Help! My Tenants Are Illegal Aliens

Q: I am a landlord in a Southern border state. I’ve just learned that a family on my property is in the United States illegally. On the one hand, I really don’t care — these are good tenants who pay the rent and cause no problems. But I remember that some churches in our state were charged with illegally “harboring” illegal immigrants many years ago, and I’m wondering if I am at risk for being charged with harboring this family. –William P.

A: “Harboring” a person who is illegally in the United States has been a federal crime since 1917. It’s been used against human trafficking rings and, in the 1980s, against the Sanctuary Movement that involved churches and individuals giving shelter to Central American asylum seekers. The current law is in the Immigration Reform and Control Act of 1986, which made it a crime to “conceal, harbor, or shield from detection” an illegal immigrant. If you’ve acted “knowingly or in reckless disregard of the fact that an alien has come to, entered or remains in the United States in violation of law,” you come within the law’s reach. Unfortunately, Congress never defined the term “harboring.” And although Congress has explicitly said that employers who knowingly hire undocumented immigrants are not guilty of harboring, they’ve never given rules for landlords.

As is common when there’s a legislative vacuum, the courts step in with its ideas of what’s what. In the case of harboring, federal courts haven’t agreed. Some (covering Connecticut, New York and Vermont) have defined the term to mean housing undocumented immigrants in an effort to hide them from law enforcement; others (in Texas, Louisiana and Mississippi) have understood it to mean simply housing immigrants whom the landlord knows to be illegal, and an even looser definition (used in Arizona, California and other Western states) defines harboring as merely being part of the transportation of illegal immigrants without necessarily knowing that they’re here illegally, let alone attempting to shield them from detection.

If you live in a state whose harboring definition covers your situation, you aren’t necessarily without a defense. First, prosecuting landlords for harboring illegal immigrants would place them in the untenable position of having to ascertain their tenants’ immigration status. Immigration law and documents are arcane and difficult to understand, and it’s a task that the federal government has reserved for itself. For this reason, many of the “anti-immigrant” ordinances that have sprung up since 2005, making it illegal to rent to or employ illegal immigrants, have been struck down as impermissible infringements on the federal government’s right to regulate immigration. If you’re in California, you have a really good defense: By law, you’re forbidden from asking tenants or prospects about their immigration status.

Second, a risk of harboring charges would invariably lead to more fair-housing complaints based on discrimination on the basis of “national origin,” which is illegal under the federal Fair Housing Act. Again, because immigration papers are so difficult to interpret, a landlord could unwittingly deny housing by misreading the documents — but the disappointed applicant may interpret the denial as based on his national origin. Regardless of the outcome of the complaint, it will ensnare the landlord, a fair-housing agency, and perhaps a court until it is settled or resolved.

Finally, consider that being in the U.S. illegally is a civil wrong that’s punishable by deportation; but harboring is a crime, with a possible sentence of prison and a fine. Sending a landlord to prison and the tenant to the bus station is a result that won’t sit well with many judges.

The best answer you’ll get on whether you’re at risk for harboring will come from a savvy assessment of the political interests of those who could bring charges — the local federal prosecuting attorney and immigration authorities. Not that you should give them a call and ask if they have any plans to arrest landlords for harboring — that might plant an idea that otherwise wouldn’t have sprouted. Instead, try to find an attorney in your area who represents people charged with federal crimes, and hopefully has an immigration practice, too. That person ought to know, or be able to discretely find out, what interest, if any, federal officials have in going after those who rent to illegal immigrants.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at [email protected].

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Copyright 2008 Janet Portman

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