Leasing to Illegal Immigrants

Can a Landlord be Arrested for Renting to an Illegal Immigrant? Not Likely

There is a federal statute which states that it is illegal to “harbor” an illegal immigrant, or to encourage an illegal alien to stay in the U.S., knowing that the person is in the U.S. illegally.  Hypothetically, there is a possibility that knowingly leasing a rental property to an illegal immigrant could subject the landlord to criminal consequences.

However, I am not aware of any cases where a landlord simply renting to an illegal immigrant was convicted under this federal statute.  In other words, a technical reading of the law reveals that a landlords’ actions could be interpreted as illegal, but the practical reality is that the chances of the landlord ever being caught and/or punished for these actions is probably very slim. 

Practical versus Probable

Often there is a contradiction between what the law says and the danger someone is actually prosecuted for violating the law.  I am in no way stating that it is okay to violate the law, I am simply addressing the practical application of the law as it is applied to landlord renting to illegal immigrants.

Black Letter Law- 8 U.S.C.A. § 1324

The statute to which I referred above is 8 U.S.C.A. § 1324.  There are two parts of this statute that apply directly to your circumstances.  The first part states that any person who “harbors” an illegal alien in the United States, knowing that the person is an illegal alien, is in violation of the law and is subject to punishment. 

The second part of 8 U.S.C.A. § 1324 states that a person is in violation of the law if he or she encourages an illegal alien to reside in the United States, knowing that the person is an illegal alien.  If a person violates any part of this statute, he or she could be fined and/or sentenced to up to five years in prison.

The First Section OF 8 U.S.C.A. § 1324

To determine your risk under the first part of this statute (subsection (a)(1)(A)(iii)), we must first determine whether or not a landlord knowingly leasing a house to an illegal immigrant amounts to “harboring”.  Because the statute itself does not provide a clear definition of the word “harbor”, the next step is to look to how Courts have interpreted that word.  Several legal publications which I read indicate that “harboring” encompasses any conduct which tends to substantially facilitate an alien’s remaining in the United States illegally. 

These publications cite to various federal cases in which Courts have held that “harboring” includes simply providing shelter to an illegal alien, and is not limited to “clandestine sheltering”.  Under this very broad interpretation, simply providing shelter to an illegal alien, knowing that the person is illegal, could subject one to punishment under this statute.

In 1976, the Ninth Circuit Court of Appeals – Arizona is in the Ninth Circuit, – found that “harbor” means knowingly providing shelter to illegal aliens, and is not just limited to “clandestine sheltering” or, in other words, trying to be sneaky about hiding the illegal alien.  That Court also stated that to be considered “harboring” under the statute, the person’s acts do not necessarily have to be bad enough to be smuggling.  In fact, the evidence against the defendant in that case was simply that the unauthorized alien had been living in the defendant’s apartment for two months, and the Court still convicted the defendant.  This case was by far the strictest application of this statute that I could find.

In 2004, the Courts’ interpretation of the “harbor” language in the statute started to loosen up a bit.  In that year, the Ninth Circuit held that in order to convict a defendant, it must be determined that the defendants intended to violate the law.  This decision in and of itself may not free landlords from all liability. Especially when they know they are renting a house to illegal immigrants.

In May of 2005, however, a federal District Court in California held that “harbor” means simply “to give shelter or refuge to” or “to be the home or habitat of”, which would obviously be worse for landlords. In that case, the Court pointed to other cases where defendants were found to be in violation of this statute for allowing undocumented aliens to live in their house without paying rent, and at the same time allowing those aliens to work in their restaurant.

If a landlord was investigated and cited or arrested under this first section of 8 U.S.C.A. § 1324, it is difficult to know exactly how the Courts would apply the law to their circumstances.  On one hand, the majority of the cases, especially those from the Ninth Circuit, are not in the landlord’s favor. 

The Second Section of 8 U.S.C.A. § 1324

The second part of 8 U.S.C.A. § 1324, (subsection (a)(1)(A)(iv)), states that a person may also be in trouble for encouraging an illegal alien to reside in the United States, knowing that the person is an illegal alien.  Like the previous section, this part of the statute could easily be interpreted to include landlords who knowingly rent to illegal immigrants.

However, I researched numerous cases in which defendants were prosecuted under subsection (iv), and the actions of each one of those defendants were substantially more egregious than just renting a house to an illegal immigrant. Many of those defendants in those cases were openly smuggling illegal immigrants into the United States.  Other offenses included conspiracies to obtain fraudulent visas, knowingly accepting false documentation for employment, and falsifying official immigration stamps allowing entry into the U.S.

There are no guarantees that a landlord will never be prosecuted under subsection (iv), nor is it a guarantee that if they were prosecuted, that a landlord’s circumstances will not be interpreted as “encouraging and alien to reside in the United States”.  However, to my knowledge, a court has never prosecuted a landlord for knowingly renting to an illegal immigrant.

In summary, it is impossible to predict whether a landlord could be prosecuted and/or convicted of a violation of the law simply by allowing illegal immigrants to rent a house. I view it as very unlikely that this could happen, but it is a possibility.  Ultimately, however, it is up to each individual landlord if you decide to knowingly rent a house to illegal immigrants.

If you are an Arizona landlord and have questions about your obligations and duties to your tenants then contact the Dunaway Law Group at 480-389-6529 or message us HERE.

Author: Clint Dunaway

Arizona attorney.