Should a landlord be criminally liable for renting to undocumented people? That’s an argument a Richmond-based federal appeals court seemed unlikely to agree with after a Fairfax County mobile home park asked tenants for their immigration status.
In 2015, the Waples Mobile Home Park began making that request. They claimed failing to do so could open them up to liability for harboring undocumented people, a federal crime that carries up to 10 years in jail. And while the case has gone up and down the legal system ever since, the Fourth Circuit Court of Appeals in Richmond seemed unlikely to side with the landlords at oral arguments Thursday.
“If you said it's a business necessity for every landlord to vet every tenant's legal status. The practical consequences of this strike me as homeless on an even greater scale,” said Circuit Judge Harvie Wilkinson, one of the bench’s more conservative voices.
But McGuireWoods attorney Jonathan Ellis, who defended the trailer park in the appeal, said a single case - U.S. v. Aguilar - from the Richmond-based circuit suggested landlords could be prosecuted by the Department of Justice for failing to vet tenants.
“What the theory of Aguilar was, what the jury was instructed, what they argued at closing arguments and to this court is that sheltering is harboring,” Ellis told the panel.
But Judge Toby Heytens noted the fact pattern in Aguilar was vastly different from the mobile home dispute before them. Among distinctions was clear facts showing Aguilar lied to federal investigators when asked about the undocumented people staying in their house.
Also, Aguilar was unpublished meaning it has no bearing on precedent.
But perhaps most importantly, Heytens said the record showed when Waples did find some undocumented renters on their rolls, they didn’t kick them out, they instead increased their rent.
“'We did not kick them out, we raised their rent,' the judge, who was the former Solicitor General for Virginia under former Attorney General Mark Herring, said. "I would not want to explain to a U.S. attorney why I raised the rent on people once I realized they were undocumented.”
U.S. District Judge Henry Hudson, sitting by designation from his usual post at the Eastern District of Virginia, also questioned the link between immigration vetting and an increase in rent.
“Was avoiding arrest a legitimate interest?” he asked. “That's kind of an afterthought here, but it seems it was actually to raise the rent.”
Ellis said they didn’t remove the tenants because they promised to get citizenship, and their leases were switched to month-to-month which increased risk and therefore the price.
“We’re not asking them to separate their families, we’re asking them to cure the violation,” Ellis said, noting also the $100 increase in rent was never charged.
Plenty of outside groups chimed in on the dispute via amicus briefs.
The National Federation of Independent Business Small Business Legal Center, repped by the ultra-conservative Virginia-based firm of Clement & Murphy, argued the current status of the law suggested federal enforcement of harboring laws was a heavy and expensive shoe waiting to drop.
“The government’s own frenetic confusion suggests the parameters of criminal liability here are potentially unknowable,” the NFIB argued. suggesting a lack of clear guidance from the federal government was tantamount to existing law.
“That problem implicates a host of principles that favor erring in the direction of ameliorating criminal punishment,” the group said.
But the ACLU and a host of other civil rights groups argued in a brief authored by Relman Colfax attorney Edward Olds that recognizing such criminal liability could implicate a host of other entities if they serve the undocumented.
“If the mere act of providing an individual without legal status with a place to stay equates to harboring, then ‘a hospital emergency room that takes in a desperately ill person whom the hospital staff knows to be [undocumented] would be guilty of harboring’,” the civil liberties group wrote, citing U.S. v. Costello.
But a late addition to the docket also raised eyebrows at Thursday’s hearing; the U.S. Department of Justice itself chimed in arguing they had no current interest or future prospect to charge landlords for their tenant’s immigration status.
“The Department of Justice does not prosecute residential landlords merely because they do not, in the normal course of business, check the immigration status of every person living in their rentals,” wroteattorneys for the Enforcement and Fair Housing Department of Housing and Urban Development.
Both Heytens and Wilkinson pointed to the DOJ’s missive as a heavy hand against the landlords, but Ellis said the opinion, submitted in late 2022, speaks only to the concerns of the current administration, not of future enforcement from a DOJ under different leadership.
The judges didn’t signal when they planned to rule on the issue, but they noted they’d be the first federal appeals court to side with the landlords if they went that route.
This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.
