. (Fiddler, Thomas) (Entered: 03/12/2007)
177 First MOTION for Protective Order with Accompanying Memorandum of Law by City of Hazleton. (Attachments: # 1 Proposed Order)(Maresca, Carla) (Entered: 03/12/2007)
178 STENO NOTES OF PROCEEDINGS filed by Suzanne Halko of Telephone Conference before Judge Munley on 3/2/07.. (Court Reporter Notes/Tapes are not viewable pdf documents). (rm, ) (Entered: 03/13/2007)
ORAL ORDER denying 177 Motion for Protective Order Signed by Judge James M. Munley on 3/13/07 (sm, ) (Entered: 03/13/2007)

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182 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Kathryn C. Harr terminated on behalf of Pennsylvania Statewide Latino Coalition. (Attachments: # 1 Certificate of Service)(Harr, Kathryn) (Entered: 03/14/2007)
185 First MOTION Leave to Call Fact Witness, Michael Cutler by City of Hazleton. (Attachments: # 1 Exhibit(s))(Maresca, Carla) (Entered: 03/15/2007)
199 SPECIAL ADMISSIONS FORM APPROVED as to Ghita SchwartzSigned by Judge James M. Munley on 3/15/07. (sm, ) (Entered: 03/24/2007)
200 SPECIAL ADMISSIONS FORM APPROVED as to Richard BellmanSigned by Judge James M. Munley on 3/15/07. (sm, ) (Entered: 03/24/2007)
186 BRIEF IN OPPOSITION re 185 First MOTION Leave to Call Fact Witness, Michael Cutler on behalf of all Plaintiffs filed by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Hazleton Hispanic Business Association, Humberto Hernandez, Jane Doe 5, John Doe 7, John Doe, 1, John Doe, 2. (Attachments: # 1 Exhibit(s) Exhibit A)(Fiddler, Thomas) (Entered: 03/16/2007)
187 ORDER re 185 Motion for leave to call Fact Witness, Michael Cutler.Signed by Judge James M. Munley on 3/16/07 (sm, ) (Entered: 03/16/2007)
189 DEPOSITION TRANSCRIPT of John Doe #1 taken on 12/8/06 (Attachments: # 1 Declaration)(ga, ) (Entered: 03/20/2007)
190 DEPOSITION TRANSCRIPT of John Doe #3 taken on 12/8/06(ga, ) (Entered: 03/20/2007)
191 DEPOSITION TRANSCRIPT of Jane Doe #5 taken on 1/26/07 (Attachments: # 1 Exhibit(s))(ga, ) (Entered: 03/20/2007)
192 DEPOSITION TRANSCRIPT of John Doe #7 taken on 1/26/07.(ga, ) (Entered: 03/20/2007)
230 Deposition Transcript (Attachments: # 1 Part 2# 2 Part 3# 3 Part 4# 4 Part 5# 5 Part 6# 6 Part 7).(ga, ) . (Entered: 06/08/2007)
195 STIPULATION Regarding Testimony of Sean Shamany of the Hazelton Area School District. (ga, ) (Entered: 03/21/2007)
196 STIPULATION Regarding Testimony of James D. Edwards of the Greater Hazelton Health Alliance. (ga, ) (Entered: 03/21/2007)
201 MOTION to Compel COMPLIANCE WITH STIPULATION AND ORDER CONCERNING OFFICIAL ENGLISH ORDINANCE 2006−19 by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Hazleton Hispanic Business Association, Humberto Hernandez, Jane Doe 5, John Doe 7, John Doe, 1, John Doe, 2. (Attachments: # 1 Exhibit(s) Exhibit A# 2 Exhibit(s) Exhibit B# 3 Exhibit(s) Exhibit C# 4 Exhibit(s) Exhibit D)(Fiddler, Thomas) (Entered: 03/26/2007)
202 AFFIDAVIT in Opposition re 201 MOTION to Compel COMPLIANCE WITH STIPULATION AND ORDER CONCERNING OFFICIAL ENGLISH ORDINANCE 2006−19 filed by City of Hazleton.(Maresca, Carla) (Entered: 03/28/2007)
203 BRIEF IN OPPOSITION re 201 MOTION to Compel COMPLIANCE WITH STIPULATION AND ORDER CONCERNING OFFICIAL ENGLISH ORDINANCE 2006−19 AMENDED RESPONSE IN OPPOSITION filed by City of Hazleton.(Maresca, Carla) (Entered: 04/02/2007)
204 BRIEF IN SUPPORT re 201 MOTION to Compel COMPLIANCE WITH STIPULATION AND ORDER CONCERNING OFFICIAL ENGLISH ORDINANCE 2006−19 filed by John Doe, 3, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1.(Fiddler, Thomas) (Entered: 04/04/2007)
205 AFFIDAVIT in Opposition re 201 MOTION to Compel COMPLIANCE WITH STIPULATION AND ORDER CONCERNING OFFICIAL ENGLISH ORDINANCE 2006−19 AND IN SUPPORT OF MOTION IN OPPOSITION filed by City of Hazleton. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B)(Maresca, Carla) (Entered:

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 44 of 56

04/20/2007 04/20/2007
04/23/2007 04/23/2007 04/23/2007 04/23/2007 04/23/2007 04/23/2007 04/23/2007 04/23/2007 05/07/2007 05/11/2007 05/14/2007
05/14/2007
05/15/2007 05/17/2007
05/17/2007 05/17/2007 05/22/2007

04/05/2007)
206 ORDER that as transcript of the trial will be completed today at 4:00PM, the post trial briefs are due on 5/14/07.Signed by Judge James M. Munley on 4/20/07. (sm, ) (Entered: 04/20/2007)
207 REPLY BRIEF re 201 MOTION to Compel COMPLIANCE WITH STIPULATION AND ORDER CONCERNING OFFICIAL ENGLISH ORDINANCE 2006−19 filed by Brenda Lee Mieles, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jose Luis Lechuga.(Fiddler, Thomas) (Entered: 04/20/2007)
208 TRANSCRIPT of Proceedings held on March 12, 2007 before Judge James Munley. Court Reporter: Suzanne Halko. (cr2, ) (Entered: 04/23/2007)
209 TRANSCRIPT of Proceedings held on March 13, 2007 before Judge James Munley. Court Reporter: Suzanne Halko. (cr2, ) (Entered: 04/23/2007)
210 TRANSCRIPT of Proceedings held on March 14, 2007 before Judge James Munley. Court Reporter: Suzanne halko. (cr2, ) (Entered: 04/23/2007)
211 TRANSCRIPT of Proceedings held on March 15, 2007 before Judge James Munley. Court Reporter: Suzanne Halko. (cr2, ) (Entered: 04/23/2007)
212 TRANSCRIPT of Proceedings held on March 16, 2007 before Judge James Munley. Court Reporter: Suzanne Halko. (cr2, ) (Entered: 04/23/2007)
213 TRANSCRIPT of Proceedings held on March 19, 2007 before Judge James Munley. Court Reporter: Suzanne Halko. (cr2, ) (Entered: 04/23/2007)
214 TRANSCRIPT of Proceedings held on March 20, 2007 before Judge James Munley. Court Reporter: Suzanne Halko. (cr2, ) (Entered: 04/23/2007)
215 TRANSCRIPT of Proceedings held on March 21, 2007 before Judge James Munley. Court Reporter: Suzanne Halko. (cr2, ) (Entered: 04/23/2007)
216 ORDER extending page limit on post trial briefs to 70 pages. Signed by Judge James M. Munley on 5/7/07. (sm, ) (Entered: 05/07/2007)
217 ORDER GRANTING parties' telephonic request, extending page limit of briefs to 90 pages. Signed by Judge James M. Munley on 5/11/07. (sm, ) (Entered: 05/11/2007)
218 Proposed Findings of Fact by John Doe, 3, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1. (Fiddler, Thomas) (Entered: 05/14/2007)
219 Proposed Findings of Fact by City of Hazleton. (Attachments: # 1 Exhibit(s) Exhibit A − Shamany Stipulated Testimony# 2 Exhibit(s) Exhibit B − Edwards Stipulated Testimony# 3 Exhibit(s) Exhibit C − USCIS Testimony Before Congress 2007)(Kobach, Kris) (Entered: 05/14/2007)
220 Supplement by City of Hazleton. to 219 Proposed Findings of Fact, (Signature Page & Certificate of Service). (Adair, Andrew) (Entered: 05/15/2007)
221 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Meetali Jain on behalf of Pennsylvania Immigrant Rights Coalition Attorney Meetali Jain is seeking special admission. Filing Fee: 25.00 Receipt Number: 333002077. (ga, ) (Entered: 05/17/2007)
222 MOTION for Leave to File An Overlength Brief by Pennsylvania Immigrant Rights Coalition. (Attachments: # 1 Proposed Order)(ga, ) Additional attachment(s) added on 5/21/2007 (rm, ). (Entered: 05/17/2007)
223 BRIEF IN SUPPORT re 222 MOTION for Leave to File filed by Pennsylvania Immigrant Rights Coalition.(ga, ) (Entered: 05/17/2007)
224 ORDER granting 222 Motion for Leave to File by amici curiaeSigned by Judge James M. Munley on 5/22/07 (sm, ) (Entered: 05/22/2007)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 45 of 56

06/06/2007 06/06/2007 06/07/2007 06/07/2007
06/08/2007 06/08/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007

225 Letter from Atty Fiddler with attached opinion from USDC for the ND of Texas, Villas v Farmers Branch, 3:06cv2371−L (sm, ) (Entered: 06/06/2007)
226 NOTICE by City of Hazleton of Supplemental Authority, Department of Homeland Security Publication in Federal Register (Kobach, Kris) (Entered: 06/06/2007)
227 TRANSCRIPT of CONFERENCE re Admission of Exhibts held on March 22, 2007 before Judge Munley. Court Reporter: Halko. (sm, ) (Entered: 06/07/2007)
228 NOTICE by City of Hazleton re 225 Letter Notifying Court of Text of Farmers Branch Ordinance and Relevant Distinctions (Attachments: # 1 Exhibit(s) Farmers Branch Ordinance No. 2903)(Kobach, Kris) (Entered: 06/07/2007)
Due to clerical error Doc. #229 "Deposition Transcript" as been deleted, and re−filed as Doc. #230 "Deposition Transcript" (ga, ) (Entered: 06/08/2007)
231 List of Admitted Exhibits − re trial. (sm, ) (Entered: 06/08/2007)
232 EXHIBIT "P1" Ordinance 2006−13 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
233 EXHIBIT "P2" Ordinance 2006−18 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
234 EXHIBIT "P3" Ordinance 2006−19 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
235 EXHIBIT "P5" Ordinance 2006−40 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
236 EXHIBIT "P6" Ordinance 2003−11 by all Plainitiff's. (ga, ) (Entered: 06/12/2007)
237 EXHIBIT "P7" Ordinance 2003−20 by all Plainitff's. (ga, ) (Entered: 06/12/2007)
238 EXHIBIT "P8" Ordinance 2004−11 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
239 EXHIBIT "P9" Ordinance 2005−6 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
240 EXHIBIT "P10" Ordinance 2006−10 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
241 EXHIBIT "P11" Residential Rental Property: Occupant Registration Form by all Plaintiff's.(ga, ) (Entered: 06/12/2007)
242 EXHIBIT "P12" Residential Rental Property: Occupant Registration Form by all Plaintiff's. (Entered: 06/12/2007)
243 EXHIBIT "P13" Notice to the Residents of the City of Hazleton:Landlords/Tenants by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
244 EXHIBIT P16 − 109th Congress − 1st Session − H.R. 4437 by all Plaintiff's. (Attachments: # 1 P16 −Part 1# 2 P16 − Part 2)(ga, ) (Entered: 06/12/2007)
245 EXHIBIT "P17" − 109th Congress − 2nd Session − S.2611 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
246 EXHIBIT "P21" − "City Turns 150 This Week" by Kent Jackson by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
247 EXHIBIT "P55" Immigration Enforcement: Weaknesses Hinder Employment Verification by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
248 EXHIBIT "P58" Memorandum of Understanding by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
249 EXHIBIT "P65" Biography: Louis J. Barlett by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
250 EXHIBIT "P66" Notice to the Residents of the City of Hazleton: Landlord/Tenants by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
251 EXHIBIT "P67" City of Hazleton Documents: Written in Spanish by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
252 EXHIBIT "P68" Ordinance 2006−19 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 46 of 56

06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007
06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007

253 EXHIBIT "P69" City of Hazleton: Tenant Registration Permit Registration Form by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
254 EXHIBIT "P70" Verification Form by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
255 EXHIBIT "P73" Return a Monthly Count of Offenses Known to Police: 2001 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
256 EXHIBIT "P74" Return a Monthly Count of Offenses Known to Police:2002 by all Plaintiff's. (Entered: 06/12/2007)
257 EXHIBIT "P75" Return a Monthly Account of Offenses Known to Police: 2003 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
258 EXHIBIT "P76" Return a Monthly Account of Offenses Known to Police: 2004 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
259 EXHIBIT "P77" Return a Monthly Account of Offenses Known to Police: 2005 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
260 DOCUMENT SEALED pursuant to Court Order (Attachments: # 1"P80" (ga, ) (Entered: 06/12/2007)
261 DOCUMENT Exhibit "P81" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
262 EXHIBIT "P83" E−mail Exchange: Robert Ferdinand, et.al by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
263 EXHIBIT "P84" Biography: Chief (Ret) Thomas J. Powell, I.A.A.I CFI by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
264 EXHIBIT "P93" Basic Employment Verification Pilot: Memorandum of Understanding by all Plaintiff's. (ga, ) Modified on 6/13/2007 (kc, ). (Entered: 06/12/2007)
265 EXHIBIT "P94" Police Overtime for 2006 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
266 EXHIBIT "P95" City of Hazleton − Revenue/Expense MTD/YTD: Dec. 31, 2006 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
267 EXHIBIT "P107" Report About Health Care Expenditures for Immigrants by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
268 EXHIBIT "P108" Biography: Leighton Ku by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
269 EXHIBIT "P113" Hazleton Police Department: Daily Police Information Sheet by all Plaintiff's.(ga, ) (Entered: 06/12/2007)
270 EXHIBIT "P124" Isabel Rubio's Gifts Money Transfer Figures for 2006 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
271 EXHIBIT "P125" INS Basic Evaluation Summary Report − Part I by all Plaintiff's. (ga, ) . (Entered: 06/12/2007)
272 EXHIBIT "P125" − Part II − INS Basic Evaluation Summary Report by all Plaintiff's. (ga, ) . (Entered: 06/12/2007)
273 EXHIBIT "P125" − Part III − INS Basic Evaluation Summary Report by all Plaintiff's. (ga, ) . (Entered: 06/12/2007)
274 EXHIBIT "P133" Rental Contract by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
275 EXHIBIT "P139" Pennsylvania Statewide Latino Coalition − Free Membership Form by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
276 EXHIBIT "P140" Pennsylvania Statewide Latino Coalition − Free Membership Form:Bahena, Rosa by all Plaintiff's. (ga, ) . (Entered: 06/12/2007)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 47 of 56

06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007
06/12/2007
06/12/2007
06/12/2007
06/12/2007
06/12/2007 06/12/2007 06/12/2007

277 EXHIBIT P141 Pennsylvania Statewide Latino Coalition − Free Membership Form: Lechuga, Jose by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
278 EXHIBIT P148 −Part I − 2007 Budget Proposal by all Plaintiff's. (ga, ) . (Entered: 06/12/2007)
279 EXHIBIT "P148" − Part II − 2007 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
280 EXHIBIT P148 − Part III − 2007 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
281 EXHIBIT "P149 − Part I − 2006 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
282 EXHIBIT "P149" − Part II − 2006 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
283 EXHIBIT "P150" − Part I − 2005 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
284 EXHIBIT "P150 − Part II − 2005 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
285 EXHIBIT "P151" − Part I − 2004 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
286 EXHIBIT "P151 − Part II − 2004 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
287 EXHIBIT "P152" − Part I − 2003 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
288 EXHIBIT "P152 − Part II − 2003 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
289 EXHIBIT "P153" − Part I − 2002 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
290 EXHIBIT "P153 − Part II − 2002 Budget Proposal by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
291 EXHIBIT "P154" City of Hazelton − Financial Statements for the Year Ended December 31, 2005 & Independent Auditors' Report & Supplementary Information by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
292 EXHIBIT "P155" City of Hazleton − Financial Statements for the Year Ended December 31, 2004 & Independent Auditors' Report & Supplementary Information by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
293 EXHIBIT "P156" City of Hazleton − Financial Statements for the Year Ended December 31, 2003 & Independent Auditors' Report & Supplementary Information by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
294 EXHIBIT "P157" City of Hazelton − Financial Statements for the Year Ended December 31, 2002 & Independent Auditors' Report & Supplementary Information by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
295 EXHIBIT "P158" City of Hazleton − Financial Statements for the Year Ended December 31, 2001 & Independent Auditors' Report & Supplementary Information by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
296 EXHIBIT "P159" City of Hazleton − Financial Statements for Year Ended December 31, 2000 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
297 EXHIBIT "P161" List of Acceptable Documents by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
298 EXHIBIT "P185" Hate Mail by all Plaintiff's. (ga, ) (Entered: 06/12/2007)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 48 of 56

06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007
06/12/2007
06/12/2007 06/12/2007 06/12/2007
06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007

299 EXHIBIT "P186" − Hate Mail by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
300 EXHIBIT "P187" Hate Mail by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
301 EXHIBIT "P188" − Return a Monthly Account of Offenses Known to Police: 2001 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
302 EXHIBIT "P189" Deposition of John Doe #1 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
303 EXHIBIT "P190"− Deposition of John Doe #3 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
304 EXHIBIT P191" − Deposition of Jane Doe #5 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
305 EXHIBIT "P194" Hazleton Crime Statistics: 2001−2006 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
306 EXHIBIT "P195" − Hazleton Crime Statistics: 2001−2006 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
307 EXHIBIT "P195A" −Hazleton Crime Statistics: 2001−2006 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
308 EXHIBIT "P196" Biography: Marc Ravel Rosenblaum by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
309 EXHIBIT "P197" Social Security Administration: Congressional Response Report by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
310 EXHIBIT "P201" − Declaration of John Doe #1 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
311 EXHIBIT "P206" − "Illegal Immigrants and the Economy: Undocumented Workers Reduce the Wages of Low−Income Workers; But How Much?" by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
312 EXHIBIT "P207" − Congressional Budget Office Cost Estimate:S.2611 Comprehensive Immigration Reform Act of 2006 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
313 EXHIBIT "P211" Undocumented Immigrants in Texas: A Financial Analysis of the Impact to the State Budget and Economy by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
314 EXHIBIT "P212" − E−mail: Kris Kobach − Mr. Michael Cutler's Publications by all Plaintiff's, Inc.. (ga, ) (Entered: 06/12/2007)
315 EXHIBIT "P214" − U.S. Citizenship and Immigration Services Office of Records Services Systematic Alien Verification for Entitlements (SAVE) Program User Agencies with MOUs by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
316 EXHIBIT "P215" − Systematic Alien Verification for Entitlements (SAVE) Program by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
317 EXHIBIT "P216" GAO/OSI−97−2 Investigators Guide to Sources of Information: Chapter 4 − Electronics Database by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
318 EXHIBIT "P249" Graph: Violent Index Crimes Reported − Hazleton City Police by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
319 EXHIBIT "P251" − Ordinance 2007−6 by all Plaintiff's. (ga, ) (Entered: 06/12/2007)
320 EXHIBIT "D1" − Hazleton Police Department: Daily Information Sheet − 7/10/06 by all Defendant's. (ga, ) (Entered: 06/12/2007)
321 EXHIBIT "D3" − Hazleton Police Department: Daily Information Sheet − 8/8/06 by all Defendant's. (ga, ) (Entered: 06/12/2007)
322 EXHIBIT "D4" − Hazleton Police Department: Daily Information Sheet − 11/23/06 by all Defendant's. (ga, ) (Entered: 06/12/2007)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 49 of 56

06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007

323 EXHIBIT "D5" − Hazleton Police Department: Daily Information Sheet 9/22/06 by all Defendant's. (ga, ) (Entered: 06/12/2007)
324 EXHIBIT "D8" − Hazleton Police Department: Daily Information Sheet − 7/9/06 by all Defendant's(ga, ) (Entered: 06/12/2007)
325 EXHIBIT "D9" − Hazleton Police Department: Incident Investigation Report by all Defendant's (Entered: 06/12/2007)
326 DOCUMENT "D11" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
327 DOCUMENT "D12" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
328 DOCUMENT "D14" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
329 DOCUMENT "D15" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
330 DOCUMENT "D16" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
331 EXHIBIT "D18" − Hazleton Police Department: Incident Investigation Report by all Defendant's. (ga, ) (Entered: 06/12/2007)
332 DOCUMENT "D19" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
333 EXHIBIT "D21" Hazleton Police Department: Incident Investigation Report by all Defendants. (ga, ) (Entered: 06/12/2007)
334 EXHIBIT "D22" − Hazleton Police Department: Incident Investigation Report by all Defendants. (ga, ) (Entered: 06/12/2007)
335 EXHIBIT "D23" − Hazleton Police Department: Incident Investigation Report by all Defendant's (ga, ) (Entered: 06/12/2007)
336 DOCUMENT "D24" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
337 DOCUMENT "D25" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
338 EXHIBIT "D26" − Hazleton Police Department: Incident Investigation Report by all Defendant's.(ga, ) (Entered: 06/12/2007)
339 EXHIBIT "D27" − Hazleton Police Department: Incident Investigation Report by all Defendant's. (ga, ) (Entered: 06/12/2007)
340 EXHIBIT "D28" − Hazleton Police Department: Incident Investigation Report by all Defendant's (ga, ) (Entered: 06/12/2007)
341 EXHIBIT "D29" − Hazleton Police Department: Incident Investigation Report by all Defenant's. (ga, ) (Entered: 06/12/2007)
342 DOCUMENT "D30" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
343 EXHIBIT "D31" − Police Overtime for 2006 by all Defendant's. (ga, ) (Entered: 06/12/2007)
344 EXHIBIT "D44" Hazleton Police Department:Incident Investigation Report by all Defendant's. (ga, ) (Entered: 06/12/2007)
345 EXHIBIT "D45" − Return a Monthly Count of Offenses Known to Police: 2001 by all Defendant's. (ga, ) (Entered: 06/12/2007)
346 EXHIBIT "D46" − Return a Monthly Count of Offenses Known to Police:2002 by all Defendant's. (ga, ) (Entered: 06/12/2007)
347 EXHIBIT "D47" − Return a Monthly Count of Offenses Known to Police:2003 by all Defendant's. (ga, ) (Entered: 06/12/2007)
348 EXHIBIT "D48" − Return a Monthly Count of Offenses Known to Police: 2004 by all Defendant's. (ga, ) (Entered: 06/12/2007)
349 EXHIBIT "D49" − Return a Monthly Count of Offenses Known to Police: 2005 by all Defendant's. (ga, ) (Entered: 06/12/2007)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 50 of 56

06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007

350 EXHIBIT "D51"− Hazleton Police Department: Office Memo − Re: Dominican National by all Defendant's. (ga, ) (Entered: 06/12/2007)
351 EXHIBIT "D52" − Ordinance 2006−40 by all Defendant's. (ga, ) (Entered: 06/12/2007)
352 EXHIBIT "D53" − Ordinance 2006−35 by all Defendant's. (ga, ) (Entered: 06/12/2007)
353 EXHIBIT "D54" Ordinance 2003−11 by all Defendant's. (ga, ) (Entered: 06/12/2007)
354 EXHIBIT "D55" − Ordinance 2002−20 by all Defendant's. (ga, ) (Entered: 06/12/2007)
355 EXHIBIT "D56" Ordinance 2004−11 by all Defendant's. (ga, ) (Entered: 06/12/2007)
356 EXHIBIT "D57" − Ordinance 2005−6 by all Defendant's (ga, ) (Entered: 06/12/2007)
357 EXHIBIT "D58" − Ordinance 2006−10 by all Defendant's. (ga, ) (Entered: 06/12/2007)
358 EXHIBIT "D59" Ordinance 2006−13 by all Defendant's. (ga, ) (Entered: 06/12/2007)
359 EXHIBIT "D60" − Ordinance 2006−18 by all Defendant's. (ga, ) (Entered: 06/12/2007)
360 EXHIBIT "D61" − Ordinance 2006−19 by all Defendant's(ga, ) (Entered: 06/12/2007)
361 EXHIBIT "D91" Verbatim Transcript: Hazleton City Council − 7/15/06 by all Defendant's. (ga, ) (Entered: 06/12/2007)
362 EXHIBIT "D92" Verbatim Transcript: Hazleton City Council − 7/13/06 by all Defenant's (ga, ) (Entered: 06/12/2007)
363 EXHIBIT "D94" City of Hazleton − Revenue/Expense MTD/YTD: Dec. 31, 2006 by all Defendant's. (ga, ) (Entered: 06/12/2007)
364 EXHIBIT "D95" − 2002 Budget Proposal by all Defendant's. (ga, ) (Entered: 06/12/2007)
365 EXHIBIT "D96" 2003 Budget Proposal by all Defendant's. (ga, ) (Entered: 06/12/2007)
366 EXHIBIT "D97" 2004 Budget Proposal by all Defendant's. (ga, ) (Entered: 06/12/2007)
367 EXHIBIT "D98" 2005 Budget Proposal by all Defendant's. (ga, ) (Entered: 06/12/2007)
368 EXHIBIT "D99" 2006 Budget Proposal by all Defendant's. (ga, ) (Entered: 06/12/2007)
369 EXHIBIT "D105" − Part 1 of 4 − 2007 Budget Proposal by all Defendant's. (ga, ) (Entered: 06/12/2007)
370 EXHIBIT "D105" − Part 2 of 4 − 2007 Budget Proposal by all Defendant's. (ga, ) (Entered: 06/12/2007)
371 EXHIBIT "D105" − Part 3 of 4 − 2007 Budget Proposal by all Defendant's. (ga, ) (Entered: 06/12/2007)
372 EXHIBIT "D105" − Part 4 of 4 − 2007 Budget Proposal by all Defendant's. (ga, ) (Entered: 06/12/2007)
373 EXHIBIT "D115" − Basic Employment Verification Pilot: Memorandum of Understanding by all Defendant's. (ga, ) (Entered: 06/12/2007)
374 EXHIBIT "D119" List of Acceptable Documents by all Defendant's. (ga, ) (Entered: 06/12/2007)
375 EXHIBIT "D120" − Notice to the Residents of the City of Hazelton: Landlord/Tenants by all Defendant's. (ga, ) (Entered: 06/12/2007)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 51 of 56

06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007

376 EXHIBIT "D121" − Verification by all Defendants. (ga, ) (Entered: 06/12/2007)
377 EXHIBIT "D122" − City of Hazleton: Tenant Registration Permit Registration Form by all Defendant's. (ga, ) (Entered: 06/12/2007)
378 EXHIBIT "D131" City of Hazelton: Residential Rental Property: Occupant Registration Form by all Defendant's. (ga, ) (Entered: 06/12/2007)
379 EXHIBIT "D132" The Underground Labor Force Is Rising To The Surface by Robert Justich and Betty Ng, DFA by all Defendant's. (ga, ) (Entered: 06/12/2007)
380 EXHIBIT "D168" − Part 1 of 3 − Biography: Jared L. Lewis and George J Borjas by all Defendant's. (ga, ) (Entered: 06/12/2007)
381 EXHIBIT "D168" − Part 2 of 3" − Biography: Jared L. Lewis and George J. Borjas by all Defenant's. (ga, ) (Entered: 06/12/2007)
382 EXHIBIT "D168 − Part 3 of 3 − Biography: Jared L. Lewis and George J. Borjas by all Defendant's. (ga, ) (Entered: 06/12/2007)
383 EXHIBIT "D170" − Part 1 of 2 − Curriculum Vitae: George J. Borjas by Defendant's. (ga, ) (Entered: 06/12/2007)
384 EXHIBIT "D170" − Part 2 of 2 − Curriculum Vitae: George J. Borjas by Defenants. (ga, ) (Entered: 06/12/2007)
385 EXHIBIT "D172" − Biography: Stephen A. Camarota, Ph.D by Defendant's. (ga, ) (Entered: 06/12/2007)
386 EXHIBIT "D173" − Illegal Immigration's Impact on Public Education and Communities by Defendant's (ga, ) (Entered: 06/12/2007)
387 EXHIBIT "D174" − Biography: John L. Martin by Defendant's. (ga, ) (Entered: 06/12/2007)
388 EXHIBIT "D196" − Lechuga's Mexican Products: Profit & Loss by Defenant's. (ga, ) (Entered: 06/12/2007)
389 DOCUMENT "D199" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
390 DOCUMENT "D200" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
391 DOCUMENT "D201" SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
392 EXHIBIT "D217" − Isabel Rubio's Gifts Money Transfer Figures for 2006 by Defendant's. (ga, ) (Entered: 06/12/2007)
393 EXHIBIT "D218" Pennsylvania Department of State Corporation Bureau: Articles of Incorporation Nonprofit by Defendant's. (ga, ) (Entered: 06/12/2007)
394 EXHIBIT "D220" Systematic Alien Verification for Entitlements (SAVE) Program User Manual by Defendant's. (ga, ) (Entered: 06/12/2007)
395 DOCUMENT "D240" − Part 1 of 2 SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
396 DOCUMENT "D240" − Part 2 of 2 SEALED pursuant to Court Order (ga, ) (Entered: 06/12/2007)
397 EXHIBIT "D243" − Hazleton Hispanic Business Association by Defendant's. (ga, ) (Entered: 06/12/2007)
398 EXHIBIT "D248" Handwritten Notes by Defendant's. (ga, ) (Entered: 06/12/2007)
399 EXHIBIT "D249" Chart: Violent Index Crimes Reported − Hazleton City Police by Defendant's. (ga, ) (Entered: 06/12/2007)
400 EXHIBIT "D250" City of Hazleton, New Businesses Owned by Hispanics by Defendants. (ga, ) (Entered: 06/12/2007)
401 EXHIBIT "D251" − Ordinance 2007−6 by Defendant's. (ga, ) (Entered: 06/12/2007)

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 52 of 56

06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/29/2007 07/26/2007
07/26/2007
08/13/2007
08/15/2007
08/16/2007 08/23/2007
08/24/2007 08/27/2007 08/30/2007 08/31/2007 08/31/2007

402 EXHIBIT "D252" − Hazleton Police Department: Incident Investigation Report by Defendant's. (ga, ) (Entered: 06/12/2007)
403 EXHIBIT "D253" The High Cost of Cheap Labor: Illegal Immigration and the Federal Budget by Steven A. Camarota by Defendant's. (ga, ) (Entered: 06/12/2007)
404 EXHIBIT "D261" − "Debunking the Myth of Immigrant Criminality: Imprisonment Among First and Second Generation Young Men" by Ruben G. Rumbaut, et.al by Defendants. (ga, ) (Entered: 06/12/2007)
405 EXHIBIT "D270" Immigration Enforcement:Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts, by Defendant's. (ga, ) (Entered: 06/12/2007)
406 EXHIBIT "D271" Ordinance 2007−6 by Defendant's. (ga, ) (Entered: 06/12/2007)
408 Letter from Thomas Fiddler obo Plaintiff with attached supplemental authority.(Fiddler, Thomas) (Entered: 06/29/2007)
409 DECISION AND VERDICT declaring the Hazleton Ordinance Nos 2006−18, 2006−40 and 2007−6 and Hazleton Ordinance No. 2006−13 UNCONSTITUTIONAL and PERMANENTLY ENJOINING the defendant from enforcing IIRA and RO.Signed by Judge James M. Munley on 7/26/07. (sm, ) (Entered: 07/26/2007)
410 JUDGMENT entered in favor of Plaintiffs, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Pennsylvania Statewide Latino Coalition, Jane Doe 5, John Doe, 1, John Doe, 3, John Doe 7, Humberto Hernandez,Jose Luis Lechuga, Pedro Lozano, Rosa Lechuga and against Defendant, City of HazletonEntered on 7/26/07. (sm, ) (Entered: 08/07/2007)
411 MOTION for Extension of Time to File Petition for Attorneys' Fees and Expenses by John Doe, 3, Casa Dominicana of Hazleton, Inc., Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga. (Attachments: # 1 Proposed Order)(Fiddler, Thomas) (Entered: 08/13/2007)
412 CERTIFICATE of Non−Concurrence by John Doe, 3, Casa Dominicana of Hazleton, Inc., Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga re 411 MOTION for Extension of Time to File Petition for Attorneys' Fees and Expenses. (Fiddler, Thomas) (Entered: 08/15/2007)
413 ORDER granting 411 Motion for Extension of Time to File Petition for Attorneys' Fees. Plaintiff has until 8/31/2007 to file petition.Signed by Judge James M. Munley on 8/16/2007 (bg, ) (Entered: 08/16/2007)
414 NOTICE OF APPEAL in Non−Prisoner Case as to 410 Judgment, by City of Hazleton. Filing Fee and Docket Fee paid. Filing fee $ 455, receipt number 1097403. Court Reporter Suzanne Halko. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Maresca, Carla) (Entered: 08/23/2007)
415 AMENDED DOCUMENT by City of Hazleton. Amendment to 414 Notice of Appeal, Corrected first page. (Maresca, Carla) (Entered: 08/24/2007)
TPO (TRANSCRIPT PURCHASE ORDER) SENT re 414 Notice of Appeal, : (ga, ) (Entered: 08/27/2007)
417 USCA Case Number 07−3531 for 414 Notice of Appeal, filed by City of Hazleton. USCA Case Manager Phyllis Ruffin (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF). (Ruffin, Phyllis) (Entered: 08/31/2007)
Document # 416 filed in error. Document deleted and will be refiled today. (kc, ) (Entered: 08/31/2007)
416 PETITION for BILL OF COSTS AND ATTORNEYS' FEES by John Doe, 3, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1. Taxation of Costs due by 9/20/2007. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B# 3 Exhibit(s) 1# 4 Exhibit(s) 2# 5 Exhibit(s) 3# 6 Exhibit(s) 4# 7 Exhibit(s) 5# 8 Exhibit(s) 5A1# 9

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 53 of 56

09/06/2007 09/11/2007
09/14/2007 09/19/2007 09/27/2007 09/27/2007 10/04/2007 09/09/2010 10/01/2010 10/05/2010 10/14/2010
10/14/2010 07/29/2011 07/26/2013 08/19/2013

Exhibit(s) 5A2# 10 Exhibit(s) 5B# 11 Exhibit(s) 6# 12 Exhibit(s) 7# 13 Exhibit(s) 8# 14 Exhibit(s) 9# 15 Exhibit(s) 10# 16 Exhibit(s) 11# 17 Exhibit(s) 12# 18 Exhibit(s) 13# 19 Exhibit(s) 14# 20 Exhibit(s) 15# 21 Exhibit(s) 16)(Fiddler, Thomas) Modified on 2/21/2014 (sm). (Entered: 08/31/2007)
418 MOTION for Extension of Time to File Response to Plaintiffs' Fee Petition by City of Hazleton. (Attachments: # 1 Proposed Order First Alternative Order# 2 Proposed Order Second Alternative Order# 3 Affidavit of Non Concurrence)(Adair, Andrew) (Entered: 09/06/2007)
419 BRIEF IN OPPOSITION re 418 MOTION for Extension of Time to File Response to Plaintiffs' Fee Petition filed by John Doe, 3, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1.(Fiddler, Thomas) (Entered: 09/11/2007)
420 ORDER that the dft need not respond to pltfs' petition for atty fees and costs until the court has ruled on the pending motion for extension of timeSigned by Judge James M. Munley on 9/14/07. (sm, ) (Entered: 09/14/2007)
421 ORDER granting 418 Motion for Extension of Time to respond to petition for atty fees; Dft shall not be required to file response until 60 days after the final disposition of dft's appeal.Signed by Judge James M. Munley on 9/19/07 (sm, ) (Entered: 09/19/2007)
422 TRANSCRIPT of Proceedings held on 12−14−06 before Judge James Munley. Court Reporter: Suzanne Halko. (cr2, ) (Entered: 09/27/2007)
423 TRANSCRIPT of Proceedings held on 2−22−07 before Judge James Munley. Court Reporter: Suzanne Halko. (cr2, ) (Entered: 09/27/2007)
424 TRANSCRIPT PURCHASE ORDER REQUEST by City of Hazleton for proceedings held on 12/14/06 and 2/22/07 re 414 Notice of Appeal, (ga, ) (Entered: 10/04/2007)
425 JUDGMENT of USCA as to 414 Notice of Appeal, filed by City of Hazleton (Ruffin, Phyllis) (Entered: 09/09/2010)
426 MANDATE of USCA as to 414 Notice of Appeal, filed by City of Hazleton (Attachments: # 1 Opinion, # 2 Clerk's Letter to District Court)(King, James) (Entered: 10/01/2010)
DOCKET ANNOTATION: Message left @ (212) 739−7582 instructing Denise Alvarez to update her email address attached to her ECF account. All emails are being returned to the court. (bg, ) (Entered: 10/05/2010)
427 STIPULATION re 426 USCA Mandate (Terminates Appeal), 416 Bill of Costs,,, STIPULATION AND ORDER CONCERNING PLAINTIFFS SUBMISSION OF THEIR POST−APPEAL PETITION FOR FEES AND COSTS by John Doe, 3, Jane Doe, 1, Jane Doe, 2, Jane Doe, 3, John Doe, 4, Brenda Lee Mieles, Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Pennsylvania Statewide Latino Coalition, Pedro Lozano, Rosa Lechuga, Jane Doe 5, John Doe 7, Jose Luis Lechuga, John Doe, 1, John Doe, 2. (Rosenberg, Ilan) (Entered: 10/14/2010)
428 Order approving re 427 Stipulation re petition for atty fees. Signed by Honorable James M. Munley on 10/14/10. (sm, ) (Entered: 10/14/2010)
429 USCA ORDER RECALLING MANDATE as to 414 Notice of Appeal, filed by City of Hazleton. (crg) (Entered: 07/29/2011)
430 JUDGMENT of USCA (certified copy) as to 414 Notice of Appeal, Ordered and Adjudged by this Court that the Order of the District Court entered July 26, 2007, be and the same is hereby Affirmed In Part and Reversed In Part. (Reyes, Maria) (Entered: 07/26/2013)
431 MANDATE of USCA as to 414 Notice of Appeal, filed by City of Hazleton (Attachments: # 1 Opinion)(SLC) (Entered: 08/19/2013)

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08/22/2013
08/22/2013
08/22/2013
09/04/2013
09/04/2013
09/12/2013 09/12/2013 09/16/2013 09/19/2013 02/26/2014 03/20/2014 03/27/2014 03/28/2014
03/31/2014 05/12/2014

DOCKET ANNOTATION: As electronic notification to Atty. Trujillo has failed, courtesy hard copy of Doc. 431 mailed with instructions for updating ECF account info; if counsel is no longer associated with case, co−counsel or replacement counsel are urged to file praecipe for withdrawal or substitution of attorney. (ep) (Entered: 08/22/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Kaiser has failed, courtesy hard copy of Doc. 431 mailed with instructions for updating ECF account info; if counsel is no longer associated with case, co−counsel or replacement counsel are urged to file praecipe for withdrawal or substitution of attorney.(ep) (Entered: 08/22/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Kobach has failed, courtesy hard copy of Doc. 431 mailed with instructions for updating ECF account info; if counsel is no longer associated with case, co−counsel or replacement counsel are urged to file praecipe for withdrawal or substitution of attorney.(ep) (Entered: 08/22/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Maer has failed, courtesy hard copy of Doc. 431 mailed with instructions for updating ECF account info; if counsel is no longer associated with case, co−counsel or replacement counsel are urged to file praecipe for withdrawal or substitution of attorney. (ep) (Entered: 09/04/2013)
DOCKET ANNOTATION: As electronic notification to Atty. Chin has failed, courtesy hard copy of Doc. 431 mailed with instructions for updating ECF account info; if counsel is no longer associated with case, co−counsel or replacement counsel are urged to file praecipe for withdrawal or substitution of attorney.(ep) (Entered: 09/04/2013)
432 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney William J. Taylor terminated on behalf of. (Wilkinson, Thomas) (Entered: 09/12/2013)
433 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Doreen Y. Trujillo terminated on behalf of. (Wilkinson, Thomas) (Entered: 09/12/2013)
434 Mail Returned as Undeliverable. Mail 431 sent to Kris W. Kobach (ep) (Entered: 09/16/2013)
435 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Linda S. Kaiser terminated on behalf of. (Wilkinson, Thomas) (Entered: 09/19/2013)
436 ORDER directing Clerk of Court to reimburse Cozen O'Conor $200 that was submitted as security bond. 38 , 35 Signed by Honorable James M. Munley on 2/26/14. (sm) (Entered: 02/26/2014)
437 Mail Returned as Undeliverable. Doc. #436 − Return to Sender. Mail sent to Douglas W. Frankenthaler, Esquire. (ga) (Entered: 03/20/2014)
438 Letter from Thomas G. Wilkinson, Jr., Re: Douglas W. Frankenthler is no longer with Cozen O'Connor. (ga) (Entered: 03/27/2014)
439 Unopposed MOTION for Extension of Time to File Amended Petition for Attorneys' Fees and Expenses by Casa Dominicana of Hazleton, Inc., Jane Doe, 2, Jane Doe, 3, Jane Doe, 1, John Doe, 1, John Doe, 3, John Doe, 2, John Doe, 4, Jane Doe 5, John Doe 7, Hazleton Hispanic Business Association, Humberto Hernandez, Jose Luis Lechuga, Rosa Lechuga, Pedro Lozano, Brenda Lee Mieles, Pennsylvania Statewide Latino Coalition. (Attachments: # 1 Proposed Order)(Jadwat, Omar) (Entered: 03/28/2014)
440 ORDER granting 439 Motion for Extension of Time to File amended petition for atty fees− due 5/16/14.Signed by Honorable James M. Munley on 3/31/14 (sm) (Entered: 03/31/2014)
441 Unopposed MOTION for Extension of Time to File Amended Petition for Attorneys' Fees and Expenses by Casa Dominicana of Hazleton, Inc., Jane Doe, 2, Jane Doe, 3, Jane Doe, 1, John Doe, 1, John Doe, 3, John Doe, 2, John Doe, 4, Jane Doe 5, John Doe 7, Hazleton Hispanic Business Association, Humberto Hernandez, Jose Luis Lechuga, Rosa Lechuga, Pedro Lozano, Brenda Lee Mieles, Pennsylvania Statewide

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 55 of 56

05/13/2014 06/30/2014
07/14/2014 07/18/2014 08/31/2014 09/02/2014
09/02/2014 10/23/2014 10/24/2014 10/24/2014 10/24/2014 11/26/2014
12/01/2014 12/08/2014

Latino Coalition. (Attachments: # 1 Proposed Order)(Jadwat, Omar) (Entered: 05/12/2014)
442 ORDER granting 441 Motion for Extension of Time to File amended petition for atty fees− due 6/30/14Signed by Honorable James M. Munley on 5/13/14 (sm) (Entered: 05/13/2014)
443 Amended MOTION for Attorney Fees and Costs by Casa Dominicana of Hazleton, Inc., Jane Doe, 2, Jane Doe, 3, Jane Doe, 1, John Doe, 1, John Doe, 3, John Doe, 2, John Doe, 4, Jane Doe 5, John Doe 7, Hazleton Hispanic Business Association, Humberto Hernandez, Jose Luis Lechuga, Rosa Lechuga, Pedro Lozano, Brenda Lee Mieles, Pennsylvania Statewide Latino Coalition. (Attachments: # 1 Exhibit(s) Exhibit 1−2007.08.31 Petition for Fees and Costs, # 2 Exhibit(s) Exhibit 2−Declaration of Omar C. Jadwat, # 3 Exhibit(s) Exhibit 3−Supplemental Declaration of Witold J. Walczak, # 4 Exhibit(s) Exhibit 4−Declaration of Thomas G. Wilkinson, # 5 Exhibit(s) Exhibit 5−Supplemental Declaration of Foster Maer, # 6 Exhibit(s) Declaration of Thomas B. Schmidt, III)(Jadwat, Omar) (Entered: 06/30/2014)
444 MOTION for Extension of Time to Extension of Time to Responded to Plaintiffs' Amended Petition for Attorneys' Fees and Costs by City of Hazleton.(Kobach, Kris) (Entered: 07/14/2014)
445 ORDER granting 444 Motion to Extend Time to respond to amended petition for atty fees− − response due 9/2/14Signed by Honorable James M. Munley on 7/18/14 (sm) (Entered: 07/18/2014)
446 MOTION for Extension of Time to to Respond to Petition for Attorneys' Fees by City of Hazleton.(Kobach, Kris) (Entered: 08/31/2014)
447 BRIEF IN OPPOSITION re 446 MOTION for Extension of Time to to Respond to Petition for Attorneys' Fees filed by Casa Dominicana of Hazleton, Inc., Jane Doe, 2, Jane Doe, 3, Jane Doe, 1, John Doe, 1, John Doe, 3, John Doe, 2, John Doe, 4, Jane Doe 5, John Doe 7, Hazleton Hispanic Business Association, Humberto Hernandez, Jose Luis Lechuga, Rosa Lechuga, Pedro Lozano, Brenda Lee Mieles, Pennsylvania Statewide Latino Coalition.(Jadwat, Omar) (Entered: 09/02/2014)
448 ORDER granting 446 Motion to Extend Time to respond to motion for atty fees− response due 10/24/14.Signed by Honorable James M. Munley on 9/2/14 (sm) (Entered: 09/02/2014)
449 Joint MOTION for Extension of Time to Responded to Plaintiffs' Amended Petition for Attorneys' Fees and Costs by City of Hazleton.(Kobach, Kris) (Entered: 10/23/2014)
450 ORDER granting 449 Motion to Extend Time ro respond to petition for atty fees.− response due 11/21/14.Signed by Honorable James M. Munley on 10/24/14 (sm) (Entered: 10/24/2014)
451 MOTION to Withdraw as Attorney by City of Hazleton.(Maresca, Carla) (Entered: 10/24/2014)
452 MOTION to Withdraw as Attorney Andrew B. Adair, Esquire by City of Hazleton.(Adair, Andrew) (Entered: 10/24/2014)
453 Joint MOTION Referral to Chief Magistrate Judge for Mediation by Casa Dominicana of Hazleton, Inc., Jane Doe, 2, Jane Doe, 3, Jane Doe, 1, John Doe, 1, John Doe, 3, John Doe, 2, John Doe, 4, Jane Doe 5, John Doe 7, Hazleton Hispanic Business Association, Humberto Hernandez, Jose Luis Lechuga, Rosa Lechuga, Pedro Lozano, Brenda Lee Mieles, Pennsylvania Statewide Latino Coalition.(Jadwat, Omar) (Entered: 11/26/2014)
454 ORDER REFERRING CASE for Settlement to Chief Magistrate Judge Martin C. Carlson., for mediation/settlement re pending petition for atty fees: Signed by Honorable James M. Munley on 12/1/14. (sm) (Entered: 12/01/2014)
455 SCHEDULING ORDER: A Settlement Conference is set for 1/21/2015 at 1:00 PM in Harrisburg before Magistrate Judge Martin C. Carlson. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on December

Case: 3:06-cv-1586 As of: 10/01/2018 10:33 AM EDT 56 of 56

03/04/2015 03/18/2015
10/06/2015 10/06/2015 01/04/2016

8, 2014. (kjn) (Entered: 12/08/2014)
457 BRIEF IN OPPOSITION re 443 Amended MOTION for Attorney Fees and Costs filed by City of Hazleton. (Attachments: # 1 Exhibit(s) City of Hazleton Audit 2013, # 2 Exhibit(s) City of Hazleton Audit 2012)(Kobach, Kris) (Entered: 03/04/2015)
458 REPLY BRIEF re 443 Amended MOTION for Attorney Fees and Costs filed by Casa Dominicana of Hazleton, Inc., Jane Doe, 2, Jane Doe, 3, Jane Doe, 1, John Doe, 1, John Doe, 3, John Doe, 2, John Doe, 4, Jane Doe 5, John Doe 7, Hazleton Hispanic Business Association, Humberto Hernandez, Jose Luis Lechuga, Rosa Lechuga, Pedro Lozano, Brenda Lee Mieles, Pennsylvania Statewide Latino Coalition. (Attachments: # 1 Affidavit Declaration, # 2 Exhibit(s) Exhibits to Declaration)(Jadwat, Omar) (Entered: 03/18/2015)
459 MEMORANDUM (Order to follow as separate docket entry) re Pltfs' Petitions for Atty Fees 416 443 .Signed by Honorable James M. Munley on 10/6/15. (Attachments: # 1 Appendix I, # 2 Appendix II)(sm) (Entered: 10/06/2015)
460 ORDER (memorandum filed previously as separate docket entry), GRANTING in part Pltfs' petition for attys' fees and costs; AWARDING total costs in the amount of $1,426,684.21S; Amounts will be due on January 15, 2016, and the parties are directed to attempt to devise a payment schedule in the meantime. Signed by Honorable James M. Munley on 10/6/15. (Attachments: # 1 Appendix I)(sm) (Entered: 10/06/2015)
461 SATISFACTION OF JUDGMENT entered In favor of Rosa Lechuga Against City of Hazleton, In favor of John Doe, 1 Against City of Hazleton, In favor of John Doe, 3 Against City of Hazleton, In favor of Pedro Lozano Against City of Hazleton, In favor of Casa Dominicana of Hazleton, Inc. Against City of Hazleton, In favor of Jose Luis Lechuga Against City of Hazleton, In favor of Hazleton Hispanic Business Association Against City of Hazleton, In favor of Pennsylvania Statewide Latino Coalition Against City of Hazleton, In favor of Jane Doe 5 Against City of Hazleton, In favor of John Doe 7 Against City of Hazleton by Casa Dominicana of Hazleton, Inc., Hazleton Hispanic Business Association, Humberto Hernandez, Jose Luis Lechuga, Rosa Lechuga, Pedro Lozano, Brenda Lee Mieles, Pennsylvania Statewide Latino Coalition. (Wilkinson, Thomas) (Entered: 01/04/2016)

 
 OlWlNANCE 2006-18 ILLEGAL IMMIGRATION RELIEF ACT ORDINANCE
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF HAZLETON AS FOLLOWS:
SECTION 1. TITLE
This chapter shall be lozow~za~zdlilay be cited as tlze "City of Hazleto~zIllegal Inznzigratiolz ReliefAct Ordinance. "
SECTION 2. FINDINGS AND DECLARATION OF PURPOSE
The People of tlze City of Hazletolz find and declare:
A. Tlmt state andfederal law reqzlire tlzat certain colzditions be met before a persolz nzajt be atrthorized to worlc or reside in this couiztiy.
B. Tlzat tazla~fil~l ~orlcenrrszd illegal aliens, as defi~zedbjt this ordinaizce and state andfederal law, do not izornzally lizeet such colzditio~lsas a matter of law ~ ~ l zpernesent in tlze City of Hazleton.
C. That tlrzlawjirl e~i~ploj~nzetlnzet,Izarboring of illegal aliens in d~jelliizgzrizits in the City ofHnzletolz, and crinze co~inilittedby illegal alielzs hanil tlze Aealtlz. safety and welfare of autlzorized US workers and legal residents in the City of Hazleton. Illegal i~izn~igratiole~azds to higlzer cri~izerates, subjects ozrr hospitals tofiscal Aardslzip and legal reside~ztsto szlbstaizdard quality of care. coiztiibzrtes to other bttrdeel~soil public seivices, i~zcreasi~ztlgzeir cost and dinzi~tishi~tllgzeir aitailabilit)~to legal reside~ztsa, nd di~iiiizishesour oilerall quali~ot f life.
D. That tlze City ofHazletoll is autlzorized to abatepublic nuisa~zcesaiid enzpowered and rizandated bjt tllepeople of Hazleton to abate the nztisance of illegal i~izinigr'atio~bjzt diligeizt~tprohibitiizgtlze acts andpolicies thatfacilitate illegal i~nmigr'atio~inz a nzaizizer colzsiste~zwt ithfederal law and tlze objectiites of collgress.
E. Tlzat United States Code Title 8, subsection 1324(a)(l)(A)prohibits tlze lzarboring of illegal aliens. Tlzeproi~isioizof housing to illegal aliens is a fuizdamental conzpoizerzt of harboring.
F. T/lis ordilzaizce seelcr to sectwe to tlzose lawfullypresent i~zt1ze United States and t11isCity, whetlzer or izot thejt are citizens of tlze United States, the riglzt to live in peacepee fianz tile tlzreat cri~net,o erzjoy tlzepltblic servicesprovided by tlzis city ~~itlzozbleting burdened by tlze cost ofprovidi~zggoodss.zqpovt and se~vicesto aliens la~la~filllypreseil~l ltltze United States, a~zdto befi-ee of tlze debilitating effects on their ecoizonzic and social well being ilizposed bjt tlle

inflzuc of illegal aliens to tlzefirllest extent that tlzese goals can be aclzieved consiste~zwt it11the Co~lstitutioraz ndLaws of tlze United States and tlze Coiiznzo~zwealtlzof Peni~sylvania.
G. Tlie City shall not construe this ordiria~lcetoprohibit t11erenderi~igof
elilergei2c)t nzedical care, emergency assistance, or legal assistance to aizj~ person.
SECTION 3. DEFEVITIONS
W7ze1zused in this cllaptel; thefollowing words, ternu a~zdphrasesliall have tlze nzea~zi~~gs ascribed to tliern herein, aild shall be corlstr~ledsoas to be coizsiste~itwitlz state andfederal law, ilicludi~zfgederal i~nnzigrationlaw:
A. "B~isilzesesntity" nzea~zsalzyperson or group ofpersoilsperfor~izi~zogr e~zgagiizgin ally activity, enterprise,professioi~,or occ~lpatiof~ozr gain, beliefit, adva~ztageo, r li~~elihoocwlh, etlzerfor profit or notforprofit.
(I) The tel-111btrsi~~eesnstity shall iizcltrde but not be li~~iitetodselfenzployed i~zdividlralsp,art~zerships,corporatio~lsc, ontractors, aizd s~rbcontractom.
(2;) The ten11b~isi~zeesnstity shall irlclude ary bzrsi~zessentity tlzatpossesses a b~rsil~esspernziatn, y busilzess e~ltitytlzat is exerlzpt by lanrfi.0111 obtair~i~szzgrch a bzrsiizesspernlit, and aiiy busirless entit)?that is operatilig u~ilawjilllywithozrt szlch a birsinesspeniiit.
B. "Cit~!"~izea~tihse City ofHazleto11.
C. "Contractor" nlealzs a pelsoiz, er~zployels;zrbco~ltractoror b~rsinessentity that enters into an agreenzent toperforr~zany seivice or work or to provide a certaiizprocltrct ill eschangefor ~~aluabcloei~sideratio~lT.his defiizitio~zshall i~lclzidebut not be liii~itedto a subco~ztractor;cofztractenzployee, or a reci-zritingor stafing entity.
D. "Illegal Alieri " lilearzs an alieri who is ~zotla~lfilllypresenitn tlze United States,
according to the ten~zsof U~zitedStates Code Title 8, sectio~zI101 et seq. The City shall not conclzrde tliat apersoil is an illegal alien zr~zlessaizd trlltil ail authorized represeiztntive of the City 11asverified wit11tlzefederal golIenlmelit, pulazrarzt to United States Code Title 8, slrbsectiolz 1373(c), that tlieperson is arz alien who is not lawfirllypresent ilz the United States.
E. "U~zlawfirl~~orlceirlz"ealls apersoil who does rzot have tlle legal right or azrtlzorizatio~tio ~ ~ o rdluce to an i~~zpedirizein~lat ~l)iprovisio~oflfederal, state or local law, inclzrdiizg but not liniited to a niiiior disqualified by nonage, or an

unautlzorized alien as defined bjr United States Code Title 8, s~rbsectio~~ 1324a(1)(3).
F. "Work" nzeans ~ I J JjoJ b, task, enzployii~entl,abol; personal seivices, or any otlzer activityfor which conzpensatio~zisprovided, expected, or due, i~zclzrdi~zg but not linzited to all activities conducted by busi~zessentities.
G. "Basic Pilot Progra~"l~lizeails tlze electronic verz~catio~ozf worlc authoiization program of tlze Illegal hiznzigration Reforriz aizdhiznzigratio~Rz espo~lsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, s~rbsection1324a, and operated bjj tlze United States Departn~entof Hoinela~zdSecurity (or a sticcessorprograln established by tlzefederal govemn~e~zt.)
SECTION 4. BUSmESS PERMITS, CONTRACTS, OR GRANTS
A. It is tri~lawfirfol r anjr bzisi~~eesnstity to recnrit, hirefor en~ployn~enotr, continue to enploj~o, r topernzit, dispatch, or irwti~lcat ~zypersonM J ~ iOs an u111a~fu~l~orlcteor perfornz M J Oi~~ zw~hole orpart witlii?~the City. Evely b ~ r s i ~ ~eelzstisty that appliesfor a buisi~zesspen~ztiot engage irl any type of work in the City shall sigiz ail afidavit, prepared by the City Solicitor, a f i n ~ z i ~th~atgtlzey do not lnlowi~zgluj~tilize t l ~seenrices or hire a1g1perso1zwlzo is an 11111a~f~ifvilolrlcer:
B. E~lforcenzei~tT: l ~He azleton Code E~zfolren~erOztfice shall elforce the requirements of tlzis sectio~z.
(I) A I e~~folrerizea~c~titon shall be initiated bjr means of a written signed c o n p l a i ~t~ottlze Hazleton Code Ellforcement Ofice submitted by any City oficial, btlsiizess entity, or City residetzt. A valid conzplai~zsthall inclzrde ail allegation M~llichdescribes the alleged violator(s) as well as the actio~is constituti~~tlgze violatio~a~n,d tlze date and location where sucl~actions occurred
(2) A co~~zplaiw~hzitch alleges a lriolatio~s~olely orprir~~ariolr1y tlze basis of national origin, etlz~~icitoyr, race shall be deenzed ini~alidand shall not be enforced.
(3) Upo~zreceipt of a valid conzplai~~tht,e Hazletoi~Code E~lforcenzelzOt fice shall, wit11i11tlzree blrsi~zessdays, request identity i1lfor7nationfi.0112 the b~rsiizessentii)~regarding alzypersorzs alleged to be tnzla~fi1w1orlcers. Tlze Hazleto~zCode E~lforcenze~O~fitce shall s~ispe~zthde b1isi1zessper11ziotf a~zjr busitless entit)?whichfails, wit11i1ltllree busi~zessdajts after receipt of the request, toprovide strclz i~lfornzatio~II~I.i~~sta~zlcu1e1serean tn~lawfidworker is alleged to be an unatrtlzorized alien, as defined in United States Code Title 8, szrbsectio~z1324a(l1)(3),the Hazleto~zCode Eilforcen~eiztOfice shall s~rbnzit identiqr data required by thefederal gover~zme~tzot verifi,pursuant to United

States Code Title 8, sectiarz 1373, tlze inmigration statzrs of stlchperso~z(s), and shallprovide tlze bzrsiness erztity wit11wriffe~czonfirnzatioiz of that iw?jicatio~z.
(4) llze Hazleto~zCode Enforcenzent Ofice shall sztspe~zdthe bzrsi~lespserr~litof any bzlsilzess entity wlliclzfails to correct a violatio~zof tlzis section within three bzrsirless dajt~after ~zotifcatio~ozf the violation bjt the Hazleton Code E~iforcenzentOfice.
(5) T l ~He azleton Code E~forcenle~Oltfice slzall not szrsperld tile bzrsi~zespsennit of a bzlsilzess erztigi $prior to the date of t11eiliolation, tlze bzrsi~lesseiltity Rad ilerified tlze worlc alttl~orizationof the alleged zmla~fir~l ~orlcer(isr)si~zgtlze Basic Pilot Progranz.
(6) Tlze szisperlsiolz sl~allter~~zinaotene bzwilzess day after a legal representative of the bzlsiness entity sub~~zitast, a City ofice designated by tlze City Solicitor, a S W O I ~aZfidavit stating that the violation has ended
(a) Tile afidavit shall i~zclzldea description of the specific nzeasures and actio~lstalcen by tlte business e~ztioto end the i~iolatio~azi,ld shall i~zcludet11enanle, address and otl~eradequate ide~ztfii~iz1g2fDn1zatiorz of the lr~zlawfilwl orlcew related to tlze conlplailzt.
(b) Where two or 11zoreof the zr~zla~fi~r~l orlcee1w5ere verified bjt tlzefederal go~~ernnzetnot be unautlzorized aliens, tlze legal representative of the bzrsilzess eiltity shall szrbmit to the Hazleton Code Elforcenle~~Otfice, in additiolz to theprescribed afidavit, doclu~ze~ztatioancceptable to t l ~ e Cit)S~olicitor 1vIzich co~~firlltzhsat the business eittity has enrolled in and willparticipate in the Basic Pilot Progranz for the dzrratiorz of tlie 1~alidiQo1f the bzrsi~zessperllzigt ranted to tlze bzrsilless e~~tity.
(7) For a seco~ldor szlbsequent violation, t1ze Hazleton Code E~forcenzeO~~fitce shall slrspelld tlze busi~zesspe~~ozf iat bzrsiness entityfor a period of twenty days. After tile end oftlze szrspensia~p~eriod, and zlpo~zreceipt of t11e prescribed afidai~itt,ile Hazleton Code Elforcen~entOfice slzall reillstate the bzrsi~lespsernzit. Tlze Hazletoil Code E~lforcer?zelzOt fice s11allfo~wardthe afidailit, conzplaint, and associated doczrnzerzts to tlze appropriatefederal elforcenze~ztagency,pzlrszralzt to U~zitedStates Code Title 8, sectiolz 1373. IIZ the case of a11unlawfid worlcer disqualified by state law not related to i~~lnzigratioitlzz,e Hazleton Code E~forcenze~Oltfice shallforward the afidailit, conzplaint, and associated docunze~ztsto tlze appropriate state e~lforcenze~azgt ency.
C. All agencies of the City shall erzrall andparticipate in the Basic Pilot Program.

D. As a coizditioizfor tlze award of any City co~ztracot r grant to a bzrsirzess entityfor which tlze value of enzplo)~nze~lzat,bor or; personal services sliall exceed $10,000, tlie blrsilzess entity shallprovide docunze~ztotiolcioi$r~lzi~iigts e~zroll~nea~nldt participatio~zi~ztlze Basic Pilot Progranz.
E. Private Cazrse of Actionfor U~fairlDj~iscl~argedEnzployees
(I) Tlze discharge of any e~nployeewho is not an lazlawftrl worlcer by a bzrsi~zess
entity i~ztlze City is an unfair btrsi~lesspracticeif; 011 the date of tlze discharge,
tlze btrsi~zessentity was ilotparticipati~zgin tlze Basic Pilotprogram and tlze blrsi~lessentity was e~nployi~aign unlawfirl worlcee
(2;) Tlie discharged worlcer shall have aprivate cazrse of action against tlze busilzess entityfor the zr~fairbtlsiizesspractice. The btrsiness entityfotllzd to have violated tliis strbsectio11slzall be liable to the aggrieved enzployeefor:
(a) tlzree ti~lzestlze actual da~lzageszrstai~zedby the enzployee, i~zcl~rdi~~g but not li~liitedto lost wages or co1~1pe~zsatio1zfjtohne2date of tlze discl~argeuntil the date the einployee hasprocured new enlploynzent at an equivalelzt rate of conzpelzsatio~zz,ip to apeviod of one lluridred and twlelzty days; atid
(b) reasonable attorney's fees and costs.
SECTION 5. HARBORING ILLEGAL ALIENS
A. It is urllawfirlfor ariypersolz or blrsiiless entity that owrzs a dwelling lr~iiit~ztlze City to harbor an illegal alien in tlze dwelling zozit, lnzowi~zgor in reclcless disregard of the fact tliat an alien has conze to, entered, or remairis in tlze United States in violatioli of law, zozless szrch harborirzg is otlzeiwise expresslypernlitted byfederal law.
(I) Fo?.tliepzrlposes of tlzis sectiolz, to let, lease, or re~zat dwelling inzit to an illegal alien, l n i o ~ ~oir~in~rgeckless disregard of tlzefact tlzat an alien has conze to, entered, or renzai~zsill the U~iitedStates in violatio~zof law, shall be deenied to co~istituteharboring. To szrffer orpernzit tlze occlrpaizcy of tlze dwelling zr~iitby ail illegal alien, lniowi~lgor ill reckless disregard of thefact that a11alien has conze to, e~zteredor renzailw ill tlze U~zitedStates in violati011 of law, shall also be deenled to constitute harboring.
(2) A separate violation shall be deenzed to Rave been coninzitted on each day that strch harbori~zgoccurs, andfor eaclz arltrlt illegal alien harbored in the dwelli~zgtriiit, begiizlzing oize bzrsi~lessday after receipt of a rzotice of violati011 f j o n ~tlze Hazleton Code E~forcenzentOfice.
(3) A separate violatio~zof this sectio~zshall be deenzed to have been conu~zittedfor each busilzess daj~on which tlie o~lrzefrails toprovide tlze Hazleton Code

E~lfolrer,zentOfice wit11ide~ztitydata needed to obtain afederal verification of inznzigr-ationstattrs, begi~zningthree days after tlze owlzer receives written ~zoticefiomtlze Hazleton Code E~forcenzentOfjice.
B. E~iforcement:Tlze Hazleto~zCode E~ljbrcenze~Oztfice slzall enforce tlze requiremerits of this section.
(I) A11 e~lforcenzelzatctio~zshall be initiated bji nzealzs of a written signed coilzplaint to tlze Hazleto~zCode E~lforceme~Oltfice szib~lzittedby any ofjicial, blrsiizess entity, or residenf of the Cit)~A. ilalid co~lzplai~szhtall ilzchide an allegation wliich describes the alleged violator(s) as well as tlze actioizs constitutilzg the violatio~za, nd tlle date and locatio~zwlzere such actions occta-red
(2) A conlplai~zwt lziclz alleges a violation solel~rorprinzarily on tlze basis of national origin, etlznicity, or race slzall be deented invalid and shall not be ellforced
(3) Upon receipt of a i~alidwritten conzplai~ltt,lze Hazletolz Code E~llforcenzent Ofice shall,pursuant to United States Code Title 8, sectioiz 1373(c), verzfi with tlzefederal governnzelzt tlze in~nligratio~stzatus of a pelson seeking to toe, occ~rpyl,ease, or rent a du~ellingzntit in tlie Cit)~.Tlie Hazleto~iCode E~tforcementOfice shall subnzit identity data required by thefederal goiJernnzelztto verzfi inznzigratio~zstatus. Tlze City shallfol-~jardidentity data proi~idedby tlze owner to tilefederal goverlzlllelzt, and shallproi~idetlze property owner with written co17fimliationof tliat i~erificatiorz.
(4) Ifafterfive blisi~zessdajlsfollowi~zgreceipt of written tzoticefi.0111 the City that a ijiolatio~zlias occtirred and tlzat the inznzigratioizstatus of anj~alleged illegal alien has bee11verified,ptirstraizt to United States Code Title 8, sectio~z 1373(c), tlze owner of t l ~ dewelli1zg icnitfails to correct a violatio~lof this sectio~zt,lze Hazleton Code Ellforceme~~Otfice shall deny or suspend tlze rental lice17seof tlze dwelling unit.
(5) For tl~eperiodof szrspeiision, t l ~ eowner of tlze dwelling zrizit slzall not be per~ltittedto collect any rent,pajinzent,fee, or ally otlzerfor111 of co~~lpe~lsatio~l fionz, or on behalfof; any terza~zot r occtpalzt in t1ze dwelli~tglazit.
(6) Tlze denial or szispe~zsio~shzall terminate one busi~lessday after a legal representative of tlze d~~ellilzug~ziot wnerslrb~~littos the Hazleton Code E~lforcenzentOfjice a sworn afidavit stati~zgtlzat each and eve?>v)iolation has e~zdedTlze afidavit shall i~iclzidea description of tlze speczfic nzeasures and actions talcen b j ~the blrsirzess entity to elid tlie violatio~za, nd shall ilzclzide tlze Izanle, address and otlzer adeqtmte ide~ztifyi~il~gfor~nntifoonr tlze illegal aliens who were t11esubject of the conzplaint.

(7) llze Hazletoiz Code Eilforcenzeizt Ofice shallfoiward the afidavit, coiizplaint, and associated docuilzeizts to tlze appropriatefederal eiforcenzent ageizcjr,
pzrrszmnt to Uizited States Code Title 8, sectiaiz 1373.

(8) Aizy d~!elliizgunit owner who conznzits a second or strbseqzrent violation of this sectioiz shall be subject to afiize of two lnazdred aizdfifgr dollars ($250)for
each separate violation. Tlze suspeizsiolz provisiolzs of tlzis sectioiz applicable to
a p s t violatiolz shall also apply.

(9) Upoiz tlze request o f a dwellii~gzrlzit owrzet; tlze Hazletolz Cocle Ellforcenzelzt Ofice shall, pzllszialzt to United States Code Title 8, sectioiz 1373(c), verify witlz tlzefedemlgovenzn~enthe lawfill inzinigratiolz stat~rsof aperson seekilzg to use, occzlpjr, lease, or rent a dwellillg tinit iiz tlze City. Tl~epei~altiiens this sectioiz shall not apply in t11ecase of dwelliilg ziizit occzpai~ts~lltosestatzis as aiz alieiz lawfirllypreseizt i i ~t1ze Uizited States 11asbeer1 verified.

SECTION 6. CONSTRUCTIONAhD SEVERABILITY

A. Tlze requirei?zeiztsand obligatiolzs of this section slzall be inzplelizeizted iiz a nalzner fully colzsister~wt it11federal in141iegzllati~zgiiiz~nigrationat~rlprotectiizgtlze civil riglzts of all citizeizs oizd aliens.

B. Ifallypart ofprovisioiz of tlzis Clzapter is in coizj'7ict or iizcolzsistent with applicable ~rovisionso f federal or state statutes. or is otheiwise held to be iizi!alidor
2,
trlzeilforceable bjl any court of conzpeteiztjzrrisdictioiz, szrch part ofprovision shall be
suspended and szlperseded by such applicable laws or re-,qilatiol~s,and the renzainder of illis Clzapter siall not be affected %ereby.
~1 ORDAINED by Colrncil this 12"' day ofSeptembel; 2006,

~

/s/ Joseplr Ynrrrrzreei, Courrcil Presiderrt

I, Lisa A. Slzema, Cozlizcil Clerlcof the City of Hazletoiz, do herebjr certify that tlzis is a tnle and correct copy of Ordinarzce 2006-18, wlzich was adopted bjr Cigr Cotrlzcil oil the 12'" day of Septeinbe~;2006.
Giver]under i11y hand and tlze Seal oftlze City ofHazleto11, Cotrlzty oflzrzerrze, Comnzol~wealtloz fPeizizsylvalzia, this 11'" dajr of October, 2006.

ORDINANCE 2006-19 OFFICIAL ENGLISH ORDINANCE
IIIBE IT OORAINED BY THE COUNCIL OF THE CITY OF HAZLETONAS FOLLOWS:
(SECTION1. TITLE
II This chapter shall be I ~ ~ O MaJnI dZ nlay be cited as the "City ofHaz1et01O~ ficial E~iglislz Ordi~zance" .
I SECTION 2. FINDINGS AND DECLARATION OF PURPOSE
I I The People of the City of Hazleto~fzind and declare: A. Tlzat tlze E~zglishlaizguage is the conznzoiz laizgmage of the Cit)o~f Hazleton, of tlze Coinnzo~z~~eaoltfIPz e~z~zs)rh~aanniad of tlze United States.
B. Tlzat tlze use of a co~zzrizo~iaz~zgzlageremoves barriers of nrisz~zderstandigand helps to unzfi tlzepeople of Ciiy ofHazleto~zt,lze Conzn~on~~eoafltl~ Pelznsyh~ania,and the U~zitedStates, and helps to erzable tlrefrlll ecorzonlicand civicparticipation of all its citizens, regardless of rzatiorzal origin, creed, race or other characteristics, aild tlilus a coilzpelli~zggovenri~rerrtalirzterest exists in promoting, presen~ing,arzd strengthe~li~th~eguse of the E~zglisAla~lguage.
C. Tl~atproficiencyin the English language, as well as irz la~zgcmagesotlrer tl~arz the English la~zguageb, enefits the Cily of Hazleto~zbotlz econonricallya~zd czmltz~mllyand shotlld be erzcouraged
D. That, in additio~zto any other wajis topronzoteproficiei~cyiiz the English la~zgzmget,lie govenlnzent of tile City ofHazleto~zcanpronzoteproficie~zcyin English by zlsiizg the E~~llglisllaz~zguagein its oficial actioils and activities.
E. That in today's nzodenz societ)~t,ile Cit)o~f Hazleto~znzay also need toprotect andpresen~ethe riglzts of tl~oset ~ ~ shpoealc only the English language to use or obtain govenznze~ztalpragra~a~n~dsbenefits.
F. That the goverwzent of the City of Hazleto~ca~r1 reduce costs a~zdpro~~lote eficie~zcyin its roles as en~ploj~aenrd as a gover~znle~oztf tl~epeopleb, y rrsirlg
I/ the English la~~gzlagineits oficial actioizs and activities. SECTION 3. OFFICIAL ENGLISHDECLAR4TION

B. Tlze City Cozrircil,Mayo?;and ofjicials of tlte City of Hazleton shall take all steps necessary to iillstcre tlzat the role ofEnglish as tlze c o m m o ~la~~rgxiageof tlre City of Hazleton ispreserved and elzha~lced.
C. Tlze goverlznzent City of Hazletolr shall ~~zalcrezopolicy that dilizinislzes or ignores tlze role of Englislr as tile cotil~llol~atzgziage of tlie City of Hazleton.
D. Official actions of the City of Hazleton that bind or conznzit tile City of Hazleton or that give tlze appearance ofpresellti~zgtlze oficial views orpositioir of tlze City of Hazleton shall be taken in the English langxage, arrd in no other language. Unofficial or non-binding tra~~slationors explanations of oficial actio~zsnlay be provided separatelj]in lallgzcages other tlialz E~lglisli,ifthey are appropriately labeled as szich and reference is nrade to a nzetl~odto obtai~rthe oficial action; tiirless othelwise requilYed~ JfeIderal law or tlze law of the Comnio~zwealtlrof Peilnsylvarzia, iloperso~z
.., has a ri.~. lzto such an trirofficialor tzon-biildi~-rgt.rarlslatiolz or explanation, and no
liabilit)~or contnzitnzent of tlie City of Hazletoiz shall be based on szlch a trallslation or expla?lation.
E. No ordinance, decree,progravz, orpolicy of tlie City of Hazleton or any of its subdii~isionsshall require the zise of any lallguage otlrer t11anE~zglishfor any doczcnrents, regrrlations, orders, h.a~lsactio?zps,roceedings, nleeti~rgsp,rogranzs, or publicatiolls, except as provided ill Sectiorl4.
F. A person who spealm o n l ~th~e English langxcagesl~albl e eligible toparticipate in all progranzs, benefits and opportrcnities,i~rclrldinge~t~ploy~yllp~reo~vildt,ed by the City of Hazletolr and its srrbdii~isio~zesx,cept ~ ~ l zreenquired to spealc atzotlier la~iguageas provided in Section 4.
G. No law, ordi~la~zcdee,cree,progranl, orpolicy of the City of Hazleto~zor any of its stibdivisioils shall pe~zalizeor inlpair the riglzts, obligatio~isor opporttr~~itiaevsailable to anyperson solely because apersolr speaka o~llytlte English language.
SECTION 4. EXCEPTIONS
Tile City of Hazleto~rand its szcbdiilisions nzay ztse a la~zgzcageot7rer than Englislzfor any of tlrefollowi~zgpzirposes,~~lletheolr-not tlte tise would be consideredpart of a11ofjicial action:
A. To teach or encourage t11eleariri~lgof languages otkzer tlmn Eizglislr.
B. Toprotect tlzepublic lzealtlz or safety.
C. To teach E~rglishto tliose w11oare rrotflue~rtin tlie lalrgzcage.
D. To conlply wit11tihe Native Altlericalr Lalrgzrages Act, tile Individuals with Disabilities Edtccatioir Act, tlze VotingRiglits Act, or n l z ~ot~llerfederal law or law of tlze Conlnio~rl~~eaoltflzPenizsjllvania.

E. Toprotect the riglzts of cri~lzi~zadel felzdants and victirns of crime.

I I

F. Topronzote trade, conrnterce, and tourisnt.

G. To create orpronzote nzottos or designations, ir~scribepziblicnzontalzerzts, and

pe~forntotlrer acts ilzvolvii~gtl7e czistoma~yzise of a la~zgziageother tliafz

English.

I I

H. To utilize ternzs of art or ternzs orp/zrasesfi.onz ot/zer larzgimages i~)Izielazre conzntonlj~zised in conznzrcfricatiofzsothe~wiseiiz English.

SECTION 5. P R N A T E USE PROTECTED

The declaration and use of Elzglish as the official la~zgiageof the City of Hazletoiz shotlld not be co~tsh-nedas i~lfi.ilzgi'~zrpg011 tlze rigltts of a~zjrpersonto use a lalrgzlage other tltalz English inprivate con~nttrlzicatio~otsr actions, i~rclzldi~rtlgze riglrt of govenzme~ztofficials (ilzclzldi~zg elected officials) to conznzzilzicate with otlzers while izotpe1for~ol.1,rilzogfficial actioits of tlze City of Hazletolz.
I/ SECTION 6. INTERPRETATION

Nothing in this ordina~tceshall be interpreted as co~zjlictirzgiuitlz the statutes of t/re Uizited States, or the laws of the Co~~zmoizwealothf Pennsyh~ania.
I I SECTION 7. SE WRABILITY Ifany part orprovision of tlzis Cltaptel: or tlte applicability of a~zyprovisio~tot anyperson or ci~ct~llzsta~zicseI,teld to be i~tvalidbjr a cozat of collpetentjrrrisdiction. tlze renzainder of tlzis Clzapter shall not be affected thelaby and slzall be given effect to tltefilllest exte~~tpracticable.

ORDARVED by Council this 12'" day of Septembei; 2006.

/s/JosepB Yannazzi, Courrcil President

I, Lisa A. Slieina, CoufzcilClerlc of tlze City of Hazleton, do hereby certzfi tlzat tlris is a b v e a~zdcorrect copy of Ordinance 2006-19, which was adopted by City Cou~zciolrr tlie 12'" day of Septentbel; 2006.
Given tilzder nzjr hand and the Seal of the City of Hazleton, Cozilzty of Lzrzel-ne, syl~~nrrita/r, is 11'" day ofOctober, 2006.

 
 EXHIBIT B

--MEMORANDUM

November 10,2006

TO:

Business License Division

FROM:

Clay Phillips, City

SUBJECT: Ordimce 2006-38 R

I. Interpretation of l6(E)-l(a) (ProspectiveOnlyl:
This Ordinance shall be applied only to leases and rental agreemenl entered into after the effective date of the Ordinance. The language in Section 16E-l(a) which defines harboring to mean "to let, lease or rent a dwelling unit" to an illegal alien shall mean to create a new tenancy by either entering into a new lease or renewing an existing lease. A dwelling unit owner shall not be deemed to "suffer or permit the occupancy of a dwelling unit" by an illegal alien where such occupancy occurs as a result of a lease or rentaI agreement entered into prior to the effective date of this ordinance. The renewal of month-to-month teases or other types of tenancy which automatically renew absent notice by either Party will not be considered as entering into a new lease or renewing a lease.
II. Su@ Harbor
Dwelfing unit owners are encouraged to utilize the "safe harbor" of Section 16E-2(i). Under this section, the dwelling unit owner can ask the City to contact the federal government and verify the la* immigration status of the potential tenant using the Systemic Alien Verificafion for Entitlements (SAVE) as described in Attachment 1 or other equivalent system of the federat govenunent. There can be no violation of the ordinance where the dwelling unit owner has utilized the provisions of Section 16E-2(i) , and confirmedthat the potential tenant i s lawfully present in the United States. If the dwelling unit owner does not verifyprior to leasing, the dwelling unit owner may be at risk under the ordinance.
111. Investigating CumpIaints:
The City shall require ail complaints initiated under Section 16E-2(a) to be signed by the complainant, The City shall review the complaint and only if there are reasonable grounds for fkther inquiry mill the City proceed with its investigation. In making this determination the City shall be specifically mindful of the requirement of Section 16E-

FWO4 (Rev. 7/03)

Memorandum Re Ordinance 2006-38 R November 9,2006 Page 2
2(b) that a complaint which allegesa violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid,
N. VeriJ;cationof Lawful Immigration Status
In determining that there are reasonable grounds to verify an individual's lawful immigration status, the City shall contact the dweilii unit owner of the dwelling unit to obtain identity data. The data requested will be that required by the federal verification system (e.g., Systematic Alien Verification for Entitlements (SAVE) as described in Attachment 1.) The City shall take no M e r action on the complaint until a response concerning the immigration status is received from the federal government. If for some reason, the federal government is unable to determine concfusiveIy whether an alien is unlawfUlIy present in the United States, the City shall take no fufther action and the laadIord shall not be deemed to be in violation of the ordinance. At no point shall any City official attempt to make an independent determination of any alien's status, without federal verification. The City shall not apply this Ordinance in any manner that e a t e s federal immigration law, paaicularly with respect to aliens who are in the process of obtaining legai status.
V. Correction of Yio6ation
Within 10 days after notice by the City that one of its dwelling units is being occupied by a tenant who is not lawfullypresent in the United States, the dwellingunit owner must take one of the following ations:
(I) Upon obtaining additionaldata or information £iom the tenant relating to the tenant's immigration status,the dweEling unit owner may ask the City to resubmit the tenant's name to the federal verification system using the additional information
provided. Upon receipt of this additional data the City shdl resubmit the tenant's name through the federal verification system. While this second inquiry is pending the 10 day period set forth in Section 16E-2(d) shall not be deemed to have expired
and City shall take no M e r action until a response concerning the immigration status is received from the federal government.
(2) The dwelling unit owner notifies the City that the tenancy of the person who was not iawfidly present in the United States has been terminated. In such a situation the complaint shall be terminated and no fkrther action taken.
(3) The dwelling unit owner notifies the City that it has commenced steps under state or federal law to end the tenancy of the person who is not lawfUlly present in the United States. While the dwelling unit owner is diligently pursuing such remedies the

Memorandum Re Ordinance2006-38 R November 9,2006 Page 3
lOday period set forth in Section 16E-2(d)shall not be deemed to have expired. The dwelling unit owner should be aware that this orditlance does not change state or federal law, nor does it grant the landowner any additional rights or remedies regarding termination of tenancies which do not otherwise exist.
Ifa situationarises where the dwelling unit owner is not able to correct the violation and the10 days has expired, pursuant to Section 16E-2(d), the dwelling unit
owner loses its business license for the affected dwelling unit only. The fact that the dwelling unit owner has no business license shall not terminate the tenancy in that unit. However, pursuant to Section 16E-2(e), while its business license is suspended, the dwelling unit owner will be prohibited from receiving any payment or rent ffom
the tenant of that unit. 2
VI. Serbmiftalto State and Federal E ~ f o r c e ~ eAngtencies
The City shall only subnit Somation to state or federal enforcement agencies under the ordinance, including-submittalsunder Section 16E-2(g), pursuant to the authority of 8
U.S.C. 9 1373, atld shall not submit information in any manner which violates Section
1373.

EXHIBIT B-I

U.S. Immigration & Naturalization Service
Professionalism Through a TechnologicallyEmpowered Worh$orce.
EXHIBIT B-1

Systematic Alien Verificationfor Entitlements (SAVE) Program User Manual
Table of Contents
1. Introduction .................................................................................................... ..............1-1
2.1.1S.AVPEurPproosgeraamnd...S...c..o..p..e......................................................................................................................................................................................................12--11
2I. Background...................................................................................................2..-.1.... 2.2. SAVE Legal Basis ...........................................................................................2 - 1 2.3. Program Components........................................................................................2 - 3 2.4. SAVE Program Administration.......................................................................... 2-6 2.5. General Verification Procedures .......................................................................2 - 7 2.6. Legal Protection and Safeguards........................................................................2-7
3. Primary Verification Procedures ................................................................................... 3-1
3.1 . Background........................................................................................................ 3 - 1 3.2. General Verification Procedures .......................................................................3 - 1 3.3. Required Documentation................................................................................... 3 - 2 .3.4. Immediate SecondaryVerification...................................................................3 - 3 3.5. ASVI Access Methods .......................................................................................3-4
3.6. understanding ASVI Output Data..................:............................................3.. - 5
3.7. General Information .........................................................................................3..-9 3.8. ASVI Enrollment Process.................................................................................3 - 9 3.9. ASVI Billing Process ......................................................................................3-10
4. Secondary Verification Procedures .............................................................................. 4-1
4.1 . Background........................................................................................................4 - 1
4.2. Initiating Secondary Verification ........,..............................................................4-1
4.3. Obtaining SecondaryVerification..................................................................... 4 - 2 4.4. Attachments........................................................................................................4-2 4.5. Completing the document^Verification Request .............................................. 4 - 3 4.6. Completing the Document verification Request Supplement...........................4-5 4.7. Mailing Document Verification Requests.....................................................4 - 5
4 .'8. Obtaining Copies of the Document Verification Requests and Supplement .....4-6
4.9. Document Verification Request and Supplement Responses ............................ 4-6
4.1 0. Understanding the INS Response ..................................................................... 4 - 7 4.1 1. Delayed Replies................................................................................................4-11
4.1 2. INS Record Keeping........................................................................................ -4-12
i September 2000

SystematicAlien VeriJicationfor Entitlements (SAVE)Program UserManual
Appendix A: Sample Immigration Documents..................................................................... A-I Appendix 6: Glossary ............................................................................................................ B-I Appendix C: Hispanic Names ................................................................................................ C-I Appendix D: INS Office Locations ........................................................................................ D-I Appendix E: INS Office Addresses ....................................................................................... E-I Appendix F: Forms G845S, G845 and Supplement.......................................................... F-I Appendix G: INS Records Systems....................................................................................G-I Appendix H: Questions and Answers.................................................................................. H-1
11
September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program User Manual
I.Introduction
Section 121 of the Immigration Reform and Control Act of 1986 (IRCA), as amended by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWOM), requires verification of citizenship and immigration status of applicants applying for many federal, state, and local public benefits. Each applicant for benefits must declare in writing whether or not they are a citizen or national of the United States, and if not, that they are in a satisfactory immigration status.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires the Immigration and Naturalization Service (INS) to respond to inquiries by federal, state, and local benefit issuing agencies and institutions seeking to verify or determine the citizenship or immigration status of any individuals within the jurisdiction of the agency for any lawful purpose.
If an applicant or recipient for any of the benefits listed in IRCA, as amended, is not a U.S. citizen or national, they must provide the benefit provider with documentation from the INS that contains their Alien Registration Number (A-Number), or verbally provide information from such documentation, that provides reasonable evidence of his or her current immigration status. The INS verifies'the immigration status through automated and/or manual methods. The process of verification is known as the Systematic Alien Verification for Entitlements (SAVE) Program.
The INS is currently using the SAVE automated and manual verification processes to provide federal, state, and local benefit issuing agencies and institutions with information
which will assist them in determining an individual's eligibility under Title IV of
PRWORA.
1.1. Purpose and Scope
This manual describes the SAVE Program, including its legal basis, automated and manual verification processes, and administrative procedures. Chapter 2 gives general program guidelines and information on administration, and is ,designed for managers and supervisors at benefit issuing agencies and institutions. Chapter 3 provides a detailed overview of the primary verification process. Chapter 4 provides detailed instructions for performing secondary verification. This manual serves as both a training and reference guide for benefit providers and their managers.
1-1 September 2000

Systematic Alien Verz~katiofnor Entitlements (SAVE)Program User Manual
{Blank}
1-2 September 2000

Systematic Alien VeriJicationfor Entitlements

I
!

(SAVE)Program User Manual

2. SAVE Program
This chapter of the Systematic Alien Verification for Entitlements (SAVE) Program Manual describes the program and explains its legal basis and measures to safeguard the rights of naturalized citizens and non-citizens.
Any questions or comments regarding this chapter of the manual should be directed to the Immigration and Naturalization Service (INS) SAVE Program at (202) 514-2317.

2.I . Background
The SAVE Program is an intergovernmental information-sharing initiative designed to aid benefit providers in verifylng an applicant's immigration status, thereby ensuring that only entitled applicants receive public benefits. The INS SAVE Program provides an information service for benefit issuing agencies and institutions. The INS does not make determinations on any applicant's eligibility for a specific benefit.
The SAVE Program has been in operation since 1987. Significant costs in claims for unentitled non-citizens have been avoided through benefit issuing agencies and institutions' participation in the SAVE Program.

2.2. SA VELegal Basis
In 1986, Congress passed the Immigration Reform and Control Act of 1986 (IRCA), which required INS to establish a system for verifylng the immigration status of noncitizen applicants for, or recipients of, certain types of federally funded benefits, and to make the system available to federal, state, and local benefit issuing agencies and institutions that administer such benefits. The IRCA and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), mandates the following programs and overseeing agencies to participate in the verification of an applicant's immigration status: the Temporary Assistance to Needy Families (TAW) Program, the Medicaid Program, and certain Territorial Assistance Programs (U.S. Department of Health and Human Services); the Unemployment Compensation Program (U.S.
Department of Labor); Title IV Educational Assistance Programs (U.S. Department of
Education); and certain Housing Assistance Programs (U.S. Department of Housing and Urban Development).

2- 1 September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program User Manual
The PRWORA created a very complex set of eligibility requirements that cannot be easily summarized. These requirements continue to be regularly amended by Congress. The PRWORA did not affirmatively make any person eligible for any benefit. Rather, it placed a new set of limitations on non-citizen eligibility on top of any pre-existing program requirements (some of which may have limited non-citizen eligibility). With certain exceptions, PRWORA made non-citizens who are not qualified aliens ineligible for federal public benefits, and aliens who are not qualified aliens or lawful nonimmigrants or aliens paroled into the United States under Section 212(d)(5) of the INA for less than one year ineligible for state or local public benefits. There are also limitations on the eligibility of qualified aliens for benefits, again with exceptions. The PRWORA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Balanced Budget Act of 1997 (BBA), defines a "qualified alien" as:
An alien who is lawfully admitted for permanent residence under the Immigration and Nationality Act (INA) An alien who is granted asylum under Section 208 of the INA A refugee who is admitted to the United States under Section 207 of the INA An alien who is paroled into the United States under Section 212(d)(5) of the INA for a period of at least one year An alien whose deportation is being withheld under Section 2 4 3 0 of the INA (as in effect prior to April 1, 1997) or whose removal has been withheld under Section 241(b)(3) An alien who is granted conditional entry pursuant to Section 203(a)(7) of the INA as in effect prior to April 1, 1980 An alien who is a CubadHaitian Entrant as defined by Section 501(e) of the Refugee Education Assistance Act of 1980 Certain aliens who have been battered or subjected to extreme cruelty as defined in USC Section 1641 (c)
The PRWORA restrictions do not apply to all federal, state, and locally funded activities or programs; they apply only to non-exempted "federal public benefits" and "state and local public benefits." Therefore, benefit providers should first determine whether the particular program they administer is providing a "federal public benefit" or a "state and local public benefit" for which Title IV of PRWORA or other applied laws require alien eligibility. For example, emergency medical care and certain forms of disaster relief are exempt, as are other key benefits. If an agency requires further assistance in determining whether a specific benefit it administers is a federal, state, or local public benefit, it should contact the overseeing federal, state, or local Government agency, as that agency would be in the best position to make that determination.
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SystematicAlien Verificationfor Entitlements (SAVE)Program UserManual
The PRWORA defines "federal public benefit" as:
Any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States. - AND Any retirement, welfare, disability, public or assisted housing, post-secondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States.
The PRWORA's definition of "state and local public benefityyparallels the definition of federal public benefit, except that it substitutes "state or local government" for "the United States." State or local public benefits do not include federal public benefits; therefore, a benefit cannot meet both definitions. If a benefit qualifies as a "federal public benefit," it is not a "state or local public benefit" regardless of whether state or local funding is also involved.
The IIRIRA requires INS to respond to inquiries by federal, state, and local benefit issuing agencies and institutions seeking to verify or determine the citizenship or immigration status of any individual within the jurisdiction of the agency for any lawful purpose. The INS is currently using the SAVE Program's automated and manual verification processes to provide federal, state, and local benefit issuing agencies and institutions with information which will assist them in determining an individual's eligibility under Title IV of PRWORA.
2.3. Program Components
As mandated by IRCA, INS developed an effective, secure, and cost effective method of verification. The SAVE Program relies on the Alien Status Verification Index (ASVI) database, which contains information on more than 60 million non-citizens. When accessed by the user, ASVI responds within 3 to 5 seconds of the query. The ASVI database is housed and maintained under contract with Lockheed Martin Integrated Business Solutions (LMIBS).
2-3 September 2000

Systematic Alien VeriJcationfor Entitlements (SAVE) Program User Manual
The automated process is known as the "primary verification." The following flow chart, Figure 2-1 shows the Primary Verification Process. ,
Figure 2-1: Primary Verification Process
PRIMARY VERIFICATION PROCESS

Non-citizen submits application to Benefit
Issuing Agency

PRIMARY VERIFICATION Status Review and ASVI Query

SECONDARY VERIFICATION
Benefit Issuing Agency institutes secondary verification process by submitting completed Document Verification Request, Form G-845, with a photocopy of supporting documentation or by submitting additional information electronically to appropriate INS field office for
thorough search of other INS automated and manual data sources

INS either completes Form G-845 or an electronic
response and replies to Benefit Issuing Agency

I I

YES

NO

I I

I I I I In most cases, Benefit Issuing Agencies that use primary verification will query ASVI before instituting secondary verification.

In addition, SAVE verification is available through secondary verification if the use of ASVI is not cost-effective. The SAVE Program also requires participating benefit issuing agencies and institutions to use secondary verification when directed by an ASVI system message during primary verification, or when the primary check or initial inspection of a non-citizen's immigration documentation reveals material discrepancies

2-4 September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE) Program User Manual
or when verification of a naturalized citizen is required. See Figure 2-2 for a flow chart on the Secondary Verification Process.
Figure 2-2: Secondary Verification Process
SECONDARY VERIFICATION PROCESS

Benefit Issuing Agency institutes secondary verification process by submitting completed Document Verification Request, Form
G-845, with a photocopy of supporting documentation or by submitting additional information electronically to appropriate INS field office for thorough search of other INS automated and
manual data sources

Determination as to Applicant's Eligibility for Benefit

YES

NO

Agencies that do not access ASVI will proceed directly to the secondary verzjkation process.

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Systematic Alien Verzjkationfor Entitlements (SAVE)Program User Manual
2.4. SA VE Program Administration
The SAVE Program is administered at the INS Headquarters Office in Washington, DC, by the Office of Files and Forms Management, SAVE Program. User agencies and institutions may contact INS SAVE Program staff at (202) 514-2317. The Data Systems Division of the INS Office of Information Resources Management has responsibility for providing technical support to the SAVE Program. The SAVE Program also provides policy and guidance relating to the seconday verification process to INS field offices. The INS Headquarters Office of Field Operations, Regional and District Offices, and Suboffices have operational responsibility for carrying out policy and guidance provided by the SAVE Program. Figure 2-3 is the INS organization chart as it relates to the SAVE Program.
Figure 2-3: INS SAVE Program Organizational Chart

INS Commissioner

Executive Associate Commissioner for

I I Executive Associate
Commissioner for
Management

- Coordination and liaison
with field Immigration Status Verifiers (ISVs)

b Management

Information Resources Management

I I

I - Liaison with benefit issuing agencies and institutions

District Offices and

SAVE program

- Program resp'onsibility

Data Systems

I - Program development
- Primary verification

Division
I I - Primary database

policy and procedures

- Technical system

I

Suboffices - Secondary.Verification

- Secondary verification
policy and procedures

I development and maintenance

I

-,Liaisonwith federal,

- Contracting Officer's

- Coordination and liaison

state, and local benefit

Technical

with counterparts in

issuing agencies and

Representative (COTR)

benefit issuing agencies

institutions

and institutions

I L - Update of records

2-6 September 2000

Systematic Alien Verificationfor Entitlements (SAVE)Program User Manual

Although IRCA, as amended by PRWORA, mandates only federal public benefit programs to participate in SAVE, any federal, state, or local benefit issuing agency or institution, or licensing issuing bureau that requires verification of a non-citizen's immigration status may inquire about participation by contacting the INS SAVE Program at (202) 514-2317.

2.5. General VerificationProcedures
At the time of application, all individuals applying for public benefits listed in IRCA and PRWORA, are required to declare in writing, under penalty of perjury, whether they are a United States citizen or a United States non-citizen national, or that they are in a satisfactory immigration status. If an applicant claims to have a satisfactory immigration status, they must present immigration documentation that the federal benefit provider is required to verify with INS, or that the state and local benefit provider can opt to verify with INS, via automated access to ASVI or through manual submission of a Document Verification Request, or both.
Detailed instructions for the primary and secondary verification processes are located in Chapters 3 and 4, respectively.

2.6. Legal Protection and Safeguards

Determination of Benefits

Award or denial of a benefit based on immigration status and the establishment of a fair hearing process are the responsibilities of the benefit issuing agency or institution. The benefit issuing agency or institution will obtain INS verification of immigration status, and determine whether or not the non-citizen is eligible for a benefit according to its own regulations.

Fair Hearing

Each benefit issuing agency or institution will maintain its own fair hearing and appeals process for individuals who have been denied benefits. The INS will provide the appropriate immigration technical consultation and witness support necessary to the agency or institution during the fair hearing process on a prearranged and approved basis. The INS should be consulted well before the hearing is scheduled to resolve any problems, such as data discrepancies or misunderstandings that might have led to the denial.

Nondiscrimination

Various Federal civil rights laws and regulations prohibit discrimination by governmental and private entities on the basis of race, color, national origin, gender, religion, age, and disability. Thus in operating or participating in a federally assisted program and implementing the requirements of the INA, as amended by

2-7 September 2000

Systematic Alien Verificationfor Entitlements (SAVE)Program UserManual
PRWORA, including those described in this user's manual, a benefit issuing agency or inititution should not, on the basis of race, color, or national origin, directly or indirectly differentiate among persons in the types of program services, aids, or benefits it provides or the manner in which it provides them. For example, benefit providers should treat all similarly situated individualsin the same manner, and should not single out individuals who look or sound foreign for closer scrutiny or require them to provide additional documentation of citizenship or immigration status.

Protection Under Federal Statutes

Certain data that is released during the verification process requires INS to comply with sections of the Privacy Act (5 U.S.C. 552a). Consequently, INS will maintain a Record of Disclosure on all alien registration numbers checked through the verification process for legal permanent residents (LPRs) and naturalized citizens. The following data will be maintained regarding each query, and it will be disclosed in accordance with the Privacy Act:
Alien registration number Date and time of disclosure Benefit issuing agency or institution requesting immigration status verification Non-citizen's immigration status at the time of inquiry

The INS will protect an individual's privacy to the maximum degree possible, in accordance with the Immigration and Nationality Act and any other applicable statutes.

If an immigration document does not contain an alien registration number, INS will conduct computer checks against all available INS data systems during manual verification to determine the holder's immigration status. The INS will make a record of disclosure when all the following conditions hold true:

It finds that an alien registration number exists for that applicant; The document appears bona fide; and The non-citizen's immigration status requires disclosure accounting.
he records of disclosure created by checks made against ASVI and
other systems of records will be available to any person or agency in accordance with federal statutes.

The verification processes maintain an audit trail which is used for
2-8 September 2000

Safeguards

Systematic Alien VeriJicationfor Entitlements (SAVE)Program UserManual
purposes of identifying inordinate and extraordinary use of Alien Registration Numbers. Examples of such suspicious activities include non-existent Alien Registration Numbers and numbers checked repeatedly fi-om multiple localities within a short period of time. This information may be used by INS and other federal, state, and local law enforcement entities for investigation of possible criminal activity, in accordance with existing federal statutes. The ASVI audit trail will not be used by INS for non-criminal, administrative enforcement of immigration laws. Benefit issuing agencies or institutions that require information from the audit trail should contact the INS SAVE Program at (202) 514-2317.
The INS, participating benefit issuing agencies and institutions, and contractors shall protect the.individualYrsights to the fullest extent of the law.
Immigration and Naturalization Service. The SAVE Program has been implemented in a manner that provides for verification of immigration status without regard to sex, color, race, religion, or national origin of the individual involved. The INS stores information in a secure area in order to safeguard its confidentiality. Data usage is restricted to persons whose duties and responsibilities indicate a need for its review.
Participating Benefit Issuing Agencies and Institutions. Participating benefit issuing agencies and institutions shall provide a non-citizen applicant with a reasonable opportunity to furnish evidence of satisfactory immigration status. The benefit issuing agency or institution using SAVE should make the determination for itself whether benefits should be provided on an interim or temporary basis to applicants pending completion of the SAVE processes, applying any legal authority that may be relevant to that benefit. For example, IRCA's statutory provisions regarding Medicaid, unemployment compensation, and other Federal benefit programs required to use SAVE generally prohibit benefit issuing agencies and institutions determining eligibility for these benefits fi-om delaying, denying, reducing, or terminating benefits pending SAVE verification.
Lockheed Martin Integrated Business Solutions (LMIBS)'. l he
database housed and maintained by LMIBS is a "read onlyy'system. No update capability is available to the benefit providers. However, if data discrepancies in ASVI are discovered during manual verification, INS will update the database as necessary.

Safeguards

The LMIBS, under contract with INS, stores the database and provides
2-9 September 2000

(continued)

SystematicAlien Verijicationfor Entitlements (SAVE)Program UserManual
access to authorized benefit issuing agencies and institutions using proper security safeguards. This system avoids dissemination of applicant information to unauthorized individuals or agencies.

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SystematicAlien VeriJcationfor Entitlements (SAVE)Program UserManual
3. Primary Verification Procedures
This chapter of the SAVE Program manual provides instructions for primary verification. It gives guidelines for evaluating non-citizen documentation, interpreting ASVI output, and selecting cases for immediate manual verification when necessary.
Questions, comments, and changes regarding information in this section of the manual should be directed to the INS SAVE Program at (202) 514-2317.
3.1. Background
SAVE Program participants will generally use the Alien Status Verification Index (ASVI) database, which contains information on more than 60 million non-citizens for initial automated status verification. This automated process is known as primary verification. When accessed by the user, ASVI will respond within 3 to 5 seconds of the query. Current users access the ASVI database, which is housed and maintained by Lockheed Martin Integrated Business Solutions (LMIBS), with any one of six access methods. Those methods of access include: 3270-terminal, Personal Computer, Point-of-Sale, Touch-Tone Telephone, Electronic File Transfer, or Remote Job Entry. The touch-tone telephone, point-of-sale, and electronic file transfer access methods are no longer available to new users of the SAVE Program.
In addition, SAVE verification is available to benefit issuing agencies and institutions through a manual verification process, known as secondary verification, when the use of ASVI is not cost effective. Secondary verification is also required when primary verification reveals material discrepancies or when the user is so directed by an ASVI system message.
3.2. General Verification Procedures
At the time of application, all individuals applying for the public benefit programs listed in the ImmigrationReform and Control ~ coft 1986 (IRCA), as amended by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), must declare in writing, under penalty of perjury, that they are United States citizens or United States non-citizen nationals and, if not, that they are in a satisfactory immigration status. If an applicant is not a citizen or non-citizen national of the United States, they must present immigration documentation that the benefit issuing agency or institution will verify with INS, through the automated system or by submitting a Document Verification Request, Form G-845, to INS.
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Systematic Alien Verificationfor Entitlements (SAVE) Program User Manual
3.3. Required Documentation
All non-citizens applying for public benefits must present immigration documentation, or in some cases, verbally provide information from such documentation, that the benefit issuing agency or institution determines is reasonable evidence indicating a satisfactory immigration status. The document must be returned to the non-citizen by the reviewing agency.
If an applicant presents an expired document or is unable to present any immigration documentation evidencing their immigration status, refer the applicant to the local INS Office to obtain documentation of their immigration status. In unusual cases involving applicants who are hospitalized or medically disabled, or who can otherwise show good cause for their inability to present documentation, and for whom securing such documentation would constitute an undue hardship, if the applicant can provide other identifyng documentation i.e., marriage records, court orders, etc., the benefit issuing agency or institution may submit the Document Verification Request and, if applicable, a copy of any expired INS document presented, to the local INS Office to verifl the applicant's immigration status.
Section 264 of the Immigration and Nationality Act (INA), 8 U.S.C. 1304, states noncitizens 18 years of age or older in the United States must have immigration documentationin their possession at all times. Non-citizens without documentation, such as those who claim documents were lost or stolen, should be referre.d to the local INS office (as shown in the U.S. Government listing of the telephone directory) to request new documentationprior to the initiation of primary or manual verification procedures.
Most non-citizen applicants will present documentation that contains an Alien Registration Number (A-Number). This number references an individual's non-citizen file at INS. The A-Number contains seven, eight, or nine numerical digits preceded by the letter A, e.g., A72 735 835. Each A-Number is unique in that it pertains to only one person; even minors and infants who are not citizens or nationals of the United States are assigned individual A-Numbers.
Immigration documentation includes but is not limited to the examples shown in Appendix A of this manual. Except for the Arrival-Departure Record, Form 1-94>such documents should show the A-Number of the bearer. Some documents have expiration dates. These dates should be checked during the benefit issuing agency or institution's visual examination of the documentation. Some forms have been released in several editions and, therefore, valid documentation may not match the example exactly. The examples in Appendix A represent those INS documents that are most commonly presented and are not all inclusive. Appendix B-Glossary, defines terms related to immigration status.
3-2 September 2000

SystematicAlien Verzjkationfor Entitlements (SAVE)Program UserManual
A Form 1-94 with the following endorsement will have an A-Number annotated on it and is an acceptable document as long as the expiration date has not passed: "Processedfor 1-53]. Temporay Evidence of Lawful Admission for Permanent Residence. Valid until
. Employment Authorized or Temporay Form 1-551, Admission for permanent resident or (port) (date) verz3ed. " A non-citizen's passport may also contain the endorsement above and will have an A-Number annotated on the passport.
Non-citizens also may present other pertinent documents, such as marriage records or court orders, that indicate the identity or United States residency of the holder. Although these documents may not serve as adequate proof of immigration status, they may prove useful in the secondary verification process, when required.
Some INS documents do not contain a photograph of the bearer. When such documentation is presented, INS strongly recommends that the benefit provider ask for a document that includes a photograph, such as a driver's license or an employee badge. A copy of this document need not be provided during the secondary verification process because the purpose of requesting the document is to ensure that the benefit provider can identify the non-citizen satisfactorily.
3.4. Immediate Secondary Verification
Under most circumstances, an automated check of INS records through ASVI is the first step in the verification process. However, the following circumstances require that the benefit provider forego the use of ASVI and perform secondav verification immediately:
. A document appears to be counterfeit or altered. Characteristics of suspect documentation include photograph substitution and ink discoloration. A non-citizen presents unfamiliar INS documentation, or a document that indicates immigration status, but does not contain an A-Number. A non-citizen presents immigration documentation with an A-Number in the 60,000,000 or 80,000,000 series. The non-citizen has no immigration documentation and is hospitalized, medically disabled, or who can otherwise show good cause for their inability to present documentation, and for whom securing such documentation would constitute an undue hardship. The non-citizen presents a foreign passport andlor Form 1-94 and the "Admission for Permanent Residence" endorsement is more than 1 year old. The applicant presents a Certificate of Naturalization or a Certificate of Citizenship, and verification of U.S. citizen status is required.
3 -3 September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program User Manual
If a non-citizen applicant presents any of the above immigration documentation to the benefit issuing agency or institution, photocopies should be submitted immediately to INS with a completed Document Verification Request for secondary verification. See Chapter 4 of this manual for instructions on submitting a secondary verification request to INS.
3.5. A S H Access Methods
Current users access the ASVI database with any one of six access methods. Those methods of access include:
3270-type terminal, or personal computer with 3270 emulation board, using a dedicated telecommunications line (interactive access, monitor, and printer) Personal computer (PC) or teletype terminal, using a standard telephone (asynchronous) line (interactive access, monitor and printer) Point-of-sale (POS) emulation (interactive access, PC, and printer) Touch-tone telephone or standard dial telephone with tone generator (interactive access, voice data response) Electronic file transfer (EFT) using personal computer with communications software, via a standard telephone or dedicated telecommunications line (batch access, monitor, and printer) Remote job entry (RJE) terminal, or personal'computer with RJE emulation board, using a standard telephone or dedicated telecommunications line (batch access, monitor and printer) The touch-tone telephone, point-of-sale, and electronic file transfer access methods are no longer available to new users of the SAVE Program. Contact the INS SAVE Program at (202)514-2317 to obtain step-by-step instructions for accessing ASVI via any of the other methods listed above.
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Systematic Alien VeriJicationfor Entitlements (SAVE)Program User Manual

3.6. UnderstandingASVI Output Data
The data fields contained in the display or voice output response for most ASVI users are
illustrated in Figure 3-1.

Benefit providers should compare data on the documentation to the corresponding fields in ASVI. The biographical data and status information in ASVI must correspond to the data on the documentation. If the benefit provider determines that discrepancies exist, he or she should initiate the secondary verification process, as instructed in Chapter 4. Secondary verification must also be initiated when ASVI returns the message "Institute Secondary Verification."

Figure 3-1: ASVI Output Data Fields

I

I

PF1 EXIT PF5 HELP PF9 VERIFICATION INSTRUCTIONS

1

3-5 September 2000

Systematic Alien Verijicationfor Entitlements (SAVE)Program User Manual

The following is provided to assist benefit issuing agencies and institutions in understanding the data output fields provided by ASVI:

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m

e

1. Alien Number

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a

+

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*;?$

w* i
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An A-Number is a seven, eight, or nine-digit number

referencing an actual paper file, known as the Alien File,

relating to an individual. Each A-Number is unique in that it

pertains to a single person; even infant and minor non-citizens

are assigned individual A-Numbers.

2. Last Name First Name

When entering an A-Number into ASVI, nine digits are required. If the A-Number is less than nine digits, add leading zeros. Do not enter the "A" in any case.
Examples: A9 735 832 - enter as 009735832 A72 735 835 - enter as 072735835
A999 999 999 - enter as 999999999 Hispanic surnames may include as many as four names, e.g., Rivera Gonzales de Cuervo. In some cases, applicants may hyphenate parts of the surname, e.g., Rivera-Gonzales de Cuervo, whereas the database seldom uses the hyphenated format. Some non-citizens may be registered under abbreviated or Anglicized versions of their names. ASVI also may give transposed versions of names, e.g., de Cuervo Rivera Gonzales. Refer to Appendix C for a more detailed explanation of Hispanic Names.
In Asian cultures, the surname frequently is written before the given name. The names of non-citizens from such cultures may be recorded in transposed order in INS files.
In the case of a recent marriage, the non-citizen may not have yet hrnished the new name to INS. Hence, ASVI may not reflect the name change.
Many Hispanic first names consist of more than one word, for example, Maria de 10s Angeles. Connecting prepositions and articles such as "de la" may not have been recorded properly in INS records.

3-6 September 2000

SystematicAlien VeriJicationfor Entitlements (SAVE) Program User Manual

~ :2 Ij'i&r$::d "z9< . , +

i

I

a

gzpl&na'tion ."

J v

3. Date of Birth

Occasionally, the month and day elements of the birth date

may be transposed in the ASVI database or on a non-citizen's

application for benefit. The INS registers the date of birth by

month, day, and year using format MMDDYYYY, e.g.,

01041957 is January 4, 1957. Some cultures record dates as

day, month, and year using format DDMMYYYY, e.g.,

01041957 is April 1, 1957. A non-citizen may continue to

provide dates in this fashion.

4. Country of Birth With certain access methods, only the first five letters of the

name of the country of birth will be given in the ASVI

response. In the case of Austria and Australia, however, only

the last five letters of the country of birth would be shown in

an abbreviated version of the country name.

5. Alternate ID
-
6. Social Security Number (SSN)

A non-citizen's country of birth is not necessarily their country of nationality, i.e., the country to which they owe allegiance. If a non-citizen also has an Admission Number (Number
issued to a non-citizen on an Arrival-Departure Record, Form 1-94), it will be displayed in this field. Querying ASVI by the Admission Number is also available to benefit issuing agencies and institutions if there is a reasonable need and accessing ASVI by this number is found feasible by the INS SAVE Program. INS records currently do not contain a Social Security Number for every non-citizen on file. When the SSN is available, ASVI will announce the SSN, for touch-tone telephone access, or will fill the display field with the SSN for other access methods.

7. Date of Entry

This date represents the non-citizen's most recent entry into the United States or the date his or her status was adjusted to a lawful permanent resident. The INS uses numeric representation in the format MMDDYYYY.

8. INS Status

INS has over 650 alphanumeric codes that identify a noncitizen's immigration status. ASVI displays or announces one of these codes when a query is performed. The codes are categorized into six groups that correspond to interpretative messages listed in item number 10 below. Benefit issuing agencies and institutions can obtain a description of INS codes of admission by contacting the INS SAVE Program.

9. Verification

The system will provide a unique verification number with the
3-7 September 2000

SystematicAlien VeriJicationfor Entitlements (SAVE)Program User Manual

"Z,$

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Number

output from every query. This number will contain

information that identifies the query. Users should always

record this number in the applicant's file for both quality

assurance and ease in processing Freedom of Information Act

requests.

10. ASVI System Message/Employ ment Eligibility Statement

This message helps the benefit-issuing agency or institution verify that a non-citizen's immigration status is valid or if a secondary verification is required. It also provides employment eligibility information. Most users will receive one of the seven messages listed below:

Lawful Permanent Resident - Employment Authorized
Refugee - Employment Authorized
Asylee - Employment Authorized
CubadHaitian Entrant - Temporary Employment Authorized
Section 245A Temporary Resident - Temporary
Employment Authorized
Section 2 10 Temporary Resident - Temporary Employment
Authorized
Application Pending - Temporary Employment Authorized
Institute Secondary Verification

If one of the first six messages is received, normal user agency procedures for issuing benefits may continue. The seventh message, "Institute Secondary Verification," requires further inquiry into INS records. When this message appears, manual verification procedures, as described in Chapter 4, should be followed.

3-8 September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program UserManual

3.7. General Information

System Hours

The ASVI database is available for interactive queries between 7:00 a.m. Eastern Standard Time (EST), and 8:00 p.m. Pacific Standard Time (PST), Monday through Friday.

Technical Assistance

Users should call the Customer Service Help Desk regarding technical problems with the ASVI System such as inability to access the system, exceptionally slow response times, and system failures. The Customer Service Help Desk provides support Monday through Friday, 8:00 a.m. EST to 8:00 p.m EST via its toll-free telephone number, 1-800467-0375.

Program Assistance

The INS SAVE Program will answer questions regarding program policies and enrollment procedures. Personnel are available from 7:30 a.m. EST to 5:00 p.m. EST, Monday through Friday, at (202) 514-2317.

3.8. A S K Enrollment Process

After a benefit issuing agency or institution expresses interest and receives approval from

INS to participate in the SAVE Program, the procedures below should be followed:

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1. The benefit issuing agency or institution determines the best access method to

meet their needs in light of the size and scope of the estimated non-citizen

population. The INS SAVE Program can provide assistance in this area.

2. A Memorandum of Understanding (MOU) is formalized with INS. An example of suggested language for a MOU is available from the INS SAVE Program.

3-9 September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program UserManual

Step . -

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3. The benefit issuing agency or institution prepares a purchase order for

teleprocessing services based on estimated usage and access method selected,

and mails it to the INS contractor at the following address: Lockheed Martin

Integrated Business Solutions, 12506 Lake Underhill Road, MP-266, ATTN:

Kim Pearson, Contracts Administrator, Orlando, FL 32825-5002. Each benefit

issuing agency or institution should prepare a purchase order form that is used

within each respective office. The purchase order should contain the following

information:

Length of service

Obligated dollar amount

Citation of INS contract number

Original signature of appropriate representative

Each benefit issuing agency or institution

complete a new purchase order

fonn each fiscal year (by October 1) in order to continue accessing the ASVI

database.

4. The contractor enrolls the benefit issuing agency or institution in the SAVE

Program and assigns an account number. Appropriate user identification

numbers, authorization codes, and instructions for accessing the ASVI database

are provided at this time.

5. The benefit issuing agency or institution accesses the ASVI database.

3.9. ASVI Billing Process

The following are billing procedures:

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1. The agency or institution accesses ASVI with a unique user identification

number.

2. The contractor collects usage data.

3. The contractor prepares the billing.

4. The contractor sends the invoice to the benefit issuing agency or institution's resource accounting division.

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SystematicAlien VeriJicationfor Entitlements (SAVE)Program UserManual
4. Secondary Verification Procedures
This chapter of the SAVE Program Manual provides instructions for secondary verification, for both the Alien Status Verification Index (ASVI) and non-ASVI user. It gives guidelines for initiating secondary verification and understanding INS ' response to the verification request.
Questions and comments regarding secondary verification should .be directed to the INS SAVE Program at (202)-514-2317.
4.1. Background
The SAVE Program requires participating agencies and institutions to submit secondary verification requests to the INS under specified circumstances. The INS conducts thorough searches of applicable INS databases and paper files, as necessary, to respond to such secondary verification requests. A combination of both the primary and secondary components of the SAVE Program are used by a large number of SA- users. However, status verification involving only the secondary process is available to benefit issuing agencies and institutions that have a very small number of non-citizen applicants for benefits.
The purpose of the secondary verification process is two-fold. First, it allows agencies to participate in the SAVE Program when access to the automated system would not be cost effective. Second, it provides a thorough search of all applicable INS automated databases and paper files when questions arise during the visual verification of documentation or the primary verification.
4.2. Initiating Secondary VeriJication
Benefit issuing agencies and institutions with access to ASVI will perform primary verification for most non-citizen applicants prior to initiating secondary verification procedures. However, certain circumstances require that the benefit provider forego the use of ASVI and perform secondary verification ,immediately. Refer to the "Immediate Secondary Verification7' topic in Chapter 3 for circumstances that require immediate secondary verification. Additionally, secondary verification should occur after an automated ASVI check when:
ASVI returns a response of "Instikte Secondary Verification" A material discrepancy between an applicant's immigration documentation and the record contained in ASVI exists A non-citizen claims they obtained Lawful Permanent (or. Conditional) Resident Status because they were a battered alien, a parent of a battered child(ren), or a victim of domestic violence. Refer to the Interim Guidance on Verification of Citizenship,
Qualified Alien Status, and Eligibility Under Title N of the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996, 62 FR 61344 at Exhibit B to

Systematic Alien Verz3cationfor Entitlements (SAVE)Program User Manual
Attachment 5 (Nov. 17, 1997), for instructions on verifying non-citizens claiming status in this category. Sponsorship information fiom the non-citizen's Affidavit of Support (Form 1-864) is required
4.3. Obtaining Secondary Verification
To obtain secondary verification, the benefit provider will forward a completed Document Verification Request with filly readable photocopies of both sides of the noncitizen's immigration documentation to their local INS Office for review. The INS Offices are listed by state and county in Appendix D; their addresses are given in Appendix E.
Benefit issuing agencies and institutions mandated by the Immigration Reform and Control Act of 1986 (IRCA) to participate in the SAVE Program are required to use Form G-845S, Document Verification Request and all other participating benefit issuing agencies and institutions must use Form G-845, Document Verification Request. The Document Verification Request Supplement, Form G-845 Supplement, can be used in conjunction with both forms, but not separately to obtain additional immigration information required to make a determination for benefit eligibility as a result of the PRWORA, as amended. These forms are included in Appendix F and can be copied by benefit issuing agencies and institutions for use in instituting secondary verification.
A separate Document Verification Request should be completed for each applicant and should include copies of the documents for that person only. If a family unit has applied for a benefit, each member will require a separate Document Verification Request.
4.4. Attachments
A photocopy of all applicable printed pages of each piece of immigration documentation presented should be attached to the Document Verification Request. The INS requires that benefit issuing agencies and institutions copy all printed sides of each INS-issued card or form presented. When the non-citizen presents a foreign passport as documentation, INS only requires copies of those pages that identify the issuing country, holder, and immigration status while in the United States (i.e., Form 1-94 INS stamp).
If the applicant presents expired immigration documents or is unable to present any immigration documentation evidencing his or her immigration status, the benefit issuing agency or institution should refer the applicant to the local INS office to obtain documentation of status. In unusual cases involving applicants who are hospitalized or medically disabled, or who can otherwise show good cause for their inability to present documentation, and for whom securing such documentation would constitute an undue hardship, if the applicant can provide other identifying documentation i.e., marriage records, court orders, etc., the benefit issuing agency or institution may file the Document Verification Request, and, if applicable, copies of any expired INS documents presented,
4-2 September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program UserManual
with the local INS office to verify immigration status. As with any documentation of immigration status, the benefit issuing agency or institution should confirm that the status information received from INS pertains to the applicant whose identity has been verified.
Although an INS document is all the identification required to complete the secondary verification request, the attachments may include identification bearing a photograph of the applicant. If the non-citizen has presented another pertinent document, such as a marriage record or court order, it may be included as well. Refer to Appendix A for examples of commonly presented INS documentation. Note that other INS forms can serve as valid identification documents.
The name and address of the benefit issuing agency or institution submitting the Document Verification Request should be typed or stamped in,the block labeled "From." The INS office address the Document Verification Request is being sent to should be typed or stamped in the block labeled "To."

4.5. Completing the Document Verification Request
The Document Verification Requests (Form G-845s and Form G-845) (see Appendix F) should be completed as fully as possible by the submitting agency. It is essential that the form contain sufficient information to verify the immigration status of the non-citizen. The benefit issuing agency or institution completes Section A.

The following chart provides instructions for completing Section A of Form G-845s and Form G-845.

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1.AlienRegistration

Enter the alien registration number as the letter A

Number or 1-94

followed by a series of seven, eight, or nine digits. The

Number

admission number found on the Form 1-94 consists of

eleven digits and is found at the upper left-hand corner of

the form. It may assist in the various searches made

during secondary verification.

2. Applicant's Name

Enter last, first, and middle name of applicant. If documentation indicates more than one variation of the name, enter all versions. Appendix C provides information on Hispanic names.

3. Nationality

Enter the foreign nation or country to which the applicant owes allegiance. This is normally, but not always, the country of birth.

4. Date of Birth

Enter the birth date using the MMIDDTYYYY format. If

4-3 September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program User Manual

/
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0,

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the complete date of birth is not known, give available

information.

5. Social Security Number Enter the non-citizen's nine-digit Social Security number, if known. Copy the number directly from the noncitizen's Social Security card whenever possible.

6. Verification Number

Enter the verification number assigned when ASVI was
queried, if applicable. If ASVI was not queried, enter ccnone."

7. Photocopy of Document Attached and Other Information Attached

Indicate that INS documentation is attached by checking the top box. Use the bottom box if other information has been included in support or in lieu of INS documents.

8. BenefitNour Case Number
"
9. Name of Submitting Official

If completing the Form G-845S, mark the blocks showing the benefit program(s) for which the non-citizen has applied. If completing the Form G-845, enter the benefit program(s) for which the non-citizen has applied. This block may also be used to show the benefit issuing agency's or institution's case number. The name of the submitting official from the benefit issuing agency or institution should be entered.

10. Title of Submitting Official
11. Date
12. TelephoneNumber

The title of the submitting official from the benefit issuing agency or institution should be entered. The date the Document Verification Request is being completed by the submitting official from the benefit issuing agency or institution should be entered. The telephone number that the Immigration Status Verifier can contact the submitting official from the benefit issuing agency or institution, if necessary, should be entered

The name and address of the benefit issuing agency or institution submitting the Document Verification Request should be typed or stamped in the box labeled "From." -TheINS office address the Document Verification Request is being sent to should be typed or stamped and the box labeled "To."
4.6. Completing the Document Verification Request Supplement
The Document Verification Request Supplement (G-845 Supplement) (See Appendix F) may only be used in conjunction with the Document Verification Request (Form G-845s

4-4 September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program User Manual
or Form G-845), not separately. .It should also be completed as fully as possible by the benefit issuing agency or institution. The following information should be provided on Form G-845 Supplement by the benefit issuing agency or institution
Non-citizen applicant's last, first, and middle name; Social Security Number (if available); Alien Registration Number (A-Number) andlor 1-94 Number; Typed or stamped name and address of submitting agency; Current date; Submitting agency's telephone number.
Refer to the "Completing the Document Verification Request'' topic in this Section for more detailed instructions on providing this information.
The benefit issuing agency or institution should indicate what status information is required from INS by checking off the appropriate numbered block9s) in the "Complete the following items:" section on the top portion of the Form G-845 Supplement. It is very important that the benefit issuing agency or institution complete this section, so that INS can provide all appropriate INS status information required to make a determination regarding the applicant's eligibility for benefits under Title IV of PRWORA, as amended. The following INS information can be obtained by submitting Form G-845 Supplement:
1. Immigration status; 2. Date alien entered the United States; 3. Date status was granted; 4. Date status expires; 5. Citizen status; 6. Special benefit provisions for certain victims of abuse; and 7. Affidavit of Support.
4.7. Mailing Document VerificationRequests
Photocopies of documentation should be stapled to the Document Verification Request with a single staple in the upper left-hand corner. The form and documents can be folded and placed in a window envelope, with the block labeled "To" showing in the address area. More than one G-845 can be mailed in a single envelope; however, INS discourages benefit issuing agencies and institutions from collecting forms over an extended period of time in order to mail them in bulk.
4-5 September 2000

Systematic Alien VeriJcationfor Entitlements (SAVE)Program UserManual
All benefit issuing agencies and institutions should mail Form G-845 to their local INS Office. The notation, "ATTN: Immigration Status Verifier," should be included on the envelope to ensure proper handling by the INS mailroom. Immigration Status Verifiers (ISVs) are located in INS Offices throughout the United States, Puerto Rico, Virgin Islands, and Guam. To determine the correct INS Office, review the list of states and counties in Appendix D; their mailing addresses are included in Appendix F.
-
4.8. Obtaining Copies of the Document Verification Requests and Supplement
Benefit issuing agencies and institutions may duplicate the Document Verification Requests and Supplement provided in Appendix F; both forms should be reproduced as two-sided documents. Additional copies of the forms may also be obtained as follows:

1. Request Document Verification Request (Form G-845s and Form G-845) and the Document Verification Supplement (Form G-845 Supplement) from the INS Form Distribution Center serving your region as noted below:

East of the Mississippi River:

Eastern Forms Center P.O. Box 567 Williston, VT 05497

West of the Mississippi River:

Forms Center West 5600 Rickenbacker Road Building 701A Bell,.CA 90201

2. Download the Document Verification Requests and Supplement"from the Iriternet: www.usdoi .gov/ins/forrns.

3. Call the INS Forms Request Line: 1-800-870-3676. (Due to the high volume of calls to this line, the best time to call is early on weekday mornings.)

4.9. Document VerificationRequest and Supplement Responses
Immigration Status Verifiers (ISVs) will research the non-citizen applicant's records in INS automated databases and paper files, complete the response portion, Section B, of the Document Verification Request, and return both the forrn and attached photocopies to the requesting agency within ten working days of receipt by the local INS Office for mandated benefit issuing agencies and institutions, and within the timeframe specified in the Memorandum of Understanding (MOU) for all other benefit issuing agencies and institutions.

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SystematicAlien VeriJicationfor Entitlements (SAVE)Program UserManual
The secondary verification process includes the following:
Examination of the photocopies of the immigration documentation Search of all applicable INS records systems (both automated and manual) Review of the applicant's Alien File (A-File), if required Evaluation of findings Determination of immigration status Return Form G-845 to benefit issuing agency or institution
Automated INS databases and paper files that may be used include:
Central Index System (CIS) - The most complete online record of non-citizens and naturalized citizens in the United States Non-immigrant Information System (NIIS) -An automated database that contains information on non-immigrants, such as visitors and foreign government officials
Computer-Linked Application Information Management System (CLAIMS) - A
national automated database that records and tracks cases for immigration benefits Students/Schools System (STSC) - The online file of foreign students in U.S. academic and vocational educational institutions
Deportable Alien Control System (DACS) - An automated database that records
activities associated with aliens who are detained or placed under docket control for deportation or exclusion Alien Files -The paper files on non-citizens in the United States INS Microfilm Files -Files containingpre-CIS records Federal Records Center Index -Resource used to access retired governmentrecords
A description of each of these sources is located in Appendix G.

4.10. Understanding the INS Response

The Document Verification Request and Supplement are self-reply forms. The ISV will

check all appropriate statements on the lower half and back of the Document Verification

Request, and, if applicable, on the lower half and back of the Document Verification

Request Supplement, to indicate the applicant's immigration status and work eligibility.

Statements on the front of the Document Verification Request are interpreted as follows:

Block

*
i

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- ~ G ' ' ~ x p l a n a t,& ~,~ .h ' *Y'Sn

1. This document

Checked when the documentation submitted is determined

appears valid and

to be a valid Form 1-551, or a valid Form 1-94' with the

relates to a Lawful notation "Processed for 1-551, Temporary Evidence of

Permanent Resident Lawful Admission for Permanent Residence. " (The term

alien of the United temporary here refers to documentary evidence. It is not

States

intended to imply that the immigration status itself is

temporary.) Immigration law allows this person to live

and work in the United States on a permanent basis.

September 2000

SystematicAlien Verificationfor Entitlements (SAVE)Program UserManual

' A
Block ' $

'

5. 'iJ3xp"lanation

- .:2fiq ~4 :‘$+ , 2

2. This document

Checked when the documentation submitted is determined

appears valid and

to be a valid Form 1-94 stamped with the notation

relates to a Conditional Processed for 1-551, "Temporary Evidence of Lawful

Resident alien of the Admission for Permanent Residence," or a valid Form I-

United States

551. Under the law, this person is allowed to live and

work in the United States. However, INS will reevaluate

his or her status within 2 years. Conditional resident non-

citizen status is normally granted to non-citizens that

marry U.S. citizens or nationals, or lawful permanent

resident non-citizens of the United States.

3. This document appears valid and relates to an alien authorized employment as indicated below:

Checked to indicate if the authorization covers full-time or part-time employment and when, if applicable, the period of employment will expire. "Indefinite" will be indicated if there is no specific expiration date for employment eligibility.

4. This document

Checked when a non-citizen's application for a new

appears valid and

immigration status or change of immigrition status is

relates to an alien who pending. If a change of status is pending, the appropriate

has an application block indicating the current status will also be checked.

pending for:

(When an appli'cation is pending, it means that a

determination has not yet been made by the INS.)

5. This document relates to an alien having been granted asvlum/refug;ee status in theunited States.

Checked when a non-citizen has been granted asylee or refugee status in the United States, because of persecution
or a well-founded fear of persecution in his or her country of nationality. These statuses are considered temporary. Documentation presented may include Form 1-94> Stamped with "Section 207-Refugee'' or "Section 208Asylee " or a Form 1-571, Refugee Travel Document.

6. This document appears valid and relates to an alien paroled into the United States pursuant to Section 212 of the INA

Checked for a non-citizen who has been allowed to enter the United States under emergency conditions or when his or her entry has been determined to be in the public interest. This status is temporary. Documentation
presented may include Form 1-94, stamped with "Section 212(d)(5) -Parolee. "

4-8 September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program UserManual

7. This document appears valid and relates to an alien who is a CubadHaitian entrant

Checked for Cubans who entered the United States between April 15, 1980, and October 10, 1980, and Haitian who entered the country before January 1, 1981. This is a temporary status. Documentation presented may include Form 1-94>stamped CubadHaitian Entrant. This
status is covered by Section 501(e) of the Refugee Education Assistance Act of 1980, as amended.

8. This document appears valid and relates to an alien who is a conditional entrant

This category of non-citizens was originally defined by Section 203(a)(7) of the INA but was abolished by the Refugee Act of 1980. The INS no longer provides benefit issuing agencies and institutions with this response.

9. This document appears valid and relates to an alien who is a nonimmigrant

Checked to indicate a non-citizen who is temporarily in the United States for a specific purpose. This category includes students, visitors, and foreign government officials. Documentation presented may include Form I94.

10. This document

Checked when a non-citizen's

appears valid and employment in the United States.
relates to an alien not

authorized

employment in the

United States

status

prohibits

11. Continue to process as legal alien. INS is searching indices for further information

Checked if INS will withhold judgment regarding the status or validity of documentation pending further investigation. This statement does not imply that the applicant is an illegal non-citizen or the holder of fraudulent documentation. The non-citizen should be presumed eligible while INS' final notification regarding immigration status is pending.

12. This document is not valid because it appears to be:

Checked for expired documentation or when the documentation appears to be counterfeit or altered. If necessary, the ISV will use the back of the Form G-845 to elaborate on this entry. When the entries for counterfeit or altered documents are checked, the requesting agency or institution should follow its own guidelines for investigating and prosecuting cases of fraudulent documentation.

4-9 September 2000

Systematic Alien Verificationfor Entitlements (SAVE)Program UserManual

The Comments block on the second page of the Document Verification Request is used to provide the benefit provider with further instruction. It includes the following statements:

13. No determination can be made from the information submitted. Please obtain a copy of the original alien registration documentation and resubmit.

Checked when the benefit issuing agency or institution is required to resubmit the Document Verification Request with copies of both sides of the original immigration documentation presented by the non-citizen applicant.

14. No determination can be made without seeing both sides of the document submitted (please resubmit request)

Checked when the benefit issuing agency or institution is required to resubmit the Document Verification Request with copies of all sides of each document presented by the non-citizen applicant.

15. Copy of document is not readable (please resubmit request)

Checked when the benefit issuing agency or institution is required to resubmit the Document Verification Request with higher quality copies of the original immigration documentationpresented by the non-citizen applicant.

Blocks 16 and 17 were originally designed to assist benefit issuing agencies and institutions in determining when a non-citizen applicant was Permanently Residing [in the United States] Under Color of Law (PRUCOL). The INS would indicate if this class or category of non-citizen applicants were actively being pursued for expulsion at that time. The PRWORA replaced the PRUCOL doctine, and Immigration Status Verifiers (ISVs) were instructed to no longer provide PRUCOL status determinations to benefit issuing agencies and institutions. However, the Noncitizen Benefit Clarification and Other Technical Amendments Act of 1998 amended PRWORA and requires INS to provide PRUCOL information to the Social Security Administration's Supplemental Security Income Program (SSMSSI). Currently, SSMSSI is the only program receiving PRUCOL determinations from INS.
Any additional ISV comments will be included at block 18.
The ISV will stamp and initial the front of the Document Verification Request in the block labeled "stamp."
The following is an explanation of the INS information a benefit issuing agency or institution can obtain fi-omthe INS on the Document Verification Request Supplement:

4-10 September 2000

SystematicAlien VeriJcationfor Entitlements (SAVE)Program UserManual
1. Immigration status. The INS will provide the non-citizen applicant's current immigration status by conducting a thorough search of INS automated databases and paper files.
2. Date alien entered the United States. The INS will provide the original date the non-citizen applicant entered the United States. (This date is not always the same as what is provided through ASVI, when a non-citizen adjusts his or her immigration status. In most cases, the date of entry changes in ASVI to reflect the date the noncitizen obtained his or her Lawful Permanent Resident status.)
3. Date status was granted. The INS will provide the date the non-citizen obtained his or her current immigration status as noted in paragraph 1 above.
4. Date status expires. The INS will provide the date the non-citizen's immigration status expires. If the non-citizen's immigration status is indefinite, INS will provide this information in the response.
5. Citizen status. The INS will confirm whether a prior non-citizen naturalized and is a United States citizen.
6. Special Benefit Provision for Certain Victims of Abuse. The INS will confirm whether or not a non-citizen obtained his or her Lawful Permanent (or Conditional) Resident status because he or she was a battered alien or a parent of a battered child(ren) or a victim of domestic violence.
7. Affidavit of Support. The INS will confirm whether or not the non-citizen was sponsored on Form 1-864, Affidavit of Support, and if so, INS will provide sponsorship information.
The ISV will initial and stamp the back of the form in the block labeled "Stamp."
'
When the Document Verification Request and Supplement are returned, the benefit issuing agency or institution must refer to its own eligibility requirements to determine if the applicant qualifies for a benefit. The benefit provider makes the actual decision on award or denial of a benefit and is responsible for the establishment of a fair hearing process.

4 1I. Delayed Replies
The Document Verification Request has been designed to allow rapid response to the submitting agency from INS. Mandated benefit issuing agencies or institutions should allow ten working days for processing. Other benefit issuing agencies and institutions should wait until the expiration of the timeframe specified in the MOU for all other benefit issuing agencies and institutions before contacting the INS Office to request information about verification. When it becomes necessary to contact the INS Office

4-1 1

September 2000

Systematic Alien VeriJicationfor Entitlements (SAVE)Program User Manual
regarding the status of a request, the benefit issuing agency or institution should be prepared to furnish the non-citizen's name, A-Number or Admission Number, and the date the original Document Verification Request was mailed to INS.
4.12. INS Record Keeping
The INS retains records on the secondary verification process to comply with the Privacy Act. If any documentation submitted to an ISV indicates criminal misuse of government documents, it may be duplicated and forwarded to the Investigations Branch of INS. or to other law enforcement agencies for initiation of an investigation or prosecution action, as may be appropriate. The benefit issuing agency or institution should follow its own guidelines for investigation and prosecuting cases of fraudulent documentation.
4-12 September 2000

 
 ORDINANCE 2006-40
Illegal Immigration Relief Act Implementation Amendment
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF HAZLETON AS FOLLOWS:
To clarify the intent of the City of Hazleton with respect to the implementation of Ordinance 2006-18 (the City of Hazleton Illegal Immigration Relief Act Ordinance), Ordinance 2006-18 is hereby amended by adding the following:
SECTION 7. IMPLEMENTATION AND PROCESS
A. Prospective Application Only. The default presumption with respect to Ordinances of the City of Hazleton—that such Ordinances shall apply only prospectively—shall pertain to the Illegal Immigration Relief Act Ordinance. The Illegal Immigration Relief Act Ordinance shall be applied only to employment contracts, agreements to perform service or work, and agreements to provide a certain product in exchange for valuable consideration that are entered into or are renewed after the date that the Illegal Immigration Relief Act Ordinance becomes effective and any judicial injunction prohibiting its implementation is removed. The Illegal Immigration Relief Act Ordinance shall be applied only to contracts to let, lease, or rent dwelling units that are entered into or are renewed after the date that the Illegal Immigration Relief Act Ordinance becomes effective and any judicial injunction prohibiting its implementation is removed. The renewal of a month-to-month lease or other type of tenancy which automatically renews absent notice by either party will not be considered as entering into a new contract to let, lease or rent a dwelling unit.
B. Condition of Lease. Consistent with the obligations of a rental unit owner described in Section 5.A., a tenant may not enter into a contract for the rental or leasing of a dwelling unit unless the tenant is either a U.S. citizen or an alien lawfully present in the United States according to the terms of United States Code Title 8, Section 1101 et seq. A tenant who is neither a U.S. citizen nor an alien lawfully present in the United States who enters into such a contract shall be deemed to have breached a condition of the lease under 68 P.S. Section 250.501. A tenant who is not a U.S. citizen who subsequent to the beginning of his tenancy becomes unlawfully present in the United States shall be deemed to have breached a condition of the lease under 68 P.S. Section 250.501.
C. Corrections of Violations—Employment of Unlawful Workers. The correction of a violation with respect to the employment of an unlawful worker shall include any of the following actions:

(1) The business entity terminates the unlawful worker’s employment.
(2) The business entity, after acquiring additional information from the worker, requests a secondary or additional verification by the federal government of the worker’s authorization, pursuant to the procedures of the Basic Pilot Program. While this verification is pending, the three business day period described in Section 4.B.(4) shall be tolled.
(3) The business entity attempts to terminate the unlawful worker’s employment and such termination is challenged in a court of the Commonwealth of Pennsylvania. While the business entity pursues the termination of the unlawful worker’s employment in such forum, the three business day period described in Section 4.B.(4) shall be tolled.
D. Corrections of Violations—Harboring Illegal Aliens. The correction of a violation with respect to the harboring of an illegal alien in a dwelling unit shall include any of the following actions:
(1) A notice to quit, in writing, issued and served by the dwelling unit owner, as landlord, to the tenant declaring a forfeiture of the lease for breach of the lease condition describe in Section 7.B.
(2) The dwelling unit owner, after acquiring additional information from the alien, requests the City of Hazleton to obtain a secondary or additional verification by the federal government that the alien is lawfully present in the United States, under the procedures designated by the federal government, pursuant to United States Code Title 8, Subsection 1373(c). While this second verification is pending, the five business day period described in Section 5.B.(4) shall be tolled.
(3) The commencement of an action for the recovery of possession of real property in accordance with Pennsylvania law by the landlord against the illegal alien. If such action is contested by the tenant in court, the dwelling unit owner shall be deemed to have complied with this Ordinance while the dwelling unit owner is pursuing the action in court. While this process is pending, the five business day period described in Section 5.B.(4) shall be tolled.
E. Procedure if Verification is Delayed. If the federal government notifies the City of Hazleton that it is unable to verify whether a tenant is lawfully present in the United States or whether an employee is authorized to work in the United States, the City of Hazleton shall take no further action on the complaint until a verification from the federal government concerning

the status of the individual is received. At no point shall any City official attempt to make an independent determination of any alien’s legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c).

F. Venue for Judicial Process. Any business entity or rental unit owner subject to a complaint and subsequent enforcement under this ordinance, or any employee of such a business entity or tenant of such a rental unit owner, may challenge the enforcement of this Ordinance with respect to such entity or individual in the Magisterial District Court for the City of Hazleton, subject to the right of appeal to the Luzerne County Court of Common Pleas. Such an entity or individual may alternatively challenge the enforcement of this Ordinance with respect to such entity or individual in any other court of competent jurisdiction in accordance with applicable law, subject to all rights of appeal.

G. Deference to Federal Determinations of Status. The determination of whether a tenant of a dwelling is lawfully present in the United States, and the determination of whether a worker is an unauthorized alien shall be made by the federal government, pursuant to United States Code Title 8, Subsection 1373(c). A determination of such status of an individual by the federal government shall create a rebuttable presumption as to that individual’s status in any judicial proceedings brought pursuant to this ordinance. The Court may take judicial notice of any verification of the individual previously provided by the federal government and may request the federal government to provide automated or testimonial verification pursuant to United States Code Title 8, Subsection 1373(c).

ORDAINED AND ENACTED by Council this ______________ day of December, 2006.

First Reading
(December 13, 2006)

Second Reading
(December 28, 2006)

Third Reading
(December 28, 2006)

Presented Graham

Seconded Yannuzzi

Gabos

Y

Graham

Y

Mundie

Y

Nilles

Y

Yannuzzi Y

Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

 
 ORDINANCE 2006-35
ESTABLISHING A REGISTRATION PROGRAM FOR RESIDENTIAL RENTAL PROPERTIES; REQUIRING ALL OWNERS OF RESIDENTIAL RENTAL
PROPERTIES TO DESIGNATE AN AGENT FOR SERVICE OF PROCESS; AND PRESCRIBING DUTIES OF OWNERS AND AGENTS; DIRECTING THE DESIGNATION OF AGENTS; ESTABLISHING FEES FOR THE COSTS
ASSOCIATED WITH THE REGISTRATION OF RENTAL PROPERTY; AND PRESCRIBING PENALTIES FOR VIOLATIONS
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF HAZLETON and it is hereby ordained and with the authority of the same as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION. The following words, when used in this ordinance, shall have the meanings ascribed to them in this section, except in those instances where the context clearly indicates otherwise. When not inconsistent with the context, words used in the present tense include the future; words in the plural number include the singular number; words in the singular shall include the plural, and words in the masculine shall include the feminine and the neuter.
a. AGENT - Individual of legal majority who has been designated by the Owner as the agent of the Owner or manager of the Property under the provisions of this ordinance.
b. CITY - City of Hazleton.
c. CITY CODE – the building code (property Maintenance Code 1996 as amended or superseded) officially adopted by the governing body of the City, or other such codes officially designated by the governing body of the City for the regulation of construction, alteration, addition, repair, removal, demolition, location, occupancy and maintenance of buildings and structures.
d. ZONING ORDINANCE – Zoning ordinance as officially adopted by the City of Hazleton, File of Council # 95-26 (as amended).
e. OFFICE – The Office of Code Enforcement for the City of Hazleton.
f. DWELLING UNIT – a single habitable unit, providing living facilities for one or more persons, including permanent space for living, sleeping, eating, cooking and bathing and sanitation, whether furnished or unfurnished. There may be more than one Dwelling Unit on a Premises.
g. DORMITORY - a residence hall offered as student or faculty housing to accommodate a college or university, providing living or sleeping rooms for individuals or groups of individuals, with or without cooking facilities and with or without private baths.

h. INSPECTOR - any person authorized by Law or Ordinance to inspect buildings or systems, e.g. zoning, housing, plumbing, electrical systems, heat systems, mechanical systems and health necessary to operate or use buildings within the City of Hazleton. An Inspector would include those identified in Section 8 – Enforcement.
i. FIRE DEPARTMENT – the Fire Department of the City of Hazleton or any member thereof, and includes the Chief of Fire or his designee.
j. HOTEL – a building or part of a building in which living and sleeping accommodations are used primarily for transient occupancy, may be rented on a daily basis, and desk service is provided, in addition to one or more of the following services: maid, telephone, bellhop service, or the furnishing or laundering of linens.
k. LET FOR OCCUPANCY – to permit, provide or offer, for consideration, possession or occupancy of a building, dwelling unit, rooming unit, premise or structure by a person who is not the legal owner of record thereof, pursuant to a written or unwritten lease, agreement or license, or pursuant to a recorded or unrecorded agreement or contract for the sale of land.
l. MOTEL – a building or group of buildings which contain living and sleeping accommodations used primarily for transient occupancy, may be rented on a daily basis, and desk service is provided, and has individual entrances from outside the building to serve each such living or sleeping unit.
m. OCCUPANT – a person age 18 or older who resides at a Premises.
n. OPERATOR – any person who has charge, care or control of a Premises which is offered or let for occupancy.
o. OWNER – any Person, Agent, or Operator having a legal or equitable interest in the property; or recorded in the official records of the state, county, or municipality as holding title to the property; or otherwise having control of the property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a Court of competent jurisdiction.
p. OWNER – OCCUPANT- an owner who resides in a Dwelling Unit on a regular permanent basis, or who otherwise occupies a non-residential portion of the Premises on a regular permanent basis.
q. PERSON – any person, partnership, firm, association, corporation, or municipal authority or any other group acting as a single unit.

r. POLICE DEPARTMENT – the Police Department of the City of Hazleton or any member thereof sworn to enforce laws and ordinances in the City, and includes the Chief of Police or his designee.
s. PREMISES – any parcel of real property in the City, including the land and all buildings and structures in which one or more Rental Units are located.
t. RENTAL UNIT – means a Dwelling Unit or Rooming Unit which is Let for Occupancy and is occupied by one or more Tenants.
u. ROOMING UNIT – any room or groups of rooms forming a single habitable unit occupied or intended to be occupied for sleeping or living, but not for cooking purposes.
v. TENANT – any Person authorized by the Owner or Agent who occupies a Rental Unit within a Premises regardless of whether such Person has executed a lease for said Premises.
SECTION 2. APPOINTMENT OF AN AGENT AND/OR MANAGER
Each Owner who is not an Owner-occupant, or who does not reside in the City of Hazleton or within a ten (10) mile air radius of the City limits, shall appoint an Agent who shall reside in the City or within a ten (10) mile air radius of the City limits.
SECTION 3. DUTIES OF THE OWNER AND/OR AGENT
a. The Owner has the duty to maintain the Premises in good repair, clean and sanitary condition, and to maintain the Premises in compliance with the current Codes, Building Codes and Zoning Ordinance of the City of Hazleton. The Owner may delegate implementation of these responsibilities to an Agent.
b. The duties of the Owner and/or Agent shall be to receive notices and correspondence, including service of process, from the City of Hazleton; to arrange for the inspection of the Rental Units; do or arrange for the performance of maintenance, cleaning, repair, pest control, snow and ice removal, and ensure continued compliance of the Premises with the current Codes, Building Codes and Zoning Ordinance in effect in the City of Hazleton, as well as arrange for garbage removal.
c. The name, address and telephone number of the Owner and Agent, if applicable, shall be reported to the Code Enforcement Office in writing upon registering the Rental Units.
d. No Dwelling Unit shall be occupied, knowingly by the Owner or Agent, by a number of persons that is in excess of the requirements outlined in 2003 International Property Maintenance Code, Chapter 4, Light, Ventilation, and

Occupancy Limits, Section PM-404.5, Overcrowding, or any update thereof, a copy of which is appended hereto and made a part hereof.
SECTION 4. NOTICES
a. Whenever an Inspector or Code Enforcement Officer determines that any Rental Unit or Premises fails to meet the requirements set forth in the applicable Codes, the Inspector or Code Enforcement Officer shall issue a correction notice setting forth the violations and ordering the Occupant, Owner or Agent, as appropriate, to correct such violations. The notice shall:
1) be in writing; 2) describe the location and nature of the violation; and 3) establish a reasonable time for the correction of the violation.
b. All notices shall be served upon the Occupant, Owner or Agent, as applicable, personally or by certified mail, return receipt requested. A copy of any notices served solely on an Occupant shall also be provided to the Owner or Agent. In the event service is first attempted by mail and the notice is returned by the postal authorities marked “unclaimed” or “refused”, then the Code Enforcement Office or Police Department shall attempt delivery by personal service on the Occupant, Owner or Agent, as applicable. The Code Enforcement Office shall also post the notice at a conspicuous place on the Premises. If personal service directed to the Owner or Agent cannot be accomplished after a reasonable attempt to do so, then the notice may be sent to the Owner or Agent, as applicable, at the address stated on the most current registration application for the Premises in question, by regular first class mail, postage prepaid. If such notice is not returned by the postal authorities within five (5) days of its deposit in the U.S. Mail, then it shall be deemed to have been delivered to and received by the addressee on the fifth day following its deposit in the United States Mail.
c. For purposes of this Ordinance, any notice hereunder that is given to the Agent shall be deemed as notice given to the Owner.
d. There shall be a rebuttable presumption that any notice that is given to the Occupant, Owner or Agent under this ordinance shall have been received by such Occupant, Owner or Agent if the notice was served in the manner provided by this ordinance.
e. Subject to paragraph 4.d above, a claimed lack of knowledge by the Owner or Agent, if applicable, of any violation hereunder cited shall be no defense to closure of rental units pursuant to Section 9, as long as all notices prerequisite to such proceedings have been given and deemed received in accordance with the provisions of this ordinance.

f. All notices shall contain a reasonable time to correct, or take steps to correct, violations of the above. The Occupant, Owner or Agent to whom the notice was addressed may request additional time to correct violations. Requests for additional time must be in writing and either deposited in the U.S. Mail (postmarked) or hand-delivered to the Code Enforcement Office within five (5) days of receipt of the notice by the Occupant, Owner or Agent. The City retains the right to deny or modify time extension requests. If the Occupant, Owner or Agent is attempting in good faith to correct violations but is unable to do so within the time specified in the notice, the Occupant, Owner or Agent shall have the right to request such additional time as may be needed to complete the correction work, which request shall not be unreasonably withheld.
g. Failure to correct violations within the time period stated in the notice of violation shall result in such actions or penalties as are set forth in Section 10 of this ordinance. If the notice of violation relates to actions or omissions of the Occupant, and the Occupant fails to make the necessary correction, the Owner or Agent may be required to remedy the condition. No adverse action shall be taken against an Owner or Agent for failure to remedy a condition so long as the Owner or Agent is acting with due diligence and taking bona fide steps to correct the violation, including but not limited to pursuing remedies under a lease agreement with an Occupant or Tenant. The City shall not be precluded from pursuing an enforcement action against any Occupant or Tenant who is deemed to be in violation.
SECTION 5. INSURANCE
In order to protect the health, safety and welfare of the residents of the City, it is hereby declared that the city shall require hazard and general liability insurance for all property owners letting property for occupancy in the City.
a. Minimum coverage; use of insurance proceeds. All Owners shall be required to obtain a minimum of fifty thousand ($50,000.00) dollars in general liability insurance, and hazard and casualty insurance in an amount sufficient to either restore or remove the building in the event of a fire or other casualty. Further, in the event of any fire or loss covered by such insurance, it shall be the obligation of the Owner to use such insurance proceeds to cause the restoration or demolition or other repair of the property in adherence to the City Code and all applicable ordinances.
b. Property owners to provide City with insurance information. Owners shall be required to place their insurance company name, policy number and policy expiration date on their Rental Property Registration form, or in the alternative, to provide the Code Enforcement Office with a copy of a certificate of insurance. A registration Certificate (see Section 6 below) shall not be issued to any Owner or Agent unless the aforementioned information has been provided to the Code Enforcement Office. The Code Enforcement Office shall be informed of any

change in policies for a particular rental property or cancellation of a policy for said property within thirty (30) days of said change or cancellation.
SECTION 6. REGISTRATION AND LICENSE REQUIREMENTS
a. No Person shall hereafter allow to be occupied, advertise for occupancy, solicit occupants for, or let to another person for occupancy any Rental Unit within the City for which an application for license has not been made and filed with the Code Enforcement Office and for which there is not an effective license. Initial application and renewal shall be made upon forms furnished by the Code Enforcement Office for such purpose and shall specifically require the following minimum information:
1) Name, mailing address, street address and phone number of the Owner, and if the Owner is not a natural person, the name, address and phone number of a designated representative of the Owner;
2) Name, mailing address, street address and phone number of the Agent of the Owner, if applicable;
3) The street address of the Premises being registered; and
4) The number and types of units within the Premises (Dwelling Units or Rooming Units).
The Owner or Agent shall notify the Code Enforcement Office of any changes of the above information within thirty (30) days of such change.
b. The initial application for registration and licensing shall be made by personally filing an application with the Code Enforcement Office as outlined in Section 6D, below. Thereafter, any new applicant shall file an application before the Premises is let for occupancy, or within thirty (30) days of becoming an Owner of a currently registered Premises. One application per property is required, as each property will receive its own license.
c. Upon receipt of the initial application or any renewal thereof and the payment of applicable fees as set forth in Section 7 below, the Code Enforcement Office shall issue a Rental Registration License to the Owner within thirty (30) days of receipt of payment.
d. Each new license issued hereunder, and each renewal license, shall expire on December 31st of each year. This Ordinance shall require registrations beginning for calendar year 2007. The Code Enforcement Office shall mail 2007 license applications by February 28, 2007. Subsequent license renewal applications shall be sent to the Owner or designated Agent on or before November 1st of each year. Renewal applications and fees may be returned by mail or in person to the Code

Enforcement Office. A renewal license will not be issued unless the application and appropriate fee has been remitted.
SECTION 7. FEES.
a. Annual License Fee. There shall be a license fee for the initial registration and license and an annual renewal fee thereafter. Fees shall be assessed against and payable by the Owner in the amount of $5.00 per Rental Unit, payable at the time of initial registration and annual renewal, as more specifically set forth in Section 6 above.
SECTION 8. ENFORCEMENT
a. The following persons are hereby authorized to enforce this Ordinance:
1. The Chief of Police 2. Any Police Officer 3. Code Enforcement Officer 4. The Fire Chief 5. Deputy Fire Chief of the City of Hazleton 6. Health Officer 7. Director of Public Works
b. The designation of any person to enforce this Ordinance or authorization of an Inspector, when in writing, and signed by a person authorized by Section 8.a to designate or authorize an Inspector to enforce this Ordinance, shall be prima facie evidence of such authority before the Magisterial District Judge, Court of Common Pleas, or any other Court, administrative body of the City, or of this Commonwealth, and the designating Director or Supervisor need not be called as a witness thereto.
SECTION 9. FAILURE TO CORRECT VIOLATIONS.
If any Person shall fail, refuse or neglect to comply with a notice of violation as set forth in Section 4 above, the City shall have the right to file an enforcement action with the Magisterial District Judge against any Person the City deems to be in violation. If, after hearing, the Magisterial District Judge determines that such Person or Persons are in violation, the Magisterial District Judge may, at the City’s request, order the closure of the Rental Unit(s), or assess fines in accordance with Section 10 below, until such violations are corrected. Such order shall be stayed pending any appeal to the Court of Common Pleas of Luzerne County.
SECTION 10. FAILURE TO COMPLY WITH THIS ORDINANCE; PENALTIES
a. Except as provided in subsections 10.b and 10.c below, any Person who shall violate any provision of the Ordinance shall, upon conviction thereof after notice

and a hearing before the Magisterial District Judge, be sentenced to pay a fine of not less than $100.00 and not more than $300.00 plus costs, or imprisonment for a term not to exceed ninety (90) days in default of payment. Every day that a violation of this Ordinance continues shall constitute a separate offense, provided, however, that failure to register or renew or pay appropriate fees in a timely manner shall not constitute a continuing offense but shall be a single offense not subject to daily fines.
SECTION 11. APPLICABILITY AND EXEMPTIONS TO THE ORDINANCE
The provisions of the ordinance shall not apply to the following properties, which are exempt from registration and license requirements:
a. Hotels and Motels.
SECTION 12. CONFIDENTIALITY OF INFORMATION
All registration information collected by the City under this Ordinance shall be maintained as confidential and shall not be disseminated or released to any individual, group or organization for any purpose except as provided herein or required by law. Information may be released only to authorized individuals when required during the course of an official City, state or federal investigation or inquiry.
SECTION 13. SAVING CLAUSE
This ordinance shall not affect violations of any other ordinance, code or regulation existing prior to the effective date thereof and any such violations shall be governed and shall continue to be punishable to the full extent of the law under the provisions of those ordinances, codes or regulations in effect at the time the violation was committed.
SECTION 14. SEVERABILITY
If any section, clause, provision or portion of this Ordinance shall be held invalid or unconstitutional by any Court of competent jurisdiction, such decision shall not affect any other section, clause, provision or portion of this Ordinance so long as it remains legally enforceable without the invalid portion. The City reserves the right to amend this Ordinance or any portion thereof from time to time as it shall deem advisable in the best interest of the promotion of the purposes and intent of this Ordinance, and the effective administration thereof.
SECTION 15. EFFECTIVE DATE
This Ordinance shall become effective immediately upon approval.
SECTION 16. This Ordinance is enacted by the Council of the City of Hazleton under the authority of the Act of Legislature, April 13, 1972, Act No. 62, known as the “Home

Rule Charter and Optional Plans Law”, and all other laws enforceable the State of Pennsylvania.
ORDAINED AND ENACTED by Council this ______________ day of December, 2006.

First Reading
(December 13, 2006)

Presented Graham

Seconded Mundie

Gabos

Y

Graham

Y

Mundie

Y

Nilles

Y

Yannuzzi Y

Second Reading
(December 28, 2006)
Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

Third Reading
(December 28, 2006)
Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

 
 ESTABLISHING A REGISTRATION PROGRAM FOR RESIDENTUL RENTAL PROPERTIES; REQUIRING ALL OWNERS OF RESIDENTUL RENTAL
PROPERTIES TO DESIGNATE AN AGENT FOR SER VlCE OF PROCESS; AND PRESCRTBlNG DUTIES OF O W E R S , AGENTS AND OCCUPANTS;
DIRECTI?VG THEDESIGNATION OF AGENTS; ESTABLISHING FEES FOR THE COSTS ASSOCIATED WITH THE REGISTRATION OF RENTAL PROPERTY; AND PRESCRIBING PENALTIES FOR VTOLATIONS

BE IT ORDAINED BY THE GOVERNINGBODY OF THE CITY OF HAZLETON and it is ltereby ordained and ~vitltlte a~~tlzoriotyf the sarne asfollo?vs:

SECTION 1. DEFLVITIONS AND INTERPRETATION. Tl~efollowingwords, wlzen used ill this ordilrance, shall lzave tlze nrearrirtgs ascribed to tlzenl ill this section, except in tlzose imtalzces wlzere tlze colztez clearly indicates othelwise. Wl~errflat illconsistentwith the context, words used iiz tlzepresent tense i~zcltcdethefictzcre;words in thepltrral izunzber inclzcde tlze singzrlar ntcmber; words in tlze singular shall ilrclzcde tlzeplzcral, and words in t / ~ e nzasculine shall ilzclrlde f11efenrirrirze and tlze neuter.

a. AGENT - Itzdividtral of legal major it^^ who has bee11designated b j ~the Owr~eras the ageizt of the Owner or rlzanager of the Property zcnder theprovisioizs of this ordi~rance.
/ I CITY - Cig of Hazleton b. c. CITY CODE - tlze btrildiizg code (property Maintelzalzce Code 1996 as anrended or stcperseded) oofficially adopted by tlze governing body of the City, or otlzer strcl~codes ofleially desig7zated by the goserl~illgbody of the Cityfor the regnlatiolz of colzsb-zection,alteration, addition, repail; renloval, deinolition, locatioiz, occ~tparrcy and nzaintelrance of bltildilzgs and sbuctures.

d
II e. f:

ZONING ORDINANCE-Zolzilzg ordinance as oficially adopted by tlze City of Hazletolr, File of Cot~lzcil#95-26 (as anzended).
OFFICE - The Ofice of Code E~llforce~izeflozrt the City ofHazleton.
DWELLING UNIT- n single habitable zinit, providiizg livingfacilities for one or ~~zorepersorzisi,zclzrdii~gpernza~zes~paltcefor living, sleeping, eating, cookiirg aizd bathing and sanitation, wlzetherfirnlished or ~ci$enzislzed.There may be nzore tlzalz one Dwellilrg Unit 011 a Premises.

g. DORMITORY - a residence hall offered as student orfaculty horsi~rgto accomnrodate n college or trlziversity,providing living or sleeping roonzsfor
ilzdivicltralsor grorcps of illdi~~irltral~s,~ i tolrz~~it/~ocozodlTti1zgfacilities aud wit11or
witlzoutprivate baths

DLSPECTOR - alzypersolz azitkorized by Law or Ordina~zceto inspect btrilditzgs or systenzs, e.g. zoning, lzousi~zgp,lzi~~zbi~ezlge,ctrical systems, lzeat systenis, meclianical syste~?zasnd Iiealtli necessaty to operate or use buildings witliin tlze City ofHazleton. An Iizspector wozrld inclzide tlzose identified in Section 8 - E12forceme,zt.
FLRE DEPARTMENT- tlze Fire Departnzent of tlze City of Hazletolz or any nzenibel. tlzereof; and irzclzldes tlze Clzief ofFire or his desigizee.
HOTEL - a bz[ildilzgorpart of a bzlildiizg in wAic11l i ~ ~ i nangd sleepirzg acconznzodations are usedprilnarily for transient occupancy, ?~znbye rented on a daily basis, and deslc se111iceispro~~ideidn,addition to one or rlzore of t l ~feollowitzg services: niaid, telephone, belllzop senlice, or tl~efilmishilzgor iazrlzderi~zgof lil~ei~s.
LET FOR OCCUPANCY - topennit, provide or offel;for colisideratio~zp,ossessioiz
or occzpaizcy of a buiidi~zgd, welling unit, rooniilzg unit,premise or structzcre by a persol2 MIIIOis not the legal owner of recorrl tkereof;pursuant to a writte11or tinwritten lease, ngreenzent or license, orpzcrszmtzt to a recorded or uizrecorded agreenzent or colzbactfor the sale of land.
MOTEL - a btrilding or grozp of bzrildings wlzich co~ztairzliving and sleeping acconznzodatio~zsisedprin2arilyfor transient occlrpancy, nzay be rented 011 a daily basis, and deslcse~viceisprovided, and has iizdi~~idzrea~l ztra~zcesfio~zi~tszide tlze bzrildilzg to sewe each szrch liviizg or sleepi~zgzrizit.
OCCUPANT- nperson age 18 or older who resides at a Prenzises.
OPERATOR -any persoil who has cliarge, care or conbol of a Prenzises ~~1ziciRs offered or letfor occzrpancy.
OWNER - any Person, Agent, or Operator ha~~inaglegal or equitable interest in the property; or recorded in the official records of tlze state, county, or nzurzicipality as holding title to tlzeproperty; or otlzelwise having colzh-01 of tlzeproperty, iilzcluditzg tlze gzrardiaiz of the estate of alzj~sztch persoil, and the executor or odiizinistrator of the
estate ofsucl~person ifordered to talcepossessiol~of real property by a Court of
conzpeteizt jurisdictiorz.
OWNER -OCCUPANT- an owner who resides in a Dwelling Unit on a regular penizanerzt basis, or wlzo otlzelwise occzpies a IZO~I-residentpioarltio~zof tlze Prenzises 011 a regzrlarpernzane~zbt asis.
PERSON - anyperson, partnership,~ ~ V I JaIs,sociatio~z,corporatiolz, or mu~zicipal azrtlzori@or ally otlier gozip actilzg as a single inzit.
POLICE DEPARTMENT- the Police Depaidlzelzt of the City of Hazetorz or any menzber tlzereof SMIOUIto ellforce laws alzd ordi~za~zciells tlze City, n~ldi~zcludestlze Clzief of Police or his designee.

s. PREMISES - any parcel of real property in tlte City, iincltrding tlue land and all btrildil~gsand s~uctzrresin which one or nzore Rental Units are located.
t. RENTAL UNIT- mea~tsa Dwelling Unit or Roonuii~gUnit which is Let for Occupancy and is occ~cpiedb j ~one or inore Tellants.
u. ROOMmTG UNIT- any roonz or groups of roo~tzfso r ~ n i ~a~sigrzgle habitable unit occurpied or iiztelzded to be occupiedfor sleepilug or living, but notfor cooki~rg purposes.
v. TENANT- any Perso~zaurtlzorized by the Owi~eror Agent wlto occ~piesa Refztal Unit witliiri a Pre~?zisersegardless of ~~17etlzwercclt Persoil has erecurted a leasefor said Prenzises.
SECTION 2. APPOINTMENT OF AN AGENT AND/OR MANAGER
Eaclu 0w11erwho is not an Owner-occ~cpalzto,r who does riot reside in the City offfazleton or wit/~ina ten (10) ~~uialier radizcs of tlue CifJr lii~uitss,hall appoi~zat n Agent 14~1~s0hall reside in tlue City or wit11ilza tell (10) nzile air radius of tlze City lintits.
SECTION 3. DUTIES OF THE OWNER AND/OR AGENT
a. Tlze O M J IhaIs~th~e duty to ntaintaii~tlte Preii~isesin good repair, clearz and sanita~yco~zditiona, lld to n~ai~ztatih~ezPrenzises bt co~itplia~zcweith the current Codes, Building Codes and Zoi~irtgOrdilzalzce of the City of Haileton. Tlze Oumer nzay delegate inzplelnentationof these respo~usibilitietso an Agent.
b. Tlue duties of the Owiter andor Ageiut slzall be to receive notices and conespoi~deltce, incl~cdiizgsewice ofprocess,fionu the City of Hazleton; to arrangefor tlze iiuspectio~o~f tlze Rental Units; do or armr~gfeor thepe~foronl~ancoef ntaii~teiuancec,leaniiug, repair, pest co~~troS l~,I O MaJnd ice renzoval, aizd ensucre co~utilttredcoll~plia~~ofctelze Prenzises with flue ctcrrent Codes, Buildiitg Codes and Zorriizg Ordi~mncein effect in the City of Hazletolz, as well as arrangefor garbage renuoval.
c. The Iuanze, address and telepltoile izunzber of the Owner and Agent, $applicable, shall be reported to t l ~ eCode E~llforcenzentOfice iiu writing zpoit registeri~~tlgte Rental Units.
d. No Dwellilug U~zisthall be occupied, iozowinglj~b j ~tlue Owner or Agent, by a nzcn~berof persoils tllat is in excess of the requirenzeltts o~rtlir~eildl 2003 I~uterllationaPl roperfJ~ Mailtteltatlce Code, Clzapter 4, Ligltt, Ventilation,a~udOccurpalzcyLin~itsS, ectio~zPM404.5, Olrercrowdiiig, or any update tlzereof:a copy of avl~icli~s appended hereto and nuade a part 11ereoJ:

SECTION 4. NOTICES
a. E41eneveran h~spectoror Code E~forcementOfJicerdeternliiles tlzat any Rental Unit or Prenzisesfails to i~zeetlze reqliirenze~ztsetforth in the applicable Codes, the Inspector or Code E~lforcenze~OztfJicer slzall issue a correctiorz notice settingfort11 tlle violatiorls and orderilzg tlze Occzpant, Owtzer or Agent, as appropriate, to correct stcch violatioiw. Tlze notice shall:
1) Be in writing; 2) Describe tlze location and nature of the itiolation; 3) Establish a reasonable tinzefor the correction of tlze violatiofz.
b. All notices shall be seived lpoiz the Occupant, Owrzer or Agent, as applicable, perso~lallyor by certified nzail, return receipt reqltested A copy of any rzotices setlted
sole& on an Occzpa~s~htall also beprovided to the Owner or Agent. In the evelzt
service isfirst attempted by mail and the rzotice is returned bji t11epostal autllorities nzarlced "urlclainzed" or "reficsed", then the Code E~lforcenzentOffice or Police Depmmzent sJzall attenzpt deliveiy by personal service on the Occzipant, Owner or Agent, as applicable. Tlze Code Enjiorcenzelzt Office shall also post the notice at a coizspiclcoltsplace on the Prenzises. Ifpersonal service directed to tlze Owner or Agent carznot be acconplished afrer a reasonable attenlpt to do so, tlzen the notice may be serzt to the Owner or Agent, as applicable, at the address stated on the nzost c t o ~ e n t registratio~zapplicatiofzfor tlze Prenzises ifzquestion, by r e g u l a r f i t class nzail, postage prepaid. Ifsuc11notice is not ret~irnedby tlzepostal autl~oritieswitlzifzfive (5) days of its deposit in the U.S. Mail, then it slzall be deenled to have been delivered to and received by tlze addressee on tlzefifth dayfollowirrg its deposit in tlze U~zitedStates Mail.
c. Forplaposes of this Ordi~zancea, lly notice hereztrzder that is given to the Agent shall be deenzed as notice given to tlze Ow~lel:
d Tlzere shall be a rebtittablepresunlption tlzat any rzotice that is gil~eizto tlze Occlpant,
Owner or Agent tinder this ordi~lanceshall have been received bjr slich Occtipant, Owner or Agent ifthe rzotice was served irz the nzal71zerprovidedby tlzis ol.dirzance.
e. Subject toparagraph 4.d above, a clailned lack of lnzowledge by tlze Owner or Agent, ifapplicable, of any violation hereunder cited shall be no defense to closure of rental zrnits pursuant to Section 9, as long as all noticesprerequisite to suclz proceedir~gs have been given and deenzed received in accordance wit11tlzeprovisiolzs of this ordinance.
f: All notices shall cor~tailza reasolzable time to correct, or take steps to correct,
violations of tlze above. Tile Occlcpant, Owl~eror Agent to whom the notice was addressed may reqrrest additiollal time to cowect violations. Requestsfor additio~zal time must be in writing and either deposited ill tlze U S . Mail host-nlarlced) or handdelivered to tlze Code E~lforcenzeilOt fice ~ritlzi~lfiv(5e) days of receipt of tile nolice

by tlze Occupant, Owner or Agent. The City retai~zstlze right to deny or nzodzfy ti~lze exte~lsio~rezqtlests. Ifthe Occlrpant, Owner or Agent is attenlpting in good faitlz to correct violatio~zsbut is zrnable to do so witl~iizthe tinze specified iiz the notice, the Occupant, Owner or Agent shall have tlze riglzt to request such additional time as nzay be rzeeded to conzplete tlze correction worlc, which request shall not be trnreaso~zably witlzheld.
g. Failure to correct violations withirz tlze ti~rleperiodstated in the notice of violatio~~ shall result in strch actioizs orpeizalties as are setfort11 in Section 10 of this ordinance. Iftlze ~zoticeof violatiorz relates to actioizs or o~~zissiorowf the Occtrparzt,and tlze Occzpa~ztfailtso nzake t l ~neecessaly correctioiz, tlze 0w11eror A g e ~ ~nat y be reqllired to rentedy tlze condition. No adverse actio~zshall be talcen against all Owner or Agent for failure to remedy a conditiorz so long as tlze Owizer or Agent is acting wit11dzre diligerzce a~zdtalcing boizafide steps to correct tlze violatiolz, incl~rdingbut not linzited topilrsui~zgre~izediestr~zdera lease agreement witlz an Occtpaizt or Teizarzt. The City shall not beprecludedfi-OIp~zIrrslli~tgan e~forcen~eancttiolz against arzjr Occlrpa~zot r Terlant who is deenzed to be in ~~iolatiolz.
II SECTION 5. INSURANCE In order toprotect tlze llealtll, safety and welfare of the reside~ztsof the City, it is hereby declared that tlze city shall require lznzard and gelzeral liability ins~rrancfeor all property owrfersletting property for occlpancjr if?the City.
a. Mi~zinz~~cnozverage: use o f irzsurance ~ ~ a c e e dAsll. Owlzers shall be required to obtai~z a ~izi~lirnllo~fifz;& thozrsalzd ($50,000.00)dollars ill geileral liability insurarzce, and hazard and casualty i~zsurancein arz alnoullt suficient to either restore or remove t l ~ e buildi~zgirz the event of a f i e or other caslralty. F~rrtlzel;in tlze event o f a n y j r e or loss covered by such i1zslirance,it shall be tlze obligatio~zof tlze Owner to use suck i~lstrln~zpcreoceeds to cause tlze restoration or de~enzolitioizor otlzer repair of tlze proper@ irz adlzere~lceto tlze City Code and all applicable ordi~zances.
b. Properh, ow~zersto provide Cihr wit11insurance ii~fon?zationO. w~zershall be required to place tlteir insurarzce colrz.pan.y izanze,policy 1zrr111bearnd policy a ~ i r a t i o n d a k on tllet?.Rental Property Registrationform, i r in tlze alternative, top,-ovide the Code E~tfo~cetneOntffice wit11a copy of a certificate of ilzstrrance, A registration Certificate (see Sectiorz 6 be lo^,) shall not be isszred to any Owner or Agent ll~zlesstlze afore~nentioionedifljbrnzationhas beerzprol~idedto tlze Code Efforcement Ofice. T l ~ e Code E~forcen~eOntfice shall be i~fornzedof any clzange in policiesfor aparticular re~ztnlpropertyor ca~zcellotioo~fl apolicy for saidproperty witlzi~ltlzirtp (30) days of said change or ca~zcellation.
I ISECTION 6. RENTAL REGISTRATIONAIM) LICENSE REQUIREMENTS
a. No Person shall hereafter occzpj~a, llow to be occupied, adl~ertisfeor occupancy, solicit occzpantsfoi; or let to anotl~erpelsof~ozr occllpa~zcyany Rental Unit ~litlzifl

the Cityfor which an applicationfor liceizse has not been nzade andfled with tlze Code E~lforcen~eOntfice andfor w11icl~tlzere is not arz effective license. Initial applicatio~land reizewal shall be nlade zrponforn7lwfi~r1risIiedby the Code Elzforcet?ieet Oficefor s~cclzpzcrpose and shall specifically require tlzefollowing nzi~lir~zunz irrfornratiofz:
I ) Nanze, nlaili~zgaddress, street address andpkoize 11unzberof tlze Ow~ze,;and if
tlze Owner is not a naturalperso~zt,lze nanze, address a~zdphonenunzber of a designated representative of the O w ~ ~ e l : 2) Nanle, nzailing address, street address alzdpho~zerzzcnzber of the Agent of the Ownel; ifapplicable. 3) Tlze street address of the Premises being registered. 4) Tlze nun~berand types of units within tlze Prenzises (Dwellirzg Units or Roomir~gUnits)
nze Owner or Agent slzaN notzJLtlze Code E~lforcei~leO~zfitce of atzy c?zanges oftlze above i~lfonnationwitlzilz thirty (30) days of such change.
b. Tlze initial applicationfor registratiolz and licensi~zgshall be nzacle by perso~~allyfiling an applicatio~wl it11tlre Code E~lforcenleizOt fice bj)Novenlber 1, 2006. Tl~ereafter, any new applicant shallfile an application before tlze Prenzises is letfor occzpallq, or witlzi~zthirty (30) days of beconling an Owrzer of a curre~ztlyregistered Prenzises. Orle applicatio~zper property is required, as each propert)) will receive its ow11license.
c. Upon receipt of the initial application or ail))retzewal tlzereof and tlrepaynzent of applicablefees as setfort11 in Section 7 below, tile Code E~forcemeifOt fice shall issue a Rental Registratio11Licerzse to tlze Owner within thirty (30) dajls ofreceipt of pajmzefzt.
d Each new license issued hereurlder, and eacll rerzewal license, shall expire 011 October 31 of eaclz yeal: Tlze Code E12fOrcenze11Ot fice shall inail license relzewal applications to the Owner or designated Agent on or before Septenzber I ofeaclz year. Renewal applicatio~zsandfees nzay be retunzed by n~aiol r inperson to tlze Code E~lforcement Ofice. A r e ~ l e ~l~icaellzse will not be issued zlrlless tlze application and appropriatefee has been renzitted.
1 I SECTION 7. FEES.
a. A~z~ucLailcense Fee. Tlzere slzall be a licensefee for tlze initial lice~~asned an a~z~zzral renewalfee thereafter. Fees shall be assessed agairzst and payable by tlze Owner in the anzou~zot f $5.00per Rental Unit,payable at tlze tinze of i~litiarlegis@ationand alllzual renewal, as ilrore specifically setfortlz in Seeti012 6 above.
b. Occuan?zc~P/ernzit Fee. TJzere shall be a one-tirne occzrpa~~cypenf~ezeitof$lO.OOfor evely new Occtcpant, wl~iclzis payable bjt tlze Occzlpaizt. Forprnposes of initial registration under this ordinance, thisfee shall be paid for all current Occzcpa~ltsby

Novei~~be1r,2006. Tl~ereaftelp: rior to occtipyii~ganjt Rental U~zita, ll Occupa~lts
slzall obtain arz occupancypern~it.It shall be tlze Occ~panSt responsibility to stibnzit
all occ~ipancyper~naipt plicatioil to the Code Eilforcen~eiztOfice,pay thefee and obtaiiz tlze occ~pailypern~iTt.ihere are multiple Occupaizts iiz a sihgle Rental Unit, each Occtipa~usthall obtain his or her ownpernlit. Owner or Agent shall ~zotifLall prospective Occ~pai~otfstllis requirenlent and shall notpen~ziot ccrcpancy of a Rental Ui~iut111esst l ~ eOccupantJirst obtaiils art occzpai~cypenlzit.Each occupancypern~it issued is valid 0111~f1or the Occ~ipanftor as Ioizg as tlze Occuipa~c~ot ~ ~ t i r ~t~o roeccsripy tlze Rental Unitfor MJII~CsImI 11perinit ~ t aaspplied, Any relocation to a dzj%rent Rental Unit requires a new o c c ~ p a ~ z c y p e n ~A~lli tO. cc~lpantsage 65 and oldel; wit11 adequate proof of age, shall be e x e ~ ~ p t f i o t i ~ p n ~t li~ip~eezrgnzit fee, bzit sllall be otlze~wiserequired to conlply ~ ~ i thlits section and tile rest of tlze Ordinance.
I . Applicationfor occupancyperil~itslzall be inade zip071fon~zsfunlished by tlle Code Ellforcentent Oficefor suich purpose and sl~alslpecifcally require tl~feollowii~gnziizinzun~iilfor~natioi~:
a) Nanze of Occtpant b) Mailing address of Occ~ipa~zt
c) Street address of Reiztal Unitfor wlticl~Occtpant is applying, 9
dz~erentfionll~lailiizg address d) Nan~eoflalzdlord e) Date of lease conznzence~~~etzt f) Proof of age ifclaiinirlg exenzptior~fionztlzeperiiziffee g) Proper idei~tificatio~shz owing proof of legal citize~zsllipaild/or
residency
2. Upon receipt of tlze applicatiotz and tl~epajnlzenot f applicablefees as setfort/? above, tlze Code Eilforcei~ze~Oztflce shall issue an Occupailcy Permit to tlle Occupant iilll~lediately.
SECTION 8. ENFORCEMENT
a. Thefollo~~ii~gpersaor~ezhsereby authorized to eilforce this Ordilla~zce:
I . T l ~ Ce lzief of Police 2. Any Police Oficer 3. Code Eifirceme~ztOficer 4. Tlle Fire Chief 5. Depufy Fire Cl~ieof f tlze City ofHazleton. 6. Healtll Oficer 7. Director of Ptiblic Works
b. Tlle desigi~atioo~f a~lzypersoil to ellforce tlzis Ordiiza~zceor atithorizatio~o~f a11 Inspector, when irr writing, aildsig7zed bji aperson azitl~orizedby Section 8.a to designate or authorize an I~lspectorto ellforce this Ordiiza~lces,hall beprimafacie

evidence of such authoritj before the Magisterial District Judge, Court ofComnuon Pleas, or any otl~erCourt, ad~ili~zistratibveodjt of the City, or of this Conunzo~zwealtlz, and the designatir~gDirector or Scpen~isorneed not be called as a witlzess tlzereto.
SECTION 9. FAILURE TO CORRECT UOLATIONS.
Ifany Person shallfail, rejlse or neglect to conuply with a ruotice of violation as setforth in Section 4 above, tlte City shall have t l ~ eright tofile an eiforcellze~a~cttion wit11 tile
Magisterial District Judge against any Person the City deeins to be in violatioiz. If; after
ltearing, tlze Magisterial District Judge deterilzirues that s~lchPerson or Persons are in violation, tlze Magisterial District Judge nlay, at tlze City's request, order tlze closure of flue Rental Unit(s), or assessfines in accordance ~litluSection I0 below, until surch violations are corrected Such order shall be stajtedpel~dil~aglzy appeal to the Cozlrt of Conunuoiz Pleas of Luzerl~eCounty.
SECTION 10. FAILURE TO COMPLY WITH THIS ORDINANCE;PENALTIES
a. Except asprovided irl subsections 1O.b ancl1O.c below, anj]Perso11wlzo shall i~iolate al~j)proi~isioolfzthe Ordi~~aizscheall, trpoll conviction tlzereof after notice and a hearing before the Magisterial District Judge, be sentenced to pay afine of not less tllaiz $100.00 alzcl not more than $300.00pl1rscosts, or inlprisoiznlerttfor a term itot to exceed r~i~zeo(9t0) days in clefatilt ofpajrrluerzt. Eileqr clajr that a violati011of this Ordiinance corztinues sluoll co~tstitzltea separate offe^eiwep, rovided, howei~ei;tluat failure to register or relzel,vorpajt appropriatefees ill a ti~izelynzanner shall ruot colistitulte a co~utillulingoffense but slzall be a single offeense not subject to dailyfiiues.
b. Any Owner or Age~zt~ ~ shhalloallo~al lly Occupant to occ~lpjat Rental Unit witl~ozrt f i s t obtainirzg an o c c u p a ~ u c j ~ p eis~i~ll ~viotlatio~lof Section 7.b atid shall, zcpolz coru~ictiontlzereof after notice and a hearing before the Magisterial District Judge, be sentenced topay afine of $1,000for each Occupa~lttlzat does not have an occupancy pernuit and $IOOper Occupantper dajtfor each dajl tlmt Owrzer or Agelzt co~ztil~uteos allow each s~rchOcculpa~t~ot occ~pjthe Rental Unit ~tithouat n occtpa~zcype~-nzit after Owner or Agent is given notice of such i~iolatioizp~~rszmto~Szetctiorz 4 above. O ~ m eorr Agent shall not be held liablefor the actions of Occ~pantswho allo~l
- additional occupalzcy in ally Rental Unit ~tithouthe Oi,vlzeror Agent's written
uennissio~.z~. rovidedtluat Owner or Aperut tales reasonable stem to remove or register S Z I C ~~Zrrza~ltllorizeOdcczpa~~t(~s)t i t l ltie~ll ~(10) cla~~ofslearrzilzg of their urzautlzorized occtlpallcy ill the Rerttal Unit.Alljt Occ~lpanht al~ingan occ~lpa?zcy pennit but M ~ aOliows ndditioizal occzrpancjt i ~a;~ e ~ z iUanl it wit]~outfirs;obtaillin~ the writteluperlnissio~lof the 0 ~ ~ 1 zoer rAgent and without requirirlg eaclu sltch additio~zalOccupa~zto obtain his or her own occzlparzcyperr~liits ir~violation of Section 7.b of this ordi~lanceand shall, ipon col~victiontl~ereoaf fter notice and a Iiearillg before tlte Magisterial District Judge, be selztenced topay afine of $1,000for eaclz arlrlitional Occupnntpennitted bjr Occ~pnlzthat cloes not have a11occtpancy pewzit and $looper aclditional Occupai~tperdajtfor each day that Occ~pant colztinltes to a l l o e~a~ch such additiolual Occtpa?ltto occzpj~tile Rental Unit witllollt

alz ocnpu~zcypernliat j e r Occtipalzt is given written notice of such violation by
I/ Owner or Agent orpursuant to Sectiolz4 above. SECTION 11. RPPLICABILITYAND EXEMPTIONS TO THE ORDINANCE

Tl~eprool~isio~f t~hse ordinaitce shall not apply to thefollowi~~gpropertie~s,~lricalrze enenzpt fiar~zregistration and licet~serequire~ne~zts:

I1

Hotels, Motels and Dornzitories.

b. Re11ta1Units owned b ~Pt ~iblicAuthorities os def;ned tinder the Pen~lsyh~a~~ia Mllnicipal Autlzorities Act, and Dwelling Units that arepart of a11elderly housing

nlulti-unit bzlilding ~ ~ h i icsh75% occrpied by individrcals over the age of sixty-five.

c. Multi-dwelling tinits that operate icnder I~~ternRaelvenue Service Code Section 42 concerni~~engtities that operate with an elderly conzponent.

d. Properties which corrsist of a double home, Izalfof whiclz is letfor occlipany and lzalf of ~11licihs Ow1ler-occzcpied as tire Owner's residel~ce.
II SECTION 12. CONFIDENTLALIY OF LNFORMATION

All registration i~lfor~natiocnollected by the City under tltis Ordilza~zceshall be mailltailzed as co~zfide~ztianl d sltall ~zobt e disse~~linateodr released to any ilzdividlial,polip or orgaaizatior~for allypzrrpose except asprovided herein or required by law. hlfonnatiolz nzay be released o11l)tto azitliorized ilzdi~~idzrawlshen required dzirilzg the course of arr oficial City, state orfederal in~~estigatioonr ilzquily.
I I SECTION 13. SAWNG CLAUSE This ordi~zanceshall not afect violatiolls of anj~other ordinalzce, code or regulation existing prior to tlre effective date thereof and any suclt i~iolatioirshall be go~iernedand shall contirltie to be punishable to thefzcll extent of the law rrnder tlrepml~isio~oaf tlrose
( 1 ordilzances, codes or regzrlatio~lsin effect at the time tlre ~iiolatiow~a~s co~~t~nitted. SECTION 14. SEVERABILITY

Ifany section, clazwe,provisio~o~rportion of tlzis Ordiinalzce shall be held iizvalid or u~~constitutio~bzyaal ny Cozlrt of conlpetentjtlrisdictioll, slich decision shall not affect any otller sectiolz, cla~lsep,rovisiorr orportiorr of tliis 0rdi1za)zceso long as it renzains legally etflorceable witllout the ilz~~alidportioTnl.re City reseri~estlze riglzt to anzetzd tllis Ordinance or anyportion thereoffionz tinte to tinle as it shall deer~al dvisable in tlze best interest of tlze pronzotion of tlzepzcrposes al~dirltent of this Ordina~rcea, ird tlre effectil~ead~~zilliizistintiolz thereof:

SECTION 15. EFFECTIVE DATE
Tltis Ordina~tceshall beconze effective inzntediately tpon approval. Tlris Orrlirtancerepeals Ordirrance rrrrrrrber 2004-11 arrd replaces sarrre irr its entirety.
SECTION16. This Ordinance is enacted by tlze Council of tlze City of Hazleton under the autltority o f t l ~Ae ct oflegislature, April 13. 1972, Act No. 62, Ifflownas the "Hoine Rtrle Charter and Optional Plans Law': and all other laws elforceable the State ofPennsylvania.
ORDAINED AND ENACTED by Cotiitcil this 15'" day of Atrg~ist,2006.
/s/ Joseph Yanrrrrzzi,CorrrrcilPresider~t
5 Lisa A. Sl~erna,Cot~zciCl lerk of tlze City of Hazleto~l,do hereby certijji tlzat tlzis is a tnre
and correct copj?of Ordiinaizce2006-13, whiclz was adopted by City Cotllzcil on the 1.5'" day of Azrg~ist2, 006.
Given under nty hand and the Seal of tl~eCity of Hazleton, Corrnty of Lz{zenze, Co~~zrizoizwealotkf Pennsj,lva~zia,this 11'" day of October, 2006.

 
 ORDINANCE 2006-19
I I OFFICIAL ENGLISH ORDINANCE BE IT ODAINED BY THE COUNCIL OF THE CITY OF HAZLETON AS FOLLOWS:
IISECTION I. TITLE

This chapter shall be l o z o ~a~n~dzniay be cited as the "City of Hazletoiz Oficial Elzglisli Ordi~za~zc"e.

IIIISECTION 2. FINDINGS AND DECLARATION OF PURPOSE Tlie People of the City of Hazletonfind and declare.

I

A. Tlzat the E~zglishlaizguage is the comnzo~zlatzgzmage of the City of Hazleto~io, f tlze Coiiinzo~z~~eoafltPle~~z~zsjrh~aantiiad of the U~zitedStates.

B. Tlzat the use of a conzrlzolz larzgziage removes barriers of nzisu~zdersta~ldi~azngd helps to unzfi tltepeople of Ciiy ofHazleton, tlze Conznzon~~ealotfl~ Pe~znsyh~anian, d the United States, and helps to enable thefill1 econonric and civicparticipation of all its citizens, regardless of r~atiorzaol rigin, creed, race or other characteristics, aid tllus a coiizpelli~zgover~inze~ztainlterest exists in promoting, presen~ing,arzd strengthe~li~ithge use of the E~zglisAlanguage.

C. Tlzatprofcierzcy in tlze English la~zguage,as well as irz la~zgcmgesotlzer tliarz the English la~zgzmageb, enefits the City of Hazleton both ecoizon~icallyand czmltzlrally and shotlld be erzcouraged.

D. That, in additiolz to nlzy other ways topronzoteproficieircy iiz the English la~zgzlaget,he goveninzent of tlie City of Hazletolz call pronzoteproficiency in English by zlsiizg the E~iglishlalzguage in its oficial actio~isand activities.

E. Tliat in today's nzoden1 socie01,tlie City of Hazletorz nzay also need toprotect a ~ z d p r e s e ~tih~eeriglzts of tllose ~ ~ sphealoc o~ilythe E~zglishla~zguageto use or obtain goven~~~~e~ztaIp~'oangdrab~ei~~zesfits.

F. That the governnzent of tlie City of Hazletolz car1 redzrce costs a~zdprol~iote eficie~zcyirr its roles as enrploj~erand as a goverlznle~zot f tl~epeopleb, y t~sing
I/ the English langzlage in its oficial actioris nizd activities. SECTION 3. OFFICUL BNGLISHDECLAR4TION

A. The English la~tgrlngeis the oficial laizgzlage of the City of Hazletorz,

B. Tlte City Cozrilcil,Mayo?;arid ofjicials of tlze City of Hazleton shall take all steps necessa7-y to iitstrre tliat the role of English as tlze common lang~~aogfethe City of Hazleton ispreserved and e~zhaltced.

IIC.

Tlie gover~tnzentCity of Hazleto~lshall ntalce rzopolicy that di?izinishesor ignores tlze role of Englis11as tlze coiizilzolt lattgzmage of tlie City ofHazletolz.

D. Official actions of the City of Hnzleton that bind or conznzit tlze City of Hazleton or that give tlte appearance ofpresentirig the oficial views orpositioil of the City of Hazletotz shall be taken in the English language, aizd in 710 otlzer language. Unofficial or 71071-bil~rlilztgr.anslations or explanations of oficial actiolts litay beprovided separateljt in laizgzrages other tllalz English, ifthey are appropriately labeled as stlch
-- a7zd re*fereitce is n~adeto a nzetliod to obtain the officialaction: tiizless othelwise
required b jf~ederal law or the law of the Comn107zwealtlzof Peiznsylvarzia, ?toperson has a riglzt to such art trizofficial or izon-biizdin-g.trarzslatiol~or explanation, and ito 1iabilit)tor coiizn~itnzenot f21le City ofHozletoiz shall be based orrszrclr a tiu~lslationor exgla?iation.

E. No ordiltai~ced, ecree,prograln, orpolicy of tile City of Hazleton or any of its sztbdivisioris sl~alrlequire tlie use of any laizguage other than E~zglishfor any doczrntents, re@rlatioizs,orders, &a~tsactionsp,roceedings, nzeetings,progrants, or publicatiorzs, except asprovided in Section 4.

F. A person wlto spealcs onI)1the English language shall be eligible toparticipate in all progranzs, benefits and opport~rnitiesi,71clz1di1zgenzploynzent,provided by tlte City of Hazletoll and its s~tbdivisio~lesx,cept ~111eri1equired to spealc aizotller la7zguage as provided ill Sectiorz 4.

G. No law, ordi7ia77ce, decree,progranz, orpolicy of tlze City of Hazletorz or any of its stlbdivisioiis slzall petzalize or intpair the rigltts, obligatio~lsor opporttlnities available to a?zj~persosnolely becatrse aperson speakcs only the English laizg~rage.

II SECTION 4. EXCEPTIONS The City ofHazletoil and its subdii~isioizsmay use a laltgzmage otlzer than Englishfor any of thefollowing purposes, ~~lzetlroer {tottlte use wozrld be consideredpart of an oficial actiolz:

1I ) I

A. To teach or stcotrrage tile leari~irzgof lal~gzragesother thaiz English. B. Toprotect tlieptrblic lzealtlz or safity.

I I

C. To teach English to tllose ~ l l t oare rzotfluent ill t11elanguage.

I

D. To conlpI)~wit11the Native Aiizerican Lallgzrages Act, tlte I1zdividuals with

Disabilities Edtrcatioir Act, tlte VotirrgRights Act, or anj~otlrerfedenl law or

law of tlie Co~nntomi~ealtolzf Pennsylva7tia.
I

E. Toprotect the rights of crinzi~ladl efelldants and victinzs of crinze,

I I

F. Topronzote trade, conlnzerce, and tourisnz.

G. To create orpronlote nzottos or designations, irlscribepliblic nlonzrnzer~tsa, nd pe~;folazotlzer acts irzvolviilg the czlstoma~yuse of a la~zgzlageotlzer tlzalz English.

H. To utilize terms of art or ternzs orphrasesfi.ont other lar~gzrages~llticlzare conznzonly zlsed in con~nz~ctzicatioo~tzhsenvise ill English.
II SECTION 5. PRNATE USE PROTECTED Tlze declaration and tise of El~glishas the official la~zgzlageof the City of Hazletoil shozlld not be colzsh-cred as i~lfi.ilzgi~1p~0g11 the riglzts of anjrperson to use a lal~gzrageother tlzan English inprivate conznzzrlzicatiolls or actions, inclzrdi~~thge right of govenzme~ztofficials (ilzcltrdi~lg elected officials) to conznzzcnicate with otllers while tlotpelfor1ning oficial actiol~sof the City
/ I of Hazleton. SECTION 6. INTERPRETATION

Nothing in this ordina~lceshall be interpreted as co1y7ictirlgiilith tlze statutes of t l ~ eUnited
/ I States, or the l a ~ o~f tshe Con~moizwealthofPennqZ~~ania. SECTION 7. S E VERABILITY

Ifany part orprovision of this Cl~aptero, r the applicability of anyprovisio~ito anyperson or circunutance, is held to be i~lvalidbjr a cozi1.t of col~~petentjzrrisdictiotnlz.e renzainder of tl~is Clzapter shall rot be affected ttlerebjt and sl~albl e give11eflect to tl~efirlleset xtelltpracticable.

I I

/s/ Joseph Yannrrzzi, Courrcil President

I, Lisa A. Sl~ei~lCao, zllzcil Clerlc of the City ofHazletoll, do hereby certz8 tlzat this is a b v e and correct copy of Ordi~zmlce2006-19, which was adopted by City Coulzcil on the 12'" day of Septenzbel; 2006.
Given t i ~ ~ dnezjr hand and the Seal of the City of Hazleton, County of Lzrzel-ne, Conzmonwealth of Perznsj~l~~at~hliisa1,1"' daj~of October, 2006.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SCOTTSDALE INSURANCE COMPANY
Plaintiff

v.

NO.

THE CITY OF HAZLETON Defendant

v. PEDRO LOZANO, CASA DOMINICA OF HAZLETON, INC., HAZLETON HISPANIC BUSINESS ASSOCIATION, and PENNSYLVANIA STATEWIDE LATINO COALITION,
Necessary Party Defendants

COMPLAINT FOR DECLARATORY JUDGMENT INTRODUCTION
This action seeks declaratory judgment from the Court with respect to the rights and duties of Scottsdale Insurance Company and Defendant City of Hazleton under a policy of insurance issued by Scottsdale to the City of Hazleton in 2005.

Scottsdale seeks a judicial determination of its duties with respect to a judgment entered against the City of Hazleton in a matter previously litigated before this Honorable Court at Docket No. 3:06-cv-01586, captioned Lozano v. City of Hazleton (hereinafter, the "Underlying Action").
I. THE PARTIES 1. Plaintiff, Scottsdale Insurance Company (hereinafter "Plaintiff') is a
stock insurance company duly authorized to issue policies of insurance in the Commonwealth of Pennsylvania. Plaintiff is organized under the laws of the state of Arizona, with its principal place of business located at 8877 North Gainey Center Drive in Scottsdale, Arizona 85258.
2. Defendant, City of Hazleton, Pennsylvania, is a political subdivision organized and existing under the laws of Pennsylvania and maintaining its principle place of business at 40 North Church Street, Hazleton, Pennsylvania l820l.
3. Necessary Party Defendant Pedro Lozano was a plaintiff in the Underlying Action, in which he was identified only as a resident of the City of Hazleton and the owner of multiple rental units within the City of Hazleton. There is no address of record for this Defendant. However, upon information and belief, Mr. Lozano resides at 638 W Diamond Ave Hazleton, PA 18201-4936
2

4. Necessary Party Defendant Casa Dominica 1 of Hazleton, Inc. was a plaintiff in the Underlying Action, in which it was described as a Pennsylvania nonprofit organization designed to promote the Hispanic culture and empower the Hispanic community of Hazleton. The address maintained by this Defendant with the Commonwealth of Pennsylvania, Department of State, Corporations Bureau is 317 Washington Street Freeland, Pennsylvania 18224.
5. Necessary Party Defendant Hazleton Hispanic Business Association was a plaintiff in the Underlying Action, in which it was described as a Pennsylvania non-profit organization designed to promote the business interests of its members. The address maintained by this Defendant with the Commonwealth of Pennsylvania, Department of State, Corporations Bureau is 643 North Vine Street Hazleton, Pennsylvania 18201.
6. Necessary Party Defendant Pennsylvania Statewide Latino Coalition was a plaintiff in the Underlying Action, in which it was described as a Pennsylvania non-profit organization and a non-partisan alliance of Latino leaders, organizations, community activists, students and individuals that that advocates for Latinos in the Commonwealth of Pennsylvania. The address maintained by this
1 This Party is identified in the Underlying Action as both Casa Dominica and Casa Dominicana. Plaintiff has utilized the spelling employed by the Court in its July 26, 2007 decision and verdict.
3

Defendant with the Commonwealth of Pennsylvania, Department of State, Corporations Bureau is 2038 North Hancock Street Philadelphia, Pennsylvania 19122.
7. The remaining parties to Civil Action No. 06-1586 have not been included as Necessary Party Defendants, because: (a) the claims advanced on behalf of Humberto Hernandez were dismissed by the court for failure to present any evidence on his behalf (See No. 06-1586, Doc. 409, p. 191, tn. 84); (b) Rosa Lechuga and Jose Luis Lechuga were determined by the Court to lack standing in the underlying action (See No. 06-1586, Doc. 409, pp. 190-191); and (c) the John Doe Defendants have never been identified on the record and Plaintiff has no means of naming or serving them. II. JURISDICTION
8. This matter is a declaratory judgment action pursuant to 28 U.S.C. §2201 and §2202 based upon a contract of insurance issued by Plaintiff to its Insured, the City of Hazleton, a political subdivision of the Commonwealth of Pennsylvania located in Hazleton, Pennsylvania.
9. Jurisdiction is founded upon diversity of citizenship, pursuant to 28 U.S.C. §1332(a) since there is complete diversity of citizenship between Plaintiff
4

and the Defendants and the amount in controversy exceeds $75,000, exclusive of interest and costs.
10. Venue is appropriate in the Middle District of Pennsylvania pursuant to 28 U.S.C. §1391, as the insurance contract at issue was issued in the Middle District, the location of the City of Hazleton is in the Middle District, and the events at issue in the underlying case all took place in the Middle District.
11. An actual case and controversy of a justiciable nature exists between Plaintiff and the City of Hazleton involving the rights and obligations of those parties under the policy of insurance and dependent upon the construction of said contract of insurance, and the controversy may be determined by a judgment of this, without other, suits.
12. All other identifiable persons or entities who have or claim any interest in the matters in controversy or who would be affected by the declarations made by this Court have been made a party to this action. III. FACTS
(a) THE UNDERLYING CASE 13. On or about August 15, 2006, a civil complaint was filed against the City of Hazleton by fourteen (14) Plaintiffs, consisting of both individuals and nonprofit entities, who challenged the validity of Ordinances adopted by City of
5

Hazleton officials. The civil action was docketed in the United States District Court for the Middle District of Pennsylvania to No. 3:06-cv-01586 (hereinafter referred to as the "Underlying Action").
14. On October 30, 2006, the plaintiffs in the Underlying Action (hereinafter, the "Underlying Plaintiffs") filed an amended complaint (No. 06-1586, Doc. 29), in response to which the City of Hazleton filed a motion to dismiss on December 1,2006 (No. 06-1586, Doc. 56).
15. The Underlying Plaintiffs filed a second amended complaint against the City of Hazleton on January 12, 2007 (No. 06-1586, Doc. 82). A true and correct copy of the second amended complaint, without exhibits, is attached hereto and marked as Exhibit "A."
16. The second amended complaint continued to challenge the validity and enforceability of ordinances adopted by the City of Hazleton. Specifically, the Underlying Plaintiffs challenged the constitutionality and legality of: (1) the City's "Illegal Immigration Relief Act", as amended 2 (also referred to as the "Revised Immigration Ordinance" and the "IIRA"); and (2) the City's Ordinance 2006-13,
2 This Ordinance was amended during the course of the Underlying Action. The various renditions of the Ordinance were assigned Ordinance Nos. 1006-18, 2006-40, and 2007-6.
6

which was commonly referred to as the "Property Registration Ordinance." (See Exh. "A").
17. The second amended complaint filed III the Underlying Action contained nine causes of action, as follows:
(1) The Underlying Plaintiffs claimed that the Revised Immigration Ordinance and Tenant Registration Ordinance violated the Supremacy Clause of the United States Constitution, as both ordinances were preempted by federal immigration law. The Underlying Plaintiffs sought a declaratory judgment that the Ordinances were invalid and injunctive relief preventing their implementation or enforcement. No monetary damages were sought in this count of the second amended complaint. (See Exh. "A", ~~ 100-131).
(2) The Underlying Plaintiffs alleged that the Revised Immigration Ordinance violated their Fourteenth Amendment Due Process rights by failing to provide notice and an opportunity to be heard. The Underlying Plaintiffs sought a declaratory judgment that the Ordinance was invalid and injunctive relief preventing its implementation or enforcement. No monetary damages were
7

sought in this count of the second amended complaint. (See Exh. "A", ~~ 132-145). (3) In Count III, the Underlying Plaintiffs averred that the Revised Immigration Ordinance violated their Equal Protection rights guaranteed by the Fourteenth Amendment. The Underlying Plaintiffs sought a declaratory judgment that the Ordinance was invalid and injunctive relief preventing its implementation or enforcement. No monetary damages were sought in this count of the second amended complaint. (See Exh. "A", ~~ 146-156). (4) This count of the Underlying Complaint claimed that the Revised Immigration Ordinance and Tenant Registration Ordinances were discriminatory and violated the Fair Housing Act. The Underlying Plaintiffs sought a declaratory judgment that the Ordinances were invalid and injunctive relief preventing their implementation or enforcement. No monetary damages were sought in this count of the second amended complaint. (See Exh. "A", ~~ 157-164). (5) Count V of the Underlying Complaint stated a claim for violation of 42 U.S.C. § 1981, and alleged that the Revised
8

Immigration Ordinance was discriminatory as applied to the Underlying Plaintiffs. The Underlying Plaintiffs sought a declaratory judgment that the Ordinance was invalid and injunctive relief preventing its implementation or enforcement. No monetary damages were sought in this count of the second amended complaint. (See Exh. "A", ~~ 165-172). (6) Count VI of the Underlying Complaint alleged that the City of Hazleton adopted the Revised Immigration Ordinance in contravention of the powers granted to it under the Home Rule Charter Law, 53 Pa. C.S. § 2962. The Underlying Plaintiffs sought a declaratory judgment that the Ordinance was invalid and injunctive relief preventing its implementation or enforcement. No monetary damages were sought in this count of the second amended complaint. (See Exh. "A", ~~ 173-187). (7) In this count of the Underlying Complaint, the plaintiffs alleged that the Tenant Registration Ordinance violated Pennsylvania's Landlord and Tenant Act, 68 P.S. § 250.l0l, et seq. The Underlying Plaintiffs sought a declaratory judgment that the Ordinance was invalid and injunctive relief preventing its
9

implementation or enforcement. No monetary damages were sought in this count of the second amended complaint. (See Exh. "A", ~~ 188-198). (8) Count VIII of the Underlying Complaint averred that the Revised Immigration Ordinance and Tenant Registration Ordinance violated the Plaintiffs' right to privacy under the Pennsylvania and United States Constitutions. The Underlying Plaintiffs sought a declaratory judgment that the Ordinances were invalid and injunctive relief preventing their implementation or enforcement. No monetary damages were sought in this count of the second amended complaint. (See Exh. "A", ~~ 199-213). (9) The Underlying Plaintiffs alleged in this Count that the City violated its legitimate police powers in adopting the Revised Immigration Ordinance and Tenant Registration Ordinance, and that enforcement of such Ordinances would result in further violation. The Underlying Plaintiffs sought declaratory judgment that the Ordinances were invalid and injunctive relief preventing their implementation or enforcement. No monetary damages
10

were sought in this count of the second amended complaint. (See
Exh. "A", ~~ 212-237).
18. Via their Prayer for Relief, the Underlying Plaintiffs sought:
(a) a declaratory judgment. ..declaring the Revised Immigration Ordinance and Tenant Registration Ordinance void because they violate the Supremacy Clause, the Due Process and Equal Protection Clauses of [the] Fourteenth Amendment of the Constitution of the United States, violates {sic} the fundamental rights conferred by 42 U.S.C. § 1981 and the Fair Housing Act... violates {sic} privacy rights conferred by the U.S. and Pennsylvania Constitutions; and violates {sic} Pennsylvania's Home Charter Law... and Landlord and Tenant Act. .. ;
(b) an injunction...prohibiting Hazleton and its agents from implementing or enforcing the Revised Immigration Ordinance and the Tenant Registration Ordinance;
(c) an order awarding Plaintiffs the costs incurred in this litigation, including attorneys' fees pursuant to 42 U.S.C. § 1988; and
(d) such other relief as the Court deems just and proper.
(Exh. "A", pp. 65-67).
19. No monetary damages were sought in any of the nine causes of action
contained in the second amended complaint filed in the Underlying Action.
20. The City of Hazleton filed a motion to dismiss the second amended
complaint, with statement of facts and supporting brief, on January 23, 2007 (No.
11

06-1586, Docs. 84, 85, 87). The Underlying Plaintiffs filed a brief in opposition to the second amended complaint and a motion for summary judgment on February 12, 2007 (No. 06-1586, Doc. 106).
21. During the February 22, 2007 pretrial conference, the court determined that the City's motion to dismiss and Underlying Plaintiffs' motion for summary judgment would be consolidated into the preliminary injunction hearing and trial that was already scheduled to commence on March 12, 2007. (No. 06-1586, Doc. 150).
22. Following a full hearing/trial on the merits conducted from March 12, 2007 through March 22, 2007, the Court issued a Decision and Verdict on July 26, 2007 (No. 06-1586, Doc. 209). A true and correct copy of the Decision and Verdict is attached hereto and marked as Exhibit "B."
23. The Court ruled in favor of the Underlying Plaintiffs on Count 1. The City's Revised Immigration Ordinance and Tenant Registration Ordinance were found to violate the Supremacy Clause, as both Ordinances were preempted by federal law. (Exh. "B", pp. 100, 107, 121-22, 191).
24. The Court ruled in favor of the Underlying Plaintiffs on Count II, finding that both Ordinances violated the Fourteenth Amendment's procedural due process requirements. (Exh. "B", pp. 139, 191).
12

25. The Court dismissed the claims asserted in Counts III and IV of the second amended complaint. (Exh. "B", pp. 154, 156, 165-66, 191-92).
26. The Court found in favor of the Underlying Plaintiffs on Count V, finding that the Ordinances impermissibly violated 42 U.S.C. § 1981. (Exh. "B", pp. 170, 192).
27. Count VI was partially dismissed, and partially resolved in favor of the Underlying Plaintiffs. (Exh. "B", pp. 174, 192).
28. Counts VII and VIII of the Underlying Complaint were dismissed. (Exh. "B", pp. 182-84, 188, 192).
29. The Court ruled in favor of the Underlying Plaintiffs on Count IX, finding that the City's enactment of unconstitutional ordinances exceeded its legitimate police powers. (Exh. "B", pp. 186, 192).
30. The Court issued a permanent injunction enJommg the City of Hazleton from enforcing any provision of the Revised Immigration Ordinance or the Tenant Registration Ordinance. (Exh. "B", p. 190).
31. No monetary damages were awarded to the Underlying Plaintiffs in the Underlying Action. The verdict issued on July 26, 2007, awarded only declaratory and injunctive relief in favor of the Underlying Plaintiffs and against the City of Hazleton. (Exh. "B").
13

32. Judgment was entered in favor of the Plaintiffs on July 26, 2007. (No. 06-1586, Doc. 410).
33. Pursuant to an order issued August 16, 2007, the Underlying Plaintiffs are to file a petition for attorneys' fees on or before August 31, 2007. (No. 06-1586, Doc. 413
34. The City of Hazleton filed a notice of appeal on August 23, 2007, which was amended on August 24,2007. (No. 06-1586, Doc. 414, 415).
(b) THE SCOTTSDALE POLICY 35. Plaintiff issued a Public Entity policy of insurance to Defendant, City of Hazleton, designated as Policy Number PKS 0000214, effective January 1, 2005 (hereinafter, the "Policy"). A certified copy of the Policy 3 is attached hereto as Exhibit "C." 36. The Policy provided insurance coverage to the City of Hazleton, as specified in the Policy, during an applicable renewal policy period of January 1, 2006, through January 1,2007. 37. The Policy provided Law Enforcement Liability Coverage, which was occurrence based coverage; Public Officials Liability Coverage, which was claims
3 Page numbers have been inserted at the bottom, right comer of each page of the Policy for ease of reference. All citations to the Policy reference such page numbers.
14

made coverage; and Employment Practices Liability Coverage, which was also claims made coverage. (Id.)
38. Law Enforcement Liability Coverage and the exclusions to same are outlined in the Policy. (See Exh. "C", pp. 23-32).
39. The Underlying Action does not anse from "law enforcement wrongful acts" or "law enforcement activities," as defined in the Policy (Exh. "C" at p. 27), and does not allege an occurrence implicating coverage under the Law Enforcement Liability Coverage Form.
40. Employment Practices Coverage and the exclusions to same are outlined in the Policy. (Exh. "C," pp. 42-51).
41. The Underlying Action does not arise from "employment practices wrongful acts," as defined in the Policy (Exh. "C" at p. 47), and does not implicate coverage under the Employment Practices Liability Coverage form.
42. With respect to Public Officials Liability Coverage, the Policy provides, in relevant part, as follows:
PUBLIC ENTITY POLICY PUBLIC OFFICIALS LIABILITY COVERAGE FORM
CLAIMS MADE COVERAGE Throughout this policy the words "you" and "your" refer to the Named Insured in the Common Policy Declarations, and any other person or organization qualifying as a Named Insured under this policy. The words "we," "us" and "our" refer to the insurance
15

company shown on the Common Policy Declarations as the insurer.
Other words and phrases that appear in quotation marks have special meaning. Refer to SECTION VI - PUBLIC OFFICIALS LIABILITY - DEFINITIONS.
SECTION I - COVERAGES
1. INSURING AGREEMENT
We will pay on behalf of the insured all "loss" resulting from "public officials wrongful act(s)" but only with respect to "claims" first made against the insured during the "policy period" or Extended Reporting Period. The "public officials wrongful act(s)" must occur within the "coverage territory."
2. DEFENSE AND SUPPLEMENTARY PAYMENTS
The insured, except at its own cost and for its own account, will not, without our written consent, make any payment, admit any liability, settle any "claim," assume any obligation, or Incur any expense.
We will have the right, but no duty, to appeal any judgment.
(Exh. "C," p. 34)
SECTION II - EXCLUSIONS
We will not be obligated to make any payment nor to defend any "suit" in connection with any "claim" made against the insured:
9. For "claim(s)," demands, or actions seeking relief or redress in any form other than monetary damages, or for any fees, costs, or expenses which the insured may become obligated to pay as a result of any adverse judgment for declaratory relief or injunctive relief; however, we will afford defense to the
16

insured for "suit(s)" in which monetary damages are requested if not otherwise excluded;
(Exh. "C," p. 35)
SECTION VI - PUBLIC OFFICIALS LIABILITY DEFINITIONS
Whenever used in this Coverage Form, the following words have these meanings:
1. "Claim" means a written notice from any party that it is their intention to hold an insured responsible for "loss" resulting from a "public officials wrongful act" covered by this Coverage Form.
3. "Loss" means any monetary amount which the insured is legally obligated to pay as a result of "public officials wrongful act(s)" covered by this Coverage Form and will include, but not be limited to, judgments and settlements, but "loss" will not include fines imposed by law, or matters which may be deemed uninsurable under the law pursuant to which this Coverage Form will be construed.
5. "Public officials wrongful act" means:
Any actual or alleged:
a. Error or omission, neglect or breach of duty;
b. Violation of civil rights protected under 42 USC 1981 et sequential; or
c. Violation of any state civil rights law;
by you or which arises out of the discharge of duties for you, individually or collectively.
6. "Suit" means a civil proceeding in which monetary damages
17

are alleged because of a "public officials wrongful act" to which this Coverage Form applies. "Suit" includes: a. An arbitration proceeding in which such damages are
claimed and to which the insured must submit or does submit with our consent; or b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent. (Exh. "C", pp. 38-39).
IV. CAUSES OF ACTION COUNT I
43. Plaintiff incorporates paragraphs 1 through 42 of this Complaint by reference as if fully set forth at length herein.
44. Plaintiff provided a defense to the City of Hazleton in the Underlying Action pursuant to a Reservation of Rights issued November 9, 2006. A true and correct copy of the Reservation of Rights letter is attached hereto and marked as Exhibit "D."
45. Subsequent to the issuance of the Reservation of Rights letter, the Underlying Plaintiffs filed a second amended complaint on January 12, 2007. The second amended complaint, unlike prior pleadings, contained no claim for
18

economic or monetary damages, but was limited solely to claims for declaratory and injunctive relief.
46. The July 26, 2007 decision and verdict awarded Plaintiffs declaratory and injunctive relief only.
47. The Public Officials Liability Form, at Exclusion Number 9, provides that:
We will not be obligated to make any payment nor to defend any "suit" in connection with any "claim" made against the insured: 9. For "c1aim(s)," demands, or actions seeking relief or
redress in any form other than monetary damages, or for any fees, costs or expenses which the insured may become obligated to pay as a result of any adverse judgment for declaratory relief or injunctive relief; however, we will afford defense to the insured for "suit(s)" in which monetary damages are requested if not otherwise excluded; (Exh. "C", p. 35) (emphasis added). 48. Plaintiff has no duty of defense or indemnity to the City of Hazleton under the Policy with respect to the Underlying Action, in which the City of Hazleton has filed a notice of appeal. 49. Pursuant to the express terms of Exclusion Number 9, there is no coverage for the declaratory and injunctive relief claims at issue in the Underlying
19

Action or in the City of Hazleton's appeal of the judgment entered against it in same.
50. Because all claims at issue in the Underlying Action and in the City of Hazleton's appeal are excluded from coverage, Plaintiff has no duty to fund the City of Hazleton's appeal of the July 26, 2007 judgment entered in favor of the Underlying Plaintiffs.
51. The Public Officials Coverage Form further provides as follows: 2. DEFENSE AND SUPPLEMENTARY PAYMENTS The insured, except at its own cost and for its own account, will not, without our written consent, make any payment, admit any liability, settle any "claim," assume any obligation, or incur any expense. We will have the right, but no duty, to appeal any judgment.
(Exh. "C," p. 34) (emphasis added). 52. Plaintiff has no contractual duty under the Policy to appeal any
judgment entered against its insured. Plaintiff has no duty to fund the City of Hazleton's appeal of the judgment entered against it in the Underlying Action.
WHEREFORE, Plaintiff, Scottsdale Insurance Company, respectfully requests that this Honorable Court enter an Order declaring the following:
Plaintiff, Scottsdale Insurance Company, owes no duty of defense or indemnity to the City of Hazleton in the Underlying action
20

captioned, Pedro Lozano, et aI., v. City of Hazleton, filed in the United States District Court for the Eastern District of Pennsylvania and docketed to No. 3:06-CV-01586, or in the City of Hazleton's appeal of the judgment entered against it in such Underlying Action.
COUNT II
53. The averments set forth in the foregoing paragraphs 1 through 52 of
this complaint are incorporated by reference herein as though set forth in full.
54. Insurance coverage was provided to the City of Hazleton under the
Public Officials' Liability Coverage Form of the Policy for all "loss" resulting
from "public officials wrongful acts".
55. '''Loss' means any monetary amount which the insured is legally
obligated to pay as a result of "public officials wrongful acts" covered by this
Coverage Form and will include, but not be limited to, judgments and
settlements ..." (Exh. "C", p. 38).
56. However, as stated in Exclusion Number 9 of the Public Officials
Liability Coverage Form:
We [Scottsdale] will not be obligated to make any payment nor to defend any "suit" in connection with any "claim" made against the insured:
9. For "claim(s)," demands, or actions seeking relief or redress in any form other than monetary damages, or for any fees, costs or expenses which the insured may become obligated to pay as a result of any adverse judgment for declaratory relief or injunctive relief;
21

however, we will afford defense to the insured for "suit(s)" in which monetary damages are requested if not otherwise excluded; (Exh. "C", p. 35) (emphasis added). 57. On July 26, 2007, judgment was entered in favor of the Underlying Plaintiffs and against the City of Hazleton in the Underlying Action, and only nonmonetary relief was awarded in the form of a declaratory order invalidating the Ordinances in question and a permanent injunction prohibiting enforcement of the Ordinances. (See Exh. "B"). 58. Pursuant to 42 U.S.C. § 1988, the Underlying Plaintiffs sought an award of attorneys' fees and costs incurred in prosecution of the Underlying Action. 59. By order issued August 16, 2007, the Underlying Plaintiffs were directed to file their petition for attorneys' fees on or before August 31, 2007. 60. Pursuant to the express language of Exclusion Number 9, Plaintiff has no duty under the Policy to pay any fees, costs or expenses which the City of Hazleton may become obligated to pay as a result of the adverse judgment for declaratory relief and injunctive relief entered in the Underlying Action. 61. Plaintiff has no duty under the Policy to pay any attorneys' fees awarded to the Underlying Plaintiffs in the Underlying Action, as the Policy
22

expressly excludes such fees, costs and expenses from the coverage provided for Public Officials Liability.
62. Plaintiff has no duty under the Policy to pay any court costs for which the City of Hazleton may be found responsible in the Underlying Action, as such costs are excluded from coverage under the Policy.
WHEREFORE, Plaintiff, Scottsdale Insurance Company, respectfully requests that this Honorable Court enter an Order declaring the following:
Plaintiff, Scottsdale Insurance Company, has no duty to pay any attorneys' fees, costs or expenses for which the City of Hazleton is determined to be responsible in the Underlying Action captioned, Pedro Lozano, et al., v. City of Hazleton, filed in the United States District Court for the Eastern District of Pennsylvania and docketed to No. 3:06-CV-OI586, or in the City of Hazleton's appeal of the judgment entered against it in such Underlying Action.
COUNT III 63. The averments set forth in the foregoing paragraphs I through 62 of this complaint are incorporated by reference herein as though set forth in full. 64. As previously stated, Plaintiff assumed the City of Hazleton's defense in the Underlying Action pursuant to a reservation of rights, and assigned the law firm of Deasey, Mahoney & Bender, Ltd., to represent the City of Hazleton.
23

65. The City of Hazleton andlor its defense counsel, upon infonnation and belief, retained Kris W. Kobach, Esquire, as counsel to assist in the defense of the Underlying Action.
66. Mr. Kobach entered an appearance for the City of Hazleton in the Underlying Action and remained co-counsel of record for the City throughout the litigation of the Underlying Action.
67. Upon infonnation and belief, the City of Hazleton compensated or agreed to compensate Mr. Kobach for his services in defense of the Underlying Action.
68. Numerous additional attorneys also participated in the Underlying Action on behalf of the City of Hazleton; however, upon infonnation and belief, these attorneys were not compensated by the City for their services.
69. Plaintiff, in its November 9, 2006 Reservation of Rights, declined to fund Mr. Kobach's services or to contribute to the funding of Mr. Kobach's services, and advised the City of Hazleton that any and all compensation to Mr. Kobach was without Plaintiff s consent. (Exh. "D", pp. 7-8).
70. The Policy's Public Officials Liability Coverage Fonn provides, in relevant part, as follows:
2. DEFENSE AND SUPPLEMENTARY PAYMENTS
24

The insured, except at its own cost and for its own account, will not, without our written consent, make any payment, admit any liability, settle any "claim," assume any obligation, or incur any expense. We will have the right, but no duty, to appeal any judgment. (Exh. "C," p. 34) (emphasis added). 71. Plaintiff has no duty under the Policy to pay any fees or costs incurred by the City of Hazleton with respect to legal representation or legal services provided by Attorney Kobach or any other attorney retained directly by the City of Hazleton to participate in the Underlying Action. WHEREFORE, Plaintiff, Scottsdale Insurance Company, respectfully requests that this Honorable Court enter an Order declaring the following: Plaintiff, Scottsdale Insurance Company, has no duty to pay any attorneys' fees, costs or expenses incurred by the City of Hazleton for attorneys or consultants that it retained directly and without the prior written approval of Plaintiff for its defense of the Underlying Action captioned, Pedro Lozano, et al., v. City of Hazleton, filed in the United States District Court for the Eastern District of Pennsylvania and docketed to No. 3:06-CV-01586, or in the City of Hazleton's appeal of the judgment entered against it in such Underlying Action.
25

DATE:

Respectfully submitted,
By:~~________~~__+-~______ Frank J. Lavery, Atty No. PA423 Cheryl L. Kovaly, squire AttyNo. PA73693 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) flavery@laverylaw.com ckovaly@laverylaw.com Attys for Plaintiff, Scottsdale Insurance Company

26

 
 PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 07-3531 _____________
PEDRO LOZANO; HUMBERTO HERNANDEZ; ROSA LECHUGA; JOHN DOE 1; JOHN DOE 2; JOHN DOE 3, a Minor, by His parents; JANE DOE 1; JANE DOE 2; JANE DOE
3; JOHN DOE 4, a Minor by His parents, BRENDA LEE MIELES; CASA DOMINICANA OF HAZLETON, INC.;
HAZLETON HISPANIC BUSINESS ASSOCIATION; PENNSYLVANIA STATEWIDE LATINO COALITION; JANE
DOE 5; JOHN DOE 7; JOSE LUIS LECHUGA
v.
CITY OF HAZLETON,
Appellant
Appeal from the United States District Court for the Middle District of Pennsylvania (No. 3:06-cv-01586)
District Judge: Honorable James M. Munley
Argued October 30, 2008

Before: McKEE, Chief Judge, and NYGAARD and SILER,* Circuit Judges
(Opinion filed September 9, 2010)
Witold J. Walczak, Esq. (ARGUED) American Civil Liberties Union of Pennsylvania 313 Atwood Street Pittsburgh, PA 15213
Omar Jadwat, Esq. (ARGUED) Lee P. Gelernt, Esq. American Civil Liberties Union Immigrant Rights’ Project 125 Broad Street 18th Floor New York, NY 10004-2400
Jennifer Chang, Esq. Lucas Guttentag, Esq. American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111
Jackson Chin, Esq. Foster Maer, Esq.
* Honorable Eugene E. Siler, Jr., Senior Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation.
2

Ghita Schwarz, Esq. Puerto Rican Legal Defense & Education Fund 99 Hudson Street 14th Floor New York, NY 10013
Thomas B. Fiddler, Esq. White & Williams 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103
Elena Park, Esq. Cozen & O’Connor 200 Four Falls Corporate Center P.O. Box 800, Suite 400 West Conshohocken, PA 19428-0800
Ilan Rosenberg, Esq. Thomas G. Wilkinson, Jr., Esq. Cozen & O’Connor 1900 Market Street 3rd Floor Philadelphia, PA 19103
Shamaine A. Daniels, Esq. Community Justice Project 118 Locust Street Harrisburg, PA 17101
Counsel for Plaintiffs-Appellees
3

Kris W. Kobach, Esq. (ARGUED) Professor of Law University of Missouri (Kansas City) 5100 Rockhill Road Kansas City, MO 64110-2499
Harry G. Mahoney, Esq. Carla P. Maresca, Esq. Andrew B. Adair, Esq. Deasey Mahoney, Valentini & North 1601 Market Street Suite 3400 Philadelphia, PA 19103-2978
Elizabeth S. Gallaway, Esq. Mountain States Legal Foundation 2596 South Lewis Way Lakewood, CO 80227
Michael M. Hethmon, Esq. Immigration Reform Law Institute 25 Massachusetts Avenue, N.W. Suite 330 B Washington, DC 20001
Counsel for Defendant-Appellant
Damon Scott 1446 Fair Oaks Lane Florence, SC 29506-5733
4

Paul J. Orfanedes, Esq. James F. Peterson, Esq. Judicial Watch, Inc. 501 School Street, S.W. Washington, DC 20024
Richard A. Samp, Esq. Washington Legal Foundation 2009 Massachusetts Avenue, N.W. Washington, DC 20036
Andrew L. Schlafly, Esq. 17th Floor 521 Fifth Avenue New York, NY 10175
Counsel for Amicus Appellants
Robin S. Conrad, Esq. National Chambers Litigation Center 1615 H Street, N.W. Washington, DC 20062
Carter G. Phillips, Esq. Eric A. Shumsky, Esq. Sidley Austin 1501 K Street, N.W. Washington, DC 20005
Burt M. Rublin, Esq. Ballard Spahr 1735 Market Street 51st Floor Philadelphia, PA 19103
5

Diana S. Andsager, Esq. Mayer Brown 71 South Wacker Drive Chicago, Il 60603
Nancy Winkelman, Esq. Schnader Harrison Segal & Lewis 1600 Market Street Suite 3600 Philadelphia, PA 19103
Kenneth J. Pfaehler, Esq. Sonnenschein, Nath & Rosenthal 1301 K Street, N.W. Suite 600 East Tower Washington, DC 20005
Charles D. Weisselberg, Esq. Berkley Law School 688 Simon Hall Berkley, CA 94720
Jacob S. Pultman, Esq. Allen & Overy 1221 Avenue of the Americas New York, NY 10020
John W. West, Esq. Bredhoff & Kaiser 805 Fifteenth Street, N.W. Suite 1000 Washington, DC 20005
6

Mark D. McPherson, Esq. Morrison & Foerster 1290 Avenue of the Americas New York, NY 10104
Counsel for Amicus Appellees
OPINION
McKEE, Chief Judge.
TABLE OF CONTENTS
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
II. FACTUAL AND PROCEDURAL BACKGROUND. . . . . . . 10 A. Hazleton and its Ordinances. . . . . . . . . . . . . . . . . . . . 10 1. The Illegal Immigration Relief Act Ordinance. 14 2. The Rental Registration Ordinance.. . . . . . . . . 21 B. The Plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 C. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
III. JURISDICTION AND STANDARD OF REVIEW. . . . . . . . 26
IV. SEVERABILITY AND STANDING. . . . . . . . . . . . . . . . . . . 26 A. General Principles of Standing.. . . . . . . . . . . . . . . . . . 30 B. Constitutional Standing. . . . . . . . . . . . . . . . . . . . . . . . 33 1. The Employment Provisions.. . . . . . . . . . . . . . 33 2. Private Cause of Action. . . . . . . . . . . . . . . . . . 41 3. Housing Provisions. . . . . . . . . . . . . . . . . . . . . . 43 a. Landlord Plaintiffs.. . . . . . . . . . . . . . . . 44 b. Tenant Plaintiffs. . . . . . . . . . . . . . . . . . 52 C. Prudential Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7

V. ANONYMITY AND CONFIDENTIALITY.. . . . . . . . . . . . . 62
VI. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 A. Federal Immigration Law.. . . . . . . . . . . . . . . . . . . . . . 67 1. The Immigration and Nationality Act. . . . . . . . 67 2. The Immigration Reform and Control Act. . . . 73 3. The Illegal Immigration Reform and Immigrant Responsibility Act. . . . . . . . . . . . . . . . . . . 78 B. State and Local Immigration Laws.. . . . . . . . . . . . . . . 81 C. Pre-emption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 1. Employment Provisions. . . . . . . . . . . . . . . . . . 94 a. Presumption Against Pre-emption. . . . 94 b. Express Pre-emption. . . . . . . . . . . . . . . 97 c. Conflict Pre-emption.. . . . . . . . . . . . . 105 2. Housing Provisions. . . . . . . . . . . . . . . . . . . . . 132
VII. CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
VIII. APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 A. The Illegal Immigration Relief Act Ordinance. . . . . 147 B. Rental Registration Ordinance. . . . . . . . . . . . . . . . . . 167
I. INTRODUCTION
“Since the late 19th century, the United States has
restricted immigration into this country. . . . But despite the
existence of these legal restrictions, a substantial number of
persons have succeeded in unlawfully entering the United 8

States, and now live within [the] various States.” Plyler v. Doe, 457 U.S. 202, 205 (1982). The dispute we are now called upon to address is one of an increasing number of cases that have arisen from actions that state and local governments have taken because of illegal immigration.
The City of Hazleton, Pennsylvania (“Hazleton” or the “City”) is appealing a permanent injunction that the district court entered prohibiting Hazleton’s enforcement of two local ordinances that attempt to regulate employment of, and provision of rental housing to, certain aliens. Several individuals and organizations sued to enjoin enforcement of the ordinances arguing that they violate the United States Constitution, as well as federal and state statutes. The district court agreed and enjoined Hazleton from enforcing the ordinances in their entirety.
We now hold that the district court erred in reaching the 9

merits of the challenge to the private cause of action provision because no plaintiff has standing to challenge that provision. Accordingly, that portion of the district court’s order will be vacated. However, although our reasoning differs somewhat from the analysis used by the district court, we conclude that it correctly enjoined the rest of the challenged ordinances. We will therefore affirm the district court’s order in all other respects.
II. FACTUAL AND PROCEDURAL BACKGROUND A. Hazleton and its Ordinances
The City of Hazleton is located in Luzerne County in northeastern Pennsylvania. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 484 (M.D. Pa. 2007). Under Pennsylvania law, Hazleton is classified as a City of the Third Class and operates under an “Optional Plan B” form of government. Id. Its executive is a mayor, and its legislature is a city council. Id.
10

Hazleton's population was only 23,000 in 2000. Id.
Between 2000 and the time of trial, however, its population
increased to between 30,000 and 33,000. Id. Much of this
growth was due to an influx of Latino families who migrated
from New York and New Jersey to Pennsylvania in the early
2000s. Id. These newcomers included United States citizens
and lawful permanent residents, as well as persons lacking
lawful immigration status, who are often referred to as
“undocumented immigrants” or “illegal aliens.”1 Id.
1 Hazleton refers to persons who are not lawfully present within the United States as “illegal aliens.” Plaintiffs refer to them as “undocumented immigrants.” We recognize that there are significant criticisms of each term. See, e.g., Beth Lyon, When More “Security” Equals Less Workplace Safety: Reconsidering U.S. Laws that Disadvantage Unauthorized Workers, 6 U. Pa. J. Lab. & Empl. L. 571, 576 (2004) (“Scholarly and popular concerns about the phrase ‘illegal alien’ abound, pointing out that the phrase is racially loaded, ambiguous, imprecise, and pejorative.”); Martinez v. Regents of the Univ. of Cal., 83 Cal. Rptr. 3d 518, 522 n.2 (Cal. Ct. App. 2008) (“[T]he term ‘illegal alien’ [is] less ambiguous [than the term ‘undocumented immigrant.’]”), rev. granted, 198 P.3d 1 (Cal. 2008).
(continued...) 11

Hazleton’s mayor, as well as other local officials,
subsequently concluded that aliens lacking lawful status were to
blame for certain social problems in the City, see J.A. 1672-85,
and that the federal government could not be relied upon to
prevent such aliens from moving into the City, or to remove
them, see Lozano, 496 F. Supp. 2d at 522 n.44. Accordingly,
City officials decided to take independent action to regulate the
local effects of unlawful immigration. See J.A. 1385, 1486-87.
1(...continued) Federal immigration law defines an “alien” as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). “Immigrant” is defined as “every alien except an alien who is within [certain specified] classes of nonimmigrant aliens,” and generally refers only to lawful permanent residents. 8 U.S.C. § 1101(a)(15). Congress has preferred the term “alien” to describe those persons who lack lawful immigration status, see, e.g., 8 U.S.C. §§ 1182, 1227, 1228. We will use the word “alien” rather than “immigrant” because “alien” is more precise, and precision is important to discussions in this area. When discussing issues of employment, we will use the official term: “unauthorized alien.” 8 U.S.C. § 1324a. However, when discussing issues of immigration status, we will use either: “aliens not lawfully present” or “aliens lacking lawful immigration status,” rather than “illegal aliens.”
12

Beginning on July 13, 2006, Hazleton’s City Council began
enacting a series of ordinances designed to address these
concerns. Lozano, 496 F. Supp. 2d at 484.
This litigation concerns two of those ordinances: the
Illegal Immigration Relief Act Ordinance (“IIRAO”), which
consists of Ordinance 2006-18, as amended by Ordinance 2006-
40 and Ordinance 2007-6; and the Rental Registration
Ordinance (“RO”), which consists of Ordinance 2006-13.2
These ordinances attempt to regulate the employment of
unauthorized aliens, and the provision of rental housing to aliens
2 On July 13, 2006, Hazleton enacted Ordinance 2006-10, the first version of the IIRAO. On August 15, 2006, the City enacted Ordinance 2006-13, the RO. On September 21, 2006, Hazleton enacted Ordinance 2006-18, a revised version of the IIRAO, which replaced Ordinance 2006-10 in its entirety. On December 28, 2006, Hazleton enacted Ordinance 2006-40, which amended the IIRAO by adding an “implementation and process” section. Finally, during trial, the City enacted Ordinance 2007-6, which again amended the IIRAO to provide that complaints based, in full or in part, on national origin, ethnicity, or race, would be considered invalid. The full-text of these ordinances is attached as an Appendix.
13

lacking lawful immigration status, within Hazleton.
1. The Illegal Immigration Relief Act Ordinance
The IIRAO begins with a statement of findings and a
declaration of purpose, which asserts:
[t]hat unlawful employment, the harboring of illegal aliens in dwelling units in the City of Hazleton, and crime committed by illegal aliens harm the health, safety and welfare of authorized US workers and legal residents in the City of Hazleton. Illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributed to other burdens on public services, increasing their cost and diminishing their availability to legal residents, and diminishes our overall quality of life.
IIRAO § 2C.3 In response to these concerns, the IIRAO:
seeks to secure to those lawfully present in the United States and this City, whether or not they are citizens of the United States, the right to live in peace free from the threat [of] crime, to enjoy the public services provided by this city without being burdened by the cost of providing goods, support and services to aliens unlawfully present in the United States, and to be free of the debilitating effects on their economic and social well being imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the Commonwealth of Pennsylvania.
3 It is important to note that the parties hotly contest whether aliens in Hazleton actually caused any of these purported problems and whether Hazleton officials had any valid reason to think they did. The district court did not make any factual findings about the cause of any social or fiscal problems Hazleton may be facing, and our discussion should not be interpreted as supporting either side of that debate.
14

IIRAO § 2F.
Section 4 of the IIRAO asserts that it is unlawful “for any
business entity” to “recruit, hire for employment, or continue to
employ” or “permit, dispatch, or instruct any person” who is an
“unlawful worker” to perform work within Hazleton.4 IIRAO
§ 4A. Under the IIRAO, an “unlawful worker” is defined as: “a
person who does not have the legal right or authorization to
work due to an impediment in any provision of federal, state or
local law, including but not limited to a minor disqualified by
nonage, or an unauthorized alien as defined by [8 U.S.C. §
1324a(h)(3)].” IIRAO § 3E. Section 4A requires “[e]very
business entity that applies for a business permit” to “sign an
4 The IIRAO defines “business entity” broadly to mean “any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.” IIRAO § 3A. The term encompasses (but is not limited to) “selfemployed individuals, partnerships, corporations, contractors, and subcontractors.” IIRAO § 3A(1). It includes “any business entity that possesses a business permit, any business entity that is exempt by law from obtaining such a business permit, and any business entity that is operating unlawfully without such a business permit.” IIRAO § 3A(2).
15

affidavit . . . affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.” IIRAO § 4A.
Section 4 also provides for public monitoring, prosecution, and sanctions. Any City resident may submit a complaint to Hazleton’s Code Enforcement Office alleging that a local business entity is violating the section’s prohibition on utilizing the services of an unlawful worker. IIRAO § 4B(1). Upon receipt of such complaint, the Code Enforcement Office requests identity information about the alleged unlawful worker from the employing business, and that business must provide the information within three business days, or Hazleton will suspend its business license. IIRAO § 4B(3). If the worker is alleged to be an unauthorized alien, the Code Enforcement Office submits any identity information received from the business to the federal government, pursuant to 8 U.S.C. § 1373, for verification of “the immigration status of such person(s).”5 Id.
5 8 U.S.C. §1373(c) states: “The Immigration and (continued...)
16

If the Code Enforcement Office confirms that the worker
lacks authorization to work in the United States, the business
must terminate that person within three business days or the City
will suspend its business license.6 IIRAO § 4B(4). Safe harbor
from this sanction is provided to businesses that verify the work
authorization of its workers through use of the “Basic Pilot
Program” (which has since been named “E-Verify”). IIRAO §
4B(5). E-Verify is a federal program for verifying work
authorization which Congress has authorized for use on a trial
basis.
A business whose license is suspended under the IIRAO
5(...continued) Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.”
6 This three business day period is tolled if the business entity acquires further information about the worker and requests a secondary verification from the federal government of the worker’s authorization, or if the business entity tries to terminate the worker and that worker challenges the termination in Pennsylvania state court. IIRAO § 7C.
17

regains its license one business day after it submits an affidavit affirming that it has terminated the unlawful worker. IIRAO § 4B(6). If a business is found to have employed two or more unauthorized aliens at one time, it must also confirm its enrollment in E-Verify in order to recover its license.7 IIRAO § 4B(6)(b). If a business entity violates the IIRAO a second time, Hazleton suspends its license for a minimum of twenty days and reports the violation, whether or not eventually corrected, to the federal government. IIRAO § 4B(7).
The IIRAO further creates a private cause of action against businesses that employ unlawful workers. Section 4E of the IIRAO makes it “an unfair business practice” for a business entity to discharge “an employee who is not an unlawful worker,” if, on the date of the discharge, “the business entity was not participating in [E-Verify] and the business entity was employing an unlawful worker.” IIRAO § 4E(1). An employee
7 City agencies and business that contract with the City for amounts greater than $10,000 are also required to enroll in EVerify. IIRAO § 4C-D.
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discharged under these conditions may sue the business entity under the IIRAO for treble actual damages, as well as reasonable attorney’s fees and costs.8 IIRAO § 4E(2).
The IIRAO also addresses the “harboring” of persons lacking lawful immigration status. Section 5 makes it “unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law.”9 IIRAO § 5A. “Harboring” is broadly defined. The ordinance states: “to let, lease, or rent a dwelling unit to an illegal alien . . . shall be deemed to constitute harboring.” IIRAO § 5A(1). Additionally, Section 7 of the IIRAO makes legal immigration status a condition precedent to entering into a valid lease. IIRAO § 7B. All leases entered into by persons lacking lawful status are deemed breached. Id.
8 Even an employee who is properly terminated for cause (or without cause in the case of an employee at will) has a cause of action under this provision. The ordinance uses “lost” wages as a measure of “damages.” IIRAO § 4E(2).
9 The IIRAO defines an “illegal alien” as “an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq.” IIRAO § 3D.
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The mechanisms for enforcing the housing provisions of the IIRAO are similar to those set forth above for enforcing the employment provisions. Thus, any City resident may file a complaint with Hazleton’s Code Enforcement Office alleging that a property owner is illegally “harboring” a tenant who is an “illegal alien.” IIRAO § 5B(1). Once such a complaint is received, the Code Enforcement Office may request identifying information about the named tenant from the property owner, and the property owner must provide that information within three days. IIRAO § 5A(3). The City then verifies the legality of the tenant’s immigration status with the federal government, pursuant to 8 U.S.C. § 1373(c). IIRAO § 5B(3).
If the federal government confirms that the tenant lacks lawful immigration status, the IIRAO gives the property owner five business days to evict that tenant. IIRAO § 5B(4). If the owner fails to do so, the City suspends the owner’s rental license and bars the owner from collecting any rent for the applicable dwelling unit.10 IIRAO § 5B(4)-(5). These sanctions end one
10 This five business day period is tolled if the property owner acquires further information about the tenant and requests a secondary verification from the federal government of the tenant’s immigration status, or if the property owner tries to evict the tenant
(continued...) 20

business day after the owner submits an affidavit affirming that s/he has corrected the violation. IIRAO § 5B(6). Any subsequent violation subjects the owner to a fine of $250.00 per day per “adult illegal alien” harbored in a dwelling unit, as well as suspension of her/his rental license. IIRAO §§ 5A(2), 5B(8). 2. The Rental Registration Ordinance
The RO operates in conjunction with the anti-harboring provisions of the IIRAO. Section 7 of the RO requires that any prospective occupant of rental housing over the age of eighteen apply for and receive an occupancy permit. RO §§ 1m, 7b. To receive that permit, the prospective occupant must pay a tendollar fee and must submit certain documents, including “[p]roper identification showing proof of legal citizenship and/or residency” to Hazleton’s Code Enforcement Office. RO § 7b. Hazleton landlords are required to inform all prospective occupants of this requirement, and they are prohibited from allowing anyone over the age of eighteen to rent or occupy a rental unit, unless that person has a permit. Id.
Section 10 of the RO provides that a landlord found
10(...continued) and that tenant challenges the eviction in Pennsylvania state court. IIRAO § 7D.
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guilty of renting to someone without a permit must pay an initial fine of $1000 per unauthorized occupant, and an additional fine of $100 per day per unauthorized occupant until the violation is corrected. RO § 10b. An authorized occupant of rental housing who is found guilty of permitting someone without a rental permit to live in her/his apartment must pay the same fine. Id. B. The Plaintiffs
The following six plaintiffs claim that they have standing to bring this suit: Pedro Lozano, John Doe 1, John Doe 3, John Doe 7, Jane Doe 5, and the Hazleton Hispanic Business Association (“Plaintiffs”).11 These Plaintiffs include Hazleton business entities, landlords, and tenants, as well as an organization whose members include Hazleton business entities and landlords. We briefly describe these Plaintiffs, and the basic facts underlying each Plaintiff’s claim to standing.
Pedro Lozano is a lawful permanent resident who immigrated to the United States from Colombia in January 2002. Lozano, 496 F. Supp. 2d at 485-86. He owns a duplex in
11 Eleven plaintiffs filed the operative complaint. The district court dismissed three of them for lack of standing, and that portion of the district court’s decision is not being appealed. Of the eight plaintiffs the district court found to have standing, only six press their cases on appeal.
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Hazleton and rents out half of it to help pay his mortgage. Id. at 488. He hires contractors to perform repairs on his property as needed. Id. at 489.
John Doe 1 was born in Mexico, and had lived in Hazleton for six years at the time of trial. Id. at 486. He is unsure of his immigration status, but believes that he could be removed from the United States. Id. He is similarly unsure of his work authorization. Id. John Doe 1's landlord evicted him because of the risk of being fined pursuant to the aforementioned provisions of the IIRAO and the RO. Id. at 497.
John Doe 3 had lived in Hazleton for four years at the time of trial. Id. at 486. He understands his immigration status to be “illegal,” and he rents an apartment within Hazleton. Id. at 497.
John Doe 7 and Jane Doe 5 were born in Columbia and had lived in Hazleton for more than five years at the time of trial. Id. at 486. They rent a house in Hazleton, but fear eviction and being forced to leave Hazleton if the ordinances are enforced. Id. at 497.
The Hazleton Hispanic Business Association (“HHBA”) is an organization of business owners from the Hazleton area
23

that exists to “promote the interest of [its] business members and to project the image of the Hispanic business community.” Id. at 492 (internal quotation marks omitted). HHBA’s president, Rudolfo Espinal, owns three rental properties in Hazleton and hires contractors to perform repairs on those properties as needed. Id. at 492-93. C. Procedural History
As noted above, numerous plaintiffs filed this action for injunctive relief based upon challenges to the validity of the IIRAO and the RO. Lozano, 496 F. Supp. 2d at 485. The district court granted these plaintiffs’ motion for a temporary restraining order, and the parties agreed to extend that order until the case could be resolved on its merits. Id. These ordinances have never been enforced, and the challenges asserted are facial.
The amended complaint alleges that the ordinances violate the Supremacy Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution; 42 U.S.C. § 1981; the federal Fair Housing Act, 42 U.S.C. §§ 360131; plaintiffs' privacy rights; Pennsylvania’s Home Rule Charter Law, 53 Pa. Cons. Stat. §§ 2961-67; Pennsylvania’s Landlord
24

and Tenant Act, 68 Pa. Cons. Stat. §§ 250.101-50.602; and the limits of Hazleton’s police powers. Id.
At the conclusion of a nine-day bench trial, the district court issued a thorough opinion and order permanently enjoining the City from enforcing the ordinances. The court concluded that eight of the eleven plaintiffs had standing to challenge the IIRAO and the RO, and that it was appropriate for the John and Jane Doe Plaintiffs to proceed anonymously. The court held that the IIRAO and the RO violate the Supremacy and Due Process Clauses of the United States Constitution, as well as 42 U.S.C. § 1981. The court also held that Hazleton, as a City of the Third Class, lacked authority under Pennsylvania’s Home Rule Charter Law to create the IIRAO’s private cause of action, and that it exceeded its police powers in enacting these ordinances.12
This appeal followed. Hazleton argues that Plaintiffs lack standing, and that the district court abused its discretion both in permitting the John and Jane Doe Plaintiffs to proceed anonymously and in issuing a confidentiality order prohibiting
12 The district court dismissed the Equal Protection, Fair Housing Act, privacy, and Pennsylvania Landlord and Tenant Act claims, and those portions of its order have also not been appealed.
25

Hazleton from disclosing the Doe Plaintiffs’ identity information to the federal government. Hazleton further contends that Plaintiffs’ claims are meritless, and that the ordinances are valid under federal and state law.
III. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review a district court’s conclusions of law de novo and its factual findings for clear error. See, e.g., McCutcheon v. Am.’s Servicing Co., 560 F.3d 143, 147 (3d Cir. 2009). We review a district court’s grant of a motion to proceed anonymously and grant of a confidentiality order for abuse of discretion. Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 371 & n.2 (3d Cir. 2008).
IV. SEVERABILITY AND STANDING We first address the threshold question of Plaintiffs’ standing. Here, however, standing implicates the issue of severability – an issue which has yet to be explicitly discussed in this suit. As we explained in Contractors Ass’n v. City of Philadelphia, “[c]ourts considering constitutional challenges to
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statutes often analyze standing problems in terms of the severability doctrine. . . . The severability doctrine governs whether [plaintiffs] have standing to challenge [an] entire [o]rdinance, or just [certain provisions].” 6 F.3d 990, 996 (3d Cir. 1993).
Severability, however, like any non-jurisdictional issue, can be waived, and it is clear that Hazleton has, with one exception, waived issues of severability here. The district court considered whether Plaintiffs have standing to challenge the “employment provisions” and the “housing provisions” of these ordinances as collective wholes, and conducted its merits inquiries accordingly. See, e.g., Lozano, 496 F. Supp. 2d at 518 (“[T]he ordinances at issue have two distinct provisions, one directed to employment issues and one aimed at landlord/tenant issues, [and] we will discuss each topic separately with regard to pre-emption.”). On appeal, Hazleton does not contest the district court’s failure to further sever the ordinances. Rather, Hazleton’s brief characterizes the ordinances the same way the district court did. Thus, Hazleton argues that Plaintiffs lack standing to challenge the “employment provisions” and the “housing provisions,” and that the “employment provisions” and
27

the “housing provisions” are not pre-empted, without further differentiating among those provisions.13
The sole severability issue Hazleton has not waived concerns the IIRAO’s private cause of action. Hazleton has argued that the private cause of action is severable from the rest of the IIRAO’s “employment provisions” both in its brief and at oral argument. Severability of a local ordinance is a question of state law, and Pennsylvania law favors severability. Contractors Ass’n, 6 F.3d at 997. Additionally, there is a presumption in favor of severability where, as here, the ordinances contain a severability provision. Id. For an ordinance to be severable, “[t]he legislating body must have intended that the act or ordinance be separable and the statute or ordinance must be capable of separation in fact. The valid portion of the enactment must be independent and complete within itself.” Saulsbury v. Bethlehem Steel Co., 196 A.2d 664, 667 (Pa. 1964) (emphasis omitted).
13 We note that Hazleton’s waiver of this issue likely speaks to the merits of a severability analysis as well, as severability often turns significantly on intent. If Hazleton had truly intended each provision of the IIRAO and the RO to operate independently, and to stand or fall independently of the other provisions of this regulatory scheme, it surely would have pressed that point sometime during this litigation. It has not done so.
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Here the IIRAO’s severability provision indicates that Hazleton’s City Council did intend the private cause of action provision to be severable from the balance of its regulatory scheme. Furthermore, the private cause of action is not intertwined with the other “employment provisions,” most of which concern business licensing requirements. It can operate independently and is “capable of separation in fact.” Id. We therefore conclude that it is severable. Accordingly, we will evaluate Plaintiffs’ standing to challenge the IIRAO’s private cause of action independently of their standing to challenge the other “employment provisions” and the “housing provisions.”
In essence, the question of standing asks “whether the litigant[s] [are] entitled to have the court decide the merits of the dispute.” Warth v. Seldin, 422 U.S. 490, 498 (1975). As we will explain, we conclude that there is at least one Plaintiff with standing to challenge the employment and housing provisions of these ordinances. Accordingly, we must consider the merits of the challenges to those provisions. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”).
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However, as we will also explain, we find that no Plaintiff has standing to challenge the IIRAO’s private cause of action. Accordingly, review of the legality of that provision must await a challenge by a plaintiff who can establish an Article III injury. A. General Principles of Standing
The irreducible minimum of any standing inquiry derives directly from Article III of the United States Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Article III limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2; see also Lujan, 504 U.S. at 559-60. The judicial power established by Article III is therefore not “an unconditioned authority to determine the constitutionality of legislative or executive acts.” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 598 (2007) (internal quotation marks omitted). Rather, federal courts are permitted to address these questions only if actually adjudicating “the rights of individuals.” Id. (internal quotation marks omitted). Thus, the inquiry into standing must focus on whether a claim is being brought “by a party whose interests entitle him to raise it.” Id. (internal quotation marks omitted). A plaintiff’s “interests” satisfy Article III when the following three elements
30

are present:
First, the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan, 504 U.S. at 560-61 (internal citations, quotation marks,
and alterations omitted).
In addition to these constitutionally required elements of
standing, federal courts have developed a body of self-imposed
limitations on the exercise of their judicial power. See Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004); see
also Oxford Assocs. v. Waste Sys. Auth., 271 F.3d 140, 145 (3d
Cir. 2001). Accordingly, “[e]ven in cases concededly within our
jurisdiction under Article III,” we will decline to decide the
merits of a case when these “prudential standing” requirements
are not satisfied. Elk Grove Unified Sch. Dist., 542 U.S. at 11.
Prudential standing encompasses: “the general prohibition on a
litigant's raising another person's legal rights, the rule barring 31

adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751 (1984).
An organization wishing to bring suit on behalf of its members must satisfy a specific combination of constitutional and prudential standing requirements. See United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 556-57 (1996) (explaining that the first two prongs of the associational standing test are constitutional, while the third prong is prudential). To establish that it has “associational standing” and can represent its members’ interests in federal court, an organization must show that:
(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). Here, Plaintiffs claim that Lozano and the HHBA have
32

standing to challenge the employment provisions of the IIRAO, and that Lozano, the HHBA, and the Doe Plaintiffs have standing to challenge the housing provisions of the IIRAO and the RO. B. Constitutional Standing 1. The Employment Provisions
As discussed above, the IIRAO’s employment provisions require businesses to submit affidavits affirming that they do not utilize the services of unlawful workers; incentivize, and in certain circumstances mandate, the use of E-Verify; create procedures for adjudicating independently of federal law whether a business has employed an unauthorized alien; and penalize a business for doing so by suspending its business license.
The district court held that Lozano had standing to challenge these provisions for himself, and that the HHBA had standing to challenge them on behalf of its member, Rudolfo Espinal.14 Lozano is a landlord, and Espinal is a landlord and
14 Assuming the other requirements of associational standing are met, one member with standing is sufficient for an organization to have standing. See Hunt, 432 U.S. at 342 (“[A]n association may have standing solely as the representative of its
(continued...) 33

owner of a real estate agency. Both are business entities under
the IIRAO,15 and both sometimes hire contractors to perform
work on their rental properties. Accordingly, the district court
found that they faced imminent concrete injury, because if the
IIRAO were enforced, they would be compelled “to comply
with [its] employer requirements . . . adding a burden of time
14(...continued) members. . . . The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.”) (alteration in original) (internal quotation marks omitted) (emphasis added).
15 The employment provisions of the IIRAO regulate the behavior of all “business entities,” a term which as we noted above, is defined expansively and includes even those entities that do not have or need business licenses. At the same time, compliance with these provisions is primarily, although not entirely, coerced through regulating the provision of business licenses. Lozano and Espinal are plainly business entities under the IIRAO; however, neither has testified as to whether he has a business license.
We agree with the Court of Appeals for the Eighth Circuit when faced with the same issue in Gray v. City of Valley Park, 567 F.3d 976 (8th Cir. 2009), that this does not deprive them of standing. Regardless of whether these Plaintiffs have business licenses, the IIRAO applies to them as business entities, and they “must, as law-abiding citizens, comply and conform their conduct according to [the ordinance’s] directives.” Id. at 985; see also id. at 986 (“At the very least, as a business entity covered by the ordinance, [plaintiffs] may not knowingly recruit, hire for employment, or continue to employ, an unlawful worker to perform work within the City. And, when a valid complaint is lodged, [plaintiffs] would be required to . . . provide identity information to the . . . Code Enforcement Office.”) (internal citation omitted).
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and expense to [their] operations.” See Lozano, 496 F. Supp. 2d at 489. Hazleton challenges the district court’s conclusion on several grounds.
Hazleton’s primary argument on appeal is that the “injury” these Plaintiffs face is nothing more than the “cost of compliance” with the IIRAO, and that this is a generalized burden insufficiently particularized to satisfy the injury-in-fact requirement of Article III. It is well-established that an injury must be particularized to support standing. A “particularized” injury is one that “affect[s] the plaintiff in a personal and individual way,” Alston v. Countrywide Fin. Corp., 585 F.3d 753, 763 (3d Cir. 2009) (quoting Lujan, 504 U.S. at 560 n.1) (internal quotation marks omitted), and is established when a plaintiff shows that s/he has “sustained or is immediately in danger of sustaining some direct injury . . . and not merely that [s/]he suffers in some indefinite way in common with people generally,” Ams. United for Separation of Church & State v. Reagan, 786 F.2d 194, 199 (3d Cir. 1986) (internal quotation marks omitted).
Thus, the Supreme Court has rejected attempts by taxpayers to bring suits challenging the government’s use of tax
35

dollars. For instance, in Frothingham v. Mellon, 262 U.S. 447 (1923), the Supreme Court held that a taxpayer lacked standing to challenge a federal appropriations act that she alleged violated the Tenth Amendment. The Court explained that the harm a taxpayer suffers when the government unlawfully uses taxpayer funds is “shared with millions of others [and] comparatively minute and indeterminable.” Id. at 487. Because such an injury is a matter “of public and not of individual concern,” it is not particularized, and therefore insufficient to give rise to Article III standing. Id. The Court has reaffirmed this conclusion many times since, explaining that:
a plaintiff raising only a generally available grievance about government – claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large – does not state an Article III case or controversy. Lujan, 504 U.S. at 573-74. Hazleton attempts to transpose these principles into a quite different context. Hazleton suggests that because all business entities in Hazleton are required to comply with the IIRAO, the burden of complying with the ordinance is “generalized” and not “particularized.” Accordingly, it argues
36

that Lozano and Espinal – and presumably all business entities in Hazleton – lack standing to challenge the IIRAO’s provisions affecting them. The argument could not be more misguided.
Plaintiffs here are not members of the general public complaining of some indefinite and indeterminable harm, such as the unconstitutional expenditure of their tax-dollars. Rather, Lozano and Espinal are direct targets of an ordinance they allege to be unconstitutional, complaining of what that ordinance would compel them to do. Thus, the appropriate comparison is not to taxpayers seeking invalidation of government expenditures, but to taxpayers seeking invalidation of taxes imposed on them. As the Supreme Court explained in Hein, 551 U.S. at 599, it is incontrovertible that taxpayers in this second category have standing: “[o]f course, a taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer.”
Furthermore, Hazleton’s insistence that these Plaintiffs lack standing because their injuries are widely-shared (at least among business entities in Hazleton) is misplaced. The fact that an injury is widely-shared is not the primary focus of the
37

particularized inquiry. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 23-24 (1998). As the Supreme Court explained in United States v. Students Challenging Regulatory Agency Procedures (“SCRAP”), 412 U.S. 669, 688 (1973), “[t]o deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept this conclusion.” The question of particularity turns on the nature of the harm, not on the total number of persons affected.
Lozano and Espinal will not suffer in some “indefinite way in common with people generally” if the IIRAO is enforced. Frothingham, 262 U.S. at 488. Rather, they will be affected in a “personal and individual way” by what the IIRAO requires of them. Lujan, 504 U.S. at 561 n.1. Enforcement of the IIRAO would create coercive pressures compelling them to investigate the work authorization status of the prospective contractors they seek to hire. Additionally, they would be required to submit affidavits to Hazleton’s Code Enforcement Office affirming that they do not knowingly utilize the services of “unlawful workers.” Failure to comply with either directive
38

could result in significant sanctions. These costly requirements, imposed directly and purposefully on these Plaintiffs, are a particularized injury-in-fact.
Hazleton also argues that even if the “cost of compliance” is a theoretically sufficient injury under Article III, these Plaintiffs fail to show that the cost of compliance with the IIRAO is greater than the cost of compliance with federal law. Thus, argues Hazleton, these Plaintiffs fail to show that there would be any actual cost of compliance with the IIRAO itself. Hazleton is mistaken. Federal law certainly does not require anyone to submit an affidavit to Hazleton’s Code Enforcement Office. Though relatively small, that cost is sufficient for standing purposes. “[A]n identifiable trifle is enough for standing.” See SCRAP, 412 U.S. at 689 n.14 (internal quotation marks omitted).
The IIRAO is also much broader than federal law, and coerces as well as incentivizes different behaviors. Lozano and Espinal testified that they only hire workers to perform discrete repair projects on their rental properties as needed. See J.A. 1116, 1122 (Lozano has “problems with [his] roof” and intends to hire “a contractor” to make repairs.); J.A. 1216, 1221 (Espinal
39

intends to hire someone to do “plumbing” and “electrical” repairs as part of the ongoing renovations of his rental properties. He also anticipates hiring someone for tasks such as “shoveling snow.”). Such workers would almost certainly be considered independent contractors under federal law. As we discuss in greater detail below, the federal requirement that employers verify the work authorization status of their employees does not apply to independent contractors. Thus, federal law would not require either Lozano or Espinal to determine such persons’ work authorization status. In contrast, the IIRAO prohibits Plaintiff business owners from “permit[ting], dispatch[ing], or instruct[ing] any person who is an unlawful worker to perform work” (regardless of whether the person is an employee or an independent contractor), and thus compels them to verify the work authorization of any worker whose services they utilize. IIRAO § 4A; see also J.A. 1444. Therefore, we reject Hazleton’s attempt to refute the standing of Lozano and Espinal by arguing that the IIRAO imposes no burdens beyond those imposed by federal law. It clearly does.
Lozano and Espinal have established that if the IIRAO is enforced, it will cause them particularized injury redressable by
40

this court. Since the employment provisions of the IIRAO apply to independent contractors, Lozano and Espinal (and therefore the HHBA) have standing to challenge those provisions. However, it is much less clear whether the private cause of action applies to independent contractors, and we must separately evaluate whether Lozano or Espinal have standing to challenge that provision 2. Private Cause of Action
Unlike the other employment provisions of the IIRAO, which impose restrictions on a business entity not only when it “hire[s] for employment, or continue[s] to employ” an employee, but also whenever it “permit[s], dispatch[es], or instruct[s] any person . . . to perform work,” IIRAO § 4A, the private cause of action on its face affords rights only to an “aggrieved employee.” IIRAO § 4E (emphasis added). Under Section 4E of the IIRAO, it is an “unfair business practice” for a business entity to terminate “any employee who is not an unlawful worker” while it continues to employ an unlawful worker. Id. If it does so, the business entity is liable to the “aggrieved employee” for treble damages. Id. Whereas the rest of the IIRAO speaks of “workers,” the section creating the
41

private cause of action appears to inure solely to the benefit of “employees.”
Lozano and Espinal have not testified that they currently employ anyone who would be considered an “employee,” nor has either testified about any intent to do so. Moreover, even if they had – or even if we were to construe this section as also inuring to the benefit of discharged independent contractors – Lozano and Espinal have not testified that they have plans to hire more than one person, employee or contractor, at any one time, and the record is insufficient to support such a finding. Yet, the IIRAO’s private cause of action arises only if at least two persons work for the same business entity at the same time. Additionally, unlike other provisions they testified about, Lozano and Espinal did not testify that they fear prosecution under the private cause of action provision or that they have any reason to fear such prosecution.
We realize, of course, that the threat of future prosecution can certainly be a sufficiently “imminent” injury to support Article III standing. See Pa. v. W. Va., 262 U.S. 553, 593 (1923) (“One does not have to await the consummation of threatened injury to obtain preventive relief.”). However, that
42

threat must be more than a possibility dependent on multiple contingencies that may never occur. See, e.g., Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 675 (9th Cir. 1988) (explaining that fears of liability reliant on multiple contingencies do not give a plaintiff standing). Lozano and Espinal would be injured by Section 4E of the IIRAO only if they proceeded to hire multiple employees, terminated one while retaining another, and were sued by (or had reason to fear suit by) the terminated employee. This attenuated sequence of events is not even suggested by this record, and it is therefore too tenuous to support a conclusion that either has the requisite personal interest to establish a “case” or “controversy.” Accordingly, we conclude that the district court lacked jurisdiction to consider the merits of these Plaintiffs’ challenges to the IIRAO’s private cause of action. 3. Housing Provisions
The housing provisions of the IIRAO prohibit the knowing or reckless harboring of “illegal aliens” (defined to include the knowing or reckless provision of rental housing); subject landlords who violate this prohibition to significant monetary sanctions; and invalidate any lease entered into by
43

persons lacking lawful immigration status. The RO requires all persons over the age of eighteen who seek to live in rented property to obtain an occupancy permit; makes possession of documentation of lawful immigration status a requirement for receiving that permit; prohibits landlords from renting to persons who lack a permit; and subjects landlords who do so to suspension of their rental license and a concomitant prohibition on collecting rent from the dwelling units involved.
The district court held that Lozano, the HHBA (again on behalf of its member Espinal), and the Doe Plaintiffs have standing as landlords and tenants to challenge the housing provisions of the IIRAO and the RO. a. Landlord Plaintiffs
The district court concluded that landlords Lozano and Espinal had suffered a constitutionally sufficient injury-in-fact because the housing provisions made it more difficult for them to rent apartments. The court also concluded they had standing because Hazleton’s enforcement of the housing provisions would directly impose certain requirements on them, costing them both time and money. See Lozano, 496 F. Supp. 2d at 48889. Hazleton contests the court’s conclusions on several
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grounds. Hazleton first argues that the record fails to support the
district court’s finding that the housing provisions made it more difficult for Lozano and Espinal to rent their properties. According to Hazleton, the record reveals that the landlords had the same “mixed success” in renting apartments both before and after passage of the ordinances. Hazleton’s Br. 23. Hazleton therefore claims that Lozano and Espinal have suffered no injury at all. We cannot agree.
The district court’s finding that both Lozano and Espinal had more difficulty finding tenants for their properties following passage of the IIRAO and the RO is supported by the record, and certainly not clearly erroneous. Lozano testified that tenants who had been renting from him since he acquired his rental property in 2005 “ran away” upon learning about the ordinances in mid-2006. J.A. 1108. Lozano further testified that he has been able to find tenants only sporadically since then, and that at least one prospective tenant, who had been quite interested in an apartment, reacted with concern and quickly departed after Lozano informed him about the requirements of the IIRAO and the RO. J.A. 1111-12. Espinal similarly testified that he has
45

had more difficulty in renting apartments since passage of the ordinances, and that on at least one occasion, he showed an apartment to potential tenants, who “were going to take [it],” but after telling these applicants about the ordinances, “they never called [him] back.” J.A. 1215. The record therefore supports the district court’s conclusion that Lozano and Espinal suffered sufficient injury to establish Article III standing.
Hazleton next argues that even if Lozano and Espinal did lose tenants and rental income because of these ordinances, such an injury is not “legally cognizable” because landlords have no right to rent to illegal aliens. Hazleton makes the rather hyperbolic metaphor of comparing these Plaintiffs to “drug dealers” asserting a claim to the proceeds of their unlawful activity. The City states: “[j]ust as a drug dealer has no legallycognizable interest in income derived from violations of federal drug laws, a landlord has no legally-cognizable interest in income derived from continuing violations of federal immigration law.” Hazleton’s Br. 24. Hazleton’s comparison is as regrettable as it is unsound.
It is unfortunate that we must point out that there is no evidence in the record that the prospective tenants who chose
46

not to rent from Plaintiffs were here unlawfully, as Hazleton’s argument presumes. There are certainly other reasons why such invasive ordinances might dissuade a prospective tenant from renting in Hazleton. However, even if we were to assume that all deterred tenants were here unlawfully, we would still conclude that Plaintiffs assert an injury cognizable under the law.
By comparing landlords to persons who sell drugs in direct contravention of federal law, Hazleton distorts both the applicable law and the interests these Plaintiffs assert. Federal law simply does not prohibit landlords from renting (in the ordinary course of business) to persons who lack lawful immigration status. Nor does federal law directly prohibit persons lacking lawful status from renting apartments. As we discuss in further detail below, there is a federal prohibition against “harboring” of aliens lacking lawful presence. However, this prohibition is not nearly so broad as Hazleton’s, and has never been held to apply to a landlord who does nothing more than rent to a tenant who happens to be here unlawfully. In light of these realities, we think the interest that these Plaintiffs assert is more appropriately characterized as an interest in continuing
47

to operate their rental businesses consistent with the less costly
mandates of federal law, and that is an interest which supports
Article III standing.
Hazleton also argues that these Plaintiffs fail to establish
that the IIRAO and the RO caused whatever injury they have
suffered because actions of independent third-parties (the
potential tenants) are responsible for that injury, not the
ordinances themselves. Hazleton draws its argument from the
discussion of causation in Lujan. There, the Supreme Court
explained that when the “plaintiff is himself an object” of a
challenged government action, “there is ordinarily little question
that the action . . . has caused him injury, and that a judgment .
. . will redress it.” Lujan, 504 U.S. at 561-62. However, when
a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction – and perhaps on the response of others as well. . . . Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish.
Lujan, 504 U.S. at 562 (internal quotation marks omitted).
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Hazleton contends that the landlord Plaintiffs cannot satisfy this higher burden.
In Pitt News v. Fisher, 215 F.3d 354 (3d Cir. 2000), we discussed when the regulation of a third-party “causes” a plaintiff’s injury for the purposes of Article III. There, Pennsylvania had amended its Liquor Code to impose criminal sanctions on businesses that advertised alcoholic beverages in publications directed at educational institutions. The Pitt News, a student-run newspaper at the University of Pittsburgh, sued to enjoin enforcement of this amendment, and asserted standing based on the fact that its advertising revenues had suffered because of advertisers’ compliance with the law. The district court held that “indirect economic effects resulting from a regulation aimed at third parties” were insufficient to give The Pitt News standing. Id. at 358.
In reversing that ruling, we explained that the advertisers would not have cancelled their contracts with The Pitt News were it not for the regulation. The fact that advertisers would cancel their contracts, thereby reducing advertising revenues, “was not only reasonably foreseeable when the Commonwealth decided to enact and enforce [the Act], it was the very goal of
49

the statute.” Id. at 361 (internal citation omitted). Accordingly, we concluded that the injury the newspaper suffered was “fairly traceable” to enforcement of the statute against its advertisers.
The situation in Pitt News is analogous to the situation here. The housing provisions of the IIRAO and the RO have already deterred certain renters from contracting for housing with Lozano and Espinal, and these ordinances will continue to deter other renters if they are enforced. This deterrence “was not only reasonably foreseeable” when Hazleton enacted these ordinances, it was Hazleton’s “very goal.” Id. The injuries Lozano and Espinal assert are a direct, predictable, and anticipated consequence of the regulation. Accordingly, their injuries are “fairly traceable” to the ordinances.
Moreover, Hazleton’s argument ignores that Lozano and Espinal are not just directly impacted by the ordinances, but directly regulated as well. The housing provisions of the IIRAO and the RO regulate both tenants and landlords. Although the injury on which Hazleton focuses, the injury of lost rental income, is caused by the requirements imposed on tenants, the district court found, and we certainly agree, that these landlords would be equally injured by the requirements the IIRAO and the
50

RO impose on them. Thus, even if we agreed with all of
Hazleton’s arguments thus far, we would still conclude that
Lozano and Espinal have standing. The housing provisions of
the IIRAO and the RO regulate the ability of landlords to
contract with certain persons. They require landlords to explain
the ordinances to all prospective renters and to examine those
renters’ occupancy permits. More generally, they compel
landlords to act as local enforcers of immigration law in ways
that far exceed their obligations under federal law. Compliance
with these requirements elevates the cost of doing business as a
landlord, and that alone gives them Article III standing.16
16 We note, however, that the RO explicitly exempts from its registration and license requirements those “[p]roperties which consist of a double home, half of which is let for occupancy and half of which is Owner-occupied as the Owner’s residence.” RO § 11d. At trial, Lozano testified that he owns a “two-family” home. J.A. 1107. He lives in one unit with his family, and rents out the other unit, which is subdivided into two separate apartments, to help him pay the mortgage. See J.A. 1107-08. To our knowledge, the parties have not raised whether the “double home” exception applies to Lozano, and the district court did not address the issue. If that exception does apply, Lozano could not establish a sufficient injury to challenge the RO. See Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405 (3d Cir. 2005) (explaining that because standing is a jurisdictional issue, it cannot be waived, and the court must, when necessary, consider it sua sponte). However, even assuming that Lozano is exempt from the RO, other Plaintiffs would still have standing to challenge that ordinance, and we therefore would still have jurisdiction to review it.
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b. Tenant Plaintiffs
Because “[t]he loss (or imminent loss) of one’s apartment
and the inability to rent a new one is certainly an actual and
concrete injury,” caused by the ordinances and
redressable by the court, the district court concluded that the
Doe Plaintiffs, who lack lawful immigration status, also have
standing to challenge the housing provisions of the IIRAO and
the RO. Lozano, 496 F. Supp. 2d at 497-98.
Hazleton first argues that the district court erred in
finding that John Does 3 and 7 and Jane Doe 5 face imminent
injury. According to Hazleton, their fears of eviction are merely
conjectural because “none of them have been evicted or have
received any threat or warning that they might be evicted in the
future.”17 Hazleton’s Br. 20. We are entirely unconvinced.
17 Hazleton does not extend this argument to John Doe 1, which is wise since John Doe 1 was evicted by his landlord because of these ordinances. See J.A. 831-32. Hazleton does challenge John Doe 1's standing, however, based on its contention that John Doe 1 is lawfully present in this country. We recognize that the record contains conflicting testimony as to John Doe 1's immigration status. On the one hand, John Doe 1 testified that his father, a United States citizen, submitted a “petition” to make John Doe 1 a “legal resident,” and that the United States government approved that petition. J.A. 808-09. On the other hand, John Doe 1 testified that he is unsure of his immigration status and his work authorization, that he believes he is removable, and that he is “not here legally.” See J.A. 809-10, 832. We therefore cannot conclude
(continued...) 52

These Plaintiffs all testified that they feared losing their apartments and having to move elsewhere. See J.A. 888, 929, 951. Hazleton cites John Doe 3's testimony that he did not expect to be evicted because his landlord “doesn’t care much about” the ordinances, J.A. 888, as evidence that he faces no imminent injury. However, Hazleton misconstrues this testimony. John Doe 3 later explained that he had been told by his landlord’s agent that his landlord did not expect the ordinances to ever go into effect, and for that reason, John Doe 3 had been unconcerned. See J.A. 889-90. He also testified that he has no reason to believe that his landlord would not comply with the ordinances if they are enforced. J.A. 889-90. Given the harsh sanctions the IIRAO and the RO would impose on any landlord who rented to him or the other Doe Plaintiffs, such fears are plainly well-founded. The possibility of eviction is therefore much more than “conjecture.” A plaintiff need only show “a realistic danger of sustaining a direct injury as a result
17(...continued) that the district court’s findings as to the legitimacy of his fears were clearly erroneous. Regardless of John Doe 1's precise legal status, we think that he has established standing. He has been evicted because of the ordinances, and his own understanding of – and his ability to prove – his status is sufficiently uncertain that he is quite likely to suffer further injury if the ordinances are enforced.
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of the statute’s operation or enforcement,” and the Doe Plaintiffs clearly do so. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
Hazleton also raises here the converse of its argument above: it contends that the Doe Plaintiffs lack standing because their claimed injuries would be caused by third-party landlords, and not the ordinances. This verges on the ridiculous. Just as Hazleton’s ordinances compel tenants not to rent from Plaintiff landlords, they compel landlords not to rent to Plaintiff tenants. The Doe Plaintiffs’ fears that their landlords will not rent to them – because the IIRAO and the RO require those landlords not rent to them – are certainly “fairly traceable” to the ordinances. Additionally, as Hazleton well knows, these ordinances directly regulate tenants as well, and therefore would injure the Doe Plaintiffs regardless of their landlords’ reactions to them. The IIRAO and the RO would invalidate their leases, and would require them to pay a fee and provide documentation (which they lack) in order to continue renting apartments in Hazleton. These injuries easily satisfy Article III.
Finally, Hazleton argues that the Doe Plaintiffs fail to establish redressability because, even if this Court struck down
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the ordinances, the Doe Plaintiffs would still be subject to removal. According to Hazleton, this Court cannot grant “a remedy that takes the Doe [P]laintiffs out of legal jeopardy. They will still be in violation of federal law and subject to removal.” Hazleton’s Br. 21. Hazleton greatly overstates the demands of this element of constitutional standing.
As the Supreme Court explained in Larson v. Valente, 456 U.S. 228, 243 n.15 (1982), “a plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Redressability therefore does not require that a court be able to solve all of a plaintiff’s woes. Rather, we need only be able to redress, to some extent, the specific injury underlying the suit. See Mass. v. EPA, 549 U.S. 497, 526 (2007) (holding that redressability prong was satisfied because risk of global climate change would be reduced “to some extent” by relief requested). By permanently enjoining enforcement of the housing provisions of the IIRAO and the RO, this court can provide meaningful redress for the injury the Doe Plaintiffs assert. Such relief would substantially decrease the likelihood that they will
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be evicted and/or unable to procure rental housing while they remain in the United States. That is more than sufficient to establish standing.
Because Lozano, HHBA member Espinal, and the Doe Plaintiffs will suffer injury caused by the ordinances and redressable by the court, we conclude that they have Article III standing to challenge the housing provisions of the IIRAO and the RO. C. Prudential Standing
Even when a plaintiff satisfies Article III standing requirements, federal courts may nonetheless decline to consider that plaintiff’s claims for prudential reasons. Hazleton contends that there are two prudential considerations which counsel restraint here.
Hazleton first argues that Plaintiffs lack prudential standing because they do not fall within the “zone of interests” protected by federal immigration law. Hazleton misstates the applicable zone of interests inquiry in the pre-emption context.
The Supreme Court has explained that a plaintiff may bring suit only when the interests s/he asserts are “arguably within the zone of interests to be protected or regulated by the
56

statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). This limitation on standing arose in suits challenging agency action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, but has since been employed more broadly. See Bennett v. Spear, 520 U.S. 154, 163 (1997) (The “zone-ofinterests test [was first applied] to suits under the APA, but later cases have applied it also in suits not involving review of federal administrative action and have specifically listed it among other prudential standing requirements of general application.”) (internal citations omitted). However, outside of the administrative law context, the test may have different permutations, see Conte Bros. Auto., Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 226 (3d Cir. 1998), and “the breadth of the zone of interests [will vary] according to the provisions of law at issue,” Bennett, 520 U.S. at 163.
Thus, in the pre-emption context, we have explained that the relevant prudential inquiry is not whether a plaintiff’s interests fall within the zone protected by the allegedly preempting federal provision, in this case, federal immigration law. In St. Thomas-St. John Hotel & Tourism Ass’n v. Virgin Islands,
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218 F.3d 232 (3d Cir. 2000), several employer organizations
brought suit to enjoin a Virgin Islands law establishing that
employees could only be terminated for cause. The plaintiffs
alleged that this law was pre-empted by the National Labor
Relations Act (“NLRA”), 29 U.S.C. §§ 151-169. On appeal,
defendants argued that plaintiffs lacked prudential standing to
invoke the pre-emptive effect of the NLRA, because the
NLRA’s zone of interests did not encompass employers’
interests in terminating their employees. We agreed with the
defendants’ characterization of the NLRA’s zone of interests,
but found this no bar to employers’ prudential standing. We
explained:
We know of no governing authority to the effect that the federal statutory provision which allegedly preempts enforcement of local legislation by conflict must confer a right on the party that argues in favor of preemption. On the contrary, a state or territorial law can be unenforceable as preempted by federal law even when the federal law secures no individual substantive rights for the party arguing preemption.
Id. at 241.
Pre-emption suits arise under the Supremacy Clause and
vindicate the interests of that Clause, not the interests of the pre-
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empting federal provision. Therefore, the appropriate prudential inquiry in pre-emption cases (if any such inquiry is necessary at all) must be whether the plaintiff’s interests fall within the zone protected by the Supremacy Clause itself. See, e.g., Wilderness Soc’y v. Kane Cnty., 581 F.3d 1198, 1217 n.11 (10th Cir. 2009) (declining to decide if zone of interests test applies in preemption cases, but emphasizing that if it does, “the relevant zone of interest is that of the Supremacy Clause and not of the allegedly preempting federal statute”); Pharm. Research & Mfrs. v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001) (In a pre-emption case, “it is the interests protected by the Supremacy Clause, not by the preempting statute, that are at issue.”). These interests, which are no less than our society’s interest in a working federalism, are societal, not individual. Accordingly, all Plaintiffs fall within their breadth, and have prudential standing here.
Hazleton also argues that we should, as a matter of prudential standing, refuse to adjudicate the Doe Plaintiffs’ claims because they concede that they lack lawful immigration status. Hazleton relies on National Coalition of Latino Clergy, Inc. v. Henry, No. 07-CV-613, 2007 WL 4390650 (N.D. Okla.
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Dec. 12, 2007), the unpublished decision of a lone federal district court as support for its contention.18
In Henry, the District Court for the Northern District of Oklahoma considered challenges to the Oklahoma Taxpayer and Citizen Protection Act of 2007, a law which mirrors the IIRAO in several respects (and which, in subsequently-filed litigation, Chamber of Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010), was preliminarily enjoined in part). The court concluded that those plaintiffs lacking lawful immigration status had Article III standing, but nonetheless held that it would not consider their claims for prudential reasons. Explaining that courts have traditionally refused to entertain cases brought by plaintiffs with “unclean hands,” it reasoned that the “illegal alien Plaintiffs seek nothing more than to use this Court as a vehicle for their continued unlawful presence in this country.” Id., at *9. To allow them to do so, the court concluded, would make it an “abetter of iniquity,” a result it found “unpalatable.” Id. The court thus adopted “a new, and narrow, prudential
18 As a general rule, we do not consider arguments arising out of unpublished decisions, and do so here solely for the purposes of putting to bed Hazleton’s argument, which we find particularly troubling.
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limitation” on standing: [a]n illegal alien, in willful violation of federal immigration law, is without standing to challenge the constitutionality of a state law, when compliance with federal law would absolve the illegal alien’s constitutional dilemma – particularly when the challenged state law was enacted to discourage violation of the federal immigration law.
Id. Hazleton argues that, for the reasons articulated in Henry,
we “too must prudentially decline to take jurisdiction with respect to the Doe Appellees.” Hazleton’s Br. 19. Henry’s invented bar to judicial access is entirely improper, and we will not accept Hazleton’s invitation to duplicate that error here.
The Henry decision, both in substance and tone, fails to appreciate that whatever a person’s immigration status, “an alien is surely a ‘person’” entitled to Due Process Clause protections. Plyler, 457 U.S. at 210; see also Wolff v. McDonnell, 418 U.S. 539, 579 (1974) (“The right of access to the courts . . . is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.”). The Supreme Court therefore has certainly considered
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judicial challenges brought by persons lacking lawful immigration status, see, e.g., Plyler, even when “compliance with federal law” would have absolved “the illegal alien’s constitutional dilemma,” Henry, 2007 WL 4390650, at *9.
Henry defends its rule by claiming that it would not deny persons without lawful status all access to the courts, as they would retain prudential standing to sue for harms unrelated to their status. But this caveat assures little. As this case demonstrates, all it takes for a harm to become “related to” a person’s immigration status is for some legislative body to decree it so. The scope of these aliens’ rights would therefore, under Henry’s reasoning, be entirely dependent on the will of state and local legislatures, which could tie any consequence of their choosing to unlawful status and never face judicial review.
The Doe Plaintiffs satisfy Article III standing requirements, and the prudential standing requirements of general applicability set forth by the Supreme Court. Accordingly, we will address their claims. However, two more preliminary issues must be resolved before we do so.
V. ANONYMITY AND CONFIDENTIALITY Hazleton argues that the district court erred in permitting
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those Plaintiffs lacking lawful immigration status to proceed using a “John Doe” or “Jane Doe” pseudonym. We disagree.
In C.A.R.S. Protection Plus, we explained that although “the use of pseudonyms to conceal a plaintiff’s identity has no explicit sanction in the federal rules,” the Supreme Court has “given the practice implicit recognition.” 527 F.3d at 371 n.2. We thus concluded that “the decision whether to allow a plaintiff to proceed anonymously rests within the sound discretion of the court.” Id.
In deciding whether to permit those Plaintiffs with concerns about the legality of their immigration status to proceed anonymously, the district court surveyed case law within this Circuit and identified nine separate factors courts have used to decide whether anonymity is appropriate. See Lozano, 496 F. Supp. 2d at 506. The court then engaged in a thorough analysis of each of these factors, and concluded that the factors favoring anonymity outweighed those favoring disclosure. Specifically, the court found that ethnic tensions had escalated in Hazleton since enactment of the ordinances, and that the named Plaintiffs had been harassed and intimidated for
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their involvement in this litigation.19 See id. at 508-10. The
court concluded that the Doe Plaintiffs, because of their
unlawful status, would face an “exponentially greater” risk of
harassment, and even physical danger, if their identities were
revealed. Id. at 510. The court also noted that the litigation was
in the public interest, and reasoned that the Doe Plaintiffs, as
well as prospective litigants lacking lawful status, would be
deterred from bringing cases clarifying constitutional rights, if
doing so required alerting federal immigration authorities to
their presence. See id. at 511-12. Finally, the court explained
19 Lozano, for example, testified that hate mail was sent to his home three separate times. One letter “contained a clipping from a newspaper describing the [alleged] effects of illegal immigration as well as a picture of a ‘warrior’ wearing ‘a huge Mexican hat.’ Scrawled near this picture were the phrases, ‘[s]ubhuman spic scum’ and ‘[i]f it is brown, flush it down.’” Lozano, 496 F. Supp. 2d at 510 (alterations in original) (internal quotation marks and citation omitted). This letter also contained a link to a website proclaiming itself “the Official Home Page of the National Socialist Movement, an organization dedicated to the preservation of our Proud Aryan Heritage, and the creation of a National Socialist Society in America and around the world.” Id. at 510 n.34 (internal quotation marks omitted). The district court noted that this sort of harassment extended even to people who were merely perceived as being connected to the lawsuit, even if this perception was not rooted in fact. Amilcar Arroyo, a United States citizen who publishes a Hazleton-based Spanish-language newspaper, was publically harassed when he tried to cover a rally in support of the ordinances. Based on a rumor that he was a plaintiff in this suit, rally participants gathered around him shouting, “get out of the country” and “traitor.” Id. at 510 (internal quotation marks omitted). Police escorted Arroyo from the rally for his own protection. Id.
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that because the Doe Plaintiffs’ identity information was not
central to their claims, restricting Hazleton’s access to that
information would not be prejudicial. See id. at 513. We agree
with each of these conclusions, and think it clear that given the
environment in Hazleton following enactment of these
ordinances, the court did not abuse its discretion in permitting
the Doe Plaintiffs to proceed using pseudonyms.
Relatedly, Hazleton also argues that the district court
violated 8 U.S.C. § 1373(a) by entering an order prohibiting the
parties from disclosing “information obtained during discovery
regarding the John and Jane Doe plaintiffs.” J.A. 211. Section
1373(a) provides:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
8 U.S.C. § 1373(a). Hazleton argues that because the district
court is an entity of the federal government, it was prohibited
by this section from preventing Hazleton from communicating
with federal immigration authorities about “the citizenship or 65

immigration status” of the Doe Plaintiffs. Although we are not convinced that § 1373(a) does, or
could, limit the inherent powers of federal courts in the way Hazleton suggests, we need not reach this question because Hazleton’s argument fails for a more fundamental reason. Under the confidentiality agreement the parties eventually entered into, the Doe Plaintiffs agreed to reveal their identities only to Hazleton’s attorneys, and not to Hazleton officials. See J.A. 692-707. Consequently, Hazleton never learned these Plaintiffs’ identities or their immigration status. The district court simply could not have prohibited Hazleton from communicating with the federal government about information that Hazleton never knew.
VI. DISCUSSION Having resolved these preliminary issues, we can turn to the merits of the claims before us. Although our reasoning differs from that of the district court, we agree that the provisions of the ordinances which we have jurisdiction to review are pre-empted by federal immigration law and unconstitutional under the Supremacy Clause. Because that conclusion turns on the relationship between the ordinances and
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federal immigration law, we begin our inquiry into the merits of this appeal by briefly laying out the parameters of that law. A. Federal Immigration Law 1. The Immigration and Nationality Act
The primary body of federal immigration law is contained in the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-537, enacted in 1952, and amended many times thereafter. The INA sets forth the criteria by which “aliens,” defined as “any person not a citizen or a national of the United States,” 8 U.S.C. § 1101(a)(3), may enter, visit, and reside in this country.
Under the INA, there are three primary categories of aliens who may lawfully enter and/or spend time within the United States: (1) “nonimmigrants,” who are persons admitted for a limited purpose and for a limited amount of time, such as visitors for pleasure, students, diplomats, and temporary workers, see 8 U.S.C. § 1101(a)(15); (2) “immigrants,” who are persons admitted as (or after admission, become) lawful permanent residents of the United States based on, inter alia, family, employment, or diversity characteristics, see 8 U.S.C. § 1151; and (3) “refugees” and “asylees,” who are persons
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admitted to and permitted to stay for some time in the United States because of humanitarian concerns, see 8 U.S.C. §§ 115758.20 Aliens wishing to be legally admitted into the United States must satisfy specific eligibility criteria in one of these categories, and also not be barred by other provisions of federal law that determine inadmissibility. Congress has determined that non-citizens who, inter alia, have certain health conditions, have been convicted of certain crimes, present security concerns, or have been recently removed from the United States, are inadmissible, see 8 U.S.C. § 1182, and if detained when attempting to enter or reenter the country, may be subject to expedited removal, see 8 U.S.C. § 1225.
Despite the carefully designed system for lawful entry described above, persons lacking lawful immigration status are obviously still present in the United States. As the Supreme Court explained almost thirty years ago: “[s]heer incapability or lax enforcement of the laws barring entry into this country . . .
20 Congress has also ratified treaties pursuant to which persons may be admitted on humanitarian grounds even if they do not satisfy the statutory definition of “refugee” set forth in the INA. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Apr. 18, 1988, 1465 U.N.T.S. 85.
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has resulted in the creation of a substantial ‘shadow population’
. . . within our borders.” Plyler, 457 U.S. at 218. Such persons
may lack lawful status because they entered the United States
illegally, either by failing to register with immigration
authorities or by failing to disclose information that would have
rendered them inadmissible when they entered. See 8 U.S.C. §
1227. In addition, aliens who entered legally may thereafter lose
lawful status, either by failing to adhere to a condition of
admission, or by committing prohibited acts (such as certain
criminal offenses) after being admitted. See id.
Persons here unlawfully are subject to removal from the
country. Removal proceedings are initiated at the discretion of
the Department of Homeland Security (“DHS”).21 See Juarez v.
21 Prior to 2003, the Immigration and Naturalization Service (“INS”), which operated under the Department of Justice, administrated both immigration services and immigration enforcement. On March 1, 2003, Congress abolished the INS. Pursuant to the Homeland Security Act of 2002, Pub. L. No. 107296, 116 Stat. 2135, that agency’s functions were transferred to three separate agencies within the newly created Department of Homeland Security: U.S. Citizenship and Immigration Services (“USCIS”), which performs immigration and naturalization services, U.S. Immigration and Customs Enforcement (“ICE”), which enforces federal immigration and customs laws, and U.S. Customs and Border Protection (“CBP”), which monitors and secures the country’s borders. Older documents may continue to refer to the pre-2003 administrative structure, and citations to them should be understood in that context.
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Holder, 599 F.3d 560, 566 (7th Cir. 2010) (“[T]he decision when to initiate removal proceedings is committed to the discretion of immigration authorities.” (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999))). Although certain aliens are subject to more expedited removal proceedings,22 for all others, section 240 of the INA sets forth the “sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.” 8 U.S.C. § 1229a(a)(3).
Under section 240, an alien facing removal is entitled to a hearing before an immigration judge and is provided numerous procedural protections during that hearing, including notice, the opportunity to present and examine evidence, and the opportunity to be represented by counsel (at the alien’s expense). See 8 U.S.C. § 1229a. At the conclusion of a removal hearing, the presiding immigration judge must decide, based on
22 As noted above, inadmissible aliens detained at the borders of the United States, or others deemed not to have been “admitted” to the country, may be subject to expedited removal. See 8 U.S.C. § 1225. In addition, expedited removal procedures apply to certain aliens already within the country who have been convicted of congressionally-defined crimes. See 8 U.S.C. § 1228.
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the evidence produced during the hearing, whether the alien is removable, see 8 U.S.C. § 1229a(c)(1)(A), and if so, whether s/he should be ordered removed, or should be afforded relief from removal. Such relief can include postponement of removal, cancellation of removal, or even adjustment of status to that of lawful permanent resident. See 8 U.S.C. §§ 1229a(c)(4), 1229b.
In sum, while any alien who is in the United States unlawfully faces the prospect of removal proceedings being initiated against her/him, whether s/he will actually be ordered removed is never a certainty until all legal proceedings have concluded. Moreover, even after an order of removal issues, the possibility remains that no country will accept the alien. Under such circumstances, the Constitution limits the government’s authority to detain someone in anticipation of removal if there is no significant likelihood of removal in the reasonably foreseeable future. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001).23
23 In Zadvydas, the Court addressed the cases of two aliens who had been ordered removed from the United States, but who, for various reasons, no other country would accept. The government sought to continue detaining them nonetheless. The
(continued...) 71

The INA, as amended, also prohibits the “harboring” of aliens lacking lawful immigration status. It provides that any person who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection . . . such alien in any place, including any building or any means or transportation” shall be subject to criminal penalties. 8 U.S.C. § 1324(a)(1)(A)(iii).
For decades, the INA contained no specific prohibition against the employment of aliens lacking legal status. Rather, regulation of the employment of aliens not lawfully present was at most a “peripheral concern.” DeCanas v. Bica, 424 U.S. 351, 360 (1976). This changed in 1986, when Congress amended the INA through enactment of the Immigration Reform and Control Act (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359 (codified at 8 U.S.C. §§ 1324a-1324b). IRCA “forcefully made combating the employment of illegal aliens central to the policy of
23(...continued) Court held that the Due Process Clause imposed reasonableness limits on post-removal-period detention, and thus that the government could not continue the aliens’ detention indefinitely if there was “no significant likelihood of removal in the reasonably foreseeable future.” 533 U.S. at 701.
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immigration law.” Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 147 (2002) (internal quotation marks and alterations omitted). 2. The Immigration Reform and Control Act
IRCA regulates the employment of “unauthorized aliens,” a term of art defined by the statute as those aliens neither “lawfully admitted for permanent residence” nor “authorized to be . . . employed by this chapter or by the Attorney General.” 8 U.S.C. § 1324a(h)(3). IRCA makes it unlawful to knowingly hire or continue to employ an unauthorized alien, or to hire anyone for employment without complying with the work authorization verification system created by the statute. 8 U.S.C. § 1324a(a)(1)-(2). This verification system, often referred to as the “I-9 process,” requires that an employer examine certain documents that establish both identity and employment authorization for new employees. See 8 U.S.C. § 1324a(b). The employer must then fill out an I-9 form attesting that s/he reviewed these documents, that they reasonably appear to be genuine, and that to the best of the employer’s knowledge, the employee is authorized to work in the United States. See id. Although employers are required
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to verify the work authorization of all employees, Congress did not extend this requirement to independent contractors. See 8 U.S.C. § 1324a(a)(1) (making unlawful the knowing “employment” of an unauthorized alien, and the hiring of an employee for “employment” without verifying the employee’s work authorization); 8 C.F.R. § 274a.1(f) (specifically excluding “independent contractors” from the definition of “employee”); 8 C.F.R. § 274a.1(g) (specifically excluding a “person or entity using . . . contract labor” from the definition of “employer”).
The I-9 “verification system is critical to the IRCA regime.” Hoffman Plastic Compounds, 535 U.S. at 147-48. Not only is failure to use the system illegal, but use of the system provides an affirmative defense to a charge of knowingly employing an unauthorized alien. See 8 U.S.C. § 1324a(a)(3). Thus, employers who use the I-9 process in good faith to verify the work authorization of employees are presumed not to have knowingly employed someone unauthorized to work in this country. In enacting IRCA, Congress required the President to monitor the security and efficacy of this verification system. See 8 U.S.C. § 1324a(d). Congress also imposed limits on the President’s ability to change it. Id.
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In addition to relying on the I-9 verification system, IRCA uses public monitoring, prosecution, and sanctions to deter employment of unauthorized aliens. IRCA provides for the creation of procedures through which members of the public may file complaints about potential violations; it authorizes immigration officers to investigate these complaints; and it creates a comprehensive hearing and appeals process through which complaints are evaluated and adjudicated by administrative law judges. See 8 U.S.C. § 1324a(e)(1)-(3).
Under IRCA, an employer who knowingly hires an unauthorized alien shall be ordered to cease and desist the violation, and to pay between $250 and $2000 per unauthorized alien for a first offense, between $2000 and $5000 per unauthorized alien for a second offense, and between $3000 and $10,000 per unauthorized alien for a third or greater offense. 8 U.S.C. § 1324a(e)(4). An employer who fails to verify the work authorization of its employees can be ordered to pay between $100 and $1000 for each person whose authorization it failed to authenticate. 8 U.S.C. § 1324a(e)(5). Employers who engage in a “pattern or practice” of hiring unauthorized aliens shall be fined up to $3000 per unauthorized alien, imprisoned for not
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more than six months, or both. 8 U.S.C. § 1324a(f)(1).
IRCA expressly pre-empts states and localities from
imposing additional “civil or criminal sanctions (other than
through licensing and similar laws) upon those who employ, or
recruit or refer for a fee for employment, unauthorized aliens.”
8 U.S.C. § 1324a(h)(2).
Because of its concern that prohibiting the employment
of unauthorized aliens might result in employment
discrimination against authorized workers who appear to be
foreign, Congress included significant anti-discrimination protections in IRCA. See 8 U.S.C. § 1324b.24 The statute
provides that, with certain limited exceptions, it is an “unfair
immigration-related employment practice” to discriminate in
hiring on the basis of national origin or citizenship status. 8
24 8 U.S.C. § 1324b provides in relevant part that: [with certain limited exceptions, it] is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment – (A) because of such individual's national origin, or (B) in the case of a protected individual . . . because of such individual's citizenship status. 8 U.S.C. § 1324b(a). Any person adversely-affected by an unfair immigration-related employment practice “may file a charge respecting such practice or violation.” 8 U.S.C. § 1324b(b)(1).
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U.S.C. § 1324b(a)(1). Congress put teeth into this provision by
creating the office of a “Special Counsel” to investigate and
prosecute such offenses, and it required that the President fill
that position “with the advice and consent of the Senate.” 8
U.S.C. § 1324b(c).25 Congress also authorized immigration
judges to punish those who violate IRCA’s anti-discrimination
mandate by imposing civil fines equivalent in amount to those
imposed for knowingly hiring unauthorized aliens. Compare 8
U.S.C. § 1324a(e)(4)(A)(i)-(iii) with 8 U.S.C. §
1324b(g)(2)(B)(iv)(I)-(III).26
25 8 U.S.C. § 1324b(c) provides in relevant part that “[t]he President shall appoint, by and with the advice and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment Practices.” 8 U.S.C. § 1324b(c)(1). The Special Counsel “shall be responsible for investigation of charges and issuance of complaints under this section and in respect of the prosecution of all such complaints before administrative law judges.” 8 U.S.C. § 1324b(c)(2).
26 There are some differences between the two sections. The imposition of monetary sanctions under § 1324a is mandatory, but discretionary under § 1324b. Compare 8 U.S.C. § 1324a(e)(4)(A) with 8 U.S.C. § 1324b(g)(2)(B)(iv). Also, criminal penalties are available for certain pattern-or-practice violations under § 1324a, but not available under § 1324b. See 8 U.S.C. § 1324a(f)(1). In contrast, § 1324b provides for compensatory relief, such as backpay and other remedies, which is not available under § 1324a. See 8 U.S.C. § 1324b(g)(2)(B)(iii) and (vii)-(viii).
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3. The Illegal Immigration Reform and Immigrant Responsibility Act
In 1996, Congress again amended the INA by enacting the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in various sections of 8 U.S.C.). In IIRIRA, Congress directed the Attorney General, and later the Secretary of Homeland Security, to conduct three “pilot programs of employment eligibility confirmation” in an attempt to improve upon the I-9 process. IIRIRA § 401(a), 110 Stat. 3009-655. Congress mandated that these programs be conducted on a trial basis, for a limited time period, and in a limited number of states. See IIRIRA § 401(b)-(c), 110 Stat. 3009-655-66. Two of these trial systems were discontinued in 2003. However, the third – originally known as the “Basic Pilot Program” but since renamed “E-Verify” – was reauthorized and expanded to all fifty states in 2003. See Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156, §§ 2, 3, 117 Stat. 1944. It has been reauthorized several times since, and its current authorization will expire, absent congressional action, on September 30, 2012. See Department of Homeland Security
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Appropriations Act, 2010, Pub. L. No. 111-83, § 547, 123 Stat. 2177; Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-329, Div. A, § 143, 122 Stat. 3580.
E-Verify allows an employer to actually authenticate applicable documents rather than merely visually scan them for genuineness. When using E-Verify, an employer enters information from an employee’s documents into an internetbased computer program, and that information is then transmitted to the Social Security Administration and/or DHS for authentication. See IIRIRA, as amended, § 403(a)(3). These agencies confirm or tentatively nonconfirm whether the employee’s documents are authentic, and whether the employee is authorized to work in the United States. See IIRIRA, as amended, § 403(a)(4). If a tentative nonconfirmation is issued, the employer must notify the employee, who may contest the result. See id. If an employee does not contest the tentative result within the statutorily prescribed period, the tentative nonconfirmation becomes a final nonconfirmation. See id. If the employee does contest it, the appropriate agencies undertake additional review and ultimately issue a final decision. See id.
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An employer may not take any adverse action against an employee until it receives a final nonconfirmation. See id. However, once a final nonconfirmation is received, an employer is expected to terminate the employee, or face sanctions.
With only a few exceptions, federal law makes the decision of whether to use E-Verify rather than the default I-9 process entirely voluntary. See IIRIRA, as amended, § 402(a). Federal government employers and certain employers previously found guilty of violating IRCA are currently required to use EVerify; all other employers remain free to use the system of their choice.23 See IIRIRA, as amended, § 402(e). Significantly, in enacting IIRIRA, Congress specifically prohibited the Secretary of Homeland Security from requiring “any person or other entity to participate in [E-Verify].” See IIRIRA, as amended, § 402(a). Congress also directed the Secretary to publicize the “voluntary nature” of the program and to ensure that government representatives are available to “inform persons and other entities that seek information about [E-Verify] of [its] voluntary
23 Pursuant to an executive order by President George W. Bush, certain federal government contractors are now also required to use E-Verify. See Exec. Order No. 13,465, 73 Fed. Reg. 33,286 (Jun. 6, 2008).
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nature.” IIRIRA, as amended, § 402(d). Those employers who elect to use E-Verify and actually
do use the system to confirm an employee’s authorization to work are entitled to a rebuttable presumption that they did not hire that employee knowing that s/he lacks authorization to work in this country. See IIRIRA, as amended, § 402(b)(1). Employers who elect to use E-Verify, but in practice continue to use the I-9 process, are not entitled to the E-Verify rebuttable presumption, but can still claim the I-9 affirmative defense. See IIRIRA, as amended, § 402(b)(2). B. State and Local Immigration Laws
As we noted at the outset, state and local attempts to regulate issues related to immigration have skyrocketed in recent years. According to the National Conference of State Legislatures (“NCSL”), 300 bills pertaining to immigration were introduced in state legislatures in 2005, and thirty-eight of them were enacted into law. National Conference on State Legislatures, 2009 State Laws Related to Immigrants and Immigration January 1-December 31, 2009, http://www.ncsl.org/default.aspx?tabid=19232 (last visited Aug. 20, 2010). Less than five years later, these numbers had
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increased more than five-fold: in 2009, over 1,500 bills pertaining to immigration were introduced. From these, 222 laws were enacted, and 131 resolutions adopted. Id.
A number of these laws contain provisions that are either identical, or similar, to provisions in Hazleton’s ordinances.24 In their brief filed on behalf of Plaintiffs, Amici Curiae Chambers of Commerce note that Arizona, Mississippi, Oklahoma, Utah, Tennessee, Louisiana, West Virginia, Colorado, Minnesota, Georgia, and Rhode Island, as well as the municipalities of Valley Park, Missouri; Mission Viejo, California; Beaufort County, South Carolina; and Apple Valley, California, have all enacted laws that in some way regulate either the procedures employers must undertake in order to avoid hiring unauthorized aliens, or the penalties that can be imposed for doing so. In addition, Plaintiffs call our attention to several localities, including Escondido, California and the City of Farmers Branch, Texas, which have passed ordinances regulating the provision of rental housing to aliens not lawfully present in the United States.
24 In fact, Hazleton’s mayor got the idea of enacting the IIRAO and the RO from similar ordinances, considered but never passed, in San Bernardino, California. See J.A. 1385-87.
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Various challenges have been leveled at these enactments – most commonly, attacks rooted in the Supremacy Clause – and the resulting body of case law informs our analysis. The Court of Appeals for the Ninth Circuit, affirming a decision by the District Court for the District of Arizona, upheld an Arizona statute requiring all employers within the state to use E-Verify, and subjecting businesses that employ unauthorized aliens to a graduated series of sanctions up to and including the permanent revocation of their business licenses. That court rejected the plaintiffs’ pre-emption and due process claims. See Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), cert. granted, 78 U.S.L.W. 3065 (Jun. 28, 2010) (No. 09-115). The District Court for the Eastern District of Missouri also upheld an employment ordinance virtually identical to the IIRAO against pre-emption, due process, and equal protection challenges, as well as challenges based on state law. See Gray v. City of Valley Park, No. 4:07CV00881, 2008 WL 294294 (E.D. Mo. Jan. 31, 2008), aff’d on other grounds, 567 F.3d 976 (8th Cir. 2009).
In contrast, the Court of Appeals for the Tenth Circuit partially affirmed a preliminary injunction issued by the District
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Court for the Western District of Oklahoma, barring enforcement of certain provisions of an Oklahoma law on preemption grounds. Much like the IIRAO, that law required employers in Oklahoma to verify the work authorization of independent contractors, and also created a private cause of action against business entities that employ unauthorized aliens. See Chamber of Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010).
The District Courts for the Southern District of California and the Northern District of Texas have held that ordinances similar to the housing provisions of the IIRAO and the RO are pre-empted. See Villas at Parkside Partners v. City of Farmers Branch (“Farmers Branch III”), ___ F. Supp. 2d ___, Nos. 3:08-cv-1551-B, 3:03-cv-1615, 2010 WL 1141398 (N.D. Tex. Mar. 24, 2010); Villas at Parkside Partners v. City of Farmers Branch (“Farmers Branch II”), 577 F. Supp. 2d 858 (N.D. Tex. 2008); Garrett v. City of Escondido, 465 F. Supp. 2d 1043 (S.D. Cal. 2006). C. Pre-emption
As we have explained, the district court entered the challenged injunction because it concluded that the IIRAO and
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the RO, among other failings, are pre-empted by federal law.
Although our reasoning departs from that of the district court,
we agree with its conclusion.25 See Johnson v Orr, 776 F.2d 75,
83 n.7 (3d Cir. 1985) (“An appellate court may affirm a result
reached by the district court on reasons that differ so long as the
record supports the judgment.”).
The Supremacy Clause of the United States Constitution
provides that the laws of the United States “shall be the supreme
25 Plaintiffs present a facial challenge to these ordinances. In Washington State Grange v. Washington State Republican Party, the Supreme Court explained:
Under United States v. Salerno, 481 U.S. 739 (1987), a plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i.e. that the law is unconstitutional in all of its applications. Id. at 745. While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a “plainly legitimate sweep.” Washington v. Glucksberg, 521 U.S. 702, 739-40 and n.7 (1997).
552 U.S. 442, 449 (2008) (alteration in original). Based on this language, Hazleton insists that we must apply the Salerno standard to Plaintiffs’ claims under the Supremacy Clause. However, since both Washington State Grange and Salerno involved quite different constitutional challenges than the ones we consider here, it is not at all clear that Salerno applies. Nonetheless, it is clear that solely “hypothetical conflicts” between state and local enactments and federal law are usually insufficient to support a finding of pre-emption. See Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 310 (1988).
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Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. The pre-emption doctrine is a necessary outgrowth of the Supremacy Clause. It ensures that when Congress either expresses or implies an intent to preclude certain state or local legislation, offending enactments cannot stand.
As this Court has recently noted, “the Supreme Court has recognized three types of preemption: express preemption, implied conflict preemption, and field preemption.” Bruesewitz v. Wyeth Inc., 561 F.3d 233, 238-239 (3d Cir. 2009) (citing Hillsborough County, Fla., v. Automated Med. Labs., Inc., 471 U.S. 707, 713(1985). Both conflict pre-emption and field preemption are types of implied pre-emption. See, e.g., Hillsborough Cnty. v. Automated Med. Labs, Inc., 471 U.S. 707, 713 (1985). However, irrespective of the “type” of pre-emption involved, “the purpose of Congress” is the “touchstone” of any pre-emption inquiry. Wyeth v. Levine, 129 S.Ct. 1187, 1194 (2009) (internal quotation marks omitted).
However, it is important to note that Congress does not “cavalierly” pre-empt states or municipalities from acting within the parameters of their historic police powers. Medtronic, Inc.
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v. Lohr, 518 U.S. 470, 485 (1996). Accordingly, in pre-emption inquiries, we assume “that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Id. (internal quotation marks omitted). When states act beyond the scope of their historic police powers, however, and wander into “an area where there has been a history of significant federal presence,” we do not begin with this assumption of nonpre-emption. United States v. Locke, 529 U.S. 89, 108 (2000).
Express pre-emption occurs when Congress expressly declares a law’s pre-emptive effect. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001). In such cases, “our task is to identify the domain expressly pre-empted.” Id. In doing so, we focus in the first instance “on the plain wording of the [federal statute’s pre-emption] clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63 (2002) (internal quotation marks omitted). We also consider the “structure and purpose of the statute as a whole . . . as revealed not only in the text, but through [our] reasoned understanding of the way in which Congress intended the statute and its
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surrounding regulatory scheme to [operate].” Medtronic, 518 U.S. at 486 (internal quotation marks and citation omitted).
Implied field pre-emption occurs when state or local governments attempt regulation in a field which Congress has implied an intent to exclusively occupy. See English v. Gen. Electric Co., 496 U.S. 72, 79 (1990). Congress’s intent to occupy a field can be inferred where a federal regulatory scheme is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (internal quotation marks omitted), or where an Act of Congress “touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
Implied conflict pre-emption occurs where it is “impossible . . . to comply with both state and federal law,” Geier v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000) (internal quotation marks omitted), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312
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U.S. 52, 67 (1941). “Impossibility” conflict pre-emption exists only where it is truly impossible to comply with both federal and state law. “Obstacle” conflict pre-emption, on the other hand, requires a broader inquiry into the purposes underlying a federal statute, and whether a state law stands as an obstacle to effectuation of those purposes. “What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000).
The Supreme Court has long made clear that federal interests are paramount in the field of immigration. The Court explained seventy years ago: “[t]hat the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution was pointed out by authors of The Federalist in 1787, and has since been given continuous recognition by this Court.” Hines, 312 U.S. at 62; see also Toll v. Moreno, 458 U.S. 1, 10 (1982).
However, the Supreme Court has also explained that not every state or local enactment that affects the rights of aliens
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necessarily interferes with the federal interest in immigration. In DeCanas v. Bica, 424 U.S. 351 (1976), the Supreme Court articulated a framework for analyzing pre-emption challenges to state and local laws that impact the rights of aliens but do not “regulate immigration.” Although DeCanas was decided a decade before Congress enacted IRCA and two decades before it enacted IIRIRA, many aspects of the Court’s analysis are still relevant to our inquiry.
In DeCanas, the Supreme Court considered whether a state law prohibiting the employment of persons unlawfully present was pre-empted by the INA. California had enacted legislation prohibiting employers within the state from “knowingly employ[ing] an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” Id. at 352 (internal quotation marks omitted). A group of migrant farmworkers sued, arguing that the law was pre-empted both by the Constitution’s exclusive delegation of the power to regulate immigration to the federal government, and by the INA. The Court disagreed.
In upholding the statute, the Court explained that the 90

“[p]ower to regulate immigration is unquestionably exclusively a federal power” under the United States Constitution, precluding all state involvement even if Congress has neither expressed nor implied its intent to preclude that state regulation. Id. at 354. “[T]he Constitution of its own force requires preemption” of any state efforts to actually regulate immigration. Id. at 355. However, the Court also explained that not “every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power.” Id. Rather, a state law only regulates immigration if it is “essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id. As California’s law did not intrude into these proscribed areas, the Court held that it was not pre-empted, absent congressional action.
The Court also held that California’s law was not field pre-empted by the INA’s regulatory scheme. First, the Court explained that “the regulation of employment of illegal aliens” was not a subject matter of such clear and manifest federal importance as to require the conclusion that it was occupied by federal regulation. Id. at 356. The Court reasoned that states
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have “broad authority under their police powers to regulate the
employment relationship to protect workers within the State,”
and that California’s law fell “within the mainstream of such
police power regulation.” Id. Because the law “focuse[d]
directly upon the[] essentially local problems [of employing
illegal aliens] and [was] tailored to combat effectively the
perceived evils,” it did not touch upon a field that by its very
nature would support no conclusion but that Congress had occupied it.26 Id. at 357.
Secondly, the Court concluded that the INA as it then
existed did not reflect clear and manifest congressional intent to
preclude state regulation in the field of employment of aliens
here unlawfully. Then, the INA was primarily concerned with
“the terms and conditions of admission to the country and the
subsequent treatment of aliens lawfully in the country.” Id. at
359. Only one provision of one section of the INA even
26 In reaching this conclusion, the Court distinguished cases in which pre-emption was found based on the “predominance of federal interest in the fields of immigration and foreign affairs.” DeCanas, 424 U.S. at 363. It explained that “there would not appear to be a similar federal interest in a situation in which the state law is fashioned to remedy local problems, and operates only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country.” Id.
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mentioned the employment of persons not lawfully in the country.27 This evidenced “at best . . . a peripheral concern with employment of illegal entrants,” which was insufficient to establish a congressional intent to occupy the field. Id. at 360. To the contrary, the Court believed that Congress had indicated its intent, through laws addressing farm labor contractors, for the States to “consistent with federal law, regulate the employment of illegal aliens.” Id. at 361.
The Court did not, however, actually rule on the issue of conflict pre-emption. Rather, it remanded the matter so that the lower courts could determine if California’s law was “consistent with federal law.” Id. In all other respects, though, the Court found the challenged law an appropriate use of state power, given both its limited impact upon “immigration” and Congress’s then limited foray into regulating the employment of persons lacking lawful immigration status.
In sum, DeCanas holds that the federal authority to “regulate immigration” is exclusive, but states are not
27 That provision was contained in 8 U.S.C. § 1324, the section which makes it a felony to “harbor” illegal entrants, and it stated that employing aliens here unlawfully “shall not be deemed to constitute harboring.” DeCanas, 424 U.S. at 360 (internal quotation marks omitted) (emphasis added).
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necessarily precluded from regulating (consistent with federal law) certain local issues affecting the rights of aliens, unless Congress has indicated an intent to preclude such regulation. 1. Employment Provisions a. Presumption Against Pre-emption
The district court concluded that the employment provisions of the IIRAO were expressly pre-empted, field preempted, and conflict pre-empted. Hazleton challenges each of the district court’s conclusions on multiple grounds. Hazleton first claims that the district court erred in failing to apply the presumption against pre-emption. We agree.
As we have noted, Congress does not casually sweep away the historic police powers of states. This reality underlies the rebuttable presumption that federal legislation does not preempt those police powers absent “clear and manifest” congressional intent to the contrary. Medtronic, 518 U.S. at 485. Only state and local laws aimed at areas beyond the state’s historic police powers, that venture into matters long regulated by the federal government, are not afforded the benefit of this presumption. See Locke, 529 U.S. at 108 (“[A]n assumption of nonpre-emption is not triggered when the State regulates in an
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area where there has been a history of significant federal presence.”) (internal quotation marks omitted).
In analyzing the applicability of the presumption in this case, the district court reasoned that “[i]mmigration is an area of the law where there is a history of significant federal presence and where the States have not traditionally occupied the field. In fact . . . immigration is a federal concern not a state or local matter.” Lozano, 496 F. Supp. 2d at 518 n.41. Based on this reasoning, the district court refused to presume nonpre-emption. However, the district court’s analysis is inconsistent with the framework set forth in DeCanas.
As we noted above, in DeCanas the Supreme Court explained that not “every state enactment which in any way deals with aliens is a regulation of immigration.” 424 U.S. at 355 (emphasis added). Rather, laws regulate immigration only if they attempt to regulate “who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id. Hazleton’s employment provisions therefore plainly do not regulate immigration under DeCanas. Rather, they regulate the employment of persons unauthorized to work in this country, and like the law at issue in
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DeCanas, fall within the state’s historic police powers. Accordingly, they must benefit from the presumption against pre-emption.
We are aware, of course, that the landscape of federal immigration law has changed dramatically since the Court decided DeCanas. In enacting IRCA, Congress clearly made the regulation of the employment of unauthorized aliens a central concern of federal immigration policy. However, while this sea change in the federal regulatory scheme is incredibly important for purposes of our substantive analysis, it does not negate the operation of the presumption against pre-emption. The applicability of the presumption turns on a state’s historic police powers. By definition, that means that the presumption depends on the past balance of state and federal regulation, not on the present.
As we have just explained, until the passage of IRCA, the federal government played at most a very small role in regulating the employment of persons without lawful immigration status. See DeCanas, 424 U.S. at 360. Moreover, the Supreme Court concluded that Congress then intended for the states to, “consistent with federal law, regulate the
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employment of illegal aliens.” Id. at 361. Thus, when Congress enacted IRCA, it began legislating in an area in which states had regulated, and in which the federal government, for the most part, had not. Accordingly, we presume that Congress did not intend to sweep away the states’ historic police powers by enacting IRCA, absent clear evidence to the contrary. b. Express Pre-emption
As noted above, IRCA includes an express pre-emption clause, which states that: “[t]he provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). Thus, IRCA expressly pre-empts state and local laws that sanction those who employ unauthorized aliens, unless the sanction is imposed through a licensing, or similar, law.
The district court read this clause as expressly preempting Hazleton’s employment provisions in the IIRAO because they impose a sanction – the suspension of a business license – on business entities that employ unauthorized aliens. Hazleton had argued that the IIRAO is a licensing law, and thus
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saved from the express pre-emptive reach of IRCA, but the district court disagreed. The court reasoned that since the IIRAO imposes the “ultimate sanction” of entirely taking away a business’s ability to operate, it is “at odds with the plain language of the express pre-emption provision, which is concerned with state and local municipalities creating civil and criminal sanctions against employers.”28 Lozano, 496 F. Supp. 2d at 519.
The district court also concluded, based on a review of IRCA’s legislative history, that the IIRAO’s scheme for revoking licenses is inconsistent with the congressional intent underlying IRCA’s saving clause. According to the court, Congress had no intention, in exempting licensing laws from express pre-emption, of permitting states and localities to independently adjudicate whether a business entity has employed an unauthorized alien. In reaching this conclusion, the district court reviewed H.R. Rep. No. 99-682(I), reprinted in 1986 U.S.C.C.A.N. 5649, the sole piece of IRCA’s legislative history directly discussing the pre-emption provision. Based on
28 In effect, then, the district court believed that a business license was not the species of “license” Congress had in mind in exempting licensing laws from express pre-emption.
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several sentences in that Report, the court concluded that
Congress intended the saving clause to only exempt from
express pre-emption local laws that revoke the licenses of
persons who the federal government has found guilty of
violating IRCA, and not the licenses of persons who localities
independently adjudicate guilty of violating their own
prohibitions against employing unauthorized aliens.29 Because
the IIRAO creates its own procedures for adjudicating whether
an employer is guilty of employing unauthorized aliens, and
revokes licenses based on that determination, rather than based
on a federal determination that an employer has violated IRCA,
29 The House Report states:
[t]he penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral or undocumented aliens. They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. Further, the Committee does not intend to preempt licensing or “fitness to do business laws,” such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.
H.R. Rep. No. 99-682(I), at 12 (emphasis added). 99

the court concluded that the IIRAO’s employment provisions do not fall within the scope of IRCA’s saving clause. See Lozano, 496 F. Supp. 2d at 520. On appeal, Hazleton renews its argument that the IIRAO’s employment provisions are a “licensing” law within the meaning of IRCA’s saving clause, and we agree.
As noted earlier, the text of IRCA’s express pre-emption clause explicitly excludes from its pre-emptive scope “licensing and similar laws.” Congress did not define these terms. Terms that are not statutorily defined are usually ascribed their “ordinary or natural meaning.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 476 (1994).
Merriam-Webster’s Dictionary defines a license as “a permission granted by competent authority to engage in a business or occupation or in an activity otherwise unlawful.”30 Similarly, Black’s Law Dictionary defines a license as “a permission, usually revocable, to commit some act that would otherwise be unlawful.” Black’s Law Dictionary (8th ed. 2004). Here, the IIRAO conditions the grant of a business license on a
30 License Definition, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/license (last visited Aug. 17, 2010).
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business’s agreement not to employ unauthorized aliens, and on the business’s continued adherence to that agreement. A business license certainly falls within the plain meaning of a “license” and therefore, it seems clear that the IIRAO’s provisions for suspending such licenses constitute a “licensing law.”
Plaintiffs nonetheless argue, consistent with the district court’s decision, that IRCA’s express pre-emption provision would be toothless if a state or municipality could effectively circumvent the general prohibition on imposing sanctions by imposing sanctions of this severity. According to Plaintiffs, the loss of a business license is the “death penalty” for a business, and the express pre-emption clause would be swallowed by its exception if a law regulating business licenses is held to be a licensing law.
In support of their argument, Plaintiffs cite several recent Supreme Court cases which stand for the proposition that courts should read saving clauses narrowly, and in light of the statutory scheme as a whole. See Aetna Health Inc. v. Davila, 542 U.S. 200, 217 (2004); Geier, 529 U.S. at 870-71; Locke, 529 U.S. at 106. Looking at IRCA and its purposes more broadly, Plaintiffs
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argue that it is clear that Congress could not have intended the saving clause to permit states and localities to revoke the business licenses of employers who employ unauthorized aliens.
The problem with Plaintiffs’ argument, however, is that even if we look more broadly at IRCA as a whole, there is simply no basis for wedging the limitation Plaintiffs urge into the text. Congress unequivocally states in the saving clause that licensing laws are not expressly pre-empted by IRCA. Nowhere in IRCA’s text or legislative history is there an indication that Congress intended that clause to apply only to licensing laws that impose minor penalties, and not to licensing laws that impose more significant sanctions. Similarly, there is no indication that Congress intended to exclude laws regulating the provision, suspension, and revocation of business licenses from the term “licensing law,” and Plaintiffs do not offer an alternative definition of “license” that would sensibly exclude business licenses. See Chicanos Por La Causa, 558 F.3d at 865 (finding “no support for [plaintiffs’] interpretation” of the term “license” as excluding business licenses).
When statutory language is plain and unambiguous, “the sole function of the courts . . . is to enforce it according to its
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terms.” Lamie v. United States Tr., 540 U.S. 526, 534 (2004)
(internal quotation marks omitted). We therefore conclude that
the IIRAO is a licensing law under IRCA’s saving clause and
saved from express pre-emption.31
31 Plaintiffs also argue that the IIRAO is not a bona fide licensing law. They note that the IIRAO’s title and its “Findings and Declaration of Purpose” section make no reference to licensing, and that the IIRAO does not refer to any existing licensing provisions. Thus, rather than being a true licensing law directed towards any legitimate local concerns, Plaintiffs claim that the IIRAO should be viewed as part of a scheme intended to regulate immigration by keeping all persons lacking lawful immigration status out of the City, and by supplanting the federal government’s role in these matters. The argument has significant force, and is very troubling.
This record is not without support for the proposition that, in enacting both the IIRAO and the RO, the Hazleton City Council was trying to use every tool at its disposal not merely to address local concerns with a “purely speculative and indirect impact on immigration,” DeCanas, 424 U.S. at 355, but to alter to the best of its ability the landscape of federal immigration regulation as well. See, e.g., J.A. 1289 (testimony of the President of Hazleton’s City Council that he intended Hazleton’s ordinances to force the federal government into action); J.A. 1713 (testimony of Hazleton’s mayor that the IIRAO is intended “to deter and punish illegal immigrants”). Furthermore, it appears that these ordinances were enacted as part of an organized campaign of certain states and localities attempting to collectively remedy what they view as the federal government’s failure to “secure our borders.” See, e.g., J.A. 1438 (testimony of Hazleton’s mayor that he has encouraged communities across the country to enact similar ordinances).
Although the Supreme Court has never directly addressed how the intent behind a local enactment should factor into a preemption analysis under these circumstances, we do not think the Hazleton City Council’s intent is irrelevant. See Plyler, 457 U.S. at 207 (noting the district court’s determination that the law at issue had neither “the purpose [n]or effect of keeping illegal aliens out of the State of Texas”) (internal quotation marks omitted); DeCanas, 424 U.S. at 354 n.3 (noting disagreement among the
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Plaintiffs also argue (consistent with the district court’s
decision) that the IIRAO does not fall within IRCA’s saving
clause because it creates and relies upon its own adjudicative
system for determining whether an employer has employed an
unauthorized alien, rather than relying, as Congress intended, on
the adjudicative system created by IRCA. Because this
argument is better addressed in the context of the purposes and
objectives underlying IRCA, we attend to it in our discussion of
obstacle conflict pre-emption.32
31(...continued) California state courts as to whether California’s law was “aimed at immigration control”) (internal quotation marks omitted). However, we also realize that the Supreme Court has explained that states are not “without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernable impact on traditional state concerns.” Plyler, 457 U.S. at 229 n.23.
The Supreme Court will undoubtedly speak to this tension soon, given the number of states and localities attempting to chip away piece-meal at the federal power to regulate immigration. Fortunately, we need not wade into these murky waters in order to resolve the claims before us. As we will explain, the employment provisions are plainly pre-empted, regardless of the intent behind them, because they pose an obstacle to the careful balancing of interests underlying IRCA.
32 The district court also concluded that the IIRAO’s employment provisions are pre-empted because IRCA occupies the field of “the employment of unauthorized aliens.” Lozano, 496 F. Supp. 2d at 524. This is a broad field indeed, and a difficult conclusion to sustain given IRCA’s saving clause. See Int’l Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987) (The existence of a saving clause “negates the inference that Congress ‘left no room’
(continued...) 104

c. Conflict Pre-emption That the IIRAO’s employment provisions are saved from
express pre-emption does not end our inquiry. As the Supreme Court has emphasized, a law that is saved from express preemption is still invalid if it is conflict pre-empted. See Geier, 529 U.S. at 870-72. The fact that Congress intends to save a general class of laws, such as licensing and similar laws, from express pre-preemption does not mean that Congress intends to permit any law within that category even if it impedes federal interests. A federal law that forecloses conflict pre-emption analysis is one that “defeat[s] its own objectives.” Id. at 872. Congress may intend “such a complex type of state/federal relationship,” but we will not assume it absent proof. Id. Therefore, even though the IIRAO is a licensing law, it cannot be allowed to operate if compliance with both its employment provisions and IRCA is impossible, or if those provisions stand as an obstacle to the objectives underlying IRCA. In either case,
32(...continued) for state causes of action.”). Plaintiffs, however, press the argument of field pre-emption only in a footnote, and we therefore consider it waived. See John Wyeth & Bro., Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (noting, ironically enough in a footnote, that “arguments raised in passing (such as, in a footnote), but not squarely argued, are considered waived”).
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the Supremacy Clause requires that the IIRAO give way. The district court concluded that the IIRAO’s
employment provisions are pre-empted by IRCA because of the numerous ways in which they “differ from and conflict with IRCA.” Lozano, 496 F. Supp. 2d at 529. Hazleton argues that the district court erred by conflating “mere difference” with conflicts sufficient to result in pre-emption. Hazleton’s Br. 46.
The City correctly argues that conflict pre-emption occurs only if a “difference” either makes it impossible to comply with both federal and local law or “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67; see also Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141 (1963). We too have concerns about the district court’s approach, both because it did at times equate difference with conflict, and because it failed to anchor its articulation of the congressional purposes underlying IRCA to that statute’s language and legislative history.
Nonetheless, upon a thorough consideration of those purposes, we agree that the IIRAO’s employment provisions stand as an obstacle to the accomplishment and execution of
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federal law, and thus are pre-empted. As we will explain, it is indisputable that Congress went
to considerable lengths in enacting IRCA to achieve a careful balance among its competing policy objectives of effectively deterring employment of unauthorized aliens, minimizing the resulting burden on employers, and protecting authorized aliens and citizens perceived as “foreign” from discrimination. See Edmondson, 594 F.3d at 767 (IRCA balances the goals of “preventing the hiring of unauthorized aliens, lessening the disruption of American business, and minimizing the possibility of employment discrimination.”). The IIRAO substantially undermines this careful balance. It furthers the first of these federal objectives at the expense of the others. This “significant conflict” is sufficient to rebut the presumption against preemption, see Geier, 529 U.S. at 885, and invalidate these provisions under the Supremacy Clause.
IRCA was “one of the longest and most difficult legislative undertakings of recent memory.” Presidential Statement on Signing the Immigration Reform and Control Act, 22 Weekly Comp. Pres. Doc. 1534 (Nov. 10, 1986). Over the course of numerous sessions, Congress debated taking the
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theretofore unprecedented step of directly prohibiting the employment of “unauthorized aliens.”33 Congress ultimately
committed to enacting employer sanctions, but in so doing,
committed equally to enacting measures that would protect
groups likely to be unfairly burdened by those sanctions –
employers and authorized workers. IRCA is thus “a carefully
crafted political compromise which at every level balances
specifically chosen measures discouraging illegal employment
with measures to protect those who might be adversely
affected.” Nat’l Ctr. for Immigrants’ Rights, Inc. v. INS, 913
F.2d 1350, 1366 (9th Cir. 1990), rev’d on other grounds, 502
U.S. 183 (1991).
Congress paid considerable attention to the costs IRCA
would impose on employers, see, e.g., H.R. Rep. No. 99-682(I),
at 43 (“Considerable discussion was generated during the
processing of [this bill] to the effect the employer sanctions
33 At the time of IRCA’s passage, there was still significant opposition to requiring employers to play a role in enforcing the nation’s immigration policy. See, e.g., 132 Cong. Rec. H10583-01 (daily ed. Oct. 15, 1986) (statement of Rep. Martinez) (“For the first time in history, this bill institutes Federal penalties for private citizens who hire illegal aliens. . . . [We should] put the burden of enforcing the law on the Government, where it belongs, not on private employers. Not only is this unfair to private employers, but it will cause them, out of fear, to discriminate against prospective employees who are ‘foreign-looking.’”).
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provisions were placing an undue burden on employers in requiring them to do the paperwork and keep records on employees.”), and drafted the legislation in a manner that would minimize those burdens, see, e.g., 132 Cong. Rec. H10583-01 (daily ed. Oct. 15, 1986) (statement of Rep. Bryant) (IRCA has been “carefully designed for the minimum burden necessary . . . to be effective.”).
Congress heeded these concerns in crafting IRCA’s prosecution and adjudication scheme. For example, it limited investigation of complaints to those with a “substantial probability of validity” in order to minimize the possibility of “harassment” of “innocent employers.” 8 U.S.C. § 1324a(e)(1)(B); S. Rep. No. 99-132, at 35 (1985). Similarly, Congress “intended to minimize the burden and the risk placed on the employer in the verification process.” Collins Foods Int’l, Inc. v. INS, 948 F.2d 549, 554 (9th Cir. 1991). Accordingly, the I-9 process only requires employers to ascertain whether employees’ documents appear “on [their] face to be genuine.” 8 U.S.C. § 1324a(b)(1)(A)(ii); H.R. Rep. No. 99-682(I), at 16. Congress could have required employers to ascertain the actual legitimacy of such documents; it did not.
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Just as importantly, Congress strove to ensure that the
prohibition against hiring unauthorized aliens would not result
in discrimination against authorized workers (whether alien or
citizen) who appear “foreign,” as Congress feared that
overcautious employers might incorrectly assume such persons
were unauthorized to work in the United States. IRCA’s
legislative history could not be more plain or emphatic about the
congressional commitment to preventing this sort of
discrimination. The House Report explains:
Numerous witnesses over the past three Congresses have expressed their deep concern that the imposition of employer sanctions will cause extensive employment discrimination against Hispanic-Americans and other minority group members. . . . [T]he Committee does believe that every effort must be taken to minimize the potentiality of discrimination and that a mechanism to remedy any discrimination that does occur must be a part of this legislation. . . . [A]nti-discrimination protections are essential to this bill.
H.R. Rep. No. 99-682(I), at 22 (internal quotation marks
omitted) (emphasis added). IRCA is thus “delicately balanced
to serve the goal of preventing unauthorized alien employment
while avoiding discrimination against citizens and authorized
aliens.” Collins Foods Int’l, 948 F.2d at 554. As we explained
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earlier, Congress created the office of a Special Counsel to handle discrimination charges, see 8 U.S.C. § 1324b(c), and specifically required that the President fill that position, see 8 U.S.C. § 1324b(c)(1). As also detailed above, Congress authorized administrative law judges to impose on employers found guilty of discrimination civil penalties equivalent to the penalties imposed on employers found guilty of employing unauthorized aliens. See 8 U.S.C. § 1324b(g)(2)(B)(iv)(I)-(III).
The Supreme Court has consistently found state and local laws which alter the careful balancing of objectives accomplished by a federal law to be pre-empted, and so have we. See, e.g., Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 144 (1989) (finding Florida law pre-empted because it struck the balance between “the encouragement of invention and free competition in unpatented ideas” differently from federal patent law); Rogers v. Larson, 563 F.2d 617, 626 (3d Cir. 1977) (finding Virgin Islands law pre-empted because it struck the balance between “assur[ing] an adequate labor force on the one hand and . . . protect[ing] the jobs of citizens on the other” differently from federal immigration law). Hazleton’s IIRAO undermines IRCA’s careful balancing of objectives in at
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least four ways. First, the IIRAO significantly increases employer burden
by creating a separate and independent adjudicative system for determining whether an employer is guilty of employing unauthorized aliens. Hazleton’s system fails to reflect the same concern with reducing employer burden as IRCA. In contrast to the federal requirement that a complaint have a “substantial probability of validity,” the IIRAO permits investigation of any complaint lodged against an employer regardless of its likely merit. Under Section 4 of the IIRAO, a complaint is valid so long as it includes an “allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.” IIRAO § 4B. Upon receipt of any such complaint (so long as it does allege a violation on the basis of national origin, ethnicity, or race), Hazleton’s Code Enforcement Office must, “within three business days, request identity information from the business entity regarding any persons alleged to be unlawful workers.” IIRAO § 4B(2)-(3).
Similarly, the IIRAO provides employers with substantially fewer procedural protections than IRCA. Under
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IRCA, an employer must be provided with notice and an opportunity for a hearing, and an administrative law judge must find the employer guilty of violating IRCA by a preponderance of the evidence before any sanctions can be imposed. See 8 U.S.C. § 1324a(e). That employer also has a right to an administrative appeal and judicial review. See id. In marked contrast, the IIRAO requires Hazleton’s Code Enforcement Office to immediately suspend the business license of a business entity which fails to provide requested information about alleged unlawful workers within three business days. See IIRAO § 4B(3). Additionally, if a business entity fails to terminate anyone that Hazleton has decided is an unlawful worker within three business days, the Code Enforcement Office immediately suspends its license. See IIRAO § 4B(4). A business entity that has been “subject to a complaint and subsequent enforcement” can then seek relief in court, but both the procedure and remedies available to that employer are entirely unclear on the face of the ordinance. See IIRAO § 7F.
The crux of this conflict, however, transcends the differences between the IIRAO’s prosecution and adjudication system and IRCA’s. Rather, it is rooted in the fact that Hazleton
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has established an alternate system at all. As we have explained, Congress created a comprehensive and carefully balanced prosecution and adjudication system, and foremost among its goals in doing so was to minimize the burden this system would impose on employers. See Edmondson, 594 F.3d at 751 (IRCA “exhaustively details a specialized administrative scheme for determining whether an employer has knowingly employed an unauthorized alien.”). We therefore cannot fathom that Congress intended to tolerate the “supplementing” of its carefully crafted system with independent state and local systems, which by their mere existence drastically increase burdens on employers.
Under the IIRAO, a business in Hazleton must worry about two separate systems of complaints, investigations, prosecutions, and adjudications. Furthermore, Hazleton’s ordinance is not the only consideration here, given the emerging landscape of local and state regulation in the area. See, e.g., Buckman Co. v. Pls.’ Legal Comm., 531 U.S. 341, 350 (2001) (explaining that if one state’s tort system is permitted then federal law will have to operate “in the shadow of 50 States’ tort regimes [thereby] dramatically increas[ing] the burdens facing
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potential applicants – burdens not contemplated by Congress”). If Hazleton’s ordinance is permissible, then each and every state and locality would be free to implement similar schemes for investigating, prosecuting, and adjudicating whether an employer has employed unauthorized aliens. See Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 373 (2008) (reasoning that allowing one state to implement its own monitoring system “would allow other States to do the same . . . easily lead[ing] to a patchwork of state . . . laws, rules, and regulations”). As noted above, many states and localities have already tried. A patchwork of state and local systems each independently monitoring, investigating, and ultimately deciding – all concurrently with the federal government – whether employers have hired unauthorized aliens could not possibly be in greater conflict with Congress’s intent for its carefully crafted prosecution and adjudication system to minimize the burden imposed on employers.34
34Although we have been framing this question as one of conflict pre-emption, Hazelton’s actions may be subject to field pre-emption as well. “Field preemption arises by implication when state law occupies a ‘field reserved for federal regulation.’ Bruesewitz, 561 F.3d at 238 (citing United States v. Locke, 529 U.S. 89, 111 (2000)). The categories of pre-emption are not
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Second, the IIRAO contravenes congressional objectives
by altering the employment verification scheme created by
IRCA, and supplemented by IIRIRA and subsequent legislation.
While IRCA affords an affirmative defense to any employer
who uses the I-9 process to verify the work authorization of its
employees, the IIRAO does not. The IIRAO provides its safe
harbor only to employers who use E-Verify. In this way, the
IIRAO significantly alters the risk calculus for employers, and
coerces use of E-Verify.35 The IIRAO also directly compels
34(...continued) “rigidly distinct. Indeed, field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a preempted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation.” English, 496 U.S. at 79 n.5. If Congress, in service of the goal of minimizing employer burden, intended for its adjudicative system to be exclusive, IRCA would occupy the field of prosecuting and adjudicating employers for the hiring of unauthorized aliens.
35 Throughout its brief, Hazleton makes much of the fact that the IIRAO does not actually “coerce” employers to use EVerify (or as we discuss later, to verify the work authorization of independent contractors) because even though safe harbor is provided only to those employers who use E-Verify, employers are given the opportunity to terminate an unauthorized alien before sanctions are imposed, thus making a safe harbor less essential. The argument is the proverbial “red herring.”
It is clear that Hazleton significantly incentivizes use of EVerify. However one characterizes this coercion, it is inconsistent with congressional intent. The IIRAO plainly alters the riskiness of choosing not to use E-Verify (or choosing not to verify the work authorization of independent contractors). The anxiety associated with these choices is itself a burden from which Congress intended
(continued...) 116

City agencies, City contractors, and all employers twice found guilty of violating the IIRAO to use E-Verify. These provisions contradict congressional intent for E-Verify to remain fully voluntary for the vast majority of employers – a decision that, once again, balances seeking efficacy in employment authorization verification with the goals of minimizing employer burden and preventing employment discrimination. See Geier, 529 U.S. at 878 (finding state law imposing a specific requirement conflict pre-empted where Congress “deliberately sought variety” and to provide “several different” options). Similarly, they contravene congressional intent for the I-9 process to serve as a universal protection against sanctions.
As Plaintiffs pointed out at oral argument, if Congress were solely concerned with ensuring that no unauthorized alien ever secured employment in the United States, it would have and could have found a better mechanism for verifying employment authorization than the I-9 process. The I-9 process is not foolproof, and yet it remains the default employment
35(...continued) to protect employers. See, e.g., H.R. Rep. No. 99-682(I), at 16 (limiting the scope of employers’ responsibilities to reduce the “concern[s]” of “cautious employers”).
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verification system twenty-four years after IRCA’s enactment. This reflects Congress’s determination that E-Verify, which advances certain federal objectives to the detriment of others, is not yet appropriate for mandated use.
At least for certain categories of employees, studies have shown that E-Verify is more effective than the I-9 process for determining whether an employee is authorized to work in the United States. See U.S. Citizenship and Immigration Services, Report to Congress on the Basic Pilot Program, June 2004, at 3 (The program “reduced unauthorized employment among participating employers by permitting employers to determine whether the information provided by employees on I-9 forms is consistent with information on SSA and DHS databases.”). However, because of problems with the relevant databases, EVerify has been alarmingly ineffective in verifying the employment authorization of work-authorized aliens and naturalized citizens, and thus has effectively resulted in discrimination against these groups. See id. (“[T]he tentative nonconfirmation rate was unacceptably high for foreign-born work-authorized employees and was higher than desirable for U.S.-born employees. This created burdens for employees and
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employers . . . and led to unintentional discrimination against foreign-born persons.”).
As of the last congressionally-mandated evaluation of EVerify in 2007, foreign-born work-authorized employees were still thirty times more likely to receive tentative nonconfirmations than employees born in the United States, see Westat, Findings of the Web Basic Pilot Evaluation (“2007 Findings”) (September 2007), at xxv, and foreign-born United States citizens were seven times more likely to receive erroneous tentative nonconfirmations than work-authorized aliens, see id. This study thus made clear that “further improvements are needed” before E-Verify could be made mandatory. See id., at xxi. Accordingly, through various expansions of the program, Congress has continually required that E-Verify be strictly voluntary for the vast majority of employers. See, e.g, Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 547, 123 Stat. 2177; Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-329, Div. A, § 143, 122 Stat. 3574, 3580 (2008); Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156, §§
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2, 3, 117 Stat. 1944 (2003); Basic Pilot Extension Act of 2001, Pub. L. No. 107-128, § 2, 115 Stat. 2407 (2002).
The voluntariness of the system protects employers as well as employees. E-Verify has costs, including set-up and training expenses. See 2007 Findings, at xxvi; Edmondson, 594 F.3d at 756 (E-Verify has significant costs “in the form of implementation and training expenses.”). Given the problems with the system, these costs are not yet a reliable investment. Moreover, E-Verify continues to operate on a trial basis, and absent action by Congress, its statutory authorization will terminate in 2012. See Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, § 547, 123 Stat. 2177. Mandating E-Verify now therefore requires employers to incur costs that may be entirely worthless in the long-run. In all these ways, Congress’s refusal to make E-Verify mandatory is consistent with its objective of ensuring that IRCA imposes the “minimum burden necessary . . . to be effective.” See 132 Cong. Rec. H10583-01 (daily ed. Oct. 15, 1986) (statement of Rep. Bryant).
Additionally, Hazleton’s scheme increases the burden on interstate employers by failing to provide safe harbor for those
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who use the I-9 process. As the court explained in Edmondson, “[b]y making the I-9 system a uniform national requirement, Congress limited the compliance burden on interstate corporations while facilitating uniform enforcement.” 594 F.3d at 767. A uniform system reduces costs for employers with multiple locations throughout the country by ensuring that the same human resources procedures can be used in all locations. Hazleton’s scheme denies interstate employers who use the I-9 process the benefits of uniformity. Interstate employers with locations in Hazleton (who wish to ensure safe harbor in all locations) would either have to adhere to different regulations in different locations, or use E-Verify in all locations.
In its defense, Hazleton argues that the other courts that have considered the question of states’ and localities’ power to mandate E-Verify have concluded that there is insufficient evidence that Congress’s refusal to allow the federal government to make E-Verify mandatory reflects an intent to deprive states and localities of the power to do so. In Chicanos Por La Causa, for instance, the Court of Appeals for the Ninth Circuit concluded that an Arizona law that made use of E-Verify mandatory was not conflict pre-empted. It explained that the
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fact that “Congress made participation in E-Verify voluntary at the national level . . . did not in and of itself indicate that Congress intended to prevent states from making participation mandatory.” See Chicanos Por La Causa, 558 F.3d at 866-67. Similarly, in Gray, the District Court for the Eastern District of Missouri declined to interpret “Congress’s decision not to make [E-Verify] mandatory as restricting a state or local government’s authority under the police powers.” Gray, 2008 WL 294294, at *19. That court reasoned that a locality’s mandating of E-Verify is consistent with the federal goal of “greater enforcement.” Id.
These decisions, however, fail to afford proper weight to the purposes underlying Congress’s decision to retain E-Verify as a voluntary program. Despite its advantages, E-Verify also has significant problems, and accordingly mandating its use interferes with the balancing of interests embodied in IRCA. The conclusion that mandating E-Verify is consistent with the goal of “greater enforcement” thus simply ignores that enforcement is not Congress’s only concern. Again, Hazleton has placed a priority on deterring employment of unauthorized aliens, but failed to concern itself with the costs its ordinance imposes on employers and on work-authorized aliens.
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There is yet another way in which the IIRAO obstructs the congressional purposes underlying IRCA. The IIRAO coerces employers to verify the work authorization of independent contractors, even though Congress purposely excluded independent contractors from IRCA’s verification requirements. Although employers do face liability under IRCA for knowingly utilizing the services of independent contractors who are unauthorized aliens, they are not required to actually verify contractors’ work eligibility, as they must with employees. See 8 U.S.C. § 1324a(a). Thus, employers can utilize contractors’ services without incurring the expense of verification, or the anxiety of potential sanctions. The IIRAO, on the other hand, does not distinguish between employees and independent contractors, and thus effectively coerces businesses to verify their contractors’ authorization. See IIRAO § 4A. In so doing, the IIRAO fundamentally alters a business’s relationship with its contractors and undermines the careful balancing of objectives Congress intended.
In drafting IRCA, Congress explicitly declined to sanction employers based on the work authorization status of “casual hires (i.e., those that do not involve the existence of an
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employer/employee relationship).” H.R. Rep. No. 99-682(I), at 11. This was not an unreasoned choice, but part of the crafting of the statute to minimize the burden placed on employers. As the court explained in Edmondson, “[e]mployers are not required [under federal law] to verify the work eligibility of independent contractors” because it “would increase the burdens on business.” 594 F.3d at 767. Businesses utilize independent contractors, in part, to reduce the costs and liabilities associated with procuring labor when an enduring and structured relationship is not needed. Compelling businesses to concern themselves with the work authorization status of contractors alters this relationship, and also raises costs.
Ironically, the IIRAO is equally problematic for preemption purposes because it only coerces but does not directly require verification of independent contractors’ work authorization, while imposing sanctions on employers if their contractors are unauthorized. Although earlier versions of the bills that became IRCA did not require employers to use an employment verification system, Congress ultimately decided that a mandatory and uniformly used employment verification system must be a counterpart of employer sanctions. Absent that
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requirement, Congress concluded, employers would too often
“guess” about their prospective hires’ work authorization. See
H.R. Rep. No. 99-682(I), at 23 (“[T]he bill does provide
substantial protections against discrimination in the form of a
uniform verification process for all new hires.”); S. Rep. No. 99-
132, at 23 (“To be nondiscriminatory . . . any employee
eligibility system must apply equally to each member of the U.S.
workforce.”). Guesswork unavoidably yields discrimination in
hiring, and that result could not be more at odds with
congressional intent.36
Hazleton’s failure to balance its sanctions with anti-
discrimination protections is a final area in which the
36 Plaintiffs also argue that the IIRAO stands as an obstacle to IRCA in several other ways. They argue that it: requires employers to verify the employment authorization of casual domestic laborers, another group purposefully excluded from IRCA’s verification requirements; requires unions to verify the work authorization of members they refer for work in certain instances, when unions operating in this capacity were also purposefully excluded from IRCA’s verification requirements; and denies to employees the “cure period” available under federal law to establish work authorization after receiving a tentative nonconfirmation from E-Verify. Hazleton contests that the IIRAO’s employment provisions operate in these ways, and the language of the ordinance in ambiguous. Furthermore, the district court did not make any findings that would allow us to resolve these claims. Accordingly, we do not factor these considerations into our pre-emption analysis. As we have explained, “hypothetical” conflicts usually will not support a finding of preemption. See Schneidewind, 485 U.S. at 310.
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employment provisions of the IIRAO significantly conflict with IRCA. Congress was clear that “a mechanism to remedy any discrimination that [occurs because of employer sanctions] must be a part of” employer sanctions legislation. H.R. Rep. No. 99682(I), at 22. Hazleton contends that IRCA’s antidiscrimination provision fully accomplishes the congressional goal of deterring unlawful discrimination, and that it is not compelled to duplicate federal efforts. Hazleton misses the point.
While drafting IRCA, Congress heard testimony that imposing employer sanctions would create economic incentives for employers to discriminate against workers who appeared to be of foreign origin. If hiring unauthorized aliens were penalized, but discriminating against authorized foreign workers were not, employers might rationally choose not to hire anyone who appeared “foreign” in an effort to avoid entirely the threat of sanctions. See, e.g., 132 Cong. Rec. S16879-01 (daily ed. Oct. 17, 1986) (statement of Sen. Hart) (“The employer sanctions in the legislation will undoubtedly act as an incentive for businesses to ‘play it safe’ and refuse to hire individuals whose status may be in question. This would mean that
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[B]lacks, Hispanics, and Asians would encounter new difficulties in getting hired.”). Consequently, Congress decided that IRCA must allow judges to impose on employers who discriminate in hiring penalties of the exact same magnitude as imposed on employers who hire unauthorized aliens. Compare 8 U.S.C. § 1324a(e)(4)(A)(i)-(iii) with 8 U.S.C. § 1324b(g)(2)(B)(iv)(I)-(III).
The IIRAO’s employment provisions upset this careful balance. By imposing additional sanctions on employers who hire unauthorized aliens, while not penalizing those who discriminate, Hazleton has elected to place all of its weight on one side of the regulatory scale. This creates the exact situation that Congress feared: a system under which employers might quite rationally choose to err on the side of discriminating against job applicants they perceive to be foreign. This is inconsistent with IRCA and therefore cannot be tolerated under the Supremacy Clause.
Hazleton attempts to parry the thrust of this argument by again relying on the decisions in Chicanos Por La Causa and Gray. Those courts rejected the argument that licensing laws that revoked the licenses of businesses who employed
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unauthorized aliens were likely to increase discrimination, and would contravene IRCA absent an anti-discrimination component.
We believe those decisions undervalue the emphasis Congress placed on preventing discrimination, and the painstaking care Congress took to achieve that objective. For example, the courts in both Chicanos Por La Causa and Gray demanded proof that employer sanctions result in discrimination. That is puzzling because Congress has already addressed that question. Although Congress could not have been certain that one-sided sanctions would lead to future discrimination when it enacted IRCA, it was sufficiently troubled by the likelihood to commit to preventative action. See H.R. Rep. No. 99-682(II), at 4, reprinted in 1986 U.S.C.C.A.N. 5757 (The “House of Representatives recognized [the] potential for this unfortunate cause and effect relationship between sanctions enforcement and resulting employment discrimination”). Notably, Congress also required the Comptroller General to report, three years after IRCA’s enactment, on whether employer sanctions had resulted in discrimination. The Comptroller General concluded that
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employer sanctions had caused “widespread discrimination.” U.S. Gov’t Accountability Office, GAO/T-GGD-90-31, Testimony on Immigration Reform: Employer Sanctions and the Question of Discrimination (1990).
Congress stated repeatedly that countervailing antidiscrimination protections must be a part of any employer sanctions legislation, see H.R. Rep. No. 99-682(II), at 4 (“[I]f there is to be sanctions enforcement and liability, there must be an equally strong and readily available remedy if resulting employment discrimination occurs.”) (emphasis added), and we think this just as true when states and localities regulate in this area. To be consistent with federal law, states and localities that use regulatory enactments to sanction employers who have been found guilty of employing unauthorized aliens under IRCA must impose sanctions of equal severity on employers found guilty of discriminating.
Hazleton attempts to shield its legislative efforts from pre-emption based on the doctrine of “concurrent enforcement,” but this could not be less persuasive. As Hazleton itself acknowledges, “concurrent enforcement activity is authorized” only where “state enforcement activities do not impair federal
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regulatory interests.” Hazleton’s Br. 57 (quoting Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983), overruled on other grounds by, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999)) (emphasis added). Hazleton claims that the IIRAO satisfies this standard because “the employment provisions . . . were drafted with meticulous care to match the terminology and scope of federal law.” Hazleton’s Br. 58. Given our discussion thus far, we need not belabor here explaining why this assertion is wrong. Simply put, Hazleton has enacted a regulatory scheme that is designed to further the single objective of federal law that it deems important – ensuring unauthorized aliens do not work in the United States. It has chosen to disregard Congress’s other objectives – protecting lawful immigrants and others from employment discrimination, and minimizing the burden imposed on employers. Regulatory “cherry picking” is not concurrent enforcement, and it is not constitutionally permitted.
Notably, this is not the first time that we have confronted a local law that skews the federal government’s careful balancing of objectives in the regulation of alien employment. We addressed a similar situation over thirty years ago in Rogers
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v. Larson, 563 F.2d 617 (1977). There, the Government of the Virgin Islands had enacted a law which called for the replacement of certain nonimmigrant alien workers with qualified citizens or lawful permanent resident workers, if and when such workers became available. Nonimmigrant aliens brought suit arguing that the territorial law was pre-empted by the INA, and in particular by federal regulations guaranteeing nonimmigrant aliens’ employment for definite periods of time. We agreed.
In striking down the Virgin Islands’ legislative effort as an obstacle to the congressional purposes underlying the INA, we made clear that the fact that the two statutory schemes shared purposes in common did not save the territorial law from preemption. Rather, the laws were directly at odds with each other because they “str[uck] the balance between [the] goals differently.” Id. at 626. The Virgin Islands statute struck the balance “more in the direction of protection of citizen-workers,” and federal law struck it more in the direction of protection of employers and alien workers. Id. “Because of the different emphasis the two statutory schemes place[d] on the purposes of job protection and an adequate labor force,” the Virgin Islands
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provision was invalid under the Supremacy Clause. Id. The same is just as true here.
It is, of course, not our job to sit in judgment of whether state and local frustration about federal immigration policy is warranted. We are, however, required to intervene when states and localities directly undermine the federal objectives embodied in statutes enacted by Congress. The employment provisions of the IIRAO “stand[] as an obstacle to the accomplishment and execution” of IRCA’s objectives, Hines, 312 U.S. at 67, and thus are pre-empted. 2. Housing Provisions
Our final inquiry addresses Plaintiffs’ claim that the housing provisions of the IIRAO and the RO are pre-empted. The district court agreed with Plaintiffs, and so do we.
Before delving into the substance of this analysis, however, we must first consider whether the presumption against pre-emption applies to the housing provisions. The district court did not distinguish between the employment and housing provisions in addressing the presumption; it summarily concluded that both operate in the field of “immigration,” and that because of the “history of significant federal presence” in
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that area, the presumption did not apply. Lozano, 496 F. Supp. 2d at 518 n.41. We have explained why that conclusion was erroneous as applied to the employment provisions, which under DeCanas, fall within the states’ historic police powers. The housing provisions, however, raise a very different issue. As the District Court for the Northern District of Texas explained in Farmers Branch III, “[l]ocal regulation that conditions the ability to enter private contract for shelter on federal immigration status is of a fundamentally different nature than . . . restrictions on employment.” ___ F. Supp. 2d ___, 2010 WL 1141398, at *16.
The parties characterize the housing provisions of the RO and the IIRAO in starkly different terms. Hazleton maintains that the housing provisions regulate rental accommodations, and thus, like the employment provisions, fall within the state’s historic police powers. Plaintiffs, on the other hand, argue that these provisions regulate who may live in Hazleton based on immigration status, and that regulating which aliens are permitted to reside in the United States is a historically federal function far beyond the police powers of any state.
Although we realize that a state certainly can, and 133

presumably should, regulate rental accommodations to ensure the health and safety of its residents, and that such regulation may permissibly affect the rights of persons in the country unlawfully, see DeCanas, 424 U.S. at 355, we cannot bury our heads in the sand ostrich-like ignoring the reality of what these ordinances accomplish. Through its housing provisions, Hazleton attempts to regulate residence based solely on immigration status. Deciding which aliens may live in the United States has always been the prerogative of the federal government. Hazleton purposefully chose to enter this area of “significant federal presence.” Locke, 529 U.S. at 108. Accordingly, we will not presume nonpre-emption.
The rest of our analysis flows directly from our conclusion that Hazleton’s housing provisions regulate which aliens may live there. Under DeCanas, a state or locality may not “regulate immigration,” which the Supreme Court has defined as any attempt to determine “who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” DeCanas, 424 U.S. at 355. Such power is delegated by the Constitution exclusively to the federal government, and even if Congress had never acted in the field,
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states and localities would be precluded from doing so. See id. Thus, over a century ago, the Supreme Court explained that: “[t]he doctrine is firmly established that the power to exclude or expel aliens is vested in the political departments of the [federal] government, to be regulated by treaty or by act of Congress.” Yo v. United States, 185 U.S. 296, 302 (1902). Whether Hazleton inadvertently stumbled into this exclusively federal domain, or decided to defiantly barge in, it is clear that it has attempted to usurp authority that the Constitution has placed beyond the vicissitudes of local governments.
The housing provisions of the IIRAO and the RO are also field pre-empted by the INA. As the Supreme Court explained in DeCanas, the central concern of the INA is with “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” 424 U.S. at 359. The “comprehensiveness of the INA scheme for regulation of immigration and naturalization,” id., plainly precludes state efforts, whether harmonious or conflicting, to regulate residence in this country based on immigration status.
We recognize, of course, that Hazleton’s housing provisions neither control actual physical entry into the City, nor
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physically expel persons from it. Nonetheless, “[i]n essence,” that is precisely what they attempt to do. Bonito Boats, 489 U.S. at 160. “It is difficult to conceive of a more effective method” of ensuring that persons do not enter or remain in a locality than by precluding their ability to live in it. Id.
At oral argument, Hazleton posited that aliens lacking lawful status could still reside in the City through purchasing a home, or through staying with friends.37 The response is as disingenuous as it is unrealistic. There is nothing on this record that suggests that the people whom the residential provisions are aimed at could avail themselves of such options. Even if they were viable alternatives for some, however, many others still would be excluded, and that is sufficient for these provisions to be pre-empted.
We also recognize that Hazleton’s housing provisions regulate presence only within its city limits, not the entire country. This does not change the analysis. To be meaningful,
37 We point out that they could stay with friends only if those friends owned property and did not rent. Authorized occupants of apartments who permit persons lacking lawful immigration status to stay with them are also fined under the RO: “$1000 for each . . . Occupant . . . that does not have an occupancy permit” and $100 per day per any such Occupant until the violation is corrected. RO § 10b.
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the federal government’s exclusive control over residence in this country must extend to any political subdivision. Again, it is not only Hazleton’s ordinance that we must consider. If Hazleton can regulate as it has here, then so could every other state or locality. See Rowe, 552 U.S. at 373. As the District Court for the Northern District of Texas reasoned: “we can imagine the slippery slope . . . if every local and state government enacted laws purporting to determine that . . . [certain persons] could not stay in their bounds. If every city and state enacted and enforced such laws . . . the federal government’s control over decisions relating to immigration would be effectively eviscerated.” Villas at Parkside Partners v. City of Farmers Branch (“Farmers Branch I”), No. 3:08-cv-1551-B, Hrg. Tr. at 136 (N.D. Tex. Sept. 12, 2008). Indeed, the record strongly suggests that Hazleton’s mayor intended these provisions to be at the forefront of exactly such an evisceration. See supra note 31.
The housing provisions of the IIRAO and the RO are also conflict pre-empted by the INA. As the district court explained, these provisions attempt to effectively “remove” persons from Hazleton based on a snapshot of their current immigration status, rather than based on a federal order of removal. This is
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fundamentally inconsistent with the INA. Hazleton goes to great lengths to defend its housing
provisions as providing for an accurate assessment of tenants’ immigration status, and only denying housing to those whom the federal government confirms are here unlawfully. Even assuming Hazleton is correct, this argument does not advance Hazleton’s cause; rather, it highlights the fundamental misconception at the heart of these ordinances. Through its housing provisions, Hazleton attempts to remove persons from the community based on current immigration status. However, as Justice Blackmun explained in Plyler: “the structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.” 457 U.S. at 236 (Blackmun, J., concurring).
Under federal law, an unlawful immigration status does not lead instantly, or inevitably, to removal. Under most circumstances, a federal removal hearing under section 240 of the INA is required. Absent certain limited exceptions, this proceeding is the “sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the
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alien has been so admitted, removed from the United States.” 8 U.S.C. § 1229a(a)(3). As we explained in detail above, knowing whether the government will decide to initiate proceedings against a particular alien is as impossible as trying to predict the outcome of such a proceeding once initiated.
The federal government has discretion in deciding whether and when to initiate removal proceedings. See Juarez, 599 F.3d at 566. As the district court found, the government purposefully exercises its discretion not to prosecute in certain instances, and thereby tacitly allows the presence of those whose technical status remains “illegal.” See Lozano, 496 F. Supp. 2d at 531 n.56. Furthermore, once the government initiates these proceedings, whether they will result in removal is far from certain. A judge may award discretionary relief saving a removable alien from removal, or even adjusting that alien’s status to that of lawful permanent resident. See 8 U.S.C. § 1229b. Thus, for these reasons, it is simply:
impossible for a State to determine which aliens the Federal Government will eventually deport, which the Federal Government will permit to stay, and which the Federal Government will ultimately naturalize. Until an undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be
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found to have a federal permission to reside in the country, perhaps even as a citizen. Indeed, even the Immigration and Naturalization Service cannot predict with certainty whether any individual alien has a right to reside in the country until deportation proceedings have run their course. Plyler, 457 U.S. at 241 n.6 (Powell, J., concurring). Stitched into the fabric of Hazleton’s housing provisions, then, is either a lack of understanding or a refusal to recognize the complexities of federal immigration law. Hazleton would effectively remove from its City an alien college student the federal government has purposefully declined to initiate removal proceedings against.38 So too would Hazleton remove an alien battered spouse, currently unlawfully present, but eligible for adjustment of status to lawful permanent resident under the special protections Congress has afforded to battered spouses and children. See 8 U.S.C. § 1229b(b)(2). In each of these instances, as in every single instance in which Hazleton would deny residence to an alien based on immigration status rather than on a federal order of removal, Hazleton would act directly in opposition to federal law.
38 See Julia Preston, Students Spared Amid an Increase in Deportations, N.Y. Times, Aug. 9, 2010.
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Hazleton attempts to avoid this result by again relying on the concept of “concurrent enforcement” to defend its housing provisions. According to Hazleton, its housing provisions mirror the INA’s prohibition against “harboring,” which imposes criminal penalties on:
Any person who . . . knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. 8 U.S.C. § 1324(a)(1)(A)(iii). Hazleton contends that since federal courts have consistently found that providing housing to aliens lacking lawful immigration status constitutes unlawful “harboring,” its housing provisions do no more than concurrently enforce federal law. Hazleton is wrong. As we have explained, Hazleton’s housing provisions operate in a field which the federal government exclusively occupies. Therefore, even if Hazleton’s housing provisions did concurrently enforce federal law, this would not save them; even harmonious regulation is pre-empted here. However, Hazleton is also plainly incorrect in claiming that its housing provisions
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“mirror” federal law. The federal prohibition against harboring has never been interpreted to apply so broadly as to encompass the typical landlord/tenant relationship.
8 U.S.C. § 1324(a)(1)(A)(iii) criminalizes harboring an alien, knowing or in reckless disregard of the fact that the alien came to, or remains in, the United States in violation of law. The statute, however, does not define the term “harboring,” and the Supreme Court has yet to do so. As a result, the breadth of the term is currently in dispute among the Circuit Courts of Appeals. Some courts, our own included, have found that culpability requires some conduct that helps to conceal an alien from authorities. We, along with the Court of Appeals for the Second Circuit, define “harboring” as conduct “tending to substantially facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting the alien’s unlawful presence.” United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir. 2008) (internal quotation marks omitted) (emphasis added); see also United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999) (Harboring “encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from
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detecting his unlawful presence.”) (emphasis added). Thus, we have held that “harboring” requires some act of obstruction that reduces the likelihood the government will discover the alien’s presence. It is highly unlikely that a landlord’s renting of an apartment to an alien lacking lawful immigration status could ever, without more, satisfy this definition of harboring. Renting an apartment in the normal course of business is not in and of itself conduct that prevents the government from detecting an alien’s presence.
It is true that other Courts of Appeals have held that a showing of concealment is unnecessary, and that conduct which merely “substantially facilitates an alien’s remaining in the country illegally” is sufficient to constitute harboring. See, e.g., United States v. Tipton, 518 F.3d 591, 595 (8th Cir. 2008) (internal alteration omitted). However, even under the more lenient tests of these jurisdictions, we are not aware of any case in which someone has been convicted of “harboring” merely because s/he rented an apartment to someone s/he knew (or had reason to know) was not legally in the United States.
Notably, all the cases cited by Hazleton for that proposition involve defendants who played a much more active
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role in helping an alien remain in the United States. See, e.g., Tipton, 518 F.3d at 595 (defendant employer who employed and housed six unauthorized alien employees, provided them with transportation and money to purchase necessities, and maintained counterfeit immigration papers for them guilty of harboring); United States v. Zheng, 306 F.3d 1080, 1082 (11th Cir. 2002) (defendant employer who permitted ten to twenty unauthorized alien employees, who were overworked and underpaid, to live at his house in “barrack-like accommodations” without paying rent guilty of harboring); Kim, 193 F.3d at 574-75 (defendant employer who advised unauthorized alien employees to change names and acquire false documentation guilty of harboring); United States v. Sanchez, 963 F.2d 152, 155 (8th Cir. 1992) (defendant employer who paid to rent an apartment for unauthorized alien employees, provided them with transportation to and from work, and offered to obtain immigration papers for them guilty of harboring). None of these cases involve anything verging on a simple landlord/tenant relationship. Rather, the fact that so many of these cases involve employers emphasizes that something much more is needed to turn renting a residential unit into harboring.
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Furthermore, regardless of the breadth of the term “harboring” in and of itself, there is no question that harboring is illegal under federal law only if a defendant knew or was in reckless disregard of the harbored alien’s immigration status. See 8 U.S.C. § 1324(a). Hazleton argues that the housing provisions of the IIRAO similarly only prohibit renting to persons known to lack lawful immigration status. This isolated reading of the IIRAO is misleading. Taken together, the IIRAO and the RO not only prohibit the knowing harboring of (defined to include the rental of housing to) certain aliens, but also make legal immigration status a qualification for occupancy of rental housing. Although the typical landlord might never know of her/his tenant’s immigration status, Hazleton’s provisions collectively require that any provider of rental housing be put on notice about the immigration status of potential renters. See Lozano, 496 F. Supp. 2d at 493 (Espinal testified that “he understood the ordinances to require that he obtain information on immigration status from tenants that he normally would not seek.”).
Although the federal government does not intend for aliens here unlawfully to be harbored, it has never evidenced an
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intent for them to go homeless. Cf. 8 U.S.C. § 1229(a)(1)(F)(i) (explaining that an alien noticed to appear for a removal proceeding must immediately provide the Attorney General “with a written record of an address . . . at which the alien may be contacted respecting [the] proceeding.”). Common sense, of course, suggests that Hazleton has absolutely no interest in reducing aliens without legal status to homelessness either. No municipality would benefit from forcing any group of residents (“legal” or “illegal”) onto its streets. Rather, it appears plain that the purpose of these housing provisions is to ensure that aliens lacking legal immigration status reside somewhere other than Hazleton. It is this power to effectively prohibit residency based on immigration status that is so clearly within the exclusive domain of the federal government.
In sum, we find the housing provisions of Hazleton’s ordinances pre-empted regulations of immigration, and both field and conflict pre-empted by the INA.
VII. CONCLUSION For the reasons set forth above, we affirm in part and reverse in part the district court’s order permanently enjoining Hazleton’s enforcement of the IIRAO and the RO.
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VIII. APPENDIX A. The Illegal Immigration Relief Act Ordinance (Ordinance 2006-18, as amended by Ordinances 2006-40 and 2007-7) ILLEGAL IMMIGRATION RELIEF ACT ORDINANCE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF HAZLETON AS FOLLOWS: SECTION 1. TITLE This chapter shall be known and may be cited as the “City of Hazleton Illegal Immigration Relief Act Ordinance.” SECTION 2. FINDINGS AND DECLARATION OF PURPOSE The People of the City of Hazleton find and declare: A. That state and federal law require that certain conditions be met before a person may be authorized to work or reside in this country. B. That unlawful workers and illegal aliens, as defined by this ordinance and state and federal law, do not normally meet such conditions as a matter of law when present in the City of Hazleton. C. That unlawful employment, the harboring of illegal aliens in
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dwelling units in the City of Hazleton, and crime committed by illegal aliens harm the health, safety and welfare of authorized US workers and legal residents in the City of Hazleton. Illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services, increasing their cost and diminishing their availability to legal residents, and diminishes our overall quality of life. D. That the City of Hazleton is authorized to abate public nuisances and empowered and mandated by the people of Hazleton to abate the nuisance of illegal immigration by diligently prohibiting the acts and policies that facilitate illegal immigration in a manner consistent with federal law and the objectives of Congress. E. That United States Code Title 8, subsection 1324(a)(1)(A) prohibits the harboring of illegal aliens. The provision of housing to illegal aliens is a fundamental component of harboring. F. This ordinance seeks to secure to those lawfully present in the United States and this City, whether or not they are citizens of the United States, the right to live in peace free of the threat
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crime, to enjoy the public services provided by this city without being burdened by the cost of providing goods, support and services to aliens unlawfully present in the United States, and to be free of the debilitating effects on their economic and social well being imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the Commonwealth of Pennsylvania. G. The City shall not construe this ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal assistance toany person. SECTION 3. DEFINITIONS When used in this chapter, the following words, terms and phrases shall have the meanings ascribed to them herein, and shall be construed so as to be consistent with state and federal law, including federal immigration law: A. “Business entity” means any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit. (1) The term business entity shall include but not be limited to
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selfemployed individuals, partnerships, corporations, contractors, and subcontractors. (2) The term business entity shall include any business entity that possesses a business permit, any business entity that is exempt by law from obtaining such a business permit, and any business entity that is operating unlawfully without such a business permit. B. “City” means the City of Hazleton. C. “Contractor” means a person, employer, subcontractor or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration. This definition shall include but not be limited to a subcontractor, contract employee, or a recruiting or staffing entity. D. “Illegal Alien” means an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq. The City shall not conclude that a person is an illegal alien unless and until an authorized representative of the City has verified with the federal government, pursuant to United States Code Title 8, subsection 1373(c), that the person is an alien who is not lawfully present
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in the United States. E. “Unlawful worker” means a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including but not limited to a minor disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3). F. “Work” means any job, task, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including but not limited to all activities conducted by business entities. G. “Basic Pilot Program” means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, subsection 1324a, and operated by the United States Department of Homeland Security (or a successor program established by the federal government.) SECTION 4. BUSINESS PERMITS, CONTRACTS, OR GRANTS A. It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit,
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dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City. Every business entity that applies for a business permit to engage in any type of work in the City shall sign an affidavit, prepared by the City Solicitor, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker. B. Enforcement: The Hazleton Code Enforcement Office shall enforce the requirements of this section. (1) An enforcement action shall be initiated by means of a written signed complaint to the Hazleton Code Enforcement Office submitted by any City official, business entity, or City resident. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred. (2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. (3) Upon receipt of a valid complaint, the Hazleton Code Enforcement Office shall, within three business days, request identity information from the business entity regarding any
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persons alleged to be unlawful workers. The Hazleton Code Enforcement Office shall suspend the business permit of any business entity which fails, within three business days after receipt of the request, to provide such information. In instances where an unlawful worker is alleged to be an unauthorized alien, as defined in United States Code Title 8, subsection 1324a(h)(3), the Hazleton Code Enforcement Office shall submit identity data required by the federal government to verify, pursuant to United States Code Title 8, section 1373, the immigration status of such person(s), and shall provide the business entity with written confirmation of that verification. (4) The Hazleton Code Enforcement Office shall suspend the business permit of any business entity which fails correct a violation of this section within three business days after notification of the violation by the Hazleton Code Enforcement Office. (5) The Hazleton Code Enforcement Office shall not suspend the business permit of a business entity if, prior to the date of the violation, the business entity had verified the work authorization of the alleged unlawful worker(s) using the Basic Pilot Program.
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(6) The suspension shall terminate one business day after a legal representative of the business entity submits, at a City office designated by the City Solicitor, a sworn affidavit stating that the violation has ended. (a) The affidavit shall include a description of the specific measures and actions taken by the business entity to end the violation, and shall include the name, address and other adequate identifying information of the unlawful workers related to the complaint. (b) Where two or more of the unlawful workers were verified by the federal government to be unauthorized aliens, the legal representative of the business entity shall submit to the Hazleton Code Enforcement Office, in addition to the prescribed affidavit, documentation acceptable to the City Solicitor which confirms that the business entity has enrolled in and will participate in the Basic Pilot Program for the duration of the validity of the business permit granted to the business entity. (7) For a second or subsequent violation, the Hazleton Code Enforcement Office shall suspend the business permit of a business entity for a period of twenty days. After the end of the
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suspension period, and upon receipt of the prescribed affidavit, the Hazleton Code Enforcement Office shall reinstate the business permit. The Hazleton Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate federal enforcement agency, pursuant to United States Code Title 8, section 1373. In the case of an unlawful worker disqualified by state law not related to immigration, the Hazleton Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate state enforcement agency. C. All agencies of the City shall enroll and participate in the Basic Pilot Program. D. As a condition for the award of any City contract or grant to a business entity for which the value of employment, labor or, personal services shall exceed $10,000, the business entity shall provide documentation confirming its enrollment and participation in the Basic Pilot Program. E. Private Cause of Action for Unfairly Discharged Employees (1) The discharge of any employee who is not an unlawful worker by a business entity in the City is an unfair business practice if, on the date of the discharge, the business entity was
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not participating in the Basic Pilot program and the business entity was employing an unlawful worker. (2) The discharged worker shall have a private cause of action in the Municipal Court of Hazleton against the business entity for the unfair business practice. The business entity found to have violated this subsection shall be liable to the aggrieved employee for: (a) three times the actual damages sustained by the employee, including but not limited to lost wages or compensation from the date of the discharge until the date the employee has procured new employment at an equivalent rate of compensation, up to a period of one hundred and twenty days; and (b) reasonable attorney’s fees and costs. SECTION 5. HARBORING ILLEGAL ALIENS A. It is unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, unless such harboring is otherwise expressly permitted by federal law. (1) For the purposes of this section, to let, lease, or rent a
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dwelling unit to an illegal alien, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, shall be deemed to constitute harboring. To suffer or permit the occupancy of the dwelling unit by an illegal alien, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, shall also be deemed to constitute harboring. (2) A separate violation shall be deemed to have been committed on each day that such harboring occurs, and for each adult illegal alien harbored in the dwelling unit, beginning one business day after receipt of a notice of violation from the Hazleton Code Enforcement Office. (3) A separate violation of this section shall be deemed to have been committed for each business day on which the owner fails to provide the Hazleton Code Enforcement Office with identity data needed to obtain a federal verification of immigration status, beginning three days after the owner receives written notice from the Hazleton Code Enforcement Office. B. Enforcement: The Hazleton Code Enforcement Office shall enforce the requirements of this section.
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(1) An enforcement action shall be initiated by means of a written signed complaint to the Hazleton Code Enforcement Office submitted by any official, business entity, or resident of the City. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred. (2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. (3) Upon receipt of a valid written complaint, the Hazleton Code Enforcement Office shall, pursuant to United States Code Title 8, section 1373(c), verify with the federal government the immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The Hazleton Code Enforcement Office shall submit identity data required by the federal government to verify immigration status. The City shall forward identity data provided by the owner to the federal government, and shall provide the property owner with written confirmation of that verification. (4) If after five business days following receipt of written notice
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from the City that a violation has occurred and that the immigration status of any alleged illegal alien has been verified, pursuant to United States Code Title 8, section 1373(c), the owner of the dwelling unit fails to correct a violation of this section, the Hazleton Code Enforcement Office shall deny or suspend the rental license of the dwelling unit. (5) For the period of suspension, the owner of the dwelling unit shall not be permitted to collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any tenant or occupant in the dwelling unit. (6) The denial or suspension shall terminate one business day after a legal representative of the dwelling unit owner submits to the Hazleton Code Enforcement Office a sworn affidavit stating that each and every violation has ended. The affidavit shall include a description of the specific measures and actions taken by the business entity to end the violation, and shall include the name, address and other adequate identifying information for the illegal aliens who were the subject of the complaint. (7) The Hazleton Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the
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appropriate federal enforcement agency, pursuant to United States Code Title 8, section 1373. (8) Any dwelling unit owner who commits a second or subsequent violation of this section shall be subject to a fine of two hundred and fifty dollars ($250) for each separate violation. The suspension provisions of this section applicable to a first violation shall also apply. (9) Upon the request of a dwelling unit owner, the Hazleton Code Enforcement Office shall, pursuant to United States Code Title 8, section 1373(c), verify with the federal government the lawful immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The penalties in this section shall not apply in the case of dwelling unit occupants whose status as an alien lawfully present in the United States has been verified. SECTION 6. CONSTRUCTION AND SEVERABILITY A. The requirements and obligations of this section shall be implemented in a manner fully consistent with federal law regulating immigration and protecting the civil rights of all citizens and aliens. B. If any part of provision of this Chapter is in conflict or
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inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part of provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby. SECTION 7. IMPLEMENTATION AND PROCESS A. Prospective Application Only. The default presumption with respect to Ordinances of the City of Hazleton—that such Ordinances shall apply only prospectively—shall pertain to the Illegal Immigration Relief Act Ordinance. The Illegal Immigration Relief Act Ordinance shall be applied only to employment contracts, agreements to perform service or work, and agreements to provide a certain product in exchange for valuable consideration that are entered into or are renewed after the date that the Illegal Immigration Relief Act Ordinance becomes effective and any judicial injunction prohibiting its implementation is removed. The Illegal Immigration Relief Act Ordinance shall be applied only to contracts to let, lease, or rent dwelling units that are entered into or are renewed after the date that the Illegal Immigration Relief Act Ordinance becomes
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effective and any judicial injunction prohibiting its implementation is removed. The renewal of a month-to-month lease or other type of tenancy which automatically renews absent notice by either party will not be considered as entering into a new contract to let, lease or rent a dwelling unit. B. Condition of Lease. Consistent with the obligations of a rental unit owner described in Section 5.A., a tenant may not enter into a contract for the rental or leasing of a dwelling unit unless the tenant is either a U.S. citizen or an alien lawfully present in the United States according to the terms of United States Code Title 8, Section 1101 et seq. A tenant who is neither a U.S. citizen nor an alien lawfully present in the United States who enters into such a contract shall be deemed to have breached a condition of the lease under 68 P.S. Section 250.501. A tenant who is not a U.S. citizen who subsequent to the beginning of his tenancy becomes unlawfully present in the United States shall be deemed to have breached a condition of the lease under 68 P.S. Section 250.501. C. Corrections of Violations—Employment of Unlawful Workers. The correction of a violation with respect to the
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employment of an unlawful worker shall include any of the following actions: (1) The business entity terminates the unlawful worker’s employment. (2) The business entity, after acquiring additional information from the worker, requests a secondary or additional verification by the federal government of the worker’s authorization, pursuant to the procedures of the Basic Pilot Program. While this verification is pending, the three business day period described in Section 4.B.(4) shall be tolled. (3) The business entity attempts to terminate the unlawful worker’s employment and such termination is challenged in a court of the Commonwealth of Pennsylvania. While the business entity pursues the termination of the unlawful worker’s employment in such forum, the three business day period described in Section 4.B.(4) shall be tolled. D. Corrections of Violations—Harboring Illegal Aliens. The correction of a violation with respect to the harboring of an illegal alien in a dwelling unit shall include any of the following actions: (1) A notice to quit, in writing, issued and served by the
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dwelling unit owner, as landlord, to the tenant declaring a forfeiture of the lease for breach of the lease condition describe in Section 7.B. (2) The dwelling unit owner, after acquiring additional information from the alien, requests the City of Hazleton to obtain a secondary or additional verification by the federal government that the alien is lawfully present in the United States, under the procedures designated by the federal government, pursuant to United States Code Title 8, Subsection 1373(c). While this second verification is pending, the five business day period described in Section 5.B.(4) shall be tolled. (3) The commencement of an action for the recovery of possession of real property in accordance with Pennsylvania law by the landlord against the illegal alien. If such action is contested by the tenant in court, the dwelling unit owner shall be deemed to have complied with this Ordinance while the dwelling unit owner is pursuing the action in court. While this process is pending, the five business day period described in Section 5.B.(4) shall be tolled. E. Procedure if Verification is Delayed. If the federal government notifies the City of Hazleton that it is unable to
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verify whether a tenant is lawfully present in the United States or whether an employee is authorized to work in the United States, the City of Hazleton shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any City official attempt to make an independent determination of any alien’s legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c). F. Venue for Judicial Process. Any business entity or rental unit owner subject to a complaint and subsequent enforcement under this ordinance, or any employee of such a business entity or tenant of such a rental unit owner, may challenge the enforcement of this Ordinance with respect to such entity or individual in the Magisterial District Court for the City of Hazleton, subject to the right of appeal to the Luzerne County Court of Common Pleas. Such an entity or individual may alternatively challenge the enforcement of this Ordinance with respect to such entity or individual in any other court of competent jurisdiction in accordance with applicable law, subject to all rights of appeal.
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G. Deference to Federal Determinations of Status. The determination of whether a tenant of a dwelling is lawfully present in the United States, and the determination of whether a worker is an unauthorized alien shall be made by the federal government, pursuant to United States Code Title 8, Subsection 1373(c). A determination of such status of an individual by the federal government shall create a rebuttable presumption as to that individual’s status in any judicial proceedings brought pursuant to this ordinance. The Court may take judicial notice of any verification of the individual previously provided by the federal government and may request the federal government to provide automated or testimonial verification pursuant to United States Code Title 8, Subsection 1373(c).
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B. Rental Registration Ordinance (Ordinance 2006-13) ESTABLISHING A REGISTRATION PROGRAM FOR RESIDENTIAL RENTAL PROPERTIES; REQUIRING ALL OWNERS OF RESIDENTIAL RENTAL PROPERTIES TO DESIGNATE AN AGENT FOR SERVICE OF PROCESS; AND PRESCRIBING DUTIES OF OWNERS, AGENTS AND OCCUPANTS; DIRECTING THE DESIGNATION OF AGENTS; ESTABLISHING FEES FOR THE COSTS ASSOCIATED WITH THE REGISTRATION OF RENTAL PROPERTY; AND PRESCRIBING PENALTIES FOR VIOLATIONS BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF HAZLETON AND IT IS HEREBY ORDAINED AND WITH THE AUTHORITY OF THE SAME AS FOLLOWS: SECTION 1. DEFINITIONS AND INTERPRETATION. The following words, when used in this ordinance, shall have the meanings ascribed to them in this section, except in those instances where the context clearly indicates otherwise. When not inconsistent with the context, words used in the present tense include the future; words in the plural number include the
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singular number; words in the singular shall include the plural, and words in the masculine shall include the feminine and the neuter. a. AGENT - Individual of legal majority who has been designated by the Owner as the agent of the Owner or manager of the Property under the provisions of this ordinance. b. CITY - City of Hazleton c. CITY CODE – the building code (property Maintenance Code 1996 as amendedor superceded) officially adopted by the governing body of the City, or other such codes officially designated by the governing body of the City for the regulation of construction, alteration, addition, repair, removal, demolition, location, occupancy and maintenance of buildings and structures. d. ZONING ORDINANCE – Zoning ordinance as officially adopted by the City of Hazleton, File of Council # 95-26 (as amended). e. OFFICE – The Office of Code Enforcement for the City of Hazleton. f. DWELLING UNIT – a single habitable unit, providing living facilities for one or more persons, including permanent space for
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living, sleeping, eating, cooking and bathing and sanitation, whether furnished or unfurnished. There may be more than one Dwelling Unit on a Premises. g. DORMITORY - a residence hall offered as student or faculty housing to accommodate a college or university, providing living or sleeping rooms for individuals or groups of individuals, with or without cooking facilities and with or without private baths. h. INSPECTOR - any person authorized by Law or Ordinance to inspect buildings or systems, e.g. zoning, housing, plumbing, electrical systems, heat systems, mechanical systems and health necessary to operate or use buildings within the City of Hazleton. An Inspector would include those identified in Section 8 – Enforcement. i. FIRE DEPARTMENT – the Fire Department of the City of Hazleton or any member thereof, and includes the Chief of Fire or his designee. j. HOTEL – a building or part of a building in which living and sleeping accommodations are used primarily for transient occupancy, may be rented on a daily basis, and desk service is provided, in addition to one or more of the following services:
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maid, telephone, bellhop service, or the furnishing or laundering of linens. k. LET FOR OCCUPANCY – to permit, provide or offer, for consideration, possession or occupancy of a building, dwelling unit, rooming unit, premise or structure by a person who is not the legal owner of record thereof, pursuant to a written or unwritten lease, agreement or license, or pursuant to a recorded or unrecorded agreement or contract for the sale of land. l. MOTEL – a building or group of buildings which contain living and sleeping accommodations used primarily for transient occupancy, may be rented on a daily basis, and desk service is provided, and has individual entrances from outside the building to serve each such living or sleeping unit. m. OCCUPANT – a person age 18 or older who resides at a Premises. n. OPERATOR – any person who has charge, care or control of a Premises which is offered or let for occupancy. o. OWNER – any Person, Agent, or Operator having a legal or equitable interest in the property; or recorded in the official records of the state, county, or municipality as holding title to the property; or otherwise having control of the property,
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including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a Court of competent jurisdiction. p. OWNER – OCCUPANT- an owner who resides in a Dwelling Unit on a regular permanent basis, or who otherwise occupies a nonresidential portion of the Premises on a regular permanent basis. q. PERSON – any person, partnership, firm, association, corporation, or municipal authority or any other group acting as a single unit. r. POLICE DEPARTMENT – the Police Department of the City of Hazleton or any member thereof sworn to enforce laws and ordinances in the City, and includes the Chief of Police or his designee. s. PREMISES – any parcel of real property in the City, including the land and all buildings and structures in which one or more Rental Units are located. t. RENTAL UNIT – means a Dwelling Unit or Rooming Unit which is Let for Occupancy and is occupied by one or more Tenants.
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u. ROOMING UNIT – any room or groups of rooms forming a single habitable unit occupied or intended to be occupied for sleeping or living, but not for cooking purposes. v. TENANT – any Person authorized by the Owner or Agent who occupies a Rental Unit within a Premises regardless of whether such Person has executed a lease for said Premises. SECTION 2. APPOINTMENT OF AN AGENT AND/OR MANAGER Each Owner who is not an Owner-occupant, or who does not reside in the City of Hazleton or within a ten (10) mile air radius of the City limits, shall appoint an Agent who shall reside in the City or within a ten (10) mile air radius of the City limits. SECTION 3. DUTIES OF THE OWNER AND/OR AGENT a. The Owner has the duty to maintain the Premises in good repair, clean and sanitary condition, and to maintain the Premises in compliance with the current Codes, Building Codes and Zoning Ordinance of the City of Hazleton. The Owner may delegate implementation of these responsibilities to an Agent. b. The duties of the Owner and/or Agent shall be to receive notices and correspondence, including service of process, from the City of Hazleton; to arrange for the inspection of the Rental
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Units; do or arrange for the performance of maintenance, cleaning, repair, pest control, snow and ice removal, and ensure continued compliance of the Premises with the current Codes, Building Codes and Zoning Ordinance in effect in the City of Hazleton, as well as arrange for garbage removal. c. The name, address and telephone number of the Owner and Agent, if applicable, shall be reported to the Code Enforcement Office in writing upon registering the Rental Units. d. No Dwelling Unit shall be occupied, knowingly by the Owner or Agent, by a number of persons that is in excess of the requirements outlined in 2003 International Property Maintenance Code, Chapter 4, Light, Ventilation, and Occupancy Limits, Section PM-404.5, Overcrowding, or any update thereof, a copy of which is appended hereto and made a part hereof. SECTION 4. NOTICES a. Whenever an Inspector or Code Enforcement Officer determines that any Rental Unit or Premises fails to meet the requirements set forth in the applicable Codes, the Inspector or Code Enforcement Officer shall issue a correction notice setting forth the violations and ordering the Occupant, Owner or Agent,
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as appropriate, to correct such violations. The notice shall: 1) Be in writing; 2) Describe the location and nature of the violation; 3) Establish a reasonable time for the correction of the violation. b. All notices shall be served upon the Occupant, Owner or Agent, as applicable, personally or by certified mail, return receipt requested. A copy of any notices served solely on an Occupant shall also be provided to the Owner or Agent. In the event service is first attempted by mail and the notice is returned by the postal authorities marked “unclaimed” or “refused”, then the Code Enforcement Office or Police Department shall attempt delivery by personal service on the Occupant, Owner or Agent, as applicable. The Code Enforcement Office shall also post the notice at a conspicuous place on the Premises. If personal service directed to the Owner or Agent cannot be accomplished after a reasonable attempt to do so, then the notice may be sent to the Owner or Agent, as applicable, at the address stated on the most current registration application for the Premises in question, by regular first class mail, postage prepaid. If such notice is not returned by the postal authorities within five
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(5) days of its deposit in the U.S. Mail, then it shall be deemed to have been delivered to and received by the addressee on the fifth day following its deposit in the United States Mail. c. For purposes of this Ordinance, any notice hereunder that is given to the Agent shall be deemed as notice given to the Owner. d. There shall be a rebuttable presumption that any notice that is given to the Occupant, Owner or Agent under this ordinance shall have been received by such Occupant, Owner or Agent if the notice was served in the manner provided by this ordinance. e. Subject to paragraph 4.d above, a claimed lack of knowledge by the Owner or Agent, if applicable, of any violation hereunder cited shall be no defense to closure of rental units pursuant to Section 9, as long as all notices prerequisite to such proceedings have been given and deemed received in accordance with the provisions of this ordinance. f. All notices shall contain a reasonable time to correct, or take steps to correct, violations of the above. The Occupant, Owner or Agent to whom the notice was addressed may request additional time to correct violations. Requests for additional time must be in writing and either deposited in the U.S. Mail
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(post-marked) or handdelivered to the Code Enforcement Office within five (5) days of receipt of the notice by the Occupant, Owner or Agent. The City retains the right to deny or modify time extension requests. If the Occupant, Owner or Agent is attempting in good faith to correct violations but is unable to do so within the time specified in the notice, the Occupant, Owner or Agent shall have the right to request such additional time as may be needed to complete the correction work, which request shall not be unreasonably withheld. g. Failure to correct violations within the time period stated in the notice of violation shall result in such actions or penalties as are set forth in Section 10 of this ordinance. If the notice of violation relates to actions or omissions of the Occupant, and the Occupant fails to make the necessary correction, the Owner or Agent may be required to remedy the condition. No adverse action shall be taken against an Owner or Agent for failure to remedy a condition so long as the Owner or Agent is acting with due diligence and taking bona fide steps to correct the violation, including but not limited to pursuing remedies under a lease agreement with an Occupant or Tenant. The City shall not be precluded from pursuing an enforcement action against any
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Occupant or Tenant who is deemed to be in violation. SECTION 5. INSURANCE In order to protect the health, safety and welfare of the residents of the City, it is hereby declared that the city shall require hazard and general liability insurance for all property owners letting property for occupancy in the City. a. Minimum coverage; use of insurance proceeds. All Owners shall be required to obtain a minimum of fifty thousand ($50,000.00) dollars in general liability insurance, and hazard and casualty insurance in an amount sufficient to either restore or remove the building in the event of a fire or other casualty. Further, in the event of any fire or loss covered by such insurance, it shall be the obligation of the Owner to use such insurance proceeds to cause the restoration or demolition or other repair of the property in adherence to the City Code and all applicable ordinances. b. Property owners to provide City with insurance information. Owners shall be required to place their insurance company name, policy number and policy expiration date on their Rental Property Registration form, or in the alternative, to provide the Code Enforcement Office with a copy of a certificate of
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insurance. A registration Certificate (see Section 6 below) shall not be issued to any Owner or Agent unless the aforementioned information has been provided to the Code Enforcement Office. The Code Enforcement Office shall be informed of any change in policies for a particular rental property or cancellation of a policy for said property within thirty (30) days of said change or cancellation. SECTION 6. RENTAL REGISTRATION AND LICENSE REQUIREMENTS a. No Person shall hereafter occupy, allow to be occupied, advertise for occupancy, solicit occupants for, or let to another person for occupancy any Rental Unit within the City for which an application for license has not been made and filed with the Code Enforcement Office and for which there is not an effective license. Initial application and renewal shall be made upon forms furnished by the Code Enforcement Office for such purpose and shall specifically require the following minimum information: 1) Name, mailing address, street address and phone number of the Owner, and if the Owner is not a natural person, the name, address and phone number of a designated representative of the
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Owner. 2) Name, mailing address, street address and phone number of the Agent of the Owner, if applicable. 3) The street address of the Premises being registered. 4) The number and types of units within the Premises (Dwelling Units or Rooming Units) The Owner or Agent shall notify the Code Enforcement Office of any changes of the above information within thirty (30) days of such change. b. The initial application for registration and licensing shall be made by personally filing an application with the Code Enforcement Office by November 1, 2006. Thereafter, any new applicant shall file an application before the Premises is let for occupancy, or within thirty (30) days of becoming an Owner of a currently registered Premises. One application per property is required, as each property will receive its own license. c. Upon receipt of the initial application or any renewal thereof and the payment of applicable fees as set forth in Section 7 below, the Code Enforcement Office shall issue a Rental Registration License to the Owner within thirty (30) days of receipt of payment. d. Each new license issued hereunder, and each renewal license,
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shall expire on October 31 of each year. The Code Enforcement Office shall mail license renewal applications to the Owner or designated Agent on or before September 1 of each year. Renewal applications and fees may be returned by mail or in person to the Code Enforcement Office. A renewal license will not be issued unless the application and appropriate fee has been remitted. SECTION 7. FEES. a. Annual License Fee. There shall be a license fee for the initial license and an annual renewal fee thereafter. Fees shall be assessed against and payable by the Owner in the amount of $5.00 per Rental Unit, payable at the time of initial registration and annual renewal, as more specifically set forth in Section 6 above. b. Occupancy Permit Fee. There shall be a one-time occupancy permit fee of $10.00 for every new Occupant, which is payable by the Occupant. For purposes of initial registration under this ordinance, this fee shall be paid for all current Occupants by November 1, 2006. Thereafter, prior to occupying any Rental Unit, all Occupants shall obtain an occupancy permit. It shall be the Occupant’s responsibility to submit an occupancy permit
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application to the Code Enforcement Office, pay the fee and obtain the occupancy permit. If there are multiple Occupants in a single Rental Unit, each Occupant shall obtain his or her own permit. Owner or Agent shall notify all prospective Occupants of this requirement and shall not permit occupancy of a Rental Unit unless the Occupant first obtains an occupancy permit. Each occupancy permit issued is valid only for the Occupant for as long as the Occupant continues to occupy the Rental Unit for which such permit was applied. Any relocation to a different Rental Unit requires a new occupancy permit. All Occupants age 65 and older, with adequate proof of age, shall be exempt from paying the permit fee, but shall be otherwise required to comply with this section and the rest of the Ordinance. 1. Application for occupancy permits shall be made upon forms furnished by the Code Enforcement Office for such purpose and shall specifically require the following minimum information: a) Name of Occupant b) Mailing address of Occupant c) Street address of Rental Unit for which Occupant is applying, if different from mailing address d) Name of Landlord
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e) Date of lease commencement f) Proof of age if claiming exemption from the permit fee g) Proper identification showing proof of legal citizenship and/or residency 2. Upon receipt of the application and the payment of applicable fees as set forth above, the Code Enforcement Office shall issue an Occupancy Permit to the Occupant immediately. SECTION 8. ENFORCEMENT a. The following persons are hereby authorized to enforce this Ordinance: 1. The Chief of Police 2. Any Police Officer 3. Code Enforcement Officer 4. The Fire Chief 5. Deputy Fire Chief of the City of Hazleton. 6. Health Officer 7. Director of Public Works b. The designation of any person to enforce this Ordinance or authorization of an Inspector, when in writing, and signed by a person authorized by Section 8.a to designate or authorize an Inspector to enforce this Ordinance, shall be prima facie
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evidence of such authority before the Magisterial District Judge, Court of Common Pleas, or any other Court, administrative body of the City, or of this commonwealth, and the designating Director or Supervisor need not be called as a witness thereto. SECTION 9. FAILURE TO CORRECT VIOLATIONS. If any Person shall fail, refuse or neglect to comply with a notice of violation as set forth in Section 4 above, the City shall have the right to file an enforcement action with the Magisterial District Judge against any Person the City deems to be in violation. If, after hearing, the Magisterial District Judge determines that such Person or Persons are in violation, the Magisterial District Judge may, at the City’s request, order the closure of the Rental Unit(s), or assess fines in accordance with Section 10 below, until such violations are corrected. Such order shall be stayed pending any appeal to the Court of Common Pleas of Luzerne County. SECTION 10. FAILURE TO COMPLY WITH THIS ORDINANCE; PENALTIES a. Except as provided in subsections 10.b and 10.c below, any Person who shall violate any provision of the Ordinance shall, upon conviction thereof after notice and a hearing before the
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Magisterial District Judge, be sentenced to pay a fine of not less than $100.00 and not more than $300.00 plus costs, or imprisonment for a term not to exceed ninety (90) days in default of payment. Every day that a violation of this Ordinance continues shall constitute a separate offense, provided, however, that failure to register or renew or pay appropriate fees in a timely manner shall not constitute a continuing offense but shall be a single offense not subject to daily fines. b. Any Owner or Agent who shall allow any Occupant to occupy a Rental Unit without first obtaining an occupancy permit is in violation of Section 7.b and shall, upon conviction thereof after notice and a hearing before the Magisterial District Judge, be sentenced to pay a fine of $1,000 for each Occupant that does not have an occupancy permit and $100 per Occupant per day for each day that Owner or Agent continues to allow each such Occupant to occupy the Rental Unit without an occupancy permit after Owner or Agent is given notice of such violation pursuant to Section 4 above. Owner or Agent shall not be held liable for the actions of Occupants who allow additional occupancy in any Rental Unit without the Owner or Agent’s written permission, provided that Owner or Agent takes
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reasonable steps to remove or register such unauthorized Occupant(s) within ten (10) days of learning of their unauthorized occupancy in the Rental Unit. c. Any Occupant having an occupancy permit but who allows additional occupancy in a Rental Unit without first obtaining the written permission of the Owner or Agent and without requiring each such additional Occupant to obtain his or her own occupancy permit is in violation of Section 7.b of this ordinance and shall, upon conviction thereof after notice and a hearing before the Magisterial District Judge, be sentenced to pay a fine of $1,000 for each additional Occupant permitted by Occupant that does not have an occupancy permit and $100 per additional Occupant per day for each day that Occupant continues to allow each such additional Occupant to occupy the Rental Unit without an occupancy permit after Occupant is given written notice of such violation by Owner or Agent or pursuant to Section 4 above. SECTION 11. APPLICABILITY AND EXEMPTIONS TO THE ORDINANCE The provisions of the ordinance shall not apply to the following properties, which are exempt from registration and license
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requirements: a. Hotels, Motels and Dormitories. b. Rental Units owned by Public Authorities as defined under the Pennsylvania Municipal Authorities Act, and Dwelling Units that are part of an elderly housing multi-unit building which is 75% occupied by individuals over the age of sixty-five. c. Multi-dwelling units that operate under Internal Revenue Service Code Section 42 concerning entities that operate with an elderly component. d. Properties which consist of a double home, half of which is let for occupancy and half of which is Owner-occupied as the Owner’s residence. SECTION 12. CONFIDENTIALITY OF INFORMATION All registration information collected by the City under this Ordinance shall be maintained as confidential and shall not be disseminated or released to any individual, group or organization for any purpose except as provided herein or required by law. Information may be released only to authorized individuals when required during the course of an official City, state or federal investigation or inquiry. SECTION 13. SAVINGS CLAUSE
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This ordinance shall not affect violations of any other ordinance, code or regulation existing prior to the effective date thereof and any such violations shall be governed and shall continue to be punishable to the full extent of the law under the provisions of those ordinances, codes or regulations in effect at the time the violation was committed. SECTION 14. SEVERABILITY If any section, clause, provision or portion of this Ordinance shall be held invalid or unconstitutional by any Court of competent jurisdiction, such decision shall not affect any other section, clause, provision or portion of this Ordinance so long as it remains legally enforceable without the invalid portion. The City reserves the right to amend this Ordinance or any portion thereof from time to time as it shall deem advisable in the best interest of the promotion of the purposes and intent of this Ordinance, and the effective administration thereof. SECTION 15. EFFECTIVE DATE This Ordinance shall become effective immediately upon approval. This Ordinance repeals Ordinance number 2004-11 and replaces same in its entirety.
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SECTION 16. This Ordinance is enacted by the Council of the City of Hazleton under the authority of the Act of Legislature, April 13, 1972, Act No. 62, known as the “Home Rule Charter and Optional Plans Law”, and all other laws enforceable the State of Pennsylvania.
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 PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 07-3531 _____________
PEDRO LOZANO; HUMBERTO HERNANDEZ; ROSA LECHUGA; JOHN DOE 1; JOHN DOE 2; JOHN
DOE 3, a Minor, By His parents; JANE DOE 1; JANE DOE 2; JANE DOE 3; JOHN DOE 4, a Minor, By
His parents, BRENDA LEE MIELES; CASA DOMINICANA OF
HAZLETON, INC.; HAZLETON HISPANIC BUSINESS
ASSOCIATION; PENNSYLVANIA STATEWIDE LATINO
COALITION; JANE DOE 5; JOHN DOE 7; JOSE LUIS LECHUGA,
v.
CITY OF HAZLETON, Appellant.
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. No. 3:06-cv-01586)
District Judge: Honorable James M. Munley ____________
Argued August 15, 2012
On Remand from the United States Supreme Court ____________

Before: McKEE, Chief Judge, NYGAARD and VANASKIE, Circuit Judges
(Opinion Filed: July 26, 2013) ____________
Omar Jadwat, Esq. (ARGUED) Lee Gelernt, Esq. American Civil Liberties Union Immigrants‟ Rights Project 125 Broad Street, 18th Floor New York, NY 10004
Lucas Guttentag, Esq. Jennifer Chang, Esq. American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111-0000
Witold J. Walczak, Esq. American Civil Liberties Union 313 Atwood Street Pittsburgh, PA 15213-0000
Jackson Chin, Esq. Foster Maer, Esq. Puerto Rican Legal Defense & Education Fund 99 Hudson Street, 14th Floor New York, NY 10013-0000
Ghita Schwarz, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012-0000
Thomas B. Fiddler, Esq. White & Williams 1650 Market Street 1800 One Liberty Philadelphia, PA 19103
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Elena Park, Esq. Cozen O‟Connor 200 Four Falls Corporate Center P.O. Box 800, Suite 400 West Conshohocken, PA 19428-0800
Ilan Rosenberg, Esq. Thomas G. Wilkinson, Esq. Cozen O‟Connor 1900 Market Street Philadelphia, PA 19103
Shamaine A. Daniels, Esq. P.O. Box 5347 Harrisburg, PA 17110
Attorneys for Plaintiffs-Appellees
Kris W. Kobach, Esq. (ARGUED) University of Missouri-Kansas City School of Law 5100 Rockhill Road, Law 1-200 Kansas City, MO 64110
Michael Hethmon, Esq. Immigration Reform Law Institute 25 Massachusetts Avenue, N.W. Suite 330B Washington, D.C. 20001
Attorneys for Defendant-Appellant
Damon Scott 1446 Fair Oaks Lane Florence, SC 29506
Paul J. Orfanedes, Esq. James F. Peterson, Esq. Judicial Watch, Inc. 501 School Street, S.W. Washington, D.C. 20024-0000
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Richard A. Samp, Esq. Washington Legal Foundation 2009 Massachusetts Avenue, N.W. Washington, D.C. 20036-0000
Andrew L. Schlafly, Esq. 939 Old Chester Road Far Hills, NJ 07931
Attorneys for Amicus Appellants
Robin S. Conrad, Esq. National Chambers Litigation Center 1615 H. Street, N.W., Suite 230 Washington, D.C. 20062-0000
Carter G. Phillips, Esq. Sidley Austin 1501 K Street, N.W. Washington, D.C. 20005
Eric A. Shumsky, Esq. Orrick, Herrington & Sutcliffe 1152 15th Street, N.W. Columbia Center Washington, D.C. 20005-0000
Charles D. Weisselberg, Esq. Berkley Law School 688 Simon Hall Berkley, CA 94720
Jacob S. Pultman, Esq. Allen & Overy 1221 Avenue of the Americas New York, NY 10020-0000
John M. West, Esq. Bredhoff & Kaiser 805 15th Street, N.W., Suite 1000
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Washington, D.C. 20005-0000
Mark D. McPherson, Esq. Morrison & Foerster 1290 Avenue of the Americas New York, NY 10104
Burt M. Rublin, Esq. Ballard Spahr 1735 Market Street, 51st Floor Philadelphia, PA 19103
Nancy Winkelman, Esq. Schnader Harrison Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, PA 19103
Kenneth J. Pfaehler, Esq. Dentons US 1301 K Street, N.W. Suite 600, East Tower Washington, D.C. 20005-3364
Lawrence H. Fisher, Esq. Cohen & Willwerth 301 Grant Street One Oxford Centre, Suite 4300 Pittsburgh, PA 15219
Attorneys for Amicus Appellees ____________
OPINION OF THE COURT ____________
McKEE, Chief Judge.
This case is before us on remand from the United States Supreme Court. The City of Hazleton previously appealed the District Court‟s judgment permanently enjoining enforcement of two Hazleton ordinances that attempt to
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prohibit employment of unauthorized aliens and preclude them from renting housing within the City.1 In a precedential Opinion and Judgment filed on September 9, 2010, we upheld the permanent injunction. Thereafter, the Supreme Court granted Hazleton‟s petition for a writ of certiorari and remanded this case so that we could reconsider our analysis in light of Chamber of Commerce v. Whiting, 563 U.S. __, 131 S. Ct. 1968 (2011). See City of Hazleton v. Lozano, 563 U.S. __, 131 S. Ct. 2958 (2011). Subsequently, the Court also decided Arizona v. United States, 567 U.S. __, 132 S. Ct. 2492 (2012). Both Whiting and Arizona address the extent to which federal immigration law pre-empts various state laws pertaining to the treatment of unauthorized aliens. On remand, we asked for supplemental briefing on whether either of those decisions alter our original analysis upholding the District Court‟s injunction.
Having thoroughly considered the additional submissions of the parties and the Court‟s decisions in Whiting and Arizona, we again conclude that both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law. Accordingly, we will again affirm the District Court‟s order enjoining enforcement of these provisions.
I. BACKGROUND
The factual and procedural background underlying this case have been extensively described in the District Court‟s decision, Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007) (“Lozano I”), and our earlier decision, Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010) (“Lozano II”), vacated and remanded, 131 S. Ct. 2958
1 For reasons explained in Lozano v. City of Hazleton, 620 F.3d 170, 176 n.1 (3d Cir. 2010) (“Lozano II”), vacated and remanded, 563 U.S. __, 131 S. Ct. 2958 (2011), we will use the term “unauthorized alien” when discussing issues of employment, and we will use either “aliens not lawfully present” or “aliens lacking lawful immigration status” when referring to persons who are not legally in this country.
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(2011). Accordingly, we need not reiterate that history as thoroughly as we otherwise would. However, context and clarity require that we first set forth those facts underlying our analysis on remand.
This litigation involves a series of immigration ordinances enacted by the City of Hazleton between July 2006 and March 2007. The two ordinances at issue are: (1) the Illegal Immigration Relief Act Ordinance (“IIRAO”), which consists of Ordinance 2006-18, as amended by Ordinance 2006-40, and Ordinance 2007-6; and (2) the Rental Registration Ordinance (“RO”), which consists of Ordinance 2006-13.2 These ordinances attempt to regulate the employment of unauthorized aliens, and the provision of rental housing to aliens lacking lawful immigration status, within Hazleton.
The relevant employment provisions make it unlawful for any person “to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct” any person without work authorization “to perform work in whole or in part within the City.” IIRAO § 4A. The IIRAO also provides for public monitoring and prosecution, and sanctions violators by suspending their business permits. Id. § 4B. “Safe harbor” from the IIRAO‟s sanctions is available for businesses that verify work authorization using the federal EVerify program. Id. § 4B(5).3 The IIRAO also requires City
2 The full text of the IIRAO and RO are set forth as an Appendix to Lozano II, 620 F.3d at 224-38. For convenience, we again attach the full text of these ordinances as an Appendix to this opinion.
3 “E-Verify is an internet-based system that allows an employer to verify an employee‟s work-authorization status. An employer submits a request to the E-Verify system based on information that the employee provides. . . . In response to that request, the employer receives either a confirmation or a tentative nonconfirmation of the employee‟s authorization to work.” Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1975 (2011) (internal quotation marks and citations omitted). For a more complete description of the E-Verify program,
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agencies and certain businesses to enroll in the E-Verify program. Id. §§ 4B(6)(b), 4C, 4D.
The disputed housing provisions are found in both the IIRAO and the RO. The IIRAO makes legal immigration status a condition precedent to entering into a valid lease. Id. § 7B. The IIRAO also provides that it is “unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien” is unauthorized. Id. § 5A. “Harboring” is broadly defined to include “let[ting], leas[ing], or rent[ing] a dwelling unit to an illegal alien.” Id. § 5A(1).
The anti-harboring provisions in the IIRAO operate in conjunction with the rental registration scheme established in the RO. The RO requires that prospective occupants of rental housing over the age of eighteen obtain an occupancy permit. RO §§ 1m, 6a, 7b. The application for an occupancy permit requires submission of “[p]roper identification showing proof of legal citizenship and/or residency.” Id. § 7b(1)(g). Landlords are prohibited from allowing anyone over the age of eighteen to rent or occupy a rental unit without an occupancy permit. Id. § 6a. Violators are subject to fines and possible imprisonment. RO § 10.
As explained in Lozano II, numerous plaintiffs sued alleging the ordinances were invalid and the District Court permanently enjoined enforcement of the ordinances after a two-week bench trial. The court concluded that the ordinances are pre-empted by federal law and contrary to the Due Process Clause of the Fourteenth Amendment, 42 U.S.C. § 1981, as well as a number of state laws limiting the authority of municipalities in Pennsylvania. See Lozano II, 620 F.3d at 181.4
including its evolution and history, see Whiting, 131 S. Ct. at 1986.
4 The District Court dismissed Plaintiffs‟ Equal Protection, Fair Housing Act, privacy, and Pennsylvania
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We thereafter affirmed the ultimate judgment of the District Court, although we differed in our reasoning.5 In short, we held that the employment provisions in the IIRAO, though not expressly pre-empted, are conflict pre-empted because they stand as an obstacle to the accomplishment and execution of federal law. Lozano II, 620 F.3d 210-19. We also held that the housing provisions in the IIRAO and RO are invalid because they impermissibly “regulate immigration” and are both field and conflict pre-empted by federal immigration law. Id. at 219-24.6
As we noted at the outset, after we issued our decision in Lozano II, the Supreme Court granted the City‟s petition for a writ of certiorari, vacated our decision, and remanded for reconsideration in light of that Court‟s intervening decision in Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011). In Whiting, the Supreme Court affirmed the decision of the Court of Appeals for the Ninth Circuit in Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856
Landlord and Tenant Act claims. Those portions of the District Court‟s ruling were not appealed.
5 We first held that at least one Plaintiff had standing to challenge the employment and housing provisions of the Hazleton ordinances generally, but no Plaintiff had standing to challenge a severable private cause of action provision in the IIRAO. Lozano II, 620 F.3d at 184-94. We also held that certain Plaintiffs could proceed anonymously and that the confidentiality agreement between the parties did not violate 8 U.S.C. § 1373(a). Id. at 194-96. In addition, we concluded that Hazleton had waived any issues of severability except with respect to the private cause of action provision. Id. at 182. Hazleton did not seek review of these holdings in its petition for a writ of certiorari, and did not raise these issues in its supplemental briefing following remand. Accordingly, these portions of our earlier decision are not at issue here.
6 Because we affirmed on pre-emption grounds, it was not necessary to reach the other grounds the District Court relied upon in imposing the injunction.
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(9th Cir. 2009). There, the Court of Appeals for the Ninth Circuit had upheld the Legal Arizona Workers Act against claims of express and implied pre-emption. Chicanos Por La Causa, 558 F.3d at 866, 867. After the decision in Whiting, the Supreme Court decided Arizona v. United States, 132 S. Ct. 2492 (2012). There, the Court held that three of four challenged provisions of Arizona‟s immigration law, known as “S.B. 1070,” were pre-empted. However, the Court overturned a preliminary injunction with respect to the fourth provision and remanded for additional fact finding.
III. DISCUSSION7
The question before us on remand remains whether federal law pre-empts the employment and/or housing provisions of the Hazleton ordinances.
As we explained in Lozano II, “[t]he pre-emption doctrine is a necessary outgrowth of the Supremacy Clause,” which “provides that the laws of the United States „shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.‟” Lozano II, 620 F.3d at 203 (quoting U.S. Const. art. VI, cl. 2). Pre-emption may be either express or implied, and implied pre-emption includes both field preemption and conflict pre-emption. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).
Field pre-emption occurs “[w]hen Congress intends federal law to „occupy the field.‟” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). “The intent to displace state law altogether can be inferred from a framework of regulation „so pervasive . . . that Congress left no room for the States to supplement it‟ or where there is a
7 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court‟s conclusions of law de novo and its factual findings for clear error. See, e.g., McCutcheon v. America’s Servicing Co., 560 F.3d 143, 147 (3d Cir. 2009).
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„federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.‟” Arizona v. United States, 131 S. Ct. 2492, 2501 (2012) (internal quotation marks and citation omitted). To determine the boundaries that Congress sought to occupy within the field, “„we look to the federal statute itself, read in the light of its constitutional setting and its legislative history.‟” De Canas v. Bica, 424 U.S. 351, 360 n.8 (1976) (quoting Hines v. Davidowitz, 312 U.S. 52, 78-79 (1941) (Stone, J., dissenting)), superseded by statute on other grounds as stated in Whiting, 131 S. Ct. at 1974-75.
Conflict pre-emption can occur in one of two ways: where “compliance with both federal and state regulations is a physical impossibility,” or “where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 131 S. Ct. at 2501 (internal quotation marks and citations omitted). Courts must utilize their judgment to determine what constitutes an unconstitutional impediment to federal law, and that judgment is “informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby, 530 U.S. at 373.
Nothing the Court said in Whiting or Arizona altered this framework for pre-emption analysis. The Court, did, however provide important guidance for our application of the pre-emption doctrine to the Hazleton ordinances. The Court upheld Arizona‟s efforts to regulate the employment of unauthorized aliens through a business licensing law in Whiting, but largely rejected Arizona‟s efforts to enact its own immigration policies, both within and outside of the employment context, in Arizona. With those cases as our compass, we now reconsider our prior ruling upholding the District Court‟s permanent injunction.
A. The Employment Provisions
The relevant employment provisions of the IIRAO regulate and prohibit a broad range of economic interactions with unauthorized aliens. Section 4 of the IIRAO renders it
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“unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct” any person without work authorization “to perform work in whole or in part within the City.” IIRAO § 4A. “Work” is defined to include “any job, task, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including but not limited to all activities conducted by business entities.” Id. § 3F. The IIRAO‟s prohibitions also apply to any “agreement to perform any service or work or to provide a certain product in exchange for valuable consideration.” Id. § 3C. “Every business entity that applies for a business permit” must “sign an affidavit . . . affirming that they do not knowingly utilize the services of or hire any person who is an unlawful worker.” Id. § 4A.
Any City resident may submit a complaint to Hazleton‟s Code Enforcement Office (“HCEO”) alleging a violation of the employment provisions. Id. § 4B(1). Upon receipt of such a complaint, the HCEO requests identifying information about the alleged unlawful worker from the employing or contracting business entity. That business entity must then provide the requested information within three business days, or Hazleton will suspend its business license. Id. § 4B(3). The HCEO then submits the identity information to the federal government, pursuant to 8 U.S.C. § 1373, for verification of “the immigration status of such person(s).” Id.8
8 8 U.S.C. § 1373(a) provides:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
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If the HCEO confirms that the worker lacks authorization to work in the United States, the business must terminate that worker within three business days or the City will suspend its business license. Id. § 4B(4). A business whose license has been suspended under the IIRAO regains its license one business day after it submits an affidavit affirming that it has terminated the unauthorized worker. Id. § 4B(6). After a second or subsequent violation of the IIRAO, Hazleton suspends the business‟s license for a minimum of twenty days and reports the violation to the federal government. Id. § 4B(7).
Safe harbor from the IIRAO‟s sanctions is available for businesses that verify the work authorization of their workers using the federal E-Verify program. Id. § 4B(5). In addition, the IIRAO requires that City agencies and businesses that contract with the City for amounts greater than $10,000 must enroll in E-Verify. Id. §§ 4C, 4D. Those business entities found to have utilized the work of two or more unlawful workers at one time must enroll in E-Verify in order to recover their license. Id. § 4B(6)(b).
We previously held that the IIRAO‟s employment provisions, though not expressly pre-empted, are conflict preempted. Lozano II, 620 F.3d 210-19. However, in Chamber of Commerce v. Whiting, 132 S. Ct. 1968 (2011), the Supreme Court upheld an Arizona statute that allowed state courts to suspend or revoke the business licenses of employers who knowingly or intentionally employ unauthorized aliens and required that all Arizona employers use E-Verify. Accordingly, we will first consider whether our analysis in Lozano II, concluding that the IIRAO conflicts with federal law, survives Whiting.
In Whiting, the Supreme Court considered whether the employer sanctions provisions of the Legal Arizona Workers Act (“LAWA”) were pre-empted by the Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat. 3359 (codified at 8 U.S.C. §§ 1324a-1324b). The Court held that those provisions were not expressly pre-empted because they fell “squarely” within the confines of IRCA‟s
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savings clause. That provision of IRCA “expressly preempts States from imposing „civil or criminal sanctions‟ on those who employ unauthorized aliens, „other than through licensing and similar laws.‟” Whiting, 131 S. Ct. at 1977 (quoting 8 U.S.C. § 1324a(h)(2)) (emphasis added).9 The Court also held that Arizona‟s licensing law did not conflict with federal law, and therefore was not impliedly pre-empted. Whiting, 131 S. Ct. at 1981-85. The Court noted that the Arizona statute “simply implement[ed] the sanctions that Congress expressly allowed Arizona to pursue through licensing laws,” and “Arizona went the extra mile in ensuring that its law closely tracks IRCA‟s provisions in all material respects.” Id. at 1981.10
The Court in Whiting also held that the Illegal Immigration Reform and Immigrant Responsibility Act of
9 This part of the decision in Whiting is consistent with our analysis in Lozano II. There, we held that the employment provisions in the IIRAO were not expressly preempted because they constituted a “licensing [or] similar law[],” exempted from express pre-emption under 8 U.S.C. § 1324a(h)(2). Lozano II, 620 F.3d at 207-10. Like Arizona‟s licensing law, the employment provisions here “fall[] . . . within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.” Whiting, 131 S. Ct. at 1981.
10 For example, the Arizona law: (i) “adopt[s] the federal definition of who qualifies as an „unauthorized alien‟”; (ii) “expressly provides that state investigators must verify the work authorization of an allegedly unauthorized alien with the Federal Government” and prohibits any independent state determination; (iii) like the federal law, prohibits “„knowingly‟ employing an unauthorized alien” and requires that the prohibition be interpreted consistently with federal laws; and (iv) “provides employers with the same affirmative defense for good-faith compliance with the I-9 process as does the federal law” and provides employers “a rebuttable presumption of compliance with the law when they use E-Verify.” Whiting, 131 S. Ct. at 1981-82. We will describe the “I-9” verification process infra.
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1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified as amended in various sections of 8 U.S.C.), which established the optional program now known as E-Verify, did not pre-empt Arizona‟s requirement that all employers use EVerify. Whiting, 131 S. Ct. at 1985-86. The Court reasoned that the IIRIRA provision setting up E-Verify “contains no language circumscribing state action,” id. at 1985, and Arizona‟s use of E-Verify “in no way obstructs achieving [Congress‟s] aims,” id. at 1986.
The plurality opinion in Whiting rejected or otherwise undermined several aspects of our analysis in Lozano II insofar as we held that the IIRAO‟s employment provisions were conflict pre-empted.
First, Whiting contradicts our conclusion that the employment provisions in Hazleton‟s ordinance impede congressional objectives by creating a separate and independent process for determining whether an employer is guilty of employing unauthorized aliens. Compare Whiting, 131 S. Ct. at 1981 (rejecting the Chamber‟s argument that Congress intended the federal system to be exclusive and therefore any state system necessarily conflicts with federal law) with Lozano II, 620 F.3d at 213 (“The crux of this conflict . . . is rooted in the fact that Hazleton has established an alternate system at all.”). Since Congress expressly allowed states to pursue sanctions through licensing laws, the Whiting plurality reasoned that “Congress did not intend to prevent the States from using appropriate tools to exercise that authority.” Whiting, 131 S. Ct. at 1981.
Second, in Lozano II, we reasoned that, by imposing additional sanctions on employers who hire unauthorized aliens without including an express anti-discrimination provision, the IIRAO would create “the exact situation that Congress feared: a system under which employers might quite rationally choose to err on the side of discriminating against job applicants they perceive to be foreign.” Lozano II, 620 F.3d at 218. However, the Whiting plurality rejected a similar argument. Those Justices reasoned that LAWA did not displace IRCA‟s anti-discrimination provisions, and that
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other federal and state laws provide “further protection . . . and strong incentive for employers not to discriminate.” Whiting, 131 S. Ct. at 1984. Thus, the Court believed that, even without an express anti-discrimination provision in the state law, “[t]he most rational path for employers is to obey the law—both the law barring the employment of unauthorized aliens and the law prohibiting discrimination.” Id.
Finally, the Whiting plurality undermined our reasoning in Lozano II to the extent that we found preemption because the City‟s employment provisions “coerce[] [the] use of E-Verify.” Lozano II, 620 F.3d at 214. That conclusion is now foreclosed by Whiting‟s approval of Arizona‟s requirement that all employers use E-Verify. Whiting, 131 S. Ct. at 1985-86. There, the Court concluded that the requirement does not conflict with the federal scheme because the consequences for failure to use E-Verify under both the Arizona law and federal law were the same: the employer forfeits an otherwise available rebuttable presumption of compliance. Id. The Court further reasoned that the requirement does not obstruct federal objectives because “the Federal Government has consistently expanded and encouraged the use of E-Verify.” Id. at 1986.
Nevertheless, Plaintiffs here argue that even after Whiting, Hazleton‟s employment provisions remain impliedly pre-empted. Plaintiffs point first to the fact that the IIRAO‟s restrictions apply to a much broader range of actors and activities than Congress intended under IRCA. According to Plaintiffs, this basis for our prior finding of conflict preemption was not disturbed by Whiting. We agree.
Section 4 of the IIRAO makes it “unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work . . . within the City.” IIRAO § 4A. The IIRAO defines “business entity” to include any person “engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.” Id. § 3A. The term specifically includes “self-employed individuals,
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partnerships, corporations, contractors,11 and subcontractors,” Id. § 3A(1), and any entity that “possesses a business permit, . . . is exempt from obtaining such a business permit, . . . [or] is operating unlawfully without such a business permit.” Id. § 3A(2).
In sharp contrast to the IIRAO, the federal prohibition in IRCA reaches only “hir[ing]” or “recruit[ing] or refer[ring] for a fee, for employment in the United States.” 8 U.S.C. § 1324a(a)(1)(A) (emphasis added). In striking the intricate balance that lead to the enactment of IRCA, Congress deliberately excluded independent contractors and other nonemployees from the scope of the restrictions contained in the statute. Arizona, 132 S. Ct. at 2504. (“Congress enacted IRCA as a comprehensive framework for „combating the employment of illegal aliens.‟”) (emphasis added) (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)). As we explained previously:
In drafting IRCA, Congress explicitly declined to sanction employers based on the work authorization status of “casual hires (i.e., those that do not involve the existence of an employer/employee relationship).” H.R. Rep. No. 99-682(I), [at 57], 1986 U.S.C.C.A.N. 5649, 5661. This was not an unreasoned choice, but part of the crafting of the statute to minimize the burden placed on employers. As the court explained in Edmondson, “[e]mployers are not required [under federal law] to verify the work eligibility of independent contractors” because it “would increase the burdens on business.” 594 F.3d at
11 The term “contractor” is further defined to include any “person, employer, subcontractor or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration.” IIRAO § 3C.
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767. Businesses utilize independent contractors, in part, to reduce the costs and liabilities associated with procuring labor when an enduring and structured relationship is not needed. Compelling businesses to concern themselves with the work authorization status of contractors alters this relationship, and also raises costs.
Lozano II, 620 F.3d at 216-17 (alterations in original).
Under IRCA, employers are not required to verify contractors‟ work eligibility, as they must with employees. See 8 C.F.R. § 274a.2(b) (requiring employers to verify work eligibility of employees); § 274a.1(f) (excluding “independent contractor” and “those engaged in casual domestic employment” from the definition of “employee”); id. § 274a.1(g) (excluding those who use “contract labor” from the definition of “employer”).12 Given the intricate framework of IRCA, we cannot assume that the distinction is immaterial. Rather, it appears to be a deliberate distinction that Congress included as part of the balance it struck in determining the scope and impact of IRCA‟s employer sanctions. However, Hazleton‟s ordinance does not distinguish between employees, on the one hand, and independent contractors or
12 Employers are, however, liable for knowingly utilizing the services of independent contractors who lack work authorization. 8 U.S.C. § 1324a(a)(4) (“[A] person or other entity who uses a contract, subcontract, or exchange . . . to obtain the labor of an alien . . . knowing that the alien is an unauthorized alien . . . shall be considered to have hired the alien for employment . . . in violation of [8 U.S.C. § 1324a](1)(A).”). However, this provision does not undermine Congress‟s intent to restrict IRCA‟s applicability to the employer/employee context. Rather, the purpose was to close a “loophole” so that employers may not use independent contractors to circumvent IRCA‟s prohibition on the employment of unauthorized workers. See H.R. Rep. No. 99682(I), at 62, 1986 U.S.C.C.A.N. 5649, 5666.
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casual hires, on the other.
The breadth of the reach of the IIRAO‟s sanctions operates in tandem with the fact that the IIRAO provides a safe harbor only if “prior to the date of the violation, the business entity had verified the work authorization of the alleged unlawful worker(s)” using the E-Verify program. IIRAO § 4B(4). Accordingly, the Hazleton scheme compels employers to verify the status of independent contractors and casual hires in order to obtain a safe harbor. In Lozano II, we determined that although the IIRAO only coerces, without directly requiring, verification of non-employees‟ work authorization, the coercion is equally problematic for preemption purposes because the IIRAO subjects employers to sanctions if those non-employees lack work authorization. Lozano II, 620 F.3d at 217.13
13 The City argues that, in practice, the IIRAO would treat independent contractors in a manner similar to federal law under 8 U.S.C. § 1324a(a)(4)—only those who knowingly use the services of contactors who lack work authorization would face sanctions. For the reasons explained above, we disagree. Further, the IIRAO‟s terms reach as far as union organizing activity and the activity of not for profit organizations that refer individuals for employment but without a fee or profit motive. See IIRAO § 3A, 4A. Federal regulations specifically exclude “union hiring halls that refer union members or non-union individuals who pay union membership dues.” 8 C.F.R. § 274a.1(d)-(e); see also H.R. Rep. 99-682(I), at 57, 1986 U.S.C.C.A.N. 5649, 5660 (noting exception for unions and similar entities). These “[f]ederal regulations have no less pre-emptive effect than federal statutes.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982). Moreover, as we will explain, in addition to reaching a broader range of actors, the IIRAO‟s employment provisions also sanction a broader range of activities than does IRCA. Because the terms of the IIRAO sweep so broadly, even if we were to accept the City‟s position that the IIRAO and IRCA treat independent contractors similarly, it would not save the IIRAO from preemption.
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Moreover, we must assess the extraordinarily broad definition of the persons and entities covered by the IIRAO together with the equally broad definition of the activities covered by the IIRAO. The IIRAO defines “work” to include “any job, task, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including but not limited to all activities conducted by business entities.” IIRAO § 3F. The IIRAO‟s prohibitions also apply to any “agreement to perform any service or work or to provide a certain product in exchange for valuable consideration.” Id. § 3C. Moreover, there is no requirement that the alleged unauthorized work be performed at the location associated with an entity‟s business license, or even in connection with the activities for which an entity has a business license, for it to be considered a violation of the IIRAO.14 Thus, under a literal reading of the IIRAO, the HCEO may revoke the business license of any person or entity if, for example, s/he purchases used items at a yard sale from an unauthorized alien, buys a glass of lemonade from an undocumented child‟s lemonade stand, or pays an undocumented neighbor to mow her lawn—even if such conduct is entirely unrelated to the actor‟s licensed business activity.
Indeed, it is difficult for us to conceive of any activity that is even remotely economic in nature, conducted by any person or entity in Hazleton, that would not be swept into the broad expanse of the IIRAO. We believe that prohibiting such a broad array of commercial interactions, based solely on immigration status, under the guise of a “business licensing” law is untenable in light of Congress‟s deliberate decision to limit IRCA‟s reach to the employer-employee relationship.
Whiting is not to the contrary. The City argues that the Court in Whiting was not troubled by the fact that Arizona‟s law applied to independent contractors. However, the
14 Rather, the IIRAO expressly states that “work” includes, but “is not limited to all activities conducted by business entities.” IIRAO § 3F (emphasis added).
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provisions to which the City refers were added as part of a 2008 amendment to LAWA, and as the Supreme Court expressly noted, the 2008 amendments “were not part of the statute when [the] suit was brought, they are not before us and we do not address their interaction with federal law.” Whiting, 131 S. Ct. at 1986 n.10; see also Arizona Contractors Ass’n v. Candelaria, 534 F. Supp. 2d 1036, 1053 (D. Ariz. 2008) (“[L]ike IRCA, [LAWA‟s] restrictions apply only with respect to those persons who have an „employment relationship‟ with an employer, so it does not include casual hires.”), aff’d sub nom. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), aff’d sub nom., Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011).
Thus, unlike the IIRAO, the Arizona law upheld by the Supreme Court “closely track[ed] IRCA‟s provisions in all material respects,” Whiting, 131 S. Ct. at 1981, including IRCA‟s precisely tailored reach.15 Thus, Whiting alone does not support the proposition that an ordinance that diverges from federal law to the extent the IIRAO does is similarly sheltered from the reach of federal pre-emption.
The Supreme Court‟s more recent decision in Arizona v. United States, 132 S. Ct. 2492 (2012), further undermines the contention that the IIRAO should be upheld as a protected business licensing law. The Court in Arizona affirmed that “the existence of an express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles or impose a special burden that would make it more difficult to establish the preemption of laws falling outside the clause.” Arizona, 132 S. Ct. at 2504-05 (internal quotation marks and citation omitted) (alteration in original). Moreover, the Court‟s reasons for finding that § 5(C) of Arizona‟s S.B. 1070 law conflicted with IRCA apply with equal force to the
15 Indeed, the Court in Whiting noted that the Arizona law tracked the provisions of the federal law so tightly that if the Arizona law was pre-empted, “there really is no way for the State to implement licensing sanctions, contrary to the express terms of the savings clause.” 131 S. Ct. at 1987. That is clearly not the situation here with the IIRAO.
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IIRAO‟s attempt to extend its regulations beyond the employer-employee relationship. Section 5(C) of S.B. 1070 made it a state crime to seek or engage in work without federal authorization. In concluding that that provision was pre-empted, the Supreme Court stated, “Congress enacted IRCA as a comprehensive framework for „combating the employment of illegal aliens,‟” and IRCA, by design, “does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work).” Arizona, 132 S. Ct. at 2504. Thus, the Court concluded that “[a]lthough § 5(C) attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of enforcement” and is therefore pre-empted. Id. at 2505. Just as purposely as Congress limited the scope of IRCA‟s coverage to exclude independent contractors, Hazleton purposely stretched the IIRAO to include them. The result is a local ordinance that conflicts with Congress‟s intent to limit IRCA‟s application to the employer/employee relationship. See Arizona, 132 S. Ct. at 2505 (“[A] „[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.‟” (citing Motor Coach Employees v. Lockridge, 403 U.S. 274, 287 (1971))). Accordingly, like § 5(C) of Arizona‟s S.B. 1070, the IIRAO employment provisions conflict with IRCA.
In Lozano II, we also concluded that the IIRAO conflicts with IRCA because it does not provide an affirmative defense to employers who comply with the I-9 process to verify immigration status. Lozano II, 620 F.3d at 214-15.16 Plaintiffs argue that this conclusion was also not
16 The “I-9” process derives its name from the form that IRCA requires employers to complete.
IRCA requires that employers . . . confirm an employee‟s authorization to work by reviewing the employee‟s United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by reviewing a combination
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disturbed by Whiting because the Arizona law at issue there provided a safe harbor for I-9 compliance. Once again, we agree.
As we have explained:
Congress paid considerable attention to the costs IRCA would impose on employers, see e.g., H.R. Rep. No. 99682(I), at [90], 1986 U.S.C.C.A.N. 5649, 5694 (“Considerable discussion was generated during the processing of [this bill] to the effect the employer sanctions provisions were placing an undue burden on employers in requiring them to do the paperwork and keep records on employees.”), and drafted the legislation in a manner that would minimize those burdens, see, e.g., 132 Cong. Rec. H10583-01 (daily ed. Oct. 15, 1986) (statement of Rep. Bryant) (IRCA has been “carefully designed for the minimum burden necessary . . . to be effective.”).
of other documents such as a driver‟s license and social security card. § 1324a(b)(1)(B)-(D). The employer must attest under penalty of perjury on Department of Homeland Security Form I-9 that he “has verified that the individual is not an unauthorized alien” by reviewing these documents. § 1324a(b)(1)(A). The form I-9 itself “and any information contained in or appended to [it] . . . may not be used for purposes other than for enforcement of” IRCA and other specified provisions of federal law. § 1324a(b)(5).
Whiting, 131 S. Ct. at 1974.
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Lozano II, 620 F.3d 211. As part of this effort, Congress created the I-9 process as a uniform federal system by which employers must verify the work authorization of new hires. Under IRCA, good-faith compliance with the I-9 process provides an employer with an affirmative defense if charged with a violation of 8 U.S.C. § 1324a. 8 U.S.C. § 1324a(a)(3); H.R. Rep. No. 99-682 (I), at 57. However, Hazleton‟s scheme does not provide any safe harbor for employers who use the I-9 process. The IIRAO‟s employment provisions thus contravene congressional intent for the I-9 process to serve as an acceptable way of protecting against sanctions and Congress‟s desire to avoid placing an undue burden on employers. As we previously explained:
By making the I-9 system a uniform national requirement, Congress limited the compliance burden on interstate corporations while facilitating uniform enforcement. A uniform system reduces costs for employers with multiple locations throughout the country by ensuring that the same human resources procedures can be used in all locations. Hazleton‟s scheme denies interstate employers who use the I-9 process the benefits of uniformity. Interstate employers with locations in Hazleton (who wish to ensure safe harbor in all locations) would either have to adhere to different regulations in different locations, or use E-Verify in all locations.
Lozano II, 620 F.3d at 215 (internal quotation marks and citation omitted).
Although the Supreme Court in Whiting upheld Arizona‟s requirement that all employers enroll in E-Verify, the Court‟s holding did not negate the importance of the I-9 process to the federal scheme. Rather, the Court‟s holding was based upon its conclusion that “the consequences of not
24

using E-Verify under the Arizona law are the same as . . . under the federal law,” Whiting, 131 S. Ct. at 1985,17 and “[t]he Arizona law provides employers with the same affirmative defense for good-faith compliance with the I-9 process as does the federal law,” id. at 1982. Thus, although Arizona “required” employers to use E-Verify, that “requirement” was exactly the same as the federal law‟s treatment of E-Verify, and similarly, Arizona treated I-9 compliance the same way that federal law treated I-9 compliance.
The City argues that the lack of an affirmative defense for I-9 compliance is irrelevant given the structure of the Hazleton scheme, which does not rely on a judicial process for proving that an employer knowingly hired an unauthorized alien and assessing a penalty. In addition to highlighting procedural due process concerns, this assertion elevates form over function and misses the point. The significance of the I-9 affirmative defense is the safe harbor it provides for employers. We are therefore not impressed with a distinction between judicially imposed sanctions and
17 Under both the Arizona and federal law, the only consequence of not using E-Verify is forfeiture of the otherwise available rebuttable presumption of compliance with the law. Whiting, 131 S. Ct. at 1985-86. As we explained, supra, the Supreme Court explicitly noted that, during the course of the litigation, Arizona had amended its statute. The amendments included, inter alia, the attachment of “other consequences, such as the loss of state-allocated economic development incentives” to a failure to use EVerify. Id. at 1986 n.10. Because those amendments “were not part of the statute when [the] suit was brought,” the Court was careful to explain that “they are not before us and we do not address their interaction with federal law.” Id. In this regard, we note that the IIRAO attaches an additional penalty to a failure to use E-Verify: disqualification from city contracts greater than $10,000. IIRAO § 4D. This additional sanction for failure to use E-Verify goes beyond a mere licensing provision and is yet another reason the IIRAO conflicts with federal law.
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administratively imposed sanctions. The resulting impact on a given business appears indistinguishable. Whether a judicial officer or an administrator is charged with imposing sanctions is irrelevant. The City insists that the drafters of Hazleton‟s ordinances attempted to construct a parallel regulatory scheme that would comply with IRCA‟s savings clause. However, the City‟s decision to omit a safe harbor for I-9 compliance, while providing one for those who use E-Verify, see IIRAO § 4B(5), is not as inconsequential as the City would have us believe. A scheme providing a safe harbor for both verification procedures would have been much closer to the parallel regulatory scheme that the Court upheld in Whiting. Absent that, an important aspect of the federal scheme is undermined.
Geier v. American Honda Motor Co., 529 U.S. 861 (2000), further illustrates how Hazleton‟s disregard of the I-9 process impedes federal objectives. There, Alexis Geier suffered serious injuries when the Honda she was driving crashed into a tree. She sued the auto company alleging that her injuries resulted from the absence of airbags, which she claimed was a design defect. Id. at 865. However, Geier‟s car had automatic belts and thus complied with applicable federal safety standards, which, rather than requiring airbags, “allow[ed] manufacturers to choose among different passive restraint mechanisms, such as airbags, automatic belts, or other passive restraint technologies.” Id. at 878. The applicable federal statute, however, also stated that “[c]ompliance with a federal safety standard does not exempt any person from liability under common law.” Id. at 868 (internal quotation marks omitted, bracket in original). Nonetheless, the manufacturer argued that the plaintiff‟s claim for damages was pre-empted by federal law. The Court had to decide “whether the Act pre-empts a state commonlaw tort action in which the plaintiff claims that the . . . manufacturer, who was in compliance with the standard, should nonetheless have equipped [her] automobile with airbags.” Id. at 865.
The Supreme Court held that the tort action conflicted with federal law and was thus pre-empted. Id. at 874. The
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Court reasoned that federal regulations sought “a variety and mixture of [safety] devices” and “deliberately imposed” a “gradual passive restraint phase in.” Id. at 881. Notwithstanding the savings clause, allowing the action to proceed when plaintiff‟s car complied with the applicable federal safety standard “would have stood „as an obstacle to the accomplishment and execution of‟ [those] important . . . federal objectives.” Id. (quoting Hines, 312 U.S. at 67). Similarly, permitting Hazleton to impose sanctions on employers who have complied with, and relied upon, the I-9 process would obstruct important federal objectives. Congress wanted to make the I-9 process available as a uniform means of protecting against such sanctions and minimizing the burden on employers. See also Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 156 (1982) (finding conflict pre-emption where state law limited the availability of due-on-sale provisions in loan instruments, which federal regulators deemed “essential to the economic soundness of the thrift industry”).
The IIRAO‟s lack of procedural protections presents yet another “„obstacle to the accomplishment and execution of the full purposes and objectives‟” of federal law. See Arizona, 131 S. Ct. at 2501 (quoting Hines, 312 U.S. at 67). The IIRAO provides substantially fewer procedural protections than IRCA, which circumscribed sanctions with a detailed hearing and adjudication procedure. Under IRCA, only complaints with a “substantial probability of validity” are investigated. 8 U.S.C. § 1324a(e)(1)(B). In contrast, under the IIRAO, any superficially valid complaint is investigated. IIRAO §§ 4B(1), (3). In addition, when enacting IRCA, Congress mandated that an employer be provided with notice and an opportunity for a hearing, 8 U.S.C. § 1324a(e)(3)(A), and an administrative law judge must find the employer guilty of violating IRCA by a preponderance of the evidence before any sanctions can be imposed, id. § 1324a(e)(3)(C). That employer also has a right to an administrative appeal and judicial review. Id. § 1324a(e)(7)-(8). In marked contrast, the IIRAO requires the HCEO to immediately suspend the business license of any entity that fails to provide requested information about
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alleged unlawful workers within three business days. IIRAO § 4B(3).18 If a business entity does not terminate an unauthorized worker within three days of being notified that the worker is not authorized, the City immediately suspends that entity‟s business license. Id. § 4B(4).19 Thus, the burdens imposed on businesses under the Hazleton scheme are greater than those Congress elected to impose under the similar, but distinct approach of IRCA.
The procedures in LAWA (the Arizona statute upheld in Whiting), substantially track the procedures Congress established under IRCA. In contrast to the immediate suspension of business licenses authorized by the IIRAO, sanctions under LAWA, like under IRCA, could only be imposed after the attorney general or county attorney brings an enforcement action in state court. A.R.S. § 23-212(D) (effective Sept. 19, 2007 to Apr. 30, 2008). The state court was directed to provide a “hearing at the earliest practicable date,” id. § 22-212(E), and sanctions could only be imposed by the court after determining that there had been a violation, id. § 23-212(F).20
Conversely, the lack of procedural protections in the IIRAO‟s employment provisions undermines the delicate balance Congress erected for enforcing the prohibition on hiring unauthorized aliens. Congress was clearly concerned
18 IIRAO § 4B(3) states: the HCEO “shall suspend the business permit of any entity which fails, within three business days after receipt of the request [for identity information regarding alleged unlawful workers], to provide such information.”
19 IIRAO § 4B(4) provides that the HCEO “shall suspend the business permit of any business entity which fails [to] correct a violation of this section within three business days after notification of the violation by the [HCEO].”
20 See also Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 868-69 (9th 2009) (describing procedures to be followed under LAWA and holding that LAWA provided adequate due process).
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with avoiding undue burdens on employers. See, e.g., H.R. Rep. No. 99-682(I), at 56 (describing desire for employer sanctions to be implemented in a manner that “would be the least disruptive to the American businessman”); S. Rep. No. 99-132, at 35 (1985) (expressing concern regarding “harassment . . . against innocent employers” and noting that “[s]pecific protections have been included to minimize the risk of these undesirable results”). As the Supreme Court noted, “Congress did indeed seek to strike a balance among a variety of interests when it enacted IRCA.” Whiting, 131 S. Ct. at 1984.21 It is therefore apparent that the lack of minimal procedural protections in Hazleton‟s ordinance further undermines the express congressional objective of minimizing undue burdens on, and harassment of, employers.
Accordingly, although the Court‟s recent decisions in Whiting and Arizona alter some of our previous analysis, neither opinion alters the outcome of this dispute. For the reasons we have set forth above, we again hold that the employment provisions of the IIRAO are pre-empted because they “stand[] as an obstacle to the accomplishment and execution” of IRCA‟s objectives, Hines, 312 U.S. at 67, and were properly enjoined by the District Court.22
21 The Court in Whiting concluded that a failure to include an express anti-discrimination provision was not fatal to Arizona‟s employer sanctions law and that the Arizona law did not otherwise upset the balance of interests that Congress intended. Whiting, 131 S. Ct. at 1984. However, nothing in Whiting undermines the conclusion that IRCA indeed represents a careful congressional balance of competing interests, including, inter alia, preventing undue burden on employers.
22 The City argues that the standard articulated in United States v. Salerno, 481 U.S. 739 (1987), precludes a finding of pre-emption and that Arizona supports its position in this regard. We disagree. Although Justice Scalia‟s and Justice Alito‟s opinions in Arizona cite Salerno and espouse the City‟s approach, see Arizona, 132 S. Ct. at 2515 (Scalia, J., concurring in part and dissenting in part); id. at 2534 (Alito, J., concurring in part and dissenting in part), no part of
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B. The Housing Provisions
The housing provisions at issue in this litigation are found in both the IIRAO and the RO. The RO sets up a rental registration scheme that operates in conjunction with anti-
the majority opinion in Arizona, and no part of Whiting, references Salerno at all. The plurality in Whiting and majority in Arizona did not adopt the approach the City asks us to adopt. That approach would reject a conflict preemption claim in a facial challenge whenever a defendant can conjure up just one hypothetical factual scenario in which implementation of the state law would not directly interfere with federal law. Indeed, if this were the standard governing the Supreme Court‟s review of Arizona‟s S.B. 1070 law, many of the sources of conflict with federal law described by the Court would have been irrelevant to the Court‟s conflict pre-emption analysis. For example, the Court in Arizona concluded that § 6, which authorized state and local police to arrest certain potentially removable individuals, conflicted with federal law in part because it interfered with federal enforcement discretion and could target and harass individuals the federal government does not seek to remove. Arizona, 132 S. Ct. at 2506-07. However, under the City‟s approach, this conflict is irrelevant in a facial challenge because, in at least some circumstances, the local police could be arresting individuals whom the federal government does want removed and whose arrest would not otherwise conflict with federal policy. To the contrary, however, the Court in Arizona found this potential conflict consequential.
The analysis of § 2(B) in Arizona also fails to support the City‟s position. The Court vacated a preliminary injunction against § 2(B) and remanded for further fact finding because the provision, on its face, was ambiguous, and Arizona‟s courts may construe § 2(B) in a way that would preclude any unconstitutional applications of the law. Arizona, 132 S. Ct. at 2509-10. The Court, however, did not reject a facial challenge against the provision pursuant to the City‟s theory, i.e., because implementation of § 2(B), in some circumstances may be in harmony with federal law.
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harboring provisions in the IIRAO to prohibit unauthorized aliens from residing in any rental housing within the City.
The RO requires any prospective occupant of rental housing over the age of eighteen to apply for and receive an occupancy permit. RO § 1m, 6a, 7b. To receive the permit, the prospective occupant must pay a ten-dollar fee and submit certain basic information and “[p]roper identification showing proof of legal citizenship and/or residency” to the HCEO. Id. § 7b. Landlords must inform all prospective occupants of this requirement, and landlords are prohibited from allowing anyone over the age of eighteen to rent or occupy a rental unit without registering with the City and receiving a permit. Id. § 6a, 7b. A landlord found guilty of violating these requirements must pay an initial fine of $1000 per unauthorized occupant. Id. § 10b. That landlord is also subject to an additional fine of $100 per day, per unauthorized occupant, until the violation is corrected. Authorized occupants of rental housing who allow anyone without an occupancy permit to reside with them are subject to the same fines. Id. § 10c.
As we mentioned earlier, the anti-harboring provisions in the IIRAO make legal immigration status a condition precedent to entering into a valid lease. IIRAO § 7B. A tenant lacking lawful status “who enters into such a contract shall be deemed to have breached a condition of the lease.” Id. The IIRAO makes it “unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law.” Id. § 5A. “Harboring” is broadly defined to include “let[ting], leas[ing], or rent[ing] a dwelling unit to an illegal alien.” Id. § 5A(1). An “illegal alien” is defined as “an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq.” Id. § 3D.
We previously found the housing provisions in the IIRAO and the RO pre-empted on three separate pre-emption
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grounds.23 No part of Whiting or Arizona considered provisions of a state or local ordinance that, like the housing provisions here, prohibit, and define “harboring” to include, allowing unauthorized aliens to reside in rental housing. Moreover, nothing in Whiting or Arizona undermines our analysis of the contested housing provisions here. On the contrary, the Court‟s language reinforces our view that Hazleton‟s attempt to prohibit unauthorized aliens from renting dwelling units in the City are pre-empted.
1. The Housing Provisions Constitute Impermissible Regulation of Immigration and Are Field Pre-empted.
We begin this part of our analysis by noting that the Supreme Court was careful in Arizona to stress the important national interests that are implicated when local governments attempt to regulate immigration and the concomitant need to leave such regulation in the hands of the federal government.
The federal power to determine immigration
23 In Lozano II, we determined that the presumption against pre-emption applied to our analysis of the employment provisions, Lozano II, 620 F.3d at 206-07, but did not apply to our analysis of the housing provisions, id. at 219. We find unpersuasive the City‟s argument that we erred in failing to apply the presumption to the housing provisions and see nothing in Arizona or Whiting suggesting otherwise. The housing provisions attempt to regulate who may live within Hazleton based solely on immigration status. In this area of “significant federal presence,” we will not apply the presumption against pre-emption. See United States v. Locke, 529 U.S. 89, 108 (2000); see also United States v. Alabama, 691 F.3d 1269, 1296-97 (11th Cir. 2012) (concluding that state law prohibiting courts from recognizing contracts with aliens lacking lawful immigration status “constitutes a thinly veiled attempt to regulate immigration under the guise of contract law,” and thus, the presumption against pre-emption does not apply, but even if it does, the law is pre-empted), cert. denied, 569 U.S. __, 133 S. Ct. 2022 (2013).
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policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.
Arizona, 132 S. Ct. at 2498. In finding three of the four challenged provisions in Arizona pre-empted, the Court reiterated the primacy of the federal government‟s concern for the treatment and regulation of aliens in this country.
In Lozano II, we held that the housing provisions impermissibly “regulate immigration” in contravention of the Supreme Court‟s pronouncement that a state or locality may not determine “„who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.‟” Lozano II, 620 F.3d at 220 (quoting De Canas, 424 U.S. at 355).24 In concluding that the housing provisions constituted impermissible regulation of immigration, we recognized that “the fact that aliens are the subject of a state statute does not render it a regulation of
24 See also Villas at Parkside Partners v. Farmers Branch, __ F.3d __, 2013 WL 3791664, at *15 (5th Cir. July 22, 2013) (en banc) (Reavley, J., concurring) (“Because the sole purpose and effect of this [housing] ordinance is to target the presence of illegal aliens within the city . . . and to cause their removal, it contravenes the federal government‟s exclusive authority on the regulation of immigration and the conditions of residence in this country, and it constitutes an obstacle to federal authority over immigration and the conduct of foreign affairs.”); id. at *16 (Dennis, J., concurring) (“[T]he Ordinance is preempted in all of its core provisions by the comprehensive and interrelated federal legislative schemes governing the classification of noncitizens, the adjudication of immigration status, and the exclusion and deportation of noncitizens from the United States, enacted pursuant to the federal government‟s constitutional authority to administer a uniform national immigration policy.”).
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immigration.” De Canas, 424 U.S. at 355. We did not hold that the housing provisions were a regulation of immigration simply because “aliens are the subject of” those provisions. Rather, we determined that “[t]hrough its housing provisions, Hazleton attempts to regulate residence based solely on immigration status.” Lozano II, 620 F.3d at 220 (emphasis added). Thus, we concluded that enforcement of the housing provisions must be enjoined because “[d]eciding which aliens may live in the United States has always been the prerogative of the federal government.” Id. The housing provisions of Hazleton‟s ordinances are nothing more than a thinly veiled attempt to regulate residency under the guise of a regulation of rental housing. By barring aliens lacking lawful immigration status from rental housing in Hazleton, the housing provisions go to the core of an alien‟s residency. States and localities have no power to regulate residency based on immigration status.
For these same reasons, we also concluded that the housing provisions are field pre-empted by the INA. That statute is centrally concerned with “„the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully admitted.‟” Id. (quoting De Canas, 424 U.S. at 359). The INA‟s comprehensive scheme “plainly precludes state efforts, whether harmonious or conflicting, to regulate residence in this country based on immigration status.” Id. We noted that although Hazleton‟s housing provisions do not control actual physical entry into, or expulsion from, Hazleton or the United States, “in essence, that is precisely what they attempt to do.” Id. at 220 (internal quotations marks and citation omitted). Again, we see nothing in the Supreme Court‟s decisions in Whiting or Arizona that undermines these conclusions.
Since our decision in Lozano II, a number of courts have concluded that state or local laws proscribing the harboring of aliens lacking lawful status are also field preempted because they intrude on the field of alien harboring. See, e.g., Ga. Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250, 1263-65 (11th Cir. 2012) (“GLAHR”) (concluding that federal law occupies the field with respect to
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“the entry, movement, and residence of aliens within the United States” and state law proscribing, inter alia, harboring is field pre-empted); United States v. Alabama, 691 F.3d 1269, 1285-87 (11th Cir. 2012) (same), cert. denied, 569 U.S. __, 133 S. Ct. 2022 (2013); United States v. South Carolina, 906 F. Supp. 2d 463, 468 (D.S.C. 2012) (concluding that provisions of state law proscribing transporting or sheltering aliens lacking lawful status “infringe upon a comprehensive federal statutory scheme”), aff’d, __ F.3d __, 2013 WL 3803464 (4th Cir. July 23, 2013); Valle del Sol v. Whiting, No. 10-1061, 2012 WL 8021265, at *5 (D. Ariz. Sept. 5, 2012) (concluding that state law proscribing, inter alia, harboring of aliens lacking lawful status is field pre-empted).
As the Eleventh Circuit Court of Appeals explained:
The INA provides a comprehensive framework to penalize the transportation, concealment, and inducement of unlawfully present aliens. Pursuant to 8 U.S.C. § 1324(a)(1)(A)(ii)-(iv), it is a federal crime for any person to transport or move an unlawfully present alien within the United States; to conceal, harbor, or shield an unlawfully present alien from detection; or to encourage or induce an alien to “come to, enter, or reside in the United States.” . . . Section 1324(c) permits local law enforcement officers to arrest for these violations of federal law, but the federal courts maintain exclusive jurisdiction to prosecute for these crimes and interpret the boundaries of the federal statute. See id. § 1329. Subsection (d) of § 1324 further dictates evidentiary rules governing prosecution of one of its enumerated offenses, and subsection (e) goes so far as to mandate a community outreach program to “educate the public in the United States and abroad about the
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penalties for bringing in and harboring aliens in violation of this section.”
GLAHR, 691 F.3d at 1263-64. We agree with the Eleventh Circuit and other courts that have held that “the federal government has clearly expressed more than a „peripheral concern‟ with the entry, movement, and residence of aliens within the United States and the breadth of these laws illustrates an overwhelmingly dominant federal interest in the field.” Id. at 1264 (citation omitted).
The City argues that, by authorizing state and local officials to arrest individuals guilty of harboring, see 8 U.S.C. § 1324(c), Congress specifically invited state and local governments into this field. According to the City, this “invitation”—along with the requirement in 8 U.S.C. § 1373 that federal agencies respond to inquiries from states and localities regarding any alien‟s immigration status— forecloses any argument that the housing provisions are field pre-empted. However, while § 1324(c) allows state officials to arrest for violations of crimes enumerated in that section, the federal statute does not authorize states to prosecute those crimes. Instead, under federal law, the prosecution of such violations must take place in federal court and is at the sole discretion of federal officials. See 8 U.S.C. § 1329. “In the absence of a savings clause permitting state regulation in the field, the inference from these enactments is that the role of the state is limited to arrest for violations of federal [antiharboring] law.” GLAHR, 691 F.3d at 1264.
For the reasons explained above, we again hold that the housing provisions in the IIRAO and RO constitute an impermissible regulation of immigration and are field preempted because they intrude on the regulation of residency and presence of aliens in the United States and the occupied field of alien harboring.
2. The Housing Provisions Are Conflict Pre-empted.
In Lozano II, we concluded that the housing provisions
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are also conflict pre-empted because they interfere with the federal government‟s discretion in, and control over, the removal process. The exercise of that discretion implicates important foreign policy considerations. Arizona, 132 S. Ct. at 2499. We also concluded that the housing provisions are inconsistent with federal anti-harboring law. Again, the subsequent decisions of the Supreme Court have not undermined our reasoning. In fact, as suggested above and explained below, the Court‟s subsequent decisions reinforce our prior conflict pre-emption analysis with respect to the housing provisions.
In Arizona, the Court emphasized that “[a] principle feature of the [INA‟s] removal system is the broad discretion exercised by immigration officials.” Arizona, 132 S. Ct. at 2499. “Federal officials . . . must decide whether it makes sense to pursue removal at all [and,] [i]f removal proceedings are commenced, [whether] aliens may seek . . . discretionary relief allowing them to remain in the country or at least to leave without formal removal.” Id.25 Yet, by prohibiting the only realistic housing option many aliens have, Hazleton is clearly trying to prohibit unauthorized aliens from living within the City. As we explained in Lozano II, the housing provisions, in effect, constitute an attempt to remove persons from the City based entirely on a snapshot of their current immigration status. Accordingly, the housing provisions interfere with the federal government‟s discretion in deciding whether and when to initiate removal proceedings. See Lozano II, 620 F.3d at 221-22.26
25 See also Holder v. Martinez Gutierrez, 566 U.S. __, 132 S. Ct. 2011, 2015 (2012) (“The immigration laws have long given the Attorney general discretion to permit certain otherwise-removable aliens to remain in the United States.”); Fid. Fed. Sav. & Loan Ass’n, 458 U.S. at 154 (“Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily.”).
26 In Keller v. City of Fremont, __ F.3d __, 2013 WL 3242111 (8th Cir. June 28, 2013), a divided panel of the
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Indeed, interference with the federal removal process and the discretion entrusted to the Executive Branch are key reasons for the Supreme Court‟s conclusions that § 6 and § 3 of Arizona‟s S.B. 1070 law are conflict pre-empted. The Court reached that conclusion even though neither provision purports to physically remove any aliens from Arizona or the United States. In affirming an injunction against § 6, which would have given Arizona police authority to arrest an individual based on probable cause to believe the individual has committed a removable offense, the Court determined that the provision “would allow the State to achieve its own immigration policy,” which could result in “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Arizona, 132 S. Ct. at 2506. The Court also found that “[b]y authorizing state officers to decide whether an alien should be detained for being removable, § 6 violates the principles that the removal process is entrusted to the discretion of the Federal Government.” Id. Similarly, in invalidating § 3, which
Court of Appeals for the Eighth Circuit has recently concluded that a local ordinance, almost identical to the housing provisions in the RO and IIRAO, does not interfere with federal removal discretion. The majority reasoned that the “rental provisions would only indirectly effect „removal‟ of any alien from the City,” in a manner comparable to how “denying aliens employment inevitably has the effect of „removing‟ some of them from the State.” Id. at *8. We disagree. Restricting housing touches directly on residency and federal removal discretion. As we explained in Lozano II, “[i]t is difficult to conceive of a more effective method of ensuring that persons do not enter or remain in a locality than by precluding their ability to live in it.” Lozano II, 620 F.3d at 220-21 (internal quotation marks and citation omitted). The Eighth Circuit also concluded that the rental restrictions do not determine who should or should not be admitted into the country and do not conflict with federal anti-harboring law. See Keller, 2013 WL 3242111, at *5, *7. For the reasons explained above, we disagree with these conclusions as well.
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criminalized failure to carry an alien registration document in violation of federal law, the Court noted that, in addition to intruding on a field occupied by Congress, the provision also conflicts with federal law because it would give Arizona the power to act “even in circumstances where federal officials . . . determine that prosecution would frustrate federal policies.” Id. at 2503.
The same infirmities are evident here. Like the preempted provisions in Arizona, the housing provisions constitute an attempt to unilaterally attach additional consequences to a person‟s immigration status with no regard for the federal scheme, federal enforcement priorities, or the discretion Congress vested in the Attorney General. Congress has not banned persons who lack lawful status or proper documentation from obtaining rental or any other type of housing in the United States. Hazleton‟s decision to impose this “distinct, unusual and extraordinary burden[] . . . upon aliens” impermissibly intrudes into the realm of federal authority. Hines, 312 U.S. at 65-66. Through the housing provisions, Hazleton is seeking to achieve “its own immigration policy,” one which will certainly result in “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Arizona, 132 S. Ct. at 2506.
Hazleton may not unilaterally prohibit those lacking lawful status from living within its boundaries, without regard for the Executive Branch‟s enforcement and policy priorities. “If every other state enacted similar legislation to overburden the lives of aliens, the immigration scheme would be turned on its head.” United States v. Alabama, 691 F.3d at 1295 n.21. Accordingly, the housing provisions conflict with federal law.
In addition to undermining the comprehensive procedures under which federal officials determine whether an alien may remain in this country, Hazleton‟s housing provisions would create significant foreign policy and humanitarian concerns. As the Court in Arizona emphasized, federal decisions in this arena “touch on foreign relations and
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must be made with one voice.” Id. at 2506-07. “„One of the most important and delicate of all international relationships . . . has to do with the protection of the just rights of a country‟s own nationals when those nationals are in another country.‟” Arizona, 132 S. Ct. at 2498-99 (quoting Hines, 312 U.S. at 64). “It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate states.” Id. at 2498. In addition, “[p]erceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.” Id. Accordingly, “[s]ome discretionary decisions [in the enforcement of immigration law] involve policy choices that bear on this Nation‟s international relations,” and the exercise of such discretion “embraces immediate human concerns.” Id. at 2499. “Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.” Id.
The Supreme Court‟s recognition of the primacy of the national interest in regulations directly affecting aliens in this country reinforces our holding in Lozano II that Hazleton‟s attempt to regulate where aliens can live implicates strong national interests and must be done with a single voice.27 Other federal courts that have addressed this issue agree that attempts to proscribe harboring or restrict certain forms of housing for aliens lacking lawful immigration status are
27 We realize, of course, that “[t]he pervasiveness of federal regulation does not diminish the importance of immigration policy to the States.” Arizona, 132 S. Ct. at 2500. Nonetheless, “„[t]he relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.‟” Fid. Fed. Sav. & Loan Ass’n, 458 U.S. at 153 (quoting Free v. Bland, 369 U.S. 663, 666 (1962)); see also id. (Conflict pre-emption “principles are not inapplicable here simply because real property law is a matter of special concern to the States.”)
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conflict pre-empted. Similarly, when the issue has been presented in the context of a preliminary injunction, courts have found a substantial likelihood of conflict pre-emption for reasons similar to those we have described. See, e.g., Villas at Parkside Partners v. Farmers Branch, __ F.3d __, 2013 WL 3791664, at *8, *10 (5th Cir. July 22, 2013) (en banc) (concluding that local housing ordinance analogous to Hazleton‟s housing provisions conflicts with federal antiharboring law and federal removal procedures); GLAHR, 691 F.3d at 1265-67 (concluding that state law proscribing, inter alia, harboring aliens lacking lawful status “presents an obstacle to the execution of the federal statutory scheme and challenges federal supremacy in the realm of immigration”); United States v. Alabama, 691 F.3d at 1287-88 (same); United States v. South Carolina, 906 F. Supp. 2d at 468 (concluding that provisions of state law proscribing transporting or sheltering aliens lacking lawful status would interfere with federal enforcement discretion), aff’d, __ F.3d __, 2013 WL 3803464 (4th Cir. July 23, 2013); Valle del Sol, 2012 WL 8021265, at *6 (concluding that state law proscribing, inter alia, harboring of aliens lacking lawful status conflicts with federal law because it interferes with federal enforcement discretion); Keller v. City of Fremont, 853 F. Supp. 2d 959, 972-73 (D. Neb. 2012), rev’d, 2013 WL 3242111 (8th Cir. June 28, 2013) (concluding that city ordinance penalizing harboring or the lease or rental of dwelling units to aliens lacking lawful status would impair “the structure Congress has established for classification, adjudication, and potential removal of aliens”).
Despite the obvious trespass into matters that must be left to the national sovereign, the City continues to insist there is no conflict pre-emption because it is merely engaging in “concurrent enforcement” of federal immigration laws. Under that theory, virtually any local jurisdiction could prohibit activity that is also prohibited by federal law as long as the local prohibition is not expressly pre-empted and the locality is not acting in a field that is occupied by federal law. The City cites to a decision from the Ninth Circuit Court of Appeals in support of its contention: “Where state enforcement activities do not impair federal regulatory
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interests concurrent enforcement activity is authorized.” Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983), overruled by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). However, that argument collapses under its own weight. It requires that local enforcement activity not impair federal regulatory interests. It says nothing about the propriety of concurrent enforcement when the local enforcement does impair federal regulatory interests; yet, that is the situation here.
Moreover, the City‟s argument simply cannot be reconciled with the Supreme Court‟s holding in Arizona. There, the Court reasoned that “[a]lthough § 5(C) attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of enforcement.” Arizona, 132 S. Ct. at 2505. The Court went on to explain that it had previously “recognized that a „[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.‟” Id. (quoting Motor Coach Employees, 403 U.S. at 287). Thus, the Court found § 5(C) pre-empted even though the provision imposed sanctions only on conduct already prohibited under federal law.28
Furthermore, it must be remembered that the housing provisions are not “concurrent” with federal law, despite Hazleton‟s argument to the contrary. In addition to interfering with federal removal discretion, the housing provisions conflict with federal law because they define
28 While we acknowledge that § 5(C) attempted to enact “a state criminal prohibition where no federal counterpart exists,” Arizona, 132 S. Ct. at 2503 (emphasis added), federal law does nonetheless prohibit unauthorized employment and imposes civil penalties on aliens who seek or engage in unauthorized work. See id. at 2504 (listing civil penalties imposed on aliens who seek or engage in work without authorization). Thus, § 5(C) is an example of a state‟s “concurrent enforcement” effort, as that term is defined by the City, which was nonetheless found to be conflict pre-empted by the Supreme Court.
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“harboring” to include simple landlord-tenant relationships. Although the Supreme Court has yet to define “harboring” as that term is used in 8 U.S.C. § 1324(a)(1)(A)(iii), we have found that culpability requires some act of concealment from authorities. See Lozano II, 620 F.3d at 223. “We . . . define „harboring‟ as conduct „tending to substantially facilitate an alien‟s remaining in the United States illegally and to prevent government authorities from detecting the alien’s unlawful presence.” Id. (quoting United States v. Ozcelik, 527 F.3d 88, 100 (3d Cir. 2008) (emphasis added)); see also United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999) (Harboring “encompasses conduct tending substantially to facilitate an alien‟s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence.”). Renting an apartment in the normal course of business is not, without more, conduct that prevents the government from detecting an alien‟s unlawful presence. Thus, it is highly unlikely that renting an apartment to an unauthorized alien would be sufficient to constitute harboring in violation of the INA.29
The City also argues that Whiting held that a verification under 8 U.S.C. § 1373(c) is an accurate assessment of an alien‟s immigration status and a sufficient basis for state or local action with respect to that alien. The City overlooks, however, that the state or locality must first have authority to take the underlying action with respect to an alien. Only then is verification under 8 U.S.C. § 1373(c) relevant to support permissible state or local action. Because the Whiting plurality held that Arizona‟s employer sanctions law was a valid licensing law not pre-empted by IRCA, it followed that a federal verification of immigration status is a proper basis upon which Arizona may impose its licensing
29 See also Villas at Parkside Partners, 2013 WL 3791664, at *5 (concluding that, “by criminalizing conduct that does not have the effect of evading federal detection, and by giving state officials authority to act as immigration officers outside the „limited circumstances‟ specified by federal law,” local housing ordinance conflicts with federal anti-harboring law).
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sanctions. That is not the case with respect to the housing provisions in Hazleton‟s ordinances.
As we have explained, the housing provisions are themselves pre-empted. It is therefore irrelevant that they would be imposed pursuant to a valid status verification under § 1373(c). Hazleton simply does not have the legal authority to take that action even if done pursuant to a valid determination of status under federal law. See Arizona, 132 S. Ct. at 2505 (explaining why § 5(C) of Arizona‟s S.B. 1070 law, which attempted to impose sanctions on unauthorized workers, was conflict pre-empted); A.R.S. § 13-2928(E) (providing that “[i]n the enforcement of [§ 5(C)], an alien‟s immigration status may be determined . . . pursuant to 8 [U.S.C.] § 1373(c)”).
For the foregoing reasons, we again hold that the housing provisions conflict with federal law and are thus preempted.
3. The Rental Registration Provisions in the RO Are Field Pre-empted Even When Divorced from the Harboring Provisions in the IIRAO.
The approach throughout this litigation has been to consider the relevant housing provisions in the RO in conjunction with those in the IIRAO. Nonetheless, it is theoretically possible that the rental registration scheme in the RO may not conflict with federal immigration law if divorced from the harboring provisions and sanctions in the IIRAO.30
30 See Arizona, 132 S. Ct. at 2508-09 (vacating injunction against § 2(B) of Arizona‟s S.B. 1070 law because Congress “has encouraged the sharing of information [between federal and state officials] about possible immigration violations” and § 2(B) could be read to avoid constitutional concerns); 8 U.S.C. § 1357(g)(10)(A)-(B) (requiring no formal agreement for state and local authorities to “communicate with the Attorney General regarding the immigration status of any individual” or “otherwise to
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However, we conclude that the housing provisions in the RO, even if considered separately from the anti-harboring provisions in the IIRAO, are pre-empted because they intrude upon the field occupied by federal alien registration law. 31
As we have explained, the RO requires those seeking to occupy rental housing to register with the City and obtain an occupancy permit. To obtain an occupancy permit, the applicant need only pay the requisite registration fee and submit the name and address of the prospective occupant, the name of the landlord, the address of the rental unit, and “proof of legal citizenship and/or residency.” RO § 7b. As the City itself points out, under the terms of the RO alone, all applicants are issued an occupancy permit upon providing the required information and the requisite fee—even if the applicant indicates that she lacks legal status. Those who occupy rental housing without complying with this registration scheme are subject to fines of $100 to $300, or imprisonment for up to 90 days in default of payment. RO § 10a. Thus, the rental registration scheme of the RO standing alone operates as a requirement that a subset of Hazleton‟s population—those residing in rental housing—register their immigration status with the City.
cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States”).
31 We previously concluded that “[t]he sole severability issue Hazleton has not waived concerns the IIRAO‟s private cause of action.” Lozano II, 620 F.3d at 182. As we explained in supra note 5, that holding is not at issue here. However, we acknowledge that our prior severability holding may not necessarily foreclose a decision to uphold the RO, and the rental registration scheme, if considered separately from the related anti-harboring provisions in the IIRAO. Indeed, those provisions appear in separate statutes. This does not impact the outcome here, however, because, as we explain below, the rental registration scheme in the RO is itself field pre-empted.
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It is beyond dispute that states and localities may not intrude in the field of alien registration. Arizona, 132 S. Ct. at 2502 (reiterating holding in Hines, 312 U.S. at 70, that “the Federal Government has occupied the field of alien registration”). Thus, in Arizona, the Supreme Court found pre-empted § 3 of Arizona‟s S.B. 1070 law, which forbade “willful failure to complete or carry an alien registration document” in violation of federal law. Arizona, 132 S. Ct. 2501. Hazleton‟s rental registration scheme similarly intrudes into the field of alien registration. One of the rental registration scheme‟s primary functions is to require rental housing occupants to report their immigration status to the City of Hazleton and penalize the failure to register and obtain an occupancy permit pursuant to that requirement. This attempt to create a local alien registration requirement is field pre-empted.
In arguing that the RO is nothing like an alien registration system, the City claims “the most notable difference” is that the RO applies equally to citizens and aliens alike while the federal Alien Registration Act applies only to noncitizens.32 We are not persuaded. It is highly unlikely that the local registration laws invalidated on field pre-emption grounds in Hines or Arizona would have been upheld if they applied to citizens and aliens alike. The RO‟s registration scheme cannot avoid pre-emption merely because it requires both citizens and noncitizens to declare their immigration status.33 The City also argues that a finding that
32 The Court of Appeals for the Eighth Circuit adopted this argument and concluded that a similar rental registration scheme is not field pre-empted. See Keller, 2013 WL 3242111, at *6 (“The occupancy license scheme at issue is nothing like the state registration laws invalidated in Hines and in Arizona [because it] requires all renters, including U.S. citizens and nationals, to obtain an occupancy license. . . . ).
33 Indeed, Hazleton‟s requirement that citizens, in addition to non-citizens, register their immigration status is an even worse transgression into the field of alien registration law as it imposes burdens on U.S. citizens that are absent from federal law. Since Congress has not seen fit to require
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the RO constitutes an alien registration system is implausible because it would require the invalidation of laws limiting drivers‟ licenses to lawfully present aliens. This argument is also unpersuasive. Basing eligibility for certain state privileges on immigration status is distinct from requiring aliens to register. The RO‟s rental registration scheme serves no discernible purpose other than to register the immigration status of a subset of the City‟s population. It can only be viewed as an impermissible alien registration requirement.34
IV. Conclusion
For the reasons set forth above, we conclude that the employment provisions in the IIRAO are distinguishable from the Arizona law upheld in Whiting, and the Supreme Court‟s reasoning in Whiting and Arizona does not otherwise undermine our conclusion that both the employment and housing provisions in the IIRAO and RO are pre-empted by federal law. Accordingly, we will again affirm in part and reverse in part the District Court‟s order permanently enjoining Hazleton‟s enforcement of the IIRAO and RO.
V. Appendix
A. The Illegal Immigration Relief Act Ordinance (Ordinance 2006-18, as amended by Ordinances 2006-40 and 2007-7)
U.S. citizens to prove their citizenship status before obtaining rental housing, we are at a loss to understand Hazleton‟s argument that imposing this burden on citizens saves the RO‟s registration scheme from pre-emption.
34 The RO is also distinguishable from § 2(B) of Arizona‟s S.B. 1070, which the Supreme Court did not enjoin in Arizona. Section 2(B), unlike the rental registration scheme in the RO, did not impose any registration obligation on aliens. Rather, § 2(B) imposed only an obligation on local police to verify the immigration status of persons stopped, detained or arrested. Arizona, 132 S. Ct. at 2507-10.
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ILLEGAL IMMIGRATION RELIEF ACT ORDINANCE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF HAZLETON AS FOLLOWS:
SECTION 1. TITLE This chapter shall be known and may be cited as the “City of Hazleton Illegal Immigration Relief Act Ordinance.”
SECTION 2. FINDINGS AND DECLARATION OF PURPOSE
The People of the City of Hazleton find and declare:
A. That state and federal law require that certain conditions be met before a person may be authorized to work or reside in this country.
B. That unlawful workers and illegal aliens, as defined by this ordinance and state and federal law, do not normally meet such conditions as a matter of law when present in the City of Hazleton.
C. That unlawful employment, the harboring of illegal aliens in dwelling units in the City of Hazleton, and crime committed by illegal aliens harm the health, safety and welfare of authorized U.S. workers and legal residents in the City of Hazleton. Illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services, increasing their cost and diminishing their availability to legal residents, and diminishes our overall quality of life.
D. That the City of Hazleton is authorized to abate public nuisances and empowered and mandated by the people of Hazleton to abate the nuisance of illegal immigration by diligently prohibiting the acts and policies that facilitate illegal immigration in a manner consistent with federal law and the objectives of Congress.
E. That United States Code Title 8, subsection 1324(a)(1)(A)
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prohibits the harboring of illegal aliens. The provision of housing to illegal aliens is a fundamental component of harboring.
F. This ordinance seeks to secure to those lawfully present in the United States and this City, whether or not they are citizens of the United States, the right to live in peace free of the threat crime, to enjoy the public services provided by this city without being burdened by the cost of providing goods, support and services to aliens unlawfully present in the United States, and to be free of the debilitating effects on their economic and social well being imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the Commonwealth of Pennsylvania.
G. The City shall not construe this ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal assistance to any person.
SECTION 3. DEFINITIONS
When used in this chapter, the following words, terms and phrases shall have the meanings ascribed to them herein, and shall be construed so as to be consistent with state and federal law, including federal immigration law:
A. “Business entity” means any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.
(1) The term business entity shall include but not be limited to selfemployed individuals, partnerships, corporations, contractors, and subcontractors. (2) The term business entity shall include any business entity that possesses a business permit, any business entity that is exempt by law from obtaining such a business permit, and any business entity that is operating unlawfully without such a business permit.
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B. “City” means the City of Hazleton.
C. “Contractor” means a person, employer, subcontractor or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration. This definition shall include but not be limited to a subcontractor, contract employee, or a recruiting or staffing entity.
D. “Illegal Alien” means an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq. The City shall not conclude that a person is an illegal alien unless and until an authorized representative of the City has verified with the federal government, pursuant to United States Code Title 8, subsection 1373(c), that the person is an alien who is not lawfully present in the United States.
E. “Unlawful worker” means a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including but not limited to a minor disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3).
F. “Work” means any job, task, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including but not limited to all activities conducted by business entities.
G. “Basic Pilot Program” means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, subsection 1324a, and operated by the United States Department of Homeland Security (or a successor program established by the federal government.)
SECTION 4. BUSINESS PERMITS, CONTRACTS, OR GRANTS
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A. It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City. Every business entity that applies for a business permit to engage in any type of work in the City shall sign an affidavit, prepared by the City Solicitor, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.
B. Enforcement: The Hazleton Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a written signed complaint to the Hazleton Code Enforcement Office submitted by any City official, business entity, or City resident. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred. (2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. (3) Upon receipt of a valid complaint, the Hazleton Code Enforcement Office shall, within three business days, request identity information from the business entity regarding any persons alleged to be unlawful workers. The Hazleton Code Enforcement Office shall suspend the business permit of any business entity which fails, within three business days after receipt of the request, to provide such information. In instances where an unlawful worker is alleged to be an unauthorized alien, as defined in United States Code Title 8, subsection 1324a(h)(3), the Hazleton Code Enforcement Office shall submit identity data required by the federal government to verify, pursuant to United States Code Title 8, section 1373, the immigration status of such person(s), and shall provide the business entity with written confirmation of that verification. (4) The Hazleton Code Enforcement Office shall suspend the business permit of any business entity which fails correct a violation of this section within three business days after notification of the violation by the Hazleton
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Code Enforcement Office. (5) The Hazleton Code Enforcement Office shall not suspend the business permit of a business entity if, prior to the date of the violation, the business entity had verified the work authorization of the alleged unlawful worker(s) using the Basic Pilot Program. (6) The suspension shall terminate one business day after a legal representative of the business entity submits, at a City office designated by the City Solicitor, a sworn affidavit stating that the violation has ended.
(a) The affidavit shall include a description of the specific measures and actions taken by the business entity to end the violation, and shall include the name, address and other adequate identifying information of the unlawful workers related to the complaint. (b) Where two or more of the unlawful workers were verified by the federal government to be unauthorized aliens, the legal representative of the business entity shall submit to the Hazleton Code Enforcement Office, in addition to the prescribed affidavit, documentation acceptable to the City Solicitor which confirms that the business entity has enrolled in and will participate in the Basic Pilot Program for the duration of the validity of the business permit granted to the business entity. (7) For a second or subsequent violation, the Hazleton Code Enforcement Office shall suspend the business permit of a business entity for a period of twenty days. After the end of the suspension period, and upon receipt of the prescribed affidavit, the Hazleton Code Enforcement Office shall reinstate the business permit. The Hazleton Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate federal enforcement agency, pursuant to United States Code Title 8, section 1373. In the case of an unlawful worker disqualified by state law not related to immigration, the Hazleton Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate state enforcement agency.
C. All agencies of the City shall enroll and participate in the Basic Pilot Program.
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D. As a condition for the award of any City contract or grant to a business entity for which the value of employment, labor or, personal services shall exceed $10,000, the business entity shall provide documentation confirming its enrollment and participation in the Basic Pilot Program.
E. Private Cause of Action for Unfairly Discharged Employees
(1) The discharge of any employee who is not an unlawful worker by a business entity in the City is an unfair business practice if, on the date of the discharge, the business entity was not participating in the Basic Pilot program and the business entity was employing an unlawful worker. (2) The discharged worker shall have a private cause of action in the Municipal Court of Hazleton against the business entity for the unfair business practice. The business entity found to have violated this subsection shall be liable to the aggrieved employee for:
(a) three times the actual damages sustained by the employee, including but not limited to lost wages or compensation from the date of the discharge until the date the employee has procured new employment at an equivalent rate of compensation, up to a period of one hundred and twenty days; and (b) reasonable attorney‟s fees and costs.
SECTION 5. HARBORING ILLEGAL ALIENS
A. It is unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, unless such harboring is otherwise expressly permitted by federal law.
(1) For the purposes of this section, to let, lease, or rent a dwelling unit to an illegal alien, knowing or in reckless disregard of the fact that an alien has come to, entered, or
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remains in the United States in violation of law, shall be deemed to constitute harboring. To suffer or permit the occupancy of the dwelling unit by an illegal alien, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, shall also be deemed to constitute harboring. (2) A separate violation shall be deemed to have been committed on each day that such harboring occurs, and for each adult illegal alien harbored in the dwelling unit, beginning one business day after receipt of a notice of violation from the Hazleton Code Enforcement Office. (3) A separate violation of this section shall be deemed to have been committed for each business day on which the owner fails to provide the Hazleton Code Enforcement Office with identity data needed to obtain a federal verification of immigration status, beginning three days after the owner receives written notice from the Hazleton Code Enforcement Office.
B. Enforcement: The Hazleton Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a written signed complaint to the Hazleton Code Enforcement Office submitted by any official, business entity, or resident of the City. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred. (2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. (3) Upon receipt of a valid written complaint, the Hazleton Code Enforcement Office shall, pursuant to United States Code Title 8, section 1373(c), verify with the federal government the immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The Hazleton Code Enforcement Office shall submit identity data required by the federal government to verify immigration status. The City shall forward identity data
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provided by the owner to the federal government, and shall provide the property owner with written confirmation of that verification. (4) If after five business days following receipt of written notice from the City that a violation has occurred and that the immigration status of any alleged illegal alien has been verified, pursuant to United States Code Title 8, section 1373(c), the owner of the dwelling unit fails to correct a violation of this section, the Hazleton Code Enforcement Office shall deny or suspend the rental license of the dwelling unit. (5) For the period of suspension, the owner of the dwelling unit shall not be permitted to collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any tenant or occupant in the dwelling unit. (6) The denial or suspension shall terminate one business day after a legal representative of the dwelling unit owner submits to the Hazleton Code Enforcement Office a sworn affidavit stating that each and every violation has ended. The affidavit shall include a description of the specific measures and actions taken by the business entity to end the violation, and shall include the name, address and other adequate identifying information for the illegal aliens who were the subject of the complaint. (7) The Hazleton Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate federal enforcement agency, pursuant to United States Code Title 8, section 1373. (8) Any dwelling unit owner who commits a second or subsequent violation of this section shall be subject to a fine of two hundred and fifty dollars ($250) for each separate violation. The suspension provisions of this section applicable to a first violation shall also apply. (9) Upon the request of a dwelling unit owner, the Hazleton Code Enforcement Office shall, pursuant to United States Code Title 8, section 1373(c), verify with the federal government the lawful immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The penalties in this section shall not apply in the case of dwelling unit occupants whose status as an alien lawfully present in the United States has been
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verified.
SECTION 6. CONSTRUCTION AND SEVERABILITY
A. The requirements and obligations of this section shall be implemented in a manner fully consistent with federal law regulating immigration and protecting the civil rights of all citizens and aliens.
B. If any part of provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part of provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.
SECTION 7. IMPLEMENTATION AND PROCESS
A. Prospective Application Only. The default presumption with respect to Ordinances of the City of Hazleton—that such Ordinances shall apply only prospectively—shall pertain to the Illegal Immigration Relief Act Ordinance. The Illegal Immigration Relief Act Ordinance shall be applied only to employment contracts, agreements to perform service or work, and agreements to provide a certain product in exchange for valuable consideration that are entered into or are renewed after the date that the Illegal Immigration Relief Act Ordinance becomes effective and any judicial injunction prohibiting its implementation is removed. The Illegal Immigration Relief Act Ordinance shall be applied only to contracts to let, lease, or rent dwelling units that are entered into or are renewed after the date that the Illegal Immigration Relief Act Ordinance becomes effective and any judicial injunction prohibiting its implementation is removed. The renewal of a month-to-month lease or other type of tenancy which automatically renews absent notice by either party will not be considered as entering into a new contract to let, lease or rent a dwelling unit.
B. Condition of Lease. Consistent with the obligations of a
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rental unit owner described in Section 5.A., a tenant may not enter into a contract for the rental or leasing of a dwelling unit unless the tenant is either a U.S. citizen or an alien lawfully present in the United States according to the terms of United States Code Title 8, Section 1101 et seq. A tenant who is neither a U.S. citizen nor an alien lawfully present in the United States who enters into such a contract shall be deemed to have breached a condition of the lease under 68 P.S. Section 250.501. A tenant who is not a U.S. citizen who subsequent to the beginning of his tenancy becomes unlawfully present in the United States shall be deemed to have breached a condition of the lease under 68 P.S. Section 250.501.
C. Corrections of Violations—Employment of Unlawful Workers. The correction of a violation with respect to the employment of an unlawful worker shall include any of the following actions:
(1) The business entity terminates the unlawful worker‟s employment. (2) The business entity, after acquiring additional information from the worker, requests a secondary or additional verification by the federal government of the worker‟s authorization, pursuant to the procedures of the Basic Pilot Program. While this verification is pending, the three business day period described in Section 4.B.(4) shall be tolled. (3) The business entity attempts to terminate the unlawful worker‟s employment and such termination is challenged in a court of the Commonwealth of Pennsylvania. While the business entity pursues the termination of the unlawful worker‟s employment in such forum, the three business day period described in Section 4.B.(4) shall be tolled.
D. Corrections of Violations—Harboring Illegal Aliens. The correction of a violation with respect to the harboring of an illegal alien in a dwelling unit shall include any of the following actions:
(1) A notice to quit, in writing, issued and served by the
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dwelling unit owner, as landlord, to the tenant declaring a forfeiture of the lease for breach of the lease condition describe in Section 7.B. (2) The dwelling unit owner, after acquiring additional information from the alien, requests the City of Hazleton to obtain a secondary or additional verification by the federal government that the alien is lawfully present in the United States, under the procedures designated by the federal government, pursuant to United States Code Title 8, Subsection 1373(c). While this second verification is pending, the five business day period described in Section 5.B.(4) shall be tolled. (3) The commencement of an action for the recovery of possession of real property in accordance with Pennsylvania law by the landlord against the illegal alien. If such action is contested by the tenant in court, the dwelling unit owner shall be deemed to have complied with this Ordinance while the dwelling unit owner is pursuing the action in court. While this process is pending, the five business day period described in Section 5.B.(4) shall be tolled.
E. Procedure if Verification is Delayed. If the federal government notifies the City of Hazleton that it is unable to verify whether a tenant is lawfully present in the United States or whether an employee is authorized to work in the United States, the City of Hazleton shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any City official attempt to make an independent determination of any alien‟s legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c).
F. Venue for Judicial Process. Any business entity or rental unit owner subject to a complaint and subsequent enforcement under this ordinance, or any employee of such a business entity or tenant of such a rental unit owner, may challenge the enforcement of this Ordinance with respect to such entity or individual in the Magisterial District Court for the City of Hazleton, subject to the right of appeal to the
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Luzerne County Court of Common Pleas. Such an entity or individual may alternatively challenge the enforcement of this Ordinance with respect to such entity or individual in any other court of competent jurisdiction in accordance with applicable law, subject to all rights of appeal.
G. Deference to Federal Determinations of Status. The determination of whether a tenant of a dwelling is lawfully present in the United States, and the determination of whether a worker is an unauthorized alien shall be made by the federal government, pursuant to United States Code Title 8, Subsection 1373(c). A determination of such status of an individual by the federal government shall create a rebuttable presumption as to that individual‟s status in any judicial proceedings brought pursuant to this ordinance. The Court may take judicial notice of any verification of the individual previously provided by the federal government and may request the federal government to provide automated or testimonial verification pursuant to United States Code Title 8, Subsection 1373(c).
B. Rental Registration Ordinance (Ordinance 2006-13)
ESTABLISHING A REGISTRATION PROGRAM FOR RESIDENTIAL RENTAL PROPERTIES; REQUIRING ALL OWNERS OF RESIDENTIAL RENTAL PROPERTIES TO DESIGNATE AN AGENT FOR SERVICE OF PROCESS; AND PRESCRIBING DUTIES OF OWNERS, AGENTS AND OCCUPANTS; DIRECTING THE DESIGNATION OF AGENTS; ESTABLISHING FEES FOR THE COSTS ASSOCIATED WITH THE REGISTRATION OF RENTAL PROPERTY; AND PRESCRIBING PENALTIES FOR VIOLATIONS BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF HAZLETON AND IT IS HEREBY ORDAINED AND WITH THE AUTHORITY OF THE SAME AS FOLLOWS:
SECTION 1. DEFINITIONS AND INTERPRETATION.
The following words, when used in this ordinance, shall have
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the meanings ascribed to them in this section, except in those instances where the context clearly indicates otherwise. When not inconsistent with the context, words used in the present tense include the future; words in the plural number include the singular number; words in the singular shall include the plural, and words in the masculine shall include the feminine and the neuter.
a. AGENT—Individual of legal majority who has been designated by the Owner as the agent of the Owner or manager of the Property under the provisions of this ordinance.
b. CITY—City of Hazleton
c. CITY CODE—the building code (property Maintenance Code 1996 as amended or superceded) officially adopted by the governing body of the City, or other such codes officially designated by the governing body of the City for the regulation of construction, alteration, addition, repair, removal, demolition, location, occupancy and maintenance of buildings and structures.
d. ZONING ORDINANCE—Zoning ordinance as officially adopted by the City of Hazleton, File of Council # 95-26 (as amended).
e. OFFICE—The Office of Code Enforcement for the City of Hazleton.
f. DWELLING UNIT—a single habitable unit, providing living facilities for one or more persons, including permanent space for living, sleeping, eating, cooking and bathing and sanitation, whether furnished or unfurnished. There may be more than one Dwelling Unit on a Premises.
g. DORMITORY—a residence hall offered as student or faculty housing to accommodate a college or university, providing living or sleeping rooms for individuals or groups of individuals, with or without cooking facilities and with or without private baths.
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h. INSPECTOR—any person authorized by Law or Ordinance to inspect buildings or systems, e.g. zoning, housing, plumbing, electrical systems, heat systems, mechanical systems and health necessary to operate or use buildings within the City of Hazleton. An Inspector would include those identified in Section 8—Enforcement.
i. FIRE DEPARTMENT—the Fire Department of the City of Hazleton or any member thereof, and includes the Chief of Fire or his designee.
j. HOTEL—a building or part of a building in which living and sleeping accommodations are used primarily for transient occupancy, may be rented on a daily basis, and desk service is provided, in addition to one or more of the following services: maid, telephone, bellhop service, or the furnishing or laundering of linens.
k. LET FOR OCCUPANCY—to permit, provide or offer, for consideration, possession or occupancy of a building, dwelling unit, rooming unit, premise or structure by a person who is not the legal owner of record thereof, pursuant to a written or unwritten lease, agreement or license, or pursuant to a recorded or unrecorded agreement or contract for the sale of land.
l. MOTEL—a building or group of buildings which contain living and sleeping accommodations used primarily for transient occupancy, may be rented on a daily basis, and desk service is provided, and has individual entrances from outside the building to serve each such living or sleeping unit.
m. OCCUPANT—a person age 18 or older who resides at a Premises.
n. OPERATOR—any person who has charge, care or control of a Premises which is offered or let for occupancy.
o. OWNER—any Person, Agent, or Operator having a legal or equitable interest in the property; or recorded in the official
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records of the state, county, or municipality as holding title to the property; or otherwise having control of the property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a Court of competent jurisdiction.
p. OWNER-OCCUPANT—an owner who resides in a Dwelling Unit on a regular permanent basis, or who otherwise occupies a nonresidential portion of the Premises on a regular permanent basis.
q. PERSON—any person, partnership, firm, association, corporation, or municipal authority or any other group acting as a single unit.
r. POLICE DEPARTMENT—the Police Department of the City of Hazleton or any member thereof sworn to enforce laws and ordinances in the City, and includes the Chief of Police or his designee.
s. PREMISES—any parcel of real property in the City, including the land and all buildings and structures in which one or more Rental Units are located.
t. RENTAL UNIT—means a Dwelling Unit or Rooming Unit which is Let for Occupancy and is occupied by one or more Tenants.
u. ROOMING UNIT—any room or groups of rooms forming a single habitable unit occupied or intended to be occupied for sleeping or living, but not for cooking purposes.
v. TENANT—any Person authorized by the Owner or Agent who occupies a Rental Unit within a Premises regardless of whether such Person has executed a lease for said Premises.
SECTION 2. APPOINTMENT OF AN AGENT AND/OR MANAGER
Each Owner who is not an Owner-occupant, or who does not
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reside in the City of Hazleton or within a ten (10) mile air radius of the City limits, shall appoint an Agent who shall reside in the City or within a ten (10) mile air radius of the City limits.
SECTION 3. DUTIES OF THE OWNER AND/OR AGENT
a. The Owner has the duty to maintain the Premises in good repair, clean and sanitary condition, and to maintain the Premises in compliance with the current Codes, Building Codes and Zoning Ordinance of the City of Hazleton. The Owner may delegate implementation of these responsibilities to an Agent.
b. The duties of the Owner and/or Agent shall be to receive notices and correspondence, including service of process, from the City of Hazleton; to arrange for the inspection of the Rental Units; do or arrange for the performance of maintenance, cleaning, repair, pest control, snow and ice removal, and ensure continued compliance of the Premises with the current Codes, Building Codes and Zoning Ordinance in effect in the City of Hazleton, as well as arrange for garbage removal.
c. The name, address and telephone number of the Owner and Agent, if applicable, shall be reported to the Code Enforcement Office in writing upon registering the Rental Units.
d. No Dwelling Unit shall be occupied, knowingly by the Owner or Agent, by a number of persons that is in excess of the requirements outlined in 2003 International Property Maintenance Code, Chapter 4, Light, Ventilation, and Occupancy Limits, Section PM-404.5, Overcrowding, or any update thereof, a copy of which is appended hereto and made a part hereof.
SECTION 4. NOTICES
a. Whenever an Inspector or Code Enforcement Officer determines that any Rental Unit or Premises fails to meet the
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requirements set forth in the applicable Codes, the Inspector or Code Enforcement Officer shall issue a correction notice setting forth the violations and ordering the Occupant, Owner or Agent, as appropriate, to correct such violations. The notice shall:
1) Be in writing; 2) Describe the location and nature of the violation; 3) Establish a reasonable time for the correction of the violation.
b. All notices shall be served upon the Occupant, Owner or Agent, as applicable, personally or by certified mail, return receipt requested. A copy of any notices served solely on an Occupant shall also be provided to the Owner or Agent. In the event service is first attempted by mail and the notice is returned by the postal authorities marked “unclaimed” or “refused”, then the Code Enforcement Office or Police Department shall attempt delivery by personal service on the Occupant, Owner or Agent, as applicable. The Code Enforcement Office shall also post the notice at a conspicuous place on the Premises. If personal service directed to the Owner or Agent cannot be accomplished after a reasonable attempt to do so, then the notice may be sent to the Owner or Agent, as applicable, at the address stated on the most current registration application for the Premises in question, by regular first class mail, postage prepaid. If such notice is not returned by the postal authorities within five (5) days of its deposit in the U.S. Mail, then it shall be deemed to have been delivered to and received by the addressee on the fifth day following its deposit in the United States Mail.
c. For purposes of this Ordinance, any notice hereunder that is given to the Agent shall be deemed as notice given to the Owner.
d. There shall be a rebuttable presumption that any notice that is given to the Occupant, Owner or Agent under this ordinance shall have been received by such Occupant, Owner or Agent if the notice was served in the manner provided by this ordinance.
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e. Subject to paragraph 4.d above, a claimed lack of knowledge by the Owner or Agent, if applicable, of any violation hereunder cited shall be no defense to closure of rental units pursuant to Section 9, as long as all notices prerequisite to such proceedings have been given and deemed received in accordance with the provisions of this ordinance.
f. All notices shall contain a reasonable time to correct, or take steps to correct, violations of the above. The Occupant, Owner or Agent to whom the notice was addressed may request additional time to correct violations. Requests for additional time must be in writing and either deposited in the U.S. Mail (post-marked) or handdelivered to the Code Enforcement Office within five (5) days of receipt of the notice by the Occupant, Owner or Agent. The City retains the right to deny or modify time extension requests. If the Occupant, Owner or Agent is attempting in good faith to correct violations but is unable to do so within the time specified in the notice, the Occupant, Owner or Agent shall have the right to request such additional time as may be needed to complete the correction work, which request shall not be unreasonably withheld.
g. Failure to correct violations within the time period stated in the notice of violation shall result in such actions or penalties as are set forth in Section 10 of this ordinance. If the notice of violation relates to actions or omissions of the Occupant, and the Occupant fails to make the necessary correction, the Owner or Agent may be required to remedy the condition. No adverse action shall be taken against an Owner or Agent for failure to remedy a condition so long as the Owner or Agent is acting with due diligence and taking bona fide steps to correct the violation, including but not limited to pursuing remedies under a lease agreement with an Occupant or Tenant. The City shall not be precluded from pursuing an enforcement action against any Occupant or Tenant who is deemed to be in violation.
SECTION 5. INSURANCE
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In order to protect the health, safety and welfare of the residents of the City, it is hereby declared that the city shall require hazard and general liability insurance for all property owners letting property for occupancy in the City.
a. Minimum coverage; use of insurance proceeds. All Owners shall be required to obtain a minimum of fifty thousand ($50,000.00) dollars in general liability insurance, and hazard and casualty insurance in an amount sufficient to either restore or remove the building in the event of a fire or other casualty. Further, in the event of any fire or loss covered by such insurance, it shall be the obligation of the Owner to use such insurance proceeds to cause the restoration or demolition or other repair of the property in adherence to the City Code and all applicable ordinances.
b. Property owners to provide City with insurance information. Owners shall be required to place their insurance company name, policy number and policy expiration date on their Rental Property Registration form, or in the alternative, to provide the Code Enforcement Office with a copy of a certificate of insurance. A registration Certificate (see Section 6 below) shall not be issued to any Owner or Agent unless the aforementioned information has been provided to the Code Enforcement Office. The Code Enforcement Office shall be informed of any change in policies for a particular rental property or cancellation of a policy for said property within thirty (30) days of said change or cancellation.
SECTION 6. RENTAL REGISTRATION AND LICENSE REQUIREMENTS
a. No Person shall hereafter occupy, allow to be occupied, advertise for occupancy, solicit occupants for, or let to another person for occupancy any Rental Unit within the City for which an application for license has not been made and filed with the Code Enforcement Office and for which there is not an effective license. Initial application and renewal shall be made upon forms furnished by the Code Enforcement Office for such purpose and shall specifically require the following minimum information:
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1) Name, mailing address, street address and phone number of the Owner, and if the Owner is not a natural person, the name, address and phone number of a designated representative of the Owner. 2) Name, mailing address, street address and phone number of the Agent of the Owner, if applicable. 3) The street address of the Premises being registered. 4) The number and types of units within the Premises (Dwelling Units or Rooming Units) The Owner or Agent shall notify the Code Enforcement Office of any changes of the above information within thirty (30) days of such change.
b. The initial application for registration and licensing shall be made by personally filing an application with the Code Enforcement Office by November 1, 2006. Thereafter, any new applicant shall file an application before the Premises is let for occupancy, or within thirty (30) days of becoming an Owner of a currently registered Premises. One application per property is required, as each property will receive its own license.
c. Upon receipt of the initial application or any renewal thereof and the payment of applicable fees as set forth in Section 7 below, the Code Enforcement Office shall issue a Rental Registration License to the Owner within thirty (30) days of receipt of payment.
d. Each new license issued hereunder, and each renewal license, shall expire on October 31 of each year. The Code Enforcement Office shall mail license renewal applications to the Owner or designated Agent on or before September 1 of each year. Renewal applications and fees may be returned by mail or in person to the Code Enforcement Office. A renewal license will not be issued unless the application and appropriate fee has been remitted.
SECTION 7. FEES.
a. Annual License Fee. There shall be a license fee for the
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initial license and an annual renewal fee thereafter. Fees shall be assessed against and payable by the Owner in the amount of $5.00 per Rental Unit, payable at the time of initial registration and annual renewal, as more specifically set forth in Section 6 above.
b. Occupancy Permit Fee. There shall be a one-time occupancy permit fee of $10.00 for every new Occupant, which is payable by the Occupant. For purposes of initial registration under this ordinance, this fee shall be paid for all current Occupants by November 1, 2006. Thereafter, prior to occupying any Rental Unit, all Occupants shall obtain an occupancy permit. It shall be the Occupant‟s responsibility to submit an occupancy permit application to the Code Enforcement Office, pay the fee and obtain the occupancy permit. If there are multiple Occupants in a single Rental Unit, each Occupant shall obtain his or her own permit. Owner or Agent shall notify all prospective Occupants of this requirement and shall not permit occupancy of a Rental Unit unless the Occupant first obtains an occupancy permit. Each occupancy permit issued is valid only for the Occupant for as long as the Occupant continues to occupy the Rental Unit for which such permit was applied. Any relocation to a different Rental Unit requires a new occupancy permit. All Occupants age 65 and older, with adequate proof of age, shall be exempt from paying the permit fee, but shall be otherwise required to comply with this section and the rest of the Ordinance.
1. Application for occupancy permits shall be made upon forms furnished by the Code Enforcement Office for such purpose and shall specifically require the following minimum information:
a) Name of Occupant b) Mailing address of Occupant c) Street address of Rental Unit for which Occupant is applying, if different from mailing address d) Name of Landlord e) Date of lease commencement f) Proof of age if claiming exemption from the permit fee g) Proper identification showing proof of legal
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citizenship and/or residency 2. Upon receipt of the application and the payment of applicable fees as set forth above, the Code Enforcement Office shall issue an Occupancy Permit to the Occupant immediately.
SECTION 8. ENFORCEMENT
a. The following persons are hereby authorized to enforce this Ordinance:
1. The Chief of Police 2. Any Police Officer 3. Code Enforcement Officer 4. The Fire Chief 5. Deputy Fire Chief of the City of Hazleton. 6. Health Officer 7. Director of Public Works
b. The designation of any person to enforce this Ordinance or authorization of an Inspector, when in writing, and signed by a person authorized by Section 8.a to designate or authorize an Inspector to enforce this Ordinance, shall be prima facie evidence of such authority before the Magisterial District Judge, Court of Common Pleas, or any other Court, administrative body of the City, or of this commonwealth, and the designating Director or Supervisor need not be called as a witness thereto.
SECTION 9. FAILURE TO CORRECT VIOLATIONS.
If any Person shall fail, refuse or neglect to comply with a notice of violation as set forth in Section 4 above, the City shall have the right to file an enforcement action with the Magisterial District Judge against any Person the City deems to be in violation. If, after hearing, the Magisterial District Judge determines that such Person or Persons are in violation, the Magisterial District Judge may, at the City‟s request, order the closure of the Rental Unit(s), or assess fines in accordance with Section 10 below, until such violations are corrected. Such order shall be stayed pending any appeal to
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the Court of Common Pleas of Luzerne County.
SECTION 10. FAILURE TO COMPLY WITH THIS ORDINANCE; PENALTIES
a. Except as provided in subsections 10.b and 10.c below, any Person who shall violate any provision of the Ordinance shall, upon conviction thereof after notice and a hearing before the Magisterial District Judge, be sentenced to pay a fine of not less than $100.00 and not more than $300.00 plus costs, or imprisonment for a term not to exceed ninety (90) days in default of payment. Every day that a violation of this Ordinance continues shall constitute a separate offense, provided, however, that failure to register or renew or pay appropriate fees in a timely manner shall not constitute a continuing offense but shall be a single offense not subject to daily fines.
b. Any Owner or Agent who shall allow any Occupant to occupy a Rental Unit without first obtaining an occupancy permit is in violation of Section 7.b and shall, upon conviction thereof after notice and a hearing before the Magisterial District Judge, be sentenced to pay a fine of $1,000 for each Occupant that does not have an occupancy permit and $100 per Occupant per day for each day that Owner or Agent continues to allow each such Occupant to occupy the Rental Unit without an occupancy permit after Owner or Agent is given notice of such violation pursuant to Section 4 above. Owner or Agent shall not be held liable for the actions of Occupants who allow additional occupancy in any Rental Unit without the Owner or Agent‟s written permission, provided that Owner or Agent takes reasonable steps to remove or register such unauthorized Occupant(s) within ten (10) days of learning of their unauthorized occupancy in the Rental Unit.
c. Any Occupant having an occupancy permit but who allows additional occupancy in a Rental Unit without first obtaining the written permission of the Owner or Agent and without requiring each such additional Occupant to obtain his or her own occupancy permit is in violation of Section 7.b of this
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ordinance and shall, upon conviction thereof after notice and a hearing before the Magisterial District Judge, be sentenced to pay a fine of $1,000 for each additional Occupant permitted by Occupant that does not have an occupancy permit and $100 per additional Occupant per day for each day that Occupant continues to allow each such additional Occupant to occupy the Rental Unit without an occupancy permit after Occupant is given written notice of such violation by Owner or Agent or pursuant to Section 4 above.
SECTION 11. APPLICABILITY AND EXEMPTIONS TO THE ORDINANCE
The provisions of the ordinance shall not apply to the following properties, which are exempt from registration and license requirements:
a. Hotels, Motels and Dormitories.
b. Rental Units owned by Public Authorities as defined under the Pennsylvania Municipal Authorities Act, and Dwelling Units that are part of an elderly housing multi-unit building which is 75% occupied by individuals over the age of sixtyfive.
c. Multi-dwelling units that operate under Internal Revenue Service Code Section 42 concerning entities that operate with an elderly component.
d. Properties which consist of a double home, half of which is let for occupancy and half of which is Owner-occupied as the Owner‟s residence.
SECTION 12. CONFIDENTIALITY OF INFORMATION
All registration information collected by the City under this Ordinance shall be maintained as confidential and shall not be disseminated or released to any individual, group or organization for any purpose except as provided herein or required by law. Information may be released only to authorized individuals when required during the course of an
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official City, state or federal investigation or inquiry.
SECTION 13. SAVINGS CLAUSE
This ordinance shall not affect violations of any other ordinance, code or regulation existing prior to the effective date thereof and any such violations shall be governed and shall continue to be punishable to the full extent of the law under the provisions of those ordinances, codes or regulations in effect at the time the violation was committed.
SECTION 14. SEVERABILITY
If any section, clause, provision or portion of this Ordinance shall be held invalid or unconstitutional by any Court of competent jurisdiction, such decision shall not affect any other section, clause, provision or portion of this Ordinance so long as it remains legally enforceable without the invalid portion. The City reserves the right to amend this Ordinance or any portion thereof from time to time as it shall deem advisable in the best interest of the promotion of the purposes and intent of this Ordinance, and the effective administration thereof.
SECTION 15. EFFECTIVE DATE
This Ordinance shall become effective immediately upon approval. This Ordinance repeals Ordinance number 2004-11 and replaces same in its entirety.
SECTION 16.
This Ordinance is enacted by the Council of the City of Hazleton under the authority of the Act of Legislature, April 13, 1972, Act No. 62, known as the “Home Rule Charter and Optional Plans Law”, and all other laws enforceable the State of Pennsylvania.
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