Renting Apartment to Undocumented Immigrant not a Crime

When a landlord leases an apartment to an undocumented immigrant, does he commit the offense of harboring an illegal alien? This question was recently answered in the negative in a case perceived by some to be the latest effort at localizing immigration enforcement.

Bolmer v. Connolly Properties, decided by the Court of Appeals for the Third Circuit, started out as a landlord-tenant dispute. The plaintiff was a tenant at a New Jersey apartment complex which later on fell into disrepair. He complained about overcrowding, inadequate heat, bug and rodent problems, criminal activity, and the apartment management’s failure to make repairs and regularly clean the common areas.

He asserted that the management undertook a scheme of actively seeking out undocumented aliens as tenants because they were perceived to be less likely to complain about poor housing conditions or to report violations. It allegedly allowed the condition of the premises to deteriorate but without offering a reduction in the rent.

The plaintiff alleged that by renting apartments to tenants without checking their immigration status or by knowingly renting to undocumented immigrants, the apartment management was harboring undocumented immigrants which is a criminal offense. The plaintiff sued the landlord under the federal anti-racketeering law, the same law used to target organized crime rings.

According to the court, to constitute harboring the conduct must tend to substantially facilitate an alien’s remaining in the U.S. illegally. Harboring requires something more than just simply renting an apartment to an undocumented alien.

In previous court cases where harboring was found to be present, the defendants were employers who failed to make disclosures required by federal and state law, or were involved in the actual smuggling of aliens into the US, or attempted to warn them about law enforcement, or helped them obtain false documents. The court highlighted that the management did not do any of these things.

Harboring also involves some type of “obstruction” to prevent detection by the government of the alien’s presence. The plaintiff stated that the management shielded the tenants, who were mostly Hispanic, by segregating them into certain buildings.

The court disagreed, saying that the management did not evade any requirement to report the immigrants because landlords have no obligation to do a background check of their tenants. The court noted that by grouping the tenants into certain buildings, the management probably made them more conspicuous.

The court also rejected as without proof the argument that the management encouraged or induced the aliens to reside in the U.S. illegally. Moreover, the court said, the law does not require, and in some places even prohibits, apartment managers to screen potential tenants based on immigration status.

Acknowledging that immigration enforcement is a federal matter, the court added that criminalizing the acts complained might undermine the system of enforcement. It included a reminder that some individuals who lack immigration status may reside in the U.S. often with the express knowledge or permission of the federal government.

The court said that landlords and those in the business of providing accommodations could not have been given by Congress the difficult task of determining a person’s immigration status and be held criminally in case they make a mistake in doing so.