Compliance with fair housing laws has always been tricky, but recent changes in immigration policy have created new stumbling blocks for those who want to avoid
national origin discrimination claims.
Readers will remember that historically – at least for the last ten (10) years – HUD has taken the position that while it is unlawful under the Fair Housing Act (FHA) to discriminate on the basis of national origin, it is not illegal to discriminate against persons who illegally entered the United States. Specifically in its Guidance to
Landlords following the 9/11 Attacks HUD wrote:
It is unlawful to screen housing applicants on the basis of race, color, religion, sex, national origin, disability, or familial status. In the wake of the attacks of September 11, 2001, landlords and property managers have inquired about the legality of screening housing applicants on the basis of their citizenship status.
The Act does not prohibit discrimination based solely on a person’s citizenship status. Accordingly, asking housing applicants to provide documentation of their citizenship or immigration status during the screening process would not violate the Fair Housing Act. In fact, such measures have been in place for a number of years in screening applicants for federally-assisted housing. For these properties, HUD regulations define what kind of documents are considered acceptable evidence of citizenship or eligible immigration status and outline the process for collecting and verifying such documents. These procedures are uniformly applied to every applicant. Landlords who are considering implementing similar measures must make sure they are carried out in a nondiscriminatory fashion.

Over the last three years, there has been a significant drawing back from the language in this document involving citizenship status, and HUD officials have indicated that if the guidance was being issued now, it would not include that language. Nevertheless, we have still assumed that it was permissible to distinguish between persons who are
legally in the United States and those who are not. In its guidance HUD even identified specific documentation that a landlord could request in order to determine whether
someone was legally entitled to be present or not.
Two recent changes in immigration policy suggest that reliance on these previously identified documents may not, of themselves, be sufficient any longer to provide a full defense to a national origin discrimination complaint.
In January 2012 the Department of Homeland Security (DHS) initiated a program to allow provisional waivers of inadmissibility for certain immediate relatives of U.S. citizens. Under this program, undocumented immediate family members, spouses and children of U.S. citizens may apply for a provisional waiver while in the United States
and may remain here until the USCIS approves the waiver. They must still prove extreme hardship, but the provisional waiver helps to reduce periods of family separation while abroad that can cause financial devastation and emotional duress for the families. For landlords, the important point of this initiative is that it allows undocumented family members to remain in the United States while they are applying for their green cards; however, they are not given any visas or other documentation showing legal status while their requests are pending. This leaves them in the situation of being – at least temporarily – authorized to be in the United States but without proof of this authorization.

Then in June 2012 Janet Napolitano, Director of DHS announced an enforcement policy shift for her department. Citing limited resources and the need to prioritize the
prosecution and deportation of persons who engage in criminal activity within the United States, Secretary Napolitano announced that effective immediately young people who were brought to the United States through no fault of their own as children and who meet certain criteria are now eligible to received deferred action for a period of two years, and that this two year period will be subject to renewal. Under that policy change, DHS will provide a de facto authorization for persons falling under this policy to
remain in the United States, though in most cases they again will not have “papers” showing that they are lawfully here.
What should property owners do under these circumstances? Property owners and managers still have two choices: (1) they can rent to anyone who applies and passes their credit and criminal background check, without regard to whether the applicant is lawfully in the United States; or (2) they can limit their occupants only to persons who are lawfully residing in the United States.

If they take the latter course, properties must clearly spell out what documentation is considered to be sufficient evidence of lawful status and ensure that they ask for a copy
of that documentation from everyone who applies to rent. Requesting documentation only from persons who appear to be foreign, or who have accents, or who are dressed
or who look different from most other applicants is considered proof of a discriminatory bias.
Further, because there is now a de facto recognition that some people may be permitted to remain in the United States notwithstanding their prior unlawful entry it is also important to consider applicants who may not have proof of legal status. Properties can do this by notifying applicants that if they believe they are legally entitled to live in the United States but do not have documentation to show it, they can contact management and explain why they believe they are entitled to remain in the country.
Properties can then review any evidence the person provides and can make an individualized assessment as to whether to rent to the person. Of course such decisions must be made without regard to any protected characteristic under the FHA.
The bottom line is that this subject has recently become much more complicated and reliance on previous pronouncements and standards may no longer be sufficient to defend against national origin complaints. Properties are strongly encouraged to consult legal counsel if there is any question as to whether or not a person should be accepted or rejected based on immigration status.

Scott Clark is an attorney with the Law Offices of Scott M. Clark and may be reached at www.scottclarklaw.com or (602) 957-7877.

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