Case 3:08-cv-01551-B Document 177 Filed 03/24/2010 Page 1 of 40

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

VILLAS AT PARKSIDE PARTNERS d/b/a VILLAS AT PARKSIDE, et al.,
and
VALENTIN REYES, et al.,
Plaintiffs,
v.
THE CITY OF FARMERS BRANCH, TEXAS,
Defendant.

§ § § § § § CIVIL ACTION NO. 3:08-CV-1551-B § § (consolidated with NO. 3:03-CV-1615) § § § § § § §

MEMORANDUM OPINION AND ORDER

In this lawsuit, two groups of plaintiffs bring pre-enforcement constitutional challenges to an

ordinance enacted by the City of Farmers Branch, Texas (“City”) that establishes a residential

licensing scheme under which the City would revoke the authorization to occupy rental housing for

individuals that the federal government determined to be “not lawfully present” in the United States.

Both of the plaintiff groups and the defendant City move for summary judgment. Plaintiffs move for

partial summary judgment and seek a permanent injunction on the grounds that the ordinance is

invalid pursuant to the Supremacy Clause of Article VI of the Constitution, and that it violates the

Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution.

Defendant City moves for summary judgment on the grounds that the plaintiffs lack standing to

challenge the ordinance, and that the ordinance is a valid and constitutional exercise of municipal

authority. Because each motion depends on the same factual background and resolution of common

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questions of law, the Court will consider them together. Before the Court are (1) Reyes Plaintiffs’ motion for partial summary judgment (doc. 92), (2) Defendant City’s motion for summary judgment (doc. 93), and (3) Villas Plaintiffs’ motion for partial summary judgment (doc. 96). Upon consideration of the motions and evidence in support, together with arguments, filings and objections of counsel, the Court finds, as a matter of law, that the landlord and tenant plaintiffs have established standing to challenge the ordinance, and that the ordinance is invalid under the Supremacy Clause. Accordingly, the Court GRANTS in part and DENIES in part each motion as fully described below.
I. FACTUAL AND PROCEDURAL BACKGROUND The City of Farmers Branch is a home rule municipality in Dallas County, Texas located approximately fifteen miles northwest of Dallas, Texas. On January 22, 2008, the City adopted Ordinance 29521 (the “Ordinance”), which conditions residence in rental housing within the City on obtaining a residential occupancy license issued by the City’s building inspector. The Ordinance declares that the residential occupancy licenses are the type of license or local public benefit for which aliens not lawfully present in the United States are ineligible. (Ord. 2952, Preamble). While the building inspector is required to issue a residential occupancy license to all who complete the application and pay the required five dollar fee, he is required – for any applicant who does not declare himself or herself to be a citizen or national of the United States – to verify with the federal
1 The Ordinance is titled “An ordinance providing for residential occupancy licenses; providing for verification of aliens’ immigration status with the federal government consistent with federal law; creating offenses; providing for enforcement; providing for judicial review; providing a penalty; providing a severability clause; and providing an effective date.” (Doc. 1, Exhibit 1).
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government pursuant to 8 U.S.C. § 1373(c) “whether the occupant is an alien lawfully present in the United States.” (Ord. 2952(D)(1)). The Ordinance further sets forth procedures for the building inspector to revoke the residential occupancy license for any alien the federal government determines to be not lawfully present in the United States.2
A. The City’s Prior Enactments Ordinance 2952 is the third enactment by the City touching on rental property and illegal immigration, and it follows previous efforts by the City Council to discourage illegal immigration and mitigate its perceived costs. Plaintiffs contend that the context of Ordinance 2952's enactment demonstrates the City’s intent to regulate immigration, and argue that statements made by city officials during the series of enactments demonstrate an intent to discriminate against Latinos in Farmers Branch. (See doc. 102, pp. 3-5, 41-45; doc. 97, pp. 3-4). The City contends instead that this background evidences an intent to support the objectives of federal immigration law and to return the rule of law to a market traditionally regulated by the states in a way that addresses the secondary effects of illegal immigration. (doc. 114, pp. 31, 36). The Court includes those facts that are either undisputed or a matter of public record. The series of enactments leading to Ordinance 2952 began with Resolution 2006-099, adopted by the City Council on September 5, 2006. Resolution 2006-099 expressed concern and frustration at the United States government’s “failing in the enforcement of the Immigration Act as it relates to the influx of illegal aliens,” encouraged the federal government to enforce the immigration laws, and noted that the City was “reviewing the role the City can take to support and
2 The timeline and procedures for enforcement of the Ordinance and the penalties for its violation are more fully discussed in Part I(B) of this Memorandum Opinion.
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enforce the United States immigration laws” with an aim towards taking “whatever steps it legally can to respond to the legitimate concerns of [its] citizens.” (Pl. App. pp. 46-49).
On November 13, 2006, the City adopted Ordinance 2892, its first attempt to regulate the rental housing market in Farmers Branch with reference to federal immigration standards. Ordinance 2892 directed that “the owner and/or property manager shall require as a prerequisite to entering into any lease or rental arrangement . . . the submission of evidence of citizenship or eligible immigration status for each tenant family.” (doc. 99, Pl.’s Appx. 0041-0043). That ordinance incorporated the classification system set forth in HUD regulations that govern eligibility of noncitizens for housing assistance and required applicants to submit a citizenship or immigration status certification based on the distinctions and definitions provided in 24 CFR 5. (Id.). Also on November 13, 2006, the City Council adopted Resolution 2006-130, which declared English to be the official language of the City of Farmers Branch. (Id. at pp. 0045-0048).
Implementation of Ordinance 2892 was enjoined in state court on January 9, 2007 for concerns related to the Texas Open Meetings Act. On January 22, 2007, the City Council adopted Ordinance 2903, which repealed Ordinance 2892 but proposed substantially similar requirements for residential rental in the City (also dependent upon HUD regulations), and called for an election to allow the voters of Farmers Branch to vote for or against the measure. (Id. at pp. 0057-0065). On May 12, 2007, Farmers Branch voters overwhelmingly approved Ordinance 2903 by a margin of 4,058 “for” and 1,941 “against,” and it was to go in effect on May 22, 2007. A group of plaintiffs that included both owners of apartment complexes and residential tenants challenged the constitutionality of Ordinance 2903 in this court on claims broadly similar to those advanced in the present case. Judge Lindsay of this Court temporarily enjoined the enforcement of Ordinance 2903
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on May 21, 2007.3 After discovery and hearing, the Court permanently enjoined its enforcement on

May 28, 2008, finding that Ordinance 2903 was a “regulation of immigration” invalidated by the

Supremacy Clause and that it violated the Due Process clause of the Fourteenth Amendment

because it was void for vagueness. The Court’s reasoning and a description of ordinance 2903 can

be found in Judge Lindsay’s published opinion, Villas at Parkside Partners, et al. v. Farmers Branch, 577

F.Supp.2d 858, 871, 876 (N.D. Tex. 2008).

B. Ordinance 2952

On January 22, 2008 and in attempt to address concerns raised in the litigation over

Ordinance 2903, the City adopted the measure now before the Court, Ordinance 2952.4 While still

establishing a residential occupancy licensing scheme, Ordinance 2952 no longer depends on the

HUD regulations relied upon by its predecessors, and it expressly reserves the determination of an

applicant’s lawful presence or immigration status to the federal government instead of deputizing

landlords or local officials. Ordinance 2952 was to go in effect on September 13, 2008. The

residential licensing scheme set forth in Ordinance 2952 amends Chapter 26 of the Code of

Ordinances of Farmers Branch that regulates single-family rental housing in the City as more fully

described below.

i.

Ordinance 2952's Reliance on Federal Law

The Ordinance is tethered to federal immigration law in several key respects, including its

3 Case No. 3:06-CV-02371-L, doc. 81.
4 The Ordinance was adopted during the course of the previous action before Judge Lindsay. The City requested that the Court consider Ordinance 2952 in its decision in that lawsuit, but the Court declined, noting the late stage of the proceedings and that “there are substantial differences” between the two Ordinances. (doc. 22).
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definitions and its source of authority to create what it characterizes to be local benefits that may be properly restricted to those lawfully present in the United States. The Preamble to Ordinance 2952 begins with reference to 8 U.S.C. 1101, et seq., noting that the statute, together with other federal authority, sets forth the requirements for an alien to be “lawfully present” in the United States. (Ord. 2952, Preamble). On the premise that those not lawfully present in the United States are, as a matter of law, not lawfully present in the City of Farmers Branch, the Ordinance attempts “to adopt regulations touching on aliens that are consistent with pertinent federal laws.” (Id.). The preamble to the Ordinance cites 8 U.S.C. 1621, et seq. as the source of authority to restrict the eligibility of certain aliens not lawfully present in the United States for “certain State or local public benefits, including licenses” such as the residential occupancy licenses created through the Ordinance’s operative clauses. (Id.).
Also pointing to the anti-harboring provisions of federal law, the Ordinance states that “Title 8, United States Code, Section 1324(a)(1)(A), prohibits the harboring of aliens not lawfully present in the United States, including, as the courts of the United States have held, the provision of residential accommodations to such aliens.” (Id.). The stated intent of the Ordinance is “to enact regulations that are harmonious with federal immigration law and which aid in its enforcement;” the Ordinance defers to federal immigration law and declares that it is “not the intent of the City of Farmers Branch to alter, supplant, disrupt, or interfere with federal immigration law.” (Id.). Towards those ends, the Ordinance establishes a residential occupancy license scheme, operated through the City building inspector and enforced by civil and criminal penalty and enforced against both landlords and tenants. (Ord. 2952, §§ 1(C) (D); 3(C); 5).
ii. The License and Application Provisions 6

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The Ordinance requires that prior to occupying any rental unit in Farmers Branch, each occupant5 aged 18 or older must obtain a residential occupancy license. (Id. at § 1(B)(1)). Where multiple occupants seek to occupy a single rental unit, “each occupant must obtain his or her own residential occupancy license.” (Id. at § 1(B)(2)). A residential occupancy license is specific both to the occupant and the location; “[a]ny relocation to a different leased or rented dwelling unit requires a new residential occupancy license.” (Id. at § 1(B)(4)). The Ordinance applies only to tenancies commencing after the Ordinance goes into effect. (Id. at § 7).
To obtain a residential occupancy license, an applicant must pay a $5 dollar fee to the City and submit an application that includes the information listed in Section 1(B)(5), including “(a) the full legal name of the applicant; (b)mailing address of the occupant; (c) address of the single family residence for which the occupant is applying, if different from the mailing address; (d) name and business address of the lessor; (e) date of the lease or rental commencement; (f) date of birth of the occupant; (g) the occupant’s country of citizenship. . .” Applicants who are United States citizens or nationals must submit a signed declaration to that effect under penalty of perjury. (Id. at § 1(5)(h)). Applicants who are not United States citizens or nationals must provide “an identification number assigned by the federal government that the occupant believes establishes his or her lawful presence in the United States”6 or declare that he or she “does not know of any such number.” (Id.
5 Section 1(A)(3) of the Ordinance states: “‘Occupant’ means a person, age 18 or older, who resides at a single family residence. A “temporary guest” of an occupant is not an occupant for the purposes of this section.”
6 The provision provides a non-exclusive list of such numbers, stating “examples include, but are not limited to: resident alien card number, visa number, “A” number, I-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government.”
(Id. at § 1(5)(i)). 7

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at § 1(5)(i)). The City building inspector is directed to issue a residential occupancy license to every prospective occupant who pays the five dollar fee and submits a completed application; “[t]he building inspector shall not deny a residential occupancy license to any occupant who submits a completed application and pays the application fee.” (Id. at § 1(B)(6)). Though the Ordinance’s application and fee requirements apply to all prospective rental occupants, For those applicants who declared themselves to be citizens or nationals of the United States, the City takes no further action. (Id. at § 1(D)).
iv. Enforcement and Penalties Under the enforcement provisions set forth in Section 1(D) of the Ordinance, scrutiny of an alien’s entitlement to a residential occupancy license begins only after the license is issued. “Promptly after issuance of a residential occupancy license” to an alien, the building inspector is directed to “verify with the federal government whether the occupant is an alien lawfully present in the United States.” (Id. at § D(1)). The Ordinance’s enforcement provisions depend on a response from the federal government, to which the City contends it is entitled pursuant to 8 U.S.C. § 1373(c). (Id.). To aid the government in its verification of the applicant’s lawful status, the City building inspector “shall submit to the federal government the identity and status information contained on the application. . . along with any other information requested by the federal government.” (Id.). The Ordinance does not specify the method by which the City is to verify an applicant’s status with the federal government7 and instead conditions the City’s enforcement upon receipt of
7 Plaintiffs argue that neither of the mechanisms that the City described in the course of discovery – verification through the Systematic Alien Verification for Entitlements (SAVE) program and direct
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a report from the federal government that the “occupant is an alien not lawfully present in the United States.” (Id.). An inconclusive response will not trigger revocation: If the federal government is unable to “conclusively verify or ascertain the immigration status of the occupant,” The City is to “take no further action until” it receives “final verification.” (Id. at § 1(D)(3)). If the federal government reports that the occupant is not lawfully present, the building inspector is directed to send the occupant a “deficiency notice” informing the occupant of the government’s report and stating that, on or before the 60th day after that notice, he or she may obtain a correction of the government’s records by providing additional information to the City or to the federal government. (Id. at § 1(D)(2)).
After 60 days have passed, the building inspector is directed to “again make an inquiry to the federal government to “verify or ascertain the citizenship or immigration status of the occupant.” (Id. at § 1(D)(4)). If after that inquiry, the “federal government reports that the occupant is an alien who is not lawfully present in the United States,” the building inspector shall send a revocation notice to both the occupant and the lessor, which operates to revoke the occupancy license fifteen days later. (Id.). Upon revocation of an occupant’s residential occupancy license, the landlord is required to “diligently pursue such steps as may be required under the applicable law and lease provisions8 to terminate the lease or tenancy.” (Id. at § 1(C)(7)). The building inspector is directed
inquiry to the Dallas Office of ICE – provide a definitive conclusion regarding an applicants lawful presence, as opposed to his or her immigration status or eligibility for certain categories of benefits. (See, e.g., doc. 97, pp. 7-8; doc. 102, pp. 13-14). The City argues that both methods of inquiry can accurately verify an applicant’s status, and that the Ordinance is structured to allow the federal government the flexibility to respond in any manner consistent with 8 U.S.C. 1373(c). (See, e.g., doc. 114, pp. 16-20).
8 The Ordinance requires landlords to include a provision in each lease incorporates the Ordinance’s requirement for a residential occupancy license. “It shall be a lessor to lease a single family residence without including in the terms of the lease a provision stating that occupancy of the premises by
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to suspend the rental license of any landlord who knowingly allows an occupant to occupy a rental unit without a valid residential occupancy license or otherwise violates Section 1(C)(7) of the Ordinance.. (Id. at § 1(D)(5-7)). Suspension of a landlord’s rental license, which may be appealed to the City Council, carries a an additional cost beyond any penalties imposed: “[d]uring the period of suspension, the landlord shall not collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any occupant or tenant in the single family residence.” (Id. at § 1(D)(6)).
Section (1)(E), entitled of the Ordinance, entitled “Judicial Review,” outlines procedures by which a landlord or occupant may challenge a deficiency notice or a revocation notice. (Id. at § 1(D)). A landlord or tenant may seek review by “filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas.” (Id. at § 1(D)(1)). The suit may challenge both the building inspector’s compliance with the Ordinance and the federal government’s determination of whether the occupant is lawfully present in the United States.9 (Id. at § 1(E)(3)). A suit filed within the fifteen day period following the issuance of a revocation letter will operate to stay revocation or eviction until the resolution of the suit. (Id. at § 1(D)(2)).
C. Procedural History
a person, age 18 or older, who does not hold a valid residential occupancy license constitutes an event of
default under the lease.” (Ordinance, § 1(C)(6)).
9 The question of whether the alien is lawfully present in the United States is to “be determined under federal law.” The reviewing court, however, is required to “take judicial notice of any verification of the citizenship or immigration status of the occupant previously provided by the federal government,” and would be “bound by any conclusive determination of immigration status by the federal government.” (Id.
at § 1(E)(4-5)). Further, the Ordinance establishes a “rebuttable presumption” that the “most recent
determination of the immigration status of an individual by the federal government” reflects the
occupant’s immigration status. (Id. at § 1(E)(5)). 10

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Two plaintiff groups,10 comprised of lessors and lessees of rental property in Farmers Branch, brought this pre-enforcement constitutional challenge to Ordinance 2952. After hearing, this Court granted Plaintiffs’ application for Temporary Restraining Order on September 12, 2008 and issued a preliminary injunction on September 22, 2008. (doc. 21; doc. 33). On June 4, 2009, the Court held a hearing on the pending motions for summary judgment.
II. SUMMARY JUDGMENT STANDARDS Summary judgment is appropriate when the pleadings and record evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Only disputes about material facts will preclude a grant of summary judgment, and “the substantive law will identify which facts are material.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The burden is on the summary judgment movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline & French Lab., 919 F.2d 301, 303 (5th Cir. 1990). Where the nonmovant bears the burden of proof at trial, the movant need not support its motion with evidence negating the non-movant’s case. Rather, the movant may satisfy its burden by pointing to the absence of evidence to support an essential element of the non-movant’s case. Id.; Little, 37 F.3d at 1075.
10 The plaintiff groups initially filed separate actions, Valentin Reyes, et al. v. The City of Farmers Branch, Civil Action No. 3:08-CV-1615-B (brought by the “Reyes Plaintiffs”), and Villas at Parkside Partners, et al., v. The City of Farmers Branch, Civil Action No 3:08-CV-1551-B (brought by the “Villas Plaintiffs”). The Court consolidated those actions on September 16, 2008. (doc. 22). The identities of the plaintiffs and the factual background related to their claims and injuries are contained in the Court’s standing analysis, Part III(A) of this Memorandum Opinion.
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Once the Movant has met its initial burden, the non-movant must show that summary judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “This burden is not satisfied with ‘some metaphysical doubt as to material facts,’ . . . by ‘conclusory allegations,’ . . . by ‘unsubstantiated assertions,’ or by only a ‘scintilla of evidence.’” Id. (quoting Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita, 475 U.S. at 587 (emphasis in original) (quoting Fed. R. Civ. P. 56(e)). The nonmoving party must show that the evidence is sufficient such that a reasonable jury could return a verdict for the non-movant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000). In determining whether a genuine issue exists for trial, the Court will view all of the evidence in the light most favorable to the non-movant. Id. at 301. The Court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
III. ANALYSIS Plaintiffs seek summary judgment and a permanent injunction on the enforcement of Ordinance 2952, arguing that the Ordinance is preempted by federal law and invalid under the Supremacy Clause and that it violates Plaintiffs’ rights to due process and equal protection of the law. (doc. 102, pp. 1-2; doc. 97, pp. 1-2). Defendant moves for summary judgment on grounds that the Ordinance is a valid exercise of municipal authority and that Plaintiffs cannot establish standing to assert their constitutional challenges. (doc. 94, pp. 1-2). Because the Court’s authority to adjudicate this matter depends on whether the Plaintiffs have established standing to assert each
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claim, the Court turns first to Defendant’s arguments challenging standing. A. Plaintiffs’ Standing to Challenge Ordinance 2952 “Standing and ripeness are prerequisites to the exercise of federal jurisdiction.” Texas
Midstream Gas Svcs., LLC v. City of Grand Prairie, 2008 WL 5000038, at *1 (N.D. Tex Nov. 25, 2008) (citations omitted); See also Miss. State Democratic Party v. Barbour, 529 F.3d 538, 544 (“Federal courts cannot consider the merits of a case unless it presents an ‘actual controversy’ as required by Art. III of the Constitution. . .”). “Standing involves constitutional limitations on federal court jurisdiction and prudential limits on its exercise.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). The doctrine of standing “requires federal courts to satisfy themselves that ‘the plaintiff has alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction.” Summers v. Earth Island Institute, 129 S.Ct. 1142, 1149 (2009) (quoting Warth, 422 U.S. at 498-99)) (emphasis in original). See also Holy Spirit Ass’n for the Unification of World Christianity v. Hodge, 582 F. Supp. 592, 595 (N.D. Tex. 1984) (requirement of a personal stake assures “that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions.”).
The “irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (U.S. 1992). “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.’” Id. Second, plaintiffs must show “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.’” Id. (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26,
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41-42)). Third, plaintiffs must show that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. “The injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is “ real, immediate, and direct.” Davis v. FEC, 128 S.Ct. 2759, 2768 (2008).
“Beyond the constitutional requirements, the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, 454 U.S. 464, 464 (1982). A plaintiff must assert his own legal rights and “cannot rest his claim to relief on the legal rights or interests of third parties.” Id. (quoting Warth 422 U.S. at 499). The Court may not adjudicate “‘abstract questions of wide public significance’ which amount to ‘generalized grievances.’” Id. Finally, the plaintiffs’ complaint must fall within “the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.” Id (quoting Ass’n of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153 (1970)). “Where a 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, 8081 (1978).
Plaintiffs, who invoked this Court’s jurisdiction, bear the burden of establishing these elements. Id. Plaintiffs must establish standing for “each type of relief sought.” Summers, 129 S.Ct. at 1149 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)). “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.”
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Lujan, 504 U.S. at 561. At the summary judgment stage, Plaintiffs “must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Id. (citing Fed. R. Civ. P. 56(e)).
The plaintiffs in this action include both tenants and landlords in Farmers Branch. The Villas Plaintiffs are made up of three partnerships that own and operate apartment complexes in Farmers Branch11 and Mary Miller Smith, a tenant in a rental apartment in Farmers Branch who is a U.S. citizen and a former member of the Farmers Branch City Council. (doc. 97, p. 2). The Reyes Plaintiffs are individuals who own or lease rental property in Farmers Branch. Valentin Reyes owns a single family home in Farmers Branch and pays his mortgage in part with money he receives from renting his home to tenants. (doc. 102, pp. 9-10). Alicia Garcia, Aide Garza, and Ginger Edwards are Latinas and U.S. Citizens who are tenants in rental apartments in Farmers Branch. (Id. at p. 10). Ms. Garcia and Ms. Garza occupy their apartments on month-to-month leases. (Id.). Jose Arias, also a tenant in a residential rental apartment complex in Farmers Branch, is Latino and is not a U.S. Citizen, though he has an application for legal permanent resident status pending with the United States Citizenship and Immigration Services (“USCIS”). (Id.).
The City argues that neither the landlord plaintiffs nor the tenant plaintiffs have satisfied constitutional or prudential standing requirements. (doc. 94, pp. 5-14). The City’s position focuses first on the “injury in fact” prong, arguing that Plaintiffs’ asserted injuries are legally insufficient and
11 These partnerships are 1) Villas at Parkside Partners (“Villas”), which owns and operates a 207-unit apartment complex located at 4000 Park Side Center Blvd, 2) Lakeview at Parkside Parnters (“Lakeview”), which owns and operates a 573-unit apartment complex located at 3950 and 3990 Spring Valley Rd., and 3) Chateau Ritz Partners (“Chateau”), which owns and operates a 161-unit apartment complex located at 4040 Spring Valley Rd. (doc. 1, pp. 3-4; doc. 97, pp. 2-3).
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that they are hypothetical or conjectural rather than “actual and imminent.” (Id. at pp. 7-9).

i.

Tenant Plaintiffs’ Standing

The City contends that the tenant plaintiffs have not established a sufficient injury-in-fact

and that their claimed injuries depend on speculation. First, the City argues that tenants who are

U.S. citizens do not stand in jeopardy of being denied a residential occupancy license, because the

Ordinance requires the building inspector to “immediately issue” a license without scrutinizing an

applicant’s assertion of citizenship. (Id. at p. 7). The City dismisses Plaintiffs’ concerns over

uncertainty in the terms of the Ordinance, such as “temporary guest,” on the grounds that the

Ordinance does not penalize tenants who reside with unlicensed individuals, as opposed to landlords

who rent to them. (Id.). The City argues that the only tenant plaintiff who is not a U.S. citizen, Jose

Arias, cannot assert an “injury in fact” because it believes him to be “an alien lawfully present in the

United States”12 who would not be denied a residential occupancy license under scheme established

by the Ordinance. (Id. at p. 8).

The City further contends that the tenant plaintiffs’ claimed injuries are not sufficiently

imminent to confer standing because they will not be required to apply for residential occupancy

licenses unless and until they move and establish a new lease that commences after the Ordinance

becomes effective. (Id. at p. 9; doc. 149, p. 1). The City argues that the tenant plaintiffs’ intentions

to continue renting in Farmers Branch or to have visitors for extended periods are not the sort of

12 The City bases its conclusion on evidence that Mr. Arias has a Social Security Number and has an I-495 Application to Register Permanent Residence or Adjust Status pending with the USCIS. (Id. at p. 8). Though the USCIS has not yet made a determination on Mr. Arias’s application, the City contends that it has asserted “control” over the application such that he would be “considered to be lawfully in the United States during the pendency of that application.” (Id. at p. 9).
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“firm intentions” that satisfy constitutional standing requirements. (doc. 94, p. 9; doc. 149, pp. 3-4). The City also challenges the causal connection between Mr. Arias’s injury and enforcement of the Ordinance, arguing that any injury depends on the independent action of the federal government, which must make a determination regarding his status before the City could revoke his residential occupancy license. (Id.).
Plaintiffs respond that the Ordinance directly regulates their behavior, imposes concrete costs, and threatens repetitive penalties such that their injuries satisfy the requirements of standing. (doc. 111, pp. 22-26; doc. 117, pp. 5-7; doc. 163, pp. 1-5). The U.S. Citizen tenants contend that even if they would not be denied a residential occupancy license, they would nonetheless be required to apply, pay a fee, and “register” under the regime. (doc. 117, p. 7). Each tenant plaintiff has testified that he or she intends to continue to reside in rental property in Farmers Branch after the Ordinance would become effective and that they would be required to obtain a residential occupancy permit to renew their leases or move within the city. Plaintiffs Garcia and Garza also contend that they reside in rental units pursuant to month-to-month tenancies, making the application and payment provisions potentially frequently recurring injuries. (doc. 111, p. 22). The tenant plaintiffs further argue that the Ordinance, despite the City’s claims to the contrary, will subject them to “criminal liability” and “fines of up to $500 per day” if they allow a visitor to stay with them beyond what the Ordinance permits, but does not define, in its “temporary guest” provision. (Id. at p. 23).13 Even absent criminal sanctions, Plaintiffs argue that the Ordinance requires that their leases be
13 The tenant plaintiffs each argue that they do not understand the term “temporary guest,” and that they fear having guests stay with them as a result. They point to testimony that they routinely have guests stay with them for various lengths of time that may potentially violate the Ordinance. (doc. 163, p. 2).
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modified to track the Ordinance’s provisions, and that violation of those provisions would constitute default under the lease. (Id.; doc. 117, p. 7). Plaintiff Jose Arias additionally contends that enforcement of the Ordinance would create a risk that the City would conclude that he was not lawfully present14 despite his adjustment application with the USCIS. (Id.).
The Court finds that the tenant plaintiffs have satisfied their burden and established standing in this summary judgment context to assert their claims under the Supremacy Clause and those other claims rooted in their own – as opposed to third parties’ – burdens and potential liability under the Ordinance. “When the suit is one challenging the legality of government action or 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.” Lujan, 504 U.S. at 561. It is undisputed that Ordinance 2952 is directed to tenants in rental property in Farmers Branch, requiring action on their part and conditioning lawful occupancy upon compliance with its terms. The tenant plaintiffs are in a fundamentally different legal position than were the plaintiffs in Lujan or Summers, who challenged the application of regulations to other parties in far-flung locations that could only speculatively affect them. See Summers, 129 S.Ct. at 1149 (“[t]he regulations under challenge here neither require nor forbid any action on the part of respondents.”). Because they are the objects of the Ordinance’s requirements, Plaintiffs have provided evidence of sufficient harm to their own
14 Mr. Arias argues that the City’s witness testified variously that he was lawfully present and that he was not lawfully present, making the confusion more than a hypothetical fear. (doc. 111, p. 23). The City argues that it believes Mr. Arias to be lawfully present and that his claimed injury is dependent upon the speculation that the City would find otherwise when enforcing the Ordinance. (doc. 94, p. 9; doc. 149, pp. 4-5). The Court will need not resolve the ultimate question of Mr. Arias’s status to determine the threshold question of standing. Texas Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir. 2006).
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financial and property interests, as well as to those interests protected by the Supremacy Clause, to establish the required “injury in fact.”
The injuries alleged by the tenant plaintiffs are sufficiently concrete, actual, and imminent to satisfy the injury-in-fact prong despite the pre-enforcement nature of this suit15 and the intervening steps that must occur before a determination is made regarding an applicant’s status under the Ordinance. Where the “impact of the regulation is direct and immediate and [Plaintiffs] allege an actual, well-founded fear that the law will be enforced against them,” the standing requirements are satisfied. Gray v. City of Valley Park, 567 F.3d 976, 984 (8th Cir. 2009). Plaintiffs’ injuries are not rendered speculative or conjectural simply because a fine or license revocation can only occur following a series of intermediate steps; upon enforcement, a resident will be immediately obliged to comply with the Ordinance. As a result, their injuries are “fairly traceable” to the planned enforcement. See Am. Forest & paper Ass’n v. EPA, 137 F.3d 291, 296-97 (5th Cir. 1998) (“Permit holders’ imminent need to comply, coupled with EPA’s frank announcement of its intentions, belies the agency’s claim that any injury is speculative.”); 520 S. Michigan Ave. Assocs. v. Devine. 433 F.3d 961, 962 (7th Cir. 2006) (“The Hotel’s use of replacement workers that may have been referred by employment agencies is enough to show that a genuine controversy exists, because it is caught between the need to comply with the state law and the desire to reduce the cost of its operations.”).
The tenant plaintiffs have also satisfied the prudential requirements of standing as a matter of law. Each tenant’s claim is grounded in the burdens and risks he or she faces as a residential
15 “Ordinarily we wait until a rule has been applied before granting review; this prudential concern loses force, however, when the question presented is purely legal.” Am. Forest & paper Ass’n v. EPA, 137 F.3d 291, 296-97 (5th Cir. 1998) (citing New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 833 F.2d 583, 587 (5th Cir. 1987)).
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tenant in Farmers Branch. Because plaintiffs may not rest their claims “on the legal rights and interests of third parties,” when considering the tenant plaintiffs’ claims, the Court will not evaluate the potential application of the Ordinance to individuals whose immigration status presents different issues16 than those presented by the parties before the Court. Valley Forge Christian Coll., 454 U.S at 464. Finally, the plaintiffs complaint falls within the zone of interest to be protected by the constitutional guarantee of the Supremacy Clause and Plaintiffs need not assert a right protected by another statute. Planned Parenthood of Houston & S.E. Texas v. Sanchez, 403 F.3d 324, 332 (5th Cir. 2005) (“in this type of action, it is the interests protected by the Supremacy Clause, not by the preempting statute, that are at issue.”).
The tenant plaintiffs have presented competent summary judgment evidence of concrete injury that is traceable to the Ordinance and that would be redressed through the relief sought. Their injuries are neither generalized nor dependent upon the interests of third parties. Though the City disputes the legal implications of the asserted injuries, the Court need not resolve disputed issues of fact or make credibility determinations to resolve the standing question as a matter of law. Accordingly, The Court DENIES the City’s motion for summary judgment on the grounds that the tenant plaintiffs lack standing.
ii. Landlord Plaintiffs’ Standing The City also challenges the ability of the remaining plaintiffs, all landlords in Farmers Branch, to establish standing. Characterizing the landlord plaintiffs’ alleged injuries as “cost of
16 For instance, the Court need not resolve how the Ordinance may treat an alien with Temporary Protected Status, as no plaintiff claims to be in that position. Plaintiffs’ claims can be fully evaluated without resort to hypothetical cases; Plaintiffs themselves have presented competent and undisputed summary judgment evidence of their own injury.
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compliance” and “inconvenience,” the City argues that the potential injury constitutes only de minimus injury insufficient to satisfy the constitutional requirement for actual injury. (doc. 94, p. 11). The City further argues that Plaintiff Reyes’s asserted injury is conjectural because any concern that the Ordinance would jeopardize his ability to rent to potential tenants in the future could only be realized after his current tenants left. (Id. at p. 12). More broadly, the City argues that none of the landlord plaintiffs “alleges that he has ever leased to an alien who is not lawfully present in the United States, or that he is likely to do so in the future,” such that the penalties set forth in the Ordinance would threaten their operation. (Id. at p. 13). Finally, the City contends that the landlord plaintiffs do not meet the prudential standing requirements because landlords are not “within the zone of interest protected by federal immigration law.” (Id.).
The landlord plaintiffs argue that the enforcement of the Ordinance would directly lead to substantial “financial and legal burdens” that satisfy the standing requirements. (doc. 117, p. 5). They contend that the Ordinance would subject them and their tenants to repetitive fines and penalties and may lead to suspension of the their business license and ability to collect rent from any tenants. (Id.). Further, the landlord plaintiffs argue that, even absent enforcement, the Ordinance would cause competitive harm to their business on account of real or perceived delays and fees associated with the application process. (Id.).
The Court agrees that the landlord plaintiffs have provided evidence of harm sufficient to establish their standing to assert their claims grounded in the Supremacy Clause and the alleged vagueness of the Ordinance. There is no dispute that the penalties, including potential revocation of a landlord’s business license, are directed to those in the landlord plaintiff’s position. Plaintiffs have demonstrated, through competent summary judgment evidence, “a realistic danger of
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sustaining a direct injury as a result of the [ordinance’s] operation or enforcement.” Pennell v. City of San Jose, 485 U.S. 1, 8 (1988) (quoting Babbit v. Farm Workers, 442 U.S. 289, 298 (1979)). Plaintiffs presented evidence that enforcement of the Ordinance would add costs beyond the minor administrative burden of providing notice and receiving the required information, including evidence that the larger complexes would need to hire additional staff to manage the new requirements and one tenant’s estimation of a 30% loss in business to other communities not affected by the Ordinance. (doc. 98, pp. 13-16). The Court need not resolve disputes over the precise measure of harm to find that the landlord tenants have satisfied their burden to show an injury-in-fact, as the “[r]egulation’s validity could be assessed without knowing the precise means and expense of compliance.” Devine, 533 F.3d at 963 (citing Duke Power Co. v. Carolina Envtl. Study Group, Inc., 538 U.S. 59 (1978)); see also Chamber of Commerce v. Edmondson, 2010 WL 354353 (10th Cir. Feb. 2, 2010) (finding standing of an organization whose members had adduced evidence of prospective “economic injuries in the form of implementation and training expenses” and the cost of noncompliance.).
The landlord plaintiffs’ injuries are grounded in evidence that each plaintiff provides rental property to tenants whose immigration status they do not know and the projected impact that enforcement would have on their ability to do business in the future. That the plaintiffs have not yet been subject to those costs or penalties does not defeat their standing to assert a pre-enforcement challenge. Id. (“Courts frequently engage in pre-enforcement review based on the potential costs that compliance (or bearing a penalty) causes.”).
Like the tenant plaintiffs, the landlord plaintiffs have satisfied the prudential requirements of standing to assert their preemption and vagueness claims, because those claims are grounded in
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Plaintiffs’ challenge to the application of the Ordinance to them and are based upon evidence of their own injuries. Sanchez, 403 F.3d at 432. The plaintiffs in this action do not assert claims based on generalized or ideological grievances of others; rather they point to concrete injuries to their own interests. Based on undisputed and admissible evidence, the Court may conclude as a matter of law that landlord plaintiffs have established standing to assert those claims. As a result, the landlord plaintiffs have met their burden of showing that summary judgment for the City is inappropriate. Little, 37 F.3d at 1075. The landlord plaintiffs have not, however, established eligibility to assert the equal protection or other challenges that depend on injury to third parties. To assert a claim on behalf of third parties, a plaintiff must show “(1) the litigant suffered an injury in fact that gave him a sufficiently concrete interest in the outcome of the issue in dispute; (2) the litigant has a close relation to the third party; and (3) there ‘must exist some hindrance to the third party’s ability to protect his or her own interests.’” Bonds v. Tandy, 457 F.3d 409, 416 n. 11 (5th Cir. 2006) (quoting Powers v. Ohio, 499 U.S. 400 (1991)). Plaintiffs have not provided evidence of a “genuine obstacle” to such parties asserting their own rights. Id. The Court finds that the injuries resulting directly from the planned enforcement of the Ordinance is sufficient to confer standing. See Gray v. City of Valley Park, 567 F.3d 976, 984-85 (8th Cir. 2009) (“assuming for the purposes standing that the City would enforce violations of the law in question because the City vigorously defended the ordinance and never suggested that it would refrain from enforcement.”). As a result, The Court GRANTS in part and DENIES in part the City’s motion for summary judgment on the grounds that the landlord plaintiffs lack standing.
B. Preemption of Ordinance 2952 Plaintiffs’ first substantive challenge to Ordinance 2592 is rooted in the Supremacy Clause
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and federal preemption. (doc. 102, p. 14; doc. 97, p. 12). The Supremacy Clause of the Constitution states that “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . .” U.S Const., Art VI, cl. 2. “A fundamental principle of the Constitution is that Congress has the power to preempt state law,” and federal preemption may be express or implied. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (citations omitted). Preemption is “compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152-53 (1982). Where express or implied federal preemption occurs, the Supremacy Clause invalidates local regulations that “interfere with or are contrary to” federal law. Gibbons v. Ogden, 22 U.S. 1, 82 (1824); see also Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108 (“any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to a federal law, must yield.”).
Arguing that the Ordinance creates classifications and procedures that are inconsistent with federal law, Plaintiffs contend that it is an impermissible “regulation of immigration,” and that it is preempted under the doctrines of field and conflict preemption, as more fully discussed below. (doc. 102, p. 14; doc. 97, p. 15). In contrast, the City argues that the Ordinance is not preempted because it merely adopts federal standards, and contends that a presumption against preemption should protect the Ordinance from pre-enforcement invalidation. (doc. 114, pp. 2-3).
The parties present starkly differing characterizations of the Ordinance: Plaintiffs argue that the Ordinance is the latest in a series of attempts by the City to regulate the presence of illegal aliens; the City counters that the Ordinance, though touching on immigration, is instead a regulation of rental housing. The Court’s analysis turns not on the characterizations by the parties,
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rather on analysis of the language of the Ordinance in light of the governing legal standards. The Court finds that the Ordinance is sufficiently dependent upon federal immigration law17 that a presumption against preemption does not apply. A presumption against preemption applies where Congress attempts to regulate “in a field which the States have traditionally occupied.” U.S. v. Locke, 529 U.S. 89, 108 (2000). On the contrary, where a local measure regulates in an “area where there has been a history of significant federal power . . . [n]o artificial presumption aids” the Court in determining the appropriate scope of a local regulation. Id. Nevertheless, the Supreme Court has never held that any local enactment “which in any way deals with aliens” must be per se preempted. De Canas v. Bica, 424 U.S. 351, 355 (1976). The Court must therefore, unaided by any presumption,18 evaluate whether Ordinance 2952 may be enforced consistent with the existing federal statutory and regulatory framework. Plaintiffs may bring a facial19 preemption challenge where, as here, the Court can resolve the issue by evaluating federal law and the challenged local
17 See supra Section I(B)(i) and Ord. at seventh “whereas” clause (“it is the intent of the City of Farmers Branch to enact regulations that are harmonious with federal immigration law and which aid in its enforcement.”). The Preamble to the Ordinance unambiguously references federal immigration law and an intent to operate within the federal immigration framework. The Ordinance arose, in part, from frustration over federal handling of immigration. See Res. 2006-099, supra.
18 The court in Lozano v. City of Hazleton reached the same conclusion. 496 F.Supp. 2d 477, 581 n. 41 (M.D. Pa. 2007)(“Immigration is an area of law where there is a history of significant federal presence and where the States have not traditionally occupied the field. . . Therefore, we do not apply the presumption against preemption.”) See also Chicanos por la Causa, Inc. v. Napolitano, 558 F.3d 856, 864 (9th Cir. 2009) (noting “conversely, we do not assume non-preemption ‘when the State regulates an area where there has been a history of significant federal presence.”).
19 The City argues that the standard set forth in United States v. Salerno, 481 U.S. 739, 745 (1987) governs all facial challenges. (doc. 114, p. 1-3). That case noted 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.” 481 U.S. at 745. While Plaintiffs dispute the applicability of Salerno, the Court finds that for purposes of the preemption challenge, that standard is met because Plaintiffs challenges the City’s very authority to enact the Ordinance and contend the Ordinance is preempted all its applications.
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regulation, together with the relevant legal authority. New Orleans Pub. Serv., Inc. v. Council of City

of New Orleans, 911 F.2d 993, 998 (5th Cir. 1990).

The governing standard for application of the federal preemption doctrine in cases

implicating immigration is set forth in De Canas v. Bica, 424 U.S. 351 (1976). In its decision

evaluating the City’s prior enactment, this Court concluded that De Canas created “three tests for

determining whether a state immigration law or regulation is preempted by federal law:

Under the first test, the Court must determine whether a state statute is a regulation of immigration. Since the power to regulate immigration is unquestionably exclusively a federal power, any state statue which regulates immigration is constitutionally prescribed.

Under the second test, even if the state law is not an impermissible regulation of immigration, it may still be preempted if there is a showing that it was the clear and manifest purpose of Congress to effect a complete ouster of state power – including state power to promulgate laws not in conflict with the federal laws with respect to the subject matter which the statute attempts to regulate. In other words, a statute is preempted where Congress intended to occupy the field which the statute attempts to regulate.

Under the third test, a state law is preempted if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Stated differently, a statute is preempted under the third test if it conflicts with federal law making compliance with both state and federal law impossible.

Villas at Parkside Partners v. City of Farmers Branch, 577 F.Supp.2d 858, 866-867 (N.D. Tex. 2008)

(citations omitted). The latter two tests are forms of implied preemption. If any of the three tests

are satisfied, the local regulation must yield to federal law. Id.

i.

Preemption as “Regulation of Immigration”

“Power to regulate immigration is unquestionably exclusively a federal power.” De Canas,

424 U.S. at 354. Federal supremacy is rooted in the Constitution, which grants Congress authority

to “establish an uniform Rule of Naturalization.” U.S. Const. art. 1 § 8, cl 4. By longstanding rule,

because the regulation of immigration is “a power affecting international relations,” it “is to be

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regulated by treaty or by act of Congress.” Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893). The Supreme Court has “long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders,” Toll v. Moreno, 458 U.S. 1, 10 (1982), and it is well settled that “the authority to control immigration is vested solely in the Federal government.” Traux v. Raich, 239 U.S. 33, 421 (1915). Moreover, “the States enjoy no power with respect to the classification of aliens,” a power that is “committed to the political branches of the Federal Government.” Plyler v. Doe, 457 U.S. 202, 225 (1982) (quoting Hines v. Davidowitz, 312 U.S. 52, 61 (1941); Matthews v. Diaz, 426 U.S. 67, 81 (1976)). Though the federal government’s exclusive authority undoubtedly encompasses the “power to exclude or expel aliens,” the parties dispute the extent of preemptive force of federal law beyond that power, and offer differing views regarding whether the Ordinance creates classifications of aliens or otherwise constitutes a regulation of immigration.
The Supreme Court set forth the bounds of the term “regulation of immigration” in De Canas, noting 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 into the country, and the conditions under which a legal entrant may remain.” 424 U.S. at 355. De Canas does not require invalidation of all enactments “which in any way deal[] with aliens” and a local regulation is not a preempted regulation of immigration simply because “it has some purely speculative and indirect impact on immigration.” Id. In De Canas, the Supreme Court upheld a California statute that “adopt[ed] federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country.” Id. Federal preemption is instead is reserved for local enactments that directly impact
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immigration or impermissibly classify aliens. The City argues that the Ordinance is not a regulation of immigration because it adopted
federal standards that it contends resolve whether an individual is “lawfully present” or “not lawfully present.” The City further contends that its decisions to issue deficiency notices or penalties under the Ordinance are wholly dependent upon immigration information received from the federal government.20 (doc. 114, pp. 4-5). The City argues that the Ordinance does not create or modify any classifications for aliens, but rather relies on existing categories created by federal law. (Id. at 11-15). Specifically, the City argues that the term “lawfully present” includes a variety of immigration statuses that can be ascertained through the SAVE database or inquiry with the ICE District Office. (Id., p. 14). Plaintiffs argue to the contrary that the Ordinance does not rely on “appropriate standards for the treatment of an alien subclass,” and instead creates its own classification of aliens not eligible for rental housing. (doc. 137, p. 7; doc. 102, p. 14). Plaintiffs further contend that the Ordinance’s standards do not correspond to an established federal immigration status, and instead bypasses the “complex system of federal classification and discretion” governing removal. (doc. 102, pp. 17-20).
Arguing that De Canas narrowly defined what constitutes a “regulation of immigration,” the City contends that the Ordinance does not attempt to determine who should or should not be admitted into the country or impose any “condition under which aliens may remain in the United States.” (Id.). Instead, the City argues that the Ordinance merely denies rental housing in Farmers
20 The City contends that the Ordinance prohibits local, as opposed to federal determination of an alien’s status: “The building inspector shall not attempt to make an independent determination of any occupant’s lawful or unlawful presence in the United States.” (Id. at p. 10; Ord. §§ 26-79(D)(3), 26-119 (D)(3)).
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Branch to those unlawfully present in the United States, which the City argues only has an indirect impact on immigration and which imposes only a minor inconvenience. (Id.). Plaintiffs contend that the Ordinance imposes an additional condition not found in federal law upon those who wish to remain in Farmers Branch. (doc. 136, p. 3).
Pointing to authority under 8 U.S.C. § 1621, the City contends its licensing scheme is more appropriately characterized as a provision of a local benefit. (Id. at p. 6). The City asserts that the Ordinance imposes conditions not on immigration or remaining in the country, but instead only on residence in rental housing in Farmers Branch, which it contends may be appropriately considered a public benefit. (Id.). Arguing that the residential occupancy licenses are analogous to driver’s licenses, the City insists that its inquiries to the federal government, pursuant to 8 U.S.C. § 1373(c) are intended to “provide proof of eligibility” for “state and local public benefits.” (Id.; see, also id. at pp. 8, 18 (discussing use of SAVE database to verify eligibility for driver’s licenses). While admitting that the Ordinance “might have direct effect of encouraging the illegal alien to reside outside of Farmers Branch,” the City argues that any impact on the alien’s decision to remain in the United States would be speculative. (Id. at 11). Plaintiffs argue that the Ordinance does not regulate any recognized “public benefit,” and instead would locally deny “entrance and abode” to those whose lawful presence cannot be confirmed. (doc. 102, pp. 19, 29). Plaintiffs further argue that the Ordinance allows the City to use a query response21 from the federal government as a substitute for
21 Plaintiffs also contend that the federal government’s responses, whether communicated through SAVE or the ICE District Office would not conclusively determine whether an individual was “lawfully present in the United States,” as required by the Ordinance. (doc. 102, pp. 23-25). See also 65 Fed. Reg. 58,301 (“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.”). The City argues to the contrary that the federal government’s response would enable the building inspector, without making any
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formal removal proceedings to remove certain aliens from Farmers Branch (doc. 102, p. 23; doc. 97, p. 13).
The Court concludes that the Ordinance, though grounded in federal immigration classifications, is an invalid regulation of immigration because it uses those classifications for purposes not authorized or contemplated by federal law. Though the Ordinance’s requirements do not solely apply to aliens or certain classes of aliens, they impose additional local restrictions based on federal immigration classifications on those who wish to remain in Farmers Branch. Local regulation that conditions the ability to enter private contract for shelter on federal immigration status is of a fundamentally different nature than the sorts of restrictions on employment or public benefits that have been found not to be preempted regulations of immigration.22 Restrictions on residence directly impact immigration in a way that restrictions on employment or public benefits do not. The City may “neither add to nor take from the conditions imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.” De Canas, 424 U.S. at 358 (quoting Takahashi v. Fish & Game Comm’n, 334 U.S. 10, 419 (1948)). The City may not impose “an ‘auxiliary burden upon the entrance or residence of aliens’ that was never contemplated by Congress.” Toll, 458 U.,S. at 12 (quoting Graham v. Richardson, 403 U.S. 365, 379 (1971)).
In light of the broad federal “authority to control immigration – to admit or exclude aliens,”
discretionary decisions, to reach the required conclusion. (doc. 114, pp. 16-18). 22 See Chicanos por la Causa, 558 F.3d at 866 (ordinance that conditions business licenses on
compliance with federal employment regulations not preempted); Equal Access Educ. v. Merten, 305 F.Supp.2d 585, 602-03 (E.D. Va. 2004) (ordinance denying admission to state universities was not preempted). In contrast, no federal court has approved a local measure conditioning residence on federal immigration status.
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a local regulation is not saved simply because it adopt some federal standard, whether or not that federal standard was designed to classify aliens for the purpose advanced by the local ordinance. Traux v. Raich, 239 U.S. 33, 42 (1915). The federal government, which has broad authority regarding the classification of aliens, has created a variety of classifications for different purposes, including, for example, admission and removal, provision of public benefits, and eligibility for employment.23 The City, in contrast, has no such authority. Hines, 312 U.S. at 65; Matthews, The context and limits of the federal scheme provides the limit to local action based on that federal classification. “But if the Federal Government has by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass, the States may, of course, follow the federal direction.” Plyler v. Doe, 457 U.S. 202, 219 (1981) (citing De Canas, 424 U.S. 351)24. The City has provided no federal direction or source of authority for application of an immigration status report provided pursuant to 8 U.S.C. § 1373(c) may be applied in the context of licensing access to all rental housing in a municipality. Instead, the City building inspector would deduce from the federal government’s report which alien, classified for a different purpose, may be denied housing in Farmers Branch. It is undisputed that the City’s actions related to residential occupancy licenses depend directly on responses given, in some form or another, by the federal government based on
23 See, e.g., 8 U.S.C. § 1229a (admission and removal); 8 U.S.C. § 1641 (qualified alien for purposes of public benefit); 8 U.S.C. § 1324a (qualified alien for purposes of employment).
24 Though Traux, 239 U.S. at 42 and Takahashi, 334 U.S. at 420 both involved local restrictions on aliens who were legally in the United States, nothing in those opinions limits federal supremacy regarding classification of aliens for particular purposes, or otherwise provides authority for local classification of aliens. Further, cases involving classifications of aliens for employment purposes, based on federal classifications and verification schemes for that purpose are not analogous to the case before the Court. See Villas, 577 F.Supp.2d at 865 (discussing Gray v. Valley Park, 2008 WL 294294 (E.D. Mo. Jan. 31, 2008) and Arizona Contractors Ass’n, Inc. v. Candelaria, 534 F.Supp.2d 1036 (D. Ariz. 2008)).
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immigration classifications adopted for other purposes.25 By depending on determinations made under an inapplicable federal standard, the Ordinance, as this Court has previously concluded, constitutes an improper regulation of immigration. Villas, 577 F.Supp.2d at 869. Absent authority, the City may not extend the reach of federal immigration classifications without creating an impermissible regulation of immigration.
The City’s attempt to characterize a residential occupancy license as a “public benefit” for which it may require proof of eligibility pursuant to 8 U.S.C. § 1625 does not validate its classification or avoid the conclusion that the Ordinance is a regulation of immigration. (doc. 114, p. 6). Federal law authorizes the City to limit provision of certain State and local “public benefits” defined in 8 U.S.C. § 1621 to enumerated categories of aliens described in that section. That section defines public benefits to include professional licenses, commercial licenses and a host of other forms of assistance (such as food assistance or unemployment benefits) authorized by or appropriated from funds of a State or local government. 8 U.S.C. § 1621(c)26. The statutory definition cannot, simply by virtue of the inclusion of the term “license,” be interpreted to include purely private contracts for shelter or other necessities. The federal government has not authorized or contemplated classification of aliens for that purpose, and instead allowed local discretion to limit eligibility for particular types of benefits. For similar reasons, the City’s analogy to drivers licenses is inapposite.
25 The evidentiary disputes related to the method by which the federal government would respond to the City’s inquiries are immaterial to the Court’s determination. Regardless of the form of the government’s response, the propriety of the use of federal standards to deny residential occupancy licenses may be determined as a matter of law under the governing authority interpreting De Canas. See supra, not3 21 (discussing the parties’ positions on the response by the federal government).
26 Other statutes establishing housing related benefits include 42 U.S.C. §§ 1436a(a)(3), (6) (federal housing assistance) and § 4605 (federal relocation assistance).
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(doc. 114, pp. 8-9). While a number of states condition the issuance of certain drivers licenses upon receiving verification through SAVE, this practice is expressly authorized by the REAL ID Act and federal regulations, which lists eligible statuses. 6 C.F.R. § 37.13. Neither those provisions nor 8 U.S.C. § 1621(c) support the proposition that the City may condition residence in rental housing upon a report from the federal government, and the City can point to no enabling legislation that establishes an analogous cooperative program (such as exists in the context of employment, benefits, or identification) that arguably relates to the private market for rental housing.
ii. Implied Preemption The latter two tests set forth in De Canas incorporate the principles of implied preemption, which require the displacement of local law though not expressly prohibited by federal statute. Villas, 577 F.Supp.2d at 866-67. “Even without an express provision for preemption, we have found that state law must yield to a congressional Act in at least two circumstances. When Congress intends to “occupy the field,” state law in that area is preempted. And even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute.” Crosby, 530 U.S. at 372 (citations omitted). Conflict preemption occurs where the local law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” or 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). 27 Though, as a matter of law, the Ordinance is preempted as a regulation of immigration, for purposes of completeness the Court will consider the
27 The Court will consider field and conflict preemption together. See English v. Gen’l Elec. Co., 496 U.S. 72, 79 n.5. (1990) (The concepts 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.”).
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parties’ remaining preemption arguments. Plaintiffs argue that the Ordinance both conflicts with and intrudes on fields fully occupied
by federal law, including removal of aliens, provision of benefits28, and establishment of penalties for harboring. (doc. 117, pp. 20-22; doc. 125, pp. 2-8; doc. 136, pp. 11-13). The City argues that federal law in each of these categories allows for local regulation or concurrent enforcement in accordance with federal standards. (doc. 114, pp. 27-39).
The Court concludes that the Ordinance, in addition to constituting a prohibited regulation of immigration, is preempted by the INA, which provides the exclusive means for removing aliens or adjudicating their status for that purpose. 8 U.S.C. § 1229a(a)(3). A local regulation may not – though it may share a common goal with federal law – interfere with Congress’s chosen methods. Chamber of Commerce v. Edmondson, 594 F.3d 742, 766-67 (10th Cir. 2010) (citing Crosby, 530 U.S. at 379). While the Ordinance does not purport to remove29 aliens from the United States, it regulates local residence based on federal classifications in a manner that directly affects the uniform enforcement of immigration laws. As discussed above, immigration, including “regulation of aliens
28 In light of the Court’s conclusion that the residential occupancy licenses do not satisfy the requirements of 8 U.S.C. § 1621(c), the City’s claimed source of authority, further discussion of whether other local regulation in the field of public benefits would be preempted is not necessary. See, supra, Part III(B)(i),
29 Though the Ordinance does not order people to leave the City or render their presence illegal, it does effectively deny residence by prohibiting rental or remaining in the City as a long-term guest. As described above, this regulation has more than a “speculative and indirect impact on immigration.” De Canas, 424 U.S. at 355. On the contrary, the Ordinance has a direct, though imperfect, effect on alien residence within the City. See 8 U.S.C. § 1229a(a)(1) (“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.”) and 8 U.S.C. § 1229a(a)(3) (such proceeding before the immigration judge shall be 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.”).
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within our borders,” is a field in which the federal interest is dominant. See, supra Part III(B)(i); Hines, 312 U.S at 62; Toll, 458 U.S. at 9.
The federal government has enacted a comprehensive regime for adjudicating an individual’s right to remain in the country. 8 U.S.C. 8 U.S.C. § 1101 et seq.; Plyler, 457 U.S. at 225 (“Congress has developed a complex scheme governing admission to our Nation and status within our borders.”). This complex scheme is structured, in part, to allow federal discretion and to permit in appropriate circumstances a legal adjustment in an alien’s status. Through this process, “an illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen” though he or she was initially subject to deportation. Plyler, 457 U.S. at 226. In evaluating implied preemption, “the entire scheme of the statute must of course be considered,” and a local law must yield where it “stands as an obstacle to the accomplishment and execution of the full purposes of Congress.” Crosby, 530 U.S. at 373 (quoting Hines, 312 U.S. at 67). “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.” Id. The Court need not resolve disputed facts or evaluate the status of any particular individual to determine that Ordinance stands as an obstacle to the uniform application of federal immigration law advanced through the procedures set forth in the INA.30 This is not to say that an alien’s status is indeterminable absent a determination from an
30 The City has no authority to design an alternative path for determining an alien’s eligibility for residence. Because Congress has prescribed the appropriate process for evaluating an alien’s residency rights, the City’s attempt is preempted. Accordingly, it also improper for the City to attempt to vest judicial review of those decisions on state courts. See Ordinance at §§ 1(D); (E). See Hazleton, 496 F.Supp.2d at 538 (“[T]he 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.”).
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immigration judge;31 only that the decision to deny an alien residence on the basis of that classification rests exclusively with the federal government. See Plyler, 457 U.S. at 236 (“[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.” (Blackmun, J., concurring)).
The Ordinance is not saved because it is intended to and may have the effect of discouraging activity prohibited by the INA’s anti-harboring provisions, 8 U.S.C. § 1324(a)(1)(A). Local enforcement based on federal classifications, preempted as described above, remains at foundation of the Ordinance. This is not a situation where the City is aiding in the enforcement of federal immigration law based on federal standards through the means set forth by federal law; rather, the City is attempting to enforce its own scheme that incorporates federal standards for purposes not contemplated by Congress. The City may take appropriate action to enforce the nation’s immigration laws, but it may not, even if it were to incorporate the proper standard, independently enforce its own immigration rules. See Lynch v. Cannatella, 810 F.2d 1363, 1371 (allowing local detention of aliens pending federal removal).
Plaintiffs have met their burden of establishing that there are no genuine issues as to any material fact and that they are entitled to summary judgment on the issue of preemption. The material facts are uncontested and the Court may conclude as a matter of law, without resolving disputed facts, that the Ordinance is preempted both as a “regulation of immigration” and under the doctrine of implied preemption. As a result, The Court GRANTS the Plaintiffs’ motions for summary judgment on the grounds that the Ordinance is invalid pursuant to the Supremacy Clause.
31 See Plyler, 457 U.S. at 226 (noting that all who enter the United States unlawfully are subject
to deportation).
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C. Remaining Claims and Injunctive Relief Plaintiffs ask the Court to permanently enjoin the City from enforcing the Ordinance. (doc. 97, pp. 45-48). Injunctive relief is available where plaintiffs can show “(1) actual success on the merits; (2) an irreparable injury if the injunction is not granted; (3) injury to the plaintiff[s] if the injunction is not granted outweighs the injury to the defendant if it is granted; and (4) the granting of the permanent injunction will not disserve the public interest.” H & A Land Corp. v. City of Kennedale, 2005 WL 723690 at * 10 (N.D. Tex. March 29, 2005)(quoting Harris County v. Carmax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999)). Plaintiffs have succeeded on the merits of their claims that the Ordinance is preempted, having established entitlement to summary judgment on those claims. The Court finds that Plaintiffs have also established the remaining elements required for a permanent injunction. “A party may be irreparably injured in the face of the threatened enforcement of a preempted law.” Villas, 577 F.Supp.2d at 877 (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992)). The Court may enjoin state officers “who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution.” Id. The injuries described in Part III(A) of this memorandum opinion, including loss of business for the landlord plaintiffs and uncertainty regarding the legal status of the tenant plaintiffs and their guests, are of the sort this Court previously recognized as harms that may not be remedied by monetary damages. Id. (citing Enterprise Int’l. Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472073 (5th Cir. 1985)). Further, the balance of hardships and the public interest favor preserving the uniform application of federal immigration standards. As a
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result, the Court GRANTS Plaintiffs’ request for permanent injunction of Ordinance 2952. The Ordinance fundamentally depends on classification and evaluation of federal
immigration standards adopted for different purposes. Because the Court finds that the Ordinance is preempted in its entirety and that preemption provides sufficient basis to grant the requested injunctive relief, the Court will not evaluate the remaining due process, equal protection, or statutory claims. See United Trasnp. Union v. Foster, 205 F.3d 851, 862-63 (Considering remaining arguments applicable to portion of statute that was not preempted); Rollins Envtl. Servs. v. St. James Parish, 775 F.2d 627, 637 (5th Cir. 1985) (enjoining preempted ordinance without resolving remaining claims).
IV. CONCLUSION AND PERMANENT INJUNCTION For the reasons stated above, the Court GRANTS in part and DENIES in part the motions for summary judgment before the Court (docs. 92, 93, and 96) and permanently enjoins enforcement of Ordinance 2952. The Court concludes as follows: (1) The tenant plaintiffs have established standing to assert claims based on their burdens and potential liability under the Ordinance. The Ordinance directs the tenant plaintiffs to take specific action, imposes concrete cost, and threatens penalty, including the potential loss of their residences. Because the tenant plaintiffs have established standing to assert the claims resolved by this Memorandum Opinion and Order, including the claims brought pursuant to the Supremacy Clause of the United States Constitution, the Court DENIES in part the City’s motion for summary judgment. (doc. 93). (2) The landlord plaintiffs have also established standing to assert claims based on their
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burdens and potential liability under the Ordinance. Like the tenant plaintiffs, the landlord plaintiffs’ conduct is directly regulated by the Ordinance. Their standing is grounded in the costs and obligations of compliance, the competitive harm to their businesses, and the threatened repetitive penalties established by the Ordinance. As a result, the landlord plaintiffs have established standing to assert their claims grounded in their own interests, including those protected by the Supremacy Clause of the United States Constitution. The Court therefore DENIES in part the City’s motion for summary judgment (doc. 93) to the extent it is grounded in challenge to the landlord plaintiffs’ standing to raise those claims.
(3) The landlord plaintiffs have not established standing to assert claims on behalf of third parties, including those due process and equal protection claims grounded in injuries to tenants not before the Court. The Court GRANTS, in this part only, the City’s motion for summary judgment. (doc. 93).
(4) Ordinance 2952 is a regulation of immigration and is preempted by the Supremacy Clause of the United States Constitution because the authority to regulate immigration is exclusively a federal power. The Ordinance applies federal immigration classifications for purposes not authorized or contemplated by federal law. As a result, the Ordinance creates an additional restriction on alien residence in the City. The direct regulation of private contract for shelter based on inapplicable federal classifications constitutes an impermissible regulation of immigration. Accordingly, the Court GRANTS Plaintiffs’ motions for partial summary judgment (docs. 92, 96) on the grounds that the Ordinance is preempted as a regulation of immigration.
(5) Ordinance 2952 is impliedly preempted by the INA because it interferes with Congress’s chosen method for removal of illegal aliens and interferes with the uniform application of the
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nation’s immigration laws. The INA provides the exclusive procedures for removing aliens or adjudicating their status for that purpose. The comprehensive federal scheme reflects Congress’s balancing of competing concerns and is structured, in part, to allow federal discretion and to permit in appropriate circumstances a legal adjustment in an alien’s status. Ordinance 2952 directly and substantially regulates alien residence in the City and stands as an obstacle to the uniform federal enforcement. Accordingly, the Court GRANTS Plaintiffs’ motions for partial summary judgment (docs. 92, 96) on the grounds that the Ordinance is impliedly preempted by the INA.
(6) Because preemption pursuant to the Supremacy Clause of the United States Constitution provides sufficient grounds to enjoin the enforcement of Ordinance 2942 in all applications, the Court declines to consider the remaining claims asserted in the motions for summary judgment or partial summary judgment (docs. 92, 93, and 96).
As a result, the Court ORDERS that the City of Farmers Branch, Texas, and its officers, agents, servants, employees, representatives, and attorneys are hereby permanently enjoined and prohibited from effectuating or enforcing Ordinance 2952.
SO ORDERED Signed: March 24, 2010
_________________________________ JANE J. BOYLE UNITED STATES DISTRICT JUDGE
40

 
 Case 3:08-cv-01551-B Document 22 Filed 09/16/2008 Page 1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

VALENTIN REYES ET AL.

§

§

Plaintiffs,

§

§

v.

§ CIVIL ACTION NO. 3:08-CV-1615-B

§

THE CITY OF FARMERS BRANCH, § (consolidated with CIVIL ACTION

TEXAS

§ NO. 3:08-CV-1551-B)

§

Defendant.

§

ORDER

Having considered the Motion to Consolidate Civil Actions filed by Plaintiffs Valetin Reyes,

et al. (doc #4), seeking to consolidate Valentin Reyes, et al. v. The City of Farmers Branch, Civil

Action No. 3:08-CV-1615-B, with Villas at Parkside Partners, et al., v. The City of Farmers Branch,

Civil Action No. 3:08-CV-1551-B, the Court finds the Motion meritorious and it is hereby

GRANTED.

Therefore, it is hereby ORDERED that Valentin Reyes, et al. v. The City of Farmers Branch,

Civil Action No. 3:08-CV-1615-B, is hereby consolidated with Villas at Parkside Partners, et al., v.

The City of Farmers Branch, Civil Action No. 3:08-CV-1551-B. From this date forward, all papers

should be filed only in Civil Action No. 3:08-CV-1551-B.

SO ORDERED.

Dated: September 16, 2008

_________________________________ JANE J. BOYLE UNITED STATES DISTRICT JUDGE

 
 Case 3:08-cv-01551-B Document 1 Filed 09/03/08 Page 1 of 64 PageID 1

I IN THE UNITED STATES DISTRift'C:o~JlJbr'STRf('T CC)trRT .-,
FOR THE NORTHERN DISTRICTi~F}:}'}j~ i~; T~i .:T Of IEXAS,

DALLAS DIVISION i

FILbD

~

VILLAS AT PARKSIDE PARTNERS

§

d/b/a VILLAS AT PARKSIDE,

§

I ~~oo

LAKEVIEW AT PARKSIDE PARTNERS, §

LTD. d/b/a LAKEVIEW AT PARKSIDE, §

R1CT COURT

CHATEAU RITZ PARTNERS d/b/a

§

CHATEAU DE VILLE, and MARY

§

Deputy

MILLER SMITH,

§

§ CIVIL ACTION NO. _ _ __

Plaintiffs,

§

§

v.

§

§

THE CITY OF FARMERS BRANCH,

§

TEXAS,

§

§

Defendant.

PLAINTIFFS' COMPLAINT AND JURY DEMAND

The Villas at Parkside Partners d/b/a Villas at Parkside ("Villas"), Lakeview at Parkside

Partners, Ltd. d/b/a Lakeview at Parkside ("Lakeview"), and Chateau Ritz Partners d/b/a Chateau

de Ville ("Chateau") (together, the "Villas Plaintiffs") and Mary Miller Smith ("Smith") file this

Complaint against Defendant the City of Farmers Branch ("Farmers Branch" or the "City"), as

follows:

I.

PRELIMINARY STATEMENT Of the approximately 18,000 cities, towns, and villages in the United States, only a

handful have attempted to require a license as a condition to exercising the most fundamental of

human rights - namely, the right to live peaceably within their borders. Those schemes use

municipally-mandated "residency papers" as a means to cleanse neighborhoods of "unwanted"

people. The City of Farmers Branch, Texas now bears the dubious distinction of being one such

PLAINTIFFS' COMPLAINT AND JURY DEMAND

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municipality. Packaged and sold as the City's latest attempt to fight "illegal immigration" by criminalizing the unlicensed occupancy of rental housing, Ordinance 2952 was actually borne of a desire on the part of certain Farmers Branch elected officials to stop, and reverse, the growth of the City's Hispanic population. Those same officials have blamed Hispanics for the City's perceived economic decline and have used Hispanics as scapegoats to those who envy the wealthier Dallas suburbs or yearn for the racial and ethnic homogeneity of a bygone era.
Like its predecessor ordinances -which were the subjects of court injunctions prohibiting their effectuation and enforcement - Ordinance 2952 is a flawed, misguided, and unconstitutional attempt to drive an unwanted class of residents from the City's borders. Among other defects, the Ordinance is dependent on the timely participation of the monolithic "federal government"- an undefined and hopelessly-vague term which includes all three branches of the United States Government (including the hundreds of departments, divisions, agencies, bureaus, and commissions that comprise the bureaucracy of the Executive Branch). More importantly, the Ordinance relies on a federal immigration information-sharing program in which Farmers Branch is not an authorized participant and for which a municipal scheme of licensing the right to live in a dwelling is not an authorized purpose. In fact, contrary to Farmers Branch's intended use, the purpose of that program is not for determining whether an individual is "lawfully present" in the United States, but is for recording and tracking the individual's "immigration status" (i.e., which one of hundreds of alpha-numeric status codes applies to that individual) to establish eligibility for certain federal or state benefits. Moreover, Ordinance 2952 turns the Supremacy Clause and the federal-state-municipal hierarchy on their head by imposing novel obligations on, and dictating standards of judicial review to, federal and state courts. Finally, Ordinance 2952 mandates terms and provisions that landlords must include in their lease

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agreements, threatens landlords with criminal prosecution in the event they do not initiate civil eviction proceedings against certain of their tenants, and imposes other unreasonable burdens on interstate commerce.
Simply put, the Ordinance is a Byzantine attempt to accomplish indirectly what the City knows it could not begin to do directly. If not for the sobering fact that it was passed as part of a pernicious "revitalization" plan designed to rid Farmers Branch of lower-income Hispanics (and the businesses that serve that segment of the population), Ordinance 2952 would represent a surreal example of a municipality's abuse of its police powers. Given its purpose, scope, and effect, however, Ordinance 2952 must be struck down by this Court as the latest unconstitutional attempt by the City of Farmers Branch to exclude a targeted class of men, women, and children from those permitted to reside within the City. Indeed, as the Court previously noted, Ordinance 2952 "is yet another attempt to circumvent the court's prior rulings and further an agenda that runs afoul ofthe United States Constitution."1
II. PARTIES A. Plaintiffs 1. Villas is a Texas general partnership which owns and operates the Villas at Parkside, a 207-unit apartment complex built in 1999 and located at 4000 Park Side Center Blvd., in Farmers Branch, Texas.

1 See Memorandum Opinion and Order, dated May 28, 2008, in Villas at Parkside Partners d/b/a Villas at Parkside, et al. v. The City of Farmers Branch, Civil Action No. 3:06CV-2371-L (Lindsay, J.), at 7.

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2. Lakeview is a Texas limited partnership which owns and operates Lakeview at Parkside, a 573-unit apartment complex built in 1996 and 1998 and located at 3950 and 3990 Spring Valley Rd., in Farmers Branch, Texas.
3. Chateau is a Texas general partnership which owns and operates the Chateau De Ville, a 161-unit apartment complex built in 2002 and located at 4040 Spring Valley Rd., in Farmers Branch, Texas.
4. Smith is a United States citizen and a Texas resident, having her principal place of residence in Farmers Branch, Texas. Smith leases and resides in an apartment in Farmers Branch and intends to continue to do so. B. Defendant
5. The City is a municipal corporation located in Dallas County, Texas, and may be served by serving its Mayor, Tim O'Hare.
III. JURISDICTION AND VENUE 6. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. §§ 1981 and 1983. The Court has supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367. 7. The Court has personal jurisdiction over Farmers Branch, and venue is proper in the Northern District of Texas pursuant to 28 U.S.C. § 1391(b), because the City is located in this District and Division.

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IV. FACTUAL BACKGROUND A. Plaintiffs: Substantial Contributors To The Farmers Branch Economy 8. The apartment complexes owned by the Villas Plaintiffs are well-maintained and professionally-managed properties offering a host of amenities in each unit and a number of fitness, clubhouse, and other attractive facilities for the common use of their tenants. Monthly rents among the Villas Plaintiffs' three complexes range from $750 for one-bedroom units to $1,800 for two-bedroom units. 9. The Villas Plaintiffs rent their units not only to individuals and families, but also to corporations on either a short-term or long-term basis. Corporate renters, in turn, make their units available to employees, actual or prospective customers and clients, consultants, and other invitees. Villas Plaintiffs have substantial competition in the form of hotels and motels (including, but not limited to, "extended stay" facilities), and other apartment complexes and single-family properties located in other municipalities that are not subject to Ordinance 2952. 10. The Villas Plaintiffs' apartment complexes require and utilize the paid services of a number of rental agents, management personnel, maintenance workers, employees, and independent contractors, many of whom live in Farmers Branch. Moreover, the Villas Plaintiffs' tenants purchase a substantial portion of the goods and services they require from businesses located within Farmers Branch and many of those tenants are themselves employed by such businesses. In short, the Villas Plaintiffs and the apartment complexes they own and operate have a beneficial economic impact on the City, and the Villas Plaintiffs have conducted themselves as good citizens and significant contributors to the local community. 11. Plaintiff Smith held a seat on the City Council for Farmers Branch from 2003 until 2006. During that time, Smith served the community as a liaison for the Trinity River

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Common Vision, the Metrocrest Hospital Authority, the Red Cross, and Community Watch. Smith also served as a member of the Farmers Branch Zoning Board of Adjustment for 15 years. B. Farmers Branch: A City In Transition At The Outset Of The Twenty-First
Century. 12. Farmers Branch was founded in 1841 and was formally incorporated as a city on February 2, 1856. It is a home rule municipality that operates in accordance with a "councilmanager" form of government. 13. Since 1970, Farmers Branch has grown from a small, predominantly Anglo suburban community with a declining population into a growing city of almost 30,000 people. Today it is centrally located in the North Dallas Metroplex with approximately 80 corporations and more than 2,600 businesses making their home there. 14. According to the U.S. 2000 Census (the "Census") figures, the racial composition of the City is 55.8% White, 37.2% Hispanic/Latino, and 7% other races. Approximately 25% of the City's population is comprised of foreign-born individuals, of whom 82% are reported as having been born in Latin America. Without regard to lawful immigration status, the Census identifies over 5,500 persons in the City as being non-U.S. citizens. Since 2000, the ratio of Hispanics/Latinos to Anglos has continued to increase in Farmers Branch. Against that backdrop, the City set out to affect the ethnic composition of Farmers Branch. C. Tim O'Hare Sets Out To Change The Ethnic Composition Of Farmers Branch. 15. Tim O'Hare ("O'Hare") is the Mayor of Farmers Branch. As a member of the Farmers Branch City Council, O'Hare spearheaded the drafting and adoption of Ordinance 2952 and led the passage of the unconstitutional prior ordinances. The true purpose behind those municipal enactments was to rid the City of unwanted Hispanics, whose presence was (and is)

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wrongly perceived by O'Hare and the City Council as an impediment to growth and development in Farmers Branch.
16. O'Hare has stated that the immigration issue is an integral component of an effort by the City to clean up neighborhoods, attract builders to buy older and smaller properties and build larger homes in their place, and lure new businesses to the City. Indeed, O'Hare has publicly stated that efforts to clean up the City were behind his drive to make it more difficult for immigrants to live in Farmers Branch - asserting that such persons do not maintain their residences and cause neighborhood property values to decline. Indeed, O'Hare has bemoaned the fact that "people move out of our neighborhoods and what I would call less desirable people move into the neighborhoods, people who don't value education, people who don't value taking care of their properties." In a recently-released e-mail, O'Hare stated:
I don't want to have to live somewhere else. But, I'm not going to live in Oak Cliff, which is what we are becoming and going to become if we don't make some serious changes and spend some money. With respect to attracting more "appropriate" people and businesses into Farmers Branch, O'Hare focused on driving out Hispanic businesses, especially those located in the "Four Comers" commercial area (i.e., the retail shopping centers located at the intersection of Josey Lane and Valley View). In a recently-released e-mail, O'Hare proposed the following, under a heading entitled, "Illegal Immigration:" We should aggressively ticket businesses/landlords in The Four Comers area that are not meeting code. If the run-down places aren't violating codes, we should draft some new ones. 17. That the real intent behind the City's so-called "illegal immigration" ordinances is the "cleansing" of ethnic neighborhoods is reflected in O'Hare's own words: What you hear about on TV is the illegal-immigration issue. What you don't hear about is what's really behind this. You don't hear about our revitalization.

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"Revitalization," therefore, is the code word for ridding the City of its ever-increasing Hispanic population. O'Hare has publicly complained about important commercial areas within Farmers Branch "filling up with Spanish-speaking businesses and restaurants," the local school district devoting "so much time and money into bilingual programs for those students," and the alleged responsibility of immigrants for teenage girls becoming "pregnant all over the place."
18. The link between the City's "revitalization" policy (which, admittedly, is the reason the City adopted the so-called "illegal immigration" ordinances) and the desire to drive Hispanics out of the City is clearly reflected in a City-sanctioned task force report issued in late 2006. D. "Economic Development": The "Front" For Blatant Discrimination.
19. In or around March 2006, the City created the Branch Revitalization Task Force (the "Task Force"). The Task Force was comprised of, among others, O'Hare's friends Ed Bonneau and Tim Scott. The Task Force was charged with investigating opportunities for retail and residential development and identifying barriers to development.
20. At a Task Force meeting on August 17, 2006, the Director of Community Services for the City (the "Director") gave a presentation on the "Four Comers" retail area of Farmers Branch - an area where the majority of businesses serve the City's Hispanic community. At that meeting, the Director explained that owners of the businesses in the Four Comers area do not have a "vision" for their properties and, therefore, the City should acquire, develop, and implement its own "vision" for those properties. Accordingly, the Task Force discussed acquiring the businesses in the Four Comers area by eminent domain but, once informed that the City could not proceed with condemnation, the Task Force discussed the City acquiring the properties through voluntary sales. Tim Scott observed, with obvious disdain, that

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"property owners within the Four Comers are making money on their buildings and have no interest in wanting to change things."
21. With the aid of the Task Force, the City cynically developed and implemented a plan to force the businesses in the Four Comers area to "voluntarily" leave. Specifically, the City would run off the customer base for those businesses - Hispanics.
22. The Task Force issued its Final Report and Recommendations on December 11, 2006. Listed in that report as one of the critical "barriers" to "redevelopment" was the fact that "the City's Hispanic population increased from about 5 percent to 37 percent between 1970 and 2000 and continues to grow at a rate exceeding all other ethnic and racial populations in the City." Further, the "declining appearance" of local shopping centers was attributed to "retailers responding to demographic change by increasingly marketing to growing ethnic populations, which in turn is giving rise to shopping centers devoted exclusively to ethnic populations, especially Hispanic, African American, and Asian populations." The so-called "illegal immigration" ordinances were borne of an official "revitalization" policy aimed at ridding the City of undesirable Hispanic residents - and the retail businesses and apartment complexes which serve that segment of the community. E. The O'Hare Proposal: An Inappropriate Response To Ethnic Diversity In Farmers
Branch. 23. Unwilling to accept the new and increasingly diverse City, O'Hare announced a senes of measures intended to cause Hispanics to feel unwelcome in Farmers Branch. In particular, in August 2006, O'Hare proposed that Farmers Branch crack down on "illegal immigration." To accomplish such a crackdown, O'Hare proposed such measures as making English the "official language" of Farmers Branch and preventing illegal aliens from leasing in Farmers Branch.

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24. Lacking any empirical data to support his assertions, O'Hare nonetheless declared
that illegal aliens in Farmers Branch caused its public schools to have a bad reputation, resulted
in a lack of "acceptable appreciation" in property values, and caused the City's allegedly-high
crime rates.
25. The City's Mayor at the time, Bob Phelps, responded to O'Hare's rhetoric by
publicly disputing O'Hare's conclusions: "[They are] not true ... Our crime rate is down, our
schools have moved up ... property values are up." Indeed, Mayor Phelps euphemistically
described O'Hare's proposals as "misguided."
26. Nonetheless, O'Hare and the City pressed forward with their "vision." The real
intent, and certain effect, of those measures was to discourage members of the Hispanic
population, whether citizens or immigrants (legal or illegal), from taking up residence in Farmers
Branch.
F. The First Illegal Landlord Conscription Act. 27. On Monday, November 13, 2006, despite the dearth of factual support for its
stated position, Farmers Branch adopted, as a so-called "emergency measure," Ordinance No.
2892 (the "Original Ordinance") entitled:
AN ORDINANCE AMENDING CHAPTER 26, BUSINESSES, ARTICLE IV APARTMENT COMPLEX RENTAL, MANDATING A CITIZENSHIP CERTIFICATION REQUIREMENT PURSUANT TO 24 C.F.R. 5 ET SEQ.; PROVIDING FOR ENFORCEMENT; PROVIDING A PENALTY; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE; AND DECLARING AN EMERGENCY. 28. On that same day, the City adopted Resolution No. 2006-130 "Resolution
Declaring English As The Official Language Of The City Of Farmers Branch" (the "English
Only Resolution"). The City has also regulated yard maintenance and considered regulating the

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colors residents may paint the exteriors of their homes. Those measures are all based on stereotypes of, and contempt for, Hispanics.
29. The Original Ordinance was adopted without deliberation, consideration, or debate by council members in any open meetings. The claimed "emergency" necessitating the Original Ordinance was that "the present ordinances and regulations of the City of Farmers Branch, Texas [were] inadequate to properly safeguard the health, safety, morals, peace and general welfare of the public." No support, however, was offered into the record by Farmers Branch that would substantiate that undocumented immigrants jeopardize the health, safety, or welfare of the public, or that an emergency existed.
30. The Original Ordinance had at least five express references to Title 24 of the Code of Federal Regulations § 5, et seq. Indeed, the very title of the Original Ordinance declared that the "citizen certification requirement" established therein was "pursuant to 24 C.F.R. § 5 et seq." However, those regulations do not purport to control, affect or govern rental agreements between private landlords and their tenants which are unrelated to any federal housing assistance program. Thus, contrary to the language of the Original Ordinance, it did not comport with federal housing law but, instead, imposed new and extraordinary citizenship and immigration restrictions on purely private residential lease agreements. Indeed, even with respect to government-supported housing programs, 24 C.F.R. § 5, et seq. does not absolutely prohibit all so-called "illegal immigrants" from receiving federal assistance.
31. Nevertheless, the.Original Ordinance provided, as a condition to entering into any "apartment complex" lease or rental agreement, including any renewals or extensions thereof, that "the owner and/or property manager" shall require the submission of satisfactory "evidence

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of citizenship or eligible immigration status for each tenant family," and that such evidence is required of"[e]ach family member [an undefined term], regardless of age."
32. Ordinance 2892 required owners and/or managers of apartment complexes located within Farmers Branch to "request and review original documents of eligible citizenship or immigration status," to "retain photocopies of the documents for [their] own records and return the original documents to the family," and to hold such records "for a period of not less than two (2) years after the end of the family's lease or rental." As evidence of U.S. citizenship, new and renewing tenants were required to provide "a signed declaration of U.S. citizenship or U.S. nationality," to be "confirmed by requiring presentation of a United States passport or other appropriate documentation in a form designated by the Immigration and Customs Enforcement Department ('ICE') as acceptable evidence of citizenship status." As evidence of "eligible immigration status," new and renewing non-citizen (i.e., alien) tenants were required to submit: (1) a "signed declaration of eligible immigration status," (2) a "form designated by the Immigration and Customs Enforcement Department ('ICE') as acceptable evidence of immigration status;" and (3) a "signed verification consent form."
33. In short, the Original Ordinance conscripted apartments owners and management compames as unwilling citizenship and immigration officers, for the apparent purpose of gathering information for the City's unauthorized and unofficial "enforcement" of federal immigration laws.
34. To compound the inappropriate burden thrust upon apartment owners and management companies, the Original Ordinance provided that any failure by the owner and/or property manager to comply with its provisions resulted in a misdemeanor carrying fines of up to $500 per day per violation, with each day being a separate violation.

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G. The Second Illegal Landlord Conscription Act: Ordinance 2903 Failed To Cure The Original Ordinance's Defects. 1. The Original Ordinance is enjoined. 35. The Original Ordinance was adopted without public deliberation, consideration,
or debate in violation of the Texas Open Meetings Act ("TOMA"). Accordingly, a lawsuit styled Guillermo Ramos v. City ofFarmers Branch et. al. was filed in the 116th Judicial District Court of Dallas County, Texas (the "State Court") on December 4, 2006, seeking to enjoin effectuation and enforcement of the Original Ordinance.
36. On January 11, 2007, the State Court issued a temporary restraining order enjoining the enforcement of the Original Ordinance finding, among other elements, a likelihood of ultimate success on the merits of the claim that the Original Ordinance was enacted in violation of TOMA.
2. The City responded to the State Court injunction with the Second Ordinance.
37. In recognition ofthe merit ofTOMA challenge, the City undertook to replace the Original Ordinance. Consequently, at a City Council meeting on January 22, 2007, the City adopted Ordinance No. 2903 (the "Second Ordinance"), which purported to repeal the Original Ordinance.
38. Ordinance 2903 slightly modified the Original Ordinance in three respects. First, the Second Ordinance added an exemption for minors and seniors over 62 years old. Second, it undertook to change the documentation requirements of the Original Ordinance to implement the so-called "mixed family" rule. Finally, the Second Ordinance added a right to a hearing before a "City Building Official" for any would-be tenant who is denied a lease because of a question regarding his or her immigrant status verification.

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39. These superficial changes to the Original Ordinance did not address, let alone cure, the multiple fundamental legal defects of the Original Ordinance. In fact, the Second Ordinance was essentially the same ordinance, re-enacted in an effort to overcome the defects resulting from the City Council's violations ofTOMA in enacting the Original Ordinance.
40. The Second Ordinance was equally defective and in violation of the law. For example, the Second Ordinance still imposed extraordinary citizenship and immigration restrictions on purely private residential lease agreements. It continued to rely on Title 24 of the Code of Federal Regulations § 5, et seq. and still required citizenship and immigration status verification, with original documentation, as a mandatory prerequisite to entering into any "apartment complex" lease or rental agreement. Furthermore, the Second Ordinance continued to impose criminal penalties for any failure by a property owner or manager.
3. The Court enjoins the Second Ordinance, but the City's scheme is having the desired effect.
41. On May 28, 2008, this Court entered an order permanently enjoining the City from effectuating or enforcing the Second Ordinance based on violations of the Supremacy and Due Process Clauses ofthe United States Constitution.
42. Notwithstanding the injunctions against their effectuation and enforcement, Ordinance 2892 and Ordinance 2903, in combination with the English-Only Resolution and other City efforts, have had the City's desired discriminatory effect-many Hispanic renters have fled.
43. Indeed, the City has been so successful in expelling Hispanics that on June 3, 2008, the City agreed to pay a developer to acquire properties in the Four Comers retail areawhich has many businesses that serve the Hispanic community - so that they may be bulldozed in furtherance of the City's "vision." Those are the same businesses whose owners Tim Scott

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previously stated would not sell to the City because their businesses were so profitable. Having
run off substantial numbers of those businesses' patrons (Hispanics), O'Hare was able to declare
that there would be "no forced sales, [and] no strong-arming people" through eminent domain.
H. The Third Illegal Conscription Act: Ordinance 2952. 1. The Orwellian Nightmare: Farmers Branch passes Ordinance 2952 requiring registration and issuance of residency papers. 44. Undeterred and determined to remove Hispanics from its borders, on Tuesday,
January 22, 2008, Farmers Branch formally adopted Ordinance No. 2952 titled:
AN ORDINANCE PROVIDING FOR RESIDENTIAL OCCUPANCY LICENSES; PROVIDING FOR VERIFICATION OF ALIENS' IMMIGRATION STATUS WITH THE FEDERAL GOVERNMENT CONSISTENT WITH FEDERAL LAW; CREATING OFFENSES; PROVIDING FOR ENFORCEMENT; PROVIDING FOR JUDICIAL REVIEW; PROVIDING A PENALTY; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE.Z 45. Ordinance 2952 (the "New Ordinance") was adopted without deliberation,
consideration, or debate by council members in any open meetings.
46. The New Ordinance requires persons eighteen years of age or older to report to the City their intent to occupy a leased single family home3 or apartment in Farmers Branch.
Prospective renters must complete an occupancy license application, pay a $5 fee to the City, and
obtain a residential "occupancy license" before they may occupy a single-family residence or
apartment in Farmers Branch.

2 A true and correct copy of Ordinance 2952 is attached hereto as Exhibit 1.
3 A single family home in Farmers Branch means family homes, duplexes, and condominiums. See City of Farmers Branch, Texas Code of Ordinances ("City Code"), Section 26-71 (definitions).

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47. Additionally, occupants must obtain a new license each time they intend to move to a different apartment complex or rental house within the City. If multiple occupants live within one home or apartment, each occupant must sign a separate residential occupancy application and obtain a separate occupancy license. Thus, the New Ordinance forbids spouses, family members, caregivers, and others at least eighteen years of age from living together unless each obtains a separate residential occupancy license.
48. Failure to comply with those requirements constitutes an offense punishable by a fine of up to $500 per day.
2. The New Ordinance treats aliens differently from American citizens and nationals.
49. The New Ordinance requires prospective occupants to attest to their citizenship. If the applicant attests to being a United States citizen or national, the applicant will be issued an occupancy license, and the City will not check his or her citizenship or immigration status.
50. For other applicants, however, the building inspector is required to "verify with the federal government whether the occupant is an alien lawfully present in the United States."
51. If the federal government erroneously reports the status of the occupant as an alien not lawfully present, the New Ordinance only provides the occupant with 60 days in which to: (1) provide the federal government "additional information" sufficient to prove that the occupant is lawfully present in the United States; and (2) cause the federal government to correct his or her records and to notify the City of the correction.
52. The New Ordinance, however, does not specify what "additional information" occupants must provide the federal government to obtain corrections and thereby avoid either losing their housing license or exposing themselves to criminal sanctions. Moreover, the New

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Ordinance fails to indicate to whom such additional information should be sent. Instead, the New Ordinance merely states the information shall be provided to the "federal government."
53. If the "federal government" does not, within 60 days, correct its records and report back to the City building inspector, the building inspector is required to send "a revocation notice" to the landlord and occupant informing each that the occupancy license will be revoked "effective 15 days after the date of the revocation notice."
3. Landlords are conscripted to act as the City's expulsion officers. 54. Like its predecessors, the New Ordinance unlawfully shifts the burden of the City's alleged effort to control illegal immigration onto private landlords. 55. Indeed, under threat of criminal sanctions, the City has thrust upon landlords the burden of notifying renters of the City's license scheme. In particular, landlords are subject to fines of up to $500 per day, per violation, for failing to disclose to prospective occupants' their obligations under Ordinance 2952, including: (1) the duty to comply with the New Ordinance; (2) the obligation to pay a fee of $5 to the City; (3) the need for each occupant to obtain an occupancy license; and (4) the requirement that each applicant 18 years of age or older sign his or her own application form and attest, under penalty of law, to his or her country of citizenship. 56. The New Ordinance also imposes on landlords the obligation to commence and "diligently pursue" (to the City's satisfaction) eviction proceedings for tenants whose occupancy licenses the City has revoked. In other words, the New Ordinance will force landlords to act as City prosecutors. 57. To ensure a landlord's compliance, the New Ordinance imposes harsh penalties on landlords, their agents, and their managers. For example, it is an offense: (1) to lease or rent without obtaining and retaining a copy of the residential occupancy license of any and all known occupants; and (2) to knowingly permit an occupant to occupy a single family residence or an

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apartment without a valid residential occupancy license. Each day in which a violation occurs is a separate offense, with each offense carrying a penalty of up to $500.
58. In addition, the New Ordinance requires the building inspector to suspend the landlord's license if the landlord "commits an offense." During the term of the suspension, a landlord is prohibited from collecting any rents at the apartment complex. Although the New Ordinance provides that it is a defense to prosecution that the landlord or its agent commenced and "diligently pursued" - whatever that means - such steps as may be required to terminate the lease or tenancy, that defense does not apply to suspension of a landlord's license. Indeed, under the New Ordinance, no hearing or notice is required before the City building inspector suspends a landlord's license. The New Ordinance thus confers upon the City building inspector unbridled discretion to effectively destroy a landlord's business without notice or a hearing. I. The Regulation Of Citizenship And Immigration Matters: The Exclusive Province
Of The Federal Government. 59. Pursuant to Article I, Section 8, Clauses 3 and 4 of the United States Constitution, the federal government has the power to "establish a uniform Rule of Naturalization" and to "regulate Commerce with foreign Nations." In fact, the Supreme Court of the United States has held that the federal government's power to control immigration is inherent in the nation's sovereignty. 60. Pursuant to its exclusive power over matters of immigration, the federal government has established a comprehensive system of administrative agencies, statutes, regulations, and procedures to determine, subject to judicial review, whether and under what conditions aliens may enter, live, and work in the United States- and, if desired, become citizens thereof.

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61. The federal government has chosen to allow certain aliens to remain in the United States even though such persons may not have valid immigrant (permanent) or non-immigrant (temporary) status or may otherwise be removable or subject to deportation. For instance, 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. Moreover, persons with pending applications to adjust to a lawful status are often permitted to remain in the United States despite being in the country unlawfully. Of course, determinations of who may continue living here are within the exclusive province of the United States government and any attempt by state or local officials to usurp that function constitutes an inappropriate interference with an exclusive federal function. Indeed, with limited exceptions, only an immigration judge may determine whether an alien may be admitted or removed from the United States.
62. The New Ordinance directs the building inspector to, pursuant to Title 8, United States Code section 1373(c), verify with the federal government whether an occupant is an alien "lawfully present" in the United States.4
63. Under 8 U.S.C. § 1373, the now abolished Immigration and Naturalization Service was authorized to provide citizenship or immigration information to federal, state, and local government agencies only for a "purpose authorized by law." Federal law authorizes local governments to require proof of eligibility only for "State and local public benefits" as defined by federal law (8 U.S.C. § 1625). The phrase "State or local public benefits" is defined by 8 U.S.C. § 1621(c) as:

4 Ordinance 2952 §§ 1, 3 (adding City Code Sections 26-79 (D)(l) and 26-119 (D)(l)).

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(A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and (B) any retirement, welfare, health, disability, public or assisted housing, postsecondary 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 a State or local government or by appropriated funds of a State or local government. 64. Here, the City is attempting to license the right to obtain rental housing. Of
course, shelter is neither a benefit nor a privilege; rather, it is a basic human necessity and a
right. As such, the City's proposed occupancy licenses do not constitute a state or local public
benefit under 8 U.S.C. § 1621(c). Farmers Branch, therefore, is not authorized to use federal
resources to verify immigration status in relation to its residential "occupancy licenses."
Moreover, the City's attempt to require an applicant to submit immigration information and
establish eligibility for housing in Farmers Branch is forbidden and preempted by 8 U.S.C. §
1625.
65. Nonetheless, Farmers Branch inappropriately intends to use the Systematic Alien
Verification for Entitlements Program (the "SAVE Program") to determine whether occupancy
license applicants are eligible to rent housing in the City. The SAVE Program is an existing
federal eligibility system used to verify status for various federal-state cooperative programs
such as Housing Assistance, Medicaid, and Unemployment Compensation programs, under
which eligibility is limited by Congress based on immigration status.
66. The SAVE Program: (1) expressly provides that it does not determine under what
criteria a person is or is not entitled to a benefit or license; and (2) is not, according to the
Department of Homeland Security, a complete collection of immigration information on all
aliens. Thus, the City may not use the SAVE Program to conclusively determine whether an
alien is lawfully present in the United States.

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67. Additionally, because the New Ordinance would deny an occupancy license to those "not lawfully present," it conflicts with federal policy. The phrase "not lawfully present" is not conterminous with "removable." For instance, spouses of United States citizens can simultaneously be unlawfully present and non-removable. Thus, the New Ordinance not only violates the sanctity of marriage, but also expels spouses of citizens whom the federal government allows to stay in the United States. J. The New Ordinance Violates Due Process.
68. The Fourteenth Amendment guarantees due process of law, and proscribes laws that are so vague that persons of common intelligence must necessarily guess at their meaning. An ordinance is unconstitutionally vague where it fails to provide those targeted by the ordinance a reasonable opportunity to know specifically what conduct is prohibited, or is so indefinite as to allow arbitrary and discriminatory enforcement. A law is void for vagueness under the due process clause if it lacks standards or if its enforcement depends upon arbitrary discretion vested in those ultimately responsible for achieving its objectives. Further, due process requires the government to provide notice and a hearing before depriving any person of life, liberty, or property.
69. The New Ordinance imposes criminal penalties for violations which the City fails to define with sufficient clarity for ordinary people to understand how to comply. As such, the New Ordinance invites arbitrary and discriminatory enforcement practices and violates constitutional requirement of due process. Further, the New Ordinance provides neither notice nor a hearing prior to the suspension of the landlord's license to rent, and provides insufficient notice and review before occupancy licenses can be revoked. Indeed, the New Ordinance fails to provide for a hearing prior to or even after revocation of an occupancy license. Instead, the New Ordinance would require tenants and landlords to bear the cost of initiating litigation. Further,

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under the New Ordinance, tenants and landlords would bear the burden of establishing innocence, rather than the City being required to prove guilt. Accordingly, the New Ordinance lacks the safeguard of due process and is unconstitutional.
1. The New Ordinance is unconstitutionally vague and compliance is impossible.
70. In order to obtain an occupancy license, the New Ordinance, among other things, requires applicants to provide: (1) the address ofthe residence or apartment to be rented; and (2) the date of the lease or rental commencement. The New Ordinance, however, also provides that: "[i]t shall be an offense for a lessor to lease or rent without obtaining and retaining a copy of the residential occupancy license of any and all known occupants"; and "[i]t shall be an offense for a person to knowingly make a false statement of fact on an application for a residential occupancy license." In other words, under the New Ordinance a lessor cannot lease to a tenant without the tenant providing an occupancy license, but a tenant cannot accurately complete the occupancy license application without having signed a lease.
71. Additionally, under the New Ordinance, it is: (1) "an offense for a lessor to lease or rent a single family residence [or apartment] without obtaining and retaining a copy of the residential occupancy license of any and all known occupants;" and (2) an offense for a landlord to "knowingly permit an occupant to occupy a single family residence [or apartment] without a valid residential license." The New Ordinance defines "occupant" as "a person, age 18 or older, who resides at an apartment [or a single family residence]." A "temporary guest of an occupant" is excluded from the definition of "occupant." The New Ordinance, however, does not define "temporary guest." Therefore, a lessor cannot know whether an occupant is merely a "temporary guest" or an "occupant" under the New Ordinance and, thus, cannot know who should be

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licensed and who should be evicted. Accordingly, the New Ordinance fails to provide landlords with an opportunity to know what conduct is prohibited.
72. Under the New Ordinance, landlords, lessors, or "person responsible for the management of an apartment complex" and "any agent of a landlord with authority to initiate proceedings to terminate a lease or tenancy" are all subjected to potential criminal prosecution. Importantly, the New Ordinance does not define the catchall phrase "person responsible for the management of an apartment complex" or the ubiquitous term "agent."
73. Under the New Ordinance, it is an offense for a landlord to knowingly permit an occupant to occupy a residence or apartment without a valid residential occupancy license. As a "defense to prosecution" a landlord may establish that it "commenced and diligently pursued such steps as may be required under the applicable law and lease provisions to terminate the lease or tenancy." That provision, however, is unconstitutionally vague. Specifically, the New Ordinance does not define "diligently pursued." Further, the New Ordinance denies due process by improperly shifting the burden of proof to the landlord. The City should be required to show that a defendant failed to meet a defined standard. A landlord should not be required to prove its innocence by showing that it complied with a1i ambiguous duty.
74. Finally, it is not clear whether the New Ordinance applies to extensions or renewals of current leases or whether it applies to holdover tenants. In particular, the New Ordinance provides that it "applies only to leases or tenancies that commence on or after its effective date."
2. The New Ordinance provides insufficient notice. 75. Incredibly, although criminal penalties may be imposed and the occupancy license and business license must be revoked 15 days after the notice of revocation is sent to the landlord and occupant, the New Ordinance does not limit the building inspector's discretion in

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selecting how to send such notices. Accordingly, the building inspector may choose to send the notice via regular mail (which often takes a number of days before actual delivery) or any other method of his choosing.
76. The fifteen-day period begins when the notice is sent, not when it is received. The effective date of the revocation does not account for mailing after hours, on weekends, on holidays, or to distant locations. Moreover, the New Ordinance does not provide that non-receipt or untimely receipt of the notice of revocation is a defense to either prosecution or the loss of a landlord's license and all rents. Indeed, under the New Ordinance the building inspector is not required to provide lessor's "agents" or "managers" with notice of the revocation. Accordingly, the New Ordinance subjects landlords and others to criminal penalties, suspension of their licenses, and loss of all rents even when they receive no notice, or insufficient notice, of the revocation.
77. This result is especially problematic given that the New Ordinance does not specify the address to which notice is to be provided. Instead, the New Ordinance merely states that notice is to be sent to the lessor. The New Ordinance does not specify how the building inspector is to determine the address of the lessor. For tenants, the New Ordinance provides that notice is to be sent to the address provided on the application. The New Ordinance, however, allows tenants of apartments to move within the same complex without obtaining a new license or submitting updated contact information. Therefore, under the New Ordinance, landlords, agents, managers, and tenant, may be convicted of a crime without having received notice of the event (revocation of occupancy license) giving rise to the duty allegedly breached.

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78. The lack of notice is compounded by the absence of any pre-revocation hearing. The only way that an occupant or landlord can avoid the deprivation of their rights is to institute legal action.
3. The New Ordinance provides for sham judicial review, not "due process." 79. Under the New Ordinance an occupant or landlord "who has received a deficiency notice or a notice of revocation may seek judicial review of the notice by filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas." This "process" is inadequate for at least two reasons. 80. First, only a federal immigration judge can make a conclusive determination regarding an alien's right to stay or be in the United States. The only way to obtain a meaningful review of an alien's lawful status would be through an appeal to an immigration judge. Obviously, Farmers Branch may neither burden nor confer jurisdiction upon the Immigration Court to hear appeals of municipal license revocations. Accordingly, the New Ordinance provides for inadequate judicial review. 81. Second, the "review" provided for by the New Ordinance is a sham. In particular, the New Ordinance: (1) rewrites the Rules of Evidence; (2) improperly turns City officials and landlords into immigration prosecutors; and (3) impermissibly requires landlords and tenants to establish their innocence. In particular, Ordinance 2952 requires courts to "take judicial notice" of "any verification of the citizenship or immigration status" provided by the federal government. Moreover, the New Ordinance even dictates that courts request from the "federal government" a new immigration verification. Obviously, the City may neither mandate that state or federal courts admit certain "evidence" nor require courts to make requests of federal officials. Further, in any proceeding regarding the revocation of a license, City officials would be required to defend the accuracy of the federal determination. City officials are neither authorized nor

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qualified to act as immigration prosecutors. Finally, the New Ordinance creates a "rebuttable presumption" based on the printout from the SAVE Program which the New Ordinance requires the Court to admit into evidence. Accordingly, an occupant or landlord has to disprove hearsay and otherwise unreliable evidence from a nonparty in order to avoid the deprivation of established rights.
4. Catch 22: landlords face liability no matter what they do. 82. Under the New Ordinance it is an offense for a landlord to knowingly permit an occupant to occupy a residence or apartment without a valid residential occupancy license. A landlord has a "defense to prosecution" if the landlord can show that it "commenced and diligently pursued such steps as may be required under the applicable law and lease provisions to terminate the lease or tenancy." As discussed above, that provision is unconstitutionally vague and improperly shifts the order of proof onto the defendant. 83. The provision is also problematic because an eviction proceeding cannot be initiated until: (1) the default occurs (the effective date of the revocation); and (2) the landlord provides the tenant in default with notice to vacate the premises, at least three days before filing a suit to evict. 84. In addition to forcing landlords to prosecute their tenants and institute suits against the City merely to avoid automatic suspension of their license (in fact, a landlord may prevent loss of its license only by filing a complaint for judicial review within fifteen days of the City sending the notice of revocation, and delaying the proceedings long enough to allow the lease to expire on its own terms), the New Ordinance also subjects landlords to civil rights suits. Specifically, landlords will be forced to effectuate the City's discriminatory policy. Every evicted tenant could, therefore, potentially bring a civil rights suit against the landlord.

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Unfortunately, the New Ordinance turns landlords into unwilling adversaries of both their tenants and the City and provides no means for satisfying the demands of either. K. The New Ordinance Discriminates Against Hispanics And Aliens.
85. Under the New Ordinance, a landlord is subject to potential criminal prosecution, a loss of all rent, and the cost of instituting and prosecuting evictions if it rents to an alien or someone who might choose to live with an alien. Moreover, the New Ordinance increases the risk that tenants will not stay in their residence for the duration of a lease. Rents will increase in accordance with the increased risk thrust on landlords.
86. By creating a substantial financial and legal incentive to avoid renting to prospective Hispanic and alien tenants, the New Ordinance encourages private discrimination against Hispanics. Indeed, given the City's "vision," the New Ordinance seems designed to have that effect. L. The New Ordinance Impermissibly Burdens Fundamental Rights.
87. The New Ordinance impermissibly infringes upon the fundamental rights of privacy, travel, and shelter. The government of a free people does not condition the right to shelter or the right to move to a location of choice on registering with the local authority, paying a fee, and obtaining a license. Prospective occupants' rights, privileges, and liberty interests are burdened impermissibly by the New Ordinance. Specifically, the New Ordinance forces individuals to incur expense, forces the disclosure of information to the City, and forces individuals to institute litigation merely to protect those freedoms. A free society does not require residents to kowtow to government officials in order to obtain a license to merely live in the community.
88. The Ordinance is offensive and illustrative of the City's discriminatory intent in that it requires renters to obtain papers, but does not so burden those seeking to buy a home in

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the City. Indeed, having determined that those the City classifies as "undesirables" reside predominantly in rental units, the City intends to sweep in, acquire the properties, sell them to insiders, and rid the City of its unwanted residents.
89. Those living in, or desiring to move to, Farmers Branch have a right to privacy, freedom of speech, and freedom of association, and may not be required to disclose to the City those who reside with them.
90. People in Farmers Branch, regardless of their citizenship or immigration status, have a fundamental right to seek shelter - whether a home or an apartment. People willing and able to house themselves and their families should not be denied housing because their local government considers them a "barrier to development."
91. The New Ordinance places an impermissible burden on tenants' and landlords' fundamental rights and liberty interests. Indeed, under the New Ordinance, without adequate due process protections: (1) an occupant's license may be revoked; (2) an occupant may be deprived of property and contractual interests; (3) a landlord's license may be suspended; (4) a landlord may be deprived of property and contractual interests; and (5) individuals may be found guilty of crimes and fined. Moreover, under the New Ordinance, the City will unlawfully deprive landlords and tenants of their rights and liberty interests unless landlords and tenants institute suit and establish their innocence. M. The Consequence Of The City's Unlawful Scheme: Plaintiffs Have Suffered And
Will Continue to Suffer Injury In The Absence Of The Court's Intervention And Issuance Of Appropriate Relief. 92. Since enactment of the Original Ordinance, the Villas Plaintiffs have suffered damages including a loss of leases with new tenants and renewals of leases with existing tenants. This is a direct consequence of the burdensome and illegal requirements of the Original Ordinance, the Second Ordinance, and now the New Ordinance. By adopting those ordinances,

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the City intended to send a strong message that certain people are not welcome in Farmers Branch. That message has had its intended effect and has harmed Plaintiffs.
93. Indeed, the Apartment Association of Greater Dallas reports that apartment occupancy in Farmers Branch during the quarter following enactment of the Original Ordinance fell by 10%. Moreover, the Apartment Association attributes the fall in occupancy to the City's enactment of the Original Ordinance and the Second Ordinance, and projects that its members, including the Villas Plaintiffs, will suffer millions of dollars in lost revenues as a result of the City's conduct.
94. The Villas Plaintiffs' business of leasing multi-family housing is extremely competitive. The Villas Plaintiffs compete with a number of comparable apartment complexes in nearby municipalities (such as Addison, Carrollton, and Dallas) that are not subject to the onerous requirements of the New Ordinance. Consequently, as reflected in the Apartment Association's reports, the Villas Plaintiffs have lost and will continue to lose tenants to other jurisdictions.
95. Like its predecessors, the New Ordinance imposes a substantial burden on most, if not all, of the Villas Plaintiffs' existing and prospective tenant base. In particular, there are two specific sub-populations of that tenant base that are most affected by the New Ordinance. They are: (a) "transitional tenants" who are transitioning between homes; and (b) tenants from outside Texas who enter into lease agreements through Internet-based transactions.
96. One of the largest sources of the Villas Plaintiffs' tenant base are tenants who are in transition between homes. Many of the Villas Plaintiffs' leases are with persons who are moving to the area or are in the process of purchasing a home. For example, nearly one-fourth of Lakeview's tenants are from out of state.

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97. The Villas Plaintiffs face substantial competition for transitional tenants in the form of hotels and motels (including, but not limited to, "extended stay" facilities), and apartment complexes located in other municipalities. The Villas Plaintiffs have strategically, and successfully, positioned themselves to capitalize on this key market segment by offering shortterm leases specifically designed for transitioning tenants' convenience. The Villas Plaintiffs' experience has taught them that prospective transitional tenants want to reserve an apartment as soon as possible, both to reserve the availability of the physical unit and to "lock in" the price. Therefore, the Villas Plaintiffs have streamlined their administrative and application processes to be more efficient (and, thus, more competitive) in closing lease contracts with the least possible inconvenience to their tenants. The New Ordinance, like the Original and Second Ordinance before it, will destroy that competitive advantage.
98. In addition, a large percentage of the Villas Plaintiffs' tenants originate through the Internet. For those prospective tenants, often no face-to-face meeting is conducted until the tenant actually takes occupancy. Applications, fees, and necessary documentation are exchanged via telefax or express mail. The New Ordinance forecloses these business operations.
99. Additionally, the Villas Plaintiffs' tenant base is comprised in part of corporations who lease units on either a short-term or long-term basis. Therefore, under the New Ordinance, if a corporation is an "occupant," it cannot complete the application for a license because it is not a citizen or an alien. If a corporation is not an occupant, a lessor cannot lease to it because it must first obtain a copy of the occupancy license of a known occupant.
100. Unless this Court declares the New Ordinance to be invalid and enjoins the enforcement thereof, the Villas Plaintiffs will suffer irreparable injury in addition to the damages they have already suffered as a result of the Original and Second Ordinance. The New

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Ordinance will likely result in a substantial loss of the Villas Plaintiffs' business because prospective tenants dislike unnecessary burdens and inconveniences such as the application process under the New Ordinance. Many tenants will prefer the comparative ease of obtaining suitable competing accommodations in neighboring municipalities. Further, the Villas Plaintiffs will be subject to criminal and civil penalties as a result of the enforcement of the New Ordinance.
101. The City's adoption and threatened enforcement of the New Ordinance has violated, and will continue to do injury to, Plaintiffs' constitutional, statutory, and common law rights. Therefore, judicial intervention and appropriate declaratory and injunctive relief is necessary to prevent further deprivations and violations of Plaintiffs' rights and property interests. Additionally, Plaintiffs are entitled to recover damages to compensate them for the injuries they have sustained as a result of the City's enactments of the unlawful Original Ordinance, Second Ordinance, and the New Ordinance.
102. As a result of the City's conduct, Plaintiffs have been required to obtain the undersigned counsel to prosecute and present the claims asserted herein.
v.
CLAIMS A. Count One: Violation Of The Supremacy Clause.
103. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
104. Article VI 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

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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."
105. The power to regulate immigration is exclusively given to the federal government by the Constitution. Any regulation of immigration by a state or local government intrudes on that federal authority and is pre-empted by the Supremacy Clause. Further, the Supremacy Clause mandates that federal law preempts state and local government laws in areas where Congress has expressly or impliedly exercised exclusive authority and when those laws conflict with federal law.
106. The New Ordinance is a regulation of immigration in a field where Congress has exercised exclusive authority. Moreover, the New Ordinance conflicts with federal law. Accordingly, the New Ordinance is pre-empted by the Supremacy Clause of the Constitution of the United States.
1. The New Ordinance is an improper attempt to regulate immigration. 107. The New Ordinance is an improper attempt to regulate immigration because it intrudes on the federal government's exclusive power to regulate immigration. A regulation of immigration is a determination of whether an alien should or should not be admitted in the United States and the conditions under which the alien can remain. The New Ordinance limits individuals' rights to live in Farmers Branch based on immigration status, and does so in a manner different than that set out by Congress. 108. Specifically, through the New Ordinance the City seeks to register and identify aliens living in Farmers Branch, assess whether they are lawfully present in the United States, and force landlords to expel immigrants, making it impossible for them to live within City limits. Deciding who may stay and who must depart, and expelling the latter, is the very core of immigration regulation.

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109. The New Ordinance requires that a landlord, at the cost of losing the landlord's business license and the ability to collect rent from any tenants in the apartment building, to evict any person the building inspector determines is not entitled to live in Farmers Branch. Such requirements seek not only to punish and deter landlords from renting to aliens, but also to deny "abode" to aliens.
110. Farmers Branch has, independent of the federal government, designed its own system of regulation that seeks to regulate the presence of foreign nationals within the City's borders. Further, the New Ordinance would deny housing to aliens even when the federal government would not remove them. Accordingly, the New Ordinance is a regulation of immigration that is pre-empted under the Supremacy Clause of the Constitution of the United States.
2. The New Ordinance intrudes into areas where Congress has occupied the field of regulation.
111. The New Ordinance also purports to regulate in fields where Congress has enacted an exclusive, comprehensive regulatory regime. This system includes the Immigration and Nationality Act and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.
112. Through those statutes the federal government has adopted a comprehensive system for determining the eligibility of aliens for state and local benefits and licenses. This comprehensive system has occupied the field. Moreover, federal law provides that local governments cannot lawfully deny benefits or licenses to aliens other than those prescribed by Congress.
113. A "residential occupancy license" is not, as defined by Congress, a state or local benefit that aliens may be denied. Accordingly, the New Ordinance, which purports to deny

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residential occupancy licenses to aliens not lawfully present, is pre-empted by federal regulation of the field and must be enjoined.
114. Further, the New Ordinance purports to be an anti-harboring ordinance. The federal anti-harboring statute, Title 8, United States Code Section 1324(a)(1)(A)(ii), prohibits knowingly harboring aliens who remain in the United States in violation of law. In contrast, the New Ordinance prohibits knowingly renting to unlicensed aliens, whose presence may or may not violate federal immigration law. Accordingly, the New Ordinance creates requirements on landlords that exceed those of the federal anti-harboring statute. Moreover, the penalties under the New Ordinance vary substantially from those prescribed by Congress. The New Ordinance is therefore pre-empted because it attempts to regulate in a field regulated by the federal government.
3. The New Ordinance conflicts with federal law and federal policies. 115. The New Ordinance also violates the Supremacy Clause because it conflicts and interferes with clear federal policies. For instance, the United States Department of Housing and Urban Development ("HUD") provides housing subsidies for low income individuals and families. Pursuant to a settlement of prior litigation, Farmers Branch participates in a number of HUD programs. The HUD programs provide housing benefits to "mixed families"-families where some members are ineligible aliens. By denying housing to mixed families, the New Ordinance conflicts with the federal government's housing policy. 116. Further, by requiring the use of federal government resources to verify the immigration status of residents of Farmers Branch, the New Ordinance places a burden on the resources of the federal immigration system without federal authorization. As such, the New Ordinance conflicts with the administrative apparatus designed to enforce the immigration laws.

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117. Enforcing the New Ordinance will also require Farmers Branch and others to intrude into the enforcement of immigration laws. Specifically, the judicial review provisions will require non-immigration courts to make determinations regarding the immigration status of individuals. Additionally, the Farmers Branch building inspector will be required to play the role of immigration prosecutor. Likewise, because appeals of the suspension of a landlord's license are heard by the Farmers Branch City Council, the city council will be required to make determinations regarding the immigration status of renters. Further, landlords are required to expel aliens that the City has deemed unfit to live in the City. Only an immigration judge or other appropriate federal officials can perform those functions. Accordingly, the New Ordinance conflicts with federal law and policy.
4. Because the New Ordinance is pre-empted, it must be enjoined. 118. By implementing a residential licensing scheme based on immigration status, the New Ordinance runs roughshod over the complex system of federal classification and discretion. Ultimately, the effect of the New Ordinance is to upset the system established by Congress in order to implement Farmers Branch's own enforcement mechanisms, penalties, and interpretations in place of the federal system. 119. In addition, as a result of the New Ordinance's violation of the Supremacy Clause, the Villas Plaintiffs are subject to criminal penalties, may lose their licenses to do business, and will lose current and prospective tenants who may otherwise be permitted by the federal government to live in the United States, but will nevertheless be barred from renting apartments in Farmers Branch. In addition, the chilling effects of the New Ordinance will generally discourage many prospective tenants of Hispanic descent from even submitting rental applications with the Villas Plaintiffs. Further, Plaintiff Smith will be required to divulge personal information, pay a fee, and otherwise participate in a licensing scheme that serves no

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purpose but to discriminate against aliens and Hispanics in contravention of the federal government's immigration system and the protections of the Constitution.
120. Accordingly, this Court should declare the New Ordinance unconstitutional and preliminarily and permanently enjoin its effectuation and enforcement. B. Count Two: Violation Of 42 U.S.C. § 1983
121. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
122. The New Ordinance deprives landlords and individuals within Farmers Branch of rights, privileges, and immunities secured by the United States Constitution and federal laws.
123. Farmers Branch was acting under color of law when it passed the New Ordinance, and all agents of Farmers Branch attempting to effectuate or enforce the New Ordinance are, and will be, acting under color of law.
124. The New Ordinance has deprived Plaintiffs, and subjects Plaintiffs to the future deprivation, of rights secured by the Constitution and federal law. Accordingly, Plaintiffs are entitled to recover damages they have suffered as a result of the enactment of the New Ordinance. Further, Plaintiffs are entitled to a declaration that the New Ordinance is unconstitutional and injunctive relief prohibiting the effectuation and enforcement of the New Ordinance and remedying the discriminatory effects resulting from the enactment of the New Ordinance.
1. The New Ordinance violates the Privileges and Immunities Clause of the Fourteenth Amendment
125. The Fourteenth Amendment of the Constitution of the United States provides that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens ofthe United States."

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126. The citizens of the United States have the prerogative to live wherever they can obtain housing without interfering with the rights of others. The Privileges and Immunities Clause prohibits state and local governments from placing conditions on the ability of a citizen of the United States to establish a residence in that state or locality.
127. The New Ordinance abridges the privileges and immunities of the citizens ofthe United States because it prohibits citizens from obtaining otherwise available housing without having obtained a license from the City. The City has no legitimate public purpose for abridging those privileges or immunities. Accordingly, the Court should enjoin enforcement and effectuation of the New Ordinance.
2. The New Ordinance violates the Due Process Clause of the Fourteenth Amendment.
128. The Fourteenth Amendment of the Constitution of the United States provides that: "No state ... shall deprive any person of life, liberty or property without due process of law." 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. The New Ordinance violates the Due Process Clause of the Fourteenth Amendment because it deprives Plaintiffs of substantial liberty and property interests without either substantive or procedural due process of law.
129. Plaintiffs are subject to criminal penalties of up to $500 per day for failing to comply with the terms of the New Ordinance which, among other things: (1) requires Smith to register her residence with the City and pay a fee in order to rent in the City; and (2) creates new obligations for the Villas Plaintiffs and unnecessarily burdens their ability to operate their business. In particular, under the New Ordinance, the Villas Plaintiffs' license to operate an apartment complex can be suspended if an offense is committed, and Villas Plaintiffs are

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obligated to expend funds to evict otherwise non-defaulting tenants. The New Ordinance also limits the ability of Plaintiffs to utilize their property and contractual rights in their leases.
a. The New Ordinance fails to provide sufficient procedural due process. 130. The New Ordinance does not contain sufficient procedural safeguards to protect these important interests. First, the New Ordinance provides inadequate notice. Indeed, the New Ordinance does not require actual notice of either the deficiency notice or the revocation notice. Further, the landlord is not provided a deficiency notice. Instead, a landlord will learn of a problem with the occupancy license only if it receives a notice of revocation, and it must remove the tenant within fifteen days of when the notice is sent. 131. Second, although a landlord commits an offense if it knows an occupant is occupying its property without a valid residential occupancy license, a landlord can only evict such an occupant after the license becomes invalid, at which point the landlord is already subject to a suspension of its license. In short, the New Ordinance provides no mechanism for a landlord to perform its obligations without subjecting it to liability. 132. Third, the New Ordinance provides no hearings. An occupant receives neither a hearing in front of a City official nor a federal official prior to the revocation of his or her license. Further, the New Ordinance provides no requirement of a hearing before the building inspector suspends a landlord's rental license and prohibits a landlord from collecting rents. 133. Fourth, the New Ordinance provides that an occupant can "obtain a correction of the federal government's records and/or provide additional information establishing that the occupant is not an alien not lawfully present in the United States." The New Ordinance provides no information regarding how to correct the "federal government's records" or what "additional information" would establish the occupant's lawful presence. Given that the New Ordinance does not state the criteria for denying a license or how the City is obtaining information from the

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federal government, occupants cannot take the proper steps to protect their license from revocation.
134. Fifth, the New Ordinance makes it an offense for a landlord to allow an "occupant" to occupy a residence or apartment without a valid license. "Temporary guests" are not "occupants" and need not have a license. The term "temporary guest," however, is not defined. The New Ordinance, thus, provides no standard for how long a person must be present before a landlord has committed an offense. Accordingly, the New Ordinance is void for vagueness.
135. Sixth, the New Ordinance fails to provide meaningful judicial review. The courts m Dallas County, Texas with jurisdiction over the New Ordinance are not competent to determine whether the federal government permits a particular alien to obtain housing in Farmers Branch. Further, the building inspector or other City official is not authorized or qualified to argue in a judicial proceeding that an alien is not lawfully present and, accordingly, the party subject to judicial review effectively lacks capacity. The New Ordinance also purports to take the "review" out of judicial review by creating a presumption based on a determination made by the "federal government" with no feasible method of challenging that determination.
136. Seventh, the New Ordinance subjects the Villas Plaintiffs to criminal prosecution and provides a vague and inadequate "defense." The "offense" of allowing an occupant to occupy a residence or apartment without a license is unavoidable because a landlord cannot take action to remove the occupant until after the license is revoked. The only way a landlord can escape criminal liability is by proving his defense. Accordingly, the New Ordinance denies due process because it establishes a crime where the landlord is "guilty until proven innocent." Further, the "defense to prosecution" only applies if the landlord "diligently pursue[s] such steps

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as may be required under the applicable law and lease provisions to terminate the lease or tenancy." The New Ordinance fails to define or provide adequate notice of what constitutes "diligent" pursuit in order to maintain the defense. Therefore, the New Ordinance is void for vagueness.
137. Each of these defects would alone render the New Ordinance invalid because each would deprive Plaintiffs of substantial rights without due process. The sheer number of constitutional shortcomings make it imperative for the Court to enjoin the New Ordinance before it goes into effect.
b. The New Ordinance fails to meet the requirements of substantive due process.
138. The New Ordinance substantially burdens the liberty and property interests of Plaintiffs and others. These burdens are imposed on Plaintiffs and others without due process of law because the New Ordinance is not rationally related to any legitimate municipal interest. The sole function of the residential licensing scheme created by the New Ordinance is to deny the license to certain aliens. Regulation of immigration is not a legitimate municipal interest as that function is reserved to the federal government. Accordingly, the New Ordinance is not rationally related to any legitimate municipal interest and must be enjoined because it substantially burdens the liberty and property interests of Plaintiffs without due process oflaw.
139. The New Ordinance compels disclosure of private information, such as the occupants of a household, including family members, in order to obtain housing. Farmers Branch cannot demonstrate a legitimate interest, much less a substantial or compelling interest, served by requiring all citizens and aliens to disclose such personal information. Moreover, Farmers Branch cannot establish a rational or substantial relationship between the alleged public

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purpose and registration and licensing of occupants of rental housing. Accordingly, the New Ordinance burdens the privacy rights of Plaintiffs without due process of law.
140. The New Ordinance, therefore, deprives Plaintiffs of liberty and property interests without either substantive or procedural due process. Accordingly, the Court should preliminarily and permanently enjoin the effectuation and enforcement of the New Ordinance. Further, Plaintiffs have suffered injury to their property interests as a result of the enactment of the New Ordinance when such enactment served no legitimate public purpose. Plaintiffs are therefore entitled to recover their damages.
3. The New Ordinance violates the Equal Protection Clause of the Fourteenth Amendment.
141. The Fourteenth Amendment of the Constitution ofthe United States provides that "[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws." Generally, the Equal Protection Clause requires all similarly situated persons be treated substantially alike. The Equal Protection Clause also prohibits municipalities from creating laws for the purpose of treating people differently based on race, alienage, or national origin.
142. The New Ordinance is facially unconstitutional because it treats citizens and aliens differently and denies housing to aliens but not citizens. Further, the City adopted the New Ordinance because of, not merely in spite of, its adverse effect upon a discrete minorityHispanics. Merely by enacting the New Ordinance, the City achieved its purpose of discouraging Hispanics from renting in Farmers Branch. As the City intended, the New Ordinance will have a discriminatory effect if enforced because Hispanics are more likely to choose to live with someone ineligible for a residential occupancy permit.
143. The New Ordinance serves no compelling governmental purpose. In fact, the licenses issued in accordance with the New Ordinance exist solely to be denied to others.

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Further, the City has offered no explanation as to how the New Ordinance is the least restrictive means for achieving its goals. Accordingly, the New Ordinance violates the Equal Protection Clause because it has a discriminatory purpose and effect, and is not the least restrictive means for accomplishing a compelling government purpose.
144. Finally, the New Ordinance also violates the Equal Protection Clause because it imposes obligations on those renting apartment complexes and single-family residences without imposing those obligations on other residents. Illegal aliens are not prohibited from owning a home or entering into commercial real estate transactions. Illegal aliens are not prohibited from living in a home unless they attempt to lease from the homeowner. Accordingly, there is no rational basis for requiring a license for residents who lease but not residents who do not lease.
145. The Court should declare the New Ordinance unconstitutional and enjoin the effectuation and enforcement of the New Ordinance because it violates the Equal Protection Clause. Further, because the enacting of discriminatory ordinances, including the New Ordinance, has had a discriminatory effect, Farmers Branch should be ordered to take affirmative action to encourage Hispanics to lease in Farmers Branch.
4. The New Ordinance infringes on the right to travel. 146. Citizens of the United States have the right to travel and move from one state to another and within one state. This right is protected by the Privileges and Immunities clauses of both the Fourteenth Amendment and Article IV, Section 2 of the Constitution of the United States. A state or municipality cannot deny a citizen the right to reside in that state or municipality, nor can it deter or attempt to deter a citizen from moving into the state or municipality. By licensing the right to rent in Farmers Branch, the New Ordinance unconstitutionally limits the ability of citizens of the United States to move into Farmers Branch.

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147. In particular, the New Ordinance prohibits potential renters from signing a lease for an abode in Farmers Branch until they obtain an occupancy permit. A potential renter, however, cannot obtain a permit without specifying the residence or apartment where he or she will be leasing. Accordingly, a potential renter must select a residence or apartment, apply and obtain a license for that apartment, and then sign a lease. This three-part process is needlessly burdensome for those already in Farmers Branch and surrounding communities. For those farther away and outside the state, however, the process is extremely burdensome and, indeed, unmanageable for some. Further, unless a potential landlord agrees to hold an apartment open until a license is obtained, an applicant cannot truthfully fill out an application for an occupancy license. Knowingly submitting false information is an offense under the New Ordinance.
148. Accordingly, the New Ordinance deters interstate and intrastate travel (and commerce) by placing considerable burdens on the ability of citizens to obtain housing if they do not already live or work in close proximity to Farmers Branch. Because the New Ordinance interferes with the right to travel without serving an legitimate public interest, Plaintiffs request that the Court enjoin the effectuation and enforcement of the New Ordinance.
5. The New Ordinance violates the Commerce Clause of the United States Constitution.
149. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
150. Article I Section 8 of the Constitution of the United States gives Congress the power to "regulate Commerce with foreign Nations, and among the several States." State or local government regulations that unduly burden interstate commerce or discriminate against non-local interests, in either purpose or effect, violate the Commerce Clause.

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151. By requiring prospective tenants to obtain occupancy licenses before moving to Farmers Branch, the New Ordinance places substantial and undue burdens on those seeking to move to Farmers Branch from other localities or states.
152. Further, the New Ordinance will have a discriminatory effect on interstate commerce because prospective tenants from out of state will be burdened more than those already residing in Farmers Branch. In particular, the New Ordinance does not require an occupancy license for existing leases. Non-residents are subjected to the licensing scheme while current residents are not.
153. The purpose of the New Ordinance is also discriminatory because Farmers Branch seeks to push "undesirable" people who allegedly "burden" the public into other cities and states. Attempting to shift burdens to other localities violates the Commerce Clause.
154. Once again, no local interests allegedly protected by the New Ordinance outweigh the burdens placed on interstate commerce or justify the discrimination against non-Farmers Branch residents. The only function of the licensing scheme is to deny the license to certain aliens, although regulation of immigration is not a legitimate municipal interest.
155. Accordingly, the New Ordinance violates the Commerce Clause, and Plaintiffs request that the Court enjoin its effectuation and enforcement. C. Count Three: Violation Of The Fair Housing Act 42 U.S.C. § 3601.
156. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
157. The City has violated the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et. seq., in at least three ways. Under the FHA, it is unlawful to: (1) make unavailable or deny a dwelling to any person because of race, color, familial status, or national origin; (2) directly or indirectly make, print, or publish any notice, statement, or advertisement with respect to the

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rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, familial status, or national origin; or (3) to induce or attempt to induce, for profit, any person to sell or rent a dwelling by representations regarding the entry or prospective entry into the neighborhood of persons of a particular race, color, familial status, or national origin.
158. First, the New Ordinance is an attempt by the City to make rental housing unavailable to Hispanics and children of illegal aliens. By creating incentives for landlords to discriminate, denying housing to families of mixed citizenship, and targeting only renters, the City, through the New Ordinance, intends to make housing unavailable to Hispanics. Further, City leaders have repeatedly stated-without evidence-that children of illegal immigrants are a burden on the school system. Because the City cannot deny children of illegal immigrants the fundamental right to an education directly, the City has sought to deny them housing based on their familial connection to their parents, who will be denied a license. The New Ordinance is an attempt to deny housing to schoolchildren based on familial status.
159. Second, City leaders and a task force commissioned by the City, have stated that the number of Hispanic residents in Farmers Branch is too high and that the children of illegal immigrants are unwelcome in Farmers Branch. The passage of the unconstitutional New Ordinance is yet another highly publicized statement by the City that it prefers that whites, and not Hispanics, rent in Farmers Branch.
160. Third, in order to increase tax revenues, the City is attempting to induce new development by making representations that the number of Hispanics residing in Farmers Branch will decrease and that the number of white residents will increase.
161. The City is, therefore, engaged in discriminatory housing practices that have harmed and will harm Plaintiffs. Accordingly, Plaintiffs may obtain damages under 42 U.S.C. §

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3613, injunctive relief to prohibit enforcement of the New Ordinance, and affirmative relief requiring the City take actions to remedy the discriminative effects of its past and present violations of the FHA. D. Count Four: Violation Of 42 U.S.C. § 1981.
162. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
163. Title 42, Section 1981 of the United States Code ("Section 1981 ") provides that "all persons" within the jurisdiction of the United States shall have the same rights enjoyed by citizens: (1) to make and enforce contracts; and (2) to have the full and equal benefit of all laws and proceedings for the security of persons and property. Tenants in Farmers Branch are "persons" within the jurisdiction of the United States.
164. Citizens in Farmers Branch are permitted to make contracts with landlords but, as a result of the New Ordinance, other persons cannot. Further, the New Ordinance requires aliens and others without a license to abandon their leases without a hearing or face criminal penalties. By prohibiting occupancy without a license and denying that license to certain aliens, the City has created a class of people who must surrender possession of their leasehold property without an eviction proceeding. Accordingly, the New Ordinance violates Section 1981.
165. If enforced, the New Ordinance will violate the rights secured by Section 1981. Accordingly, Plaintiffs are entitled to a declaration that the New Ordinance violates Section 1981 and an injunction preventing effectuation and enforcement of the New Ordinance. E. Count Five: Violation Of The Equal Rights Amendment Of The Texas
Constitution. 166. Plaintiffs incorporates the allegations in the preceding paragraphs as if set forth fully in this paragraph.

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167. The New Ordinance violates the Equal Rights Amendment to the Texas Constitution. Article III, section 3(a) of the Texas Constitution, provides "equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." The guarantees contained in the Equal Rights Amendment to the Texas Constitution are applicable to all persons within the jurisdiction of Texas.
168. The New Ordinance discriminates against Hispanics both in intent and effect. Accordingly, the New Ordinance violates the Equal Rights Amendment to the Texas Constitution, and its enforcement and effectuation should be enjoined. F. Count Six: Attorneys' Fees.
169. Plaintiffs hereby incorporate the allegations in the preceding paragraphs as if fully set forth herein.
170. As a result of the City's conduct, Plaintiffs have been required to obtain the undersigned counsel to prosecute and present the claims asserted herein.
171. This action is a suit to enforce the provisions of 42 U.S.C. § 1981 and 42 U.S.C. § 1983. Accordingly, Plaintiff may recover attorneys' fees under 42 U.S.C. § 1988(c). Additionally, Plaintiff may recover attorneys' fees and costs under 42 U.S.C. § 3613(c)(2).
VI. JURY DEMAND Plaintiffs hereby demand a trial by jury of all issues so triable.
VII. REQUEST FOR RELIEF In light of the foregoing, Plaintiffs request that the Court, upon notice to Defendant, issue a temporary retraining order and, following any necessary hearing with respect thereto, enter a preliminary injunction prohibiting the effectuation and enforcement of the New Ordinance

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pending entry of a final judgment in favor of Plaintiffs and against Farmers Branch, providing
for the following relief:
1. A declaration that Ordinance 2952 is unconstitutional and contrary to applicable federal and state law;
2. A permanent injunction prohibiting the effectuation, enforcement, and threatened enforcement of Ordinance 2952;
3. A declaration that the City adopted Ordinances 2892, 2903, and 2952 for the unlawful purpose of discriminating against Hispanics;
4. A permanent injunction prohibiting the City from enacting, effectuating, or enforcing any lease-related licensing ordinances which address citizenship or immigration status without making, recording, and retaining factual findings concerning the problem to be resolved and considering available alternatives;
5. An order requiring the City to take affirmative steps to remedy past discrimination, including the publication of statements in at least two newspapers of general circulation, and on its official municipal website, that Farmers Branch welcomes minority, and especially Hispanic, renters;
6. Other affirmative injunctive relief to remediate the discriminatory effect of the City's unconstitutional actions;
7. Actual, compensatory, and incidental damages;
8. An award of reasonable attorneys' fees pursuant to 42 U;S.C. § 1988(c), 42 U.S.C. § 3613(c)(2), and any other applicable statute;
9. Costs of Court; and
10. Any other relief, at law or in equity, to which Plaintiffs may be entitled and which this Court deems just and proper.

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Respectfully submitted,

RONT,PLLC

.

I /

No. 02967035 V

Vv Renard

. .J

rNo. 16768500 V ,

Mic 1L. Smith

.- / .

State Bar No. 24027989

C. Dunham Biles

State Bar No. 24042407

171 7 Main Street 4800 Comerica Bank Tower Dallas, Texas 75201 Telephone: (214) 653-4000 Facsimile: (214) 653-1015

ATTORNEYS FOR PLAINTIFFS

PLAINTIFFS' COMPLAINT AND JURY DEMAND
5161533.13 8001-133

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Case 3:08-cv-01551-B Document 1 Filed 09/03/08 Page 50 of 64 PageID 50
•FARMERS
BRANCH
CITY OF FARMERS BRANCH ORDINANCE NO. 2952
AN ORDINANCE PROVIDING FOR RESIDENTIAL OCCUPANCY Ll· CENSES; PROVIDING FOR VERIFICATION OF ALIENS' IMMIGRATION STATUS WITH THE FEDERAL GOVERNMENT CONSISTENT ·WITH FEDERAL LAW; CREATING OFFENSES; PROVIDING FOR ENFORCEMENT; PROVIDING FOR JUDICIAL REVIEW; PROVIDING A PENALTY; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, federal law prescribes certain conditions (found principally in Title 8, United States Code, Sections 1101, et seq.), that must be met before an alien may be lawfully present in the United States; and WHEREAS, aliens not lawfully present in the United States, as determined by federal law, do not meet such conditions as a matter of law when present in the City ofFarmers Branch; and WHEREAS, pursuant to Title 8, United States Code Sections 1621, et seq., certain aliens not lawfully present in the United States are not eligible for certain State or local public benefits, including licenses; and WHEREAS, Title 8, United States Code, Section 1324(a)(l)(A), prohibits the harboring of aliens not lawfully present in the United States, including, as the cowts of the United States have held, the provision ofresidential accommodations to such aliens; and WHEREAS, the City ofFarmers Branch is authorized to adopt ordinances pursuant to its police power to protect the heath, safety, and welfare ofits citizens; and WHEREAS, the City of Farmers Branch is authorized to adopt regulations touching on aliens that are consistent with pertinent federal laws; and WHEREAS, it is the intent of the City of Farmers Branch to enact regulations that are harmonious with federal immigration law and which aid in its enforcement; and WHEREAS, it is not the intent of the City ofFarmers Branch to alter, supplant. disrupt, or interfere with federal immigration Jaw; and
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\
WHEREAS, the provisions of this ordinance shall be applied uniformly and in a nondiscriminatory manner, and the application of these provisions must not differ based on a person's race, religion, or national origin; and
WHEREAS, the City of Farmers Branch has complied with all prerequisites for the passage ofthis Ordinance; and
WHEREAS, the meeting at which this Ordinance was adopted was properly posted in accordance with the Open Meetings Act, and this Ordinance was considered and approved in an open meeting of the City Council with opportunity for public comment regarding its terms and provisions; and
WHEREAS, the purposes of this Ordinance are to promote the public health, safety, and general welfare,
NOW, mEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF mE CITY OF FARMERS BRANCH, TEXAS:
Section 1: Chapter 26, Businesses, Article m, Single-Family Rental Housing, of the
Code of Ordinances, City ofFarmers Branch, Texas, is hereby amended by adding the following as Section 26-79:
"Seetion 26-79. Citizenship or Immigration Status Verification
(A) Definitions
The following terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, and shall be construed so as to be consistent with state and federal law, including federal immigration law: (1) "Alien" means any person not a citizen or national of the United States, as
set forth in Title 8, United States Code, Section 1101(3), as amended. (2) "Lessor" means a person who leases or rents a single family residence as
or on behalf ofa landlord. (3) "Occupant" means a person, age 18 or older, who resides at a single fam-
ily residence. A temporary guest of an occupant is not an occupant for the purposes ofthis section.
(B) Residential Oeeapucy Licenses
(I) Prior to occupying any leased or rented single-family residence, each occupant must obtain a residential occupancy license.
(2) It is the occupant's responsibility to submit an occupancy license application to the building inspector, pay a fee of $5 to the City, and obtain a
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residential occupancy license. If there are multiple occupants seeking to occupy a single rental unit, each occupant must obtain his or her own residential occupancy license. Multiple applicants for occupancy of the same single family residence may designate one of their number as their agent to submit the required application fonns, provided that each individual applicant signs his or her own application fonn. The building inspector may establish a procedure whereby an applicant (or designated agent) may submit the application fonn(s), signed by the applicant(s), via facsimile or website portal. (3) The lessor shall notify each prospective tenant ofthe requirements of paragraph (BX2) ofthis section. (4) A residential occupancy license is valid only for as long as the occupant continues to occupy the single family residence for which the license was issued. Any relocation to a different leased or rented dwelling unit requires a new residential occupancy license.
(5) An application for a residential occupancy license shall be made on a fonn furnished by the building inspector for such purpose. The fonn shall require the following information: (a) full legal name ofthe occupant;
(b) mailing address ofthe occupant;
(c) address of the single family residence for which the occupant is applying, ifdifferent from the mailing address;
(d) name and business address ofthe lessor;
(e) date oflease or rental commencement;
(f) date ofbirth of the occupant;
(g) the occupant's country ofcitizenship; (h) if the applicant is a United States citizen or national, a signed declaration that the applicant is a United States citizen or national; the fonn shall state that it is a crime under Title 18, United States Code, Section 1015(e), for a person to knowingly make any false statement or claim that he or she is, or at any time has been, a citizen or national of the United States, with the intent to obtain on behalf of himself or herself, or any other person, any Federal or State benefit or service;
-or(i) if the applicant is not a United States citizen or national, an identi-
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fication number assigned by the federal government that the occupant believes establishes his or her lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, I-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the applicant does not know of any such number, he or she shall so declare. Such a declaration shall be sufficient to satisfy this requirement.
(6) Upon receipt of the completed application and the payment of the application fee as set forth above, the building inspector shall immediately issue a residential occupancy license. The building inspector shall not deny a residential occupancy license to any occupant who submits a completed application and pays the application fee.
(7) The information provided on an application may be disclosed to the federal government according to paragraph (D) of this section, pursuant to Title 8, United States Code, Section 1373.
(C) Offenses
(I) It shall be an offense for a person to be an occupant of a leased or rented single family residence without first obtaining a valid occupancy license permitting the person to occupy that single family residence.
(2) It shall be an offense for a person to knowingly make a false statement of fact on an application for a residential occupancy license.
(3) It shall be an offense for a person to create, possess, sell, or distribute a counterfeit residential occupancy license.
(4) It shall be an offense for a lessor to lease or rent a single family residence without obtaining and retaining a copy ofthe residential occupancy license of any and all known occupants.
(5) It shall be an offense for a landlord to fail to maintain at the landlord's residence or regular place of business a copy of the residential occupancy license of each known occupant of a leased or rented single-family residence, or to fail to make 8uch copy available for inspection by the Building Inspector during regular business hours.
(6) It shall be an offense for a lessor to lease a single family residence without including in the terms of the lease a provision stating that occupancy of the premises by a person, age 18 or older, who does not hold a valid residential occupancy license constitutes an event of default under the lease.
(7) It shall be an offense for a landlord or any agent of a landlord with authority to initiate proceedings to terminate a lease or tenancy to knowingly permit an occupant to occupy a single family residence without a valid
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residential occupancy license. It is a defense to a prosecution under this paragraph that the landlord or agent has commenced and diligently pursued such steps as may be required under the applicable law and lease provisions to tenninate the lease or tenancy.
(D) Euforsement
The building inspector shall enforce the requirements ofthis section as follows.
b) Promptly after iasuance of a residential occupancy license to any occupant
who has not declared himself or herself to be either a citizen or a national ofthe United States in accordance with paragraph (B)(S)(h) ofthis section, the building inspector shall, pursuant to Title 8, United States Code, Section 1373(c), verify with the federal government whether the occupant is an alien lawfully present in the United States. The building official shall submit to the federal government the identity and status information contained on the application for the residential occupancy license, along with any other information requested by the federal government.
(2) If the federal government reports the status of the occupant as an alien not lawfully present in the United States, the building inspector shall send the occupant, at the address of the single family residence shown on the application for residential occupancy license, a deficiency notice. The deficiency notice shall state that on or before the 60111 day following the date of the notice, the occupant may obtain a conection of the federal government's records and/or provide additional information establishing that the occupant is not an alien not lawfully present in the United States. If the occupant provides such additional information, the building inspector shall promptly submit that information to the federal government. The occupant may also submit information directly to the federal government.
(3) Ifthe federal government notifies the building inspector that it is unable to conclusively verify or ascertain the immigration status of the occupant, or that the federal government's determination of immigration status is tentative, the building inspector shall take no further action until final verification from the federal government concerning the immigration status ofthe occupant is received. The building inspector shall not attempt to make an independent determination of any occupant's lawful or unlawful presence in the United States. If the federal government notifies the building inspector that more information is required before the federal government can issue a final verification of the occupant's immigration status, or that the occupant may contest the federal government's determination of status, the building inspector shall notify the occupant accordingly.
(4) No earlier than the 61 11 day after a deficiency notice has been sent to an occupant, the building inspector shall again make an inquiry to the federal government seeking to verify or ascertain the citizenship or immigration
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status of the occupant. If the federal government reports that the occupant is an alien who is not lawfully present in the United States, the building inspector shall send a revocation notice to both the occupant and the lessor. The revocation notice shall revoke the occupant's residential occupancy license effective 15 days after the date of the revocation notice.
(5) If a landlord or the landlord's agent commits an offense under paragraph (C)(7) of this section, the building inspector shall suspend the landlord's rental license.
(6) During the period of suspension, the landlord shall not collect any rent, payment, fee, or any other fonn of compensation from, or on behalf of, any occupant or tenant in the single family residence.
(7) The suspension shall terminate one day after the landlord or the landlord's agent submits to the building inspector a sworn affidavit of the owner or agent stating that each and every violation of paragraph (C)(7) of this section on which revocation was based bas ended. The affidavit shall include a description of the specific measures and actions taken to end the violation.
(8) The suspension of a landlord's rental license may be appealed to the city council pursuant to Section 26-78.
(9) The terms of this section shall be applied uniformly, and enforcement procedures shall not differ based on a person's race, ethnicity, religion, or national origin.
(E) Judicial Review
(I) Any landlord or occupant who has a received a deficiency notice or a revocation notice may seek judicial review of the notice by filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas.
(2) In the event that such a suit is filed prior to or within 15 days after the date of the revocation notice, if any, revocation is automatically stayed until final conclusion ofjudicial review.
(3) The landlord or occupant may seek judicial review of the question of whether the building inspector complied with the provisions of this ordinance or other relevant provisions of federal, state, or local law, or the question of whether the occupant is lawfully present in the United States, or of both such questions.
(4) In a suit for judicial review in which the question of whether the occupant is lawfully present in the United States is to be decided, that question shall be determined under federal law. In answering the question, the court
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shall be bound by any conclusive dctcnnination of immigration status by
the federal government. A determination is conclusive U: under federal
law, it would be given preclusive effect on the question.
(5) The court shall take judicial notice of any verification of the citizenship or immigration status of the occupant previously provided by the federal government. The court may, and at the request of a party shall, request the federal government to provide, in automated, documentary, or testimonial form, a new verification of the citizenship or immigration status of the occupant pursuant to Title 8, United States Code, Section 1373(c). The most recent determination of the immigration status of an individual by the federal government shall create a rebuttable presumption as to the individual's immigration status.
(F) Construction
The requirements and obligations of this section shall be implemented in a manncr fully consistent with federal law regulating immigration and protcetiog the civil rights ofall citizens, nationals, and aliens."
Section 2: Chapter 26, Businesses, Article Ill, Single-Family Rental Housing, of the Code of Ordinances, City of Farmers Branch, Texas, is hereby amended by adding the following as paragraph (f) of Section 26-78, Appeals to the City:
"(f) This section does not apply to any decision or order of the building inspector issuing a deficicocy notice or a revocation notice with respect to a residential occupancy license pursuant to Sections 26-79(0)(2) or 26-79(0)(4). Any ·such decision or order may be appealed only through a suit for judicial review pursuant to Section 26-79(E)."
Section 3: Chapter 26, Businesses, Article IV, Apartment Complex Rental, of the Code of Ordinances, City of Farmers Branch, Texas, is hereby amended by adding the following as Section 26-1 19: ·
"Section 16-119. Citizenship or Immigration Status Verification
(A) Definitions
The following terms and phrases, when used in this section. shall have the mean-
ings ascribed to them in this section, and shall be construed so as to be consistent
with state and federal law, including federal immigration law:
(I) "Alien" means any person not a citizen or national of the United States, as set forth in Title 8, United States Code, Section 1101(3), as amended.
(2) "Apartment" means a dwelling unit within an apartment complex.
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(3) "Landlord" means the owner of an apartment.
(4) "Lessor" means a person who leases or rents an apartment as or on behalf ofa landlord.
(5) "Occupant" means a person, age 18 or older, who resides at an apartment. A temporary guest of an occupant is not an occupant for the purposes of this section.
(B) Residential Oeeupancy Licenses
{I) Prior to occupying any leased or rented apartment, each occupant must obtain a residential occupancy license.
(2) It is the occupant's responsibility to submit an occupancy license application to the building inspector, pay a fee of $5 to the City, and obtain a residential occupancy license. If there are multiple occupants seeking to occupy a single apartment, each occupant must obtain his or her own residential occupancy license. Multiple applicants for occupancy of the same apartment may designate one of their number as their agent to submit the required application forms, provided that each individual applicant signs his or her own application form. The building inspector may establish a procedure whereby an applicant (or designated agent) may submit the application form(s), signed by the applicant(s), via facsimile or website portal.
(3) The lessor shall notify each prospective tenant ofthe requirements of paragraph (B)(2) ofthis section.
(4) A residential occupancy license is valid only for as long as the occupant continues to occupy an apartment within the same apartment complex as the apartment for which the license was issued. Any relocation to a leased or rented single-family residence or to an apartment within a different apartment complex requires a new residential occupancy license.
(5) An application for a residential occupancy license shall be made on a form furnished by the building inspector for such purpose. The form shall require the following information: (a) full legal name ofthe occupant;
(b) mailing address of the occupant;
(c) address of the apartment for which the occupant is applying, if different from the mailing address;
(d) name and business address of the lessor;
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(e) date oflease or rental commencement; (f) date ofbirth of the occupant; (g) the occupant's country ofcitizenship;
(h) if the applicant is a United States citizen or national, a signed declaration that the applicant is a United States citizen or national; the fonn shall state that it is a crime under Title 18, United States Code, Section 1015(e), for a person to knowingly make any false statement or claim that he or she is, or at any time has been, a citizen or national of the United States, with the intent to obtain on behalf of himself or herself, or any other person, any Federal or State benefit or service;
-or-
(i) if the applicant is not a United States ~:itizen or national, an identification number assigned by the federal government that the occupant believes establishes his or her lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If
the applicant does not know of any such number, be or she shall so de-
clare. Such a declaration shall be sufficient to satisfy this requirement.
(6) Upon receipt of the completed application and the payment of the application fee as set forth above, the building inspector shall immediately issue a residential occupancy license. The building inspector shall not deny a residential occupancy license to any occupant who submits a completed application and pays the application fee.
(7) The information provided on an application may be disclosed to the federal government according to paragraph (D) of this section, pursuant to Title 8, United States Code, Section 1373.
(C) Offenses
(1) It shall be an offense for a person to be an occupant of a leased or rented apartment without first obtaining a valid occupancy license permitting the person to occupy that apartment.
(2) It shall be an offense for a person to knowingly make a false statement of
fact on an application for a residential occupancy license.
(3) It shall be an offense for a person to create, possess, sell, or distribute a counterfeit residential occupancy license.
(4) It shall be an offense for a lessor to lease or rent an apartment without ob-
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taining a copy of the residential occupancy license of any and all known occupants.
(5) It shall be an offense for a person responsible for the management of an apartment complex to fail to maintain on the premises of the apartment complex a copy of the residential occupancy license of each known occupant of the apartment complex, or to fail to make such copy available for inapection by the Building Inspector during regular business hours.
(6) It shall be an offense for a lessor to lease an apartment without including in the tenns ofthe lease a provision stating that occupancy ofthe premises by a person, age 18 or older, who does not hold a valid residential occupancy license constitutes an event ofdefault under the lease.
(7) It shall be an offense for a landlord or any agent of a landlord with authority to initiate proceedings to tenninate a lease or tenancy to knowingly permit an occupant to occupy an apartment without a valid residential occupancy license. It is a defense to a prosecution under this paragraph that the landlord or agent has commenced and diligently pursued such steps aa may be required under the applicable law and lease provisions to terminate the lease or tenancy.
(D) Enforcement
The building inspector shall enforce the requirements ofthis section aa follows.
(I) Promptly after issuance of a residential occupancy license to any occupant who has not declared himself or herself to be either a citizen or a national ofthe United States in accordance with paragraph (B)(S)(h) of this section, the building inspector shall, pursuant to Title 8, United States Code, Section 1373(c), verify with the federal government whether the occupant is an alien lawfully present in the United States. The building official shall submit to the federal government the identity and status infonnation contained on the application for the residential occupancy license, along with any other infonnation requested by the federal government.
(2) If the federal government reports the status of the occupant aa an alien not lawfully present in the United States, the building inspector shall send the occupant, at the address of the apartment shown on the application for residential occupancy license, a deficiency notice. The deficiency notice shall state that on or before the 60th day following the date of the notice, the occupant tnay obtain a correction of the federal government's records and/or provide additional information establishing that the occupant is not an alien not lawfully present in the United States. If the occupant provides such additional infonnation, the building inspector shall promptly submit that information to the federal government. The occupant may also submit information directly to the federal government.
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(3) If the federal government notifies the building inspector that it is unable to conclusively verify or ascertain the immigration status of the occupant, or that the federal government's determination ofimmigrstion status is tentative, the building inspector shall take no further action until final verification from the federal government concerning the immigrstion status of the occupant is received. The building inspector shall not attempt to malce an independent determination of any occupant's lawful or unlawful presence in the United States. If the federal government notifies the building inspector that more information is required before the federal government can issue a final verification of the occupant's immigrstion status, or that the occupant may contest the federal government's determination of status, the building inspector shall notify the occupant accordingly.
(4) No earlier than the 6111 day after a deficiency notice bas been sent to an occupant, the building inspector shall again make an inquiry to the federal government seeking to verify or ascertain the citizenship or immigration status of the occupant. If the federal government reports that the occupant is an alien who is not lawfully present in the United States, the building inspector shall send a revocation notice to both the occupant and the lessor. The revocation notice shall revoke the occupant's residential occupancy license effective 1S days after the date of the revocation notice.
(5) If a landlord or the landlord's agent commits an offense under paragraph (C)(7) of this section, the building inspector shall suspend the landlord's apartment complex license.
(6) During the period of suspension, the landlord shall not collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any occupant or tenant in the apartment complex.
(7) The suspension shall terminate one day after the landlord or the landlord's agent submits to the building inspector a sworn affidavit of the owner or agent stating that each and every violation of paragraph (C)(7) of this section on which revocation was based bas ended. The affidavit shall include a description of the specific measures and actions taken to end the violation.
(8) The suspension of a landlord's rental license may be appealed to the city council pursuant to Section 26-118.
(9) The terms of this section shall be applied uniformly, and enforcement procedures shall not differ based on a person's race, ethnicity, religion, or national origin.
(E) Judlc:lal Review
(1) Any landlord or occupant who has a received a deficiency notice or a
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revocation notice may seek judicial review of the notice by filing suit against the building inspector in a court ofcompetent jurisdiction in Dallas County, Texas.
(2) In the event that such a suit is filed prior to or within 15 days after the date of the revocation notice, if any, revocation is automatically stayed until final conclusion ofjudicial review.
(3) The landlord or occupant may seek judicial review of the question of whether the building inspector complied with the provisions of this ordinance or other relevant provisions of federal, state, or local law, or the question of whether the occupant is lawfully present in the United States, or of both such questions.The landlord or occupant may seek judicial review of the question of whether the building inspector complied with the provisions of this ordinance or other relevant provisions of federal, state, or local law, or the question of whether the occupant is lawfully present in the United States, or ofboth such questions.
(4) In a suit for judicial review in which the question of whether the occupant is lawfully present in the United States is to be decided, that question shall be determined under federal law. In answering the question, the court shall be bound by any conclusive determination of immigration status by the federal government. A determination is conclusive if, under federal law, it would be given preclusive effect on the question.
(5) The court shall take judicial notice of any verification of the citizenship or immigration status of the occupant previously provided by the federal government. The court may, and at the request of a party shall, request the federal government to provide, in automated, documentary, or testimonial form, a new verification of the citizenship or immigration status of the occupant pursuant to Title 8, United States Code, Section 1373(c). The most recent determination ofthe immigration status of an individual by the federal government shall create a rebuttable presumption as to the individual's immigration status.
(F) Coostruetioo
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 ofall citizens, nationals, and aliens."
Section 4: Chapter 26, Businesses, Article IV, Apartment Complex Rental, of the Code of Ordinances, City ofFarmers Branch, Texas, is hereby amended by adding the following as paragraph (f) of Section 26-118, Appeals to the City:
"(f) This section does not apply to any decision or order of the building inspector issuing a deficiency notice or a revocation notice with respect to a resi-
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dential occupancy license pursuant to Sections 26-119(0)(2) or 26-119(0)(4). Any such decision or order may be appealed only through a suit for judicial review pursuant to Section 26-119(0)(9)."
Section 5: Penalty
Upon conviction, any person committing any act or omission declared to be an offense under the provisions of this ordinance shall be fined in a sum not to exceed $500. A separate offense shall be deemed committed upon each day during or on which a violation occurs or continues.
Section 6: Severability
The terms and provisions of this ordinance are severable and are governed by Section 112 of the Code of Ordinances, City of Farmers Branch, Texas. as amended. If the application of this ordinance to any person, entity, or circumstance is invalid, the invalidity does not affect other applications of the ordinance that can be given effect without the invalid application, since the same would have been enacted by the City Council without regard to any such invalid application.
Section 7; Effective Date
This ordinance shall become effective on the 15th day after the date on which a final and appealable judgment is rendered by the United States District Court for the Northern District of Texas in the action styled Villas at Parkside Partners d/b/a Villas at Parkside, et a/. v. City of Farmers Branch, Civil Action No. 3:06-CV-2371-L (consolidated with Civil Actions Nos. 3:06CV-2376-L and 3:07-CV-0061-L). The city secretary is directed to, within 15 days after such a judgment is rendered, publish notice of the date on which this ordinance will take effect in the official city newspaper and on the city's website.
This ordinance applies only to leases or tenancies that commence on or after its effective date.

Cindee Peters, City Secretary

Bob Phelps, Mayor

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~JS 44 (Rev. 12/07)

CIVIL COVER SHEET

(C) Attorney's (Finn Name, Address, and Telephone Number)

Attorneys (If Known)

William A. Brewer Ill, Bickel & Brewer, 1717 Main St., Ste. 4800, Dallas, Texas, 75201, 214 653-4000

William "Trey" Dowdy, Strasburger & Price, 901 Main Street, Ste. 4400, Dallas, Texas, 75202, (214) 651-4300

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

0 I U.S. Government Plaintiff

1!!1 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in one Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

0 I 0 I Incorporated or Principal Place

0 4 04

of Business In This State

0 2 U.S. Government Defendant

0 4 Diversity (Indicate Citizenship orParties in Item III)

Citizen of Another State

0 2 0 2 Incorporated and Principal Place of Business In Another State
0 3 0 3 Foreign Nation

0 5 05 Cl 6 0 6

IV NATURE OF SUIT (Place an "X" in One Box Onlv)

lt·\b

T1mi\R._

fY

',, ,.

0 110 Insurance

PERSONAL INJURY

PERSONAL INJURY 0 610 Agriculture

0 422 Appeal28 USC 158

0 400 State Reapportionment

0 120Marine 0 130 Miller Act

0 310 Airplane 0 315 Airplane Product

0 362 Personal InjuryMed. Malpractice

0 620 Other Food & Drug 0 625 Drug Related Seizure

0 423 Withdrawal
28 usc 157

0 410 Antitrust 0 430 Banks and Banking

0 140 Negotiable Instrument

Liability

0 365 Personal Injury -

orProperty 21 USC 881

0 450 Connnerce

0 150 Recovery of Overpayment 0 320 Assault, Libel &

Product Liability 0 630 Liquor Laws

Hm'rlii!!I!!IO 460 Deportation

& EnforcementofJudgmen

Slander

0 368 Asbestus Personal 0 640 R.R. & Truck

0 820 Copyrights

0 470 Racketeer Influenced and

0 151 Medicare Act

0 330 Federal Employers'

Injury Product

0 650 Airline Regs.

0 830 Patent

Corrupt Organizations

0 152 Recovery of Defaulted

Student Loans

0

(Excl. Veterans)

0

0 153 Recovery of Overpayment

of Veteran's Benefits

0

0 160 Stockholders' Suits

0

Liability 340 Marine 345 Marine Product
Liability 350 Motor Vehicle 355 Motor Vehicle

Liability
PERSONAL PROPERTY 0 370 Other Fraud 0 371 Truth in Lending 0 380 Other Personal
Property Damage

0 660 Occupational Safety/Health
0 690 Other
0 710 Fair Labor Standards Act

0 840 Trademark
0 861 HIA (!395ft) 0 862 Black Lung (923)

-0 0 0 0

480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Connnoditiesi
Exchange

0 875 Customer Challenge

0 190 Other Contract

Product Liability

0 385 Property Damage 0 720 Labor/Mgmt. Relations 0 863 DIWC/DIWW (405(g))

12 USC3410

0 195 Contract Product Liability 0 360 Other Personal

Product Liability

0 730 Labor/Mgmt.Reporting 0 864 SSID Title XVI

0 890 Other Statutory Actions

0 196 Franchise

Injury

& Disclosure Act

0 865 RSI (405(g))

0 891 Agricultural Acts

1)::
0 210 Land Condemnation

.lll!li:IVII' Rln\-:.rn 0 441 Voting

·NS > 0 740 Railway Labor Act 0 510 Motions to Vacate 0 790 Other Labor Litigation

iiJrFEDEKA TA· >rWiiii.itiS· 0 892 Economic Stabilization Act 0 870 Taxes (U.S. Plaintiff 0 893 Environmental Matters

0 220 Foreclosure 0 230 Rent Lease & Ejectment 0 240 Tarts to Land 0 245 Tort Product Liability 0 290 All Other Real Property

0 0
0 0

442 Employment

443 Housing/

Acconnnodations

0

444 Welfare

0

445 Amer. w/Disabilities - 0

Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other

-0 791 Empl. Ret. Inc.

Security Act

0

.,, 'IMMlGKA'l'lQN' 0 462 Naturalization Application

or Defendant)
8711RS-ThirdParty
26 usc 7609

0 894 Energy Allocation Act 0 895 Freedom oflnformation
Act 0 900Appeal ofFee Determination
Under Equal Access

Employment

0 550 Civil Rights

0 463 Habeas Corpus -

to Justice

0 446 Amer. w/Disabilities - 0 555 Prison Condition

Alien Detainee

0 950 Constitutionality of

Other

0 465 Other Immigration

State Statutes

[:!( 440 Other Civil Rights

Actions

V. ORIGIN
~ 1 Original
Proceeding

(Place an "X" in One Box Only)

0 2 Removed from

0 3 Remanded from

State Court

Appellate Court

0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict

Reopened

asnoetch1efr dJstnct

Litigation

Appeal to District

0

7

Judge from Magistrate

Jud ent

Csitee etheaUtlt.aS.cCnievidl Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
VI. CAUSEOFACTION~~~~~----------------------------------------------------------­ Brief description of cause:
see attached

VII. REQUESTED IN COMPLAINT:

0 CHECK IF THIS IS A CLASS ACTION
UNDER F .R.C.P. 23

DEMAND$

CHECK YES only if demanded in complaint:

JURY DEMAND:

mlf Yes 0 No

VIII. RELATED CASE(S)

IF ANY

(See instructions):

DOCKETNUMBER 3:06-CV-2371

DATE

FOR OFFICE USE ONLY

- - - - - - APPLYING IFP

- - - - - JUDGE

MAG. JUDGE _ _ _ _ _ _ _ _ __

Case 3:08-cv-01551-B Document 1 Filed 09/03/08 Page 64 of 64 PageID 64
"
I. Plaintiffs Villas at Parkside Partners d/b/a Villas at Parkside, Lakeview at Parkside Partners d/b/a Lakeview at Parkside, Chateau Ritz Partners d/b/a Chateau De Ville and Mary Miller Smith. VI. Cause of Action Cite the U.S. Civil Statute under which you are filing: 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 3610 Brief description of cause: Civil rights action seeking damages, declaratory , and injunctive relief regarding Defendant's unconstitutional ordinance. VII. Requested in Complaint Demand $: Damages, declaratory, and injunctive relief
5167170.1 8001-133

 
 Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 1 of 28
CLOSED,JURY,LEAD
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:08−cv−01551−B

Villas at Parkside Partners et al v. The City of Farmers Branch Texas Assigned to: Judge Jane J. Boyle Case in other court: 10−10751
10−10928 Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 09/03/2008 Date Terminated: 03/25/2010 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Civil Rights Jurisdiction: Federal Question

Villas at Parkside Partners doing business as Villas at Parkside

represented by James S Renard Bickel & Brewer 1717 Main St Suite 4800 Dallas, TX 75201 214/653−4000 Email: jsr@bickelbrewer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Dunham Biles Lewis Brisbois Bisgaard & Smith LLP 2100 Ross Avenue Suite 2000 Dallas, TX 75201 214/722−7100 Fax: 214/722−7111 Email: dunham.biles@lewisbrisbois.com ATTORNEY TO BE NOTICED

Farrin R Anello ACLU Foundation Immigrants' Rights Project 125 Broad St 18th Floor New York, NY 10004 212/549−2660 Fax: 212/549−2654 Email: fanello@aclu.org TERMINATED: 09/24/2008 PRO HAC VICE

Henry L Solano Dewey & LeBoeuf LLP 1301 Avenue of the Americas New York, NY 10019 212/259−8000 PRO HAC VICE

Jack GB Ternan Brewer Attorneys & Counselors 1717 Main Street, Suite 5900 Dallas, TX 75201 214/653−4000 Fax: 214/653−1014 Email: jgt@brewerattorneys.com ATTORNEY TO BE NOTICED

Michael L Smith Brewer, Attorneys & Counselors

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 2 of 28

750 Lexington Avenue, 14th Floor New York, NY 10022 212−489−1400 Fax: 212−751−2849 Email: mls@brewerattorneys.com ATTORNEY TO BE NOTICED

Nina Perales Mexican American Legal Defense & Educational Fund Inc 110 Broadway Suite 300 San Antonio, TX 78205 210/224−5476 Fax: 210/224−5382 FAX Email: nperales@maldef.org ATTORNEY TO BE NOTICED

William A Brewer , III Brewer, Attorneys & Counselors 750 Lexington Avenue, 14th Floor New York, NY 10022 212−489−1400 Fax: 212−751−2849 Email: wab@brewerattorneys.com ATTORNEY TO BE NOTICED

Plaintiff
Lakeview at Parkside Partners Ltd doing business as Lakeview at Parkside

represented by James S Renard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Dunham Biles (See above for address) ATTORNEY TO BE NOTICED

Farrin R Anello (See above for address) TERMINATED: 09/24/2008 PRO HAC VICE

Jack GB Ternan (See above for address) ATTORNEY TO BE NOTICED

Michael L Smith (See above for address) ATTORNEY TO BE NOTICED

Nina Perales (See above for address) ATTORNEY TO BE NOTICED

William A Brewer , III (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Chateau Ritz Partners doing business as Chateau De Ville

represented by James S Renard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 3 of 28

C Dunham Biles (See above for address) ATTORNEY TO BE NOTICED

Farrin R Anello (See above for address) TERMINATED: 09/24/2008 PRO HAC VICE

Jack GB Ternan (See above for address) ATTORNEY TO BE NOTICED

Michael L Smith (See above for address) ATTORNEY TO BE NOTICED

Nina Perales (See above for address) ATTORNEY TO BE NOTICED

William A Brewer , III (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mary Miller Smith

represented by James S Renard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Dunham Biles (See above for address) ATTORNEY TO BE NOTICED

Farrin R Anello (See above for address) TERMINATED: 09/24/2008 PRO HAC VICE

Jack GB Ternan (See above for address) ATTORNEY TO BE NOTICED

Michael L Smith (See above for address) ATTORNEY TO BE NOTICED

Nina Perales (See above for address) ATTORNEY TO BE NOTICED

William A Brewer , III (See above for address) ATTORNEY TO BE NOTICED

V. Consol Plaintiff Valentin Reyes

represented by Nina Perales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 4 of 28
David Broiles 2400 Indian Cove Fort Worth, TX 76108 817−246−7801 Email: davidbroiles@gmail.com
Diego Manuel Bernal Mexican American Legal Defense & Educational Fund Inc 110 Broadway St Suite 300 San Antonio, TX 78205 210/224−5476 Fax: 210/224−5382 Email: dbernal@maldef.org ATTORNEY TO BE NOTICED
Dominic Valerian Dewey & LeBoeuf LLP 333 S Grand Ave Los Angeles, CA 90071 213/621−6208 Email: dvalerian@dl.com PRO HAC VICE
Farrin R Anello (See above for address) TERMINATED: 09/13/2010 PRO HAC VICE
Jennifer C Newell ACLU Foundation Immigrant's Rights Project 39 Drumm St San Francisco, CA 94111 415/343−0774 Fax: 415/395−0950 Email: jnewell@aclu.org ATTORNEY TO BE NOTICED
Lisa Graybill Southern Poverty Law Center 1055 St Charles Avenue Suite 505 New Orleans, LA 70130 504−486−8982 Fax: 504−486−8947 Email: lisa.graybill@splcenter.org ATTORNEY TO BE NOTICED
Lucas Guttentag ACLU Foundation Immigrants' Rights Project 39 Drumm St San Francisco, CA 94111 415/343−0773 PRO HAC VICE
Marisa Bono Mexican American Legal Defense & Educational Fund Inc 110 Broadway Suite 300 San Antonio, TX 78205

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 5 of 28

210/224−5476 Fax: 210/224−5382 Email: mbono@maldef.org ATTORNEY TO BE NOTICED

Marisol L Perez DeMott McChesney Curtright & Armendariz LLP 800 Dolorosa Street, Suite 100 San Antonio, TX 78207 210/354−1844 Fax: 210/212−2116 Email: marisol@demottusa.com

Omar C Jadwat ACLU Foundation Immigrants' Rights Project 125 Broad St 18th Floor New York, NY 10004 212/549−2660 Fax: 212/549−2654 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Consol Plaintiff Alicia Garcia

represented by Alicia Garcia 2706 Cooks Creek Place, Apt 202 Farmers Branch, TX 75234 PRO SE

David Broiles (See above for address) TERMINATED: 04/16/2015

Diego Manuel Bernal (See above for address) TERMINATED: 04/16/2015

Dominic Valerian (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE

Farrin R Anello (See above for address) TERMINATED: 09/13/2010 PRO HAC VICE

Jennifer C Newell (See above for address) TERMINATED: 04/16/2015

Lisa Graybill (See above for address) TERMINATED: 04/16/2015

Lucas Guttentag (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE

Marisa Bono

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 6 of 28

(See above for address) TERMINATED: 04/16/2015

Marisol L Perez (See above for address) TERMINATED: 04/16/2015

Nina Perales (See above for address) TERMINATED: 04/16/2015

Omar C Jadwat (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE

Consol Plaintiff Ginger Edwards

represented by Ginger Edwards 2765 Cooks Creek Place, Apt 2−109 Farmers Branch, TX 75234 PRO SE

David Broiles (See above for address) TERMINATED: 04/16/2015

Diego Manuel Bernal (See above for address) TERMINATED: 04/16/2015

Dominic Valerian (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE

Farrin R Anello (See above for address) TERMINATED: 09/13/2010 PRO HAC VICE

Jennifer C Newell (See above for address) TERMINATED: 04/16/2015

Lisa Graybill (See above for address) TERMINATED: 04/16/2015

Lucas Guttentag (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE

Marisa Bono (See above for address) TERMINATED: 04/16/2015

Marisol L Perez (See above for address) TERMINATED: 04/16/2015

Nina Perales (See above for address) TERMINATED: 04/16/2015

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 7 of 28

Consol Plaintiff Jose Guadalupe Arias
Consol Plaintiff Alfredo Vasquez TERMINATED: 10/23/2008

Omar C Jadwat (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE
represented by Jose Guadalupe Arias 2749 Cooks Creek Place, Apt 221 Farmers Branch, TX 75234 PRO SE
David Broiles (See above for address) TERMINATED: 04/16/2015
Diego Manuel Bernal (See above for address) TERMINATED: 04/16/2015
Dominic Valerian (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE
Farrin R Anello (See above for address) TERMINATED: 09/13/2010 PRO HAC VICE
Jennifer C Newell (See above for address) TERMINATED: 04/16/2015
Lisa Graybill (See above for address) TERMINATED: 04/16/2015
Lucas Guttentag (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE
Marisa Bono (See above for address) TERMINATED: 04/16/2015
Marisol L Perez (See above for address) TERMINATED: 04/16/2015
Nina Perales (See above for address) TERMINATED: 04/16/2015
Omar C Jadwat (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE
represented by Nina Perales (See above for address) TERMINATED: 10/23/2008

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 8 of 28

LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Broiles (See above for address)

Farrin R Anello (See above for address) TERMINATED: 10/23/2008 PRO HAC VICE

Marisol L Perez (See above for address) TERMINATED: 10/23/2008

Omar C Jadwat (See above for address) TERMINATED: 10/23/2008 PRO HAC VICE ATTORNEY TO BE NOTICED

Consol Plaintiff
Maria de la Luz Vasquez TERMINATED: 10/23/2008

represented by Nina Perales (See above for address) TERMINATED: 10/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Broiles (See above for address)

Farrin R Anello (See above for address) TERMINATED: 10/23/2008 PRO HAC VICE

Lisa Graybill (See above for address) TERMINATED: 10/23/2008 ATTORNEY TO BE NOTICED

Lucas Guttentag (See above for address) TERMINATED: 10/23/2008 PRO HAC VICE

Marisol L Perez (See above for address) TERMINATED: 10/23/2008

Omar C Jadwat (See above for address) TERMINATED: 10/23/2008 PRO HAC VICE ATTORNEY TO BE NOTICED

Consol Plaintiff Aide Garza

represented by Aide Garza 2775 Cooks Creek Place, Apt 112 Farmers Branch, TX 75234 PRO SE

David Broiles (See above for address)

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 9 of 28
TERMINATED: 04/16/2015
Diego Manuel Bernal (See above for address) TERMINATED: 04/16/2015
Dominic Valerian (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE
Farrin R Anello (See above for address) TERMINATED: 09/13/2010 PRO HAC VICE
Jennifer C Newell (See above for address) TERMINATED: 04/16/2015
Lisa Graybill (See above for address) TERMINATED: 04/16/2015
Lucas Guttentag (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE
Marisa Bono (See above for address) TERMINATED: 04/16/2015
Marisol L Perez (See above for address) TERMINATED: 04/16/2015
Nina Perales (See above for address) TERMINATED: 04/16/2015
Omar C Jadwat (See above for address) TERMINATED: 04/16/2015 PRO HAC VICE

V. Defendant The City of Farmers Branch Texas

represented by Peter Michael Jung Strasburger & Price, LLP PO Box 50100 901 Main St Suite 6000 Dallas, TX 75250−0100 214/651−4724 Fax: 214/659−4022 FAX Email: michael.jung@strasburger.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jadd F Masso Strasburger & Price − Dallas 901 Main St Suite 6000

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 10 of 28

Dallas, TX 75202 214/651−4716 Email: jadd.masso@strasburger.com ATTORNEY TO BE NOTICED

Kris W Kobach Kobach Law LLC 4701 N 130th St Kansas City, KS 66109 913/638−5567 Fax: 816/235−5276 Email: kkobach@gmail.com ATTORNEY TO BE NOTICED

Michael M Hethmon Immigration Law Reform Institute 25 Massachusetts Avenue NW Suite 330 Washington, DC 20001 202/232−5590 Fax: 202/464−3590 Email: mhethmon@irli.org PRO HAC VICE ATTORNEY TO BE NOTICED

Scott Shanes Strasburger & Price LLP 2801 Network Blvd, Suite 600 Frisco, TX 75034 469−287−3906 Fax: 469−287−3999 Email: scott.shanes@strasburger.com ATTORNEY TO BE NOTICED

William Trey C Dowdy , III Strasburger & Price PO Box 50100 901 Main St Ste 4400 Dallas, TX 75250−100 214/651−4746 Fax: 214/659−4032 Email: trey.dowdy@strasburger.com ATTORNEY TO BE NOTICED

Mediator
ADR Provider TERMINATED: 09/02/2010

represented by Jeff Kaplan JAMS 8401 North Central Expressway Suite 610 Dallas, TX 75225 214/744−5267 Fax: 214/720−6010 Email: jkaplan@jamsadr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecilia H Morgan JAMS 8401 North Central Expwy, Suite 610 Dallas, TX 75225 214−744−5267 Fax: 214−720−6010 Email: cmorgan@jamsadr.com TERMINATED: 09/02/2010

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 11 of 28

Date Filed 09/03/2008 09/03/2008 09/03/2008 09/04/2008 09/08/2008 09/08/2008 09/08/2008
09/08/2008 09/08/2008
09/08/2008
09/08/2008 09/08/2008 09/09/2008
09/11/2008 09/11/2008 09/11/2008 09/11/2008

# Docket Text
1 COMPLAINT WITH JURY DEMAND against The City of Farmers Branch Texas filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (Filing fee $350; Receipt number 24761) (tln) (Entered: 09/03/2008)
2 CERTIFICATE OF INTERESTED PERSONS by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (tln) (Entered: 09/03/2008)
3 Summons Issued as to The City of Farmers Branch Texas. (tln) (Entered: 09/03/2008)
4 SUMMONS Returned Executed as to The City of Farmers Branch Texas ; served on 9/3/2008. (lmp) (Entered: 09/05/2008)
5 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 09/08/2008)
6 Brief/Memorandum in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 5 MOTION for Temporary Restraining Order and Preliminary Injunctive Relief (Biles, C) (Entered: 09/08/2008)
7 Appendix in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 6 Brief/Memorandum in Support of Motion for Temporary Restraining Order and Injunctive Relief (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix, # 7 Appendix) (Biles, C) (Entered: 09/08/2008)
8 MOTION to Transfer filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd with Brief/Memorandum in Support. (Biles, C) Modified on 9/8/2008 (tln). (Entered: 09/08/2008)
9 Appendix in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 8 MOTION to Transfer (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix) (Biles, C) (Entered: 09/08/2008)
10 MOTION to Enlarge Page limits for Plaintiffs' Brief In Support of Plaintiffs' Application for Temporary Restraining Order and Preliminary Injunction Relief filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd with Brief/Memorandum in Support. (Biles, C) Modified on 9/9/2008 (svc). (Entered: 09/08/2008)
11 Plaintiffs' Amended re: 2 Cert. Of Interested Persons/Disclosure Statement filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) Modified on 9/8/2008 (tln). (Entered: 09/08/2008)
12 AMENDED DOCUMENT by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. Amendment to 7 Appendix in Support,. Main appendix document. (Biles, C) (Entered: 09/08/2008)
13 ORDER granting 10 Motion to Enlarge Page limits for Plaintiffs' Brief In Support of Plaintiffs' Application for Temporary Restraining Order and Preliminary Injunction. The page limit for Plaintiffs' Brief In Support Of Plaintiffs' Application For A Temporary Restraining Order And Preliminary Injunction is enlarged to thirty−five pages. Defendant's Brief in Support of Its Response to Plaintiffs' Application may also be thirty−five pages. (Signed by Judge Jane J Boyle on 09/09/08) (lmp) (Entered: 09/10/2008)
14 RESPONSE in Opposition filed by The City of Farmers Branch Texas re 8 MOTION to Transfer Case out of District/Division (Jung, Peter) (Entered: 09/11/2008)
15 Appendix in Support filed by The City of Farmers Branch Texas re 14 Response in Opposition to Motion to Transfer (Jung, Peter) (Entered: 09/11/2008)
16 RESPONSE in Opposition filed by The City of Farmers Branch Texas re 5 MOTION for Temporary Restraining Order and Injunctive Relief (Jung, Peter) (Entered: 09/11/2008)
17 Appendix in Support filed by The City of Farmers Branch Texas re 16 Response in Opposition to Plaintiffs' Application for Temporary Restraining Order and Preliminary Injunctive Relief (Jung,

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 12 of 28

09/11/2008 09/11/2008 09/12/2008 09/12/2008 09/12/2008 09/12/2008 09/15/2008 09/16/2008 09/16/2008
09/17/2008 09/18/2008 09/18/2008
09/18/2008 09/19/2008 09/19/2008

Peter) (Entered: 09/11/2008)
18 Plaintiffs' REPLY In Support re: 8 MOTION to Transfer Case out of District/Division filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 09/11/2008)
19 Application and Order for Admission Pro Hac Vice by Kris W Kobach for The City of Farmers Branch Texas. (Signed by Judge Jane J Boyle on 9/11/08) (svc) (Entered: 09/12/2008)
20 Declaration of C. Dunham Biles by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (Attachments: # 1 Exhibits 1−5, # 2 Exhibits 6−7, # 3 Exhibit 8, # 4 Exhibits 9−10) (Biles, C) Modified on 9/15/2008 (klm). (Entered: 09/12/2008)
21 ORDER granting 5 Plaintiffs' Application for Temporary Restraining Order re City of Farmers Branch Ordinance No. 2592. Hearing on the application for preliminary injunction is scheduled for 9/22/2008 at 10:00 a.m. [see TRO for specifics] (Signed by Judge Jane J Boyle on 9/12/2008) (caw) (Entered: 09/12/2008)
Minute Entry for proceedings held before Judge Jane J Boyle: Hearing held on 09/12/08. Attorney Appearances: Plaintiff − James Renard; Defense − Peter Jung. (Court Reporter Shawnie Archuleta.) Time in Court: 3 hours 30 minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (psm) (Entered: 09/15/2008)
Set/Reset Deadlines as to Plaintiffs' Application for Preliminary Injunction. Hearing set for 9/22/2008 10:00 AM before Judge Jane J Boyle per doc. 21. (klm) (Entered: 09/15/2008)
Receipt of payment for Registry Fund. Authorized by 21 Order on Motion for TRO,. $1,500.00; Receipt # DS025093. (axc) (Entered: 09/15/2008)
22 ORDER CONSOLIDATING CASES: Civil Action No. 3:08−CV−1615−B is hereby consolidated with Civil Action No. 3:08−CV−1551−B. (see order) (Signed by Judge Jane J Boyle on 9/16/2008) (axm) Modified on 9/17/2008 (axm). (Entered: 09/16/2008)
23 ORDER: Consolidated Plaintiffs should file any Motion for Preliminary Injunction and supporting material no later than 9/19/2008 at noon. Defendant may submit a written response no later than 9 a.m. on 9/22/2008. The hearing on Consolidated Plaintiffs' Motion (if any) will be consolidated with the hearing on the original Plaintiffs' Application for Preliminary Injunction already set 9/22/2008 at 10:00 a.m. (Signed by Judge Jane J Boyle on 9/16/2008) (axm) (Entered: 09/16/2008)
24 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by The City of Farmers Branch Texas. (Jung, Peter) (Entered: 09/17/2008)
25 MOTION for Preliminary Injunction filed by Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias, Alfred Vasquez, Maria de la Luz Vasquez, Aide Garza. (Attachments: # 1 Text of Proposed Order) (Perales, Nina) Modified on 9/19/2008 (klm). (Entered: 09/18/2008)
26 MOTION for Leave to Extend Page Limitations to Plaintiffs' Memorandum of Law in Support of their Application for a Preliminary Injunction filed by Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias, Alfred Vasquez, Maria de la Luz Vasquez, Aide Garza. (Attachments: # 1 Text of Proposed Order) (Perales, Nina) Modified on 9/19/2008 (klm). (Entered: 09/18/2008)
27 Brief/Memorandum in Support filed by Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias, Alfred Vasquez, Maria de la Luz Vasquez, Aide Garza. re 26 MOTION for Leave to File Excess Pages, 25 MOTION for Preliminary Injunction. (Attachments: # 1 Appendix) (Perales, Nina) Modified on 9/19/2008 (klm). (Entered: 09/18/2008)
28 ORDER granting 26 Motion for Leave to Extend Page Limitations to Plaintiffs' Memorandum of Law in Support of their Application for a Preliminary Injunction. Consolidated Plaintiffs' Motion will be allowed to remain on file. (Signed by Judge Jane J Boyle on 09/19/08) (lmp) (Entered: 09/19/2008)
29 MOTION for Entry of Scheduling Order filed by Alfredo Vasquez, Maria de la Luz Vasquez, Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias with Brief/Memorandum in Support. (Attachments: # 1 Text of Proposed Order) (Perales, Nina) Modified on 9/22/2008 (jrb). (Entered: 09/19/2008)

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 13 of 28

09/19/2008
09/22/2008 09/22/2008 09/22/2008
09/22/2008 09/23/2008 09/24/2008 09/26/2008 10/02/2008
10/04/2008 10/10/2008 10/10/2008
10/10/2008 10/10/2008

31 Application and Order for Admission Pro Hac Vice by Farrin R Anello for Alfredo Vasquez, Maria de la Luz Vasquez, Aide Garza, Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd, Valentin Reyes, Alicia Garcia, Ginger Edwards and Jose Guadalupe Arias. (Signed by Judge Jane J Boyle on 9/19/2008) (axm) (Entered: 09/22/2008)
30 OBJECTION to Preliminary Injunction Evidence re: 12 Amended Document, 27 Brief/Memorandum in Support of Motion, 20 Affidavit, 7 Appendix in Support, filed by The City of Farmers Branch Texas (Jung, Peter) (Entered: 09/22/2008)
Minute Entry for proceedings held before Judge Jane J Boyle: Hearing held on 09/22/08. Attorney Appearances: Plaintiff − James Renard; Defense − Peter Jung. (Court Reporter Shawnie Archuleta.) Time in Court: 10 minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (psm) (Entered: 09/22/2008)
33 AGREED PRELIMINARY INJUNCTION AND PRETRIAL SCHEDULING ORDER. The Court hereby Grants the 25 Motion for Preliminary Injunction. It is further ordered that the bond posted by the Villas Plaintiffs in connection with the Court's temporary restraining order shall serve as Plaintiffs' bond for this Preliminary Injunction. (see order) (Signed by Judge Jane J Boyle on 09/22/2008) (axm) (Entered: 09/23/2008)
Set/Reset Deadlines per Order (doc 33): Discovery due by 10/22/2008. Motions due by 10/29/2008. Responses due by 11/10/2008. (axm) (Entered: 09/23/2008)
32 ANSWER to 1 Complaint with Jury Demand filed by The City of Farmers Branch Texas (Jung, Peter) Modified on 9/24/2008 (jrb). (Entered: 09/23/2008)
34 NOTICE of Attorney Appearance by Marisol L Perez for Farrin R. Anello on behalf of Alfredo Vasquez, Maria de la Luz Vasquez, Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias. (Perez, Marisol) (Entered: 09/24/2008)
35 ORDER denying 8 Motion to Transfer Case. (see order) (Signed by Judge Jane J Boyle on 12/26/08) (lmp) Modified on 9/29/2008 (lmp). (Entered: 09/29/2008)
36 TRANSCRIPT of Temporary Restraining Order Proceedings held on September 12, 2008 before Judge Boyle. Court Reporter/Transcriber Shawnie Archuleta, Telephone number 214−753−2747. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. Redaction Request due 10/23/2008. Redacted Transcript Deadline set for 11/3/2008. Release of Transcript Restriction set for 12/31/2008. (spa) (Entered: 10/02/2008)
37 Defendant's Original Answer filed by The City of Farmers Branch Texas to Reyes Plaintiffs' Original Verified Complaint. (Jung, Peter) Modified on 10/6/2008 (skt). (Entered: 10/04/2008)
38 Joint MOTION to Extend Time of Pretrial Deadlines filed by Alfredo Vasquez, Maria de la Luz Vasquez, Aide Garza, Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, The City of Farmers Branch Texas, Lakeview at Parkside Partners Ltd, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Biles, C) (Entered: 10/10/2008)
39 Agreed MOTION Enlarge Page Limits for Motions for Summary Judgment Briefs, Responses and Reply Briefs filed by Alfredo Vasquez, Maria de la Luz Vasquez, Aide Garza, Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, The City of Farmers Branch Texas, Lakeview at Parkside Partners Ltd, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Dowdy, William Trey) (Entered: 10/10/2008)
40 ORDER granting 38 Joint MOTION to Extend Time of Pretrial Deadline. Discovery due by 11/24/2008. (see order) (Ordered by Judge Jane J Boyle on 10/10/08) (lmp) (Entered: 10/14/2008)
41 ORDER denying 39 Agreed MOTION Enlarge Page Limits for Motions for Summary Judgment Briefs, Responses and Reply Briefs. Counsel are advised to consult Local Rule 56.5(b) regarding summary judgment brief lengths. (Ordered by Judge Jane J Boyle on 10/10/08) (lmp) (Entered: 10/14/2008)

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10/17/2008 10/22/2008 10/23/2008
10/24/2008 10/24/2008
10/25/2008
10/27/2008
11/12/2008 11/12/2008 11/13/2008 11/13/2008
12/11/2008 12/11/2008 12/11/2008 12/15/2008 12/15/2008 12/16/2008

42 Unopposed MOTION to Dismiss Claims filed by Alfredo Vasquez, Maria de la Luz Vasquez (Attachments: # 1 Text of Proposed Order) (Perales, Nina) (Entered: 10/17/2008)
43 Application and Order for Admission Pro Hac Vice by Michael M Hethmon for The City of Farmers Branch Texas. (Ordered by Judge Jane J Boyle on 10/22/08) (skt) (Entered: 10/23/2008)
48 ORDER: Having considered Plaintiffs Alfredo Vasquez and Maria de la Luz Vasquez's Motion for Voluntary Dismissal under Federal Rule of Civil Procedure 41(a)(2) (doc #42), the Court finds that the Motion is meritorious and it is therefore GRANTED. Plaintiffs Alfredo Vasquez and Maria de la Luz Vasquez are hereby DISMISSED from this case. (Ordered by Judge Jane J Boyle on 10/23/08) (lmp) (Entered: 10/27/2008)
44 Unopposed MOTION to Extend Time Page Limits filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 10/24/2008)
45 ***UNFILED PER ORDER OF 10/27/08, DOC. 47*** MOTION to Compel For Attorneys' and Sanctions filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd with Brief/Memorandum in Support. (Biles, C) Modified on 10/27/2008 (klm). (Entered: 10/24/2008)
46 ***UNFILED PER ORDER OF 10/27/08, DOC. 47*** Appendix in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 45 MOTION to Compel For Attorneys' and Sanctions (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit) (Biles, C) Modified on 10/27/2008 (klm). (Entered: 10/25/2008)
47 ORDER REGARDING DISCOVERY PROTOCOL. Unfiling Plaintiffs' 45 MOTION to Compel For Attorneys' and Sanctions and Plaintiffs' 46 Appendix in Support due to the following deficiency: Villas Plaintiffs filed their Motion to Compel and Brief prior to the Court ruling on their Motion for Page Extension. Denying 44 Unopposed MOTION to Extend Time Page Limits filed by Lakeview at Parkside Partners Ltd, Mary Miller Smith, Chateau Ritz Partners, Villas at Parkside Partners. (see order) (Ordered by Judge Jane J Boyle on 10/27/08) (lmp) (Entered: 10/27/2008)
49 MOTION to Extend Pretrial Deadlines filed by The City of Farmers Branch Texas (Dowdy, William Trey) Modified on 11/13/2008 (jyg). (Entered: 11/12/2008)
50 Opposed MOTION to Modify Scheduling Order filed by Valentin Reyes. (Attachments: # 1 Text of Proposed Order) (Perales, Nina) Modified on 11/13/2008 (jyg). (Entered: 11/12/2008)
51 RESPONSE filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 49 MOTION to Extend Time Pretrial Deadlines (Perales, Nina) (Entered: 11/13/2008)
52 ORDER granting 49 Motion to Extend Pretrial Deadlines.; denying 50 Opposed MOTION to Modify Scheduling Order. Discovery (deposition) due by 1/30/2009. Motions due by 2/10/2009. Replies due by 3/2/2009. Responses due by 2/23/2009. (see order) (Ordered by Judge Jane J Boyle on 11/13/08) (lmp) (Entered: 11/14/2008)
53 Proof of Service for Subpoena in a Civil Case served on Mary Jane Stevenson on 12/09/08. (lmp) (Entered: 12/11/2008)
54 Proof of Service for Subpoena in a Civil Case served on Robert Phelps aka Bob C. Phelps on 12/09/08. (lmp) (Entered: 12/11/2008)
55 Proof of Service for Subpoena in a Civil Case served on Linda Groomer on 12/09/08. (lmp) (Entered: 12/11/2008)
56 Proof of Service for Subpoena served on Robert Phelps aka Bob C. Phelps on 12/11/2008. (axm) (Entered: 12/15/2008)
57 Application and Order for Admission Pro Hac Vice by Henry L Solano for Villas at Parkside Partners. (Ordered by Judge Jane J Boyle on 12/15/2008) (axm) (Entered: 12/15/2008)
58 Application and Order for Admission Pro Hac Vice by Dominic Valerian for Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards and Jose Guadalupe Arias (Ordered by Judge Jane J Boyle on 12/16/08) (svc) (Entered: 12/17/2008)

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01/16/2009 01/27/2009 01/30/2009 02/03/2009 02/04/2009
02/04/2009 02/06/2009 02/09/2009 02/09/2009 02/10/2009 02/10/2009 02/10/2009 02/10/2009 02/10/2009 02/10/2009 02/10/2009

59 NOTICE of Attorney Appearance by Diego Manuel Bernal on behalf of Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias. (Bernal, Diego) (Entered: 01/16/2009)
60 ***UNFILED PER ORDER/DOC. 64***Objections to Plaintiffs' Notice of Deposition and MOTION for Protective Order filed by The City of Farmers Branch Texas (Shanes, Scott) Modified on 1/28/2009 (skt). Modified on 2/4/2009 (tln). (Entered: 01/27/2009)
61 MOTION to Strike 60 Objections to Notice of Deposition and MOTION for Protective Order filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order) (Perales, Nina) Modified on 2/2/2009 (jyg). (Entered: 01/30/2009)
62 NOTICE of Filing of Stipulation Regarding Discovery filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Attachments: # 1 Exhibit A) (Perales, Nina) (Entered: 02/03/2009)
63 ORDER REFERRING 61 Motion to Strike 60 Objections to Notice of Deposition and MOTION for Protective Order, filed by Aide Garza, Ginger Edwards, Valentin Reyes, Alicia Garcia, Jose Guadalupe Arias, 60 Objections to Plaintiffs' Notice of Deposition and MOTION for Protective Order filed by The City of Farmers Branch Texas. Motion(s) referred to Magistrate Judge Irma C Ramirez. (Ordered by Judge Jane J Boyle on 02/04/09) (lmp) (Entered: 02/04/2009)
64 Order Unfiling 60 Objections to Plaintiffs' Notice of Deposition and Motion for Protective Order for noncompliance with the Courts express order; denying as moot 61 Motion to Strike. (Ordered by Magistrate Judge Irma C Ramirez on 2/4/2009) (axm) (Entered: 02/04/2009)
65 MOTION to Extend Time for Summary Judgment Briefing to Permit Resolution of Discovery Dispute filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Attachments: # 1 Text of Proposed Order) (Perales, Nina) (Entered: 02/06/2009)
66 RESPONSE filed by The City of Farmers Branch Texas re 65 MOTION to Extend Time for Summary Judgment Briefing to Permit Resolution of Discovery Dispute (Jung, Peter) (Entered: 02/09/2009)
67 REPLY re: 65 MOTION to Extend Time for Summary Judgment Briefing to Permit Resolution of Discovery Dispute filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) (Entered: 02/09/2009)
68 ***STRICKEN PER ORDER OF 2/11/09*** MOTION for Summary Judgment filed by The City of Farmers Branch Texas (Jung, Peter) Modified on 2/11/2009 (jrb). (Entered: 02/10/2009)
69 ***STRICKEN PER ORDER OF 2/11/09***Brief/Memorandum in Support filed by The City of Farmers Branch Texas re 68 MOTION for Summary Judgment (Jung, Peter) Modified on 2/11/2009 (jrb). (Entered: 02/10/2009)
70 ***STRICKEN PER ORDER OF 2/11/09***Appendix in Support filed by The City of Farmers Branch Texas re 68 MOTION for Summary Judgment (Attachments: # 1 Appendix Appendix Part 1, # 2 Appendix Appendix Part 2, # 3 Appendix Appendix Part 3, # 4 Appendix Appendix Part 4) (Jung, Peter) Modified on 2/11/2009 (jrb). (Entered: 02/10/2009)
71 ***STRICKEN PER ORDER OF 2/11/09*** MOTION for Summary Judgment filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) Modified on 2/11/2009 (jrb). (Entered: 02/10/2009)
72 ***STRICKEN PER ORDER OF 2/11/09***Brief/Memorandum in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 71 MOTION for Summary Judgment (Biles, C) Modified on 2/11/2009 (jrb). (Entered: 02/10/2009)
73 ***STRICKEN PER ORDER OF 2/11/09***Appendix in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 72 Brief/Memorandum in Support of Motion (Biles, C) Modified on 2/11/2009 (jrb). (Entered: 02/10/2009)
74 ***STRICKEN PER ORDER OF 2/11/09*** MOTION for Summary Judgment by Reyes Plaintiffs filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) Modified on 2/11/2009 (jrb). (Entered: 02/10/2009)

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 16 of 28

02/10/2009
02/10/2009 02/10/2009 02/11/2009 02/11/2009 02/11/2009 02/20/2009 02/23/2009 02/24/2009 02/24/2009 02/25/2009

75 ***STRICKEN PER ORDER OF 2/11/09***Appendix in Support filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 74 MOTION for Summary Judgment by Reyes Plaintiffs and Memorandum in Support (Attachments: # 1 Appendix Part 1, # 2 Appendix Part 2, # 3 Appendix Part 3, # 4 Appendix Part 4, # 5 Appendix Part 5, # 6 Appendix Part 6, # 7 Appendix Part 7, # 8 Appendix Part 8, # 9 Appendix Part 9, # 10 Appendix Part 10, # 11 Appendix Part 11, # 12 Appendix Part 12, # 13 Appendix Part 13, # 14 Appendix Part 14, # 15 Appendix Part 15, # 16 Appendix Part 16, # 17 Appendix Part 17, # 18 Appendix Part 18, # 19 Appendix Part 19, # 20 Appendix Part 20, # 21 Appendix Part 21, # 22 Appendix Part 22, # 23 Appendix Part 23, # 24 Appendix Part 24, # 25 Appendix Part 25, # 26 Appendix Part 26, # 27 Appendix Part 27, # 28 Appendix Part 28, # 29 Appendix Part 29, # 30 Appendix Part 30) (Perales, Nina) Modified on 2/11/2009 (jrb). (Entered: 02/11/2009)
77 ORDER granting 65 Reyes Plaintiffs' Motion to Extend Summary Judgment Deadlines to Permit Resolution of Discovery Dispute. The parties are instructed to meet face−to−face no later than Wednesday, 2/11/2009 in an attempt to resolve the dispute regarding Defendants designation of a new fact witness on 2/5/2009. (see order) (Ordered by Judge Jane J Boyle on 2/10/09) (klm) (Entered: 02/11/2009)
Resetting Deadlines Per #77: Motions for summary judgment due by 2/24/2009. Responses to motions for summary judgment due by 3/9/2009, Replies to motions for summary judgment due by 3/16/2009. See Order #77. (svc) (Entered: 02/11/2009)
76 ***STRICKEN PER ORDER OF 2/11/09***Brief/Memorandum in Support filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 74 MOTION for Summary Judgment by Reyes Plaintiffs (Perales, Nina) Modified on 2/11/2009 (jrb). (Entered: 02/11/2009)
78 Amended Appendix to Villas Plaintiffs' Motion for Partial Summary Judgment filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix) (Biles, C) Modified on 2/12/2009 (lmp). (Entered: 02/11/2009)
79 Order. In light of the Court's February 10, 2009 Order granting the Reyes Plaintiffs' Motion to Extend Summary Judgment Deadlines to Permit Resolution of Discovery Dispute (Doc. # 77), the court directs the Clerk of Court to strike Docket Entries #68, 69, 70, 71, 72, 73, 74, 75, and 76. The court admonishes Defendant to comply with the deadlines set forth in the Court's Scheduling Order (Doc. # 40, as modified by Doc. #52). (Ordered by Judge Jane J Boyle on 02/11/09) (lmp) (Entered: 02/11/2009)
80 Joint Submission of Discovery Dispute pursuant to Court's Order Regarding Discovery Protocol filed by Aide Garza, Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, The City of Farmers Branch Texas, Lakeview at Parkside Partners Ltd, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias. (Attachments: # 1 Exhibit A−F, # 2 Exhibit G−H) (Perales, Nina) Modified on 2/23/2009 (axm). (Entered: 02/20/2009)
81 ORDER OF REFERRAL: The Court directs the parties to submit a joint statement clarifying the reason for this delay no later than 2/25/2009. Further, Discovery Disputes #1, #2 and #3 set forth in the Joint Submission (Doc. #80) are hereby REFERRED to United States Magistrate Judge Irma C. Ramirez for hearing. (see order) (Ordered by Judge Jane J Boyle on 2/23/2009) (axm) (Entered: 02/23/2009)
82 REVISED ORDER OF REFERRAL: The Court withdraws the referral of Discovery Dispute #1. This Order in no way alters the Court's referral of Discovery Disputes #2 and #3 to the Magistrate Judge, or any other aspect of the Court's 2/23/2009 Order of Referral. (Ordered by Judge Jane J Boyle on 2/24/09) (klm) (Entered: 02/24/2009)
83 ORDER: The Court has scheduled a hearing on Discovery Disputes #2 and #3 in the Joint Submission Regarding Discovery Dispute for 2/27/2009 10:00 AM before Magistrate Judge Irma C Ramirez. (see order) (Ordered by Magistrate Judge Irma C Ramirez on 2/24/2009) (axm) (Entered: 02/24/2009)
84 JOINT STATEMENT REGARDING THE FILING OF THE JOINT SUBMISSION REGARDING DISCOVERY DISPUTE filed by Alfredo Vasquez, Maria de la Luz Vasquez, Aide Garza, Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, The City of Farmers Branch Texas, Lakeview at Parkside Partners Ltd, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) Modified on 2/26/2009 (lmp). (Entered: 02/25/2009)

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02/25/2009 02/27/2009 02/27/2009 02/27/2009 02/27/2009
03/04/2009 03/04/2009
03/05/2009 03/07/2009
04/20/2009 04/20/2009

85 ORDER SETTING HEARING: In keeping with the expedited schedule agreed to by the parties, the Court has scheduled a hearing on 2/27/2009 11:00 AM before Judge Jane J Boyle. (see order) (Ordered by Judge Jane J Boyle on 2/25/09) (klm) (Entered: 02/25/2009)
Minute Entry for proceedings held before Magistrate Judge Irma C Ramirez: Hearing on discovery disputes named in Joint Submission filed on 2/20/09, held on 2/27/09. Attorney Appearances: Plaintiff − Marisol Perez, Dunham Biles, Jack Ternan; Defense − Scott Shanes, Michael Jung, Kris Kobach.(Digital File) Time in Court: 1 hour. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (lmm) (Entered: 02/27/2009)
86 ORDER: The Court conducted a hearing on the record concerning the referred discovery disputes. After consideration of the relevant filings, evidence, oral argument, and applicable law, and for the reasons stated on the record during the hearing, the relief sought in both disputes is hereby GRANTED. (see order) (Ordered by Magistrate Judge Irma C Ramirez on 2/27/09) (klm) (Entered: 02/27/2009)
Minute Entry for proceedings held before Judge Jane J Boyle: Hearing held on 02/27/09. Attorney Appearances: Plaintiff − Marisol Perez; Defense − Michael Jung. (Court Reporter Shawnie Archuleta.) Time in Court: 20 minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (psm) (Entered: 02/27/2009)
87 ORDER: The Court DENIES the Reyes Plaintiffs' and Villas Plaintiffs' request that the Court strike the proposed testimony of Neil Jacobs. The Court directs the parties to submit to the Court no later than Wednesday, 3/4/2009 at 3:00 p.m., an agreed proposal governing further discovery and summary judgment deadlines in this case, such that any possible prejudice to the Reyes Plaintiffs and Villas Plaintiffs will be alleviated. The 9/22/2008 agreed preliminary injunction remains in place. (Doc. # 33). (See Order) (Ordered by Judge Jane J Boyle on 2/27/09) (skt) (Entered: 03/02/2009)
88 NOTICE Joint Advisory Regarding Further Discovery and Summary Judgment Deadlines filed by Aide Garza, Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, The City of Farmers Branch Texas, Lakeview at Parkside Partners Ltd, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) (Entered: 03/04/2009)
89 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion to Strike Proceedings held on 2/27/09 before Judge Jane J Boyle. Court Reporter/Transcriber Shawnie Archuleta, Telephone number 214/753−2747. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. Redaction Request due 3/25/2009. Redacted Transcript Deadline set for 4/6/2009. Release of Transcript Restriction set for 6/2/2009. (jyg) (Entered: 03/04/2009)
90 ORDER: The parties have submitted a Joint Advisory Regarding Further Discovery and Summary Judgment Deadlines. The existing Scheduling Order is further modified. April 20, 2009 deadline for filing summary judgment motions. May 4, 2009 deadline for responses to summary judgment motions. May 11, 2009 deadline for replies in support of summary judgment motions. (see order) (Ordered by Judge Jane J Boyle on 03/05/09) (lmp) (Entered: 03/05/2009)
91 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Discovery Disputes Proceedings held on Feb. 27, 2009 before Judge Irma Ramirez. Court Reporter/Transcriber Betty Tate, Telephone number 972−596−9442. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed.. Redaction Request due 3/30/2009. Redacted Transcript Deadline set for 4/7/2009. Release of Transcript Restriction set for 6/5/2009. (Tate, Betty) (Entered: 03/07/2009)
92 MOTION for Partial Summary Judgment filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias.(Attachments: # 1 Text of Proposed Order) (Perales, Nina) Modified on 4/21/2009 (lmp). (Entered: 04/20/2009)
93 MOTION for Summary Judgment filed by The City of Farmers Branch Texas (Jung, Peter) (Entered: 04/20/2009)

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04/20/2009 94 Brief/Memorandum in Support filed by The City of Farmers Branch Texas re 93 MOTION for Summary Judgment (Jung, Peter) (Entered: 04/20/2009)

04/20/2009

95 Appendix in Support filed by The City of Farmers Branch Texas re 93 MOTION for Summary Judgment (Attachments: # 1 Appendix Part 2 (pages AP051−095), # 2 Appendix Part 3 (pages AP096−130), # 3 Appendix Part 4 (pages AP131−180), # 4 Appendix Part 5 (pages AP181−225), # 5 Appendix Part 6 (pages AP226−276), # 6 Appendix Part 7 (pages AP277−325), # 7 Appendix Part 8 (pages AP326−370), # 8 Appendix Part 9 (pages AP371−410), # 9 Appendix Part 10 (pages AP411−442)) (Jung, Peter) (Entered: 04/20/2009)

04/20/2009 96 MOTION for Partial Summary Judgment filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) Modified on 4/21/2009 (lmp). (Entered: 04/20/2009)

04/20/2009 97 Brief/Memorandum in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 96 MOTION for Partial Summary Judgment. (Biles, C) Modified on 4/21/2009 (lmp). (Entered: 04/20/2009)

04/20/2009

98 Appendix in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 96 Motion for Partial Summary Judgment. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Biles, C) Modified on 4/21/2009 (lmp). (Entered: 04/20/2009)

04/20/2009

99 Appendix in Support filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 92 MOTION for Partial Summary Judgment. Part 1 (Attachments: # 1 Exhibit 0001−0056, # 2 Exhibit 0057−0090, # 3 Exhibit APPX 0091−0123, # 4 Exhibit APPX 0124−0157, # 5 Exhibit APPX 0158−0183, # 6 Exhibit APPX 0184−217, # 7 Exhibit APPX 0218−0257, # 8 Exhibit APPX 0258−0313, # 9 Exhibit APPX 0314−0334, # 10 Exhibit APPX 0335−0374, # 11 Exhibit APPX 0375−0431) (Perales, Nina) Modified on 4/21/2009 (lmp). (Entered: 04/20/2009)

04/20/2009 100 Appendix in Support filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 92 Motion for Partial Summary Judgment. Part 2 (Attachments: # 1 Exhibit APPX 0432−0461, # 2 Exhibit APPX 0462−0506, # 3 Exhibit APPX 0507−0557, # 4 Exhibit APPX 0558−0564, # 5 Exhibit APPX 0565−0610, # 6 Exhibit APPX 0611−642, # 7 Exhibit APPX 0643−0685, # 8 Exhibit APPX 0867−0917, # 9 Exhibit APPX 0918−0966, # 10 Exhibit APPX 0967−1038, # 11 Exhibit APPX 1039−1057, # 12 Exhibit APPX 1058−1114) (Perales, Nina) Modified on 4/21/2009 (lmp). (Entered: 04/20/2009)

04/20/2009 101 Appendix in Support filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 92 MOTION for Partial Summary Judgment. Part 3 (Attachments: # 1 Exhibit APPX 1115−1195, # 2 Exhibit APPX 1196−1262, # 3 Exhibit APPX 1263−1348, # 4 Exhibit APPX 1349−1386, # 5 Exhibit APPX 1387−1466, # 6 Exhibit APPX 1467−1525, # 7 Exhibit APPX 1526−1585, # 8 Exhibit APPX 1586−1657) (Perales, Nina) Modified on 4/21/2009 (lmp). (Entered: 04/20/2009)

04/20/2009 102 Brief/Memorandum in Support filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 92 MOTION for Summary Judgment (Perales, Nina) (Entered: 04/20/2009)

04/20/2009 103 Appendix in Support filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 92 MOTION for Partial Summary Judgment. Part 2 (Attachments: # 1 Exhibit APPX 0686−0739, # 2 Exhibit APPX 0740−0823) (Perales, Nina) Modified on 4/21/2009 (lmp). (Entered: 04/20/2009)

04/21/2009 104 MOTION for Leave to File to Supplement Appendix filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order) (Perales, Nina) (Entered: 04/21/2009)

04/29/2009 105 Joint Agreed MOTION to Extend Pretrail Deadlines filed by Alfredo Vasquez, Maria de la Luz Vasquez, Aide Garza, Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, The City of Farmers Branch Texas, Lakeview at Parkside Partners Ltd, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Biles, C) Modified on 4/30/2009 (axm). (Entered: 04/29/2009)

04/29/2009 106 ORDER granting 104 Reyes Plaintiffs' Unopposed Motion for Leave to File Supplemental Appendix; granting 105 Agreed Motion to Extend Time to File Response/Reply to Motions for Summary Judgment. Replies due by 5/18/2009. Responses due by 5/11/2009. (Ordered by Judge

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Jane J Boyle on 4/29/2009) (klm) (Entered: 04/30/2009)

05/11/2009 107 OBJECTION re: 98 Appendix in Support, filed by The City of Farmers Branch Texas (Jung, Peter) (Entered: 05/11/2009)

05/11/2009 108 OBJECTION re: 101 Appendix in Support, 100 Appendix in Support,, 99 Appendix in Support,, 103 Appendix in Support, filed by The City of Farmers Branch Texas (Jung, Peter) (Entered: 05/11/2009)

05/11/2009 109 MOTION for Leave to File Combined Summary Judgment Response With Enlarged Page Limit filed by The City of Farmers Branch Texas (Jung, Peter) (Entered: 05/11/2009)

05/11/2009 110 RESPONSE filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 93 MOTION for Summary Judgment (Attachments: # 1 Appendix, # 2 Exhibit Exhibits to Appendix) (Perales, Nina) (Entered: 05/11/2009)

05/11/2009 111 Brief/Memorandum in Support filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 110 Response to Motion (Perales, Nina) (Entered: 05/11/2009)

05/11/2009 112 RESPONSE in Opposition filed by The City of Farmers Branch Texas re 96 MOTION for Summary Judgment (Jung, Peter) (Entered: 05/11/2009)

05/11/2009 113 RESPONSE in Opposition filed by The City of Farmers Branch Texas re 92 MOTION for Summary Judgment (Jung, Peter) (Entered: 05/11/2009)

05/11/2009 114 Brief/Memorandum in Support filed by The City of Farmers Branch Texas re 113 Response in Opposition, 112 Response in Opposition (Jung, Peter) (Entered: 05/11/2009)

05/11/2009 115 Appendix in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd Response to Motion for Summary Judgment (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix, # 6 Appendix, # 7 Appendix, # 8 Appendix) (Biles, C) (Entered: 05/11/2009)

05/11/2009 116 Appendix in Support filed by The City of Farmers Branch Texas re 93 MOTION for Summary Judgment (Amended and Supplemental) (Attachments: # 1 Part 2) (Jung, Peter) (Entered: 05/11/2009)

05/11/2009 117 Brief/Memorandum in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 115 Appendix in Support, Response to Defendant's Motion for Summary Judgment (Biles, C) (Entered: 05/11/2009)

05/11/2009 118 Plaintiffs OBJECTION filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 05/11/2009)

05/11/2009

MOTION to Strike filed by Villas at Parkside Partners. (see doc#118 for image) (lmp) (Entered: 05/29/2009)

05/12/2009 119 Appendix in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 118 Objection (Biles, C) (Entered: 05/12/2009)

05/12/2009 120 Appendix in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 119 Appendix in Support (Biles, C) (Entered: 05/12/2009)

05/12/2009 121 ORDER granting 109 Motion for Leave to File Combined Summary Judgment Response With Enlarged Page Limit. The consolidated response shall not exceed sixty−five (65) pages. (see order) (Ordered by Judge Jane J Boyle on 05/12/09) (lmp) (Entered: 05/13/2009)

05/13/2009 122 MOTION for Leave to File For Enlargement of Page Limitation for Reply in Support of Summary Judgement Motion filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Attachments: # 1 Exhibit, # 2 Text of Proposed Order) (Perales, Nina) (Entered: 05/13/2009)

05/13/2009 123 RESPONSE filed by The City of Farmers Branch Texas re 122 MOTION for Leave to File For Enlargement of Page Limitation for Reply in Support of Summary Judgement Motion (Jung, Peter) (Entered: 05/13/2009)

05/14/2009 124 ORDER denying 122 Motion for Leave to File. (Ordered by Judge Jane J Boyle on 05/14/09) (Judge Jane J Boyle) (Entered: 05/14/2009)

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05/14/2009

Set Deadlines as to 93 Motion for Summary Judgment, 92 Motion for Summary Judgment. Response due by 5/18/2009 and Replies due by 5/27/2009. (see order#124) (lmp) (Entered: 05/15/2009)

05/18/2009 125 RESPONSE in Opposition filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 93 MOTION for Summary Judgment, 94 Brief/Memorandum in Support of Motion (Attachments: # 1 Appendix) (Perales, Nina) Modified on 5/19/2009 (tln). (Entered: 05/18/2009)

05/19/2009 126 MOTION for Leave to File Consolidated Reply Brief in Support of Summary Judgment With Enlarged Page Limits filed by The City of Farmers Branch Texas (Dowdy, William Trey) (Entered: 05/19/2009)

05/20/2009 127 RESPONSE filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 126 MOTION for Leave to File Consolidated Reply Brief in Support of Summary Judgment With Enlarged Page Limits (Biles, C) (Entered: 05/20/2009)

05/21/2009 128 ORDER granting in part and denying in part 126 Motion for Leave to File Consolidated Reply Brief in Support of Summary Judgment With Enlarged Page Limits. (see order) (Ordered by Judge Jane J Boyle on 5/21/2009) (axm) (Entered: 05/22/2009)

05/27/2009 129 OBJECTION to Reyes Plaintiffs' Supplemental Summary Judgment Evidence re: 125 Response in Opposition, 110 Response to Motion filed by The City of Farmers Branch Texas. (Jung, Peter) Modified on 5/28/2009 (lmp). (Entered: 05/27/2009)

05/27/2009 130 OBJECTION to Villas Plaintiff's Supplemental Summary Judgment Evidence re: 115 Appendix in Support, filed by The City of Farmers Branch Texas. (Jung, Peter) Modified on 5/28/2009 (lmp). (Entered: 05/27/2009)

05/27/2009 131 RESPONSE in Opposition to Villas Plaintiff's Objections to 118 Defendant's Summary Evidence and Motion to Strike filed by The City of Farmers Branch Texas. (Jung, Peter) Modified on 5/28/2009 (lmp). (Entered: 05/27/2009)

05/27/2009 132 Appendix in Support filed by The City of Farmers Branch Texas re 131 RESPONSE in Opposition to Villas Plaintiff's Objections to 118 Defendant's Summary Evidence and Motion to Strike.(Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4) (Jung, Peter) Modified on 5/28/2009 (lmp). (Entered: 05/27/2009)

05/27/2009 133 MOTION to Strike and Objections to Defendant's Evidence in Support of Its Responses filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 05/27/2009)

05/27/2009 134 Appendix in Support filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 133 MOTION to Strike and Objections to Defendant's Evidence in Support of Its Responses (Attachments: # 1 Appendix) (Biles, C) (Entered: 05/27/2009)

05/27/2009 135 RESPONSE to Defendant's Objections to Plaintiffs' Summary Judgment Evidence filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias re 108 Objection. (Attachments: # 1 Appendix) (Perales, Nina) Modified on 5/28/2009 (lmp). (Entered: 05/27/2009)

05/27/2009 136 Reyes Plaintiffs' REPLY Brief re: 92 MOTION for Summary Judgment filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Attachments: # 1 Appendix) (Perales, Nina) (Entered: 05/27/2009)

05/27/2009 137 Villas Plaintiffs' REPLY In Support of Their re: 96 MOTION for Summary Judgment filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd (Biles, C) (Entered: 05/27/2009)

05/27/2009 138 Defendant's MOTION for Leave to File to File Documents Under Seal filed by The City of Farmers Branch Texas. (skt) (Entered: 05/28/2009)

05/28/2009 139 RESPONSE filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 138 MOTION for Leave to File to File Documents Under Seal (Biles, C) (Entered: 05/28/2009)

05/28/2009 140 ORDER setting deadlines as to 92 Plaintiffs' Motion for Partial Summary Judgment, 93 Defendant's Motion for Summary Judgment, 96 Plaintiffs' Motion for Partial Summary

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Judgment, 133 Motion to Strike. Motion Hearing set for 6/4/2009 10:00 AM before Judge Jane J Boyle. (Ordered by Judge Jane J Boyle on 5/28/2009) (axm) (Entered: 05/28/2009)

05/28/2009 141 MOTION for Leave to File Response Under Seal filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias with Brief/Memorandum in Support. (Attachments: # 1 Text of Proposed Order) (Perales, Nina) (Entered: 05/28/2009)

05/28/2009 143 CERTIFICATE of Conference re 141 MOTION for Leave to File Response Under Seal by Nina Perales on behalf of Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) (Entered: 05/28/2009)

05/29/2009 144 (Unsealed) REPLY to Reyes Plaintiffs' Response (Tendered Under Seal) re: 141 MOTION for Leave to File Response Under Seal filed by The City of Farmers Branch Texas (Jung, Peter) (Entered: 05/29/2009)

05/29/2009 145 Unopposed Request for Clarification re: 140 Order, Set Motion and F&R Deadlines,, filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) (Entered: 05/29/2009)

05/29/2009 150 ORDER CLARIFYING SCOPE OF JUNE 4, 2009 HEARING: (see order) (Ordered by Judge Jane J Boyle on 05/29/09) (lmp) (Entered: 06/01/2009)

06/01/2009 151 REPLY re: 118 Objections to Defendant's Summary Judgment Evidence filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd. (Biles, C) Modified on 6/2/2009 (klm). (Entered: 06/01/2009)

06/01/2009 152 RESPONSE in Opposition filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd re 107 Objection to Summary Judgment and Supplemental Summary Judgment Evidence (Biles, C) (Entered: 06/01/2009)

06/01/2009 153 ORDER: A hearing is scheduled in this action on Thursday, June 4, 2009, at 10:00 a.m. concerning the parties' evidentiary objections and motions to strike evidence in the various appendices submitted on summary judgment. The Court hereby directs the parties to file with the Court all responsive briefing, if any, to the pending evidentiary objections and/or motions to strike no later than Wednesday, June 3, 2009 at 12:00 noon. (see order) (Ordered by Judge Jane J Boyle on 06/01/09) (lmp) (Entered: 06/02/2009)

06/02/2009 154 MOTION to Strike Evidence from Defendant's 132 Supplemental Appendix filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias. (Attachments: # 1 Text of Proposed Order) (Perales, Nina) Modified on 6/3/2009 (skt). (Entered: 06/02/2009)

06/02/2009 155 REPLY in Support of 152 Defendant's Objections to Villas Plaintiffs' Summary Judgment Evidence filed by The City of Farmers Branch Texas. (Jung, Peter) Modified on 6/3/2009 (skt). (Entered: 06/02/2009)

06/02/2009 156 REPLY in Support filed by The City of Farmers Branch Texas of 135 Objections to Reyes Plaintiffs' Summary Judgment Evidence (Attachments: # 1 Appendix Spreadsheet Containing Detailed Replies) (Jung, Peter) Modified on 6/3/2009 (skt). (Entered: 06/02/2009)

06/02/2009 157 RESPONSE filed by The City of Farmers Branch Texas re 154 MOTION to Strike 132 Appendix in Support, (Jung, Peter) (Entered: 06/02/2009)

06/02/2009 158 RESPONSE filed by The City of Farmers Branch Texas re 133 MOTION to Strike and Objections to Defendant's Evidence in Support of Its Responses (Jung, Peter) (Entered: 06/02/2009)

06/03/2009 159 Reyes Plaintiffs' RESPONSE to Defendant's Objections to Reyes Plaintiffs' Supplemental Summary Judgment Evidence filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) Modified on 6/4/2009 (tln). (Entered: 06/03/2009)

06/03/2009 160 ORDER denying 154 Reyes Plaintiffs' Motion to Strike Evidence From Defendant's Supplemental Appendix. (see order) (Ordered by Judge Jane J Boyle on 6/3/2009) (klm) (Entered: 06/03/2009)

06/04/2009

Minute Entry for proceedings held before Judge Jane J Boyle: Motions Hearing held on 06/04/09. Attorney Appearances: Plaintiff − Nina Perales; Defense − Kris Kobach. (Court Reporter Shawnie Archuleta.) Time in Court: 3 hours 30 minutes. NO PDF ATTACHED − THIS IS A VIRTUAL MINUTE ENTRY. (psm) (Entered: 06/04/2009)

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06/04/2009 161 ORDER DIRECTING PARTIES TO CONFER ON OBJECTIONS TO SUMMARY JUDGMENT EXHIBITS. (see order) (Ordered by Judge Jane J Boyle on 6/4/2009) (klm) (Entered: 06/05/2009)
06/12/2009 162 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Summary Judgment Objections Proceedings held on June 4, 2009 before Judge Boyle. Court Reporter/Transcriber Shawnie Archuleta, Telephone number 214−753−2747. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. Redaction Request due 7/6/2009. Redacted Transcript Deadline set for 7/13/2009. Release of Transcript Restriction set for 9/10/2009. (spa) (Entered: 06/12/2009)
06/12/2009 163 RESPONSE in Opposition to Standing Arguments Raised by Defendantfiled by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias. (Attachments: # 1 Appendix) (Perales, Nina) Modified on 6/15/2009 (lmp). (Entered: 06/12/2009)
06/26/2009 164 NOTICE of Errata re: 102 Brief/Memorandum in Support of Motion filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) (Entered: 06/26/2009)
06/30/2009 165 NOTICE of Errata Regarding June 4, 2009 Transcript of Proceedings filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) (Entered: 06/30/2009)
07/06/2009 166 Joint Submission Regarding Summary Judgment Evidence by The City of Farmers Branch Texas. (Blakeway, Judith) Modified on 7/7/2009 (lmp). (Entered: 07/06/2009)
07/06/2009 167 ADDITIONAL ATTACHMENTS Exhibit D to 166 Supplemental Document by Defendant The City of Farmers Branch Texas. (Attachments: # 1 Exhibit D1, # 2 Exhibit D2, # 3 Exhibit D3, # 4 Exhibit D4, # 5 Exhibit D5) (Blakeway, Judith) (Entered: 07/06/2009)
07/06/2009 168 Supplemental Document Exhibit A by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias as to 166 Joint Submission Regarding Summary Judgment Evidence . (Attachments: # 1 Exhibit Ex A − Declaration of Neil Jacobs, # 2 Exhibit Ex A− FAIR Impact Data, # 3 Exhibit Ex A − Press Release Chertoff, # 4 Exhibit A− Rector Report _part 1, # 5 Exhibit Ex A −Rector Report_part 2, # 6 Exhibit Ex. A− Rector Report_ part 3, # 7 Exhibit Ex. A − Rector Report _ part 4, # 8 Exhibit Ex. A − Rector Congressional Testimony_ part 1, # 9 Exhibit Ex. A − Rector Congressional Testimony_part 2) (Perales, Nina) Modified on 7/7/2009 (lmp). (Entered: 07/06/2009)
07/06/2009 169 ADDITIONAL ATTACHMENTS Exhibit B to 166 Joint Submission Regarding Summary Judgment Evidence by Consol Plaintiffs Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias. (Attachments: # 1 Exhibit B− Appx 009, # 2 Exhibit B− Appx 0012−0013, # 3 Exhibit B− Appx 0020−0021, # 4 Exhibit B− Appx 0049−0050, # 5 Exhibit B− Appx 0051−0053, # 6 Exhibit B− Appx 0054−0056, # 7 Exhibit B− Appx 0066−0079, # 8 Exhibit B− Appx 0083, # 9 Exhibit B− Appx 0084−0085, # 10 Exhibit B− Appx 0086−0087, # 11 Exhibit B− Appx 0088−0090, # 12 Exhibit B− Appx 0108−0110, # 13 Exhibit B− Appx 0124−0126, # 14 Exhibit B− Appx 0501−0503, # 15 Exhibit B− Appx 0510−0511, # 16 Exhibit B− Appx 0512−0520, # 17 Exhibit B−Appx 0525−0529, # 18 Exhibit B−Appx 0530−0531, # 19 Exhibit B−Appx 0690−0691, # 20 Exhibit B−Appx 757, # 21 Exhibit B− Appx 801, # 22 Exhibit B− Appx 0859−0860, # 23 Exhibit B− Appx 0896, # 24 Exhibit B− Appx 0906, # 25 Exhibit B− Appx 0909, # 26 Exhibit B− Appx 1075, # 27 Exhibit B− Appx 1079, # 28 Exhibit B− Appx 1080−1081, # 29 Exhibit B− Appx 1081, lines 9−13, # 30 Exhibit B− Appx 1083) (Perales, Nina) Modified on 7/7/2009 (lmp). (Entered: 07/06/2009)
07/06/2009 170 ADDITIONAL ATTACHMENTS Answer at page 163, lines 15−23 of the Deposition of Jim Olk to 166 Joint Submission Regarding Summary Judgment Evidence by Consol Plaintiffs Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias. (Attachments: # 1 Exhibit B − Appx. 1095 Part 1, # 2 Exhibit B − Appx. 1095 Part 2, # 3 Exhibit B − Appx. 1110, # 4 Exhibit B − Appx. 1258, # 5 Exhibit B − Appx. 1407, # 6 Exhibit B − Appx. 1504 Para. 5 Part 1, # 7 Exhibit B − Appx. 1504 Para 5 Part 2, # 8 Exhibit B − Appx. 1504 Para 6, # 9 Exhibit B − Appx. 1504 Para 7, # 10 Exhibit B − Appx. 1505 Para 8, # 11 Exhibit B − Appx. 1505 Para 9 1st Sentence, # 12 Exhibit B − Appx. 1505 Para 9 4th Sentence, # 13 Exhibit Appx. 1505 Para 10, # 14 Exhibit B − Appx. 1505 Para 11, # 15 Exhibit Appx. 1506−1507, # 16 Exhibit B − Appx. 1506 Para 13, # 17 Exhibit B − Appx. 1506 Para 14, # 18 Exhibit B − Appx. 1507−1508,

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# 19 Appendix B−Appx. 1507 Para 16 2d Sentence, # 20 Exhibit B− Appx. 1507 Para 17 2d Sentence, # 21 Exhibit B − Appx. 1507 Para 17 3d Sentence, # 22 Exhibit B − Appx. 1508 Para 19 1st and 3d Sentences, # 23 Exhibit B− Appx. 1508 Para 20, # 24 Exhibit B − Appx. 1505 Para 21, # 25 Exhibit B − Appx. 1508 Para 22, # 26 Exhibit B − Appx. 1508 Para 23, # 27 Exhibit B − Appx. 1509 Para 24, # 28 Exhibit B − Appx. 1509 Para 25, # 29 Exhibit B − Appx. 1509 Para 26, # 30 Exhibit B − 1509 − Para 27) (Perales, Nina) Modified on 7/7/2009 (lmp). (Entered: 07/06/2009)
07/06/2009 171 ADDITIONAL ATTACHMENTS Article "Hispanics City's Largest Demographic Group to 166 Joint Submission Regarding Summary Judgment Evidence by Consol Plaintiffs Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias. (Attachments: # 1 Exhibit B − Appx. 1519, # 2 Exhibit B − Appx. 1523 Part 1, # 3 Exhibit Appx. 1523 Part 2, # 4 Exhibit B − Appx. 1523, # 5 Exhibit B − Appx. 1524 Para 6, # 6 Exhibit B − Appx. 1524 Para 8, # 7 Exhibit Appx. 1524 Para 9, # 8 Exhibit B − Appx. 1524 Para 10, # 9 Exhibit B − Appx. 1524 Para 11, # 10 Exhibit B− Appx. 1526 Part 1, # 11 Exhibit B − Appx. 1526 Part 2, # 12 Exhibit B − Appx. 1527 Para 5, # 13 Exhibit B − Appx. 1527 Para 6, # 14 Exhibit B − Appx. 1527 Para 8, # 15 Exhibit B − Appx. 1527 Para 9, # 16 Exhibit B − Appx. 1527 Para 10, # 17 Exhibit B − Appx. 1527 Para 11, # 18 Exhibit B − Appx. 1529−1542 Part 1, # 19 Exhibit B − Appx. 1529−1542 Part 2, # 20 Exhibit B − Appx. 1529−1542 Part 3, # 21 Exhibit B − Appx. 1529−1542 Part 4, # 22 Exhibit B − Appx. 1529−1542 Part 5, # 23 Exhibit B − Appx. 1529−1542 Part 6, # 24 Exhibit B − Appx. 1529−1542 Part 7, # 25 Exhibit B − Appx. 1529−1542 Part 8, # 26 Exhibit B − Appx. 1571, # 27 Exhibit B − Appx. 1620, # 28 Exhibit B − Appx. 1621−1622, # 29 Exhibit B − Appx. 1621 Lines 1−6, # 30 Exhibit B − Appx. 1621 Lines 12−16, # 31 Exhibit B − Appx. 1623) (Perales, Nina) Modified on 7/7/2009 (lmp). (Entered: 07/06/2009)
07/07/2009 172 Supplemental Document by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd as to 166 Supplemental Document Exhibit C to Joint Submission. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Biles, C) (Entered: 07/07/2009)
07/17/2009 173 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Corrected Transcript of Proceedings held on June 4, 2009 before Judge Boyle. Court Reporter/Transcriber Shawnie Archuleta, Telephone number 214−753−2747. Parties are notified of their duty to review the transcript. A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Redaction Request − Transcript must be filed within 21 days. If no such Request is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed. Redaction Request due 8/7/2009. Redacted Transcript Deadline set for 8/17/2009. Release of Transcript Restriction set for 10/15/2009. (spa) (Entered: 07/17/2009)
03/05/2010 174 NOTICE Letter regarding issuance of regulatory authority filed by The City of Farmers Branch Texas (Attachments: # 1 SAVE SORN Federal Register 11 December 2008) (Kobach, Kris) (Entered: 03/05/2010)
03/10/2010 175 Supplemental Document by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd as to 174 Notice (Other) Response Letter Brief to Judge J. Boyle. (Biles, C) (Entered: 03/10/2010)
03/12/2010 176 NOTICE Response to Defendant's Letter regarding Issuance of Regulatory Authority re: 174 Notice (Other) filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) (Entered: 03/12/2010)
03/24/2010 177 ORDER granting in part and denying in part 92 Motion for Summary Judgment; granting in part and denying in part 93 Motion for Summary Judgment; granting in part and denying in part 96 Motion for Summary Judgment. See Order for details. (Ordered by Judge Jane J Boyle on 3/24/2010) (Judge Jane J Boyle) (Entered: 03/24/2010)
03/24/2010 178 ORDER: Plaintiffs objections to Defendants summary judgment evidence and motions to strike (docs. 118 and 133) are DENIED. (See Order) (Ordered by Judge Jane J Boyle on 3/24/2010) (skt) (Entered: 03/24/2010)
03/25/2010 179 FINAL JUDGMENT: IT IS ORDERED that enforcement of Ordinance 2942 is permanently enjoined. All costs of court are taxed against the party incurring the same and all relief not granted herein is expressly denied. (See Order.) (Ordered by Judge Jane J Boyle on 3/25/2010) (twd) (Entered: 03/25/2010)

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04/02/2010 180 MOTION for Extension of Time to File Petiton for Attorneys Fees and Costs filed by Aide Garza, Valentin Reyes, Alicia Garcia, Ginger Edwards, Jose Guadalupe Arias (Perales, Nina) (Entered: 04/02/2010)
04/05/2010 181 ORDER granting 180 Motion for Extension of Time to File request for attorneys fees and costs. The Reyes Plaintiffs shall file their petition for attorneys fees and costs on or before 4/24/2010. (See Order) (Ordered by Judge Jane J Boyle on 4/5/2010) (dnc) (Entered: 04/05/2010)
04/08/2010 182 ***WITHDRAWN PER NOTICE AT DOCKET 240 *** MOTION for Attorney Fees and Costs Supporting Brief filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd with Brief/Memorandum in Support. (Attachments: # 1 Appendix Villas Plaintiffs' Application for Attorneys Fees and Costs, # 2 Appendix Villas Plaintiffs Application for Attorneys Fees and Costs, # 3 Appendix Villas Plaintiffs Application for Attorneys Fees and Costs, # 4 Appendix Villas Plaintiffs Application for Attorneys Fees and Costs, # 5 Appendix Villas Plaintiffs' Application for Attorneys Fees and Costs, # 6 Appendix Villas Plaintiffs Application for Attorneys Fees and Costs, # 7 Appendix Villas Plaintiffs' Application for Attorney's Fees and Costs) (Biles, C) Modified on 6/13/2014 (cea). (Entered: 04/08/2010)
04/08/2010 183 MOTION to Alter Judgment filed by Chateau Ritz Partners, Mary Miller Smith, Villas at Parkside Partners, Lakeview at Parkside Partners Ltd with Brief/Memorandum in Support. (Biles, C) (Entered: 04/08/2010)
04/26/2010 184 ***WITHDRAWN PER NOTICE AT DOCKET 241 *** MOTION for Attorney Fees filed by Jose Guadalupe Arias, Ginger Edwards, Alicia Garcia, Aide Garza, Valentin Reyes, Alfredo Vasquez, Maria de la Luz Vasquez with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) A (cont.), # 3 Exhibit(s) B, # 4 Exhibit(s) C, # 5 Exhibit(s) D, # 6 Exhibit(s) F, # 7 Exhibit(s) G) (Perales, Nina) (Entered: 04/26/2010)
04/27/2010 185 Supplemental Document by Jose Guadalupe Arias, Alicia Garcia, Aide Garza, Valentin Reyes, Alfredo Vasquez, Maria de la Luz Vasquez as to 184 MOTION for Attorney Fees Exhibit E. (Perales, Nina) (Entered: 04/27/2010)
04/28/2010 186 RESPONSE filed by The City of Farmers Branch Texas re: 183 MOTION to Alter Judgment (Masso, Jadd) (Entered: 04/28/2010)
04/28/2010 187 RESPONSE filed by The City of Farmers Branch Texas re: 182 MOTION for Attorney Fees and Costs Supporting Brief (Masso, Jadd) (Entered: 04/28/2010)
04/28/2010 188 Appendix in Support filed by The City of Farmers Branch Texas re 187 Response/Objection to Application for Attorneys' Fees and Costs (Masso, Jadd) (Entered: 04/28/2010)
05/07/2010 189 Agreed MOTION for Extension of Time to File Response/Reply in Support of Villas Plaintiffs' Application for Attorneys' Fees and Costs filed by Chateau Ritz Partners, Lakeview at Parkside Partners Ltd, Mary Miller Smith, Villas at Parkside Partners (Biles, C) (Entered: 05/07/2010)
05/10/2010 190 ORDER granting 189 Motion to Extend Time to File Response/Reply. Replies due by 5/19/2010. (See Order) (Ordered by Judge Jane J Boyle on 5/10/2010) (skt) (Entered: 05/10/2010)
05/11/2010 191 REPLY filed by Chateau Ritz Partners, Lakeview at Parkside Partners Ltd, Mary Miller Smith, Villas at Parkside Partners re: 183 MOTION to Alter Judgment (Biles, C) (Entered: 05/11/2010)
05/17/2010 192 RESPONSE filed by The City of Farmers Branch Texas re: 184 MOTION for Attorney Fees (Masso, Jadd) (Entered: 05/17/2010)
05/17/2010 193 Appendix in Support filed by The City of Farmers Branch Texas re 192 Response/Objection (Masso, Jadd) (Entered: 05/17/2010)
05/19/2010 194 REPLY filed by Chateau Ritz Partners, Lakeview at Parkside Partners Ltd, Mary Miller Smith, Villas at Parkside Partners re: 182 MOTION for Attorney Fees and Costs Supporting Brief (Biles, C) (Entered: 05/19/2010)
05/19/2010 195 Appendix in Support re 194 Reply in Support of Villas Plaintiffs' Application for Attorneys Fees and Costs (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Exhibit(s)) (Biles, C) (Entered: 05/19/2010)
06/01/2010 196 REPLY filed by Jose Guadalupe Arias, Ginger Edwards, Alicia Garcia, Aide Garza, Valentin Reyes, Alfredo Vasquez, Maria de la Luz Vasquez re: 184 MOTION for Attorney Fees

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(Attachments: # 1 Exhibit(s) A − Part 1, # 2 Exhibit(s) A − Part 2, # 3 Exhibit(s) A − Part 3, # 4 Exhibit(s) A − Part 4, # 5 Exhibit(s) A − Part 5, # 6 Exhibit(s) A − Part 6, # 7 Exhibit(s) A − Part 7, # 8 Exhibit(s) A − Part 8, # 9 Exhibit(s) B) (Perales, Nina) (Entered: 06/01/2010)

07/09/2010 197 ORDER granting in part and denying in part 182 Motion for Attorney Fees and DIRECTING the parties to mediation. (Ordered by Judge Jane J Boyle on 7/9/2010) (Judge Jane J Boyle) (Entered: 07/09/2010)

07/09/2010 198 ORDER granting in part and denying in part 184 Motion for Attorney Fees and DIRECTING the parties to mediation. (Ordered by Judge Jane J Boyle on 7/9/2010) (Judge Jane J Boyle) (Entered: 07/09/2010)

07/09/2010 199 MEDIATION ORDER. Mediator appointed. Alternative Dispute Resolution Summary form provided electronically or by US Mail as appropriate. The mediator is directed by the Court to complete the attached Alternative Dispute Resolution Summary Form and file it with the clerk of court within ten (10) days after the mediation session is completed. (see order) (Ordered by Judge Jane J Boyle on 7/9/2010) (tln) (Entered: 07/12/2010)

07/15/2010 200 NOTICE OF APPEAL to the Fifth Circuit as to 179 Judgment, 197 Order on Motion for Attorney Fees, 177 Order on Motion for Summary Judgment,,,,, 198 Order on Motion for Attorney Fees by The City of Farmers Branch Texas. Filing fee $455, receipt number 0539−3362027. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (Jung, Peter) (Entered: 07/15/2010)

07/15/2010 201 TRANSCRIPT REQUEST (transcripts already on file) by The City of Farmers Branch Texas for proceedings held on 9/12/08, 2/27/09, 6/4/09 before Judge Boyle/Ramirez. (Jung, Peter) (Entered: 07/15/2010)

08/06/2010

USCA Case Number 10−10751 for 200 Notice of Appeal,, filed by The City of Farmers Branch Texas. (svc) (Entered: 08/06/2010)

09/02/2010 202 Alternative Dispute Resolution Summary filed by ADR Provider. Attorneys in Attendance: yes. Prv Fee: $ $3850.00. Outcome of ADR: Parties were unable to reach a settlement. (Morgan, Cecilia) (Entered: 09/02/2010)

09/08/2010 203 Unopposed MOTION to Withdraw as Attorney Farrin R. Anello filed by Jose Guadalupe Arias, Ginger Edwards, Alicia Garcia, Aide Garza, Valentin Reyes, Alfredo Vasquez, Maria de la Luz Vasquez (Anello, Farrin) (Entered: 09/08/2010)

09/13/2010 204 ORDER granting 203 Motion to Withdraw as Attorney. Attorney Farrin R Anello terminated. (see order) (Ordered by Judge Jane J Boyle on 9/13/2010) (axm) (Entered: 09/14/2010)

09/14/2010 205 ORDER granting in part and denying in part 183 Motion to Alter Judgment. (see order) (Ordered by Judge Jane J Boyle on 9/14/2010) (axm) (Entered: 09/15/2010)

09/14/2010 206 AMENDED FINAL JUDGMENT: It is Ordered, Adjudged and Decreed enforcement of Ordinance 2952 is permanently enjoined. It is Further Ordered that all costs of court are taxed against the party incurring the same and that all relief not granted herein is expressly denied. (Ordered by Judge Jane J Boyle on 9/14/2010) (axm) (Entered: 09/15/2010)

09/15/2010 207 NOTICE (Amended) of Appeal re: 206 Judgment, 177 Order on Motion for Summary Judgment,,,,, filed by The City of Farmers Branch Texas (Jung, Peter) (Entered: 09/15/2010)

09/15/2010

AMENDED NOTICE OF APPEAL to the Fifth Circuit as to 177 Memorandum Opinion and Order, 206 Amended Final Judgment by The City of Farmers Branch Texas. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (See document #207 for image.) (skt) (Entered: 09/16/2010)

09/17/2010

Record on Appeal for USCA5 10−10751 (related to 200 appeal): Record consisting of: 51 volumes of ECF electronic records and 1 volume from 3:08cv1615, 5 Volume(s) electronic transcript, Sealed or ex parte document number(s): 142,146−149 (circuit approval is required for access), certified to USCA. To request a copy of the record (on disk or on paper), contact the appeals deputy in advance to arrange delivery. (svc) (Entered: 09/17/2010)

09/29/2010

USCA Case Number 10−10928 for 207 Notice of Appeal, filed by The City of Farmers Branch Texas. (svc) (Entered: 09/29/2010)

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10/15/2010

Record on Appeal for USCA5 10−10751/10−10928 (related to 200 , appeal): Record consisting of: 1 Disk containing 51 volumes of ECF electronic records and 1 volume from 3:08cv1615, 5 Volume(s) electronic transcript, transmitted to Peter Michael Jung of Strasburger & Price by mail. (svc) (Entered: 10/15/2010)

11/09/2010 208 ***Per attorney, filed in error*** NOTICE of Withdrawal of Counsel filed by Valentin Reyes (Perales, Nina) Modified on 11/9/2010 (mcr). (Entered: 11/09/2010)

11/09/2010 209 NOTICE Withdrawal of Counsel (Corrected) re: 208 Notice (Other) filed by Valentin Reyes (Perales, Nina) (Entered: 11/09/2010)

02/23/2011

Record on Appeal for USCA5 10−10751/10−10928 (related to 200 , appeal): transmitted to Lisa Graybill on disk only by mail. (svc) (Entered: 02/23/2011)

02/28/2011

Record on Appeal for USCA5 10−10751/10−10928 (related to 200 , appeal): transmitted to Bickel and Brewer c/o Kyle Witherspoon on disk only by mail. (svc) (Entered: 02/28/2011)

05/19/2011 210 Record on Appeal for USCA5 10−10751/10−10928 (related to 200 , appeal): Record consisting of: 52 Volume(s) ECF electronic record, 5 Volume(s) electronic transcript, Sealed or ex parte document number(s): 1, transmitted to USCA5. Shipped: Federal Express 296232215003094,296232215003056,296232215003063,296232215003070,296232215003087, (svc) (Entered: 05/19/2011)

09/14/2012 211 ORDER of USCA granting motion to file amicus brief filed by American Immigration Lawyers Association. (svc) (Entered: 09/18/2012)

05/24/2013 212 ***Disregard − Filed in Error*** NOTICE: This closed case has funds remaining in the registry of the court, and these funds will be transferred to the Treasury of the United States under 28 U.S.C. 2042 if the person entitled thereto does not make a timely claim to withdraw the funds. Registry funds may only be withdrawn by order of the court. Under Fed.R.Civ.P. 7(b)(1), a request for a court order must be made by motion. Clerk to notify parties not electronically noticed. (kmw) Modified on 5/28/2013 (chmb). (Entered: 05/24/2013)

08/15/2013 213 Opinion of USCA (certified copy) in accordance with USCA judgment re 200 Notice of Appeal filed by The City of Farmers Branch Texas. (axm) (Entered: 08/15/2013)

08/15/2013 214 JUDGMENT/MANDATE of USCA as to 200 Notice of Appeal. The judgment of the District Court is affirmed. Issued as Mandate: 8/13/2013. (axm) (Entered: 08/15/2013)

08/15/2013

Appeal Record Returned: 1 sealed envelope of sealed documents returned. (axm) (Entered: 08/15/2013)

08/15/2013 215 USCA5 BILL OF COSTS: Costs taxed in amount of $ 142.20 against The City of Farmers Branch, Texas. (axm) (Entered: 08/15/2013)

08/15/2013 216 USCA5 BILL OF COSTS: Costs taxed in amount of $ 116.50 against The City of Farmers Branch. (axm) (Entered: 08/15/2013)

08/15/2013 217 USCA5 BILL OF COSTS: Costs taxed in amount of $ 162.00 against The City of Farmers Branch, Texas. (axm) (Entered: 08/15/2013)

08/15/2013 218 USCA5 BILL OF COSTS: Costs taxed in amount of $ 115.00 against The City of Farmers Branch, Texas. (axm) (Entered: 08/15/2013)

08/27/2013 219 ***WITHDRAWN PER NOTICE AT DOCKET 240 *** Supplemental MOTION for Attorney Fees filed by Chateau Ritz Partners, Lakeview at Parkside Partners Ltd, Mary Miller Smith, Villas at Parkside Partners with Brief/Memorandum in Support. (Attachments: # 1 Cover Sheet Appendix, # 2 Declaration(s) Renard 1 of 3, # 3 Declaration(s) Renard 2 of 3, # 4 Declaration(s) Renard 3 of 3, # 5 Declaration(s) C. Dunham Biles, # 6 Declaration(s) F. Finn) (Biles, C) Modified on 6/13/2014 (cea). (Entered: 08/27/2013)

09/27/2013 220 STATUS REPORT ORDER: The Court ORDERS Defendants to update the Court as to the status of this case. Specifically, Defendants shall update the Court as to the status of its appeal and indicate whether it intends to respond to Plaintiffs' Motion at this time. (Ordered by Judge Jane J Boyle on 9/27/2013) (jrr) (Entered: 09/27/2013)

10/01/2013 221 Status Report and MOTION to Defer Response to Supplemental Motion for Attorney Fees re 220 Status Report Order, filed by The City of Farmers Branch Texas (Masso, Jadd) Docket text modified on 10/2/2013 (twd). (Entered: 10/01/2013)

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 27 of 28
10/02/2013 222 ORDER granting 221 Motion to Defer Response to Supplemental Motion for Attorney Fees and ORDERS that Defendant's deadline to respond to Plaintiffs' Supplemental Motion for Attorneys' Fees (doc. 219) is hereby stayed pending the resolution of Defendant's appeal. (Ordered by Judge Jane J Boyle on 10/2/2013) (tla) (Entered: 10/02/2013)
10/04/2013 223 NOTICE of Attorney Appearance by Marisa Bono on behalf of Jose Guadalupe Arias, Ginger Edwards, Alicia Garcia, Aide Garza, Valentin Reyes. (Filer confirms contact info in ECF is current.) (Bono, Marisa) (Entered: 10/04/2013)
10/15/2013 224 MOTION for Briefing Schedule for Attorney's Fees and Costs Following Disposition of Supreme Court Appeal filed by Jose Guadalupe Arias, Ginger Edwards, Alicia Garcia, Aide Garza, Valentin Reyes (Attachments: # 1 Proposed Order) (Perales, Nina) (Entered: 10/15/2013)
10/15/2013 226 Appeal Record Not Returned. Electronic copy of the record has been recycled (svc) (Entered: 10/22/2013)
10/16/2013 225 ORDER granting 224 Motion for Briefing Schedule for Attorney's Fees and Costs Following Disposition of Supreme Court Appeal. Plaintiffs shall have thirty (30) days after the disposition of the appeal or after entry of final judgment following remand to file a supplementary motion for award of attorneys' fees and costs. Defendant shall have thirty (30) days after service of the supplemental motion for attorneys' fees and costs in which to file a responsive memorandum. Plaintiffs shall have fourteen (14) days after service of the responsive memorandum to file any reply. (Ordered by Judge Jane J Boyle on 10/16/2013) (cea) (Entered: 10/16/2013)
03/07/2014 227 Received letter from USCA5 Re: Supreme Court denying certiorari (svc) (Entered: 03/11/2014)
03/21/2014 228 Unopposed MOTION to Extend Time to File a Supplementary Motion for Award of Attorney's Fees and Costs filed by Chateau Ritz Partners, Lakeview at Parkside Partners Ltd, Mary Miller Smith, Villas at Parkside Partners (Attachments: # 1 Proposed Order) (Perales, Nina) (Entered: 03/21/2014)
03/24/2014 229 MEDIATION ORDER. Alternative Dispute Resolution Summary form provided electronically or by US Mail as appropriate. Deadline for mediation is on or before 5/31/2014. (Ordered by Judge Jane J Boyle on 3/24/2014) (chmb) (Entered: 03/24/2014)
03/27/2014 230 ELECTRONIC ORDER granting 228 Unopposed Motion to Extend Time. The Reyes Plaintiffs shall have until 4/17/2014 to to file a supplementary motion for award of attorneys fees and costs. The parties may seek additional time to submit their attorney's fees briefing based on the Court's Mediation Order entered 3/24/14. Nevertheless, the Court's Mediation Order remains in place and the Court will not issue any ruling on the amount of attorneys fees and costs to be awarded until the parties comply with the Mediation Order. (Ordered by Judge Jane J Boyle on 3/27/2014) (chmb). (Entered: 03/27/2014)
04/02/2014 231 ***WITHDRAWN PER NOTICE AT DOCKET 240 *** Supplemental MOTION for Attorney Fees filed by Chateau Ritz Partners, Lakeview at Parkside Partners Ltd, Mary Miller Smith, Villas at Parkside Partners with Brief/Memorandum in Support. (Attachments: # 1 Cover Sheet Appendix, # 2 Declaration(s) Declaration of James S. Renard, # 3 Declaration(s) Declaration of C. Dunham Biles, # 4 Declaration(s) Declaration of Frank Finn) (Biles, C) Modified on 6/13/2014 (cea). (Entered: 04/02/2014)
04/16/2014 232 MOTION for Extension of Time to File Response/Reply to 219 Supplemental MOTION for Attorney Fees , 231 Supplemental MOTION for Attorney Fees filed by The City of Farmers Branch Texas (Attachments: # 1 Proposed Order) (Masso, Jadd) (Entered: 04/16/2014)
04/17/2014 233 ELECTRONIC ORDER granting 232 Unopposed Motion to Extend Time to File Response/Reply. The City of Farmers Branch shall have until May 16, 2014 to respond to the Villa Plaintiffs' Supplemental Application for Attorneys' Fees and Costs. (Ordered by Judge Jane J Boyle on 4/17/2014) (chmb). (Entered: 04/17/2014)
04/17/2014 234 ***WITHDRAWN PER NOTICE AT DOCKET 241 *** Supplemental MOTION for Attorney Fees and Costs filed by Jose Guadalupe Arias, Ginger Edwards, Alicia Garcia, Aide Garza, Valentin Reyes with Brief/Memorandum in Support. (Attachments: # 1 Additional Page(s) Appendix, # 2 Exhibit(s) Exhibit A − Declaration of Nina Perales, # 3 Exhibit(s) Exhibit B − Declaration of Omar Jadwat, # 4 Exhibit(s) Exhibit C − Declaration of Edward Cloutman, # 5 Proposed Order) (Perales, Nina) (Entered: 04/17/2014)
05/16/2014 235 RESPONSE filed by The City of Farmers Branch Texas re: 219 Supplemental MOTION for Attorney Fees , 231 Supplemental MOTION for Attorney Fees (Attachments: # 1 Exhibit(s))

Case: 3:08-cv-1551 As of: 09/20/2017 12:47 PM CDT 28 of 28

(Masso, Jadd) (Entered: 05/16/2014)

05/16/2014 236 RESPONSE filed by The City of Farmers Branch Texas re: 234 Supplemental MOTION for Attorney Fees and Costs (Attachments: # 1 Exhibit(s)) (Masso, Jadd) (Entered: 05/16/2014)

05/27/2014 237 Alternative Dispute Resolution Summary filed by Jeff Kaplan. Attorneys in Attendance: Dunham Biles, James S. Renard, Nina Perales, William C. Dowdy III and Omar C. Jadwat. Prv Fee: $ 5,525.00. Outcome of ADR: Settled as a result of ADR. (Kaplan, Jeff) (Entered: 05/27/2014)

05/28/2014 238 Agreed MOTION to Stay Deadline for Plaintiffs' to file Reply Briefs in Support of Their Applications for Attorneys' Fees and Costs filed by Jose Guadalupe Arias, Chateau Ritz Partners, Ginger Edwards, Alicia Garcia, Aide Garza, Lakeview at Parkside Partners Ltd, Valentin Reyes, Mary Miller Smith, The City of Farmers Branch Texas, Alfredo Vasquez, Maria de la Luz Vasquez, Villas at Parkside Partners (Attachments: # 1 Proposed Order) (Biles, C) (Entered: 05/28/2014)

05/29/2014 239 ELECTRONIC ORDER granting 238 Agreed Motion to Stay. The Court ORDERS that Villas Plaintiffs and Reyes Plaintiffs deadlines to file their respective reply briefs in support of their applications for attorneys fees and costs is hereby stayed. If the issue of attorneys fees is not resolved on or before June 23, 2014: (1) the parties shall so notify the Court; and (2) the Villas Plaintiffs and Reyes Plaintiffs shall file their reply briefs on or before July 11, 2014.(Ordered by Judge Jane J Boyle on 5/29/2014) (chmb). (Entered: 05/29/2014)

06/12/2014 240 NOTICE of Withdrawal of Villas Plaintiffs' Pending Applications for Attorneys Fees filed by Chateau Ritz Partners, Lakeview at Parkside Partners Ltd, Mary Miller Smith, Villas at Parkside Partners (Biles, C) (Entered: 06/12/2014)

06/24/2014 241 NOTICE of Withdrawal of their Pending Motions for Attorneys' Fees and Costs filed by Jose Guadalupe Arias, Ginger Edwards, Alicia Garcia, Aide Garza, Valentin Reyes (Perales, Nina) (Entered: 06/24/2014)

04/15/2015 242 Unopposed MOTION to Withdraw as Counsel for Alicia Garcia, Ginger Edwards, Jose Arias and Aide Garza filed by Valentin Reyes (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Proposed Order) (Perales, Nina) (Entered: 04/15/2015)

04/16/2015 243 ORDER granting 242 Unopposed Motion for Attorney Withdrawal: It is ORDERED that all counsel currently representing the Reyes Plaintiffs be terminated as attorneys of record for Plaintiffs Ginger Edwards, Jose Guadalupe Arias, Aide Garza, and Alicia Garcia in this case. It is further ORDERED that Plaintiffs Ginger Edwards, Jose Guadalupe Arias, Aide Garza, and Alicia Garcia retain new counsel and cause such counsel to enter an appearance by no later than 5/17/2015, or provide the Court with written notice of their intention to proceed pro se. Failure to do either will result in dismissal of their actions under Federal Rule of Civil Procedure 41(b). (Ordered by Judge Jane J Boyle on 4/16/2015) (twd) (Main Document 243 replaced on 4/16/2015) (twd). (Entered: 04/16/2015)

04/16/2015

***Clerk's Notice of delivery: (see NEF for details) Docket No:243. Thu Apr 16 16:46:59 CDT 2015 (crt) (Entered: 04/16/2015)

04/27/2015 244 Certified mail receipt returned for 243 Order served on Alicia Garcia (4/20/2015), Aide Garza (4/20/2015), Jose Guadalupe Arias (4/22/2015) and Ginger Edwards (4/22/2015). (twd) (Entered: 04/27/2015)

 
 MALDEF and ACLU Win Permanent Injunction of Third Farmers Branch Anti-Immigrant Ordinance
Federal judge rules Farmers Branch Ordinance 2952 is unconstitutional
March 24, 2010 DALLAS, TX – Today, MALDEF, the American Civil Liberties Union Foundation of Texas (ACLU) and the National ACLU Immigrants’ Rights Project succeeded in invalidating Ordinance 2952, the latest in a series of anti-immigrant ordinances enacted by Farmers Branch, Texas. The ordinance was adopted by the Farmers Branch City Council in January of 2008. The federal court decision forbids the City from ever enforcing the Ordinance. In a careful opinion, U.S. District Court Judge Jane J. Boyle determined that Ordinance 2952 was preempted by federal law. The Court resoundingly rejected the City's claim that it had the authority to regulate the residence of noncitizens within its borders. Noting that the City Building Inspector would be charged with interpreting and applying immigration information to prospective tenants, the court concluded that Ordinance 2952 “is an invalid regulation of immigration” and that the “Ordinance stands as an obstacle to the uniform application of federal immigration law[.]”
“Once again, Farmers Branch has wasted hundreds of thousands of its taxpayer’ money enacting and defending an unconstitutional ordinance,” stated Nina Perales, MALDEF Southwest Regional Counsel. “This decision sends a strong message that Farmers Branch should stop wasting vital city resources on a string of failures in court,” continued Perales. “The Court’s opinion confirms what we have known from the beginning of this fight, back in November, 2006 -- that Farmers Branch’s effort to legislate in the realm of immigration is a quixotic attempt to circumvent federal law and clearly established precedent,” said Lisa Graybill, Legal Director for the ACLU of Texas. “With this third strike, hopefully the City of Farmers Branch will get out of the immigration enforcement business and move on to address its municipal obligations through more constructive and constitutional local policies. ” "This decision has national significance. It is another indication of the costs incurred on all sides by the failure of our national leaders to enact immigration reform legislation that would provide clearly and expressly that state and local laws seeking to regulate immigrants in this way are unlawful," commentedThomas A. Saenz, President and General Counsel of MALDEF. "While our Constitution plainly preempts such laws, a clear expression by Congress would help to prevent local entities from embarking on the costly enactment of laws that will inevitably be struck down as unconstitutional," Saenz explained.
Omar Jadwat, staff attorney with the ACLU Immigrants’ Rights Project, added: “Local laws restricting access to housing based on immigration status have a zero-percent success rate in court, as Judge Boyle noted in her opinion. Advocates have challenged ordinances of this type in New Jersey, Pennsylvania, California, Missouri, and Texas, and the result in every case has been invalidation or repeal.” Read the court opinion here. For all media inquiries, please contact Estuardo Rodriguez or Laura Rodriguez.

 
 REVISED April 9, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
March 21, 2012

No. 10-10751

Lyle W. Cayce Clerk

VILLAS AT PARKSIDE PARTNERS, doing business as Villas at Parkside; LAKEVIEW AT PARKSIDE PARTNERS, LIMITED, doing business as Lakeview at Parkside; CHATEAU RITZ PARTNERS, doing business as Chateau De Ville; MARY MILLER SMITH;

Plaintiffs–Appellees v.

THE CITY OF FARMERS BRANCH, TEXAS,

Defendant-Appellant

-----------------------------------------------------------------------------------------------------

VALENTIN REYES; ALICIA GARCIA; GINGER EDWARDS; JOSE GUADALUPE ARIAS; AIDE GARZA

Plaintiffs–Appellees v.

CITY OF FARMERS BRANCH

Defendant-Appellant

Appeals from the United States District Court for the Northern District of Texas
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

No. 10-10751 REAVLEY, Circuit Judge:
The City of Farmers Branch, Texas, (“the City”) appeals the district court’s summary judgment enjoining it from implementing a purported housing ordinance that requires all adults living in rental housing within the City to obtain an occupancy license conditioned upon the occupant’s citizenship or lawful immigration status. The district court concluded that the ordinance was preempted by federal law as a regulation of immigration that infringed Congress’s constitutional power. The court also concluded that the ordinance was field preempted and conflict preempted under federal law. We conclude that the ordinance’s sole purpose is not to regulate housing but to exclude undocumented aliens, specifically Latinos, from the City of Farmers Branch and that it is an impermissible regulation of immigration. We hold that the ordinance is unconstitutional and presents an obstacle to federal authority on immigration and the conduct of foreign affairs. We therefore AFFIRM the district court’s judgment.
I. Background The City adopted Ordinance 2952 (“the Ordinance”) on January 22, 2008, requiring that every adult person wishing to rent or lease any single family residence or apartment within Farmers Branch must apply for a residential occupancy license from the City’s Building Inspector.1 Any proposed occupant who is not a United States citizen must provide an identification number establishing lawful presence in this country. If the non-citizen has no identification number, he may declare a lack of knowledge of such a number. The Building Inspector must verify with the federal government whether a noncitizen is “an alien lawfully present in the United States.”
1 The text of the Ordinance is set out in full in the appendix to this opinion.
2

No. 10-10751 The Building Inspector will revoke the occupancy license of an alien who is unlawfully present in this country. If the federal government is unable to verify the occupant’s lawful status as requested, the Building Inspector may take the word of the alien, but the Ordinance makes it a criminal offense to make a false declaration on the occupancy license application. It is also a criminal offense for a person to occupy rental housing without a valid occupancy license or for a lessor to knowingly permit a person to occupy a rental unit without a valid license. The penalty for each offense is a fine of $500 per day of the occupancy. The history of Ordinance 2952 began several years prior to its enactment when the City Council for Farmers Branch began considering a need to address perceived harms posed by illegal aliens, particularly Latinos, residing in the City. In 2006, the City Council passed a resolution expressing frustration over the federal government’s purported failure to enforce immigration laws and to prevent the “influx of illegal aliens . . . estimated in the millions” that were “coming in across our most southerly border.” The resolution declared the City’s intent to “take whatever steps it legally can to respond to the legitimate concerns of our citizens.” The City also adopted a resolution declaring English as the official language of Farmers Branch. The City subsequently passed Ordinance 2892, the first of three attempts to regulate immigration in the rental housing context. That ordinance directed owners and property managers to require submission of evidence of citizenship or immigration status for each tenant family. Around the time of that ordinance’s adoption, the City also created a task force to assess redevelopment opportunities in the City, which issued several reports identifying the City’s “lower income, minority population” and its increasing Hispanic and ethnic population as concerns and obstacles for
3

No. 10-10751
redevelopment.2 Ordinance 2892 was later repealed in 2007 after a state court enjoined it due to possible violations of the Texas Open Meetings Act.
The City Council subsequently adopted substantially similar provisions by passing Ordinance 2903, however, which additionally provided for a referendum on the measure. Voters in the City approved Ordinance 2903, but in May 2008 a federal district court enjoined its enforcement, holding that the ordinance violated due process, was void for vagueness, and was an impermissible regulation of immigration under the Supremacy Clause.3
The City tried again to affect immigration through its housing regulations with the adoption of Ordinance 2952. The preamble to the Ordinance expresses a specific intent “to enact regulations that are harmonious with federal immigration law and which aid in its enforcement.” Testimony of City officials during the proceedings in this case confirmed what was obvious from the text of the ordinance—that the City’s intent with each of the regulations noted above was to enact an exclusionary rule for illegal aliens in Farmers Branch. For example, Tim O’Hare, who was a member of the City Council until he was elected mayor in 2007, testified that the 2006 English language resolution was intended to increase assimilation of non-English speakers and to make the City
2 For example, a December report from the task force listed “demographics” among the barriers to redevelopment, noting that “[t]he population of Farmers Branch is getting older and more diverse . . . .” Explaining this remark, the task force stated that “[t]he City’s Hispanic population increased from about 5 percent to 37 percent between 1970 and 2000 and continues to grow at a rate exceeding all other ethnic and racial populations in the City.” The task force believed that “factors that impact the sustainability of the development” of a major retail area in the City included the fact that retailers were “responding to demographic change by increasingly marketing to growing ethnic populations, which in turn is giving rise to shopping centers devoted exclusively to ethnic populations, especially Hispanic, African American, and Asian populations.”
3 See Villas at Parkside Partners v. Farmers Branch, 577 F. Supp. 2d 858, 866–77, 879 (N.D. Tex. 2008) (Farmers Branch I).
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No. 10-10751
less attractive to undocumented immigrants.4 He stated that the resolution and the ordinance that followed were meant to “help reduce the illegal immigrant population in Farmers Branch.” Indeed, O’Hare testified that the purpose of all three ordinances—2892, 2903, and 2952—was to “mak[e] it difficult for illegal aliens to rent property in the City of Farmers Branch . . . .” He also testified about his frustration with the federal government’s failure to enforce immigration laws, and he confirmed that Ordinance 2952 was intended to compensate for that perceived failure. O’Hare’s testimony was consistent with that of City Attorney Tim Scott, who also testified that the goal of the Ordinance was to address illegal immigration issues and to “reduce the number of illegal immigrants in Farmers Branch.”
As justification for the above intent, the Ordinance expresses that it is authorized pursuant to the City’s “police power to protect the health, safety, and welfare of its citizens.” It further states that the Ordinance does not entail an intent to “alter supplant, disrupt, or interfere with federal immigration law.”
Two groups of plaintiffs representing lessors and lessees of rental property in Farmers Branch brought a pre-enforcement action against the City raising a facial challenge to the Ordinance. In ruling on cross-motions for summary judgment, the district court permanently enjoined enforcement of the Ordinance on three grounds.5 The district court concluded that the Ordinance was a local “regulation of immigration” entrusted by the Constitution to Congress and was therefore preempted under the Supremacy Clause.6 Although some local
4 O’Hare testified that the resolution was “one of several things that sent a message to people who aren’t in the country legally, Farmers Branch is not the place for you.”
5 See Villas at Parkside Partners v. City of Farmers Branch, 701 F. Supp. 2d 835 (N.D. Tex. 2010) (“Farmers Branch II”). The district court first determined that the plaintiffs had standing to challenge the Ordinance. Id. at 845–51. The City has not appealed the district court’s ruling on standing.
6 Id. at 855.
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No. 10-10751 regulation which merely touches on aliens may be permissible7,the district court here reasoned that “the Ordinance, though grounded in federal immigration classifications, is an invalid regulation of immigration because it uses those classifications for purposes not authorized or contemplated by federal law.”8
The district court further determined that the Ordinance was impliedly preempted by the Immigration and Nationality Act (“INA”)9 under theories of both field preemption and conflict preemption. 10 The court reasoned that the INA is a “comprehensive regime for adjudicating an individual’s right to remain in the country;” therefore, the Ordinance, “in addition to constituting a prohibited regulation of immigration [was field] preempted by the INA, which provides the exclusive means for removing aliens or adjudicating their status for that purpose.”11 With respect to conflict preemption, the district court noted that “[a] local regulation may not—though it may share a common goal with federal law—interfere with Congress’s chosen methods.”12 Therefore, even though the Ordinance did not “purport to remove aliens from the United States,” it was conflict preempted because it “regulates local residence based on federal classifications in a manner that directly affects the uniform enforcement of immigration laws.”13 The district court held that the City was impermissibly attempting to enforce its own immigration scheme.14 The City now appeals.
7 See DeCanas v. Bica, 424 U.S. 351, 355, 96 S. Ct. 933, 936 (1976). 8 Farmers Branch II, 701 F. Supp. 2d at 855. 9 8 U.S.C. § 1101 et seq. 10 Farmers Branch II, 701 F. Supp. 2d at 857–58. 11 Id. 12 Id. at 857. 13 Id. at 857–58. 14 Id. at 859.
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No. 10-10751
II. Discussion We review a grant of summary judgment on preemption grounds de novo, applying the same standards as the district court.15 “Summary judgment is proper if the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”16 The City contends on appeal that the district court erred by declining to afford the Ordinance a presumption against preemption, by finding that the Ordinance is a regulation of immigration, and by finding that the Ordinance is field and conflict preempted. It contends that the Ordinance is merely an exercise of its police power to enact a housing regulation and that the Ordinance only tangentially touches upon aliens and immigration. We conclude, however, that the Ordinance is designed to burden aliens, both documented and undocumented, in Farmers Branch. As such, the Ordinance serves no legitimate City interest and is not a mere housing regulation entitled to a presumption against preemption; instead, it burdens the field of immigration. A. Effect of Ordinance 2952 and the presumption against preemption In the field of immigration, the power to regulate “is unquestionably exclusively a federal power.”17 The exclusivity of Congress’s power stems from multiple constitutional sources, “including the Federal Government’s power ‘[t]o establish [a] uniform Rule of Naturalization,’ . . . its power ‘[t]o regulate Commerce with foreign Nations,’ . . . and its broad authority over foreign affairs.”18 It is clear from these sources of the federal power that immigration is inextricably tied to national interests in many areas, one of the most
15 O’Hara v. Gen. Motors Corp., 508 F.3d 753, 757 (5th Cir. 2007). 16 Griffin v. United Parcel Serv., Inc. , 661 F.3d 216, 221 (5th Cir. 2011) (citation omitted); see FED. R. CIV. P. 56(a). 17 DeCanas, 424 U.S. at 354, 96 S. Ct. at 936. 18 Toll v. Moreno, 458 U.S. 1, 10 (1982) (alterations in original) (citations omitted).
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No. 10-10751
significant of which is foreign relations. Indeed, the Supreme Court has recognized that immigration and the governing national policy thereof are inherently part of foreign affairs: “[T]he 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.”19 Given the breadth of the Constitution’s understanding of immigration as a domain of the federal government, state and local laws that attempt to affect aliens will, with limited exceptions, be preempted by the national interest. We therefore begin by considering the preemption doctrine.20
“By virtue of the Supremacy Clause, it is a ‘fundamental principle of the Constitution . . . that Congress has the power to preempt state law.’”21 Federal law will preempt a state or local regulation “when (1) Congress expressly preempts state law; (2) Congressional intent to preempt may be inferred from the existence of a pervasive federal regulatory scheme; or (3) state law conflicts with federal law or its purposes.”22 A pervasive federal regulatory scheme may show that Congress intended to preempt the field, leaving no room for the states
19 Hines v. Davidowitz, 312 U.S. 52, 62, 61 S. Ct. 399, 402–03 (1941) (emphasis added).
20 As an initial matter, the City argues that the district court misapplied the standard for evaluating facial challenges to statutes because the court here did not consider whether there were any circumstances under which application of the Ordinance would be constitutional. See United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987) (stating that a facial challenge “must establish that no set of circumstances exists under which the [challenged] Act would be valid”). The City’s reliance onSalerno in support of its argument is unconvincing. If the Ordinance here goes beyond the City’s constitutional authority to act, or if it conflicts with Congressional intent, it is irrelevant whether some of its provisions might be constitutionally applied. We therefore proceed to consider whether the Ordinance is a permissible exercise of the City’s regulatory authority.
21 Planned Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 336 (5th Cir. 2005) (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 120 S. Ct. 2288, 2293 (2000)).
22 Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir. 2002) (citing English v. Gen. Elec. Co., 496 U.S. 72, 78–79, 110 S. Ct. 2270, 2275 (1990)).
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No. 10-10751 to supplement it.23 Even if Congress has not occupied the field, however, a state law will be preempted “where it is impossible for a private party to comply with both state and federal law,” or where the state law presents an “obstacle” to the accomplishment of the purposes of the federal law.24
A state law will be presumed to be valid “[i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied.”25 This presumption serves purposes of federalism because where Congress acts in a field traditionally occupied by the states, “we start with the assumption 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.”26 Nevertheless, this presumption against federal preemption “is not triggered when the State regulates in an area where there has been a history of significant federal presence.”27 A threshold question then is whether the Ordinance here stands in an area of traditional state regulation, entitled to a presumption of validity, or instead receives no benefit from the presumption because it attempts to legislate in an area of significant federal concern.
As noted above, Congress has plenary power to regulate immigration.28 Thus, Congress and the federal government historically have had a presence in the immigration field. However, the fact that aliens are the subject of a local
23 English, 496 U.S. at 79, 110 S. Ct. at 2275. 24 Crosby, 530 U.S. at 372–73, 120 S. Ct. at 2294. 25 Wyeth v. Levine, 555 U.S. 555, 565, 129 S. Ct. 1187, 1194 (2009) (internal quotation marks and citation omitted). 26 Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152 (1947). 27 United States v. Locke, 529 U.S. 89, 90, 120 S. Ct. 1135, 1139 (2000). 28 DeCanas, 424 U.S. at 354, 96 S. Ct. at 936.
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No. 10-10751
regulation, standing alone, does not mean that the statute is a regulation of immigration that is preempted by federal law.29
For example, in DeCanas, the State of California prohibited the employment of unlawful aliens in the state, and the Court held that this was a permissible attempt to “strengthen [California’s] economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country.”30 Thus, the Court viewed the state statute as an employment regulation, an area in which states have traditionally regulated, not a regulation of immigration. The Court further reasoned that the state statute was not field or conflict preempted because states retain “broad authority under their police powers to regulate the employment relationship to protect workers within the State,” and there was no indication that Congress intended to preclude states from regulating the employment of aliens.31 Instead, at the time of the state regulation Congress had expressed “at best” only a “peripheral concern with [the] employment of illegal entrants.”32 Rather than conflict with a Congressional act, the state law was consistent with a Congressional intent to allow states to regulate the employment of illegal aliens.33
29 Id. at 355, 96 S. Ct. at 936; see also Plyler v. Doe, 457 U.S. 202, 225, 102 S. Ct. 2382, 2399 (1982) (“[T]he States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal.”).
30 DeCanas, 424 U.S. at 355, 96 S. Ct. at 936. 31 Id. at 356 & 358, 96 S. Ct. at 937–38. 32 Id. at 361, 96 S. Ct. at 939. 33 Id.; Congress later overruled this part of DeCanas’s holding when it passed the Immigration Reform and Control Act of 1986, Pub. L. 99-603, 100 Stat. 3359, which expressly preempted “state laws imposing civil fines for the employment of unauthorized workers like the one [DeCanas] upheld.” Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1975 (2011).
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No. 10-10751
In the instant case, the City asserts that a presumption against preemption of the Ordinance applies because the Ordinance is a regulation of residential housing and the issuance of licenses to occupy rental units, which it argues is an area historically occupied by the states. According to the City, the Ordinance merely applies federal classifications consistent with federal law to achieve a purely local result. We disagree.
The text of the Ordinance, and the circumstances surrounding its adoption, show that its purpose and effect are to regulate immigration, an area of federal concern, rather than to regulate housing. The preamble to the Ordinance specifically states that the Ordinance is intended to aid the enforcement of “federal immigration law,” not housing law. (Emphasis added). In fact, the Ordinance refers to federal immigration law either directly or by implication in seven of its eleven introductory “whereas” clauses. Moreover, the Ordinance ranges beyond landlord-tenant law because it conditions the validity of an occupancy license on the lawfulness of an occupant’s immigration status, thereby expressly tying the Ordinance’s criminal offenses to immigration rather than to some violation of the housing code. These facts belie the City’s argument that the Ordinance is nothing more than a housing regulation.
On the contrary, the Ordinance has virtually nothing to say about the housing rental market, except for boilerplate language referencing the City’s police power to protect its citizens. The regulatory scheme created by the Ordinance has none of the indicia one would expect of a housing regulation. For example, the Ordinance says nothing about the location, design, construction, maintenance, ownership, or alteration of residential rental units. It also provides no regulation for the number of residents or the permitted uses of rental housing. The Ordinance creates an application process for an occupancy license, but the applicant is not required to submit information about his employment or credit history, his past residence information, or his criminal
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No. 10-10751 history. All that is required, besides standard information such as one’s name and address, is one’s citizenship information. Moreover, the only reason an occupancy license may be revoked is based on immigration status. On its face then the Ordinance hardly evinces a purpose to regulate rental housing in the City and instead points toward the real target of the regulation—the ferreting out and exclusion of undesirable illegal immigrants.
This purpose of the statute is confirmed by the evidence in the record. Despite an assertion in the preamble that the Ordinance was intended to promote the public health, safety, and general welfare, the City points to nothing showing an effect on public welfare by illegal aliens’ occupancy of rental housing. The mayor of Farmers Branch confirmed that the City conducted no studies on the effects of undocumented aliens on the value of property in Farmers Branch, the quality of its schools, the crime rate, or the availability of healthcare to its residents. One City Council member, Gary Greer, testified that there was no data showing whether undocumented immigrants commit more crimes than others in Farmers Branch. Still another council member, David Koch, agreed that the Ordinance was “not directed in any way towards revitalization” but rather was “directed solely towards removing illegal immigrants.”
The removal of illegal immigrants is thus the precise and intended effect of the Ordinance. Although the Ordinance provides no express removal mechanism, removal is the practical result of the Ordinance because it regulates who may be an occupant based solely on immigration status. This functional denial to aliens of access to rental housing based on their immigration status is “tantamount to the assertion of the right to deny them entrance and abode,” an area that is historically one of federal, not state, concern.34
34 Truax v. Raich, 239 U.S. 33, 42, 10 S. Ct. 7, 11 (1915).
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The Third Circuit reached the same conclusion in a case addressing a similar municipal ordinance that required prospective occupants of rental housing to obtain an occupancy license and provide proof of legal citizenship or residency.35 As the Third Circuit noted, we cannot ignore “the reality” that the Ordinance seeks to affect directly the presence of aliens in Farmers Branch and to condition that presence upon the lawfulness or unlawfulness of their immigration status.36 The reality is that all aliens who are deemed unlawfully present because of an absence of documentation are effectively excluded from Farmers Branch. But because the prerogative of deciding which aliens may live in the United States belongs to the federal government, the City’s Ordinance does not regulate in an area historically occupied by the states, and the district court correctly declined to afford it a presumption of validity.
B. Regulation of immigration and preemption The conclusion that the Ordinance is not a local housing regulation, and instead determines which aliens may reside in Farmers Branch, necessarily compels our conclusion about preemption of the Ordinance as a regulation of immigration contrary to federal authority. Because we conclude that the sole purpose of the Ordinance is to target illegal aliens and effect their removal from the City, we also conclude that the Ordinance is an impermissible regulation of immigration posing an obstacle to federal control of immigration policy.
35 Lozano v. City of Hazelton, 620 F.3d 170, 220 (3d Cir. 2010), vacated by 131 S. Ct. 2958 (2011). The Third Circuit’s decision in Lozano addressed local regulations concerning aliens and immigration in both the housing and employment contexts. The Supreme Court recently vacated the Third Circuit’s judgment for further consideration in light of Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011). See City of Hazelton v. Lozano, 131 S. Ct. 2958 (2011). In Whiting, the Court upheld a local regulation concerning the employment of illegal aliens, but it was not faced with regulations affecting immigration in the housing context. Therefore, although we acknowledge that the entirety of the Third Circuit’s judgment has been vacated, we nevertheless find Lozano’s reasoning instructive in this case because the Third Circuit was faced with a housing regulation squarely analogous to the one in the instant case, and the Supreme Court’s decision in Whiting does not affect that reasoning.
36 Lozano, 620 F.3d at 220.
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As noted above, the national government is entrusted with significant constitutional power to regulate immigration flowing from, inter alia, its power over foreign affairs. In light of this close relationship between immigration and foreign relations, then, it is necessary that the federal government, rather than individual states, have “broad” power over the presence of aliens, including the power to “determin[e] what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization.” Takahashi v. Fish & Game Comm’n.37 Indeed, Congress has exercised its exclusive power by enacting the Immigration and Nationality Act (“INA”),38 which “established a ‘comprehensive federal statutory scheme for regulation of immigration and naturalization’ and set ‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’”39
State or local legislation that interferes with or burdens the broad federal power is impermissible, even if local and federal laws share a common goal. 40 For example, in Hines the Supreme Court addressed the validity of a state alienregistration law in light of a subsequently enacted federal law that required similar registration.41 The subject matter of the state and federal laws was
37 334 U.S. 410, 419, 68 S. Ct. 1138, 1142 (1948) (citation omitted); see also Mathews v. Diaz, 426 U.S. 67, 84, 96 S. Ct. 1883, 1893–94 (1976) (“[I]t is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens.”).
38 See 8 U.S.C. § 1101 et seq.
39 Whiting, 131 S. Ct. at 1973 (quoting DeCanas, 424 U.S. at 353 & 359, 96 S. Ct. at 935 & 938).
40 See Takahashi, 334 U.S. at 419, 68 S. Ct. at 1142 (“State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid.”) (footnote omitted).
41 Hines, 312 U.S. at 56, 61 S. Ct. at 400.
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essentially identical, but the Court concluded that the state did not possess equal and concurrent power over alien registration.42 Of particular “importance” was the fact that the state law was “in a field which affects international relations, the one aspect of our government that from the first has been most generally conceded imperatively to demand broad national authority.4”3 Because of this imperative for a uniform national expression of policy, the Court concluded that the state could not enact its own laws that inter alia “complement[] the federal law, or enforce additional or auxiliary regulations.”44 The Court so concluded, even though compliance with both the federal and state laws was possible, because the state act was “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”45
In the instant case, we think that the Ordinance similarly infringes Congress’s exclusive authority over the regulation of immigration and treads on foreign relations in a way contrary to the requirement of a national voice on immigration policy. The City argues that the Ordinance does not regulate immigration because it does not make a determination about admittance into the United States or the conditions under which a lawful entrant may remain in this
42 Id. at 68, 61 S. Ct. at 405. Although the Court did not address whether the state law was impermissible because federal power, whether exercised or unexercised, is exclusive, see id. at 401, 61 S. Ct. at 62, we find the Court’s discussion of state-federal interaction to be particularly instructive to the instant case. As noted above, the exclusivity of Congress’s power to regulate immigration is well established. See DeCanas, 424 U.S. at 354, 96 S. Ct. at 936; Truax, 239 U.S. at 42, 36 S. Ct. at 11 (“The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal Government.”) (citation omitted).
43 Hines, 312 U.S. at 68, 61 S. Ct. at 404; see also Crosby, 530 U.S. at 381, 120 S. Ct. at 2298 (holding preempted a state law restricting authority of state agencies to purchase goods and services from companies doing business with Burma, even though it shared the same goal as a similar federal law, because inter alia the state law “compromise[d] the very capacity of the President to speak for the Nation with one voice in dealing with other governments”).
44 Hines, 312 U.S. at 66–67, 61 S. Ct. at 404.
45 Id. at 67, 61 S. Ct. at 404.
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country. The City contends that the Ordinance instead merely defers to federal

categories of immigration status and to federal determinations of any particular

alien’s status. We are unconvinced.

The Supreme Court stated in DeCanas that 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.”46 We

recognize that the Ordinance here does not literally control the entry and exit

of aliens into and out of Farmers Branch or the United States. However, we do

not read the quoted language from DeCanas in the same literal and hyper-

technical manner as does the City because we do not read

DeCanas as

attempting to define an impermissible regulation of immigration. In context, the

quoted language merely recognized as impermissible a category of state and local

regulation that would be unconstitutional even with explicit Congressional

authorization. But as the Court later explained, DeCanas “rejected the

pre-emption claim not because of an absence of congressional intent to pre-empt,

but because Congress intended that the States be allowed, ‘to the extent

consistent with federal law, [to] regulate the employment of illegal aliens.’”47

The Court found specific Congressional authorization for the local law in

DeCanas, in an area—employment—that also had historic state regulation, and

so there was no need to define the outer bounds of what it means to be a

regulation of immigration. In this case, however, we believe that the Ordinance

does in fact regulate immigration because it seeks to address directly the

presence of aliens within the City’s borders. We agree with the Third Circuit’s

46 DeCanas, 424 U.S. at 355, 96 S. Ct. at 936 (emphasis added).
47 Toll, 458 U.S. at 13 n.18, 102 S. Ct. at 2984 n.18 (emphasis in original) (quoting DeCanas, 424 U.S. at 361, 96 S. Ct. at 939). In DeCanas, the Court found evidence that Congress intended to permit states to regulate the employment of illegal aliens by looking to amendments made in 1974 to the Farm Labor Contractor Registration Act. See DeCanas, 424 U.S. at 361, 96 S. Ct. at 939 (citing 88 Stat. 1652, 7 U.S.C. § 2041 et seq.).
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No. 10-10751
view that “[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.”48
By denying aliens access to rental housing, the Ordinance here effectively forces them to relocate. As noted above, the preamble to the Ordinance expressly states that it is designed to enforce immigration law, and numerous City officials explicitly stated that the ordinance was intended to reduce the number of illegal aliens in Farmers Branch. The undeniable practical effect of the Ordinance is thus to compel the departure of aliens from the City to other cities, states, or foreign countries, thereby setting the City’s own policy on immigration and regulating immigration across and outside the City’s borders.49
Moreover, as the district court held, the Ordinance imposes additional burdens on aliens that were not contemplated by Congress.50 For example, the Ordinance requires illegal aliens to declare themselves to the City Building Inspector, denies them the ability to enter private contracts for shelter, and subjects them to criminal sanctions, all in an effort to exclude them from the City. Because states lack the constitutional power of the federal government when it comes to immigration, however, the Ordinance may “neither add to nor
48 Lozano, 620 F.3d at 220–21 (internal quotation marks and citation omitted). We also think that access to housing, or the lack thereof, is also a more direct regulation of an alien’s presence in a location than the denial of employment, which further distinguishes this case from DeCanas. Cf. Truax, 239 U.S. at 42, 10 S. Ct. at 11.
49 See United States v. Arizona, 641 F.3d 339, 367 (9th Cir. 2011) (Noonan, J., concurring) (finding that where state legislature declared that the presence of illegal aliens was to be discouraged and their number diminished by Arizona statute requiring law enforcement officers to check a person’s immigration status, “[w]ithout qualification, Arizona establishes its policy on immigration”), cert. granted by 132 S. Ct. 845 (2011) (No. 10A1277, 11-182); cf. Healy v. Beer Inst., Inc., 491 U.S. 324, 332, 109 S. Ct. 2491, 2497 (1989) (“[A] state law that has the ‘practical effect’ of regulating commerce occurring wholly outside that State’s borders is invalid under the Commerce Clause.”).
50 See Farmers Branch II, 701 F. Supp. 2d at 855.
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No. 10-10751
take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.”51
Because the Ordinance has no other purpose than to exclude undocumented aliens who are in the city seeking residence, it adds to the serious national federal problem with immigration and the relations of this country with other countries, especially Mexico. Growing evidence of this national problem can be seen in federal court litigation, as numerous state and local governments seek to target problems, real or imagined, with illegal immigrants. As already noted, a Pennsylvania municipality passed an ordinance virtually identical to Farmers Branch’s ordinance seeking to condition residence in rental housing on an occupant’s lawful immigrations status.52 Arizona, reacting to “a serious problem of unauthorized immigration along the Arizona-Mexico border,” enacted legislation creating its own immigration policies and seeking to deter unlawful entry by requiring its police officers to enforce those policies.53 And the state legislature in Alabama has also sought to discourage illegal immigration by enacting a law creating numerous criminal offenses predicated on
51 Takahashi, 334 U.S. at 419, 68 S. Ct. at 1142; see also Lozano, 620 F.3d at 220 (“The comprehensiveness of the INA scheme for regulation of immigration and naturalization . . . plainly precludes state efforts, whether harmonious or conflicting, to regulate residence in this country based on immigration status.”) (internal quotation marks and citation omitted).
52 See Lozano, 620 F.3d at 180.
53 See Arizona, 641 F.3d at 343. The Arizona law requires police to investigate a person’s immigration status when stopped or arrested if the person is suspected of being in the state without authorization, see id. at 346; creates offenses for an alien to fail to carry registration documents, id. at 354–55, or to work in the state without authorization, id. at 357; and allows police to arrest a person without a warrant if police have probable cause to believe the person is removable from the United States, id. at 360. As noted above, the Supreme Court recently granted certiorari in the Arizona case and will decide whether Arizona’s statute is preempted by federal immigration law. See Arizona v. United States, 132 S. Ct. 845 (2011) (No. 10A1277, 11-182).
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No. 10-10751
immigration status.54 This increasing treatment—some might say mistreatment—of illegal immigrants around the country only reinforces what the Supreme Court has said in explaining why a national policy on immigration unimpeded by the whims of the various states is paramount.
As the Court has put it, “[i]f th[e] government [of California] should get into a difficulty [because of its treatment of noncitizens] which would lead to war, or to suspension of intercourse, would California alone suffer, or all the Union?”55 Clearly then, the treatment of aliens entails issues of national concern that reach beyond parochial concerns of individual states and includes matters such as trade, treaty obligations, and reciprocal rights agreements. It is imperative that the nation act singularly in conducting matters of foreign relations, particularly the treatment of noncitizens, because the burdening of another country’s citizens will undoubtedly affect how this nation’s citizens are in turn treated abroad. The Supreme Court has said that
[o]ne of the most important and delicate of all international relationships, recognized immemorially as a responsibility of government, has to do with the protection of the just rights of a country’s own nationals when those nationals are in another country. Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from
54 See United States v. Alabama, 813 F. Supp. 2d 1282 (N.D. Ala. 2011). The Alabama law, inter alia, makes it a misdemeanor to willfully fail to carry an alien registration document; makes it unlawful for an unauthorized alien to apply for, solicit, or perform work; requires law enforcement officers to determine citizenship for persons stopped, detained, or arrested when the person is suspected to be unlawfully present in the United States; makes it unlawful to conceal, harbor, or shield an unlawful alien or to encourage an unlawful alien to come to the United States; forbids employers from claiming as business tax deductions wages paid to unauthorized aliens; and makes it a felony for an unlawful alien to enter into a business transaction with the state or any of the state’s political subdivisions. Id. at 1292–93.
55 Chy Lung v. Freeman, 92 U.S. 275, 279 (1875).
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No. 10-10751
real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.56
It is clear to us that the City of Farmers Branch, by enacting the Ordinance, threatens the careful balance that the federal government must maintain in foreign affairs and impedes the federal prerogative for deciding how to treat illegal immigrants, which it achieves through the scheme of the INA. Although the City argues that the Ordinance is consistent with the INA and that Congress explicitly contemplated state regulations addressing the presence of illegal aliens, we are unpersuaded. The INA provisions cited by the City may contemplate cooperation among the federal, state, and local governments in the enforcement of the federal immigration scheme and the arrest of illegal immigrants,57 but we do not read the INA to contemplate a locality enacting its

56 Hines, 312 U.S. at 65, 61 S. Ct. at 403 (footnote omitted); see also Chy Lung, 92 U.S.

at 279 (“[W]e venture the assertion, that, if citizens of our own government were treated by

any foreign nation as subjects of the Emperor of China have been actually treated under this

law, no administration could withstand the call for a demand on such government for

redress.”). How non-citizens within our borders are treated and the consequences for our

international obligations and the treatment of our own citizens abroad are just as much a

national concern today as in the days of Hines and Chy Lung. Only this year, Secretary of

State Hillary Clinton reaffirmed this point in a written statement to Congress, where she

stated that “[t]he State Department has no greater responsibility than the protection of U.S.

citizens overseas” and that “[t]o protect our citizens, we need to do our part to protect those of

other countries.” Fulfilling Our Treaty Obligations and Protecting Americans Abroad: Hearing

on S. 1194 Before the Senate Committee on the Judiciary, 112th Cong. 12-13 (2011) (appendix

to testimony of Patrick F. Kennedy, Under Secretary of State); digested at 157 CONG. REC. D

853,

available

at

http://www.judiciary.senate.gov/hearings/testimony.cfm?id=3d9031b47812de2592c3baeba6

2c686d&witid=3d9031b47812de2592c3baeba62c686d-1-1.

57 See, e.g., 8 U.S.C. § 1324(c) (contemplating that “officers whose duty it is to enforce criminal laws,” including state officers, may arrest persons who violate the INA’s antiharboring provisions); § 1357(g)(10) (contemplating cooperation between state officers and the federal government “in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States”); § 1373(c) (requiring Immigration and Naturalization Service to “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”); § 1621 (making unlawful aliens ineligible for certain defined state benefits and public assistance); § 1644 (requiring that state

20

No. 10-10751
own scheme of immigration enforcement or its own ordinances to deal with illegal aliens in whatever manner the locality deems fit.58
The INA provides a comprehensive scheme, with ample provision for the
exercise of discretion, for the federal government to determine how best to
address or to not address illegal aliens. Whereas the Ordinance precludes an alien’s presence in rental housing—and by extension within the City—based solely on the unlawfulness of the alien’s immigration status, a similar unlawfulness determination in the federal scheme would merely subject an alien
to the process of the INA, under which removal of an alien may not result until after a hearing and an opportunity for the alien to be heard. 59 The federal government has determined that such process is the exclusive means for adjudicating whether a particular alien will be removed.60 It is no response to say, as the City does, that the Ordinance defers to the federal classification of an alien’s immigration status because, although the Ordinance uses some of the
and local governments must be permitted to “send[] to or receiv[e] from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States”).
58 It is true that in Plyler, which addressed an equal protection challenge to a state’s denial of public education to the children of undocumented aliens, the Supreme Court said 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 discernible impact on traditional state concerns.” Plyler, 457 U.S. at 228 n.23, 102 S. Ct. at 2400 n.23. The Court supported its statement by citing DeCanas, which we have already noted involved the regulation of employment, an area of frequent state concern and regulation. See DeCanas, 424 U.S. at 356–57, 96 S. Ct. at 937 (noting states’ “broad” authority over employment relationships and the local problems addressed by the state regulation). The Plyler Court thus recognized state authority to regulate aliens in areas of traditional state interest; it did not find permissible state regulations that directly affect the entry or removal of illegal aliens, which is what the Ordinance in this case does.
59 See 8 U.S.C. §§ 1229 and 1229a (outlining procedures for removal proceedings).
60 See § 1229a(a)(3) (providing that “a proceeding under this section shall be 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”).
21

No. 10-10751
same terms as federal immigration law, it seeks to use an alien’s immigration status for a purpose different from that intended under the federal scheme.61
An alien’s unlawful status and eligibility for removal does not ipso facto mean that the alien will be removed, as it would under the Ordinance. Instead, the federal government has broad discretion to cancel removal or adjust an alien’s status under a variety of circumstances.62 “In light of the discretionary federal power to grant relief from [removal], a State cannot realistically determine that any particular undocumented [alien] will in fact be [removed] until after [removal] proceedings have been completed.”63 Yet, the Ordinance here dispenses with the procedures and discretion of the federal scheme to preclude an alien from residence in the City solely due to a status classification as unlawful even though the same alien might be entitled to relief under the federal process. That is not permissible under the Constitution and the Supremacy Clause.
III. Conclusion This country has a large Latino population and millions of Latinos live here without legal permission. However, the great majority live quietly, raise families, obey the law daily, and do work for our country. For all that they
61 See, Plyler, 457 U.S. at 225, 102 S. Ct. at 2399 (state regulation of aliens must “mirror federal objectives”) (emphasis added).
62 See, e.g., 8 U.S.C. § 1229b(a) (providing Attorney General with discretion to cancel removal of an alien who is otherwise inadmissible or subject to deportation if alien meets specified requirements); § 1229b(b)(2) (providing Attorney General with discretion to cancel removal and adjust status of an alien who is a victim of domestic violence).
63 Plyler, 457 U.S. at 226, 102 S. Ct. at 2399. We might add that we do not read any provision of the INA as contemplating that illegal aliens would be homeless during the process. See Cent. Ala. Fair Housing Ctr. v. Magee, 2011 WL 6010501, at *7 (M.D. Ala. Dec. 1, 2011) (“Congress never criminalized an alien’s attempt to lawfully reside in his home; nor has Congress permitted States to regulate the residence of aliens. Instead, enforcement is left to the executive.”); see also 8 U.S.C. § 1229(a)(1)(F) (requiring aliens in removal proceedings to provide an address where the alien may be contacted).
22

No. 10-10751 contribute to our welfare, they live in constant dread of being apprehended as illegal aliens and being evicted, perhaps having their families disrupted. As unsatisfactory as this situation is it is the immigration scheme we have today. Any verbal and legal discrimination against these people, as Farmers Branch exemplifies by this ordinance, exacerbate the difficulty of that immigration scheme. This is a national problem, needing a national solution. And it impacts the nation’s relations with Mexico and other nations. The Supreme Court long ago pointed out in Chy Lung the problem for this country of treating Chinese people poorly.64 And as the Court said inHarisiades v. Shaughnessy, “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”65
Because the sole purpose and effect of this ordinance is to target the presence of illegal aliens within the City of Farmers Branch and to cause their removal, it contravenes the federal government’s exclusive authority over 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. The ordinance is unconstitutional, and the judgment of the district court is affirmed.
AFFIRMED.
64 92 U.S. at 279. 65 342 U.S. 580, 588–89, 72 S. Ct. 512, 519 (1952).
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No. 10-10751
Appendix
CITY OF FARMERS BRANCH ORDINANCE NO. 2952
AN ORDINANCE PROVIDING FOR RESIDENTIAL OCCUPANCY LICENSES; PROVIDING FOR VERIFICATION OF ALIENS’ IMMIGRATION STATUS WITH THE FEDERAL GOVERNMENT CONSISTENT WITH FEDERAL LAW; CREATING OFFENSES; PROVIDING FOR ENFORCEMENT; PROVIDING FOR JUDICIAL REVIEW; PROVIDING A PENALTY; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, federal law prescribes certain conditions (found principally in Title 8, United States Code, Sections 1101, et seq.), that must be met before an alien may be lawfully present in the United States; and
WHEREAS, aliens not lawfully present in the United States, as determined by federal law, do not meet such conditions as a matter of law when present in the City of Farmers Branch; and
WHEREAS, pursuant to Title 8, United States Code Sections 1621, et seq., certain aliens not lawfully present in the United States are not eligible for certain State or local public benefits, including licenses; and
WHEREAS, Title 8, United States Code, Section 1324(a)(1)(A), prohibits the harboring of aliens not lawfully present in the United States, including, as the courts of the United States have held, the provision of residential accommodations to such aliens; and
WHEREAS, the City of Farmers Branch is authorized to adopt ordinances pursuant to its police power to protect the heath, safety, and welfare of its citizens; and
WHEREAS, the City of Farmers Branch is authorized to adopt regulations touching on aliens that are consistent with pertinent federal laws; and
WHEREAS, it is the intent of the City of Farmers Branch to enact regulations that are harmonious with federal immigration law and which aid in its enforcement; and
WHEREAS, it is not the intent of the City of Farmers Branch to alter, supplant,
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No. 10-10751
disrupt, or interfere with federal immigration law; and
WHEREAS, the provisions of this ordinance shall be applied uniformly and in a nondiscriminatory manner, and the application of these provisions must not differ based on a person’s race, religion, or national origin; and
WHEREAS, the City of Farmers Branch has complied with all prerequisites for the passage of this Ordinance; and
WHEREAS, the meeting at which this Ordinance was adopted was properly posted in accordance with the Open Meetings Act, and this Ordinance was considered and approved in an open meeting of the City Council with opportunity for public comment regarding its terms and provisions; and
WHEREAS, the purposes of this Ordinance are to promote the public health, safety, and general welfare,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FARMERS BRANCH, TEXAS:
Section 1: Chapter 26, Businesses, Article III, Single-Family Rental Housing, of the Code of Ordinances, City of Farmers Branch, Texas, is hereby amended by adding the following as Section 26-79:
“Section 26-79. Citizenship or Immigration Status Verification
(A) Definitions
The following terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, and shall be construed so as to be consistent with state and federal law, including federal immigration law:
(1) “Alien” means any person not a citizen or national of the United States, as set forth in Title 8, United States Code, Section 1101(3), as amended.
(2) “Lessor” means a person who leases or rents a single family residence as or on behalf of a landlord.
(3) “Occupant” means a person, age 18 or older, who resides at a single family residence. A temporary guest of an occupant is not an occupant for the purposes of this section.
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No. 10-10751
(B) Residential Occupancy Licenses
(1) Prior to occupying any leased or rented single-family residence, each occupant must obtain a residential occupancy license.
(2) It is the occupant’s responsibility to submit an occupancy license application to the building inspector, pay a fee of $5 to the City, and obtain a residential occupancy license. If there are multiple occupants seeking to occupy a single rental unit, each occupant must obtain his or her own residential occupancy license. Multiple applicants for occupancy of the same single family residence may designate one of their number as their agent to submit the required application forms, provided that each individual applicant signs his or her own application form. The building inspector may establish a procedure whereby an applicant (or designated agent) may submit the application forms), signed by the applicant(s), via facsimile or website portal.
(3) The lessor shall notify each prospective tenant of the requirements of paragraph (B)(2) of this section.
(4) A residential occupancy license is valid only for as long as the occupant continues to occupy the single family residence for which the license was issued. Any relocation to a different leased or rented dwelling unit requires a new residential occupancy license.
(5) An application for a residential occupancy license shall be made on a form furnished by the building inspector for such purpose. The form shall require the following information:
(a) full legal name of the occupant;
(b) mailing address of the occupant;
(c) address of the single family residence for which the occupant is applying, if different from the mailing address;
(d) name and business address of the lessor;
(e) date of lease or rental commencement;
(f) date of birth of the occupant;
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No. 10-10751
(g) the occupant’s country of citizenship;
(h) if the applicant is a United States citizen or national, a signed declaration that the applicant is a United States citizen or national; the form shall state that it is a crime under Title 18, United States Code, Section 1015(e), for a person to knowingly make any false statement or claim that he or she is, or at any time has been, a citizen or national of the United States, with the intent to obtain on behalf of himself or herself, or any other person, any Federal or State benefit or service;
-or-
(i) if the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his or her lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, “A” number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the applicant does not know of any such number, he or she shall so declare. Such a declaration shall be sufficient to satisfy this requirement.
(6) Upon receipt of the completed application and the payment of the application fee as set forth above, the building inspector shall immediately issue a residential occupancy license. The building inspector shall not deny a residential occupancy license to any occupant who submits a completed application and pays the application fee.
(7) The information provided on an application may be disclosed to the federal government according to paragraph (D) of this section, pursuant to Title 8, United States Code, Section 1373.
(C) Offenses
(1) It shall be an offense for a person to be an occupant of a leased or rented single family residence without first obtaining a valid occupancy license permitting the person to occupy that single family residence.
(2) It shall be an offense for a person to knowingly make a false statement of fact on an application for a residential occupancy license.
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No. 10-10751
(3) It shall be an offense for a person to create, possess, sell, or distribute a counterfeit residential occupancy license.
(4) It shall be an offense for a lessor to lease or rent a single family residence without obtaining and retaining a copy of the residential occupancy license of any and all known occupants.
(5) It shall be an offense for a landlord to fail to maintain at the landlord’s residence or regular place of business a copy of the residential occupancy license of each known occupant of a leased or rented single-family residence, or to fail to make such copy available for inspection by the Building Inspector during regular business hours.
(6) It shall be an offense for a lessor to lease a single family residence without including in the terms of the lease a provision stating that occupancy of the premises by a person, age 18 or older, who does not hold a valid residential occupancy license constitutes an event of default under the lease.
(7) It shall be an offense for a landlord or any agent of a landlord with authority to initiate proceedings to terminate a lease or tenancy to knowingly permit an occupant to occupy a single family residence without a valid residential occupancy license. It is a defense to a prosecution under this paragraph that the landlord or agent has commenced and diligently pursued such steps as may be required under the applicable law and lease provisions to terminate the lease or tenancy.
(D) Enforcement
The building inspector shall enforce the requirements of this section as follows.
(1) Promptly after issuance of a residential occupancy license to any occupant who has not declared himself or herself to be either a citizen or a national of the United States in accordance with paragraph (B)(5)(h) of this section, the building inspector shall, pursuant to Title 8, United States Code, Section 1373(c), verify with the federal government whether the occupant is an alien lawfully present in the United States. The building official shall submit to the federal government the identity and status information contained on the application for the residential occupancy license, along with any other information requested by the federal government.
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No. 10-10751
(2) If the federal government reports the status of the occupant as an alien not lawfully present in the United States, the building inspector shall send the occupant, at the address of the single family residence shown on the application for residential occupancy license, a deficiency notice. The deficiency notice shall state that on or before the 60th day following the date of the notice, the occupant may obtain a correction of the federal government’s records and/or provide additional information establishing that the occupant is not an alien not lawfully present in the United States. If the occupant provides such additional information, the building inspector shall promptly submit that information to the federal government. The occupant may also submit information directly to the federal government.
(3) If the federal government notifies the building inspector that it is unable to conclusively verify or ascertain the immigration status of the occupant, or that the federal government’s determination of immigration status is tentative, the building inspector shall take no further action until final verification from the federal government concerning the immigration status of the occupant is received. The building inspector shall not attempt to make an independent determination of any occupant's lawful or unlawful presence in the United States. If the federal government notifies the building inspector that more information is required before the federal government can issue a final verification of the occupant's immigration status, or that the occupant may contest the federal government’s determination of status, the building inspector shall notify the occupant accordingly.
(4) No earlier than the 61st day after a deficiency notice has been sent to an occupant, the building inspector shall again make an inquiry to the federal government seeking to verify or ascertain the citizenship or immigration status of the occupant. If the federal government reports that the occupant is an alien who is not lawfully present in the United States, the building inspector shall send a revocation notice to both the occupant and the lessor. The revocation notice shall revoke the occupant’s residential occupancy license effective 15 days after the date of the revocation notice.
(5) If a landlord or the landlord's agent commits an offense under paragraph (C)(7) of this section, the building inspector shall suspend the landlord’s rental license.
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No. 10-10751
(6) During the period of suspension, the landlord shall not collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any occupant or tenant in the single family residence.
(7) The suspension shall terminate one day after the landlord or the landlord’s agent submits to the building inspector a sworn affidavit of the owner or agent stating that each and every violation of paragraph (C)(7) of this section on which revocation was based has ended. The affidavit shall include a description of the specific measures and actions taken to end the violation.
(8) The suspension of a landlord’s rental license may be appealed to the city council pursuant to Section 26-78.
(9) The terms of this section shall be applied uniformly, and enforcement procedures shall not differ based on a person's race, ethnicity, religion, or national origin.
(E) Judicial Review
(1) Any landlord or occupant who has a received a deficiency notice or a revocation notice may seek judicial review of the notice by filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas.
(2) In the event that such a suit is filed prior to or within 15 days after the date of the revocation notice, if any, revocation is automatically stayed until final conclusion of judicial review.
(3) The landlord or occupant may seek judicial review of the question of whether the building inspector complied with the provisions of this ordinance or other relevant provisions of federal, state, or local law, or the question of whether the occupant is lawfully present in the United States, or of both such questions.
(4) In a suit for judicial review in which the question of whether the occupant is lawfully present in the United States is to be decided, that question shall be determined under federal law . In answering the question, the court shall be bound by any conclusive determination of immigration status by the federal government. A determination is conclusive if, under federal law, it would be given preclusive effect on the question.
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No. 10-10751
(5) The court shall take judicial notice of any verification of the citizenship or immigration status of the occupant previously provided by the federal government. The court may, and at the request of a party shall, request the federal government to provide, in automated, documentary, or testimonial form, a new verification of the citizenship or immigration status of the occupant pursuant to Title 8, United States Code, Section 1373(c). The most recent determination of the immigration status of an individual by the federal government shall create a rebuttable presumption as to the individual’s immigration status.
(F) Construction
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, nationals, and aliens.”
Section 2: Chapter 26, Businesses, Article III, Single-Family Rental Housing, of the Code of Ordinances, City of Farmers Branch, Texas, is hereby amended by adding the following as paragraph (f) of Section 26-78, Appeals to the City:
“(f) This section does not apply to any decision or order of the building inspector issuing a deficiency notice or a revocation notice with respect to a residential occupancy license pursuant to Sections 26- 79(D)(2) or 26-79(D)(4). Any such decision or order may be appealed only through a suit for judicial review pursuant to Section 26-79(E).”
Section 3: Chapter 26, Businesses, Article IV, Apartment Complex Rental, of the Code of Ordinances, City of Farmers Branch, Texas, is hereby amended by adding the following as Section 26-119:
“Section 26-119. Citizenship or Immigration Status Verification
(A) Definitions
The following terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, and shall be construed so as to be consistent with state and federal law, including federal immigration law:
(1) “Alien” means any person not a citizen or national of the United States, as set forth in Title 8, United States Code, Section 1101(3), as amended.
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No. 10-10751
(2) “Apartment” means a dwelling unit within an apartment complex.
(3) “Landlord” means the owner of an apartment.
(4) “Lessor” means a person who leases or rents an apartment as or on behalf of a landlord.
(5) “Occupant” means a person, age 18 or older, who resides at an apartment. A temporary guest of an occupant is not an occupant for the purposes of this section.
(B) Residential Occupancy Licenses
(l) Prior to occupying any leased or rented apartment, each occupant must obtain a residential occupancy license.
(2) It is the occupant’s responsibility to submit an occupancy license application to the building inspector, pay a fee of$5 to the City, and obtain a residential occupancy license. If there are multiple occupants seeking to occupy a single apartment, each occupant must obtain his or her own residential occupancy license. Multiple applicants for occupancy of the same apartment may designate one of their number as their agent to submit the required application forms, provided that each individual applicant signs his or her own application form. The building inspector may establish a procedure whereby an applicant (or designated agent) may submit the application form(s), signed by the applicant(s), via facsimile or website portal.
(3) The lessor shall notify each prospective tenant of the requirements of paragraph (B)(2) of this section.
(4) A residential occupancy license is valid only for as long as the occupant continues to occupy an apartment within the same apartment complex as the apartment for which the license was issued. Any relocation to a leased or rented single-family residence or to an apartment within a different apartment complex requires a new residential occupancy license.
(5) An application a residential occupancy license shall be made on a form furnished by the building inspector for such purpose. The form shall require the following information:
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No. 10-10751
(a) full legal name of the occupant;
(b) mailing address of the occupant;
(c) address of the apartment for which the occupant is applying, if different from the mailing address;
(d) name and business address of the lessor;
(e) date of lease or rental commencement;
(f) date of birth of the occupant;
(g) the occupant’s country of citizenship;
(h) if the applicant is a United States citizen or national, a signed declaration that the applicant is a United States citizen or national; the form shall state that it is a crime under Title 18, United States Code, Section 1015(e), for a person to knowingly make any false statement or claim that he or she is, or at any time has been, a citizen or national of the United States, with the intent to obtain on behalf of himself or herself, or any other person, any Federal or State benefit or service;
–or–
(i) if the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his or her lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, “A” number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the applicant does not know of any such number, he or she shall so declare. Such a declaration shall be sufficient to satisfy this requirement. (6) Upon receipt of the completed application and the payment of the application fee as set forth above, the building inspector shall immediately issue a residential occupancy license. The building inspector shall not deny a residential occupancy license to any occupant who submits a completed application and pays the application fee.
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No. 10-10751
(7) The information provided on an application may be disclosed to the federal government according to paragraph (D) of this section, pursuant to Title 8, United States Code, Section 1373.
(C) Offenses
(1) It shall be an offense for a person to be an occupant of a leased or rented apartment without first obtaining a valid occupancy license permitting the person to occupy that apartment.
(2) It shall be an offense for a person to knowingly make a false statement of fact on an application for a residential occupancy license.
(3) It shall be an offense for a person to create, possess, sell, or distribute a counterfeit residential occupancy license.
(4) It shall be an offense for a lessor to lease or rent an apartment without obtaining a copy of the residential occupancy license of any and all known occupants.
(5) It shall be an offense for a person responsible for the management of an apartment complex to fail to maintain on the premises of the apartment complex a copy of the residential occupancy license of each known occupant of the apartment complex, or to fail to make such copy available for inspection by the Building Inspector during regular business hours.
(6) It shall be an offense for a lessor to lease an apartment without including in the terms of the lease a provision stating that occupancy of the premises by a person, age 18 or older, who does not hold a valid residential occupancy license constitutes an event of default under the lease.
(7) It shall be an offense for a landlord or any agent of a landlord with authority to initiate proceedings to terminate a lease or tenancy to knowingly permit an occupant to occupy an apartment without a valid residential occupancy license. It is a defense to a prosecution under this paragraph that the landlord or agent has commenced and diligently pursued such steps as may be required under the applicable law and lease provisions to terminate the lease or tenancy.
(D) Enforcement
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No. 10-10751
The building inspector shall enforce the requirements of this section as follows.
(1) Promptly after issuance of a residential occupancy license to any occupant who has not declared himself or herself to be either a citizen or a national of the United States in accordance with paragraph (B)(5)(h) of this section, the building inspector shall, pursuant to Title 8, United States Code, Section 1373(c), verify with the federal government whether the occupant is an alien lawfully present in the United States. The building official shall submit to the federal government the identity and status information contained on the application for the residential occupancy license, along with any other information requested by the federal government.
(2) If the federal government reports the status of the occupant as an alien not lawfully present in the United States, the building inspector shall send the occupant, at the address of the apartment shown on the application for residential occupancy license, a deficiency notice. The deficiency notice shall state that on or before the 60th day following the date of the notice, the occupant may obtain a correction of the federal government’s records and/or provide additional information establishing that the occupant is not an alien not lawfully present in the United States. If the occupant provides such additional information, the building inspector shall promptly submit that information to the federal government. The occupant may also submit information directly to the federal government.
(3) If the federal government notifies the building inspector that it is unable to conclusively verify or ascertain the immigration status of the occupant, or that the federal government’s determination ofimmigration status is tentative, the building inspector shall take no further action until final verification from the federal government concerning the immigration status of the occupant is received. The building inspector shall not attempt to make an independent determination of any occupant’s lawful or unlawful presence in the United States. If the federal government notifies the building inspector that more information is required before the federal government can issue a final verification of the occupant’s immigration status, or that the occupant may contest the federal government's determination of status, the building inspector shall notify the occupant accordingly.
(4) No earlier than the 61st day after a deficiency notice has been sent to an occupant, the building inspector shall again make an inquiry to the federal government seeking to verify or ascertain the citizenship or
35

No. 10-10751
immigration status of the occupant. If the federal government reports that the occupant is an alien who is not lawfully present in the United States, the building inspector shall send a revocation notice to both the occupant and the lessor. The revocation notice shall revoke the occupant’s residential occupancy license effective 15 days after the date of the revocation notice.
(5) If a landlord or the landlord’s agent commits an offense under paragraph (C)(7) of this section, the building inspector shall suspend the landlord’s apartment complex license.
(6) During the period of suspension, the landlord shall not collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any occupant or tenant in the apartment complex.
(7) The suspension shall terminate one day after the landlord or the landlord’s agent submits to the building inspector a sworn affidavit of the owner or agent stating that each and every violation of paragraph (C)(7) of this section on which revocation was based has ended. The affidavit shall include a description of the specific measures and actions taken to end the violation.
(8) The suspension of a landlord’s rental license may be appealed to the city council pursuant to Section 26-118.
(9) The terms of this section shall be applied uniformly, and enforcement procedures shall not differ based on a person's race, ethnicity, religion, or national origin.
(E) Judicial Review
(1) Any landlord or occupant who has received a deficiency notice or a revocation notice may seek judicial review of the notice by filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas.
(2) In the event that such a suit is filed prior to or within 15 days after the date of the revocation notice, if any, revocation is automatically stayed until final conclusion of judicial review.
(3) The landlord or occupant may seek judicial review of the question of whether the building inspector complied with the provisions ofthis
36

No. 10-10751
ordinance or other relevant provisions of federal, state, or local law, or the question of whether the occupant is lawfully present in the United States, or of both such questions. The landlord or occupant may seek judicial review of the question of whether the building inspector complied with the provisions of this ordinance or other relevant provisions of federal, state, or local law, or the question of whether the occupant is lawfully present in the United States, or of both such questions.
(4) In a suit for judicial review in which the question of whether the occupant is lawfully present in the United States is to be decided, that question shall be determined under federal law. In answering the question, the court shall be bound by any conclusive determination of immigration status by the federal government. A determination is conclusive if, under federal law, it would be given preclusive effect on the question.
(5) The court shall take judicial notice of any verification of the citizenship or immigration status of the occupant previously provided by the federal government. The court may, and at the request of a party shall, request the federal government to provide, in automated, documentary, or testimonial form, a new verification of the citizenship or immigration status of the occupant pursuant to Title 8, United States Code, Section 1373(c). The most recent determination of the immigration status of an individual by the federal government shall create a rebuttable presumption as to the individual’s immigration status.
(F) Construction
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, nationals, and aliens.”
Section 4: Chapter 26, Businesses, Article IV, Apartment Complex Rental, of the Code of Ordinances, City of Farmers Branch, Texas, is hereby amended by adding the following as paragraph (f) of Section 26-118, Appeals to the City:
“(f) This section does not apply to any decision or order of the building inspector issuing a deficiency notice or a revocation notice with respect to a residential occupancy license pursuant to Sections 26-119(D)(2) or 26-119(D)(4). Any such decision or order may be appealed only through a suit for judicial review pursuant to Section 26-119(D)(9).”
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No. 10-10751 Section 5: Penalty
Upon conviction, any person committing any act or omission declared to be an offense under the provisions of this ordinance shall be fined in a sum not to exceed $500. A separate offense shall be deemed committed upon each day during or on which a violation occurs or continues.
Section 6: Severability
The terms and provisions of this ordinance are severable and are governed by Section 1-12 of the Code of Ordinances, City of Farmers Branch, Texas, as amended. If the application of this ordinance to any person, entity, or circumstance is invalid, the invalidity does not affect other applications of the ordinance that can be given effect without the invalid application, since the same would have been enacted by the City Council without regard to any such invalid application.
Section 7: Effective Date
This ordinance shall become effective on the 15th day after the date on which a final and appealable judgment is rendered by the United States District Court for the Northern District of Texas in the action styled Villas at Parkside Partners d/b/a Villas at Parkside, et al. v. City of Farmers Branch, Civil Action No. 3:06-CV-2371-L (consolidated with Civil Actions Nos. 3:06-CV-2376-L and 3:07-CV-0061-L). The city secretary is directed to, within 15 days after such a judgment is rendered, publish notice of the date on which this ordinance will take effect in the official city newspaper and on the city’s website.
This ordinance applies only to leases or tenancies that commence on or after its effective date.
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No. 10-10751
JENNIFER WALKER ELROD, Circuit Judge, concurring in part and dissenting in part:
This case is not about whether the City of Farmers Branch’s housing Ordinance is a wise policy choice. It is not for judges to make that sort of political judgment. Nor do the plaintiffs argue on appeal that the Ordinance violates their individual rights. Instead, this appeal asks the narrow question of whether federal law preempts the Ordinance.
The majority concludes that the Ordinance is preempted as an impermissible regulation of immigration and implicitly preempted via conflict preemption. In crafting its conclusion, the majority conflates the distinct doctrines of regulation of immigration and conflict preemption. Because a straightforward application of Supreme Court and Fifth Circuit precedent yields a different result, I must respectfully concur in part and dissent in part. First, although the Ordinance no doubt concerns illegal immigrants, it is simply not a regulation of immigration as defined by the Supreme Court in DeCanas. Second, because the Ordinance explicitly defers to federal determinations of immigration status—similar to the statute the Supreme Court upheld last term in Whiting—it is not conflict preempted, with the exception of its separate judicial review provisions.
I. Regulation of Immigration In DeCanas v. Bica, 424 U.S. 351 (1976), Justice Brennan wrote for a unanimous Supreme Court holding that a state statute criminalizing the employment of illegal immigrants was not preempted by federal law. Before analyzing whether Congress had preempted the statute, the Court examined whether the law was “a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve.” Id. at 356. DeCanas began that constitutional inquiry with the principle that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.”
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Id. at 354. “But the 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 by this constitutional power, whether latent or exercised.” Id. at 355. Thus, DeCanas made clear that what constitutes a “regulation of immigration” in the constitutional sense is not “the fact that aliens are the subject of a state statute.” Id. Rather, the Court narrowly defined a regulation of immigration as “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.
Here, the majority concedes that the Ordinance does not determine the entry or exit of anyone into or out of the United States. This should be the end of the regulation of immigration inquiry. Yet the majority finds an application of the plain language of DeCanas to be too “literal and hypertechnical” and asserts two objections to the applicability of DeCanas’s definition here.1
First, the majority claims the Ordinance is a regulation of immigration because it may force illegal immigrants to relocate from Farmers Branch. This theory is inconsistent with Supreme Court precedent. Just last term, the Supreme Court upheld a state law revoking the licenses of employers that knowingly employ illegal immigrants, which effectively forces aliens to relocate by depriving them of employment. Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011); see also DeCanas, 424 U.S. at 355–56 (holding a state law criminalizing the employment of illegal immigrants is not a regulation of
1 The majority also cites to later sections of DeCanas that discussed congressional intent for state regulation in order to limit the DeCanas definition of “regulation of immigration” to instances where Congress has granted permission for state regulation. Besides being exactly backwards in terms of federalism, the majority’s suggested limitation is without textual basis as DeCanas only discussed congressional intent when discussing whether Congress implicitly preempted the law, not when deciding if it were a regulation of immigration preempted by the Constitution. See DeCanas, 424 U.S. at 361.
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No. 10-10751
immigration).2 This circuit also has held that a Texas statute denying free public education to children because of their status as illegal immigrants was not preempted by federal law. See Doe v. Plyler, 628 F.2d 448, 451–54 (5th Cir. 1980), aff’d on other grounds sub nom. Plyler v. Doe, 457 U.S. 202 (1982).3 Certainly, just like prohibiting employment, the exclusion from free public education could effectively force illegal immigrants to relocate. Yet neither of these examples constitute a regulation of immigration under Supreme Court or Fifth Circuit precedent. Rather than following this binding precedent, however, the majority bases its analysis on a Third Circuit opinion that has been vacated by the Supreme Court. See City of Hazleton v. Lozano, 131 S. Ct. 2958 (2011).
Second, the majority urges that the housing Ordinance is a regulation of immigration because of the underlying intent of the lawmakers to impact federal immigration law and aid in its enforcement. However, the fact that the lawmakers intended to aid the enforcement of federal immigration law does not render an ordinance a regulation of immigration. To the contrary, the Supreme Court has observed that:
Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United

2 Although this case deals with a city ordinance and not a state statute, no party argues that the city-state distinction would make any difference to our analysis.

3 In Plyler, this court held that the Texas statute was not preempted, but that it did

violate the children’s equal protection rights under the Fourteenth Amendment. Plyler, 628

F.2d at 449–50. The Supreme Court subsequently affirmed this court’s equal protection

holding, without reaching the preemption issue.

Plyler, 457 U.S. at 210 n.8, 230.

Consequently, this court’s preemption holding remains the law in this circuit. The majority

opinion entirely ignores our court’s binding precedent.

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States against federal law , and whose numbers might have a discernable impact on traditional state concerns. Plyler, 457 U.S. at 228 n.23 (emphasis added). The majority’s decision holds the exact opposite: that states have no power “to deter the influx” because any legislation with such an objective or effect would be an impermissible regulation of immigration. Indeed, the majority broadly proclaims that “state and local laws that attempt to affect aliens will, with limited exceptions, be preempted by the national interest.” This broad statement is directly contrary to Supreme Court precedent. See, e.g., DeCanas, 424 U.S. at 355 (holding that “standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration”). It is also contrary to the facts of both DeCanas and Whiting where the state statutes not only mentioned immigration standards but predicated the penalty entirely on immigration status. Id. at 352 n.1; Whiting, 131 S. Ct. at 1973. Tellingly, the majority’s only attempt to distinguish the Supreme Court’s guidance that local governments have the power “to deter” is that the facts in Plyler did not deal with “state regulations that directly affect the entry or removal of illegal aliens, which is what the Ordinance in this case does.” This of course begs the question whether a city’s prohibition of rental housing directly affects entry or removal in a way that a statewide prohibition of employment or free public education does not. Nor does the majority’s collection of sundry statements by the mayor and city attorney stating an intent to deter illegal immigration transform the Ordinance into a regulation of immigration. In fact, the legislative history to the statute in Whiting stated it was designed “to stop illegal immigration” and that state political branches acted “because it is now abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reforms our
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No. 10-10751
country needs.”4 Ariz. Rev. Stat. § 23-212, Historical and Statutory Notes, Governor’s Transmittal Message (signing statement of Governor Janet Napolitano). Yet the presence of that legislative history did not affect the statute’s constitutionality.
For the above reasons, I disagree with the majority’s holding that the housing Ordinance is a “regulation of immigration.” The Ordinance concerns illegal immigrants, but to no greater extent than other laws that the Supreme Court has upheld. “Thus, absent congressional action, [the Ordinance] would not be an invalid state incursion on federal power.” DeCanas, 424 U.S. at 356.
II. Implied Preemption Even though the housing Ordinance is not a regulation of immigration preempted independently by the Constitution, congressional action may nevertheless render the Ordinance invalid under the Supremacy Clause. Id. The majority’s opinion is unclear but appears to rest its implied preemption holding on conflict preemption, stating that the Ordinance stands as an obstacle to federal law. However, last term the Supreme Court emphasized that “[i]mplied preemption analysis does not justify a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives; such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law.” Whiting, 131 S. Ct. at 1985 (controlling opinion of Roberts, C.J.).5
4 Although I generally eschew use of legislative history to determine a statute’s intent, I discuss it here because of the majority’s reliance upon it.
5 The implied preemption analysis received only four votes as Justice Thomas joined the rest of the opinion and concurred in the judgment. Whiting, 131 S. Ct. at 1973. Justice Thomas has previously expressed disagreement with implied preemption jurisprudence more generally. See, e.g., Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring) (“I cannot join the majority’s implicit endorsement of far-reaching implied pre-emption doctrines. In particular, I have become increasingly skeptical of this Court’s ‘purposes and objectives’ preemption jurisprudence. Under this approach the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized
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No. 10-10751
The majority first errs in not applying the presumption against preemption. In reaching its conclusion that the Ordinance is not entitled to the presumption because it regulates immigration, the majority asks and answers the wrong question: “because the prerogative of deciding which aliens may live in the United States belongs to the federal government, the Farmers Branch’s Ordinance does not regulate in an area historically occupied by the states, and the district court correctly declined to afford it a presumption of validity.”6 Here, the Ordinance undisputably regulates rental housing—after all, it is the denial of a rental housing license that is the basis of the complaint. Therefore, the correct question is whether the power to regulate rental housing falls within a local government’s historic powers. DeCanas illustrates that this is the correct inquiry. Even though the statute in DeCanas criminalized the employment of illegal immigrants, the Court analyzed the statute as a regulation of employment, not a regulation of immigration, and determined it would not presume that Congress “intended to oust state authority to regulate the employment relationship covered by [the INA] in a manner consistent with pertinent federal laws.” DeCanas, 424 U.S. at 357. Because the majority does not contest that state and local governments have a long history of regulating rental housing, “[f]ederal regulation . . . should not be deemed preemptive of
notions of congressional purposes that are not embodied within the text of federal law. . . . [I]mplied pre-emption doctrines that wander far from the statutory text are inconsistent with the Constitution.”).
6 The majority cites to United States v. Locke, 529 U.S. 89, 108 (2000) for the proposition that “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.” However, the Supreme Court has more recently held that “in all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . we start with the assumption 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.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal quotation marks omitted) (emphasis added). Any possible tension between Locke and Wyeth need not be reconciled here because it is not essential to this preemption question.
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state regulatory power in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion, or the
Congress has unmistakably so ordained.” Id. at 356 (quoting Fl. Lime &
Avocado Growers v. Paul, 373 U.S. 132, 142 (1963)). The majority is simply incorrect that this strong presumption does not apply in this case.
In suggesting a conflict, the majority glosses over the Ordinance’s requirement that city officials must give absolute deference to the determinations of the federal government.
If the federal government notifies the building inspector that it is unable to conclusively verify or ascertain the immigration status of the occupant, or that the federal government’s determination of immigration status is tentative, the building inspector shall take no further action until final verification from the federal government concerning the immigration status of the occupant is received. The building inspector shall not attempt to make any independent determination of any occupant’s lawful or unlawful presence in the United States. Farmers Branch, Tex., Ordinance 2952, § 1(D)(3). Here, Farmers Branch is powerless to make “any independent determination” of immigration status, which the Supreme Court called going “the extra mile” to avoid preemption.
Whiting, 131 S. Ct. at 1981 (controlling opinion of Roberts, C.J.). In fact, the
Ordinance mirrors the statutory language approved in Whiting. There, the Court emphasized that “the Arizona law expressly provides that state investigators . . . ‘shall not attempt to independently make a final determination
on whether an alien is authorized to work in the United States.’” Id. The Court concluded that “[a]s a result, there can by definition be no conflict between state and federal law.” Id.7 Moreover, not only does the Ordinance prohibit Farmers
7 Rather than stand as an obstacle, Farmers Branch argues that its ordinance effectuates Congress’s objectives and paves the way for enforcement of Congress’s antiharboring statute. 8 U.S.C. § 1324(a)(1)(A)(iii); United States v. Shum, 496 F.3d 390, 391–92 (5th Cir. 2007) (defining the four elements of a harboring violation as (1) an unlawfully present alien; (2) that the defendant conceals, harbors, or shelters; (3) while knowing or recklessly
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No. 10-10751
Branch from making any decision of immigration status, but the city officials must take no action if the federal government gives an inconclusive or even a tentative determination. See Whiting, 131 S. Ct. at 1982 (“[I]f the information provided under § 1373(c) does not confirm that an employee is an unauthorized alien, it means that the county attorney cannot satisfy his burden of proof in an enforcement action.”).
Nevertheless, I agree that the judicial review portion of the housing Ordinance goes beyond what was approved in Whiting because it allows a state court to review whether the occupant is lawfully present, while giving the federal determination “a rebuttable presumption as to the individual’s immigration status” and making conclusive only those federal determinations that “would be given preclusive effect on the question.”8 § 1(E)(4), (E)(5). Authorizing state courts to revisit federal determinations of immigration status opens the door for conflicting state-federal rulings on an immigrant’s lawful status. This creates an obstacle to Congress setting out “the sole and exclusive procedure” for determining whether an alien may be admitted or removed from
disregarding that the alien is unlawfully present; and (4) in a way that substantially facilitates the alien remaining in the United States). Local agencies may assist the enforcement of federal immigration law, Lynch v. Cannatella, 810 F.2d 1363, 1371 (5th Cir. 1987), and this circuit construes the anti-harboring provisions broadly. See United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 n.5 (5th Cir. 1982) (“Congress intended to broadly proscribe any knowing or willful conduct fairly within any of these terms that tends to substantially facilitate an alien’s remaining in the United States illegally . . . .”). The Ordinance makes it easier to prove the anti-harboring element of a defendant’s knowledge of the alien’s unlawful status, removing potential doubt when a landlord leases an apartment.
8 It is true that the Arizona law in Whiting also gave the federal determination in state court proceedings only a rebuttable presumption of lawful status. Whiting, 131 S. Ct. at 1981 n.7. It did so, however, “[a]fter specifying that a state court may consider ‘only’ the federal determination,” thereby making it impossible “to establish unlawful status apart from the federal determination.” Id. The Ordinance here does not similarly confine the state judicial inquiry, stating only that the court must use federal law and be bound by conclusive federal determinations having preclusive effect.
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No. 10-10751 the United States. 8 U.S.C. § 1229a(a)(3). Therefore, those portions of the Ordinance are conflict preempted by federal law.9
III. Conclusion Although I share the majority’s concern for the dignity of all persons, regardless of how they arrived in this great nation, the parties have only presented us the narrow legal question of whether federal law preempts Farmers Branch’s Ordinance. See Alberti v. Klevenhagen, 790 F.2d 1220, 1231 (5th Cir. 1986) (Brown, J., dissenting) (“We, and the lower federal courts, are courts of limited jurisdiction. Our task is not to correct all social ills, however egregious they may seem to us as individuals. The keys to the Kingdom are not in our hands.”). The Supreme Court and this circuit have foreclosed the reasoning of the majority opinion. Until the Supreme Court provides different marching orders, the Ordinance is neither a regulation of immigration preempted by the Constitution nor (with the exception of the judicial review provisions) impliedly preempted by Congress. Accordingly, I respectfully concur that § 1(E) and § 2(E) are conflict preempted, and dissent in all other respects.
9 See § 6 (“If the application of this ordinance . . . is invalid, the invalidity does not affect other applications of the ordinance that can be given effect without the invalid application . . . .”).
47

 
 VILLAS AT PARKSIDE v. CITY OF FARMERS BRANCH, TEX.
Cite as 688 F.3d 801 (5th Cir. 2012)

801

VILLAS AT PARKSIDE PARTNERS, doing business as Villas at Parkside; Lakeview at Parkside Partners, Limited, doing business as Lakeview at Parkside; Chateau Ritz Partners, doing business as Chateau De Ville; Mary Miller Smith, Plaintiffs–Appellees,
v.
The CITY OF FARMERS BRANCH, TEXAS, Defendant–Appellant.
Valentin Reyes; Alicia Garcia; Ginger Edwards; Jose Guadalupe Arias; Aide
Garza, Plaintiffs–Appellees,
v.
City of Farmers Branch, Defendant– Appellant.
No. 10–10751.
United States Court of Appeals, Fifth Circuit.
July 31, 2012.
William A. Brewer, III, Charles Dunham Biles (argued), James Stephen Renard, Jack George Breffney Ternan, Bickel & Brewer, Dallas, TX, Nina Perales (argued), Rebecca McNeill Couto, Mexican– American Legal Defense & Educational Fund, San Antonio, TX, R. David Broiles, Fort Worth, TX, Omar C. Jadwat, ACLU Foundation, Immigrants’ Rights Project, New York City, Jennifer C. Newell, ACLU Foundation, Immigrants’ Rights Project, San Francisco, CA, for Plaintiffs–Appellees.
Peter Michael Jung, Strasburger & Price, L.L.P., Dallas, TX, Kris William Kobach (argued), Immigration Reform Law Institute, Kansas City, KS, for Defendant–Appellant.
Carlos Ramon Soltero, McGinnis, Lochridge & Kilgore, L.L.P., Austin, TX, Lawrence John Joseph, Benjamin M.

Shultz, Civ. Div., App. Staff, Daniel Bentele Hahs Tenny, U.S. Dept. of Justice, Washington, DC, Morris J. Baller, Goldstein, Demchak, Baller, Borgen & Dardarian, Oakland, CA, for Texas Apartment Ass’n, Inc., Eagle Forum Educ. and Legal Defense Fund, Dominican American Nat. Roundtable, Hispanic Nat. Bar Ass’n, LULAC, Mexican–American Bar Ass’n of Texas, Nat. Ass’n of Elected and Appointed Officials, Nat. Ass’n of Latino Elected and Appointed Officials Educational Fund, Nat. Council of La Raza, United States Office of Sol. Gen., Amici Curiae.
Appeals from the United States District Court for the Northern District of Texas; Jane J. Boyle, Judge.
ON PETITION FOR REHEARING EN BANC
(Opinion March 21, 2012, 5th Cir., 2012, 675 F.3d 802)
Before JONES, Chief Judge, and JOLLY, DAVIS, SMITH, GARZA, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES and HIGGINSON, Circuit Judges.1
BY THE COURT:
A member of the court having requested a poll on the petition for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
,

1. Judge King did not participate.

 
 Case: 10-10751 Document: 00512316701 Page: 1 Date Filed: 07/22/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

July 22, 2013

No. 10-10751

Lyle W. Cayce Clerk

VILLAS AT PARKSIDE PARTNERS, doing business as Villas at Parkside; LAKEVIEW AT PARKSIDE PARTNERS, LIMITED, doing business as Lakeview at Parkside; CHATEAU RITZ PARTNERS, doing business as Chateau De Ville; MARY MILLER SMITH;
Plaintiffs – Appellees
v.
THE CITY OF FARMERS BRANCH, TEXAS,

Defendant – Appellant

VALENTIN REYES; ALICIA GARZA; GINGER EDWARDS; JOSE GUADALUPE ARIAS; AIDE GARZA
Plaintiffs – Appellees v.
CITY OF FARMERS BRANCH
Defendant – Appellant

Appeals from the United States District Court for the Northern District of Texas

Case: 10-10751 Document: 00512316701 Page: 2 Date Filed: 07/22/2013
10-10751
Before STEWART, Chief Judge, and REAVLEY, JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, and HIGGINSON, Circuit Judges.* HIGGINSON, Circuit Judge, joined by CARL E. STEWART, Chief Judge, and W. EUGENE DAVIS, LESLIE H. SOUTHWICK, and HAYNES, Circuit Judges.
“America’s history has long been a story of immigrants.”1 That story, a complicated history of inclusion and exclusion,2 has unfolded according to law, but also contrary to law. See Ex parte Kumezo Kawato, 317 U.S. 69, 73-74 (1942) (the United States is “a country whose life blood came from an immigrant stream.”). As the Supreme Court has emphasized—and indeed, as a constitutional imperative—a country’s treatment of non-citizens within its borders can gravely affect foreign relations. Hines v. Davidowitz, 312 U.S. 52, 62-68 (1941); Arizona v. United States, 132 S. Ct. 2492, 2498-99 (2012) (“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.”).
The Ordinance at issue in this case and passed by the active citizens of the City of Farmers Branch (“Farmers Branch”) seeks to regulate non-citizens
* Judge King did not participate in this decision. 1 Proclamation No. 6398, 56 Fed. Reg. 66,951 (Dec. 23, 1991) (Presidential speech commemorating the hundredth anniversary of Ellis Island). 2 See J. Shklar, American Citizenship: The Quest for Inclusion, 5 (1991).
2

Case: 10-10751 Document: 00512316701 Page: 3 Date Filed: 07/22/2013
10-10751 who reside in the United States contrary to law. Farmers Branch, Tex., Ordinance 2952 (Jan. 22, 2008), permanently enjoined by Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835, 881 (N.D. Tex. 2010). Farmers Branch classifies these non-citizens as persons “not lawfully present in the United States.” Id. at §§ 1(D)(2); 3(D)(2). Responding to an “aroused popular consciousness,” Baker v. Carr, 369 U.S. 186, 270 (1962) (Frankfurter, J., dissenting), and frustration at the perceived lack of federal enforcement of immigration law, Farmers Branch sought to “prevent” such persons from renting housing in the city. The district court concluded, inter alia, that the Ordinance was conflict preempted under federal law. Villas at Parkside Partners, 701 F. Supp. 2d at 881. Because we hold that the Ordinance’s criminal offense and penalty provisions and its state judicial review process conflict with federal law, we AFFIRM the judgment of the district court. I. Farmers Branch, Texas, Ordinance 2952
Ordinance 2952 sets forth licensing provisions and criminal sanctions. The Ordinance requires individuals to obtain a license before occupying a rented apartment or “single-family residence.” Ordinance 2952 at §§ 1(B)(1); 3(B)(1). For persons not declaring themselves citizens or nationals of the United States, Farmers Branch’s building inspector must verify “with the federal government whether the occupant is an alien lawfully present in the United States.” Id. at §§ 1(D)(1); 3(D)(1). Upon such inquiry, if the federal government twice “reports” that the occupant is “not lawfully present in the United States,” then the building inspector must revoke the occupant’s license
3

Case: 10-10751 Document: 00512316701 Page: 4 Date Filed: 07/22/2013
10-10751 after notifying both the occupant and the landlord. Id. at §§ 1(D)(1)-(4); 3(D)(1)(4). The Ordinance provides that “[a]ny landlord or occupant who has received a deficiency notice or a revocation notice may seek judicial review of the notice by filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas.” Id. at §§ 1(E)(1); 3(E)(1).
The Ordinance’s criminal provisions prohibit persons from occupying a rented apartment or single-family residence without first obtaining a valid license, id. at §§ 1(C)(1); 3(C)(1); 5, and making a false statement of fact on a license application, id. at §§ 1(C)(2); 3(C)(2); 5. Landlords, in turn, are prohibited from renting an apartment or single-family residence without obtaining licenses from the occupants, id. at §§ 1(C)(4); 3(C)(4); 5, failing to maintain copies of licenses from all known occupants, id. at §§ 1(C)(5); 3(C)(5); 5, failing to include a lease provision stating that occupancy by a person without a valid license constitutes default, id. at 1(C)(6); 3(C)(6); 5, and allowing an occupant to inhabit an apartment without a valid license, id. at 1(C)(7); 3(C)(7); 5. If a landlord commits the criminal offense of knowingly permitting an occupant to remain in an apartment or single-family residence without a valid license, id. at §§ 1(C)(7); 3(C)(7), then the building inspector shall suspend the landlord’s rental license until the landlord submits a sworn affidavit stating that the occupancy has ended, id. at §§ (D)(5)-(7); (D)(5)-(7). A landlord may appeal the suspension of a rental license to the city council. Id. at §§1(D)(8); 3(D)(8). The Ordinance also criminalizes creating, possessing, selling or distributing a counterfeit license. Id. at §§ 1(C)(3), 3(C)(3), 5.
These seven offenses are Class C criminal misdemeanors punishable by
4

Case: 10-10751 Document: 00512316701 Page: 5 Date Filed: 07/22/2013
10-10751 a fine of $500 upon conviction, see Tex. Penal Code Ann. §12.41(3) (West 2009); State v. Chacon, 273 S.W.3d 375, 377 n.2 (Tex. App. 2008); Ordinance 2952 at §§ 1(C); 3(C); 5, with a separate offense deemed committed each day that a violation occurs or continues, id. at § 5. In Texas, local police may make arrests for Class C misdemeanors. See Tex. Code Crim. Proc. Ann. art. 14.01(b), 14.06(a)-(b) (West 2011). II. Supremacy Clause Litigation and the Supreme Court’s
Intervening Decision in Arizona v. United States Two groups of plaintiffs,0 comprised of landlords and tenants, sued the City, seeking to enjoin the Ordinance. Villas at Parkside Partners v. City of Farmers Branch, 701 F. Supp. 2d 835 (N.D. Tex. Mar. 24, 2010). The district court found the Ordinance to be preempted under the Supremacy Clause, both as an improper regulation of immigration because it “applies federal immigration classifications for purposes not authorized or contemplated by federal law,” id. at 860; see generally DeCanas v. Bica, 424 U.S. 351, 355 (1976), and also as an obstacle to the “comprehensive federal” scheme for “removing aliens or adjudicating their status for that purpose,” which the district court described as “structured, in part, to allow federal discretion and to permit in appropriate circumstances a legal adjustment in an alien’s status,” id. at 86061. The district court therefore granted summary judgment to the plaintiffs on their Supremacy Clause claim and permanently enjoined enforcement of the Ordinance. Id. at 860-61. After a panel of our court affirmed the district court judgment, Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802 (5th Cir. 2012), the
5

Case: 10-10751 Document: 00512316701 Page: 6 Date Filed: 07/22/2013
10-10751 Supreme Court issued its decision in Arizona, 132 S. Ct. 2492, which comprehensively set forth the reasons why federal law preempted various provisions of Arizona law relating to non-citizens. That case concerned a Supremacy Clause challenge to various sections of an Arizona law known as S.B. 1070 that was enacted with the stated purpose of “‘discourag[ing] and deter[ring] the unlawful entry and presence of aliens’” by “establish[ing] an official state policy of ‘attrition through enforcement.’” Arizona, 132 S. Ct. at 2497; cf. Arizona v. Inter Tribal Council of Arizona, Inc., No. 12-71, slip op. (U.S. June 17, 2013). The Court’s Arizona decision instructs our decision today.
The Supremacy Clause provides that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. The Court in Arizona reiterated that in the absence of an express preemption provision, a state or local law may be required to “give way to federal law” under at least two circumstances: field and conflict preemption. Arizona, 132 S. Ct. at 2501.3 First, states and localities may not “regulat[e] conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Id. “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 ‘federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of
3 “There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision,” id. at 2500-01, but here, the plaintiffs do not argue that the Ordinance is expressly preempted by any provision of federal law.
6

Case: 10-10751 Document: 00512316701 Page: 7 Date Filed: 07/22/2013
10-10751 state laws on the same subject.’” Id. (alterations in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
Second, state and local laws are preempted “when they conflict with federal law.” Id. “This includes cases where ‘compliance with both federal and state regulations is a physical impossibility,’ and those instances where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Id. (citing Hines, 312 U.S. at 67). “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.” Id. (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)). In preemption analysis, we “assume that ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.’” Id. (quoting Rice, 331 U.S. at 230).
III. Standard of Review Generally, we review a district court’s grant of a permanent injunction
for abuse of discretion. Peaches Enter. Corp. v. Enter. Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th Cir. 1995). However, we review the “ultimate issue” in this case—the district court’s grant of summary judgment on preemption grounds—de novo. VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006); Baker v. Farmers Elec. Coop., Inc., 34 F.3d 274, 278 (5th Cir. 1994). IV. Conflict Preemption
We conclude that enforcement of the Ordinance conflicts with federal law. See Arizona, 132 S. Ct. at 2501. Conflict exists despite Farmers Branch’s
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10-10751 argument that its Ordinance establishes “concurrent enforcement” of federal immigration law, as “[t]he fact of a common end hardly neutralizes conflicting means.” Crosby, 530 U.S. at 379. By setting forth criminal offenses that “discourage illegal immigration or otherwise reinforce federal immigration law,” and by providing for state judicial review of a non-citizen’s lawful or unlawful presence, the Ordinance creates such conflict. Ordinance 2952 at §§ 1(C); 1(E); 3(C); 3(E); 5.
A. Criminal Offense Provisions Applying Arizona, we hold that Farmers Branch’s establishment of new criminal offenses based on the housing of non-citizens “disrupt[s] the federal [immigration] framework,” Arizona, 132 S. Ct. at 2509, both by interfering with federal anti-harboring law and by allowing state officers to “hold[] aliens in custody for possible unlawful presence without federal direction and supervision.” Id.; cf. id. at 2499 (“The dynamic nature of relations with other countries requires the Executive Branch to ensure that [immigration] enforcement policies are consistent with this Nation’s foreign policy.”); see also Ga. Latino Alliance for Human Rights v. Georgia, 691 F.3d 1250 (11th Cir. 2012), reh’g en banc denied, No. 11-13044 (11th Cir. Nov. 27, 2012); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012), cert. denied, 569 U.S. __ (2013) (No. 12-884).
1. Offenses Applying to Landlords Farmers Branch claims its Ordinance will concurrently enforce federal anti-harboring law by providing “a different mechanism against the same . . . conduct” criminalized by the federal government. Ordinance 2952, pmbl. As
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the Supreme Court has cautioned, however, “conflict is imminent” when “two separate remedies are brought to bear on the same activity.” Crosby, 530 U.S. at 380 (quoting Wisconsin Dep’t of Indus. v. Gould, Inc., 475 U.S. 282, 286 (1986)). Here, “examining the federal statute as a whole and identifying its purpose and intended effects,” we conclude that the Ordinance stands as an obstacle to “the accomplishment and execution of the full purposes and objectives” of Congress. See id. at 373.4
It is a federal felony for any person, “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,” to “conceal[], harbor[], or shield[] from detection . . . such alien in any place, including any building.” 8 U.S.C. § 1324(a)(1)(A)(iii). In enacting this provision, Congress “intended to broadly proscribe any knowing or willful conduct fairly within any of these terms that tends to substantially facilitate an alien’s remaining in the United States illegally . . . .” United States v. RubioGonzalez, 674 F.2d 1067, 1073 n.5 (5th Cir. 1982). To that end, we have interpreted the statutory phrase “harbor, shield, or conceal” to imply that “something is being hidden from detection.” United States v. Varkonyi, 645
4 The dissenting opinion’s assertion that the Supreme Court rejected this analysis in DeCanas, confuses the field and conflict preemption inquiries. The Court in DeCanas noted that § 1324’s then-exemption of employment from the definition of “harboring” was insufficient to conclude that Congress intended to occupy the field of non-citizen employment and therefore “to pre-empt all state regulation” in that area. 424 U.S. at 360 & n.9. While providing shelter can, by contrast, constitute harboring under § 1324, see United States v. Cantu, 557 F.2d 1173, 1180 (5th Cir. 1977), we conclude that the Ordinance is conflict preempted, without reaching field preemption. The Court in DeCanas explicitly based its decision on field preemption grounds and remanded the question of conflict preemption. See id. at 360 n.9 (noting that § 1324 and other “cited statutory provisions” would be “relevant on remand in the analysis of actual or potential conflicts between [the California provision] and federal law.”).
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10-10751 F.2d 453, 459 (5th Cir. 1981).5
The Ordinance’s criminal provisions, by contrast, do not require that a landlord know or recklessly disregard a renter’s violation of federal law, nor that a landlord shield the renter’s presence from detection, adjudication, and potential removal by the federal government. Ordinance 2952 at §§ 1(C)(7); 3(C)(7). Instead, the Ordinance criminalizes a landlord’s mere renting of an apartment to a non-citizen found to be “not lawfully present in the United States.” Id. at §§ 1(C)(7), 1(D)(4); 3(C)(7), 3(D)(4). “As a general rule, it is not a crime for a removable alien to remain present in the United States.” Arizona, 132 S. Ct. at 2505. Persons who remain here while removable are not necessarily evading federal detection; in fact, federal law not only contemplates a non-citizen’s residence in the United States until potential deportation, but also requires the non-citizen to provide a reliable address to the federal government to guarantee and speed the removal process. See 8 U.S.C. § 1229(a)(1)(F)(I) (during removal proceedings, written notice “shall be given in person to the alien . . . specifying . . . [t]he requirement that the alien must immediately provide (or have provided) the Attorney General with a written
5 We have held that harboring requires making a non-citizen’s illegal presence in the United States “substantially easier or less difficult.” United States v. Shum, 496 F.3d 390, 392 (5th Cir. 2007); see, e.g., United States v. Hinojos-Mendez, 270 F. App’x 368, 369 (5th Cir. 2008) (acting as a lookout at an apartment complex); Shum, 496 F.3d at 390 (providing false identifications and failing to file social security paperwork for employees); United States v. Ramirez, 250 F. App’x. 80, 83 (5th Cir. 2007) (barring officers from bedroom where illegal noncitizens were hiding, providing non-citizens with necessities including food and shelter, and attempting to prevent their being discovered by probation officers); Varkonyi, 645 F.2d at 453 (instructing immigrant employees to avoid detection, interfering with federal agents, and helping one non-citizen escape from custody); Cantu, 557 F.2d at 1180 (instructing employees to act like customers so they could evade arrest).
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record of an address and telephone number (if any) at which the alien may be contacted.”); see also Arizona, 132 S. Ct. at 2504.6 Farmers Branch’s prohibition on renting to non-citizens here contrary to law thus not only fails to facilitate, but obstructs the goal of bringing potentially removable noncitizens to the attention of the federal authorities.7
Several additional features of 8 U.S.C. § 1324 further illustrate this conflict.8 First, the federal government retains sole authority under the statute to prosecute, convict, and sentence offenders. The statute grants state officers one role: to make arrests for violations of the proscribed federal crimes. 8 U.S.C. § 1324(c). The Court in Arizona categorized this grant of authority under § 1324(c) as one of several “specific limited circumstances” in which federal law allows state officers to “perform the functions of an immigration officer . . . subject to the Attorney General’s direction and supervision” under 8 U.S.C. § 1357(g)(3). Arizona, 132 S. Ct. at 2506. Second, to show that a federal criminal violation has occurred, “the prosecution must prove” in federal court “that the alien, who is transported or harbored by the defendant, ‘has
6 Of course, not every case will end in removal. Discretion is built into our immigration system. Arizona, 132 S. Ct. at 2499 (“Discretion in the enforcement of immigration law embraces immediate human concerns . . . . 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.”).
7 Cf. Whiting, 131 S. Ct. at 1986 (“Congress’s objective in authorizing the development of E-Verify was to ensure reliability in employment authorization verification, combat counterfeiting of identity documents, and protect employee privacy. Arizona’s requirement that employers operating within its borders use E-Verify in no way obstructs achieving those aims.”).
8 See Arizona, 132 S. Ct. at 2505 (A “[c]onflict in technique can be fully as disruptive to the system Congress enacted as a conflict in overt policy.”) (internal quotation marks and citation omitted).
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10-10751 come to, entered, or remains in the United States in violation of the law,’” United States v. Esparza, 882 F.2d 143, 145 (5th Cir. 1989) (quoting United States v. Rivera, 859 F.2d 1204, 1209 (4th Cir. 1988)), using statutorily limited categories of prima facie evidence: “records of any judicial or administrative proceeding,” “official records of the [USCIS] or of the Department of State,” and “testimony by an immigration officer,” 8 U.S.C. § 1324(b)(3); cf. Arizona, 132 S. Ct. at 2529 (“Arizona could also provide officers with a nonexclusive list containing forms of identification sufficient under § 2(B) to dispel any suspicion of unlawful presence.”) (Alito, J., concurring in part and dissenting in part). We have held, for the purpose of proving the analogous crime of transporting certain non-citizens, that “[t]he aliens’ status is an element of the crime.” United States v. Alvarado-Machado, 867 F.2d 209, 212 (5th Cir. 1989). The “significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable,” Arizona, 132 S. Ct. at 2506, reinforce the importance of the federal government’s supervisory role over the limited contexts, including harboring, where the Attorney General has delegated arrest authority to state officers. Id. We conclude 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, the Ordinance “interfere[s] with the careful balance struck by Congress” with respect to the harboring of non-citizens here contrary to law. See Arizona, 132 S. Ct. at 2505-06; see also Crosby, 530 U.S. at 367; Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp.,
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No. 12-13958, 2013 WL 1862714, at *12 (11th Cir. May 6, 2013).9
2. Offenses Applying to Non-Citizen Renters
Another stated purpose of the Ordinance was to “aid in [the]
enforcement” of the federal law providing—in the Ordinance’s words—that
“certain aliens not lawfully present in the United States are not eligible for
certain State and local public benefits, including licenses.” Ordinance 2952,
pmbl. (citing 8 U.S.C. § 1621 et seq.) Farmers Branch criminalizes occupying
an apartment or single-family residence without first obtaining a valid occupancy license. Ordinance 2952 §§ 1(C)(1); 3(C)(3); 5.10 But unlike the
9 Other courts also have found state anti-harboring provisions to be preempted by federal law. See Ga. Latino Alliance for Human Rights v. Georgia, 691 F.3d 1250, 1267 (11th Cir.) (holding that § 1324 preempted Georgia law criminalizing harboring of aliens), reh’g en banc denied, No. 11-13044 (11th Cir. Nov. 27, 2012); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012), cert. denied 569 U.S. __ (2013) (No. 12-884) (holding that § 1324 preempted Alabama law criminalizing concealing or harboring an unlawfully present alien and entering into a rental agreement with an unlawfully present alien); Lozano v. City of Hazleton, 620 F.3d 170, 223 (3d Cir.) (holding that § 1324 preempted a local ordinance prohibiting renting housing to illegal aliens), cert. granted and vacated on other grounds, 131 S. Ct. 2958 (2011); United States v. South Carolina, 906 F. Supp. 2d 463, 467-68 (D.S.C. 2012) (holding that § 1324 preempted South Carolina law creating state crimes for harboring, both relating to harborers and aliens themselves); Valle del Sol v. Whiting, No. 10-1061, 2012 WL 8021265 (D. Ariz. Sept. 5, 2012) (enjoining Arizona law creating state crimes for, inter alia, transporting and harboring aliens as preempted by § 1324). The Eleventh Circuit held, as we do here, that failing to limit harboring to activity facilitating evasion from federal authorities was an “untenable expansion of the federal harboring provision.” Alabama. 691 F.3d at 1288. But see Keller v. City of Fremont, No. 12-1702 (8th Cir. June 28, 2013) (holding that a local ordinance prohibiting rental housing for illegal aliens was not field preempted and did not conflict with the federal removal process, and where the ordinance specified it did not prohibit conduct “expressly permitted by federal law,” did not conflict with federal anti-harboring law).
10 As previously noted, an occupancy license may be revoked only after the building inspector ascertains, after twice making inquiry to the federal government, that “the occupant is an alien who is not lawfully present in the United States.” Ordinance 2952 at §§ 1(D)(2),(4); 3(D)(2),(4). The dissenting opinion asserts that after applying for and receiving an occupancy license, a renter is protected from criminal liability even if the license is revoked. The Ordinance makes it a criminal offense for a renter to “be an occupant of a [single family
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criminal provisions of the employment laws upheld in DeCanas and Whiting, which applied only “to individuals whom the Federal Government has already declared cannot work in this country,” DeCanas, 424 U.S. at 363; see also Whiting, 131 S. Ct. at 1981 (specifying that the Arizona law adopted the precise federal definition of “unauthorized alien” under 8 U.S.C. § 1324a(h)(3)), the Ordinance predicates arrests, detentions, and prosecutions based on a classification—the ability to obtain rental housing—that does not exist under § 1621 or anywhere else in federal law.11 Cf. Plyler v. Doe, 457 U.S. 202, 212 n.19 (1982) (“[I]f the federal government has by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass, the States may, of course, follow the federal direction.”).
Significantly, in remanding the conflict preemption inquiry to the state court, the Court in DeCanas noted California’s concession that if its law reached aliens with employment authorization but without lawful status, it would be facially unconstitutional. DeCanas, 424 U.S. at 364. In this case, Farmers Branch’s Ordinance reaches non-citizens who may not have lawful
residence or apartment] without first obtaining a valid occupancy license permitting the person to occupy that” residence. Ordinance 2952 at §§ 1(C)(1); 3(C)(1). The offense refers to an ongoing condition: “be[ing] an occupant” without first obtaining a valid license “permitting”—in the present tense—such occupancy. Id. A license is not valid after it is revoked, nor can it “permit[]” ongoing occupancy. Even assuming, arguendo, that a license granted after the preliminary application is valid until revocation, the dissenting opinion’s strained interpretation would require rewriting the offense’s language to criminalize only moving into an apartment without first obtaining a valid license.
11 Notably, also, the implementing regulations for Congress’s E-Verify employment verification system allow employees to contest a finding, and forbid employers from taking adverse action against the employee while a final resolution is pending. Pilot Programs for Employment Eligibility Confirmation, 62 Fed. Reg. 48,309, 48,312-13 (Sept. 15, 1997).
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10-10751 status but face no federal exclusion from rental housing, and exposes those noncitizens to arrests, detentions, and prosecutions based on Farmers Branch’s assessment of “unlawful presence.” The Ordinance not only criminalizes occupancy of a rented apartment or single-family residence, but puts local officials in the impermissible position of arresting and detaining persons based on their immigration status without federal direction and supervision. See Arizona, 132 S. Ct. at 2505.
Farmers Branch argues that the building inspector’s “unlawful presence” inquiry is no different from those inquiries “made by hundreds of local governments daily to the federal government to ascertain immigrants’ status and qualifications for benefits ranging from housing assistance to student loans to medical care and disability income.” In those instances, however, the federal government has set out specific and carefully calibrated categories of noncitizens who qualify for such benefits. See, e.g., 8 U.S.C. § 1641(b) (defining “qualified alien,” for the purpose of conditioning federal, state, and local public benefits, as a member of one of seven enumerated classes, or “an alien who has been battered or subjected to extremely cruelty” by a household member); REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, § 202(c)(2)(B) (May 11, 2005) (conditioning the grant of state identification such as driver’s licenses on an applicant’s membership in one of eight enumerated classes of immigration status); 8 C.F.R. § 274a.12 (setting forth the specific “[c]lasses of aliens authorized to accept employment” pursuant to federal statutes and regulations); Definition of the Term Lawfully Present in the United States for Purposes of Applying for Title II Benefits Under Section 401(b)(2) of Public Law
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104-193, 61 Fed. Reg. 47,039 (Sept. 6, 1996) (defining a non-citizen “lawfully present” as falling under one of five particular immigration classifications, and providing that the definition of lawful presence “is made solely for the purpose of determining an alien’s eligibility for payment of title II social security benefits . . . and is not intended to confer any immigration status or benefit under the Immigration and Nationality Act”).
While federal law provides carefully calibrated definitions of the term “qualified alien” for the purpose of conferring benefits, the Ordinance does not specify which of many federal immigration classifications Farmers Branch officials would use to resolve whether a non-citizen was “lawfully present.” The Ordinance’s “generality stands at odds with the federal discreteness.” Crosby, 530 U.S. at 379; see also Odebrecht, 2013 WL 1862714, at *11 (finding that a state law “squarely conflicts with the more nuanced federal regime” because “in stark contrast to the federal regime, [the state law] penalizes any [conduct]—no ifs, ands, or buts.”). Indeed, because federal law does not limit the ability of non-citizens to obtain rental housing,12 there is no definition that would be applicable to Farmers Branch’s inquiry.13
12 Cf. 8 U.S.C. § 1621(c)(1)(B) (limiting access to “public or assisted housing” for noncitizens who do not meet certain criteria).
13 The dissenting opinion perceives an inconsistency with the harboring statute where none exists. Section 1324 obligates the federal government to prove that a non-citizen has “come to, entered, or remains in the United States in violation of law.” 8 U.S.C. § 1324(a)(1)(A)(iii). Proving this violation beyond a reasonable doubt may require proof beyond a non-citizen’s immigration status, such as records of an adjudicative proceeding or the testimony of an immigration officer. 8 U.S.C. § 1324(a)(1)(A)(iii). Contrary to the dissenting opinion’s assertion, Farmers Branch cannot erect a concurrent criminal and state judicial enforcement regime based on an inquiry to administrative entities that provide only a renter’s immigration status, not a conclusive determination of lawful or unlawful presence.
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10-10751 While Farmers Branch officials testified that they intended to use the federal SAVE program to determine lawful presence, the chief of that program testified that SAVE can provide only a non-citizen’s specific immigration status; it “does not answer lawful presence or not.”14 Farmers Branch’s building inspector testified that because an inquiry to the federal government would reveal only an applicant’s immigration status, he himself would “have to make that determination [of whether the applicant is] lawfully present.” Considering the labyrinth of statutes and regulations governing the classification of non-citizens, and the necessity for over 260 immigration judges to oversee individual cases, however, it is unsurprising that the building inspector also confusedly disclaimed that adjudicatory capacity, stating that: “[the decision of lawful presence] will rest with the people that give us the information that it may have told us what that status is.” Based on a classification that does not exist in federal law, Farmers Branch has criminalized the occupancy of rental housing by those non-citizens found to be “not lawfully present.” Ordinance 2952 §§ 1(C)(1); 3(C)(3); 5. Texas law allows local officers to arrest and detain individuals for Class C misdemeanors. Texas Code Crim. Proc. art. 14.01; 14.06; 15.17. The Supreme Court in Arizona invalidated a state law provision (“Section 6”) allowing state officers to “without a warrant . . . arrest a person if the
14 See also Responsibility of Certain Entities to Notify the Immigration and Naturalization Service of Any Alien Who the Entity “Knows” Is Not Lawfully Present in the United States, 65 Fed. Reg. 58,301, 58, 302 (Sept. 28, 2000) (“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.”). Similarly, the government states in its brief as amicus curiae that SAVE does not provide an independent, binary determination of an individual’s “lawful presence.”
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10-10751 officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” Arizona, 132 S. Ct. at 2505. The Court held that Section 6 “violates the principle that the removal process is entrusted to the federal government” by allowing state authorities to arrest and detain based on immigration status without prior federal “direction and supervision.” Id. at 2506-07. The Ordinance puts local officers in this impermissible position.
Indeed, Farmers Branch’s Ordinance authorizes more interference with federal law than did the Arizona arrest-only authority invalidated by the Court. As dissenting Justices in Arizona emphasized, Section 6 allowed state officers to bring persons to the attention of federal authorities for further action, whereas the Ordinance allows for local authorities to prosecute as well as arrest based on perceived unlawful presence. Cf. Arizona, 132 S. Ct. at 2516 (noting that the Arizona statute authorized state arrests but contemplated “follow[ing] their [federal] lead on what to do next”) (Scalia, J., concurring in part and dissenting in part); id. at 2517 (highlighting that “Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that § 6 necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.)”) (Scalia, J., concurring in part and dissenting in part); id. at 2527 (“[T]he Federal Government retains the discretion that matters most–that is, the discretion to enforce the law in particular cases”; “the Federal Government decides, presumably based on its enforcement priorities, whether to have the person released or transferred to federal custody.”) (Alito, J., concurring in part and
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10-10751 dissenting in part).
Although federal law does allow state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U.S.C. § 1357(g)(10)(B), the Supreme Court has held that “unilateral state action to detain” goes beyond any “coherent understanding of the term” “cooperation” under federal law. Arizona, 132 S. Ct. at 2507 (providing examples of “cooperation” as “participating in a joint task force with federal officers, providing operational support in executing a warrant, or allowing federal immigration officials to gain access to detainees held in state facilities.”). The Ordinance conveys such unilateral state authority to prosecute as well as to detain. Allowing state officers to arrest an individual whom they believe to be not lawfully present “would allow the State to achieve its own immigration policy” and could be “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Id. at 2506.
The Ordinance is distinguishable from the section of the Arizona law upheld by the Court, which allows state officers to make a “reasonable attempt . . . to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Id. at 2507. The Court upheld that provision only after finding that the law, on its face, did not require officers to prolong detention for the purpose of conducting an immigration status check. Id. at 2509. Farmers Branch’s Ordinance, by contrast, allows for arrests, detentions, and prosecutions predicated on an
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occupant’s failure to obtain a rental license, and the denial of such a license is in turn based on Farmers Branch’s immigration status inquiry. See Ordinance 2952 at §§ 1(C); 3(C).15
The Supreme Court clarified that “it would disrupt the federal framework to put state offices in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.” Arizona, 132 S. Ct. at 2509. Farmers Branch argues that the Ordinance relies entirely on the federal determination of lawful or unlawful presence. But even a determinative federal answer on this question—which, as explained above, would be impossible to obtain—would not bring the Ordinance’s arrest procedures into compliance with federal law. “The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process.” Id. at 2505. Without a federal warrant, federal officers have even more limited
15 The dissenting opinion states that prosecution of both renters and landlords under the Ordinance would rest on violation of licensing provisions, rather than the immigration status of the renter. This is a distinction without a difference. See Odebrecht, 2013 WL 1862714, at *13 (finding the state’s “purported distinction” between punishing a false statement rather than the “conduct itself” to be “unpersuasive.”). The Ordinance criminalizes “be[ing] an occupant of a leased or rented single family residence [or apartment] without first obtaining a valid occupancy license permitting the person to occupy that single family residence [or apartment,” and “knowingly permit[ting] an occupant to occupy an apartment [or single family residence] without a valid residential occupancy license,” Ordinance 2952 at §§ 1(C)(1), 1(C)(7); 3(C)(1), 3(C)(7). An occupancy license is revoked based on a finding of the occupant’s unlawful presence. Id. at §§ 1(D)(4); 3(D)(4). This link is made doubly apparent by the fact that the Ordinance allows landlords and occupants to challenge a license revocation or a license deficiency notice by seeking judicial review of “the question of whether the occupant is lawfully present in the United States.” Id. at §§ 1(E)(1), (3); 3(E)(1), (3). We note, also, that the Supreme Court has used the state arrest authority granted in § 1324(c) as a “limited circumstance[] in which state officers may perform the functions of an immigration officer” under federal supervision. Arizona, 132 S. Ct. at 2506. This is so because “[t]here are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable,” that exist even where persons themselves are not prosecuted for removability per se. Id.
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authority to arrest. Id. at 2506 (citing 8 U.S.C. § 1357(a)). The Ordinance’s

criminal provisions exist outside this statutory structure.16

For these

reasons, we conclude that the Ordinance’s criminal provisions, because they

conflict with federal anti-harboring law and the federal authority to arrest and

detain persons for possible unlawful presence, are preempted by federal law.

B. State Judicial Review

The Ordinance also provides that “[a]ny landlord or occupant who has

received a deficiency notice or a revocation notice may seek judicial review of

the notice by filing suit against the building inspector in a court of competent

jurisdiction in Dallas County, Texas.” Ordinance 2952 at §§ 1(E)(1); 3(E)(1). A

landlord or occupant may seek state judicial review of two questions: first,

whether the building inspector complied with the law, and second, “whether

the occupant is lawfully present in the United States.” Id. at §§ 1(E)(3); 3(E)(3).

In a suit over the latter question, the Ordinance indicates that “that question

shall be determined under federal law” and “the [state] court shall be bound by

any conclusive determination of immigration status by the federal

government,” with a “conclusive determination” defined as one which, under

federal law, “would be given preclusive effect on the question.” Id. at §§ 1(E)(4);

3(E)(4).

The federal government alone, however, has the power to classify non-

citizens. Arizona, 132 S. Ct. at 2506; DeCanas, 424 U.S. at 354; 8 U.S.C. §

1229a(a)(3). Although, as with its criminal enforcement provisions, the

16 As the Court noted in Arizona, allowing state officers to make warrantless arrests would give those officers “even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers.” 132 S. Ct. at 2506 (citing 8 U.S.C. § 1226(a), (c)(1)).
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10-10751 Ordinance indicates that the question of a non-citizen’s lawful or unlawful presence shall be “determined under federal law,” it nonetheless leaves the determination in the hands of state courts. Ordinance 2952 at §§ 1(E)(4); 3(E)(4). The Ordinance provides that a federal determination of a non-citizen’s status binds the court only if it is “conclusive”—in other words, according to the Ordinance, only if, under federal law, it “would be given preclusive effect on the question” of whether an occupant is lawfully present under federal law. Id. But a non-citizen’s immigration status, even in federal proceedings, may not conclusively determine lawful or unlawful presence.
Whereas the Supreme Court has made clear that there are “significant complexities involved in [making] . . . the determination whether a person is removable,” and the decision is “entrusted to the discretion of the Federal Government,” Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) (“[T]he 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.”), the Ordinance allows state courts to assess the legality of a non-citizen’s presence absent a “preclusive” federal determination, opening the door to conflicting state and federal rulings on the question.
The judicial review provision in this case is distinguishable from that upheld by the Supreme Court in Whiting, even though they both give the federal determination a rebuttable presumption of accuracy. Whiting, 131 S. Ct. at 1981 n.7; Ordinance 2952 at §§ 1(E)(5); 3(E)(5). Crucially, as the Supreme Court emphasized, the law in Whiting specified that “a state court may consider ‘only’ the federal determination,” meaning that the state could
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10-10751 not “establish unlawful status apart from the federal determination.” Whiting, 131 S. Ct. at 1981 n.7. The rebuttable presumption given to the federal determination in Whiting, as the Court noted, operated only to give “an employer a chance to show that it did not break the state law,”a narrow mechanism with no counterpart in Farmers Branch’s Ordinance. 131 S. Ct. at 1981 n. 7. Here, the Ordinance does not similarly confine the state court to the federal determination, providing only that the state court must be bound by federal determinations having “preclusive effect.” Ordinance 2952 at §§ 1(E)(4); 3(E)(4). Furthermore, the relevant determination in Whiting turned on a singular federal statutory definition: whether the alien has “the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. § 1324a(h)(3),” Ariz. Rev. Stat. Ann. § 23-211 (2008). In turn, the statute defines such an alien as “lawfully admitted for permanent residence” or having received work authorization from the federal government. 8 U.S.C. § 1324a(h)(3). Those determinations do not involve the discretion and variability inherent in a determination of whether an alien is “lawfully present in the United States.” See Ordinance 2952 at §§ 1(E)(4); 3(E)(4).
For these reasons, we hold that because the power to classify non-citizens is reserved exclusively to the federal government, the judicial review section of the Ordinance also is preempted by federal law. See 8 U.S.C. § 1229a(a)(3) (setting out 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”).17
17 Because our conclusion is based on a finding of conflict preemption, we need not reach the question of field preemption. Cf. Odebrecht Constr., Inc. v. Sec’y, Fla. Dep’t of Transp., No. 12-13958, 2013 WL 1862714, at *17 n.7 (11th Cir. May 6, 2013) (“Because our conclusion that
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10-10751 V. Severability
Because the Ordinance lacks functional coherence without its criminal offense and penalty provisions, as well as without its overarching judicial review process, we decline to apply the general severability clause to revise and leave intact any remaining parts of the Ordinance. See Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex. 1990); see generally Champlin Ref. Co. v. Corp. Comm'n, 286 U.S. 210, 234-35 (1932); Arizona, 132 S. Ct. at 2505 (invalidating Arizona law seeking to achieve federal deterrence goal because of “a conflict in the method of enforcement”). This restraint is necessary because these elements, along with other interdependent requirements, notably that the Ordinance “shall be implemented in a manner fully consistent with federal law regulating immigration and protecting the civil rights of all citizens, nationals, and aliens,” Ordinance 2952 at §§ 1(F); 3(F), as well as its explicit, prospectiveonly effective date tied to the instant federal constitutional litigation, id. at § 7, create provisions that “are connected in subject-matter, dependent on each other, operating together for the same purpose.” See Rose, 801 S.W.2d at 844; see also Nat’l Fed. of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 210 (5th Cir. 2011) (explaining that the severability of unconstitutional provisions of a state enactment is a question of state law).
The dissenting opinion describes the Ordinance as merely a “licensingbased regulatory program” and asserts that its “primary purpose is to effectuate licensing of apartment and single family rentals under the
the state Act conflicts with federal law is sufficient to affirm the judgment below, we decline to speak to field preemption as a separate issue, or to . . . . address[] the foreign affairs power or the dormant Foreign Commerce Clause.”) (quoting Crosby, 530 U.S. at 379).
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10-10751 supervision of the building inspector.” The idea that the Ordinance is primarily designed to promote a civil licensing scheme is contradicted not only by the Ordinance’s criminal enforcement apparatus, see supra, but by the Ordinance’s explicit reference to federal criminal anti-harboring law, Ordinance 2952, pmbl., by Farmers Branch’s consistent emphasis on the Ordinance’s “concurrent enforcement” of “federal criminal immigration law,”18 and by City officials’ blunt and exclusionary statements in the record. The City unhesitatingly has admitted, contrary to the dissenting opinion’s characterization, that the Ordinance’s purpose “is to prevent aliens not lawfully present in the United States from renting housing in the City of Farmers Branch” and to “discourag[e] such aliens from unlawfully remaining in the United States.” As one City Council member testified, its “aim . . . was to try to make it more difficult for individuals who are in this country illegally to reside in Farmers Branch.”
Furthermore, removing the Ordinance’s criminal offense, judicial review, and penalty provisions19 would leave only three substantive sections: licensing, immigration status verification, and enforcement. Unlike driver’s licenses, which, as the dissenting opinion notes, promote “road safety and vehicle insurance,” rental licenses—as the Ordinance’s supporters themselves admit—do not confer any independent benefit. (As city council member Tim
18 Farmers Branch’s insistence that the Ordinance concurrently enforces federal criminal law—describing it before the district court as “clearly proscrib[ing] the same conduct [as § 1324], knowingly harboring an unauthorized alien in apartment building”; “a different mechanism against the same proscribed conduct . , , [as the] federal crime”; and “reinforc[ing] the federal criminal immigration law against harboring”—goes unmentioned by the dissent.
19 The penalty provision applies only after a person is convicted under one of the Ordinance’s enumerated criminal offenses. Id. at § 5.
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10-10751 Scott testified, “I don’t think that there’s a necessitated benefit from having a license . . . it’s kind of benefit neutral.”). Instead, their purpose in the Ordinance’s scheme is limited to the consequences of their revocation based on a finding of unlawful presence. A verification of immigration status, however, as discussed above, does not necessarily determine lawful presence. And even assuming Farmers Branch could obtain such a determination, it would serve no purpose without the Ordinance’s criminal and civil enforcement provisions. See Rose, 801 S.W.2d at 844 (severing unconstitutional portions of an Ordinance only where the remainder is “capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected.”). That leaves the Ordinance’s civil enforcement provision. The dissenting opinion asserts that Farmers Branch “hopes” that civil enforcement will prompt landlords and renters to “generally” comply with its provisions, and non-citizens to “make other housing choices.” But the Ordinance’s only civil enforcement mechanism—suspension of a landlord’s license—is both premised on the landlord having committed an offense under §§ 1(C)(7) or 3(C)(7), see Ordinance 2952 at §§ 1(D)(5), (7); 3(D)(5), (7), and appealable only through the judicial review process that we hold to be preempted, see id. at §§ 1(E)(1); 3(E)(1).20 Thus, we conclude that the Ordinance’s provisions are so “essentially and inseparably connected in
20 The dissenting opinion concludes that certain portions of the Ordinance’s judicial review provisions are also severable. Even excising these portions, however, the Ordinance is left with the language that in “answering the question” whether “the occupant is lawfully present in the United States . . . the court shall be bound by any determination of immigration status by the federal government.” Ordinance 2952 at §§ 1(E)(4); 3(E)(4). As set out above, however, a determination of immigration status from the federal government does not necessarily answer the question of lawful presence, and the Ordinance would leave state courts without remedy if immigration status did not conclusively answer the question.
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substance” that, despite the presence of a severability clause, they are not severable under Texas law. See Rose, 801 S.W.2d at 844. VI. Conclusion
Because the Ordinance’s criminal offense and penalty provisions and its state judicial review process conflict with federal law, we AFFIRM the judgment of the district court.
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10-10751 REAVLEY, Circuit Judge, joined by GRAVES, Circuit Judge, concurring only in the judgment:
Farmers Branch requires owners of residential property in the city to lease their property only to people who are lawfully present in the United States.1 City officials explained that the problem was the Latino population and never mentioned any housing problem,2 and the City contends that it may deny housing for illegal aliens whether or not they are removable from the country under the federal law. The City may think its ordinance serves the public welfare and is a legitimate exercise of its police power, and my colleagues apparently agree with this, but under Supreme Court holdings the national law of immigration and the control of foreign affairs preempts what Farmers Branch has done.
The Constitution unites the states to better serve the common good and protect revered rights. The Supreme Court in Arizona v. United States, 132 S. Ct. 2492 (2012), applied the Constitution as giving exclusive effect to national control of immigration and foreign affairs. Judges who approve any part of this ordinance evade that national authority. They do so by treating it as a mere housing regulation and by ignoring its purpose and effect: the exclusion of Latinos from the city of Farmers Branch. The record leaves no
1 The dissent suggests that the City’s issuance of an occupancy license is nondiscretionary insofar as the license is “automatically” issued and there is no affirmative obligation to declare one’s lawful presence in the United States before receiving the license. This view mischaracterizes the operation of the City’s regulation and its onerous results. The Ordinance demands that failure to declare either United States citizenship or a federal number that establishes “lawful presence” will trigger a process more likely than not leading the building inspector to revoke the license. See, e.g., FARMERS BRANCH, TEX.,ORDINANCE 2952 § 1(B) & (D).
2 See the panel opinion: 675 3d 802, 805-06, 809–10 (5th Cir. 2012).
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10-10751
doubt of this. Preliminarily, I question whether this ordinance qualifies to be called an
exercise of police power, because it cannot be said “to promote the safety, peace, public health, convenience and good order of its people.”3 City of Birmingham v. Monk, 185 F.2d 859, 861–62 (5th Cir. 1950). But the police power is not above the Constitution. Id.; see also Ga. Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250, 1265 n.11 (11th Cir. 2012) (“[L]egislation in a field where states traditionally have power does not defeat a claim of federal preemption.”). The Court has often stated that a state law is preempted by the Supremacy Clause where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 132 S. Ct. at 2501; Hines v. Davidowitz, 312 U.S. 52, 67–68, 61 S. Ct. 399 (1941).
Whether the Farmers Branch ordinance is preempted as an obstacle to the purposes and objectives of Congress in the field of immigration is a “matter of judgment” informed by the federal scheme and the purpose and effects of the federal statute as a whole. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373, 120 S. Ct. 2288, 2294 (2000). We must therefore consider Congress’s
3 As noted in the panel opinion:
[T]he City points to nothing showing an effect on public welfare by illegal aliens’ occupancy of rental housing. The mayor of Farmers Branch confirmed that the City conducted no studies on the effects of undocumented aliens on the value of property in Farmers Branch, the quality of its schools, the crime rate, or the availability of healthcare to its residents. One City Council member, Gary Greer, testified that there was no data showing whether undocumented immigrants commit more crimes than others in Farmers Branch. Still another council member, David Koch, agreed that the Ordinance was “not directed in any way towards revitalization” but rather was “directed solely towards removing illegal immigrants.”
675 F.3d at 810.
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10-10751 objectives in the Immigration and Nationality Act (INA), where the “[f]ederal governance of immigration and alien status is extensive and complex.” Arizona, 132 S. Ct. at 2499; see also Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1973 (2011) (stating that with the INA Congress “established a comprehensive federal statutory scheme for regulation of immigration and naturalization and set the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country” (internal quotation marks and citation omitted)). Congress has extensively determined which aliens may be admitted to this country, which aliens should be removed, and the process for both admission and removal. Arizona, 132 S. Ct. at 2499.
For example, the INA creates multiple categories of aliens subject to removal, and it provides for the expedited removal of certain aliens. 8 U.S.C. §§ 1227–28. It also expressly grants discretion for the Attorney General to waive removal under certain circumstances, such as for humanitarian purposes or for victims of domestic abuse. See, e.g., id. § 1227(a)(1)(E)(iii) & (a)(7). It further sets out the procedures for adjudicating an alien’s status before an immigration judge, and it specifies that those procedures are the exclusive means for determining the removability of an alien. Id. § 1229a(a)(3). Moreover, the federal scheme contains various provisions under which aliens who have come to the United States unlawfully may be permitted to remain here, including asylum, id. § 1158, cancellation of removal, id. § 1229b, withholding of removal, id. § 1231(b)(3), and temporary protected status, id. § 1254a. In light of this comprehensive statutory framework, “the removal process is entrusted to the discretion of the Federal Government.” Arizona, 132 S. Ct. at 2506; see also Galvan v. Press, 347 U.S. 522, 531, 74 S. Ct. 737, 743
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10-10751 (1954) (“Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress[.]”). When set against the extensive federal scheme and its discretionary allowances, the Farmers Branch ordinance interferes with Congress’s objectives and regulation of immigration. See id. at 2506–07.
First, the premise of the ordinance, as argued in the City’s brief, is that any non-citizen “unlawfully” present in Farmers Branch has no legal right to be present anywhere in the United States, and therefore the ordinance may criminalize the continued presence of such persons within rental housing in the City. The premise is a false one, however, because “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States.” Arizona, 132 S. Ct. at 2505. For this reason, the Court held that Arizona could not authorize the arrest of persons thought probably to be illegal aliens because the state may not regulate the presence of removable aliens.
Second, the ordinance does more than merely deter the presence of Latinos from Farmers Branch, and instead works to exclude and remove aliens from the City’s borders. This is because no alien with an unlawful status will be able to obtain the basic need of shelter through a rental contract. Illegal aliens will therefore have no recourse but to self-deport from Farmers Branch. See Lozano v. City of Hazleton, 620 F.3d 170, 220–21 (3d Cir. 2010) (“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.” (internal quotation marks and citation omitted)), vacated on other grounds by __ U.S. __, 131 S. Ct. 2958 (2011). This forced migration of illegal aliens conflicts with the careful scheme created by the INA and burdens the national
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10-10751 prerogative to decide which aliens may live in this country and which illegal aliens should be removed.
It is said that the ordinance is permissible as regulation of employment was permissible in DeCanas v. Bica, 424 U.S. 351, 96 S. Ct. 933 (1976). But neither my position nor that of the Supreme Court conflict with DeCanas. The California statute there was directed at an acute economic problem that left many citizens unemployed. The Court held that the state’s police power justified the legal priority for their employment to go ahead of people unlawfully present. The police power is not so clear here, and the immigration conflict did not exist there.
The Eleventh Circuit reached a similar conclusion when it recently considered a provision of an Alabama law that prohibited the recognition of contracts entered into by unlawful aliens. United States v. Alabama, 691 F.3d 1269, 1292–95 (11th Cir. 2012), cert. denied, 133 S. Ct. 2022 (Apr. 29, 2013). Because the law essentially prevented aliens “from enforcing contracts for basic necessities” in derogation of the ability to live and conduct daily affairs, the court concluded that the measure’s effect of forcing undocumented aliens out of the state interfered with the exclusive federal power to expel aliens, as well as with the INA’s comprehensive scheme governing the removal of aliens. Id. at 1293–94. The Farmers Branch ordinance is just as invidious because its adverse effect on housing also precludes aliens from obtaining an essential human requirement. Cf. id. at 1299 n.25 (recognizing that depriving aliens of “basic needs, such as water, garbage, and sewer services . . . amounted to an impermissible policy of expulsion”). Farmers Branch, like Alabama, “has essentially decided that unlawfully present aliens cannot be tolerated within
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10-10751 its territory, without regard for any of the statutory processes or avenues for granting an alien permission to remain lawfully within the country.”4 Id. at 1295.
By effectively removing illegal immigrants from the City, Farmers Branch also interferes with the national power to control and conduct relations with foreign nations. This concern about the relationship between immigration and foreign affairs, and the exclusivity of the national power, often has been stated by the Supreme Court. See, e.g., Arizona, 132 S. Ct. at 2498–99; see also Toll v. Moreno, 458 U.S. 1, 10, 102 S. Ct. 2977, 2982 (1982) (noting that federal authority over “the status of aliens derives from multiple constitutional sources, including the Federal Government’s power ‘[t]o establish [a] uniform Rule of Naturalization,’ . . . its power ‘[t]o regulate Commerce with foreign Nations,’ . . . and its broad authority over foreign affairs” (alterations in original) (citations omitted)); Plyler v. Doe, 457 U.S. 202, 219 n.19, 102 S. Ct. 2382, 2396 n.19 (1982) (“With respect to the actions of the Federal Government, alienage classifications may be intimately related to the conduct of foreign policy, to the federal prerogative to control access to the United States, and to the plenary federal power to determine who has sufficiently manifested his allegiance to become a citizen of the Nation. No State may independently exercise a like power.”); id. at 237 n.1, 102 S. Ct. at 2405 n.1 (Powell, J.,
4 The dissent concludes that the Ordinance does not “effect or affect” aliens’ removal. This view is similar to that of two judges on the Eighth Circuit, see Keller v. City of Fremont, __ F.3d __, 2013 WL 3242111, at *5 (8th Cir. June. 28 2013), but it is contrary to the conclusion reached by both the Third Circuit in Lozano and the Eleventh Circuit in Alabama when considering similar laws, and it is blind to the reality of what this ordinance does. As noted by Judge Bright in Keller, there can be no doubt that “[t]he purpose and effect of the . . . ordinance is exclusion and removal of undocumented persons.” Keller, 2013 WL 3242111, at *22 (Bright, J., dissenting).
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10-10751 concurring) (“Given that the States’ power to regulate in this area is so limited, and that this is an area of such peculiarly strong federal authority, the necessity of federal leadership seems evident.”); Harisiades v. Shaughnessy, 342 U.S. 580, 588–589, 72 S. Ct. 512, 519 (1952) (“It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”); Hines, 312 U.S. at 64, 61 S. Ct. at 402; Chy Lung v. Freeman, 92 U.S. 275, 279 (1875) (“If th[e] government [of California] should get into a difficulty [because of its treatment of noncitizens] which would lead to war, or to suspension of intercourse, would California alone suffer, or all the Union?”).
The Arizona opinion opens by emphasizing the “broad, undoubted” federal power “over the subject of immigration and the status of aliens,” and the “inherent power as sovereign to control and conduct relations with foreign nations.” Arizona, 132 S. Ct. at 2498. The Court gives a full description of the importance of how this nation treats the nationals of foreign countries when they are in this country because “perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.” Id.; see also Hines, 312 U.S. at 64, 61 S. Ct. at 402 (“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.”). In light of the potential ramifications of the treatment of aliens in this country, “Congress,” not the states, “specifie[s] which
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10-10751 aliens may be removed from the United States and the procedures for doing so.” Arizona, 132 S. Ct. at 2499. Of paramount importance to the federal scheme “is the broad discretion exercised by immigration officials” because “aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.” Id. The discretionary decision on removal involves many factors, including the “equities of an individual case . . . , including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service,” as well as “policy choices that bear on this Nation’s international relations.” Id. Therefore, “[t]he dynamic nature of relations with other countries requires the Executive Branch,” not the states, “to ensure that enforcement policies are consistent with this nation’s foreign policy with respect to these and other realities.” Id.
The Court wrote this as a crucial part of its formal legal analysis, but it is ignored by the dissenters. The Court went on later to address the federal government’s discretion over the removal process as “embracing immediate human concerns” that will affect whether an alien should be permitted to remain in this country. Id.
“Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.” Id. Other “discretionary decisions involve policy choices that bear on this Nation’s international relations,” including whether to return an alien to a foreign state “mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return.” Id. Given the complexity and the myriad factors that
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10-10751 go into the removal decision, it is clear 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.
Farmers Branch expressly singled out those aliens who cannot show or honestly state their lawful residence, and imposed a burden on landlords and realtors that can be avoided by them simply choosing not to deal with Latino people when they have an alternative. This ordinance is surely offensive to immigrants and to our neighbors to the south. My colleagues are completely silent about this.
Congress’s framework for removal provided in the INA and the discretion allowed by that framework show that Congress has occupied the field of alien removal. The Farmers Branch ordinance ignores the practical reality of the federal government’s control of the removal process, however, and simply requires illegal immigrants to remove themselves from the city’s borders. But “[a] decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice.” Id. at 2506–07 (emphasis added).
The Farmers Branch ordinance is but one example of a trend in this country of states and localities attempting to take immigration matters into their own hands. This trend to single out illegal immigrants for adverse treatment is reminiscent of the “anti-Japanese fever” that existed in the 1940s. See Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 422, 68 S. Ct. 1138, 1144 (1948) (Murphy, J., concurring). As so powerfully articulated in Justice
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10-10751 Murphy’s concurrence in Takahashi, “[l]egislation of that type is not entitled to wear the cloak of constitutionality.” Id.
With the support now of the Supreme Court in the Arizona decision, as well as the Eleventh Circuit in Alabama, I repeat what the panel said about the Farmers Branch ordinance: Because the sole purpose and effect of this ordinance is to target the presence of illegal aliens within the city of Farmers Branch 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.
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10-10751
DENNIS, Circuit Judge, joined by REAVLEY, PRADO, and GRAVES, Circuit Judges, specially concurring:
I concur in affirming the district court’s judgment permanently enjoining Farmers Branch Ordinance 2592 because federal law preempts and renders it invalid. Although I agree with many of the reasons Judge Higginson assigns in the lead opinion for reaching the same result, I believe the Ordinance is even more fundamentally flawed than he indicates.1 In my view, the 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.2
1 The lead opinion concludes first that the Ordinance’s criminal offense and judicial review provisions conflict with the mechanisms and purposes of federal immigration law in various respects; and then that the remaining provisions of the Ordinance are not severable from the unconstitutional provisions under applicable principles of Texas law. In my view, the Ordinance’s fundamental defects — its classification of noncitizens based on the concept of “lawful presence” and its purported regulation of the residence and presence of noncitizens based on that classification — are intrinsic to the Ordinance’s structure and run throughout its various provisions, making a severability analysis unnecessary. In any event, however, the City has forfeited and waived any argument as to the applicability or effect of the Ordinance’s severability clause by declining to argue the issue below, see Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 595 (5th Cir. 2007) (“[T]o preserve an argument for appeal, [a] litigant must press [it] . . . before the district court.”), to the original panel, see Sama v. Hannigan, 669 F.3d 585, 589 n.5 (5th Cir. 2012) (“[I]ssues not briefed on appeal are waived.”), or even in its en banc petition or brief, see United States v. Hernandez-Gonzalez, 405 F.3d 260, 262 (5th Cir. 2005) (“Absent extraordinary circumstances, this court will not consider issues raised for the first time in a petition for rehearing.”).
2 I also agree with many of the reasons assigned by Judge Reavley in his separate opinion concurring in the judgment.
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10-10751 I
In Arizona v. United States, 132 S. Ct. 2492 (2012), the Supreme Court reiterated the familiar maxims that a state or local law is preempted under the Supremacy Clause not only where Congress enacts “an express preemption provision” but also where congressional “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,’” id. at 2501 (alteration in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)), or “where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). I believe the Hines Court’s earlier discussion of the overlap and interplay of these related formulations continues to provide useful guidance as to the ultimate practical inquiry under implied preemption doctrine:
There is not — and from the very nature of the problem there cannot be — any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked
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10-10751 formula. Our primary function is to determine whether, under the circumstances of [a] particular case, [the challenged state or local] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Hines, 312 U.S. at 67-68. Like my colleagues who join the lead opinion, as well as the original panel and the district court below, I conclude that the Farmers Branch Ordinance presents such an obstacle to the purposes of federal law, and therefore cannot stand.
II In my view, this case largely is controlled by the longstanding, unremarkable principle that the federal government’s authority to exclude or remove foreign nationals, and to otherwise regulate the residence of noncitizens within the United States, is necessarily exclusive of infringement by state or local legislation. The Supreme Court made this clear more than sixty years ago: The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization. Hines[,] [312 U.S. at 66]. Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United
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10-10751 States or the several states.
Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948). This past year, in Arizona, the Supreme Court reaffirmed that “[t]he
Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona, 132 S. Ct. at 2498 (citing Toll v. Moreno, 458 U.S. 1, 10 (1982)). “This authority rests, in part, on the National Government’s constitutional power to ‘establish an uniform Rule of Naturalization,’ U.S. Const., Art. I, § 8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations.” Id. “Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders,” id. at 2502, and “[p]olicies pertaining to the entry of aliens and their right to remain here are [likewise] entrusted exclusively to Congress,” id. at 2507 (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)).
In exercise of this exclusively national authority, “[f]ederal governance of immigration and alien status is extensive and complex.” Id. at 2499. Of particular relevance here, “Congress has specified which aliens may be removed from the United States and the procedures for doing so.” Id. “A principal feature of the removal system” Congress has enacted “is the broad discretion exercised by immigration officials.” Id. For instance, in “the initiation or prosecution of various stages in the deportation process[,] . . . the Executive has discretion to abandon the endeavor, and . . . [the Executive has] engag[ed] in a regular practice (which ha[s] come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its
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own convenience.” Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 484-85 (1999).3 The Court made clear in Arizona that a state or local law that “violates the principle that the removal process is entrusted to the discretion of the Federal Government” cannot stand. 132 S. Ct. at 2506 (citing Am.-Arab AntiDiscrim. Comm., 525 U.S. at 483-84).
Most pertinent to the present case, the Arizona Court concluded that this comprehensive federal legislative scheme, and the significant discretion it vests in federal immigration authorities, necessarily preempted Arizona legislation that would have allowed “a state officer, ‘without a warrant, [to] arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” Id. at 2505 (final three alterations in original). The Court held that the statute stood as an impermissible obstacle to the design and purposes of the largely discretionary immigration enforcement system Congress created because it could result in “unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed” and ultimately “would allow the State to achieve its own immigration policy.” Id. at 2506. Because such
3 In a notable recent exercise of this prosecutorial discretion, in June 2012 “the Secretary of Homeland Security announced a program” whereby “U.S. immigration officials have been directed to ‘defe[r] action’” as to “some 1.4 million [noncitizen students, high school graduates, veterans, and others] under the age of 30 . . . who came to the United States under the age of sixteen” without authorization and meet certain other criteria. Arizona, 132 S. Ct. at 2521 (Scalia, J., dissenting) (first alteration in original) (quoting Memorandum from Janet Napolitano, Sec’y of Homeland Security, to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Protection; Alejandro Mayorkas, Dir., U.S. Citizenship & Imm. Servs.; and John Morton, Dir., U.S. Imm. & Customs Enforcement, at 1 (June 15, 2012), and citing Julia Preston & John H. Cushman, Jr., Obama to Permit Young Migrants to Remain in U.S., N.Y. Times, June 16, 2012, at A1).
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10-10751 state-to-state variance “is not the system Congress created,” the Court held that the Arizona statute “violates the principle that the removal process is entrusted to the discretion of the Federal Government.” Id.
The Farmers Branch Ordinance likewise “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” see id., by criminalizing the rental of residential property to certain noncitizens and thereby in effect commencing the process of excluding them from a part of “the United States or the several states,” see Takahashi, 334 U.S. at 419; cf. Arizona, 132 S. Ct. at 2521 (Scalia, J., dissenting) (complaining that the federal government’s discretionary “ enforce[ment] [of] immigration laws . . . leaves the States’ borders unprotected against immigrants whom those laws would exclude” (emphasis added)). Moreover, noncitizen renters “could be unnecessar[ily] harass[ed]” and prosecuted under a law like that here, including individuals “whom federal officials determine should not be removed.” See Arizona, 132 S. Ct. at 2506. Underscoring the Ordinance’s fundamental inconsistency with the federal system, federal law specifically requires a noncitizen subjected to removal proceedings to provide federal authorities “with a written record of an address . . . at which the alien may be contacted respecting [the] proceeding.” 8 U.S.C. § 1229(a)(1)(F)(i); cf. Arizona, 132 S. Ct. at 2505 (“As a general rule, it is not a crime for a removable alien to remain present in the United States.”).
The City argues that the Ordinance is consistent with federal immigration law because under the classification and enforcement system envisioned by the Ordinance, City officials making determinations of “lawful presence” are to rely on federal agents’ responses to queries submitted
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10-10751 pursuant to 8 U.S.C. § 1373(c), which directs federal immigration authorities to “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.” However, the Ordinance’s enforcement scheme turns on determinations of whether a noncitizen tenant is or is not “lawfully present in the United States,” a blunt binary classification that is inconsistent with the extensive array of immigration statuses provided under federal law and with the complex, often discretionary processes by which the federal government enforces and adjudicates immigration law. See Arizona, 132 S. Ct. at 2499 (“Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.” (citations omitted)); id. at 2506 (“There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable.”).
In holding that state or local laws that effectively exclude certain noncitizens are inconsistent with the federal government’s exclusive authority to define and determine immigration status and regulate the presence of foreign nationals, the decision this court reaches today accords with the Eleventh Circuit’s post-Arizona decision in United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012), cert. denied, 133 S. Ct. 2022, 2013 WL 210698 (Apr. 29, 2013), which preempted an Alabama statute similar in effect to the Farmers Branch Ordinance. The Alabama law purported to “prohibit[] courts from enforcing or recognizing contracts between a party and an unlawfully present
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10-10751 alien,” including contracts for rental housing. Id. at 1292-93. Noting that “[t]he power to expel aliens has long been recognized as an exclusively federal power,” id. at 1293, the Eleventh Circuit held that the Alabama legislation “conflicts with Congress’s comprehensive statutory framework governing alien removal,” id. at 1294. Much as with the instant Ordinance, in that case, “Alabama ha[d] taken it upon itself to unilaterally determine that any alien unlawfully present in the United States cannot live within the state’s territory, regardless of whether the Executive Branch would exercise its discretion to permit the alien’s presence.” Id. at 1295. As the Eleventh Circuit rightly concluded, “[t]his is not a decision for [a state or city] to make.” See id.4
III In many contexts, of course, our federalist system permits states to “try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). The supremacy of federal law, however, is fundamental to this federalism. Wyeth v. Levine, 555 U.S. 555, 584 (2009). Arizona and other preemption cases teach that the Supremacy Clause will not abide local divergence from necessarily uniform national laws and policies adopted pursuant to the federal government’s constitutional powers. Arizona, 132 S. Ct.
4 Courts considering similar enactments prior to Arizona likewise held them unconstitutional. See Lozano v. City of Hazleton, 620 F.3d 170, 221 (3d Cir. 2010) (holding preempted municipal housing ordinance that would “effectively ‘remove’ persons from [the city] based on a snapshot of their current immigration status, rather than based on a federal order of removal”), vacated on other grounds, 131 S. Ct. 2958 (2011); Cent. Ala. Fair Housing Ctr. v. Magee, 835 F. Supp. 2d 1165, 1183 (M.D. Ala. 2011) (enjoining enforcement of since-amended Alabama law prohibiting “unlawfully present” residents from obtaining or renewing manufactured home permits because the law “runs afoul of federal policy” by “making an impermissible leap from undocumented status to removal”).
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10-10751 at 2502 (“If § 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, diminish[ing] the [Federal Government]’s control over enforcement and detract[ing] from the integrated scheme of regulation created by Congress.” (alterations in original) (internal quotation marks omitted) (quoting Wis. Dep’t of Indus. v. Gould Inc., 475 U.S. 282, 288-89 (1986))); see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 161-63 (1989) (“The prospect of all 50 States establishing similar protections for preferred industries without the rigorous requirements of patentability prescribed by Congress could pose a substantial threat to the patent system’s ability to accomplish its mission of promoting progress in the useful arts. . . . One of the fundamental purposes behind the Patent and Copyright Clauses of the Constitution was to promote national uniformity in the realm of intellectual property. . . . Absent [a uniform] federal rule, each State could afford patent-like protection to particularly favored home industries, effectively insulating them from competition from outside the State.”); Wis. Dep’t of Indus., 475 U.S. at 288-289 (“[I]f Wisconsin’s [law debarring certain repeat violators of the National Labor Relations Act (NLRA)] from doing business with the State is valid, nothing prevents other States from taking similar action against labor law violators. Indeed, at least four other States already have passed legislation disqualifying repeat or continuing offenders of the NLRA from competing for state contracts. Each additional statute incrementally diminishes the [National Labor Relations] Board’s control over enforcement of the NLRA and thus further detracts from the ‘integrated scheme of regulation’ created by Congress.” (footnote omitted)).
Uniformity of national law and policy are essential to this nation’s
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10-10751 classification and treatment of the citizens of other nations. See Arizona, 132 S. Ct. at 2498 (“The [Federal] Government[’s] . . . broad, undoubted power over the subject of immigration and the status of aliens[] . . . rests, in part, on the National Government’s constitutional power to ‘establish an uniform Rule of Naturalization,’ and its inherent power as sovereign to control and conduct relations with foreign nations. . . . 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.” (citations omitted)); see also, e.g., Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir. 2002) (emphasizing the importance of “uniformity of federal law and consistency in enforcement of the immigration laws”). As the Arizona Court explained, “[a] decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice.” 132 S. Ct. at 2506-07 (emphasis added); see also id. at 2507 (“Removal decisions[] . . . implicate [the Nation’s] relations with foreign powers and require consideration of changing political and economic circumstances.” (third alteration in original) (quoting Jama v. Imm. & Customs Enforcement, 543 U.S. 335, 348 (2005))); Renteria-Gonzalez, 322 F.3d at 814 (“[T]he executive branch[] . . . ‘must exercise especially sensitive political functions that implicate foreign relations.’” (quoting INS v. Abudu, 485 U.S. 94, 110 (1988))).
Accordingly, perhaps more than in any other context, “[t]he prospect of all 50 States establishing” laws similar to Farmers Branch’s Ordinance “could pose a substantial threat to th[e]” uniform federal immigration “system’s
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10-10751 ability to accomplish” its various competing and highly sensitive functions. See Bonito Boats, Inc., 489 U.S. at 161. If the Ordinance “were valid, every State could give itself independent authority to” regulate the presence of noncitizens, “diminishing the Federal Government’s control over [immigration] enforcement and detracting from the integrated scheme of regulation created by Congress.” See Arizona, 132 S. Ct. at 2502 (brackets and internal quotation marks omitted). If this law were constitutional, all cities and states could by similar laws seek to withdraw rental housing from vast numbers of noncitizens and, in effect, accomplish their removal from the United States. Much more likely, and equally problematic, is the prospect of a patchwork of “[s]tate . . . immigration polic[ies],” Arizona, 132 S. Ct. at 2506, with some states imposing additional burdens on certain noncitizens based on the states’ own classification and enforcement schemes, see, e.g., Alabama, 691 F.3d at 1292-97. Such an arrangement would be plainly incompatible with the “comprehensive and unified system” of exclusive federal immigration regulations, see Arizona, 132 S. Ct. at 2502, and with “the limitations imposed by the Supremacy Clause,” Wyeth, 555 U.S. at 584.
Because the nation must necessarily speak “with one voice” when pronouncing “whether it is appropriate to allow a foreign national to continue living in the United States,” the Supremacy Clause does not abide local experimentation that deviates from “the system Congress created.” Arizona, 132 S. Ct. at 2506-07.
IV In sum, I conclude that the Ordinance infringes on and conflicts with comprehensive and exclusively federal schemes for classifying noncitizens and
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with enforcing and adjudicating the implications of those federal classifications. It thus stands as an obstacle to the full achievement of the purposes and objectives of uniform federal immigration law. Therefore, I agree that the Ordinance is preempted under the Supremacy Clause.
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No. 10-10751 OWEN, Circuit Judge, concurring and dissenting.
I would hold that only two narrow provisions of the Ordinance1 are preempted by federal law. They are within the judicial review sections of the Ordinance.2 One subsection, (E)(4), and one sentence in subsection (E)(5) are in conflict with federal immigration law. I would sever these provisions and hold that the remainder of the Ordinance is not preempted by federal law.
I I agree with the dissenting opinion authored by JUDGES JONES and ELROD that the Ordinance is not preempted by the Constitution’s broad grant to the federal government of the power to regulate immigration.3 The Ordinance does not determine “who should or should not be admitted into the country” or “the conditions under which a legal entrant my remain.”4 As the Supreme Court explained in De Canas v. Bica,5 it would have been unnecessary, in decisions of the Court that preceded De Canas, “even to discuss the relevant congressional enactments in finding pre-emption of state regulation if all state regulation of aliens was ipso facto regulation of immigration, for the existence vel non of federal regulation is wholly irrelevant
1 City of Farmers Branch, Tex., Ordinance 2952 (Jan. 22, 2008), permanently enjoined by Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835, 859 (N.D. Tex. 2010).
2 Id. § 1 (to be codified at ORDINANCES § 26-79(E)); id. § 3 (to be codified at ORDINANCES § 26-119(E)).
3 See, e.g., De Canas v. Bica, 424 U.S. 351, 354 (1976). 4 Id. at 355. 5 424 U.S. 351 (1976).
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No. 10-10751 if the Constitution of its own force requires pre-emption of such state regulation.”6
As to field preemption, I largely agree with JUDGE HIGGINSON’s specially concurring opinion that there is no field preemption of the Ordinance. Congressional regulation of “‘the nature of the . . . subject matter,’” which in this case is the availability of rental housing to unlawfully present aliens, is not so extensive that it “‘permits no other conclusion’” than preemption.7 Nor has Congress “unmistakably so ordained” such that field preemption is required.8
Other parts of the Ordinance are preempted, if at all, if there is a conflict with federal law either because “‘compliance with both federal and state regulations is a physical impossibility,’” which is not the case here, or the “state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”9 We are admonished by the Supreme Court that “‘[w]hat 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.’”10 We must also be mindful that “[i]n preemption analysis, courts should assume that ‘the historic police powers of the States’ are not superseded ‘unless that was the clear and manifest purpose
6 Id. at 355. 7 Id. at 356 (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963)). 8 Id. (internal quotation marks omitted). 9 Arizona v. United States, 132 S. Ct. 2492, 2501 (2012) (quoting Fla. Lime, 373 U.S. at 142; Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 10 Id. (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000)).
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No. 10-10751 of Congress.’”11 The regulation of leasing and renting real property is within the historic police powers of the States. As noted, however, certain provisions in the judicial review sections in the Ordinance conflict with federal immigration law.
II The Ordinance has provisions in section 1 that apply to leasing or renting single-family housing and virtually identical provisions in section 3 that apply to apartment complex rentals. Section 1 of the Ordinance amended Section 2679 of the Code of Ordinances of the City of Farmers Branch, and section 3 of the Ordinance amended section 26-119. For ease of reference, I refer to both sections 1 and 3 in discussing “the Ordinance,” unless otherwise indicated. I first consider provisions of the Ordinance that create an offense applicable to—or that impose obligations upon—an individual.
A Subsection (B)(1) requires each occupant, prior to occupying leased or rented property, to obtain a residential occupancy license.12 It is an offense, under subsection (C)(1), if a person occupies leased or rental property without first obtaining a valid occupancy license.13 These provisions apply both to
11 Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). 12 City of Farmers Branch, Tex., Ordinance 2952, § 1 (Jan. 22, 2008) (to be codified at CITY OF FARMERS BRANCH, TEX., CODE OF ORDINANCES § 26-79(B)(1) (2011)), permanently enjoined by Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835, 859 (N.D. Tex. 2010); id. § 3 (to be codified at ORDINANCES § 26-119(B)(1)). 13 Id. § 1 (to be codified at ORDINANCES § 26-79(C)(1)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(1)).
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citizens of the United States and to non-citizens. The question is whether these provisions are preempted by federal law to the extent they apply to aliens who are not lawfully present in the United States.
To obtain an occupancy license under the Ordinance, a person must submit an application that contains one of the following:
(1) a statement that applicant is a United States citizen or national; (2) if the applicant is not a citizen or national, a federal government identification number that the applicant believes establishes lawful presence in the United States; or (3) if the applicant does not know of a federal identification number, a declaration that he or she does not know of such a number.14 The Ordinance explicitly provides that a declaration that an applicant “does not know of any such number . . . shall be sufficient to satisfy this
14 See id. § 1 (to be codified at ORDINANCES § 26-79(B)(5)(h),(i)); id. § 3 (to be codified at ORDINANCES § 26-119(B)(5)(h), (i)). Each section provides in pertinent part:
The form shall require the following information: * * *
(h) if the applicant is a United States citizen or national, a signed declaration that the applicant is a United States citizen or national; . . .
-or(i) if the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his or her lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, “A” number, I-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the applicant does not know of any such number, he or she shall so declare. Such a declaration shall be sufficient to satisfy this requirement.
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No. 10-10751 requirement.”15
This means that if a person is unlawfully present in the United States, she may truthfully declare that she does not know of any federal identification number that she believes establishes her lawful presence in the United States. If an application contains such a declaration, the building inspector “shall immediately issue a residential occupancy license.”16 The Ordinance continues in the next sentence: “[t]he building inspector shall not deny a residential occupancy license to any occupant who submits a completed application and pays the application fee,”17 making it unmistakably clear that a declaration that a prospective tenant knows of no federal identification number that establishes lawful presence in the United States is not a bar to receiving an occupancy license. Accordingly, a person unlawfully present in the United States may obtain an occupancy license by truthfully disclosing that she knows of no federal documentation that would permit her lawful presence in this country.
After issuing a license to someone who has not declared herself to be a citizen or national of the United States, the Ordinance directs the building inspector to avail herself of 8 U.S.C. § 1373(c)18 to “verify with the federal
15 Id. § 1 (to be codified at ORDINANCES § 26-79(B)(5)(i)); id. § 3 (to be codified at ORDINANCES § 26-119(B)(5)(i)).
16 Id. § 1 (to be codified at ORDINANCES § 26-79(B)(6)); id. § 3 (to be codified at ORDINANCES § 26-119(B)(6)).
17 Id. 18 8 U.S.C. § 1373(c) provides: (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a
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No. 10-10751 government whether the occupant is an alien lawfully present in the United States.”19 It is only if the federal government reports that the occupant is an alien not “lawfully present” in the United States that there is a consequence to the alien. That consequence is revocation of the occupancy license.20 As a practical matter, this is designed to lead the landlord to evict an unlawfully present alien from the premises because of the provisions of the Ordinance that are aimed at the landlord.21
The appellees characterize the Ordinance as “an alien registration scheme” in an effort to shoehorn it into the Supreme Court’s statement in Arizona v. United States that “the Federal Government has occupied the field of alien registration.”22 The state law found to be field preempted in Arizona penalized as a misdemeanor the “‘willful failure to complete or carry an alien registration document . . . in violation of [8 U.S.C. § 1304(e) or 1306(a)].’”23 The Farmers Branch Ordinance does not penalize the failure to register or to carry documentation. It revokes an occupancy license because of the status of an
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. 19 Ordinance 2952, § 1 (to be codified at ORDINANCES § 26-79(D)(1)); id. § 3 (to be codified at ORDINANCES § 26-119(D)(1)). 20 Id. § 1 (to be codified at ORDINANCES § 26-79(D)(4)); id. § 3 (to be codified at ORDINANCES § 26-119(D)(4)). 21 Id. § 1 (to be codified at ORDINANCES § 26-79(C)(6)-(7)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(6)-(7)). 22 132 S. Ct. 2492, 2502 (2012). 23 Id. at 2501.
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No. 10-10751 alien as unlawfully present in the United States. If the Appellees’ argument were accepted, no state or local government could refuse to grant permits or licenses to someone unlawfully present in the United States. The denial or revocation of a permit would be deemed an “alien registration scheme” simply because it would affect those who could not obtain federal documentation reflecting a lawful right to be present in the United States. The Court’s reasoning in Arizona cannot be stretched this far. To the contrary, the Court’s decision in Arizona supports the conclusion that unless and until Congress comprehensively regulates the housing of aliens, “a State ha[s] authority to pass its own laws on the subject.”24
One of the state laws at issue in Arizona made it a misdemeanor for “‘an unauthorized alien to knowingly apply for work.’”25 The Court made clear that “[w]hen there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own laws on the subject.”26 Citing its decision in De Canas, the Court explained that at a time when “the Federal Government had expressed no more than ‘a peripheral concern with [the] employment of illegal entrants,’” a state could impose “civil penalties on the employment of aliens who were ‘not entitled to lawful residence in the United States.’”27 The current state of the federal law governing the housing of aliens is indistinguishable
24 Id. at 2503. 25 Id. 26 Id. 27 Id.
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No. 10-10751
from the state of the law governing the employment of aliens at the time that De Canas was decided. The federal government has expressed “no more than ‘a peripheral concern’”28 with the availability of housing to aliens.
After De Canas was decided, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA)29 “as a comprehensive framework for ‘combating the employment of illegal aliens.’”30 In Arizona, the Court examined the substance of this enactment, cataloguing the civil penalties imposed under federal law, including removal of the alien, for engaging in unauthorized employment and noting the criminal penalty for obtaining employment through fraudulent means.31 The Court concluded that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.”32 It was only because of the comprehensive nature of the federal scheme and Congress’s intentional decision not to make it a crime for aliens to seek or engage in unauthorized employment33 that the
28 Id. (quoting De Canas v. Bica, 424 U.S. 351, 360 (1976)). 29 Pub. L. No. 99-603, 100 Stat. 3359 (codified in scattered sections of 8 U.S.C.). 30 Arizona v. United States, 132 S. Ct. 2492, 2504 (2012) (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)). 31 Id. 32 Id. 33 Id. at 2505 (“The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose.”); id. (“‘Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the preemptive inference can be drawn—not from federal inaction alone, but from inaction joined with action.’” (quoting P.R. Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988))).
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No. 10-10751 Court concluded that the Arizona statute both conflicted with the method of enforcement of the federal law and stood as “an obstacle to the regulatory system Congress chose.”34
By contrast, Congress has regulated narrowly in the area of aliens obtaining housing, and where it has regulated, its intent and purposes are not inconsistent with, and certainly do not foreclose, local government regulation like the Ordinance. Federal law provides that most, if not all, aliens who are unlawfully present in the United States are not eligible for any State or local public benefit—including public or assisted housing—that is provided by Stateor local-government-appropriated funding, unless a State affirmatively so provides by enacting a state law.35 Federal law also provides, subject to certain narrow exceptions, that the States have authority to limit eligibility of aliens who are lawfully present in the United States for State public benefits, including public or assisted housing.36
Congress has not comprehensively regulated housing for aliens. There is no field preemption. The States remain free to regulate in this area.
B If an applicant for an occupancy license is not a United States citizen or national, she may provide a federal identification number that she believes establishes her lawful presence in the United States.37 Subsection (C)(2)
34 Id. 35 8 U.S.C. § 1621. 36 Id. §§ 1621(c)(1)(B), 1622(a). 37 City of Farmers Branch, Tex., Ordinance 2952, § 1 (Jan. 22, 2008) (to be codified at CITY OF FARMERS BRANCH, TEX., CODE OF ORDINANCES § 26-79(B)(5)(i) (2011)), permanently enjoined
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No. 10-10751 provides that “[i]t shall be an offense for a person to knowingly make a false statement of fact on an application for a residential occupancy license.”38 It is similarly an offense under the Ordinance if a person knowingly makes a false statement that she is or has been a United States citizen or national.39 An offense under the Ordinance is punishable by a fine not to exceed $500.40 No party challenges these sections of the Ordinance.
C The Ordinance also provides in (C)(3) that it is an offense “to create, possess, sell, or distribute a counterfeit residential occupancy license.”41 None of the parties challenges this provision of the Ordinance. It is not preempted by any provision of federal law. It pertains only to local occupancy licenses.
III The Ordinance has various provisions that apply to landlords or lessors, as distinguished from tenants or lessees. A lessor must notify prospective lessees of the occupancy license requirements.42 This provision is not the focus
by Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835, 859 (N.D. Tex. 2010); id. § 3 (to be codified at ORDINANCES § 26-119(B)(5)(i)).
38 Id. § 1 (to be codified at ORDINANCES § 26-79(C)(2)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(2)).
39 Ordinance 2952, § 1 (to be codified at ORDINANCES § 26-79(B)(5)(h), (C)(2)); id. § 3 (to be codified at ORDINANCES § 26-119(B)(5)(h), (C)(2)).
40 Id. § 5. 41 Ordinance 2952, § 1 (to be codified at ORDINANCES § 26-79(C)(3)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(3)). 42 Id. § 1 (to be codified at ORDINANCES § 26-79(B)(3)); id. § 3 (to be codified at ORDINANCES § 26-119(B)(3)).
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No. 10-10751 of the present controversy, and in any event, it does not directly implicate federal immigration regulation. The more contentious provisions of the Ordinance are designed to facilitate the termination of leases to aliens who are unlawfully present in the United States.
It is an offense if a landlord rents to a tenant without obtaining a copy of an occupancy license.43 It is an offense if the terms of the lease agreement fail to specify that occupying the premises without a license is an event of default.44 It is similarly an offense for a lessor to permit someone to occupy the premises without a valid license, although the lessor has a defense if she attempted to terminate the lease.45 Each of these offenses is punishable by a fine of up to $500 each day that a violation occurs or continues.46 If a lessor knowingly permits occupancy without a valid license, the lessor’s rental license will also be suspended.47
None of these provisions are preempted by federal law for the same reasons, discussed above, that the Ordinance’s provisions aimed at tenants or lessees who are unlawfully present in the United States are not preempted. Congress has not comprehensively regulated housing for aliens. The Supreme
43 Id. § 1 (to be codified at ORDINANCES § 26-79(C)(4)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(4)).
44 Id. § 1 (to be codified at ORDINANCES § 26-79(C)(6)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(6)).
45 Id. § 1 (to be codified at ORDINANCES § 26-79(C)(7)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(7)).
46 Id. § 5. 47 Id. § 1 (to be codified at ORDINANCES § 26-79(D)(5)); id. § 3 (to be codified at ORDINANCES § 26-119(D)(5)).
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No. 10-10751 Court’s decision in De Canas controls, unless and until Congress acts in this area.
IV The appellees contend that federal law regarding harboring of unlawfully present aliens48 preempts the Ordinance to the extent that the Ordinance creates an offense for landlords who “knowingly permit an occupant to occupy a single family residence without a valid residential occupancy license” or requires landlords to terminate leases when an unlawfully present alien’s occupancy license has been revoked. However, there is no field preemption regarding housing for unlawful aliens, and therefore, the Ordinance under consideration differs from the state laws found preempted in Arizona.49 The Supreme Court held in Arizona that a state law that “add[ed] a state-law penalty for conduct proscribed by federal law” was preempted, not because states are prohibited from enacting criminal laws that impose different penalties than federal law for the same conduct, but because “the Federal Government has occupied the field of alien registration.”50 There was field preemption. The Supreme Court emphasized that “[w]here Congress occupies an entire field, as it has in the field of alien registration, even complimentary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to
48 8 U.S.C. § 1324. 49 Arizona v. United States, 132 S. Ct. 2492, 2501-03 (2012). 50 Id. at 2502.
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No. 10-10751 federal standards.”51 In such circumstances, “[p]ermitting the State to impose its own penalties for the federal offenses . . . would conflict with the careful framework Congress adopted.”52
I respectfully submit that the Supreme Court unequivocally held in De Canas that the federal harboring laws do not give rise to field preemption. In De Canas, the federal harboring law in existence at the time expressly provided that “‘employment (including the usual and normal practices incidental to employment) shall not be deemed to constitute harboring.’”53 But a California law criminalized knowingly employing an unlawfully present alien if that employment would have an adverse effect on lawful resident workers.54 If the federal harboring statute occupied either the field of harboring aliens or the field of employing aliens, then a state would not have been permitted to legislate at all in these areas,55 and certainly, a state would not be permitted to criminalize conduct that the federal law explicitly said was not an offense. The Supreme Court squarely held that the federal harboring laws did not give rise to field preemption and therefore that the California law was not preempted, even though it was contrary to federal law.56
51 Id. (citing Silkwood v. Kerr McGee Corp., 464 U.S. 238, 249 (1984)). 52 Id. 53 De Canas v. Bica, 424 U.S. 358, 361 (1976) (quoting 8 U.S.C. § 1324(a) (1976) (amended 1986)). 54 Id. at 352. 55 Arizona, 132 S. Ct. at 2502 (“Where Congress occupies an entire field, as it has in the field of alien registration, even complimentary state regulation is impermissible.”). 56 De Canas, 424 U.S. at 360-61.
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No. 10-10751 The contention is made that the Ordinance is conflict preempted because it “‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’”57 with regard to the federal harboring laws. It is true that Congress has expressed its intent that the federal government is to be the exclusive decision maker as to whether someone harboring aliens should be prosecuted. However, the Ordinance is not aimed at that conduct. The Ordinance exacts a penalty for continuing to lease property to a person whom the lessor knows no longer has a valid occupancy license. The lessor commits an offense only after (1) federal authorities have determined, not once but twice, that the occupant of the leased premises is not lawfully present in the United States;58 (2) the occupant and the lessor have been given notice that the resident’s occupancy license will be revoked effective 15 days after the date of the revocation notice;59 and (3) if the lessor thereafter takes no action to terminate the lease.60 Additionally, it is a defense to prosecution if the lessor has diligently pursued steps under applicable law and the lease provisions to terminate the lease.61
57 Arizona, 132 S. Ct. at 2501 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 58 City of Farmers Branch, Tex., Ordinance 2952, § 1 (Jan. 22, 2008) (to be codified at CITY OF FARMERS BRANCH, TEX., CODE OF ORDINANCES § 26-79(D)(2), (4) (2011)), permanently enjoined by Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835, 859 (N.D. Tex. 2010); id. § 3 (to be codified at ORDINANCES § 26-119(D)(2), (4)). 59 Id. § 1 (to be codified at ORDINANCES § 26-79(D)(4)); id. § 3 (to be codified at ORDINANCES § 26-119(D)(4)). 60 Id. § 1 (to be codified at ORDINANCES § 26-79(C)(7)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(7)). 61 Id. § 1 (to be codified at ORDINANCES § 26-79(C)(7)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(7)).
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No. 10-10751 While there is, arguably, limited overlap between the federal offense of harboring an alien and the Ordinance, the elements of the federal and local offenses are quite distinct. So is the “evil” sought to be addressed by the respective laws. The federal harboring statute is aimed at prohibiting the secreting of individuals unlawfully present in the United States. The Ordinance is aimed at terminating lease agreements and doing so only after a lengthy public process in which the federal government has made a determination, twice, that the occupant was unlawfully present.62 The Ordinance requires a local government official to bring the fact of an individual occupant’s potentially unlawfully-present status to the attention of the federal government.63 There is no “secreting” of an alien by the lessor because of the notifications to the federal government required by the Ordinance. It is not knowingly secreting or harboring that is the actus rea of the Ordinance. The actus rea is the failure to terminate a lease once notice has been sent by a local government official that an occupancy license is no longer valid.64 The lessor is not required by the Ordinance to terminate the unlawful alien’s lease unless and until the federal government has twice advised a local government official, pursuant to a federal statute,65 that the occupant is unlawfully present in the
62 See id. § 1 (to be codified at ORDINANCES § 26-79(C)(7), (D)(1)-(5)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(7), (D)(1)-(5)).
63 Id. § 1 (to be codified at ORDINANCES § 26-79(D)(1)); id. § 3 (to be codified at ORDINANCES § 26-119(D)(1)).
64 Id. § 1 (to be codified at ORDINANCES § 26-79(C)(7)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(7)).
65 8 U.S.C. § 1373(c).
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No. 10-10751 United States.66
The Ordinance contemplates that a lessor may gain knowledge that an occupant is unlawfully present in the United States and may nevertheless permit the alien to remain in the leased premises until the local government process is concluded and it is finally determined, within the potentially lengthy processes set forth in the Ordinance, that the alien is unlawfully present.67 The federal harboring statute, by contrast, would arguably be violated once the lessor gains actual knowledge that the alien is unlawfully present and continues to permit the alien to occupy the leased premises.
The Ordinance does not stand as an obstacle to the accomplishment and execution of the full congressional purposes and objectives in enacting the harboring laws. The harboring laws encompass and proscribe conduct that is far broader than the Ordinance. The federal harboring laws and the Ordinance may be enforced simultaneously. Additionally, as noted earlier, federal law provides that most, if not all, aliens who are unlawfully present in the United States are not eligible for any State or local public benefit, including public or assisted housing, that is provided by State- or local-government-appropriated funding unless a State affirmatively so provides by enacting a state law. Federal law even allows States to deny State public-housing benefits to certain aliens who are lawfully present in the United States.68 Requiring private
66 Ordinance 2952, § 1 (to be codified at ORDINANCES § 26-79(D)(2), (4)); id. § 3 (to be codified at ORDINANCES § 26-119(D)(2), (4)).
67 See id. § 1 (to be codified at ORDINANCES § 26-79(C)(7), (D)(1)-(5)); id. § 3 (to be codified at ORDINANCES § 26-119(C)(7), (D)(1)-(5)).
68 8 U.S.C. §§ 1621, 1622.
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No. 10-10751 lessors and landlords to terminate leases when a determination has been made by the federal government that the occupant is unlawfully present in the United States is not in tension with this federally expressed policy.
V The argument is made that if all or a substantial number of states or local governments had laws similar to the Ordinance, then unlawfully present aliens whom the federal government had decided not to deport or remove would be unable to find housing. This, the appellees contend, would interfere with federal decisions about who is entitled to remain in the United States. Alternatively, it is asserted that there is conflict preemption. The field preemption issue is once again resolved by De Canas. The fact that the federal government undeniably has the exclusive power to determine questions of removal and deportation does not give rise to field preemption of all state regulation that touches upon immigration. “The comprehensiveness of the INA scheme for regulation of immigration and naturalization, without more, cannot be said to draw in the employment of illegal aliens as ‘plainly within . . . [that] central aim of federal regulation.’”69 Just as there was no “more” regarding employment of illegal aliens at the time De Canas was decided, there is presently no “more” regarding housing of unlawfully present aliens. For the same reasons that the Ordinance is not conflict preempted by the federal harboring laws, the Ordinance is not conflict preempted by the
69 De Canas v. Bica, 424 U.S. 351, 359 (1976) (quoting San Diego Unions v. Garmon, 359 U.S. 236, 244 (1959)) (alterations in original).
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No. 10-10751 authority of the federal government to determine whether an unlawfully present alien may remain in the United States. There is even less of a potential conflict between the Ordinance and the general grant of immigration authority to the federal government than there is a potential conflict with the harboring laws.
VI JUDGE HIGGINSON’S opinion discusses at some length whether federal authorities would be able to advise the Farmers Branch building inspector if an individual alien was “unlawfully present” in the United States.70 With great respect, this has nothing whatsoever to do with whether the Ordinance is conflict-preempted. If the federal government, in response to an inquiry under 8 U.S.C. § 1373(c), will not or cannot advise the building inspector as to whether an alien is lawfully present, that is the end of the matter. The Ordinance expressly directs that “the building inspector shall take no further action until final verification from the federal government concerning the immigration status of the occupant is received.”71 The Ordinance could not be clearer that the building inspector has no authority to make a determination of whether an occupant is lawfully or unlawfully present: “[t]he building inspector shall not attempt to make an independent determination of any
70 Ante at 14-16. 71 Ordinance 2952, § 1 (to be codified at ORDINANCES § 26-79(D)(3)); id. § 3 (to be codified at ORDINANCES § 26-119(D)(3)).
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No. 10-10751 occupant’s lawful or unlawful presence in the United States.”72
If the federal government responds to the Farmers Branch building inspector that an alien is unlawfully present in the United States, then there is no conflict with any federal law. The only consequence to the alien is the eventual termination of her lease by the lessor or landlord. There is no fine. There is no criminal offense. The lessor or landlord may commit an offense if it takes no steps to terminate the alien’s lease, but for the reasons already considered, that is not in conflict with federal law.
It is highly improbable that under Texas law, a lessor or landlord would be arrested for committing such an offense, since it is unlikely that an offense would occur within plain view of an officer.73 But even were that to occur, a state-law provision allowing arrest of a landlord or lessor is not equivalent to allowing arrest or detention of an alien. The Supreme Court’s decision in Arizona dealt with a state law allowing arrest of an alien.74
VII The judicial review provisions of the Ordinance are problematic to some degree, though I disagree with JUDGE HIGGINSON’S opinion that all of the judicial review section is preempted. Subsection (E)(3) provides that a state court is to determine “whether the occupant is lawfully present in the United
72 Id. § 1 (to be codified at ORDINANCES § 26-79(D)(3)); id. § 3 (to be codified at ORDINANCES § 26-119(D)(3)).
73 See TEX. CODE CRIM. P. art. 14.01, 14.06, 15.17. 74 Arizona v. United States, 132 S. Ct. 2492, 2505 (2012).
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No. 10-10751 States.”75 This section would not conflict with federal law if the determination of the “lawfully present” status was limited to looking to the information provided by the federal government under 8 U.S.C. § 1373(c).
Subsection (E)(4), however, injects considerable uncertainty into the judicial review provisions. It provides that the question of whether an occupant is lawfully present in the United States “shall be determined under federal law.”76 Giving these words their natural construction might mean that a reviewing court is free to make its own determination of whether an alien is “lawfully present” by examining federal immigration law. Clearly, only the federal government may make a determination as to whether to admit, exclude, or remove an alien.77 The next sentence in subsection (E)(4) further clouds the process that is to occur during judicial review. It says, “[i]n answering the question [of whether the occupant is lawfully present in the United States], the court shall be bound by any conclusive determination of immigration status by the federal government.”78 This sentence implies that if there is no conclusive determination of immigration status by the federal
75 Ordinance 2952, § 1 (to be codified at ORDINANCES § 26-79(E)(3)); id. § 3 (to be codified at ORDINANCES § 26-119(E)(3)).
76 Id. § 1 (to be codified at ORDINANCES § 26-79(E)(4)); id. § 3 (to be codified at ORDINANCES § 26-119(E)(4)).
77 See, e.g., Galvan v. Press, 347 U.S. 522, 531 (1954) (“[T]hat the formulation of . . . policies [regarding the entry of aliens and their right to remain here] is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government.”); Truax v. Raich, 239 U.S. 33, 42 (1915) (“The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal government.” (quoting Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893))).
78 Ordinance 2952, § 1 (to be codified at ORDINANCES § 26-79(E)(4)); id. § 3 (to be codified at ORDINANCES § 26-119(E)(4)).
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No. 10-10751 government, then the state court is to determine that status by applying federal law. This would be in direct conflict with the federal immigration scheme, which leaves no room for a determination of immigration status other than through the immigration proceedings set forth under federal law.
Subsection (E)(5) provides that the state court shall take judicial notice of any immigration status previously provided by the federal government and that the state court may, and shall upon request of a party, request the federal government to provide “a new verification of the citizenship or immigration status of the occupant.”79 These provisions do not conflict in any way with federal law. However, subsection (E)(5) then provides that “[t]he most recent determination of the immigration status of an individual by the federal government shall create a rebuttable presumption as to the individual’s immigration status.”80 This leaves room for a state court to substitute its own determination of immigration status, since the federal government’s most recent determination is entitled only to a “rebuttable presumption.”81
I would hold that subsection (E)(4) and the final sentence of subsection (E)(5) are preempted. However, the Ordinance contains a severability clause,82
79 Id. § 1 (to be codified at ORDINANCES § 26-79(E)(5)); id. § 3 (to be codified at ORDINANCES § 26-119(E)(5)).
80 Id. § 1 (to be codified at ORDINANCES § 26-79(E)(5)); id. § 3 (to be codified at ORDINANCES § 26-119(E)(5)).
81 Id. § 1 (to be codified at ORDINANCES § 26-79(E)(5)); id. § 3 (to be codified at ORDINANCES § 26-119(E)(5)).
82 Ordinance 2952, § 6.
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and under Texas law, that clause would doubtless be given effect.83 I agree with the analysis and discussion of severability in the dissenting opinion of JUDGES JONES and ELROD.
* * * I respectfully concur in the court’s judgment in part and dissent in part, as indicated above.
83 See, e.g., Quick v. City of Austin, 7 S.W.3d 109, 115 (Tex. 1998); Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 441 (Tex. 1998).
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No. 10-10751 HIGGINSON, Circuit Judge, specially concurring:
I write separately to make two further observations. First, the plaintiffs contend that the Ordinance is preempted by Congress’s exclusive occupancy of the fields of removal, harboring, and registration. In my view, the Supreme Court’s unanimous decision authored by Justice Brennan in DeCanas v. Bica, 424 U.S. 351 (1976), forecloses this argument. The Ordinance regulates the ability of non-citizens to obtain rental housing, and Congress has not determined that the housing of non-citizens falls within its exclusive authority. See Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1985 (2011) (holding that “[i]mplied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’”) (quoting Gade v. Nat’l Solid Wastes Mgmt. Assn., 505 U.S. 88, 111 (1992) (internal quotation marks omitted)). The Supreme Court in DeCanas held that a California law forbidding employment to certain “alien[s] . . . not entitled to lawful residence in the United States” was not field preempted, because there was no specific indication that Congress “intended to preclude even harmonious state regulation touching on . . . the employment of illegal aliens.” 424 U.S. at 365, 357-58. Ten years later, Congress, seeing the need for “some form of [federal] employer sanctions . . . if illegal migration is to be curtailed,”1 enacted the Immigration Reform and Control Act of 1986 (IRCA), which expressly preempted conflicting state
1 U.S. Immigration Policy and the National Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners 65-66 (1981).
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No. 10-10751 statutes.2 Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359.
Because no such comprehensive federal regulation has emerged, or been identified to us, that governs the housing of non-citizens present in the country contrary to law, I do not perceive that the Supremacy Clause acts as a “complete ouster of state power” in this area. DeCanas, 424 U.S. at 357. We presume that the historic police powers of the States are not “superseded . . . unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009). Until Congress clearly intercedes, as it did with employment, DeCanas suggests that we not interfere with the political process and “oust” state police powers as impliedly preempted. 424 U.S. at 3517 (“[W]e will not presume that Congress, in enacting the [Immigration and Nationality Act], intended to oust state authority to regulate the employment relationship . . . in a manner consistent with pertinent federal laws.”).3
Second, taking more guidance from Arizona, 132 S. Ct. at 2510 (“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”), I would point out
2 IRCA contains a savings clause expressly preempting “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,” but excludes “licensing and similar laws” from the preemption clause. 8 U.S.C. § 1324a(h)(2). Notably, the Supreme Court recently held that an Arizona law allowing state courts to suspend or revoke an employer’s business license if the employer knowingly employed an “unauthorized alien” fell under IRCA’s “licensing” exception and was therefore not preempted by IRCA. Whiting, 131 S. Ct. at 1978.
3 Undoubtedly, there is complexity applying DeCanas to the field of “sub-federal immigration regulation.” See generally Pratheepan Gulasekaram & Rose Cuison Villazor, Sanctuary Policies & Immigration Federalism: A Dialectic Analysis, 55 Wayne L. Rev. 1683, 1707–15 (2009).
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No. 10-10751 that several other constitutional claims, under due process, equal protection, and the Privileges and Immunities and Commerce Clauses, were raised by the plaintiffs below but not reached by the district court. In particular, the Ordinance, inasmuch as it attempts to isolate Farmers Branch from a problem common to other states by burdening other localities with non-citizens illegally in the United States, may be invalid under the dormant Commerce Clause.4 As Justice Cardozo wrote in Baldwin v. G.A.F. Seelig, Inc., “the peoples of the several states must sink or swim together.” 294 U.S. 511, 523 (1935); see also Oregon Waste Sys., Inc. v. Dep’t of Envt’l Quality of the State of Or., 511 U.S. 93 (1994); South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 92 (1984) (“The fact that the state policy . . . appears to be consistent with federal policy – or even that state policy furthers the goals we might believe that Congress had in mind – is an insufficient indicium of congressional intent.”); Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978); Dean Milk Co. v. Madison, 340 U.S. 349, 354 n.4 (1951) (dormant Commerce Clause applies to municipal as well as to state protectionism); Serv. Mach. & Shipbuilding Corp. v. Edwards, 617 F.2d 70, 73-76 (5th Cir. 1980) (“The movement of persons falls within the protection of the commerce clause.”).
For the above reasons, I add this special concurrence to the judgment of the court.
4 The dissent’s endorsement of perceived police power authority to exclude fugitives only highlights the Ordinance’s constitutional dubiety in this regard.
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No. 10-10751
EDITH H. JONES and JENNIFER WALKER ELROD, Circuit Judges, dissenting, joined by JOLLY, SMITH and CLEMENT, Circuit Judges.
Three opinions have been written, each of which holds unconstitutional the City of Farmers Branch Ordinance 2952 (“the Ordinance”), which would establish a licensing regime for the rental of single-family homes and apartments in the City, and thereby seeks to discourage illegal immigrants from residing there. Two of the opinions (Reavley, J. and Dennis, J.) assert essentially that the Ordinance is incompatible with the national government’s exclusive authority to regulate foreign relations and immigration. The third (Higginson, J.) purports to find narrower conflicts between the Ordinance’s “criminal” enforcement and judicial review provisions and federal law prohibiting the “harboring” of illegal aliens, 8 U.S.C. § 1324 (a)(1)(A)(iii), and federal removal procedures, before holding these provisions non-severable from the rest of the Ordinance.
The Ordinance was passed during a period of intense national debate concerning the fate of millions of people present in this country who entered without passing official inspection or who overstayed visas or entry permits. A court does not have the luxury of entering into this debate, nor may we judge the wisdom of a local law. Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802, 826, 831 (5th Cir. 2012) (Elrod, J., dissenting). Our responsibility is to determine whether the Ordinance accords with principles of federalism, the Supremacy Clause, and relevant Supreme Court decisions. We would hold that it does. In an opinion just issued concerning a nearly identical local law, the Eighth Circuit agreed with us. Keller v. City of Fremont, 2013 WL 3242111 (8th Cir. June 28, 2013).

Case: 10-10751 Document: 00512316701 Page: 76 Date Filed: 07/22/2013
No. 10-10751 We first highlight aspects of the Ordinance that have been neglected or mischaracterized in the three opposing opinions. We then address the standards of appellate review, which have also been shortchanged by those opinions. Next, preemption principles are applied to the Ordinance’s licensing provisions. Finally, we analyze the conflict preemption and severability arguments raised by the Higginson opinion. Our conclusions may easily be summarized. The Ordinance represents an exercise of the “police power” inherent in every self-governing community to make laws perceived beneficial to its citizens. It is thus entitled to a presumption of constitutionality according to every recent Supreme Court case dealing with local regulations that touch on the presence of illegal aliens. The Ordinance does not constitute a regulation of immigration and thus is not preempted by the Constitution’s structure. There is no “field preemption” of this Ordinance by federal immigration or foreign relations law. Otherwise, the recent Supreme Court opinions would neither have approved some local regulations bearing on immigrants nor gone to such lengths to explain precise conflicts between those regulations and federal law. See Keller, 2013 WL 3242111, at *3–7. The Ordinance’s licensing and fines provisions do not conflict with federal law. The Ordinance does not conflict with any positive federal law governing the housing of illegal aliens, as no such law exists. The Ordinance does not conflict directly with or serve “as an obstacle” to (a) the federal law against “harboring” illegal aliens, (b) federal procedures for removing illegal aliens from the United States, or (c) other provisions alluded to in the Higginson opinion. See id. at *7–9.
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No. 10-10751 Finally, because the Ordinance’s provisions setting fines and authorizing judicial review are readily severable from its licensing regime, the Higginson opinion’s conclusion of non-severability fails logically and under Texas law. I. The Ordinance The Ordinance is outlined in the Higginson opinion, but several features should be emphasized. The licensing regime applies to all landlords and renters of apartments and single family residences, whether citizens or not. Any applicant for a rental license receives one automatically by either verifying citizenship or legal residence or by asserting he does not know whether he has a relevant federal “number” identifying legal presence.1 FARMERS BRANCH, TEX., ORDINANCE 2952, §§ 1(B)(6), 3(B)(6). For a non-citizen applicant, the city building inspector conducts an inquiry with federal authorities to determine whether the renter is lawfully present in the United States. Id. §§ 1(D)(1), 3(D)(1). The federal government is obliged by law to respond to the inquiry, as it routinely responds to similar inquiries by all manner of local agencies and law enforcement. 8 U.S.C. § 1373(c).2 The building inspector is bound to abide by the response. If the federal government states that the alien is lawfully present, or if the federal government’s records reveal uncertainty about the alien’s status, the applicant retains a license. No further action is taken by the
1 While the application requires potential renters to provide general information such as name, address, date of birth, and country of citizenship, there is no affirmative obligation to declare that one is lawfully present prior to receiving a valid occupancy license. See FARMERS BRANCH, TEX., ORDINANCE 2952, §§ 1(B)(5)(i), 3(B)(5)(i).
2 “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.” 8 U.S.C. § 1373(c).
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No. 10-10751 building inspector until the federal government provides final verification concerning the immigration status of the occupant or requests additional information. ORDINANCE 2952, §§ 1(D)(3), 3(D)(3).
Only if the federal government states that the renter is not lawfully present does the building inspector pursue the inquiry. Id. §§ 1(D)(2), 3(D)(2). The Ordinance then provides the renter and the landlord an additional 60 days to clarify the alien’s status. Id. After the 60th day, if the building inspector remains unsatisfied with the explanation, the inspector may again contact the federal government. The Ordinance allows revocation of the occupancy license only if the federal government again reports that the individual is “an alien who is not lawfully present in the United States.” Id. at §§ 1(D)(4), 3(D)(4).
After this second verification from the federal government that the renter is “not lawfully present in the United States,” the building inspector must send a revocation notice to the renter and lessor. Id. Fifteen days after the revocation notice is issued, the previously valid residential occupancy license is revoked. Id.
After the renter’s residential occupancy license has been revoked, the Ordinance specifies that the landlord commits an offense if it fails to initiate proceedings to terminate the lease. Id. §§ 1(C)(7), 3(C)(7). Any renter who applied for and received a valid residential occupancy license that the building inspector later revokes has not committed any offense, even if the renter
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No. 10-10751 continues to reside in the rental premises after the license is revoked.3 See id. §§ 1(C), 3(C).
A conviction for violating the Ordinance is punishable by a fine not to exceed $500 for each day of an ongoing violation of the Ordinance. Id. § 5.
The Ordinance specifies that it “shall be applied uniformly, and enforcement procedures shall not differ based on a person’s race, ethnicity, religion, or national origin.” Id. §§ 1(D)(9), 3(D)(9).
Judicial review may be sought by any landlord or renter, but not by the City. Id. §§ 1(E), 3(E). The state court is bound by “any conclusive determination of immigration status by the federal government,” and the most recent determination of immigration status by the federal government “shall create a rebuttable presumption as to the individual’s immigration status.” Id. §§ 1(E)(4) & (5), 3(E)(4)(5). Finally, the Ordinance “shall be implemented in a manner fully consistent with federal law regulating immigration and protecting the civil rights of all citizens, nationals, and aliens.” Id. §§ 1(F), 3(F).
To insulate the Ordinance against legal invalidation, there is a severability clause. Id. § 6.
A few obvious facts surrounding the Ordinance should also be noted. It does not apply to the purchase of residences or apartment houses or any other real estate within Farmers Branch. Cf. id. § 1 (regulating single-family rental
3 A renter may, however, commit an offense if he: (1) occupies a leased or rented apartment before obtaining a residential occupancy license, id. §§ 1(C)(1); 3(C)(1); (2) knowingly makes a false statement of fact on a residential occupancy license application, id. §§ 1(C)(2); 3(C)(2); or (3) creates, possesses, sells, or distributes a counterfeit residential occupancy license, id. §§ 1(C)(3); 3(C)(3).
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No. 10-10751 housing); § 3 (regulating apartment complex rentals). It does not apply to illegal aliens who are visitors in rental housing. Id. §§ 1(A)(5), 3(A)(5). It does not apply to hotels, suite-hotel residences, or motels. It does not apply to shelters where illegal aliens do not reside as tenants. It does not affect the hiring or employment of illegal aliens. The Ordinance, therefore, is far from banning illegal aliens from the City of Farmers Branch. The City’s enforcement of the Ordinance in no way affects the federal government’s decision whether to remove any illegal alien, nor does it effect any alien’s removal from the United States.
II. Standards of Review / Relevant Preemption Principles The ultimate issue in this case is whether the district court correctly determined that federal law preempts the Ordinance. The district court’s preemption determination presents “a question of law that we review de novo.” See Franks Inv. Co. LLC v. Union Pac. R.R. Co., 593 F.3d 404, 407 (5th Cir. 2010) (en banc) (citation omitted). That standard, however, is only the beginning of the analytical rules we must apply. The nature of the Appellees’ lawsuit—a facial, prospective challenge—and the character of the Ordinance—a housing regulation that falls within the City’s police power—necessarily affect our analysis. A. Salerno Principle Regarding Facial Challenges That the Appellees waged a facial, prospective challenge to the Ordinance invokes standards of judicial restraint designed to further the interests of federalism and deference to duly passed legislation. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128 S. Ct. 1184, 1191 (2008) (recognizing that facial challenges are generally disfavored
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No. 10-10751
because they “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution”).
Pursuant to United States v. Salerno, the Ordinance should not be held facially unconstitutional in toto unless “no set of circumstances exists under which the Act would be valid.” 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987) (emphasis added); see also Anderson v. Edwards, 514 U.S. 143, 155 n.6, 115 S. Ct. 1291, 1298 n.6 (1995) (applying the Salerno standard in a preemption case); Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 593, 107 S. Ct. 1419, 1431 (1987) (“To defeat Granite Rock’s facial challenge, the Coastal Commission needed merely to identify a possible set of permit conditions not in conflict with federal law.”).4 Under Salerno, if there are any permissible applications of the Ordinance, we should not completely invalidate it on the basis of a facial challenge.
Moreover, concomitant with Salerno, the City should have been given the opportunity to narrow the Ordinance, if needed, during the course of its enforcement activity or in judicial proceedings. DeCanas v. Bica, 424 U.S. 351, 363–64, 96 S. Ct. 933, 940–41 (1976) (explaining that the petitioners conceded part of the California regulation was unconstitutional on its face, but
4 “[S]ome Members of the Court have criticized the Salerno formulation,” Wash. State Grange, 552 U.S. at 449, 128 S. Ct. at 1190 (citation omitted), and the Court has also analyzed facial challenges by asking whether a statute has a “plainly legitimate sweep.” Washington v. Glucksberg, 521 U.S. 702, 739–40 & n.7, 117 S. Ct. 2302, 2304–05 & n.7 (1997) (Stevens, J., concurring in the judgments) (citation omitted). In United States v. Stevens, the Court declined to determine which formulation of the standard is correct. See 130 S. Ct. 1577, 1587 (2010). Although we note this disagreement, the Supreme Court has not overruled the Salerno standard; to the contrary, the Court has continued to recite it. See, e.g., id. Therefore, the Salerno standard remains valid precedent, binding on us in this case.
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No. 10-10751 recognizing that the state could give the provision a limiting construction and therefore leaving it for the state courts to later decide in the first instance whether the provision would conflict with federal law). Unfortunately, the three opposing opinions fail to heed, much less apply, these limits on our review powers. They invalidate the Ordinance without acknowledging its valid application to citizens and legally resident aliens.
B. The Ordinance Is Within the Police Power The Ordinance, correctly viewed, falls within the traditional police power of the City to regulate housing by means of licensing. Historically, the police power extends to whatever measures a polity chooses to enact to protect, preserve, and enhance the lives of its citizens. See Gonzales v. Oregon, 546 U.S. 243, 270, 126 S. Ct. 904, 923 (2006) (describing the police power as legislation related to “the protection of the lives, limbs, health, comfort, and quiet” of the citizenry (quoting Medtronic, Inc. v. Lohr, 518 U.S 470, 475 (1996))). The police power extends so far as to include rent controls; building codes that regulate for the sake of safety or aesthetics; and excluding certain establishments, from liquor stores to topless clubs, from various areas. See, e.g., Pennell v. City of San Jose, 485 U.S. 1, 11–12, 108 S. Ct. 849, 857–58 (1988) (permitting extensive rent and price controls as “legitimate exercise of . . . police powers”). The police power no doubt empowers Farmers Branch to enact a licensing regime to exclude child predators from living in multifamily apartment complexes, and it would enable the City to ban federal or state fugitives from justice from residing in the community. See, e.g., United States v. Morrison, 529 U.S. 598, 618, 120 S. Ct. 1740, 1754 (2000) (“Indeed, we can think of no
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No. 10-10751 better example of the police power . . . than the suppression of violent crime and the vindication of its victims.” (footnote and citations omitted)); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212, 95 S. Ct. 2268, 2274 (1975) (describing city’s “police power to protect children” as “undoubted”); see also Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 843, 107 S. Ct. 3141, 3152 (1987) (“It is also by now commonplace that this Court’s review of the rationality of a State’s exercise of its police power demands only that the State ‘could rationally have decided’ that the measure adopted might achieve the State’s objective.” (quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S. Ct. 715, 725 (1981))). It would seem to follow that the City’s power to deter illegal aliens from renting qualifies as an exercise of the police power, so long as no invidious discrimination occurs.5
Characterizing the Ordinance as not within the incredibly broad reach of the City’s police power, as two of the opposing opinions would do, is a very novel idea, unsupported by any Supreme Court authority. On the contrary, the Supreme Court confirmed that “California’s attempt . . . to prohibit the knowing employment by California employers of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of such police power regulation.” DeCanas, 424 U.S. at 356, 96 S. Ct. at 937 (emphasis added). The same conclusion applies for housing regulations touching illegal aliens.
5 Judge Reavley’s opinion implies invidious discrimination, but such issues were not decided by the trial court and remain pending.
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No. 10-10751 C. Presumption of Constitutionality Because the Ordinance involves the local police power, it is entitled to a strong presumption of constitutionality. This presumption operates generally in federal preemption law. See, e.g., Wyeth v. Levine, 555 U.S. 555, 565 129 S. Ct. 1187, 1194–95 (2009); Altria Group, Inc. v. Good, 555 U.S. 70, 76–77, 129 S. Ct. 538, 543 (2008). It operates specifically in cases where local regulations within the police power are asserted to be preempted by federal immigration law. In DeCanas, the Supreme Court treated a California statute that criminalized the hiring of illegal aliens as a regulation of employment and would not presume that Congress “intended to oust state authority to regulate the employment relationship covered by [the California statute] in a manner consistent with pertinent federal laws.” DeCanas, 424 U.S. at 357, 96 S. Ct. at 938. Likewise, in Arizona v United States, 132 S. Ct. 2492 (2012), the Court held that when conducting preemption analysis, “courts should assume that the historic police powers of the States are not superseded unless that was the clear and manifest purpose of Congress.” Id. at 2501 (internal quotations and citations omitted); see also Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968, 1983 (2011) (declining to preempt state law dealing with a traditional area of state concern); Doe v. Plyler, 628 F.2d 448, 452–53 (5th Cir. 1980), aff’d on other grounds sub nom. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982) (upholding charge of $1000 for education of illegal immigrants’ children in public schools). Unfortunately, none of the three opposing opinions accords the Ordinance this strong presumption, although Judge Higginson refers to it in his separate concurrence.
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No. 10-10751 D. Preemption Rules With these background rules set, the principles of federal preemption may be briefly summarized. The Supremacy Clause holds the Constitution and acts of Congress to be supreme, displacing contrary state or local legislation “where there is an actual conflict between the two sets of legislation such that both cannot stand.” 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 12.1 (4th ed. 2007). In Arizona, the Supreme Court explained that federal law may preempt local law by an express statutory provision; by field preemption, Congress’s placing a field within the “exclusive governance” of federal law; or by conflict preemption when state law actually conflicts with federal law. Arizona, 132 S. Ct. at 2500–01. Regarding field preemption, the Court cautioned in DeCanas: “[f]ederal regulation . . . should not be deemed preemptive of state regulatory power in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.” 424 U.S. at 356, 96 S. Ct. at 937 (alterations in original) (quoting Fla. Lime & Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S. Ct. 1210, 1217 (1963)). Consequently, in Arizona, the Court narrowly defined the field of “alien registration.” 132 S. Ct. at 2502. A local law conflicts with federal law either when compliance with both regulations “is a physical impossibility” or when the local law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 132 S. Ct. at 2501 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404 (1941)).
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No. 10-10751 III. The Ordinance’s Licensing Provisions The Reavley and Dennis opinions express similar grounds for their conclusions that the Ordinance is wholly preempted. The Reavley opinion states: “Whether the Farmers Branch ordinance is preempted as an obstacle to the purposes and objectives of Congress in the field of immigration is a ‘matter of judgment’ informed by the federal scheme and the purpose and effects of the federal statutes as a whole.” Reavley Op. at 2 (citation omitted). The Dennis opinion concludes that “the Ordinance infringes on and conflicts with comprehensive and exclusively federal schemes for classifying noncitizens and with enforcing and adjudicating the implications of those federal classifications,” and “thus stands as an obstacle to the full achievement of the purposes and objectives of uniform federal immigration law.” Dennis Op. at 10–11. The reasoning of the two opinions frequently uses field preemption language, although both also speak of obstacle preemption. Neither opinion identifies any specific conflict between the Ordinance’s licensing provisions and federal law. Both opinions seem open to the interpretation that the primacy of the national interest in enforcing uniform immigration regulations leaves no room whatsoever for “local experimentation that deviates from ‘the system Congress created.’” Dennis Op. at 10 (citing Arizona, 132 S. Ct. at 2506–07). We are thus required to address three separate arguments: (1) the Ordinance is a regulation of immigration wholly outside state or local government powers under the Constitution; (2) the Ordinance is preempted because Congress “occupied the field” of alien housing through its web of regulations governing aliens’ admission and duration of stay in this country; and (3) the Ordinance impliedly conflicts with and stands as an obstacle to the
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No. 10-10751 enforcement of federal immigration laws.6 We address and refute each argument in turn.
A. Constitutional Preemption It is asserted that the Ordinance amounts to a “regulation of immigration” because preventing illegal aliens from renting apartments or single family dwellings in Farmers Branch is tantamount to determining that they may not reside within the United States. If this assertion were accurate, it would be a bold holding. Regulation-of-immigration preemption derives directly from the Constitution, which confers on the federal government the power to conduct foreign relations and to promulgate a “uniform Rule of Naturalization,” U.S. CONST. art. I, § 8, cl. 4, and vests exclusive control over the “authority to control immigration—to admit or exclude aliens— . . . solely in the Federal government.” Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 415, 68 S. Ct. 1138, 1141 (1948). State laws imposing on the federal “authority to control immigration” are a “constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve.” DeCanas, 424 U.S. at 355–56, 96 S. Ct. at 936. Even Congress could not delegate this power to the state or local governments. In DeCanas, however, the Court rejected—in a single paragraph—reasoning similar to that in the Reavley and Dennis opinions. Justice Brennan, writing for a unanimous Court, declared that it “never held that every state enactment which in any way deals with aliens is a regulation
6 The Dennis opinion suggests that the unilateral enforcement policy of the Executive Branch might preempt the Ordinance, a proposition squarely rejected by the Supreme Court in Arizona. See Dennis Op. at note 3 and accompanying text.
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No. 10-10751 of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.” 424 U.S. at 355, 96 S. Ct. at 936 (emphasis added). The Court cited to a string of cases upholding “certain discriminatory state treatment of aliens lawfully within the United States.” Id. Those cases “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 into the country, and the conditions under which a legal entrant may remain.” Id. (emphasis added). The Court rejected the California court’s underlying assumption that a labor regulation targeting illegal aliens was a “regulation of immigration,” explaining that “there would have been no need . . . even to discuss the relevant congressional enactments in finding pre-emption of state regulation if all state regulation of aliens was ipso facto regulation of immigration.” Id. The Court depicted the California law at issue as a labor law “imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country.” Id.
The Reavley and Dennis opinions do not, because they cannot, demonstrate that the Ordinance runs afoul of the test in DeCanas. The Ordinance does not determine the entry or exit of anyone into or out of the United States. It does not determine the conditions under which a “lawful” immigrant may remain. And the Ordinance’s grants or denials of rental licenses are designed to follow and correspond with federal determinations concerning each applicant. This should be the end of the constitutional preemption issue.
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Nevertheless, the Reavley opinion implies that the Ordinance is an immigration regulation because it may force illegal aliens to relocate from certain rental housing in Farmers Branch. This view is inconsistent with authority from the Supreme Court, this court, and the Eighth Circuit in Keller.7 The Court has upheld state statutes that, respectively, criminalized the knowing employment of illegal aliens and effectively forced them to relocate if they wish to be employed. Whiting, 131 S. Ct. at 1973; DeCanas, 424 U.S. at 355–56, 96 S. Ct. at 936–37. This circuit has held that a Texas statute denying free public education to illegal immigrant children was not preempted by federal law. See Plyler, 628 F.2d at 451–54.8 Certainly, excluding one’s children from free public education would be a deterrent to illegal aliens’ remaining in Texas, although it would not affect their residence elsewhere in the country.
To the extent the Reavley and Dennis opinions would hold the Ordinance an invalid “regulation of immigration” because the intent of the local legislators was to reinforce federal alien removal laws, the Supreme Court has rejected their arguments:
7 Keller concluded: “Laws designed to deter, or even prohibit, unlawfully present aliens from residing within a particular locality are not tantamount to immigration laws establishing who may enter or remain in the country.” Keller v. City of Fremont, 2013 WL 3242111, at *5 (8th Cir. June 28, 2013). Further, “[t]he rental provisions do not remove aliens from this country (or even the City), nor do they create a parallel local process to determine an alien’s removability. Accordingly, they do not regulate immigration generally or conduct in the ‘field’ of alien removal.” Id. at *6.
8 In Plyler, this court held the Texas statute not preempted, but found it to violate the equal protection clause. Doe v. Plyler, 628 F.2d 448, 449–50 (5th Cir. 1980). The Supreme Court upheld the latter holding without ruling on the preemption decision, which remains the law of this circuit.
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Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.
Plyler, 457 U.S. at 228 n.23, 102 S. Ct. at 2400 n.23 (emphasis added) (citing
DeCanas, 424 U.S. at 354–56, 96 S. Ct. at 935–36). In disregard of this
language, the Reavley and Dennis opinions would hold that states are
powerless “to deter the influx” because any local law having such a purpose or
effect would be an impermissible regulation of immigration. The ultimate
proof of these opinions’ error is the plain fact that, despite having ruled three
times on preemption issues arising from local laws that affected illegal aliens,
the Court has refused to treat any of them as constitutionally impermissible
regulations of immigration. See generally Arizona, 132 S. Ct. 2492; Whiting, 131 S. Ct. 1968; DeCanas, 424 U.S. 351, 96 S. Ct. 933.9
9 If the parties in DeCanas agreed on anything, it was that both the intent and effect of Section 2805 were to discourage illegal immigration in California. California passed the law, Petitioners explained, “to diminish the impact of the seemingly unstemmable flow of illegal aliens.” Brief of Petitioners at 5, DeCanas v. Bica, 424 U.S. 351, 96 S. Ct. 933 (1976) (No. 74882). In no uncertain terms, “[t]he underlying purpose of [Section] 2805 is a state labor policy designed to protect California wage-earners. It seeks to curtail the influx of illegal entrants” by “focus[ing] directly on the source of the problem, namely the hiring practice of local employers.” Id. at 16. Respondents concurred: “[t]he ultimate objective of [Section 2805] is to expel all ‘aliens not entitled to lawful residence’ from California.” “Section 2805 . . . seeks to control immigration into the State of California . . . by seeking to abolish their employment opportunities.” Brief of Respondents at 6, DeCanas v. Bica, 424 U.S. 351, 96 S. Ct. 933 (1976) (No. 74-882). It is unfathomable that the Supreme Court would uphold the law in DeCanas if the intent and effect of discouraging illegal aliens were sufficient to transform a law into a “regulation of
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No. 10-10751 B. Field Preemption of Licensing Provisions Field preemption differs from preemption by constitutional design because it depends on affirmative Congressional acts to “occupy the field” sought to be regulated. See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 115, 112 S. Ct. 2374, 2392 (1992) (Souter, J., dissenting) (“Field pre-emption is wrought by a manifestation of congressional intent to occupy an entire field . . . .” (citation omitted)). The Reavley and Dennis opinions both refer to field preemption. See Reavley Op. at 8 (“Congress has occupied the field of alien removal.”); Dennis Op. at 8 (“If § 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations . . . .” (quoting Arizona, 132 S. Ct. at 2502)). Their conclusions apparently hinge on the proposition that a municipal law requiring licenses for all renters and revoking them from illegal immigrants is sufficiently analogous to federal “removal procedures,” which are “the sole and exclusive procedure for determining whether an alien may be . . . removed from the United States.” 8 U.S.C. § 1229(a)(3). The premise of this argument is wrong, however, because it conflicts with the Supreme Court’s incontrovertible explanation of the “field” of removal proceedings. “A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States.” Arizona, 132 S. Ct. at 2506. Taken together, DeCanas, Whiting and Arizona demonstrate how narrow the scope of field preemption is regarding local legislation that concerns illegal aliens. DeCanas rejected the contention
immigration.”
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No. 10-10751 that denying illegal aliens employment in California was the same as attempting to “remove” them, despite the practical consequence that lack of employment opportunities is an insuperable barrier to continued presence. See 424 U.S. at 356–63, 96 S. Ct. at 936–40. Whiting represents a corresponding decision not to hold that Congress “occupied the field” vis-a-vis the revocation of state business licenses that would befall Arizona businesses that hired illegal aliens. See 131 S. Ct. at 1977–87.
Finally, in Arizona, at most two provisions of SB 1070 were declared in conflict with a carefully defined “field” within immigration law. 132 S. Ct. at 2501–10. Section 3 of the bill allowed the arrest of aliens not carrying federal identification cards. Id. at 2501. The provision was held to “intrude[] on the field of alien registration,” id., a topic Congress had reserved to itself. See Hines v Davidowitz, 312 U.S. 52, 74, 61 S. Ct. 399, 408 (1941). Separate state enforcement of federal registration rules could “frustrate federal policies” by allowing criminal charges against individuals for federal violations where the officials “in charge of the comprehensive scheme” of registration determined no prosecution should occur. Arizona, 132 S. Ct. at 2503. Like § 3, another provision of the Arizona law—§ 6—enabled local law enforcement to effect a warrantless arrest “if the officer has probable cause” to believe the arrestee has committed an offense rendering him “removable from the United States.” Id. at 2505. Whether the Court held § 6 field or conflict preempted is somewhat unclear. Assuming that the Court’s ruling was based on field preemption, its concern was local government overlap with the “field” of alien removal from this country; the provision “violate[d] the principle that the removal process is entrusted” to federal discretion. Id. at 2506. Thus, it “attempt[ed] to provide
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No. 10-10751 state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers.” Id.
Arizona is consistent with DeCanas and Whiting while distinguishable from this case. Although the Court held at most two sections field-preempted, another—§ 2(B)—was provisionally upheld, id. at 2507–10, and a fourth—§ 5(C)—was overturned on conflict preemption alone. Id. at 2503–05. As in previous cases, the Court was cautious in using the broad proscription of local authority that inheres in field preemption. Moreover, § 3 and § 6 of Arizona SB 1070 were intended to employ local law enforcement not for purposes of enforcing a local ordinance, but solely to assist federal officers in removing illegal aliens from this country. The Ordinance has no similar intent or mechanism. It is not field preempted.
C. Conflict Preemption of Licensing Provisions Conflict preemption may arise from a specific legislative command, from the impossibility of compliance with both federal and local law, or from the local law’s obstruction of the means and purposes of federal regulation. See Arizona, 132 S. Ct. at 2500–01. The Reavley and Dennis opinions rely on “obstacle” preemption, as they must. That is because Congress has passed no expressly preemptive provision concerning illegal alien housing, and no federal law affirmatively regulates where aliens who are illegally present in the United States may live.10 Consequently, neither express nor impossibility preemption is at issue here. These opinions instead focus broadly on the Ordinance’s
10 The scope of the proscription on “harboring” illegal aliens will be considered in the next section.
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No. 10-10751 alleged conflict with federal alien removal procedures, the complexity of alien classifications, and the considerable discretion entrusted by law to federal immigration officials. Although both opinions cite Arizona extensively, neither one mentions Whiting, in which the Supreme Court only two years ago held that an Arizona law requiring employers to verify their employees’ lawful immigration status does not pose an obstacle to the enforcement of federal immigration policy. Whiting, 131 S. Ct. at 1985–87. This case should be controlled by the Whiting implied preemption analysis.
Setting the stage for our conclusion are several facts about the Ordinance that the Reavley and Dennis opinions minimize. First, the Ordinance does not effect or affect illegal aliens’ removal by deportation or otherwise from the United States. Second, the Ordinance is not a parallel enforcement scheme to assist the federal government in initiating or completing formal detention or removal proceedings. Rather, it is a licensing law that governs a subset of property owners and prospective tenants in Farmers Branch. Although illegal aliens’ rental licenses may be revoked, the Ordinance contains no device by which a local government official may remit the alien to federal custody or attempt to compel the federal government to act against the alien for removal purposes. Third, enforcement of the Ordinance depends solely on two federal affirmations, rendered at least sixty days apart, that an alien is not lawfully present in the United States. The building inspector may not independently decide a renter’s lawful status.
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Furthermore, the federal government is required by law to respond to the City’s inquiries. 8 U.S.C. § 1373(c). One, but not necessarily the only,11 system that the City may use is the federal Systematic Alien Verification for Entitlements (“SAVE”) System. If the federal government renders an opinion that the alien is lawfully present or that his status is unresolved in some way, the rental license may not be revoked. The Ordinance thus overcompensates, rather than undercompensates, for the possibility that a renter is unlawfully present but not removable. Certainly it is not facially inconsistent with federal status determinations.
In Whiting, the Supreme Court upheld an Arizona law requiring employers to verify the immigration status of their employees and revoking the employers’ business licenses for willful violations. The Supreme Court disposed of the contention that insofar as they concerned alien employment, the Arizona regulations intruded on a “uniquely federal area[] of regulation” by “upset[ting] the balance” Congress struck when it passed (post-DeCanas) specific legislation concerning alien employment. Whiting, 131 S. Ct. at 1983, 1986–87 (Roberts, C.J., controlling opinion).12 The Court found no inherent conflict between
11 The government as amicus in this case explains that the Department of Homeland Security has established several programs tailored to particular types of inquiries pursuant to § 1373.
12 The implied preemption analysis received only four votes, as Justice Thomas joined the rest of the opinion and concurred in the judgment. Whiting, 131 S. Ct. at 1973. Justice Thomas has previously expressed disagreement with implied preemption jurisprudence more generally. See, e.g., Wyeth v. Levine, 555 U.S. at 583, 129 S. Ct. at 1205 (Thomas, J., concurring in the judgment) (“I write separately, however, because I cannot join the majority’s implicit endorsement of far-reaching implied pre-emption doctrines. In particular, I have become increasingly skeptical of this Court’s ‘purposes and objectives’ pre-emption jurisprudence. Under this approach, the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that
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No. 10-10751 federal and state law because the Arizona law was merely “[r]egulating in-state businesses through licensing laws.” Id. at 1983. Similarly, the Ordinance here regulates local businesses through licensing laws. The Court also rejected the claim that the federal E-Verify system that employers use would not yield reliable answers concerning an alien’s work authorization:
The federal determination on which the State must rely is provided under 8 U.S.C. § 1373(c). That provision requires the Federal Government to “verify or ascertain” an individual’s “citizenship or immigration status” in response to a state request. Justice BREYER is concerned that this information “says nothing about work authorization.” Justice SOTOMAYOR shares that concern. But if a § 1373(c) inquiry reveals that someone is a United States citizen, that certainly answers the question whether that individual is authorized to work. The same would be true if the response to a § 1373(c) query disclosed that the individual was a lawful permanent resident alien or, on the other hand, had been ordered removed. In any event, if the information provided under § 1373(c) does not confirm that an employee is an unauthorized alien, then the State cannot prove its case.
Id. at 1982 (emphasis added) (internal citations omitted). The dispositive answer to the concern about the Ordinance’s wrongful
revocation of rental licenses and alleged inconsistency with federal determinations is that the building inspector “cannot prove his case” if a federal inquiry does not conclusively establish that the renter is “not lawfully
are not embodied within the text of federal law. Because implied pre-emption doctrines that wander far from the statutory text are inconsistent with the Constitution, I concur only in the judgment.”).
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No. 10-10751 present.”13
Judge Reavley’s opinion also implies an infirmity in the Ordinance’s potential imposition of fines on illegal aliens for violating the licensing requirements. This implication is derived from the Supreme Court’s invalidation of § 5(C) of Arizona S.B. 1070, which criminalized illegal workers’ attempts to find employment. Arizona, 132 S. Ct. at 2503. The Court found a clear conflict between Arizona’s law and the federal Immigration Reform and Control Act (“IRCA”), which imposed various sanctions only on employers of illegal aliens. Id. at 2503–05. Further, the Arizona opinion shows that the legislative background of IRCA was critical to the Court’s decision. Id. at 2504. That legislative history demonstrated “that Congress made a deliberate choice not to impose criminal penalties on aliens” for seeking employment. Id. Because the Court viewed IRCA as containing Congress’s “considered judgment that making criminals out of aliens engaged in unauthorized work . . . would be inconsistent with federal policy and objectives,” id., the state’s conflicting
13 A red-herring variant of this conflict preemption argument is that the Ordinance’s use of the term “alien unlawfully present in the United States” is either inconsistent with federal law or impossible to define. The district court rejected this argument, Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F. Supp. 2d 835 (N.D. Tex. 2010), and so do we. The term “lawfully present” is used in a number of federal statutes. See, e.g., 8 U.S.C. §§ 1229a(c)(2); 1357(g)(10); 1182(a)(9)(B)(i)(II); 1621(d); 1623; 42 U.S.C. §§ 1436(a)(3); 1436(a)(5); 1437y; 4605; 26 U.S.C. § 3304; 7 U.S.C. § 2015(f); see also Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119 (2010), at §§ 1411(c)(2)(B)(ii)(II); 1402(e)(2); 1411(c)(2)(B)(i)(1). Clearly, this term, used in federal laws ranging from (a) the provision of immigrant status information to local government entities to (b) the status determinations themselves to (c) the denial of various federal benefits and qualification for the newly enacted Affordable Care Act, must have a federal meaning. See also 27 C.F.R.§ 478.11, (defining “alien unlawfully in the United States”). The Ordinance uses this common federal term rather than a potentially confusing or conflicting local definition for the illegal aliens that it seeks to exclude from possessing rental licenses.
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No. 10-10751 method of enforcement must be an “obstacle to the regulatory system Congress chose.” Id. at 2505. Judge Reavley consequently opines that “criminalizing” illegal aliens’ choice of housing similarly conflicts with Congress’s designated alien removal procedures.
This complaint is at too high a level of generality: Any local licensing regulation touching the immigrant status—for instance, the refusal to issue drivers’ licenses—could be said to conflict cosmically with the goals of federal immigration law. More concretely, this view overlooks the preface to this part of the Arizona discussion, which acknowledged that, in DeCanas, the Court had approved “State . . . authority to pass its own laws on the subject” “[w]hen there was no comprehensive federal program regulating the employment of unauthorized aliens.” Id. at 2503. No extant federal law regulates the housing of illegal aliens. There is thus no evidence of a deliberate congressional choice on the subject; if anything, we ought to infer congressional ambivalence from the fact that Congress passed no law concerning either “sanctuary cities” or, at the opposite pole, cities that have attempted to discourage influxes of illegal aliens.
The Court’s approach in DeCanas is more compelling here than Judge Reavley’s, for DeCanas recognized that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” 424 U.S. at 356, 96 S. Ct. at 937. At the time of that decision, the federal government “had expressed no more than ‘a peripheral concern with [the] employment of illegal entrants.’” Arizona, 132 S. Ct. at 2503 (quoting DeCanas, 424 U.S. at 360, 96 S. Ct. at 939) (alteration in original). Relevant to this case, the federal government has expressed no more than a
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No. 10-10751 peripheral concern with aliens’ housing choices.
But Whiting stands as the most obdurate obstacle to the Reavley and Dennis opinions insofar as they assert conflict preemption of the Ordinance. Whiting held that “[r]egulating in-state businesses through licensing laws” that prohibited the knowing employment of illegal aliens, using means within the state’s police power, stands as no obstacle to the enforcement of federal immigration law, even to federal law dealing with employers of illegal aliens.14 131 S. Ct. at 1983. The Court found that the mechanics of the Arizona law were enacted to correspond with federal determinations of alien status. Id. at 1981–83. Thus, the state’s definition of “unauthorized alien” as an alien “not lawfully admitted for permanent residence,” or not otherwise authorized to be employed, adopted the federal definition. Id. at 1981. State investigators were not allowed independently to determine unauthorized status but were bound by the federal government’s determinations resulting from information furnished under 8 U.S.C. § 1373(c). Id. As a result, the Court held, “there can by definition be no conflict between state and federal law as to worker authorization, either at the investigatory or adjudicatory stage.” Id.
Rejecting general contentions that conflict preemption was required to maintain the “balance” Congress struck in enacting certain federal restrictions on illegal alien employment, the Court found inapplicable the cases that involved “uniquely federal areas of regulation,” because “[r]egulating in-state businesses through licensing laws has never been considered such an area of
14 The existence of a federal savings provision for state “licensing” laws furnished an analytical part, but not the whole or decisive reasoning, why the Court held the Arizona licensing regulation not to be conflict-preempted. See generally Whiting, 131 S. Ct. 1968.
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No. 10-10751 dominant federal concern.” Id. at 1983. Finally, as it noted, “[l]icensing suspension and revocation are significant sanctions. But they are typical attributes of a licensing regime.” Id.
We need not repeat the undisputed facts in the instant case to reinforce the analogy between the Ordinance and the Arizona law upheld in Whiting.
IV. Conflict Preemption of Criminal Provisions The Higginson opinion turns principally on the view that fines can be levied on violators of the Ordinance. The potential criminal penalty for violations is a fine not to exceed $500, which qualifies it as a Texas Class C misdemeanor. Judge Higginson correctly notes that law enforcement officers may “arrest” and “detain” violators for such misdemeanor offenses, but this is rather overstated; Class C misdemeanors are not punishable by imprisonment and are typified by motor vehicle violation citations. Judge Higginson’s conclusion that the Ordinance is conflict preempted largely rests upon two theories: (1) the Ordinance “interfer[es] with federal anti-harboring law,” 8 U.S.C. § 1324(a)(A)(iii), and (2) the Ordinance “allow[s] state officers to ‘hold[] aliens in custody for possible unlawful presence without federal direction and supervision.’” Higginson Op. at 7. Moreover, because his opinion holds a severability clause ineffective to divorce the licensing provisions from the potential fines, the Higginson opinion would overturn the Ordinance in toto. While expressing an allegedly narrow rationale for decision, the Higginson opinion’s impact is as broad as that of the Reavley and Dennis opinions. We disagree with the Higginson opinion’s interpretation of the Ordinance, with its conflict preemption analysis, and with its non-severability ruling. If the Higginson opinion fails on any one of these elements, the
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No. 10-10751 Ordinance must be upheld. We discuss each of these elements in turn.
A. Possible Criminal Offenses under the Ordinance Carefully examined, the Ordinance does not “criminalize” illegal aliens’ presence in Farmers Branch, nor does it expose lessors to a duplicate penalty for “harboring” illegal aliens. The Higginson opinion misreads the actions that constitute offenses under the Ordinance. 1. Impact of Ordinance on Renters Judge Higginson’s conclusion that law officers will be able to hold aliens in custody for possible unlawful presence is inaccurate under the plain terms of the Ordinance. Also, because the Ordinance does not penalize a tenant if he continues to reside in a Farmers Branch rental after his residential occupancy license is revoked, there is no basis to conclude that the federal anti-harboring statute conflict-preempts the Ordinance as applied to renters. A renter (i.e., an individual who is possibly “not lawfully present”) can violate the Ordinance in only three ways: (1) by occupying a leased or rented apartment before obtaining
a valid occupancy license;15
(2) by “knowingly mak[ing] a false statement of fact on an application for a residential occupancy license,” ORDINANCE 2952, §§ 1(C)(2), 3(C)(2); or
(3) by “creat[ing], possess[ing], sell[ing], or distribut[ing] a counterfeit residential occupancy license.” Id. §§ 1(C)(3),
15 See ORDINANCE 2952, §§ 1(C)(1), 3(C)(1) (“It shall be an offense for a person to be an occupant of a leased or rented apartment without first obtaining a valid occupancy license permitting the person to occupy that apartment.” (emphasis added)); Id. §§ 1(B)(1), 3(B)(1) (“Prior to occupying any leased or rented apartment, each occupant must obtain a residential occupancy license.” (emphasis added)).
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3(C)(3).

No. 10-10751

In none of these three circumstances is the renter’s lawful or unlawful immigration status relevant to potential fines. Instead, the Ordinance penalizes renters only in the first circumstance, when they fail to apply for a residential occupancy license.16 Even if a renter is “not lawfully present,” he automatically receives a residential occupancy license when he applies for one and, therefore, does not commit an offense. Id. §§ 1(B)(6), 3(B)(6).
Critically, the Ordinance does not impose criminal liability on any renter after the renter applies for an occupancy license.17 This is because the Ordinance does not penalize a renter for continuing to occupy rental housing after the City revokes a residential occupancy license.18 Rather, if a license is

16 If a renter does not apply for a residential occupancy license, the City is never prompted to determine whether the renter is unlawfully present in the United States. In this circumstance, if the City fines the renter (i.e., imposes criminal liability) for the lack of a valid occupancy license, then the fine is solely for the failure to obtain a license—the renter’s lawful or unlawful status is both unknown and completely irrelevant.
17 Of course, to the extent a renter makes a false statement of fact on his application, such as providing a false name, the renter may later be deemed to have committed an offense. See ORDINANCE 2952 §§ 1(C)(2), 3(C)(2).
18 Judge Higginson contends that the Ordinance penalizes an “ongoing condition” and, therefore, a tenant commits an offense at any time he is an occupant without a valid occupancy license. Higginson Op. 12 n.10. While he suggests that our reading of the Ordinance is “strained,” his construction of the Ordinance would read the words “first obtaining” out of the Ordinance. Specifically, Judge Higginson’s reading would be accurate if the Ordinance read: “It shall be an offense for a person to be an occupant of a leased or rented apartment without first obtaining a valid occupancy license permitting the person to occupy that apartment.” §§ 1(C)(1) & 3(C)(1) (alteration added). Construing the Ordinance in this manner, however, renders the words “first obtaining” superfluous. See, e.g., Duncan v. Walker, 533 U.S. 167, 174, 121 S. Ct. 2120, 2125 (2001) (“[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” (internal quotation marks omitted)).
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No. 10-10751
revoked, the Ordinance makes only the lessor’s conduct an offense. In sum, at no time will the City—after determining that an individual is “not lawfully present”—be able to “arrest,” “detain,” or “fine” the renter.
2. Impact of Ordinance on Lessors Judge Higginson also contends that the Ordinance is conflict-preempted because “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, the Ordinance ‘interfere[s] with the careful balance struck by Congress’ with respect to the harboring of non-citizens here contrary to law.” Higginson Op. at 11 (quoting Arizona, 132 S. Ct. at 2505). Indeed, lessors who violate the Ordinance may be subject to fines for conduct that is not criminalized under 8 U.S.C. § 1324. On its face, then, the Ordinance does not overlap with the federal anti-harboring crime or retard the federal government’s exclusive prosecutorial discretion.19
19 The Eleventh Circuit recently concluded that an Alabama statute that criminalized “harboring an unlawfully present alien by entering into a rental agreement with that alien” was conflict-preempted by § 1324. United States v. Alabama, 691 F.3d 1269, 1285 (11th Cir. 2012), cert. denied 569 U.S. ___ (2013) (No. 12-884). Alabama did not seek review of the Eleventh Circuit’s ruling on the rental provision. See Petition for Writ of Certiorari, Alabama, 569 U.S. ___ (No. 12-884), at 10.
It is inappropriate to apply the logic of Alabama to this case for two reasons. First, even if one believes that the state cannot prohibit the exact conduct as the federal government so long as immigration is involved, an anti-harboring statute is about the “harborer,” not the illegal alien. It is not a regulation of immigration except indirectly in that it forecloses an illegal means that could assist illegal aliens in staying in the United States. This is quite different from the legal discretion of the government to allow some illegal aliens to remain in the United States. Second, although the Eleventh Circuit concluded that the Alabama statute was conflictpreempted by § 1324, it acknowledged that the rental provision did not penalize the same conduct as § 1324. Alabama, 691 F.3d at 1285, 1288. Instead, it concluded that the rental provision was problematic because it “effectuates an untenable expansion of the federal
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No. 10-10751 To elaborate, lessors in Farmers Branch are potentially criminally liable under the Ordinance if: (1) they lease to individuals who never apply for or obtain a residential occupancy license; or (2) they continue to lease to individuals whose residential occupancy license has been revoked because they are “not lawfully present.” There is other potential liability relating to a lessor’s administrative duties under the Ordinance, such as maintaining a copy of the residential occupancy license of each known occupant of their properties. None of these violations would subject the lessor to criminal liability under § 1324. First, a “prosecution” under the Ordinance for leasing to an individual who never applies for nor obtains a residential occupancy license would not rely, in any way, on the immigration status of the renter. Liability would be based solely on a failure to comply with the Ordinance’s licensing requirements. In contrast, a prosecution under § 1324 would necessarily focus on the immigration status of the renter and whether the other three elements of a § 1324 violation could be established.20 The Higginson opinion charges that focusing on the licensing regime (rather than the immigration status of the individuals) is a “distinction without a difference.” Higginson Op. at 18 n.15.
harboring provision.” Id. While we disagree with the Eleventh Circuit’s conclusion that a state law is conflict-preempted merely because it criminalizes conduct that federal law does not, as discussed infra, we similarly find that the Ordinance does not penalize the same conduct as § 1324.
20 The four elements of a harboring violation are defined as: (1) an unlawfully present alien; (2) that the defendant conceals, harbors, or shelters; (3) while knowing or recklessly disregarding that the alien in unlawfully present; and (4) in a way that substantially facilitates the alien remaining in the United States. United States v. Shum, 496 F.3d 390, 391–92 (5th Cir. 2007).
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No. 10-10751
This characterization does not withstand closer scrutiny because the elements of the respective “crimes” evince no conflict.21
Second, a prosecution under the Ordinance for continuing to lease to an illegal alien whose residential occupancy license has been revoked could not trigger a federal anti-harboring prosecution. This violation could occur only after the renter completes an application. The application process requires a renter to provide his name and the address where he plans to reside. Therefore, even if the lessor continued to lease to the renter after the renter’s license was revoked, it would be impossible to establish that the lessor was “hiding” the illegal alien from detection as is required for an anti-harboring conviction. See United States v. Varkonyi, 645 F.2d 453, 459 (5th Cir. 1981) (interpreting the statutory phrase “harbor, shield, or conceal” to imply that “something is being hidden from detection”). Instead, it would be public knowledge where the “not lawfully present” alien was residing.
As we have shown, the Ordinance does not provide for “arrest,” “detention,” or “prosecution” of illegal aliens, nor does it create the local
21 The Odebrecht case relied on by the Higginson opinion is inapposite. Odebrecht Const., Inc. v. Sec., Fl. Dept. of Transp., 715 F.3d 1268 (11th Cir. 2013). Odebrecht held that Florida’s recent statute (the “Cuba Amendment”) preventing companies that do business with Cuba from bidding on state public contracts was conflict-preempted by federal law concerning trade with Cuba. The court described at length the extensive, exact, and “nuanced” federal statutes and explicit delegations of Presidential power in this sensitive area of foreign relations. Id. at 1275–78. The court juxtaposed the Florida statute’s explicitly broader definitions that revealed an “obvious, direct and apparent conflict between” federal and state law. Id. at 1280. Unlike Odebrecht, the Higginson opinion can point to only one federal criminal statute, the antiharboring crime, that has anything to do with the “housing” of illegal aliens; there is simply no other direct federal immigration law or policy on this subject. And as we have shown, there are no obvious and direct conflicts with this single statute. For this reason, the Higginson opinion’s reliance on Crosby v. Foreign Trade Council, 530 U.S. 363, 120 S.Ct. 2288 (2000) (overturning a Massachusetts statute preventing trade with Burma), is also misplaced.
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No. 10-10751 equivalent of anti-harboring criminal offense. Without criminal prosecution as its pivot, the Higginson conflict analysis fails. Moreover, if there is doubt about the scope of the Ordinance’s criminal provisions, the Salerno principle shields the provisions from facial unconstitutionality, and elementary principles of judicial restraint would afford the state courts the first opportunity at construing the Ordinance.22
B. Flawed Conflict-Preemption Analysis But even if we accept, counter-factually, Judge Higginson’s characterization of the Ordinance, his conflict-preemption analysis is seriously flawed. On the most general level, the Higginson opinion embodies the troubling concept that a federal criminal statute, standing alone, can preempt local police power regulations. The fact that the federal government has chosen to criminalize the behavior of harboring illegal aliens does not indicate Congress’s intent to prevent local authorities from legislating within their traditional spheres of concern. That Congress, for instance, has enacted criminal laws prohibiting certain sales and transfers of firearms has no implied preemptive impact on states’ regulation of firearms. That Congress enacted a federal crime of bank robbery does not prevent localities from applying local zoning laws to banks or prosecuting for embezzlement or robbery victimizing the bank. Dual sovereignty in our federal system envisions precisely the possibility of such
22 In DeCanas, the Court remanded for further consideration of such issues as whether the state law defined unauthorized aliens in conflict with federal law. The Court held that California courts should decide in the first instance whether and to what extent the state law, enforced with appropriate regulations, might conflict with federal laws. DeCanas, 424 U.S. at 364–65, 96 S. Ct. at 940–41. The Higginson opinion displays no such deference.
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No. 10-10751 overlapping regulations. Certainly, when both the states and federal government choose to regulate similar activity, there will be occasions when a local enforcement officer pursues a case that federal agents let go, and vice versa. But courts do not normally call this phenomenon “conflict preemption.” Instead, we call it “federalism.”
For implied conflict preemption to occur, a direct conflict with federal objectives must be shown. The Supreme Court has emphasized that “[i]mplied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’; such an endeavor ‘would undercut the principle that it is Congress rather than the courts that preempts state law.’” Whiting, 131 S. Ct. at 1985 (Roberts, C.J., controlling opinion) (quoting Gade, 505 U.S. at 111, 112 S. Ct. at 2390 (Kennedy, J., concurring in part and concurring in judgment)). Despite the Higginson opinion’s attempt, the conflict between the Ordinance and the federal crime of harboring illegal aliens is illusory.
In several ways, the rationale of the Higginson opinion was rejected by the Supreme Court in DeCanas, a case that arose when the California Labor Code was amended to prohibit the knowing employment of illegal aliens. The statute imposed a potential fine on employers between $200 and $500 for each offense. Among many arguments for preemption, the statute’s challengers asserted a conflict with the federal anti-harboring crime, which at that time expressly exempted from felony status “employment (including the usual and normal practices incident to employment).” DeCanas, 424 U.S. at 360, 96 S. Ct. at 939. Despite the exculpatory proviso, the Court declared this “at best evidence of a peripheral concern with employment of illegal entrants.” Id.
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No. 10-10751 The Court “admonished that ‘due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the (federal regulation).’” Id. at 360–61, 96 S. Ct. at 939 (quoting San Diego Bldg. Trades Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236, 243, 79 S. Ct. 773, 779 (1959)). In a footnote, the Court repeated:
Accordingly, neither the proviso to 8 U.S.C. § 1324(a) nor Congress’ failure to enact general laws criminalizing knowing employment of illegal aliens justifies an inference of congressional intent to pre-empt all state regulation in the employment area. Indeed, Congress’ failure to enact such general sanctions reinforces the inference that may be drawn from other congressional action that Congress believes this problem does not yet require uniform national rules and is appropriately addressed by the States as a local matter.
Id. at 361 n.9, 96 S. Ct. at 939 n.9. The analogy with the holding of DeCanas is straightforward. The federal
anti-harboring crime exhibits at best a peripheral concern with rental housing for illegal aliens, while housing regulations are within the core powers of local government. Just as the Court in DeCanas could not infer Congressional intent to prevent state regulation from the existence of one federal criminal statute and the paucity of other federal law governing alien employment, we should not infer an intent to proscribe local housing regulations where no other evidence
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No. 10-10751 of federal statutory concern exists.23 That DeCanas was a field preemption case and Judge Higginson asserts conflict preemption in this case is of no moment. For conflict preemption to exist, there must be a direct conflict with or impairment of the criminal anti-harboring statute. The analogy to DeCanas emphasizes the utter absence of a core relation, and thus the absence of the necessary conflict, between the federal crime and the Ordinance.
Moreover, contrary to the methodology of the Higginson opinion, DeCanas does not treat the California Labor Code provision as a “criminal” statute despite its enforcement by fines. The prohibition involved “state authority to regulate the employment relationship.” Id. at 357, 96 S. Ct. at 937. The Court also described California’s law as “fashioned to remedy local problems, and operat[ing] only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country.” Id. at 363, 96 S. Ct. at 940. Critically, the Higginson opinion succeeds only if it correctly classifies the Ordinance as an attempt to “arrest,” “detain,” and “prosecute” illegal aliens. But that is not the way DeCanas approached the issue, even though the California statute was passed with the intent to deter illegal aliens from working, and gaining the wherewithal to
23 Judge Higginson claims 8 U.S.C. § 1229(a)(1)(F)(i)—requiring aliens to have an address at which to receive removal paperwork—is evidence that the Ordinance “obstructs the goal of bringing potentially removable non-citizens to the attention of the federal authorities.” This conclusion does not logically flow from the § 1229(a)(1)(F)(i) requirement. Setting aside the fact that the address does not have to be housing owned or rented by the alien in question, once an alien is subject to removal proceedings, the federal authorities are obviously aware of the alien’s presence. Moreover, aliens who are unlawfully present but are not yet the subject of removal proceedings have no requirement to provide an address to the Attorney General. It is odd to suggest that the Ordinance—which potentially alerts the federal government to the presence of unlawfully present aliens that are not the subject of removal proceedings, see ORDINANCE 2952 §§ 1(B)(7), 3(B)(7)—somehow obstructs the federal removal power. Higginson Op. at 9–10.
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No. 10-10751 reside, in the state.
In departing from the commonsense DeCanas analysis, the Higginson opinion’s approach fundamentally mischaracterizes the Ordinance. It is a licensing-based regulatory program, just as the licensing of drivers is a regulatory program to foster, inter alia, road safety and vehicle insurance. No one characterizes drivers’ license regulations as principally “criminal” even though anyone, including an illegal alien, may be arrested, detained, and cited for a Class C misdemeanor for having no license or producing a license to which he is not entitled. No one characterizes local zoning regulations as “criminal” because fines may be imposed, if, for instance, a landlord knowingly rents a dwelling that fails to meet minimum habitability standards. All regulatory regimes must have enforcement mechanisms, but their object is to secure voluntary compliance. No doubt, Farmers Branch hopes that if it is finally permitted to enforce the Ordinance, landlords and renters will generally comply, and most illegal aliens will avoid obtaining rental licenses and make other housing choices. Penalties are the last, and usually a rare, step in enforcement and must not be the tail wagging the dog for preemption purposes.
But even if the Ordinance’s enforcement provisions should be highlighted for purposes of conflict preemption analysis, they do not impinge on federal enforcement of immigration law, as the Higginson opinion contends. First, because the federal harboring statute has only limited, if any, preemptive power against a local licensing regime, the fact that landlords must submit to the regulation or be liable for a fine involves no inherent conflict with the crime of “harboring.” Indeed, compliance is consistent with the intent of the anti-harboring statute to prevent concealment and shielding of illegal aliens
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No. 10-10751 from federal attention. Cf. United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 n.5 (5th Cir. 1982) (“Congress intended to broadly proscribe any knowing or willful conduct fairly within any of these terms [(conceal, harbor, or shield)] that tends to substantially facilitate an alien’s remaining in the United States illegally.” (emphasis added)); United States v. Chon, 713 F.3d 812, 819 (5th Cir. 2013) (per curiam) (“Chon’s contention that he simply did not prevent illegal aliens from renting a room at the Gateway Hotel is belied by his [active] facilitation of their presence and his willingness to allow alien smugglers to rent rooms on behalf of groups of illegal aliens.”).
Second, the “arrest,” “detention,” and “prosecution” functions of local officers who may enforce the Ordinance do not collide with federal decisions regarding “removal” of illegal aliens. As has been explained, violators of the Ordinance may be detained only until they post bond for their fines.24 They are not “removed” or subjected to potential removal from the United States, or even from Farmers Branch. This limited enforcement authority plays no role in the process whereby the federal government detains and exercises discretion in deciding whom to remove from the United States. Enforcing the Ordinance is thus quite different from the Arizona S.B. 1070 provision that, if upheld by the Supreme Court, would have authorized local law enforcement to arrest and detain persons suspected of being deportable solely to assist and encourage the federal removal efforts. The Court found preemption, holding that the enforcement of the immigration laws has been assigned by Congress to
24 We note again our disagreement with Judge Higginson’s suggestion that an individual may be detained under the Ordinance for being “unlawfully present.” Even if this flawed reading is accepted, it is not fatal to the Ordinance.
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No. 10-10751 comprehensive federal regulation. Arizona, 132 S. Ct. at 2502. The Ordinance, in contrast, claims no impingement on determinations of who may remain in or be detained for deportation from this country.
The Higginson opinion also criticizes the Ordinance because the federal anti-harboring crime penalizes only the individual who harbors the illegal alien, while under his interpretation of the Ordinance, the alien may be penalized as well. The opinion seeks support from the Supreme Court’s rejection in Arizona of § 5(C) of S.B. 1070 that crafted a criminal sanction (up to $2500 fine and six months imprisonment) for an alien illegally seeking employment. The Court conducted a thorough analysis of this provision in the context of recent federal laws that regulate, to some degree, the employment of illegal aliens. In finding conflict preemption, the lynchpin of the Court’s reasoning was that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek” employment. Id. at 2504. No similar argument can be made that Congress intended the anti-harboring statute to preempt local housing regulations or that Congress deliberately excluded aliens from the scope of its non-existent regulations. We cannot properly infer Congressional intent from silence. The Higginson opinion further asserts that the Ordinance “impermissibly allows for local officers to arrest and detain non-citizens based on a classification [“unlawful presence”] that does not exist in federal law.” Relying on generalities about immigration classifications and discretionary determinations, the opinion implies that rogue local officials will inflict “criminal” sanctions on aliens who might in fact be authorized to be in the United States. Like the Reavley and Dennis opinions, however, this fear simply overlooks the facts. The building inspector has no authority to decide
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immigration status independently. He must defer to the binding result of inquiries to federal officials, made on two occasions, at least sixty days apart, that a particular tenant licensee is not lawfully present in the United States. The building inspector’s inquiries are no different from those made by hundreds of local governments daily to the federal government to ascertain immigrants’ status and qualifications for benefits ranging from housing assistance to student loans to medical care and disability income. It is the federal government’s duty to get the answers right, not the building inspector’s uninformed prerogative to guess. Further, the term “unlawful presence” must have some meaning to the federal government, as that term, or closely related terminology, frequently appears in federal statutes and regulations. See supra note 13.25 The Eighth Circuit pithily rejected this contention: “It seems obvious that, if the federal government will be unable to definitively report that an alien is ‘unlawfully present,’ then the rental provisions are simply ineffectual. Plaintiffs and the United States do not explain why a local law is conflictpreempted when the federal government has complete power to avoid the conflict.” Keller, 2013 WL 3242111, at *8.
Finally, the Higginson opinion declares that the Ordinance allows state
25 There is also rich irony in the Higginson opinion’s assertion that “unlawful presence” is too vague to allow enforcement of the Ordinance consistent with federal immigration law. If this were true, it would be hard to see how the federal government could prosecute violations of the federal anti-harboring felony statute. The anti-harboring crime, as earlier noted, applies if a defendant knowingly, or with reckless disregard, harbors or conceals an alien who is “in the United States in violation of law.” If a building inspector cannot rely on two inquiries of the federal government for a determination of “unlawful presence,” how could the federal government prove beyond a reasonable doubt that a harborer knew or recklessly disregarded aliens’ status as immigration law violators? Just as no one seriously asserts the vagueness of the anti-harboring felony, so should the assertions of vagueness in the Ordinance’s “unlawful presence” determination fail.
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No. 10-10751 officers to “hold[] aliens in custody for possible unlawful presence without federal direction and supervision.” Higginson Op. at 7 (citing Arizona, 132 S. Ct. at 2509). If this were true, the Ordinance would fail under the reasoning of Arizona in regard to § 5(C) of S.B. 1070. But it is untrue, and significantly so. The illegal alien who might be held in “custody” if he attempted to rent in Farmers Branch without a license or who falsified the information used to get a license could be held in custody for one violation, and one alone: violating the Ordinance. He could only be held long enough to have a citation issued and to secure a bond for the potential fine. This is comparable to the alien’s being held, until he procures a bond for the fine, because he does not furnish a proper driver’s license. If local detention is improper in these circumstances without “federal direction and supervision,” then illegal aliens would receive functional immunity from valid regulatory ordinances that citizens do not possess.
For all these reasons, even if the Ordinance’s criminal provisions are interpreted according to the Higginson opinion, they are not an obstacle to the enforcement of the anti-harboring crime or federal immigration removal decisions.
C. Severability of the “Criminal” Provisions The Higginson opinion asserts that the Ordinance “lacks functional coherence without its criminal offense and penalty provisions . . .,” and accordingly, the opinion disregards the Ordinance’s strong severability clause. The primary rationale in the Higginson opinion’s discussion is the incorrect assumption that the Ordinance’s provisions are so “interdependent” as not to be severable under Texas law. Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex.
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1990). As we have noted, the non-severability determination is a sine qua non
of the Higginson opinion. Unless the “criminal” provisions are non-severable,
the Ordinance cannot be overturned in full. The opinion’s non-severability
analysis fails, however, because it depends on the misreading and mischaracterization of the Ordinance at the heart of the Higginson opinion.26
Severability raises a question of Texas law. The Texas Supreme Court
has explained the test for severability as follows:
When, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, dependent on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are
26 Judge Dennis asserts that we should not consider the Ordinance’s severability clause because the City failed to raise it throughout these proceedings. As a factual matter, Judge Dennis is incorrect. The City’s en banc brief observed that the Ordinance contains a severability clause and described its impact on our review. See Appellant’s En Banc Br. at 13. Waiver is also inappropriate here because the impact of the severance clause is a pure question of law. As such, it falls within the “well-settled discretionary exception to the waiver rule [that] exists where a disputed issue concerns ‘a pure question of law.’” New Orleans Depot Servs., Inc. v. Dir., Office of Worker’s Comp. Programs, ___ F.3d ___, 2013 WL 1798608, at *2 (5th Cir. Apr. 19, 2013) (en banc) (quoting Texas v. United States, 730 F.2d 339, 358 n.35 (5th Cir. 1984)).
More importantly, applying our waiver doctrine where the text of the Ordinance itself includes the severance language at issue is deeply problematic. We must give effect to every word of a statute, regardless of whether a litigant draws our attention to the applicability of a particular statutory provision. See, e.g., Lowe v. SEC, 472 U.S. 181, 207 n.53, 105 S. Ct. 2557, 2572 n.53 (1985) (“[W]e must give effect to every word that [the legislature] used in the statute.”); United States v. Menasche, 348 U.S. 528, 538–39, 75 S. Ct. 513, 520 (1955) (“It is our duty to give effect, if possible, to every clause and word of a statute.” (internal quotation omitted)).
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No. 10-10751 essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must stand. Id. (quoting W. Union Tel. Co. v. State, 62 Tex. 630, 634 (1884)). Texas law is consistent that “[i]n the construction of statutes, if it can be lawfully done, it is the duty of the court to construe a statute so as to render it valid.” Id. (quoting Sharber v. Florence, 115 S.W.2d 604, 606 (Tex. 1938)). When confronted with a statute that is unconstitutional in part, Texas courts routinely delete the portion of the statute that renders it unconstitutional, leaving the remaining aspects of the statute, so long as the remaining statute is “capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected.” Id.; see, e.g., Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 441 (Tex. 1998) (“The unconstitutionality of one part of a statute does not require us to invalidate the entire statute unless the unconstitutional provision is not separable from the remainder.”); Quick v. City of Austin, 7 S.W.3d 109, 117 (Tex. 1998) (“If a reviewing court were to determine that one portion of a water control ordinance was invalid, the court would therefore be required to ‘modify’ the ordinance to delete the invalid portion if the remainder of the ordinance was complete in itself and capable of being executed in accordance with the apparent legislative intent.”). The Ordinance states: The terms and provisions of this ordinance are severable and are governed by Section 1-12 of the Code of Ordinances, City of Farmers Branch, Texas, as amended. If the application of this
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No. 10-10751 ordinance to any person, entity, or circumstance is invalid, the invalidity does not affect other applications of the ordinance that can be given effect without the invalid application, since the same would have been enacted by the City Council without regard to any such invalid application.
ORDINANCE 2952, § 6. The severability clause here states that if an application of the Ordinance
“to any person, entity, or circumstance” is invalid, the invalidity does not affect any other application “that can be given effect without the invalid application.” Not only that, but by incorporating a reference to the City’s general ordinance governing severability, Section 1-12, the Ordinance manifests a clear intent that even general City regulations should not be allowed to undermine its effectiveness. The severability clause emphasizes the City Council’s determined attempt to maintain whatever part of the Ordinance is valid.
Contrary to the Higginson opinion, the Ordinance’s primary purpose is to effectuate licensing of apartment and single family rentals under the supervision of the building inspector. The requirements pertinent to obtaining and maintaining residential occupancy licenses are carefully spelled out. The “Offenses” that constitute violations of the Ordinance are, first and foremost, grounds for civil enforcement by the building inspector, who can suspend a landlord’s rental license and prevent rent collection during the suspension period based on the violations. Id. §§ 1(D)(5)-(8), 3(D)(5)-(8). The building inspector may also revoke a residential occupancy license, forcing the renter’s removal from the premises. Id. §§ 1(D)(4), 3(D)(4). These are effective, stand-alone enforcement measures. Although the City might find criminal enforcement measures desirable, they are not necessary to assure substantial
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local compliance. Licenses could still be revoked, under a regulatory regime, without bringing criminal prosecutions to bear.27 Put in terms of Texas severability law, the invalidity of any Class C misdemeanor measure does not prevent the building inspector from carrying out his duties, providing licenses, making “unlawful status”inquiries to the federal government, and shutting down the leasing of single-family dwellings or apartments to non-compliant renters.
No other functional analysis of the Ordinance makes sense. By analogy, if driving without a license were judicially disapproved as a Class C misdemeanor offense, Texas could still require drivers to qualify for and carry licenses, on penalty of civil suspension for violations. As a further analogy, a court could judicially excise criminal environmental violation penalties, but withholding licenses to store or dispose of regulated substances would remain an effective sanction. Regarding the Farmers Branch licensing scheme as unworkable without its criminal enforcement provisions, in sum, views the Ordinance through the wrong end of the telescope. Texas’s strong policy favoring severability compels severability, if this court finds the “criminal” enforcement provisions constitutionally infirm.
27 That the Ordinance is a complete regulatory scheme absent its criminal provisions can be seen through the language of the statute. The inspector’s suspension action is not premised on a formal “criminal” charge, prosecution, or conviction—even though, as Judge Higginson points out, the suspension is “premised on the landlord having committed an offense.” Higginson Op. at 24. For example, it may be an “offense” for a child to commit a truancy violation, but the child need not be “prosecuted” before school authorities can impose other, lesser penalties on the misconduct. As far as the Higginson opinion is concerned, if all you have is the hammer of criminal law, then every problem is a (criminal) nail. Like most regulatory programs, however, the Ordinance offers both civil and criminal enforcement procedures, and they are not interdependent.
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No. 10-10751 D. Judicial-Review Provision We agree with Judge Higginson in one respect: federal law preempts the aspect of the judicial review section that “allows state courts to assess the legality of a non-citizen’s presence absent a ‘preclusive’ federal determination.” Higginson Op. at 20. The judicial review portion of the Ordinance, as enacted, allows a state court to review whether the occupant is lawfully present, while giving the federal determination “a rebuttable presumption as to the individual’s immigration status” and making conclusive only those federal determinations that “would be given preclusive effect on the question.” §§ 1(E)(4) & (5), 3(E)(4) & (5). Authorizing state courts to revisit federal determinations of immigration status opens the door for conflicting state-federal rulings on an immigrant’s lawful status. This creates an obstacle to Congress’s setting out “the sole and exclusive procedure” for determining whether an alien may be admitted or removed from the United States. 8 U.S.C. § 1229a(a)(3). Therefore, the specific provisions of the judicial review section that authorize state courts to revisit federal determinations of immigration status are conflict preempted by federal law. We disagree, however, with Judge Higginson’s conclusion that the preempted aspects of the judicial review section are not severable. Based on the Texas authorities cited in the preceding Section, we must determine whether the Ordinance—without the portion of the judicial review section that allows state courts to revisit federal determinations of immigration status—is “complete in itself, and capable of being executed in accordance with the apparent legislative intent.” Rose, 801 S.W.2d at 844. Here, because the Ordinance contains a severability clause, the legislative
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intent to sever the unconstitutional portion of the Ordinance is clear. The only question is whether the remaining Ordinance is “complete in itself.”
To resolve this question, we must consider how the Ordinance will operate without the preempted portions of the judicial review section. After deleting the conflict-preempted portions, the judicial review section of the Ordinance, in relevant part, provides:
(4) In a suit for judicial review in which the question of whether the occupant is lawfully present in the United States is to be decided, that question shall be determined under federal law. In answering the question, the court shall be bound by any conclusive determination of immigration status by the federal government. A determination is conclusive if, under federal law, it would be given preclusive effect on the question. (5) The court shall take judicial notice of any verification of the citizenship or immigration status of the occupant previously provided by the federal government. The court may, at the request of any party shall, request the federal government to provide, in automated, documentary, or testimonial form, a new verification of the citizenship or immigration status of the occupant pursuant to Title 8, United States Code, Section 1373(c). The most recent determination of the immigration status of an individual by the federal government shall create a rebuttable presumption as to the individual’s immigration status. ORDINANCE 2952, §§ 1(E), § 3(E) (alterations added). The remaining part of the Ordinance’s judicial review section provides that a state court is bound by the determination of immigration status by the federal government. Pursuant to the terms of the Ordinance, judicial review of “the question of whether the occupant is lawfully present in the United States” occurs only if a landlord or occupant has received a deficiency or revocation notice. Id. Such notices are issued only after the “federal government reports the status of the occupant as
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an alien not lawfully present in the United States.” Id. §§ 1(D), 3(D). Accordingly, any time judicial-review proceedings are initiated, the existing federal determination will bind the state court and it will be unable to make an independent determination of an individual’s immigration status.28 Without the conflict-preempted language, the Ordinance confines the state judicial inquiry to the federal determination, so there is no conflict between state and federal law as to whether an occupant is “lawfully present.” See Whiting, 131 S. Ct. at 1981. Again—and contra Judge Higginson’s contentions—if there is no conclusive determination from the federal government on the question, no license will be revoked.
Because the preempted portions of the judicial review section can be removed from the Ordinance without impairing any other aspect of the Ordinance, including the ability to seek judicial review of a deficiency or removal notice, the Ordinance remains “complete in itself, capable of execution in accord with the legislature’s intent.” Rose, 801 S.W.2d at 844. Therefore, the preempted portions of the judicial review section can be severed, leaving a valid law.
V. Conclusion This case presents a narrow legal issue: whether federal law preempts
28 The only additional evidence that would be allowed under the terms of the Ordinance is a new verification of citizenship or immigration status from the federal government. See ORDINANCE 2952, §§ 1(E)(5), 3(E)(5). The state court may request the new verification on its own motion, and the state court is required to request a new verification at the request of any party. Id. This ability to seek a new verification of the occupant’s citizenship or immigration status—which enables the tenant to confirm the existing federal determination—does not place the Ordinance in conflict with federal law. See Whiting, 131 S. Ct. at 1981 n.7 (“Giving an employer the chance to show that it did not break the state law certainly does not place the Arizona regime in conflict with federal law.”).
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the Ordinance. The answer under well-established law is straight-forward: it does not. The three opposing opinions reach a different conclusion based on (1) a failure to afford the Ordinance (as a local housing regulation within the police power) the presumptive constitutionality that it deserves; (2) broad and unsupported constructions of Supreme Court precedent, (3) misconceptions about how the Ordinance operates, and (4) contrived conflicts between the Ordinance and federal law. Furthermore, even if one accepts the Higginson opinion’s conflict-preemption analysis, that opinion falters in its final step because the judicial review and criminal enforcement provisions are severable under Texas law. For these reasons, we respectfully dissent.
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 NOT IN EFFECT

CITY OF FARMERS BRANCH ORDINANCE NO. 2952

AN ORDINANCE PROVIDING FOR RESIDENTIA

L

OCCUPANCY LICENSES; PROVIDING FOR VERIF ICATION OF

ALIENS’ IMMIGRATION ST ATUS WITH THE FEDERAL

GOVERNMENT CONSISTENT WITH FEDERAL LAW;

CREATING OFFENSES; PRO VIDING FOR ENFORCEMENT;

PROVIDING FOR JUDICI AL REVIEW; PROVIDING A

PENALTY; PROVIDING A SEVE RABILITY CLAUSE; AND

PROVIDING AN EFFECTIVE DATE.

WHEREAS, federal law prescribes certain conditions (found principally in T itle 8, United States Code, Sections 1101, et seq.), that must be met before an alien may be lawfully present in the United States; and

WHEREAS, aliens not lawf ully present in the United Sta tes, as de termined by federal law, do not m eet such conditions as a matter of law when presen t in the City of Farmers Branch; and

WHEREAS, pursuant to Title 8, United States Code Sections 1621, et seq., certain aliens not lawfully present in the United States are not eligible for certain State or local public benefits, including licenses; and

WHEREAS, Title 8, United States Code, Section 1324(a)(1)(A), proh ibits the harboring of aliens not lawfu lly present in the U nited States, including, as the courts of the United States have held, the provision of residential acc ommodations to such aliens; and

WHEREAS, the City of Farm ers Branch is authorized to adopt ordinances pursuant to its police power to protect the heath, safety, and welfare of its citizens; and

WHEREAS, the City of Far mers Branch is authorized to adopt regulations touching on aliens that are consistent with pertinent federal laws; and

WHEREAS, it is the in tent of the City of Farmers Branch to enac t regulations that are harmonious with federal immigration law and which aid in its enforcement; and

WHEREAS, it is not the intent of the City of Farm ers Branch to alter, supplant, disrupt, or interfere with federal immigration law; and

WHEREAS, the provisions of this ordinance sh all be applied uniformly and in a nondiscriminatory manner, and the application of these provisions m ust not differ based on a person’s race, religion, or national origin; and
WHEREAS, the City of Farmers Branch has co mplied with all prerequisites for the passage of this Ordinance; and
WHEREAS, the meeting at which this Ordi nance was adopted was properly posted in accordance with the Open Meetings Act, and this Ordi nance was considered and approved in an open m eeting of th e City Council with oppor tunity for public comment regarding its terms and provisions; and
WHEREAS, the purposes of this O rdinance are to prom ote the public health, safety, and general welfare,
NOW, THEREFORE, BE IT ORDAI NED BY THE CITY COUNCIL OF THE CITY OF FARMERS BRANCH, TEXAS:
Section 1: Chapter 26, Businesses, Article III, Single-Family Rental Housing, of the Code of Ordinances, City of Farmers Branch, Texas, is hereby amended by adding the following as Section 26-79:
“Section 26-79. Citizenship or Immigration Status Verification
(A) Definitions
The following terms and phrases, when used in this section, shall have the meanings ascribed to them in this s ection, and shall be construed so as to be consistent with state and federa l law, in cluding federal immigration law:
(1) “Alien” means any person not a citizen or national of the United States, as set forth in Title 8, United States Code, Section 1101(3), as amended.
(2) “Lessor” means a person who leases or rents a single family residence as or on behalf of a landlord.
(3) “Occupant” means a person, age 18 or older, who resides at a single family residence. A temporary guest of an occupant is not an occupant for the purposes of this section.
(B) Residential Occupancy Licenses
(1) Prior to occupying any leased or rented single-family residence, each occupant must obtain a residential occupancy license.

(2) It is the occupant’s responsibility to submit an occupancy license application to the building inspector, pay a fee of $5 to the City, and obtain a residential occupancy license. If there are multiple occupants seeking to occupy a single rental unit, each occupant must obtain his or her own residential occupancy license. Multiple applicants for occupancy of the same single family residence may designate one of their number as their agent to submit the required application forms, provided that each individual applicant signs his or her own application form. The building inspector may establish a procedure whereby an applicant (or designated agent) may submit the application form(s), signed by the applicant(s), via facsimile or website portal.

(3)

The lessor shall notify each prospective tenant of the requirements

of paragraph (B)(2) of this section.

(4) A residential occupancy license is valid only for as long as the occupant continues to occupy the single family residence for which the license was issued. Any relocation to a different leased or rented dwelling unit requires a new residential occupancy license.
(5) An application for a residential occupancy license shall be made on a form furnished by the building inspector for such purpose. The form shall require the following information:
(a) full legal name of the occupant;
(b) mailing address of the occupant;
(c) address of the single family residence for which the occupant is applying, if different from the mailing address;
(d) name and business address of the lessor;
(e) date of lease or rental commencement;
(f) date of birth of the occupant;
(g) the occupant’s country of citizenship;
(h) if the applicant is a United States citizen or national, a signed declaration that the applicant is a United States citizen or national; the form shall state that it is a crime under Title 18, United States Code, Section 1015(e), for a person to knowingly make any false statement or claim that he or she is, or at any time has been, a citizen or national of the United

States, with the intent to obtain on behalf of himself or herself, or any other person, any Federal or State benefit or service;
-or-
(i) if the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his or her lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, “A” number, I-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the applicant does not know of any such number, he or she shall so declare. Such a declaration shall be sufficient to satisfy this requirement.
(6) Upon receipt of the completed application and the payment of the application fee as set forth above, the building inspector shall immediately issue a residential occupancy license. The building inspector shall not deny a residential occupancy license to any occupant who submits a completed application and pays the application fee.
(7) The information provided on an application may be disclosed to the federal government according to paragraph (D) of this section, pursuant to Title 8, United States Code, Section 1373.
(C) Offenses
(1) It shall be an offense for a person to be an occupant of a leased or rented single family residence without first obtaining a valid occupancy license permitting the person to occupy that single family residence.
(2) It shall be an offense for a person to knowingly make a false statement of fact on an application for a residential occupancy license.
(3) It shall be an offense for a person to create, possess, sell, or distribute a counterfeit residential occupancy license.
(4) It shall be an offense for a lessor to lease or rent a single family residence without obtaining and retaining a copy of the residential occupancy license of any and all known occupants.
(5) It shall be an offense for a landlord to fail to maintain at the landlord’s residence or regular place of business a copy of the residential occupancy license of each known occupant of a leased or rented single-family residence, or to fail to make such copy available for inspection by the Building Inspector during regular business hours.

(6) It shall be an offense for a lessor to lease a single family residence without including in the terms of the lease a provision stating that occupancy of the premises by a person, age 18 or older, who does not hold a valid residential occupancy license constitutes an event of default under the lease.
(7) It shall be an offense for a landlord or any agent of a landlord with authority to initiate proceedings to terminate a lease or tenancy to knowingly permit an occupant to occupy a single family residence without a valid residential occupancy license. It is a defense to a prosecution under this paragraph that the landlord or agent has commenced and diligently pursued such steps as may be required under the applicable law and lease provisions to terminate the lease or tenancy.
(D) Enforcement
The building inspector shall enforce the requirements of this section as follows.
(1) Promptly after issuance of a residential occupancy license to any occupant who has not declared himself or herself to be either a citizen or a national of the United States in accordance with paragraph (B)(5)(h) of this section, the building inspector shall, pursuant to Title 8, United States Code, Section 1373(c), verify with the federal government whether the occupant is an alien lawfully present in the United States. The building official shall submit to the federal government the identity and status information contained on the application for the residential occupancy license, along with any other information requested by the federal government.
(2) If the federal government reports the status of the occupant as an alien not lawfully present in the United States, the building inspector shall send the occupant, at the address of the single family residence shown on the application for residential occupancy license, a deficiency notice. The deficiency notice shall state that on or before the 60th day following the date of the notice, the occupant may obtain a correction of the federal government’s records and/or provide additional information establishing that the occupant is not an alien not lawfully present in the United States. If the occupant provides such additional information, the building inspector shall promptly submit that information to the federal government. The occupant may also submit information directly to the federal government.
(3) If the federal government notifies the building inspector that it is unable to conclusively verify or ascertain the immigration status of the occupant, or that the federal government’s determination of immigration status is tentative, the building inspector shall take no further action until final verification from the federal government concerning the immigration status of the occupant is received. The building inspector shall not attempt to make

an independent determination of any occupant’s lawful or unlawful presence in the United States. If the federal government notifies the building inspector that more information is required before the federal government can issue a final verification of the occupant’s immigration status, or that the occupant may contest the federal government’s determination of status, the building inspector shall notify the occupant accordingly.
(4) No earlier than the 61st day after a deficiency notice has been sent to an occupant, the building inspector shall again make an inquiry to the federal government seeking to verify or ascertain the citizenship or immigration status of the occupant. If the federal government reports that the occupant is an alien who is not lawfully present in the United States, the building inspector shall send a revocation notice to both the occupant and the lessor. The revocation notice shall revoke the occupant’s residential occupancy license effective 15 days after the date of the revocation notice.
(5) If a landlord or the landlord’s agent commits an offense under paragraph (C)(7) of this section, the building inspector shall suspend the landlord’s rental license.
(6) During the period of suspension, the landlord shall not collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any occupant or tenant in the single family residence.
(7) The suspension shall terminate one day after the landlord or the landlord’s agent submits to the building inspector a sworn affidavit of the owner or agent stating that each and every violation of paragraph (C)(7) of this section on which revocation was based has ended. The affidavit shall include a description of the specific measures and actions taken to end the violation.
(8) The suspension of a landlord’s rental license may be appealed to the city council pursuant to Section 26-78.
(9) The terms of this section shall be applied uniformly, and enforcement procedures shall not differ based on a person’s race, ethnicity, religion, or national origin.
(E) Judicial Review
(1) Any landlord or occupant who has a received a deficiency notice or a revocation notice may seek judicial review of the notice by filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas.
(2) In the event that such a suit is filed prior to or within 15 days after the date of the revocation notice, if any, revocation is automatically stayed until final conclusion of judicial review.

(3) The landlord or occupant may seek judicial review of the question of whether the building inspector complied with the provisions of this ordinance or other relevant provisions of federal, state, or local law, or the question of whether the occupant is lawfully present in the United States, or of both such questions.
(4) In a suit for judicial review in which the question of whether the occupant is lawfully present in the United States is to be decided, that question shall be determined under federal law. In answering the question, the court shall be bound by any conclusive determination of immigration status by the federal government. A determination is conclusive if, under federal law, it would be given preclusive effect on the question.
(5) The court shall take judicial notice of any verification of the citizenship or immigration status of the occupant previously provided by the federal government. The court may, and at the request of a party shall, request the federal government to provide, in automated, documentary, or testimonial form, a new verification of the citizenship or immigration status of the occupant pursuant to Title 8, United States Code, Section 1373(c). The most recent determination of the immigration status of an individual by the federal government shall create a rebuttable presumption as to the individual’s immigration status.
(F) Construction
The requirements and obligations of this section shall be implemented in a manner fully consistent with f ederal law regulating imm igration and protecting the civil rights of all citizens, nationals, and aliens.”
Section 2: Chapter 26, Businesses, Article III, Single-Family Rental Housing, of the Code of Ordinances, City of Farmers Branch, Texas, is hereby amended by adding the following as paragraph (f) of Section 26-78, Appeals to the City:
“(f) This section does not apply to any decision or order of the building inspector issuing a deficiency notice or a revocation notice w ith respect to a res idential occupancy license pursuant to Sections 2679(D)(2) or 26-79(D)(4). Any suc h decision or order m ay be appealed only through a suit for judicial review pursuant to Section 26-79(E).”
Section 3: Chapter 26, Businesses, Article IV, Apartment Complex Rental, of the Code of Ordinances, City of Fa rmers Branch, Texas, is hereby am ended by adding the following as Section 26-119:
“Section 26-119. Citizenship or Immigration Status Verification
(A) Definitions

The following terms and phrases, when used in this section, shall have the meanings ascribed to them in this s ection, and shall be construed so as to be consistent with state and federa l law, in cluding federal immigration law:
(1) “Alien” means any person not a citizen or national of the United States, as set forth in Title 8, United States Code, Section 1101(3), as amended.
(2) “Apartment” means a dwelling unit within an apartment complex.
(3) “Landlord” means the owner of an apartment.
(4) “Lessor” means a person who leases or rents an apartment as or on behalf of a landlord.
(5) “Occupant” means a person, age 18 or older, who resides at an apartment. A temporary guest of an occupant is not an occupant for the purposes of this section.
(B) Residential Occupancy Licenses
(1) Prior to occupying any leased or rented apartment, each occupant must obtain a residential occupancy license.
(2) It is the occupant’s responsibility to submit an occupancy license application to the building inspector, pay a fee of $5 to the City, and obtain a residential occupancy license. If there are multiple occupants seeking to occupy a single apartment, each occupant must obtain his or her own residential occupancy license. Multiple applicants for occupancy of the same apartment may designate one of their number as their agent to submit the required application forms, provided that each individual applicant signs his or her own application form. The building inspector may establish a procedure whereby an applicant (or designated agent) may submit the application form(s), signed by the applicant(s), via facsimile or website portal.
(3) The lessor shall notify each prospective tenant of the requirements of paragraph (B)(2) of this section.
(4) A residential occupancy license is valid only for as long as the occupant continues to occupy an apartment within the same apartment complex as the apartment for which the license was issued. Any relocation to a leased or rented single-family residence or to an apartment within a different apartment complex requires a new residential occupancy license.

(5) An application for a residential occupancy license shall be made on a form furnished by the building inspector for such purpose. The form shall require the following information:
(a) full legal name of the occupant;
(b) mailing address of the occupant;
(c) address of the apartment for which the occupant is applying, if different from the mailing address;
(d) name and business address of the lessor;
(e) date of lease or rental commencement;
(f) date of birth of the occupant;
(g) the occupant’s country of citizenship;
(h) if the applicant is a United States citizen or national, a signed declaration that the applicant is a United States citizen or national; the form shall state that it is a crime under Title 18, United States Code, Section 1015(e), for a person to knowingly make any false statement or claim that he or she is, or at any time has been, a citizen or national of the United States, with the intent to obtain on behalf of himself or herself, or any other person, any Federal or State benefit or service;
-or-
(i) if the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his or her lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, “A” number, I-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the applicant does not know of any such number, he or she shall so declare. Such a declaration shall be sufficient to satisfy this requirement.
(6) Upon receipt of the completed application and the payment of the application fee as set forth above, the building inspector shall immediately issue a residential occupancy license. The building inspector shall not deny a residential occupancy license to any occupant who submits a completed application and pays the application fee.

(7) The information provided on an application may be disclosed to the federal government according to paragraph (D) of this section, pursuant to Title 8, United States Code, Section 1373.
(C) Offenses
(1) It shall be an offense for a person to be an occupant of a leased or rented apartment without first obtaining a valid occupancy license permitting the person to occupy that apartment.
(2) It shall be an offense for a person to knowingly make a false statement of fact on an application for a residential occupancy license.
(3) It shall be an offense for a person to create, possess, sell, or distribute a counterfeit residential occupancy license.
(4) It shall be an offense for a lessor to lease or rent an apartment without obtaining a copy of the residential occupancy license of any and all known occupants.
(5) It shall be an offense for a person responsible for the management of an apartment complex to fail to maintain on the premises of the apartment complex a copy of the residential occupancy license of each known occupant of the apartment complex, or to fail to make such copy available for inspection by the Building Inspector during regular business hours.
(6) It shall be an offense for a lessor to lease an apartment without including in the terms of the lease a provision stating that occupancy of the premises by a person, age 18 or older, who does not hold a valid residential occupancy license constitutes an event of default under the lease.
(7) It shall be an offense for a landlord or any agent of a landlord with authority to initiate proceedings to terminate a lease or tenancy to knowingly permit an occupant to occupy an apartment without a valid residential occupancy license. It is a defense to a prosecution under this paragraph that the landlord or agent has commenced and diligently pursued such steps as may be required under the applicable law and lease provisions to terminate the lease or tenancy.
(D) Enforcement
The building inspector shall enforce the requirements of this section as follows.
(1) Promptly after issuance of a residential occupancy license to any occupant who has not declared himself or herself to be either a citizen or a national of the United States in accordance with paragraph (B)(5)(h) of this section, the building inspector shall, pursuant to Title 8, United States Code, Section 1373(c), verify with the federal government whether the occupant is an alien lawfully present in the United States. The building official shall submit to the federal government the identity and status

information contained on the application for the residential occupancy license, along with any other information requested by the federal government.
(2) If the federal government reports the status of the occupant as an alien not lawfully present in the United States, the building inspector shall send the occupant, at the address of the apartment shown on the application for residential occupancy license, a deficiency notice. The deficiency notice shall state that on or before the 60th day following the date of the notice, the occupant may obtain a correction of the federal government’s records and/or provide additional information establishing that the occupant is not an alien not lawfully present in the United States. If the occupant provides such additional information, the building inspector shall promptly submit that information to the federal government. The occupant may also submit information directly to the federal government.
(3) If the federal government notifies the building inspector that it is unable to conclusively verify or ascertain the immigration status of the occupant, or that the federal government’s determination of immigration status is tentative, the building inspector shall take no further action until final verification from the federal government concerning the immigration status of the occupant is received. The building inspector shall not attempt to make an independent determination of any occupant’s lawful or unlawful presence in the United States. If the federal government notifies the building inspector that more information is required before the federal government can issue a final verification of the occupant’s immigration status, or that the occupant may contest the federal government’s determination of status, the building inspector shall notify the occupant accordingly.
(4) No earlier than the 61st day after a deficiency notice has been sent to an occupant, the building inspector shall again make an inquiry to the federal government seeking to verify or ascertain the citizenship or immigration status of the occupant. If the federal government reports that the occupant is an alien who is not lawfully present in the United States, the building inspector shall send a revocation notice to both the occupant and the lessor. The revocation notice shall revoke the occupant’s residential occupancy license effective 15 days after the date of the revocation notice.
(5) If a landlord or the landlord’s agent commits an offense under paragraph (C)(7)of this section, the building inspector shall suspend the landlord’s apartment complex license.
(6) During the period of suspension, the landlord shall not collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any occupant or tenant in the apartment complex.
(7) The suspension shall terminate one day after the landlord or the landlord’s agent submits to the building inspector a sworn affidavit of the owner or agent stating that each and every violation of paragraph (C)(7) of this section on which revocation was

based has ended. The affidavit shall include a description of the specific measures and actions taken to end the violation.
(8) The suspension of a landlord’s rental license may be appealed to the city council pursuant to Section 26-118.
(9) The terms of this section shall be applied uniformly, and enforcement procedures shall not differ based on a person’s race, ethnicity, religion, or national origin.
(E) Judicial Review
(1) Any landlord or occupant who has received a deficiency notice or a revocation notice may seek judicial review of the notice by filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas.
(2) In the event that such a suit is filed prior to or within 15 days after the date of the revocation notice, if any, revocation is automatically stayed until final conclusion of judicial review.
(3) The landlord or occupant may seek judicial review of the question of whether the building inspector complied with the provisions of this ordinance or other relevant provisions of federal, state, or local law, or the question of whether the occupant is lawfully present in the United States, or of both such questions. The landlord or occupant may seek judicial review of the question of whether the building inspector complied with the provisions of this ordinance or other relevant provisions of federal, state, or local law, or the question of whether the occupant is lawfully present in the United States, or of both such questions.
(4) In a suit for judicial review in which the question of whether the occupant is lawfully present in the United States is to be decided, that question shall be determined under federal law. In answering the question, the court shall be bound by any conclusive determination of immigration status by the federal government. A determination is conclusive if, under federal law, it would be given preclusive effect on the question.
(5) The court shall take judicial notice of any verification of the citizenship or immigration status of the occupant previously provided by the federal government. The court may, and at the request of a party shall, request the federal government to provide, in automated, documentary, or testimonial form, a new verification of the citizenship or immigration status of the occupant pursuant to Title 8, United States Code, Section 1373(c). The most recent determination of the immigration status of an individual by the federal government shall create a rebuttable presumption as to the individual’s immigration status.
(F) Construction
The requirements and obligations of this section shall be im plemented in a

manner fully consistent with f ederal law regulating imm igration and protecting the civil rights of all citizens, nationals, and aliens.”

Section 4: Chapter 26, Businesses, Article IV, Apartment Complex Rental, of the Code of Ordinances, City of Fa rmers Branch, Texas, is hereby am ended by adding the following as paragraph (f) of Section 26-118, Appeals to the City:

“(f) This section does not apply to any decision or order of the building inspector issuing a deficiency notice or a revocation notice w ith respect to a res idential occupancy license pursuant to Sections 26119(D)(2) or 26-119(D)(4). Any such decision or order m ay be appealed only through a suit for judicial review pursuant to Section 26-119(D)(9).”

Section 5: Penalty

Upon conviction, any person committing any act or om ission declared to be an offense under the provisions of this ordinance shall be fined in a sum not to exceed $500. A separate offense shall be deem ed committed upon each day durin g or on which a violation occurs or continues.

Section 6: Severability

The terms and provisions of this ordina nce are severable and are governed by Section 1-12 of the Code of Ordinances, City of Farmers Branch, Texas, as amended. If the application of this ordinance to any pe rson, entity, or circum stance is invalid, the invalidity does not affect ot her applications of the ordina nce that can be given effect without the invalid applicati on, since the sam e would have been enacted by the City Council without regard to any such invalid application.

Section 7: Effective Date

This ordinance shall becom e effective on the 15 th day after the date on which a

final and appealable judgm ent is rendered by the United S tates District Court for th e

Northern District of Texas in the action styled Villas at Parkside Partners d/b/a Villas at

Parkside, et al. v. City of Farmers Branch

, Civil A ction No. 3:06-CV-2371-L

(consolidated with Civil Actions Nos. 3: 06-CV-2376-L and 3:07-CV-0061-L). The city

secretary is directed to, w ithin 15 days after such a j udgment is rendered, publish notice

of the date on which this ordin ance will take effect in the official city newspaper and on

the city’s website.

This ordinance applies only to leases or tenancies that commence on or af ter its effective date.

ATTEST:

APPROVED:

_____________________________ Cindee Peters, City Secretary

______________________________ Bob Phelps, Mayor

APPROVED AS TO FORM:

______________________________ City Attorney