Precedential Appeals Court Ruling Makes It Clear that Landlords Need Not – and Should Not – Check Tenants’ Immigration Status

Cy Smith_Listing
Cy Smith
Nicholas M. DiCarlo
Nicholas M. DiCarlo
David A. Reiser
David A. Reiser

A federal appeals court has ruled in favor of the plaintiffs in a long-running and significant housing discrimination case. The emphatic decision by the Fourth Circuit overturns a 2022 district court ruling that allowed the Waples Mobile Home Park in Fairfax, Virginia, to evict tenants based on their immigration status. The appeal was led by the Legal Aid Justice Center and pro bono counsel Zuckerman Spaeder LLP.

In a 2016 lawsuit, the plaintiffs claimed that a Waples policy requiring adult tenants to show proof of legal immigration status unfairly impacts Latinos and therefore violates the Fair Housing Act (FHA). The policy, which Waples began enforcing in 2015, caused the plaintiffs – all families in which the father has legal status in the U.S., the mother is undocumented, and the children are U.S. citizens – and others to lose their homes. 

In 2022, the district court granted Waples summary judgment on its argument that the discriminatory policy was justified by a legitimate business interest because it was seeking to avoid criminal liability under a federal statute that prohibits the harboring of undocumented immigrants. The district court made its ruling even though the mobile park operator was never able to show evidence that renting to undocumented immigrants posed an actual prosecution risk or that its policy was actually motivated by the anti-harboring law. After the plaintiffs appealed, the U.S. Department of Justice, which is responsible for enforcing the anti-harboring law, filed an amicus brief affirming that residential landlords who do not check the immigration status of their tenants do not risk federal prosecution.

In its January 23 ruling, the Fourth Circuit firmly rejected Waples’ defense, stating that “a ‘legitimate’ interest cannot be a phony…Here, the anti-harboring statute simply does not apply to landlords merely leasing to undocumented immigrants, and Waples’s risk of prosecution is too attenuated to cross the threshold of a plausible concern.”

The court also agreed with the plaintiffs’ argument that Waples was not genuinely concerned about harboring undocumented individuals, citing the fact that the tenants in question faced increased rents, not eviction. “If Waples were at risk for prosecution under the anti-harboring statute, it would have a difficult time explaining to a prosecutor why, instead of evicting known undocumented immigrants, it opted to implement a surcharge instead.”

Zuckerman Spaeder attorney Nicholas DiCarlo, who successfully argued the plaintiffs’ appeal in the Fourth Circuit, said, “The court fully recognized that Waples’ anti-harboring argument was a smokescreen that offered no reasonable legal basis to support its discriminatory policy. The precedential ruling by the Fourth Circuit is a tremendous win for the rights of tenants and immigrant families nationwide. We appreciate the clarity and forcefulness of the decision and look forward to moving forward with the trial that our clients deserve.” 

Nady Peralta of the Legal Aid Justice Center, who has worked with the plaintiff families throughout the nearly eight years that the defendants have contested this case, noted that this is the second significant decision from the Fourth Circuit in this case. “In 2018, the Court of Appeals overturned as ‘grievous error’ a district court decision holding, in effect, that the families could not contest Waples’s policy if they had undocumented family members. [903 F.3d 415 (2018).] This second ruling leaves no doubt that landlords need not – and should not – even ask about their tenants’ immigration status. Renting to undocumented immigrants poses no legal risk, but rejecting a tenant based on their immigration status could be a violation of federal fair housing laws.”

In addition to the DOJ, a number of individuals and organizations filed amicus briefs in support of the plaintiffs: a group of seven civil rights and fair housing organizations, including the National Fair Housing Alliance and the American Civil Liberties Union; the National Housing Law Project, National Homelessness Law Center, National Immigrant Law Center, and National Low Income Housing Coalition; the National Housing Law Project, National Homelessness Law Center, National Immigrant Law Center, and National Low Income Housing Coalition; and, John Trasviña, former top legal advisor to the Director of U.S. Immigration and Customs Enforcement and former assistant secretary for the U.S. Department of Housing and Urban Development.

Others working on the case include Cy Smith and David Reiser from Zuckerman Spaeder, and from the Legal Aid Justice Center, Simon Sandoval-Moshenberg, Larisa Zehr, and Clay Warner.

The appeal is Reyes, et al. v. Waples Mobile Home Park Limited Partnership, et al., No. 22-1660 (4th Cir.), and the case is No. 1:16-cv-00563 (E.D. Va.).

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