Lozano v. City of Hazleton, No. 07–3531.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtMcKEE
Citation724 F.3d 297
PartiesPedro LOZANO; Humberto Hernandez; Rosa Lechuga; John Doe 1; John Doe 2; John Doe 3, a Minor, By His parents; Jane Doe 1; Jane Doe 2; Jane Doe 3; John Doe 4, a Minor, By His parents, Brenda Lee Mieles; Casa Dominicana of Hazleton, Inc.; Hazleton Hispanic Business Association; Pennsylvania Statewide Latino Coalition; Jane Doe 5; John Doe 7; Jose Luis Lechuga, v. CITY OF HAZLETON, Appellant.
Decision Date26 July 2013
Docket NumberNo. 07–3531.

724 F.3d 297

Pedro LOZANO; Humberto Hernandez; Rosa Lechuga; John Doe 1; John Doe 2; John Doe 3, a Minor, By His parents; Jane Doe 1; Jane Doe 2; Jane Doe 3; John Doe 4, a Minor, By His parents, Brenda Lee Mieles; Casa Dominicana of Hazleton, Inc.; Hazleton Hispanic Business Association; Pennsylvania Statewide Latino Coalition; Jane Doe 5; John Doe 7; Jose Luis Lechuga,
v.
CITY OF HAZLETON, Appellant.

No. 07–3531.

United States Court of Appeals,
Third Circuit.

Argued Aug. 15, 2012.
Opinion Filed: July 26, 2013.


[724 F.3d 299]


Omar Jadwat, Esq., (Argued), Lee Gelernt, Esq., American Civil Liberties Union, Immigrants.
Rights Project, Jackson Chin, Esq., Foster Maer, Esq., Puerto Rican Legal Defense & Education Fund, Ghita Schwarz, Esq., Center for Constitutional Rights, New York, NY, Lucas Guttentag, Esq., Jennifer Chang, Esq., American Civil Liberties Union Foundation, San Francisco, CA, Witold J. Walczak, Esq., American Civil Liberties Union, Pittsburgh, PA, Thomas B. Fiddler, Esq., White & Williams, Ilan Rosenberg, Esq., Thomas G. Wilkinson, Esq., Cozen O'Connor, Philadelphia, PA, Elena Park, Esq., Cozen O'Connor, West Conshohocken, PA, Shamaine A. Daniels, Esq., Harrisburg, PA, Attorneys for Plaintiffs–Appellees.

Kris W. Kobach, Esq., (Argued), University of Missouri–Kansas City, School of Law, Kansas City, MO, Michael Hethmon, Esq., Immigration Reform Law Institute, Washington, D.C., Attorneys for Defendant–Appellant.


Damon Scott, Florence, SC, Paul J. Orfanedes, Esq., James F. Peterson, Esq., Judicial Watch, Inc., Richard A. Samp, Esq., Washington Legal Foundation, Washington, D.C., Andrew L. Schlafly, Esq., Far Hills, NJ, Attorneys for Amicus Appellants.

[724 F.3d 300]



Robin S. Conrad, Esq., National Chambers Litigation Center, Carter G. Phillips, Esq., Sidley Austin, Eric A. Shumsky, Esq., Orrick, Herrington & Sutcliffe, John M. West, Esq., Bredhoff & Kaiser, Kenneth J. Pfaehler, Esq., Dentons US, Washington, D.C., Charles D. Weisselberg, Esq., Berkley Law School, Berkley, CA, Jacob S. Pultman, Esq., Allen & Overy, Mark D. McPherson, Esq., Morrison & Foerster, New York, NY, Burt M. Rublin, Esq., Ballard Spahr, Nancy Winkelman, Esq., Schnader Harrison Segal & Lewis, Philadelphia, PA, Lawrence H. Fisher, Esq., Cohen & Willwerth, Pittsburgh, PA, Attorneys for Amicus Appellees.


Before: McKEE, Chief Judge, NYGAARD and VANASKIE, Circuit Judges.


On Remand from the United States Supreme Court
OPINION OF THE COURT

McKEE, Chief Judge.

This case is before us on remand from the United States Supreme Court. The City of Hazleton previously appealed the District Court's judgment permanently enjoining enforcement of two Hazleton ordinances that attempt to prohibit employment of unauthorized aliens and preclude them from renting housing within the City.1 In a precedential Opinion and Judgment filed on September 9, 2010, we upheld the permanent injunction. Thereafter, the Supreme Court granted Hazleton's petition for a writ of certiorari and remanded this case so that we could reconsider our analysis in light of Chamber of Commerce v. Whiting, 563 U.S. ––––, 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011). See City of Hazleton v. Lozano, 563 U.S. ––––, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011). Subsequently, the Court also decided Arizona v. United States, 567 U.S. ––––, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). Both Whiting and Arizona address the extent to which federal immigration law pre-empts various state laws pertaining to the treatment of unauthorized aliens. On remand, we asked for supplemental briefing on whether either of those decisions alter our original analysis upholding the District Court's injunction.

Having thoroughly considered the additional submissions of the parties and the Court's decisions in Whiting and Arizona, we again conclude that both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law. Accordingly, we will again affirm the District Court's order enjoining enforcement of these provisions.

I. BACKGROUND

The factual and procedural background underlying this case have been extensively described in the District Court's decision, Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D.Pa.2007) (“Lozano I ”), and our earlier decision, Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir.2010) (“Lozano II ”), vacated and remanded,––– U.S. ––––, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011). Accordingly, we need not reiterate that history as thoroughly as we otherwise would. However, context and clarity require that we first set forth those facts underlying our analysis on remand.

This litigation involves a series of immigration ordinances enacted by the City of Hazleton between July 2006 and March 2007. The two ordinances at issue are: (1)

[724 F.3d 301]

the Illegal Immigration Relief Act Ordinance (“IIRAO”), which consists of Ordinance 2006–18, as amended by Ordinance 2006–40, and Ordinance 2007–6; and (2) the Rental Registration Ordinance (“RO”), which consists of Ordinance 2006–13.2 These ordinances attempt to regulate the employment of unauthorized aliens, and the provision of rental housing to aliens lacking lawful immigration status, within Hazleton.

The relevant employment provisions make it unlawful for any person “to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct” any person without work authorization “to perform work in whole or in part within the City.” IIRAO § 4A. The IIRAO also provides for public monitoring and prosecution, and sanctions violators by suspending their business permits. Id. § 4B. “Safe harbor” from the IIRAO's sanctions is available for businesses that verify work authorization using the federal E–Verify program. Id. § 4B(5).3 The IIRAO also requires City agencies and certain businesses to enroll in the E–Verify program. Id. §§ 4B(6)(b), 4C, 4D.

The disputed housing provisions are found in both the IIRAO and the RO. The IIRAO makes legal immigration status a condition precedent to entering into a valid lease. Id. § 7B. The IIRAO also provides that it is “unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien” is unauthorized. Id. § 5A. “Harboring” is broadly defined to include “let[ting], leas[ing], or rent[ing] a dwelling unit to an illegal alien.” Id. § 5A(1).

The anti-harboring provisions in the IIRAO operate in conjunction with the rental registration scheme established in the RO. The RO requires that prospective occupants of rental housing over the age of eighteen obtain an occupancy permit. RO §§ 1m, 6a, 7b. The application for an occupancy permit requires submission of “[p]roper identification showing proof of legal citizenship and/or residency.” Id. § 7b(1)(g). Landlords are prohibited from allowing anyone over the age of eighteen to rent or occupy a rental unit without an occupancy permit. Id. § 6a. Violators are subject to fines and possible imprisonment. RO § 10.

As explained in Lozano II, numerous plaintiffs sued alleging the ordinances were invalid and the District Court permanently enjoined enforcement of the ordinances after a two-week bench trial. The court concluded that the ordinances are pre-empted by federal law and contrary to the Due Process Clause of the Fourteenth Amendment, 42 U.S.C. § 1981, as well as a number of state laws limiting the authority of municipalities in Pennsylvania. See Lozano II, 620 F.3d at 181.4

[724 F.3d 302]

We thereafter affirmed the ultimate judgment of the District Court, although we differed in our reasoning.5 In short, we held that the employment provisions in the IIRAO, though not expressly pre-empted, are conflict pre-empted because they stand as an obstacle to the accomplishment and execution of federal law. Lozano II, 620 F.3d at 210–19. We also held that the housing provisions in the IIRAO and RO are invalid because they impermissibly “regulate immigration” and are both field and conflict pre-empted by federal immigration law. Id. at 219–24.6

As we noted at the outset, after we issued our decision in Lozano II, the Supreme Court granted the City's petition for a writ of certiorari, vacated our decision, and remanded for reconsideration in light of that Court's intervening decision in Chamber of Commerce v. Whiting, ––– U.S. ––––, 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011). In Whiting, the Supreme Court affirmed the decision of the Court of Appeals for the Ninth Circuit in Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir.2009). There, the Court of Appeals for the Ninth Circuit had upheld the Legal Arizona Workers Act against claims of express and implied pre-emption. Chicanos Por La Causa, 558 F.3d at 866, 867. After the decision in Whiting, the Supreme Court decided Arizona v. United States, ––– U.S. ––––, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). There, the Court held that three of four challenged provisions of Arizona's immigration law, known as “S.B. 1070,” were pre-empted. However, the Court overturned a preliminary injunction with respect to the fourth provision and remanded for additional fact finding.

III. DISCUSSION7

The question before us on remand remains whether federal law pre-empts the employment and/or housing provisions of the Hazleton ordinances.

As we explained in Lozano II, “[t]he pre-emption doctrine is a necessary outgrowth of the Supremacy Clause,” which “provides that the laws of the United States ‘shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ ” Lozano II, 620 F.3d at 203 (quoting U.S. Const, art. VI, cl. 2). Pre-emption may be either express or implied, and implied pre-emption includes both field preemption and conflict pre-emption. Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992).

[724 F.3d 303]

Field pre-emption occurs “[w]hen Congress intends...

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45 practice notes
  • Va. Uranium, Inc. v. McAuliffe, Case No.: 4:15-cv-00031
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • December 2, 2015
    ...the federal statute itself, read in the light of its constitutional setting and its legislative history.’ ” Lozano v. City of Hazleton , 724 F.3d 297, 303 (3d Cir.2013) (quoting De Canas , 424 U.S. at 360 n. 8, 96 S.Ct. 933 ), cert. denied , ––– U.S. ––––, 134 S.Ct. 1491, 188 L.Ed.2d 375 (2......
  • Coalition v. Brewer, No. 15-15307
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 5, 2016
    ...from renting housing constituted an impermissible regulation of immigration and were preempted by the INA. Lozano v. City of Hazleton, 724 F.3d 297, 317 (3d Cir. 2013). Although the housing ordinances did not directly regulate immigration in the sense of dictating who could or could not be ......
  • Rojas v. Attorney Gen. of the United States, No. 12–1227.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 23, 2013
    ...in a manner that would allow them to ... determine who is permitted to enter and live in the country”); cf. Lozano v. City of Hazleton, 724 F.3d 297, 314–16, No. 07–3531, 2013 WL 3855549, at *13 (3d Cir. July 26, 2013) (highlighting “the important national interests that are implicated when......
  • Valle Del Sol Inc. v. Whiting, No. 12–17152.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 8, 2013
    ...its briefs on appeal. The plaintiffs use the term “unauthorized immigrant,” but, as the Third Circuit noted in Lozano v. City of Hazleton, 724 F.3d 297, 300 n. 1 (3d Cir.2013), in the context of a statute such as § 13–2929 the term “alien” is more precise. 2. As will be discussed in more de......
  • Request a trial to view additional results
44 cases
  • Va. Uranium, Inc. v. McAuliffe, Case No.: 4:15-cv-00031
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • December 2, 2015
    ...the federal statute itself, read in the light of its constitutional setting and its legislative history.’ ” Lozano v. City of Hazleton , 724 F.3d 297, 303 (3d Cir.2013) (quoting De Canas , 424 U.S. at 360 n. 8, 96 S.Ct. 933 ), cert. denied , ––– U.S. ––––, 134 S.Ct. 1491, 188 L.Ed.2d 375 (2......
  • Coalition v. Brewer, No. 15-15307
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 5, 2016
    ...from renting housing constituted an impermissible regulation of immigration and were preempted by the INA. Lozano v. City of Hazleton, 724 F.3d 297, 317 (3d Cir. 2013). Although the housing ordinances did not directly regulate immigration in the sense of dictating who could or could not be ......
  • Rojas v. Attorney Gen. of the United States, No. 12–1227.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 23, 2013
    ...in a manner that would allow them to ... determine who is permitted to enter and live in the country”); cf. Lozano v. City of Hazleton, 724 F.3d 297, 314–16, No. 07–3531, 2013 WL 3855549, at *13 (3d Cir. July 26, 2013) (highlighting “the important national interests that are implicated when......
  • Valle Del Sol Inc. v. Whiting, No. 12–17152.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 8, 2013
    ...its briefs on appeal. The plaintiffs use the term “unauthorized immigrant,” but, as the Third Circuit noted in Lozano v. City of Hazleton, 724 F.3d 297, 300 n. 1 (3d Cir.2013), in the context of a statute such as § 13–2929 the term “alien” is more precise. 2. As will be discussed in more de......
  • Request a trial to view additional results
1 books & journal articles
  • Policing the Polity.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 6, April 2022
    • April 1, 2022
    ...vacated in part, Lozano v. City of Hazleton (Lozano II), 620 F.jd 170, 220-21 (3d Cir. 2010), vacated, 563 U.S. 1030 (2011), remanded to 724 F.3d 297 (3d Cir. 2013) (Lozano III). For national media coverage related to the ordinances, see, for example, Julia Preston, City's Immigration Restr......

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