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Nos.

12-1702, 12-1705, 12-1708 ________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ________________________

FRED H. KELLER, JR., ET AL., Plaintiffs-Appellants v. CITY OF FREMONT, ET AL. Defendants-Appellees _______________________ MARIO MARTINEZ, JR., ET AL., Plaintiffs-Appellants v. CITY OF FREMONT, ET AL., Defendants-Appellees Caption continued on inside cover ________________________ On Appeal from the United States District Court For the District of Nebraska ________________________ PRINCIPAL BRIEF OF APPELLEES/CROSS-APPELLANTS THE CITY OF FREMONT _______________________ Kris W. Kobach Kobach Law, LLC 4701 N. 130th St. Kansas City, KS 66109 (913)638-5567 Garrett R. Roe Immigration Reform Law Institute 25 Massachusetts Ave., N.W. Suite 330-B Washington, DC 20001 (202)742-1830

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Caption continued from front cover _______________________

FRED H. KELLER, JR., ET AL., Plaintiffs-Appellees v. CITY OF FREMONT, ET AL. Defendants-Appellants _______________________ MARIO MARTINEZ, JR., ET AL., Plaintiffs-Appellees v. CITY OF FREMONT, ET AL., Defendants-Appellants _______________________

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TABLE OF CONTENTS Table of Authorities ................................................................................... vii Statement of the Issues.................................................................................. 1 Statement of the Facts ................................................................................... 2 Summary of the Argument ............................................................................ 8 Argument .................................................................................................... 11 I. Keller Appellants Juana Doe 2 and Juan Doe Lack Standing ............ 11 A. Appellant Juana Doe 2 is Not a Tenant in a Dwelling Unit and Therefore Lacks Standing................................................. 12 Appellant Juan Doe Will Never Be Required to Comply with the Ordinance.......................................................................... 14

B.

II.

The Salerno Rule Disfavoring Facial Challenges Renders Appellants Arguments Unsustainable ................................................................. 18 The Harboring Provisions of the Ordinance are Not Preempted ........ 20 A. The District Court Correctly Applied the Presumption Against Preemption.............................................................................. 22 Appellants Rest their Preemption Claims on One Vacated Opinion and One Split Decision.............................................. 25 The District Court Correctly Held that the Ordinance is not a Regulation of Immigration .................................................. 28 The District Court Correctly Held that the Ordinance is not Field Preempted ...................................................................... 33

III.

B.

C.

D.

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1.

There is no Field Preemption on the General Field of Immigration or the Sub-Field of Harboring Illegal Aliens ........................................................................... 33 The Ordinance Has Nothing to Do with Alien Registration................................................................... 36

2.

E.

The District Court Correctly Held that Requesting Immigration Status Information from an Alien and Verifying an Aliens Status with the Federal Government are not Conflict Preempted ....... 41 1. Whiting and Arizona Have Raised the Bar for Conflict Preemption Claims........................................................ 44 Congress Has Encouraged Local Efforts to Reduce Illegal Immigration ....................................................... 47 Appellants Inquisitorial Practices Argument is Nonsensical................................................................... 52

2.

3.

F.

The District Court Erred in Holding that Revocation of Illegal Aliens Occupancy Licenses Would be ConflictPreempted ............................................................................... 56 1. Under the Doctrine of Concurrent Enforcement, the Anti-Harboring and License-Revocation Provisions of the Ordinance Are Not Conflict-Preempted .................. 56 The District Courts Erred in Distinguishing the AntiHarboring and License-Revocation Provisions from the Remainder of the Ordinance ......................................... 62

2.

IV.

The Ordinance Does not Violate the Fair Housing Act ..................... 65 A. The District Court Properly Denied Martinez Appellants Rule 60(a) Motion Because Martinez Appellants did not Plead Disparate Impact ........................................................... 67

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B.

Unlawful Immigration Status is Not Protected by the FHA and therefore a Disparate Treatment Analysis Based on this Class is Erroneous................................................................... 74 Keller Appellants Have Not Established a Prima Facie Case of Disparate Impact Because they Have Not Presented a Relevant Subset that is Adversely Affected by the Ordinance ............... 77 The City has Legitimate, Non-Discriminator Reasons for Enforcing the Ordinance and No Less Burdensome Alternatives Exist.................................................................... 82

C.

D.

V.

The Ordinance Does Not Conflict with Section 1981........................ 86 A. B. No Appellant Possesses Standing to Raise this Claim ............. 86 Keller Appellants Alleged That the Ordinance Discriminated against Latinos Because of their National Origin and Cannot Change their Allegations Through Briefing ................ 87 Keller Appellants Failed to Make the Required Showing of Discriminatory Intent Below and Waived Their Right to Appeal the District Courts Holding........................................ 89 Keller Appellants Cannot Show Discriminatory Intent Against Latinos ....................................................................... 90 Keller Appellants Cannot succeed on a Theory of Discrimination against Illegal Aliens ...................................... 91 1. Section 1981 Does Not Protect Illegal Aliens as a Class ............................................................................. 92 If Section 1981 Once Did Protect Illegal Aliens as a Class, Then 8 U.S.C. 1324(a)(1)(A) Partially Repealed It .................................................................... 94

C.

D.

E.

2.

VI.

The Ordinance Does Not Exceed the Citys Municipal Authority Under Nebraska State Law................................................................ 97 v

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A.

The Ordinance is an Exercise of the Police Powers Authorized by Neb. Rev. Stat. 16-246 .................................................... 98 The Ordinance is Not Inconsistent With the General Laws of the State ............................................................................ 102 1. 2. Nebraskas E-Verify Law ........................................... 102 Nebraskas Fair Housing Act ...................................... 107

B.

C. D.

Appellants Two-Mile Limit Argument Falls Short ........... 108 The Ordinance is Specifically Authorized by Two State Statutes ................................................................................. 110 1. The Ordinance is Authorized by Nebraskas Municipal Licensing Statute ........................................................ 110 The Ordinance is Authorized by Nebraskas Statute Requiring Municipalities to Deny Benefits to Illegal Aliens ......................................................................... 113

2.

E.

Appellants Manufactured Test Regarding Issues of Not Purely Local Concern is Irrelevant ...................................... 114

VII. The Provisions of the Ordinance are Severable................................. 119 A. B. The Ordinance is Clearly Severable Under Sarpy ................. 120 The Ordinance is Severable under Duggan ........................... 121

Conclusion ................................................................................................ 124 Certificate of Compliance ......................................................................... 126 Certificate of Service ................................................................................ 127

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TABLE OF AUTHORITIES Cases Abbate v. United States, 359 U.S. 187 (1959) ....................................... 56, 60 Alpern v. UitliCorp United, 84 F.3d 1525 (8th Cir. 1996) ........................... 67 Altria Group, Inc., v. Good, 129 S. Ct. 538 (2008).......................... 22, 24, 25 Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998) ................................ 93, 94 Ariz. Contractors Assn v. Candelaria, 2007 U.S. Dist. LEXIS 96194 (D. Ariz. 2007), affd sub nom. Chicanos Por La Causa v. Napolitano, 544 F.3d 976 (9th Cir. 2008), affd sub nom. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011) .................................................... 48 Arizona v. United States, Sup. Ct. No. 11-182 (2012) .......................... passim Atkinson v. Inter-American Dev. Bank, 156 F.3d 1335 (D.C. Cir. 1998) ... 106 Axberg v. City of Lincoln, 141 Neb. 55 (1946) .......................................... 117 Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979) ............. 16 Barron v. S.D. Bd. of Regents, 655 F.3d 787 (8th Cir. 2011)....................... 11 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2008) ........................................ 71 Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir. 2010)................................. 91 Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484, 623 N.W.2d 672 (2001) .................................................................. 100 Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011) .................. passim Charleston Hous. Auth. v. USDA, 419 F.3d 729 (8th Cir. 2005) ............. 1, 78 vii

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Chicanos Por la Causa v. Napolitano, 558 F.3d 856, 867 (9th Cir. 2009), affd sub nom. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 ........................ 103 City of L.A. v. Alameda Books, 535 U.S. 425 (2000) ................................... 84 City of Omaha Human Relations Dept. v. City Wide Rock & Excavating Co., 201 Neb. 405 (Neb. 1978) ..................................... 118 City of Omaha v. Cutchall, 173 Neb. 452, 114 N.W.2d 6 (1962) .............. 100 Clifton Terrace Assocs. V. United Techs. Corp., 929 F.2d 714 (D.C. Cir. 1991) .......................................................... 87 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) ........ 1, 72 Davis v. Federal Election Commn, 128 S.Ct. 2759 (2008)......................... 12 Dahl v. Rice County, 621 F.3d 740 (8th Cir. 2010) ..................................... 90 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ................................ 12 Darst-Webbe Tenant Assn Bd. v. St. Louis Hous. Auth., 417 F.3d 898 (8th Cir. 2005) ................................................. 78, 82, 86 De Canas v. Bica, 424 U.S. 351 (1976) ............................................... passim Duggan v. Beerman, 249 Neb. 411 (1996) .........................................120-123 Elizabeth M. v. Montenez, 458 F.3d 779 (8th Cir. 2006) ......................... 1, 15 English v. General Electric Co., 496 U.S. 72 (1990)................................... 24 Espinoza v. Farah Manufacturing Co., Inc., 414 U.S. 86 (1973)............................................................. 74, 107-108 Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963)............................................................... 24, 56-57 viii

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Gade v. National Solid Wastes Management Assn, 505 U.S. 88 (1992)................................................................. 23-24, 44 Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010) ............................. passim Gambill v. Duke Energy Corp., 456 Fed.Appx. 578 (6th Cir. 2012)............ 69 Gamma-10 Plastics v. American President Lines, Ltd., 32 F.3d 1244 (8th Cir. 1994) ............................................................. 73 Geier v. Amer. Honda Motor Co., Inc., 529 U.S. 861 (2000) ...................... 47 Gen. Bldg. Contractors Assn v. Pennsylvania, 458 U.S. 375 (1982) .......... 91 Gilbert v. Minnesota, 254 U.S. 325 (1920) ................................................. 57 Golden v. Zwickler, 394 U.S. 103 (1969) .................................................... 15 Gonzales v. Peoria, 722 F.2d 468 (9th Cir. 1983) ................................. 56, 58 Graham v. Richardson, 403 U.S. 365 (1971) .............................................. 93 Gray v. City of Valley Park, 2008 U.S. Dist. LEXIS 7238 (E.D. Mo. 2008) affd Gray v. City of Valley Park, 567 F.3d 976 (8th Cir. 2009) ................................................. 23, 58, 62 Green v. Dillards, Inc., 483 F.3d 533 (8th Cir. 2007) ................................ 91 Gregory v. Dillards, Inc., 565 F.3d 464 (8th Cir. 2009) ........ 1, 67, 69, 90-91 Guimaraes v. SuperValu, Inc., 674 F.3d 962 (8th Cir. 2012)........................ 74 Hallmark Developers, Inc. v. Fulton County, 466 F.3d 1276 (11th Cir. 2006) ............................................. 79, 80, 81 Halter v. Nebraska, 205 U.S. 34 (1907) ...................................................... 57 Hines v. Davidowitz, 312 U.S. 52 (1941) ......................................... 36-37, 43 ix

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Hispanic Interest Coalition of Ala. v. Bentley, 2011 U.S. Dist. LEXIS 137846 (D. Ala. 2011) .......................................................... 93 Hodak v. City of St. Peters, 535 F.3d 899 (8th Cir. 2008) ........................... 87 In re Jose C., 45 Cal. 4th 534 (2009) .................................................... 35, 61 Jacobberger v. Terry, 211 Neb. 878 (Neb. 1982) ...................................... 118 Jacobson v. Solid Waste Agency of Northwest Neb. (SWANN), 264 Neb. 961 (2003) ...................................................... 2, 99-100, 105 Jaksha v. State, 241 Neb. 106 (1992) ........................................................ 122 James v. City of Dallas, 254 F.3d 551 (5th Cir. 2001)................................. 15 Jenkins v. Winter, 540 F.3d 742 (8th Cir. 2008) ............................... 82-83, 90 John Doe No. 1 v. Ga. Dep't of Pub.Safety, 147 F. Supp. 2d 1369 (D. Ga. 2001) ................................................. 85 Johnson v. Missouri, 142 F.3d 142 F.3d 1087 (8th Cir. 1998) ................................................................... 1, 13, 15-16 Jones v. Rath Packing Co., 430 U.S. 519 (1977) ......................................... 24 Jones v. Hydro Conduit Corp., 2012 U.S. Dist. LEXIS 44768 (D.S.C. Jan. 10, 2012) ..................................................................... 107 Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993) ........... 72 Keller v. City of Fremont, 280 Neb. 788 (2010) .................................... 98-99 Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978) ...................................... 26 Lewis v. Casey, 518 U.S. 343 (1996) .......................................................... 11 x

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Lozano v. City of Hazleton, 620 F.3d 170 (3rd Cir. 2010), vacated and remanded at 131 S. Ct. 2958 (2011) ........................ 26-27 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................. 11, 16 Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987) ............................. 57, 64 L.Z. v. Parrish, 733 F.2d 585 (8th Cir. 1984) .............................................. 67 Massachusetts v. Mellon, 262 U.S. 447 (1923) ........................................... 15 Martinez v. Partch, 2008 U.S. Dist. LEXIS 4162 (D. Colo. 2008) .............. 76 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ................................. 22, 23, 47 Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117 (1973) ........ 62 Midwest Employers Council, Inc. v. City of Omaha, 177 Neb 877 (1964) .................................................................115-118 Mosby v. Williams, 2010 U.S. Dist. LEXIS 105536 (D. Ark. 2010) ............ 87 Niklaus v. Miller, 159 Neb. 301 (Neb. 1954) ............................................ 118 OShea v. Littleton, 414 U.S. 488 (1974) .................................................... 15 Oti Kaga, Inc. v. South Dakota Housing Dev. Auth., 342 F.3d 871 (8th Cir. 2003) ......................................................... 1, 78 Plyler v. Doe, 457 U.S. 202 (1982) ........................................... 33, 43, 75, 83 Powers v. Ohio, 499 U.S. 400 (1991).......................................................... 85 Presidio Enterprises, Inc. v. Warner Bros. Distributing Corp., 784 F.2d 674 (5th Cir. 1986) ........................................................... 106 Pulla v. Amoco Oil Co., 72 F.3d 648 (8th Cir. 1995) ........................ 1, 71, 73 xi

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Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .......................... 22, 24 Runyon v. McCrary, 427 U.S. 160 (1976) ................................................... 94 Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987)......................... 94 Sabri v. United States, 541 U.S. 600 (2004) ................................................ 19 Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir. 2002) ............................ 26 Sarpy v. City of Papillion, 277 Neb. 829 (2009).................................119-121 Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008) ........... 80 School Dist. v. McCook, 163 Neb. 817 (1957) ............................................ 99 Scottsbluff v. Winters Creek Canal Co., 155 Neb. 723 (1952) ................... 100 S.D. Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583 (8th Cir. 2003)............. 73 Stalley v. Catholic Health Initiatives, 509 F.3d 517 (8th Cir. 2007) ............ 67 State ex rel. Andruss v. North Platte, 120 Neb. 413 (1930) ......................... 99 State v. Belitz, 203 Neb. 375 (1975) .......................................................... 105 State v. Flores, 218 Ariz. 407 (Ariz. Ct. App. 2008) ........................ 57, 60-61 St. Francis Coll. v. Al-Khazraji, 481 U.S. 604 (1987) ............................. 2, 93 Storino v. Borough of Point Pleasant Beach, 322 F.3d 293 (3rd Cir. 2003) ............................................................ 12 Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009) ................................ 14 Takahashi v. Fish and Game Commission, 334 U.S. 410 (1948) ................. 92 Thomas v. Henry, 260 P.3d 1251 (Ok. 2011) .............................................. 84 xii

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Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2012) ............ passim Triad Elec. & Controls, Inc. v. Power Sys. Engg, Inc., 117 F.3d 180 (5th Cir. 1997) ............................................................. 73 Tsombanidis West Haven Fire Dept., 352 F.3d 565 (2d Cir. 2003) ............. 80 United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) ................................ 60 United States v. Asalati, 615 F.3d 1001 (8th Cir. 2010) .............................. 75 United States v. Balderas, 91 Fed. Appx. 354 (5th Cir. 2004) ..................... 60 United States v. Gomez-Moreno, 479 F.3d 350 (5th Cir. 2007) ................... 60 United States v. Estate of Romani, 118 S. Ct. 1478 (1998)........................ 106 United States v. Fort, 248 F.3d 475 (5th Cir. 2001) .................................... 85 United States v. Lemons, 697 F.2d 832 (8th Cir. 1983) ............................... 19 United States v. Loaiza-Sanchez, 622 F.3d 939 (8th Cir. 2010)................... 75 United States v. Locke, 529 U.S. 89 (2000) ................................................. 24 United States v. Lopez-Salas, 266 F.3d 842 (8th Cir. 2001) ........................ 75 United States v. Ovellaner, 405 F.3d 360 (5th Cir. 2005) ............................ 16 United States v. Raines, 362 U.S. 17 (1960)........................................ 19, 110 United States v. Rubio-Gonzalez, 674 F.2d 1067 (5th Cir. 1982) ................ 64 United States v. Salerno, 481 U.S. 739 (1987) ............................................ 18 United States v. Sanchez, 963 F.2d 152 (8th Cir. 1992).............. 59, 84, 95, 96 United States v. Stephens, 594 F.3d 1033 (8th Cir. 2010) ..................... 19-20 xiii

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United States v. Tipton, 518 F.3d 591 (8th Cir. 2008) ................ 59, 84, 95-96 United States v. Turkette, 452 U.S. 576 (1981) ........................................... 77 United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981) .............................. 60 United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999) ............. 47 United States v. Wilson, 503 U.S. 329 (1992) ............................................. 77 United States v. Zheng, 306 F.3d 1080 (11th Cir. 2002).............................. 50 Village of Winside v. Jackson, 250 Neb. 851, 553 N.W.2d 476 (1996) .................................................................. 100 Villas at Parkside Partners v. Farmers Branch, 675 F.3d 802 (5th Cir. 2012) petition for rehg pending ........ 26-28, 64 Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184 (2008) ................................................... 18-19, 56, 110 Whitehead Oil Co. v. City of Lincoln, 245 Neb. 660, 515 N.W.2d 390 (1994) .................................................................. 110 Whitmore v. Arkansas, 495 U.S. 149 (1990) ............................................... 15 Wolf v. City of Omaha, 177 Neb. 545 (1964) ........................................ 98-99 Wyeth v. Levine, 129 S. Ct. 1187 (2009) .......................................... 22, 24-25 Zar v. S.D. Bd. of Examrs of Psychologists, 976 F.2d 459 (8th Cir. 1992) ............................................................. 89

Federal Statutes and Rules 8 U.S.C. 1101 .................................................................................5, 29-30 xiv

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8 U.S.C. 1324a ............................................................................. 45, 58, 96 8 U.S.C. 1324(a)(1)(A)(ii) ................................................................. 60-61 8 U.S.C. 1324(a)(1)(A)(iii) ............................................................... passim 8 U.S.C. 1324(a)(1)(B)(1992) .................................................................. 96 8 U.S.C. 1324(a)(1)(C)(1992) .................................................................. 96 8 U.S.C. 1357(g) ............................................................................ 1, 46, 51 8 U.S.C. 1373 ................................................................................... passim 8 U.S.C. 1373(b) ................................................................................ 39, 48 8 U.S.C. 1373(c) ............................................................................... passim 8 U.S.C. 1621 ...................................................................................... 1, 77 8 U.S.C. 1621(a) ...................................................................... 1, 40, 49, 55 8 U.S.C. 1621(b) ...................................................................................... 55 8 U.S.C. 1621(c) ................................................................................ 40, 55 8 U.S.C. 1160(b)(7)(A)(i) ........................................................................ 96 8 U.S.C. 1160(b)(7)(A)(ii) ....................................................................... 96 18 U.S.C. 371 .......................................................................................... 96 42 U.S.C. 1981.................................................................................. passim 42 U.S.C. 3601......................................................................................... 68 42 U.S.C. 3604..................................................................................... 1, 74 Fed. R. Civ. P. 60(a) ................................................................................... 67 xv

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Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105 (1996)........... 39, 49 State Statutes Comp. St. 1922, secs. 3986-4030 precursor to current Neb. Rev. Stat. 16-246 ................................... 99 Neb. Rev. Stat. 4-108 ....................................................................... 40, 113 Neb. Rev. Stat. 4-109 ......................................................................... 2, 114 Neb. Rev. Stat. 4-111 ......................................................................... 2, 114 Neb. Rev. Stat. 4-112 ............................................................................. 114 Neb. Rev. Stat. 4-114 ......................................................................... 2, 103 Neb. Rev. Stat. 16-101 ............................................................................. 98 Neb. Rev. Stat. 16-205 ...................................................................... passim Neb. Rev. Stat. 16-229 ............................................................................. 98 Neb. Rev. Stat. 16-246 ...................................................................... passim Neb. Rev. Stat. 20-301 .......................................................................... 107 Neb. Rev. Stat. 20-318(5) ...................................................................... 107

City Ordinances Fremont Municipal Code Ch. 4, Art. 3 ...................................................... 101 Fremont Municipal Code Ch. 7, Art. 2 ...................................................... 101 Fremont Municipal Code Ch. 9, Art. 4 ...................................................... 101 Fremont Municipal Code Ch. 9, Art. 6 ...................................................... 101 xvi

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Fremont Municipal Code Ch 10 ................................................................ 101 Fremont Municipal Code 2-209 ............................................................. 101 Fremont Municipal Code 2-210 ............................................................. 112 Fremont Municipal Code 9-602 ............................................................. 112 Fremont Municipal Code 4-309 through 4-311 .................................... 112 Fremont Municipal Code 7-302 ............................................................. 112 Fremont Municipal Code 7-303 ............................................................. 112 Fremont Municipal Code 8-301 through 8-307 .................................... 112 Fremont Municipal Code 8-403 ............................................................. 112 Fremont Municipal Code 9-603 ............................................................. 112 Fremont Municipal Code 9-605 ............................................................. 112 Fremont Municipal Code 10-102 through 10-129 ................................ 112 Fremont Municipal Code 10-130 ........................................................... 112 Fremont Municipal Code 10-202 through 10-208 ................................ 112 Fremont Municipal Code 10-315 through 10-321 ................................ 112 Fremont Municipal Code 10-322 ........................................................... 112 Fremont Municipal Code 10-401 through 10-409 ................................ 101 Fremont Municipal Code 10-501 through 10-505 ................................ 112 Fremont Municipal Code 10-601 through 10-609 ................................ 112 Fremont Municipal Code 10-804 through 10-811 ................................ 112 xvii

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Fremont Municipal Code 10-904 ........................................................... 112 Fremont Ordinance 3139, section 1, paragraph K ..................................... 112

Legislative History S. Rep. No. 104-249, 104th Cong., 2d Sess. (1996) .................................... 39

Other Materials http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a 7543f6d1a/?vgnextoid=dc4f2363d8928310VgnVCM100000082ca60a RCRD&vgnextchannel=dc4f2363d8928310VgnVCM100000082ca60 aRCRD (Last visited July 3, 2012) ................................................... 20 ICE Fact Sheet, available at http://www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf (last visited July 4, 2012) .................................................................. 54 Dodge County Clerk Verifies Immigration Petition Signatures, Fremont Tribune (Mar. 25, 2009), available at http://fremonttribune.com/news/local/article_32276c70-7c0e5073-994b-de92bdc3821f.html ....................................................... 124

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STATEMENT OF THE ISSUES 1. Whether Keller Appellants Juana Doe 2 and Juan Doe possess

standing. Johnson v. Missouri, 142 F.3d 1087 (8th Cir. 1998); Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006). 2. Whether any part of the harboring sections of Ordinance 5165,

1(2)-(4), is preempted by federal law, pursuant to the Supremacy Clause, U.S. Const. art. VI, cl. 2. De Canas v. Bica, 424 U.S. 351 (1976); Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011); Arizona v. United States, Sup. Ct. No. 11-182 (2012). 8 U.S.C 1324(a)(1)(A)(iii), 1324(c), 1357(g)(10), 1373, 1621, 1644. 3. Whether Martinez Appellants included a Fair Housing Act disparate

impact claim in their Third Amended Complaint. Gregory v. Dillards, Inc., 565 F.3d 464 (8th Cir. 2009); Pulla v. Amoco Oil Co., 72 F.3d 648, 658 (8th Cir. 1995); Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000). 4. Whether any part of the harboring sections of Ordinance 5165 violates

the federal Fair Housing Act under a disparate impact theory. Oti Kaga, Inc. v. South Dakota Housing Dev. Auth., 342 F.3d 871, 883 (8th Cir. 2003); Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010); Charleston Hous. Auth. v. USDA, 419 F.3d 729, (8th Cir. 2005). 42 U.S.C. 3604.

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5.

Whether any part of the harboring sections of Ordinance 5165 violates

42 U.S.C. 1981. St. Francis Coll. V. Al-Khazraji, 481 U.S. 604 (1987); Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2012). 6. Whether Ordinance 5165 is a valid exercise of the municipal powers

of a Nebraska city of the first class. Jacobson v. Solid Waste Agency of Northwest Neb., 264 Neb. 961 (2003). Neb. Rev. Stat. 4-109; 4-114; 16-205; 16-246. 7. Whether any parts of the harboring sections of Ordinance 5165 are

severable. Sarpy v. City of Papillion, 277 Neb. 829 (2009).

STATEMENT OF THE FACTS The City accepts the preponderance of Appellants statement of facts, but disagrees on two points: the description of how Ordinance 5161 (the Ordinance) operates, and the description of Fremont voters intentions in enacting the Ordinance. A more accurate statement on those points follows. Ordinance 5165 was carefully drafted to comply with controlling federal precedents defining the authority of state and local governments to discourage illegal immigration and otherwise reinforce federal immigration law. The Ordinance requires each prospective adult tenant of a rented dwelling unit in the

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City to obtain a residential occupancy license. 1(3.A-3.B).1 The Ordinance applies only to future tenancies, commencing after the Ordinance goes into effect. 1(2.A(3)). To obtain a license, the prospective tenant must submit a one-page form to the City and pay a $5 fee. 1(3.B). On this form, the applicant must provide basic information such as name, address, date of birth, and country of citizenship, along with the address of the proposed rental premises, the date of lease or rental commencement, and the name and business address of the landlord. 1(3.E(1)-(9)). An applicant who is a United States citizen or national must so declare. 1(3.E(9)(a)). An applicant who is not a United States citizen or national must either provide an identification number that the applicant believes establishes his or her lawful presence in the United States or declare that the applicant does not know of any such number. 1(3.E(9)(b)). Upon receipt of a completed application and fee, the Fremont Police Department (hereinafter Department) immediately issues the license, without scrutiny of the information provided. 1(3.B). In the case of an applicant who has declared himself or herself a United States citizen or national, no further action is taken. In the case of other applicants, the Department exercises the Citys authority under 8 U.S.C. 1373(c) to verify the immigration status of the applicant with the federal government. 1(4.A). If the federal governments response is
1

The Ordinance is at JA 133-40. All references will be to specific Ordinance sections, rather than to JA page numbers. 3

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that the applicant is lawfully present, no further action is taken. If the response is inconclusive or tentative, no further action is taken unless and until a final verification is received. 1(4.C). The Department may use any process that the federal government directs it to use, including the Systematic Alien Verification for Entitlements (SAVE) program, direct telephonic inquiries to Immigration and Customs Enforcement (ICE), or any other method of submitting inquiries to the federal government. 1(4.A). Under no circumstances may the City attempt to independently verify any aliens immigration status. 1(4.C). If the federal government notifies the City that the applicant is not lawfully present in the United States, the Department issues a deficiency notice. 1(4.B). The notice affords the applicant a 60-day window in which to obtain a correction of the federal governments records and to submit additional information to the federal government. Id. After the 60 days, the Department again queries the federal government pursuant to 8 U.S.C. 1373(c). 1(4.D). Only if the federal government reports for a second time that the applicant is not lawfully present does the Department send a notice of revocation of the residential occupancy license to the applicant and to the landlord. Id. The Ordinance provides for pre-deprivation and post-deprivation judicial review. 4(F). Under Ordinance 5165, it is unlawful to, among other things, (1) lease or rent a rental unit as a lessor without obtaining and retaining a copy of the license of 4

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each known occupant; or (2) as a landlord, knowingly permit an occupant to occupy a rental unit without a valid license. The Ordinance does not impose any penalties upon occupants. 1(3). Ordinance 5165 relies entirely upon the definitions of immigration status provided by federal immigration law, 8 U.S.C. 1101, et seq. 1(1.A-1.B, 1.F). The City must accept the federal governments determination of each aliens status, pursuant to 8 U.S.C. 1373(c). 1(1.A-1.B). Federal immigration law governs suits for judicial review of actions taken under the ordinance. 1(4.F(4)). The employment provisions of the Ordinance require employers in Fremont to utilize the E-Verify Program to verify the employment authorization of newlyhired employees. Ord. 5165 5(E-F). City agencies are required to enroll in the E-Verify Program, as are businesses that contract with the City. Id., 5(C-D). The City Attorney may enforce the employment provisions by seeking cancellation of any City contract or revocation of any City permit possessed by an employer who violates the Ordinance in an adjudicative proceeding before the City Council, with the protections of due process and the right of appeal to the District Court of Dodge County. Id., 5(E). The City Attorney may also seek injunctive relief in any court of competent jurisdiction in Dodge County. Id., 5(F). The Ordinance contains a robust severability clause. 2. A flowchart illustrating the operation of the Ordinance appears on the following page. 5

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Application complete & fee paid?

No

Application rejected

Yes License issued

US citizen or national?

Yes

No further action

No

Query 1: Lawfully present?

Yes or inconclusive

No further action

No Notice + 60day deferral No

Query 2: Lawfully present?

Yes or inconclusive

No further action

No License revoked

Judicial review

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On June 21, 2010, the voters of the City enacted the Ordinance by popular initiative. The popular vote total was 3,906 in favor (57%) to 2,908 (43%) opposed. With respect to the intentions of the Fremont voters who adopted the Ordinance, Appellants make a variety of assertions that are inaccurate or attempt to impute discriminatory motivations to the 3,906 Fremonters who voted for the Ordinance, suggesting that they sought a reduction in the number of Hispanics living in Fremont. Keller Br. 4. For example, Keller Appellants claim that Jerry Hart, one of the co-petitioners, was concerned about the number of Hispanics who received benefits and services. Keller Br. 5 n.3 (Appellants words). They grossly mischaracterize Mr. Harts deposition testimony. Mr. Hart was emphatic that he was concerned about illegal aliens who impose costs on Fremont taxpayers, regardless of their ethnicity. JA 115-19. Martinez Appellants are equally misleading. They claim that Bob Warner, the sponsor of a virtually-identical ordinance when it was before the City Council, intended to reduce the growing number of Latinos in Fremont. Martinez Br. 7 (Appellants words). On the contrary, Mr. Warner emphatically explained that when he introduced his ordinance, it was not because of any animus toward Latinos or Hispanics. JA 1036-37 (Warner Dep. 127:1-128:22)(I was referring to illegals, because if I wouldnt have opposed Hispanics, why in the hell would I

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oppose the Latinos? [Plaintiffs counsel] just said theyre the same.); see also JA 1180-82. The district court forcefully rejected Appellants attempts to impute racist motivations to Fremonters. The Plaintiffs have directed the Court to no case in which such scant evidence and conjecture has been found sufficient to support a conclusion that unlawful discrimination was a motivating factor in the enactment of a statute, ordinance, or initiative. JA 112-13. Appellants do not appeal this finding of the court. Nor do they appeal the courts rejection of their intentional discrimination claims under the Equal Protection Clause, the FHA, and Section 1981. Thus, it is unclear why Appellants include these misleading accusations in their statement of facts at all.

SUMMARY OF THE ARGUMENT As a threshold matter, two Keller AppellantsJuana Doe 2 and Juan Doe lack standing in this matter. Juana Doe 2 no longer lives in a rented apartment, as she did when this case began; she lives in a trailer home that she owns. The Ordinance does not affect her in any way. Juan Doe is also unaffected by the Ordinance, because of his stated intention to remain at his current residence and his stated intention to return to his home country if his lawful immigration status expires. Because these two Appellants lack standing, no Appellant in this 8

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litigation may raise the FHA and Section 1981 claims presented. This Court may dismiss both claims for lack of jurisdiction. The district court properly held that the vast majority of the Ordinance was not preempted by federal law. The district court erred, however, in concluding that the license-revocation and anti-harboring provisions were preempted under a theory of implied conflict preemption. Neither the court, nor the Appellants, can identify any federal statute that conflicts with these provisiona necessary part of any conflict preemption claim. On the contrary, the Ordinance perfectly conforms to federal statutes that specifically invite state and local efforts to discourage illegal immigration. The district court correctly rejected Appellants regulation-ofimmigration and field preemption theories. If any Appellant has standing to raise an FHA disparate impact claim, it must nevertheless be rejected because the district court improperly extended the protections of the FHA to illegal aliens. The court also erred by failing to compare relevant groups to calculate any disparate impact. However, the court was correct in rejecting Martinez Appellants effort to re-characterize their disparate treatment claim in their Third Amended Complaint as a disparate impact claim. If any Appellant has standing to raise a Section 1981 claim, it must be rejected. The district court correctly denied Keller Appellants Section 1981 claim.

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Section 1981 does not apply to illegal aliens. And if it were to be construed that way, it would be implicitly repealed by relevant federal immigration laws. With respect to the Citys authority under state law to enact the Ordinance, the district court correctly held that the broad police powers afforded to Nebraska cities of the first class encompass the Ordinance. In addition, the City possesses separate and independent authority pursuant to the Nebraska municipal licensing statute and the Nebraska statute requiring that public benefits and licenses be denied to illegal aliens. Finally, the District Court correctly held that the provisions of the Ordinance are severable.

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ARGUMENT I. Keller Appellants Juana Doe 2 and Juan Doe Lack Standing. The City concedes that Appellant Fred Keller, Jr., as a landlord, has standing to raise most of the preemption claims asserted by Keller Appellants. However, the two remaining Keller AppellantsJuana Doe 2 and Juan Doelack standing to raise any claims in this case. The case or controversy requirement of Article III, which is the irreducible constitutional minimum of standing, contains three elements: First, the plaintiff must have suffered an injury in factan invasion of a legally protected interest[,] which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[.] Second, there must be a causal connection between the injury and the conduct complained ofthe injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted); Barron v. S.D. Bd. of Regents, 655 F.3d 787, 794 (8th Cir. 2011). The party invoking federal jurisdiction bears the burden of establishing standing. Lujan, 504 U.S.at 561. Importantly in the case at bar, [s]tanding is not dispensed in gross. Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). A plaintiff must demonstrate standing 11

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for each claim he seeks to press and for each form of relief that is sought. Davis v. Federal Election Commn, 128 S.Ct. 2759, 2768-69 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). Plaintiffs must establish proper jurisdictional bases for each and every claim particularly when courts are called upon to review a state or local legislative enactment. Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 300 (3rd Cir. 2003). As is explained below, there is no Keller Appellant who possesses standing to bring the FHA disparate impact claim or the Section 1981 claim. The only remaining Keller Appellanta United States citizen landlordobviously lacks standing to bring either claim. There is no other party in this case who raised either claim in his or her Complaint and who possesses standing to do so.2 Consequently, there is no jurisdiction to address those two claims.

A.

Appellant Juana Doe 2 is Not a Tenant in a Dwelling Unit and Therefore Lacks Standing.

At the time Keller Appellants initially filed their First Amended Complaint, Appellant Juana Doe 2 rented an apartment on a month-to-month basis in the City of Fremont. JA 155. However, her living situation changed significantly while this case was pending in the district court. During that time, she vacated her
2

The District Court correctly held that Martinez Appellants did not plead a disparate impact claim under the FHA in their Third Amended Complaint. JA 148-50. 12

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apartment, purchased a trailer home, and moved into that trailer home. Consequently, Appellant Juana Doe 2 does not have standing to challenge Ordinance 5165 because she owns her own trailer home. JSA 29 (Juana Doe 2 dep. 26:11-26:12). Moreover, she plans to continue living in her trailer home [i]ndefinitely. Sealed Supplemental Appendix (Sealed SA) 2 (28:4-28:6). Keller Appellants conceded in briefing below that she now owns her own trailer home. JA 263. Although she rents the space in the trailer home park on which her trailer home is located, that space is not a dwelling unit within the meaning of the Ordinance. A dwelling unit is a single residential unit with living facilities for one or more person, including space for living, sleeping, eating, cooking, bathing and sanitation. 1(1.C). Therefore, it is abundantly clear that Juana Doe 2 lacks standing to raise any claims in this matter because she is not subject to Ordinance 5165 and cannot demonstrate that she will ever be subject to Ordinance 5165. See Johnson v. Missouri, 142 F.3d 1087, 1089-90 (8th Cir. 1998). Although the City raised this deficiency in the standing of Juana Doe 2 below, see Supplemental Appendix (SA) 5, the district court erroneously repeated the description of Juana Doe 2 found in the Complaint, stating that she was renting an apartment unit month-to-month. JA 96. This was evidently an oversight on the part of the district court. It is, however, beyond dispute that Juana Doe 2 now resides in a trailer home that she ownsnot in a rented dwelling 13

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unitand is therefore not covered by the Ordinance. She stated in her deposition that she has no plans to move out of her trailer home and rent an apartment again. Sealed SA 2 (Juana Doe #2 Dep. 28:4-28:6)(Q. How long do you intend to continue living in your trailer...? A. Indefinitely). She will never have to comply with the Ordinance in any respect, is not currently covered by it in any respect, and thus no longer has standing. B. Appellant Juan Doe Will Never Be Required to Comply with the Ordinance.

The standing of Appellant Juan Doe is equally deficient. Juan Doe has no intention of leaving his current residence. Sealed SA 8 (Juan Doe dep. 38:1238:15). Specifically, when asked how long he intended to continue living at his current apartment he responded, For a long time. I feel comfortable there. Id. Consequently, the Ordinance will never affect him, since it only applies to new tenancies that commence after it takes effect. 1(2.A(3)). Thus, Juan Doe has no intention of taking steps that would bring him within the scope of Ordinance 5165. It is unclear when, if ever, Juan Doe would even be required to apply for a residential occupancy license. He did not allege, either in the Keller Amended Complaint, or in his deposition, that he has any specific plans to move. Juan Does lack of specific intention to commence a new tenancy after the Ordinance takes effect falls far short of the firm intention that the Supreme Court demands. Summers v. Earth Island Inst., 129 S. Ct. 1142, 1150 (2009). To have Article III 14

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standing, Plaintiffs must show they are likely to suffer future injury that will be remedied by the relief sought. Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006)(citing James v. City of Dallas, 254 F.3d 551, 563 (5th Cir. 2001))(emphasis added). Abstract injury is not enough. It must be alleged that the plaintiff has sustained or is immediately in danger of sustaining some direct injury as a result of the challenged [Ordinance]. OShea v. Littleton, 414 U.S. 488, 494 (1974)(quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)). The injury or threat of injury must be both real and immediate, not conjectural or hypothetical. OShea, 414 U.S. at 494 (quoting Golden v. Zwickler, 394 U.S. 103, 109-110 (1969)). In Johnson, the plaintiffs wanted to challenge a statute which had never been imposed on them. It was unclear when, if ever, the statute would affect them. This court explained the numerous speculative steps that would be required to take place before the statute could conceivably be applied against them. [A]bstract injury was not enough to confer standing, 142 F.3d at 1089, because the injuries were too speculative to invoke the jurisdiction of an Art. III court. Id. at 1090 (citations omitted). As this Court explained: We reject appellants argument that they have standing because imposition of a statutory sanction is imminent. It is well-settled that allegations of possible future injury do not satisfy the requirements of Art. III. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). Instead, [a] threatened injury must be certainly impending to 15

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constitute injury in fact. Id. (quoting Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979)). Id. at 1089. As this Court noted, the Supreme Court cautioned against accepting standing in these circumstances so as to reduce the possibility of deciding a case in which no injury would have occurred at all. Id. at 1090 (quoting Lujan, 504 U.S. at 565 n.2)(internal punctuation omitted). Like the Johnson case, it is unclear when, if ever, Juan Doe will be required to obtain an occupancy license under Ordinance 5165. He has not even expressed a remote intention (much less an immediate plan) to commence a new tenancy. The Ordinance will therefore never affect him, since it only affects tenancies commencing after it takes effect. 1(2.A(3)). Consequently, there is no injury in fact with a high degree of immediacy. Id. Indeed, there is no injury in fact at all. Even if Juan Does standing could be based on a hypothetical possibility that he himself does not expressthat he may someday move despite his current statement to the contraryhe still would not have standing because he is an alien under Temporary Protected Status (TPS). Sealed SA 4-5 (Juan Doe dep. 31:1432:7). This status means that Juan Doe is an alien who is lawfully present in the United States. United States v. Ovellaner, 405 F.3d 360, 364-65 n.21 (5th Cir. 2005)(person granted TPS is in a lawful status). TPS is extended to all aliens from a particular country, due to natural disasters or other factors that make a return to 16

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the aliens country of origin dangerous. As an alien lawfully present in the United States, Juan Doe is entitled to possess an occupancy license under Ordinance 5165. When the federal government notifies the City that Juan Doe is an alien lawfully present in the United States, no revocation of his occupancy license can occur. 1(4)(B)-(C)). Thus, he cannot possibly suffer any injury in fact sufficient to confer standing upon him. Finally, even if Juan Doe were to assert standing based on the speculation that at some point his TPS might be terminated, he would nonetheless lack standing because he stated in his deposition that, in that event, he would not remain unlawfully in the United States. Rather, he would at that point leave the United States. Sealed SA 6-7 (Juan Doe dep. 35:14- 36:6). He therefore cannot possess standing to challenge Ordinance 5165 if he has no intention of being subject to its terms. Thus, for multiple reasons Juan Doe lacks standing. As with the standing of Juana Doe 2, it appears that the district court mistakenly recited the description of Juan Doe in the Keller First Amended Complaint, without considering the deposition testimony presented in the Citys Summary Judgment Memorandum. JA 95 (describing Juan Doe as a City resident who is presently pending immigration proceedings (paraphrasing Complaint at JA154)). The court did not acknowledge either that he is a lawfully present alien with TPS status who intends to leave the United States when his TPS status 17

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expires, or that he has no present plans to move to a different apartment. Nor did the court conduct any analysis as to why Juan Doe would still possess standing in spite of those facts. JA 95-96. For all of these reasons, Juan Doe lacks standing.

II.

The Salerno Rule Disfavoring Facial Challenges Renders Appellants Arguments Unsustainable. Appellants brought a highly-speculative facial challenge to the validity of

the Ordinance before it had been implemented. Consequently, Appellants must establish that the Ordinance would conflict with federal law under every conceivable set of circumstances: A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully since the challenger must establish that no set of circumstances exist under which the Act would be valid. United States v. Salerno, 481 U.S. 739, 745 (1987)(emphasis added). In 2008, the Supreme Court reaffirmed the Salerno standard and made clear that its high hurdle applies in facial challenges. Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1190 (2008). The Court also reiterated that to prevail in a facial challenge, a plaintiff must establish that the law is unconstitutional in all of its applications. Id. (emphasis added). This is because [t]he State has had no opportunity to implement [the law], and its courts have had no occasion to construe the law in the context of actual disputes or to accord the law a limiting construction to avoid constitutional questions. Id. The 18

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Supreme Court cautioned: In determining whether a law is facially invalid, we must be careful not to go beyond the statutes facial requirements and speculate about hypothetical or imaginary cases. Id. (quoting United States v. Raines, 362 U.S. 17, 22 (1960)). On June 25, 2012, the Supreme Court reiterated that facial challenges are disfavored, this time in the specific context of a conflict preemption challenge to a state law discouraging illegal immigration. There is basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume [the law] will be construed in a way that creates a conflict with federal law. Arizona v. United States, Sup. Ct. No. 11-182, slip op. at 24 (2012). This Court has adhered to this high standard for facial challenges. The Supreme Courts disdain for facial challenges is an expression of judicial selfrestraint. United States v. Stephens, 594 F.3d 1033, 1037 (8th Cir. 2010)(quoting United States v. Lemons, 697 F.2d 832, 835 (8th Cir. 1983)). Facial challenges are especially to be discouraged when application of the challenged statute to the case at hand would be constitutional when the facts are eventually developed. Stephens, 594 F.3d at 1037 (quoting Sabri v. United States, 541 U.S. 600, 608-609 (2004)).

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As this Court has explained, the defendant need only offer a fact pattern in which the statute in question could be administered constitutionally, for the statute to survive a facial challenge. Stephens, 594 F.3d at 1038. This the City does easily (in addition to demonstrating that the Ordinance would be constitutional under all applications). For example, it is probable that a United States citizen will apply for an occupancy license, declare that he is a United States citizen as required by the application, receive his license, and commence his tenancy without event. Similarly, an alien who is a lawful permanent resident (green card holder) applies for an occupancy license, records her green card number on the application, and the City subsequently verifies her lawful immigration status with the federal government, and her tenancy proceeds without event. Such cases demonstrate sets of circumstances exist when the mandates of [the law] are constitutionally valid. Id. Because Appellants rushed to the courthouse to file their Complaints before the Ordinance was implemented, they now face the high hurdle for disfavored facial challenges. They cannot clear that hurdle.

III.

The Harboring Provisions of the Ordinance are Not Impliedly Preempted. Implied preemption in the immigration context is guided by the landmark

Supreme Court precedent of De Canas v. Bica, 424 U.S. 351 (1976). In that case, the Court laid out a three-part test for determining whether a state or local 20

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regulation affecting immigration is displaced through implied preemption. A state regulation is only preempted (1) if it falls into the narrow category of a regulation of immigration preempted by the Constitution itself, id. at 355, (2) if Congress expressed the clear and manifest purpose of completely occupying the field and displacing all state activity, id. at 357, or (3) if the state regulation conflicts with federal laws, such that it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. Id. at 363. Otherwise, a state or local government is free to enact a law that discourages illegal immigration or deals with aliens, without being preempted. Id. at 355. Appellants asserted before the district court that the Ordinance fails all three De Canas tests. The district court rejected virtually all of Appellants preemption arguments, holding that the Ordinance is not a regulation of immigration, is not field preempted, and that the vast majority of the Ordinances provisions do not conflict with federal law. JA 101-109.3 Appellants now raise the same preemption challenges again, but only with respect to the harboring provisions of the Ordinance. Before addressing Appellants specific preemption challenges, we turn first to the presumption against preemption.

The District Court found only that Sections 1(2), 1(3.L), and 1(4.D) of the Ordinance were conflict preempted, insofar as they provided for the revocation of occupancy licenses and prohibited the harboring of illegal aliens. JA 109. 21

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A.

The District Court Correctly Applied the Presumption Against Preemption.

The district court below correctly applied the presumption against preemption. Courts begin with a presumption against preemption. JA 101 (emphasis in original). As the Supreme Court held in 2009, the presumption against preemption applies in every preemption case. In all pre-emption cases, and particularly in those in which Congress has legislated... in a field which the States have traditionally occupied, ...we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (emphasis added)(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) and Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). In Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008) as well, the Court emphasized that the presumption against preemption applies in all preemption cases. The Court then noted that in some cases the assumption is especially strong. That assumption applies with particular force in cases that concern a field traditionally occupied by the states. Id. at 543. Because the regulation of rental accommodation remains within the states historic police powers, the assumption of non-preemption must apply with particular force in the case at bar. Moreover, Appellants must not only demonstrate congressional intent to preempt, they must show that such congressional intent is unambiguous. [T]he historic police powers 22

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of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress. Id. (internal citations omitted). In 2008, the Eastern District of Missouri sustained a local ordinance dealing with illegal immigration against a nearly-identical preemption challenge. That court applied the presumption against preemption and concluded that the presumption could only be set aside if the local ordinance actually attempted to regulate who should or should not be admitted into the country, and the conditions under which a legal entrant may remain. Gray v. City of Valley Park, 2008 U.S. Dist. LEXIS 7238 (E.D. Mo. 2008), at *24-*25, affd Gray v. City of Valley Park, 567 F.3d 976 (8th Cir. 2009)(quoting De Canas, 424 U.S. at 355). Because the ordinance did not do so, the court concluded, the Ordinance is a regulation on business licenses, an area historically occupied by the states. The rule articulated by the Supreme Court in Medtronic, Inc., is applicable, and the Court will apply a presumption against preemption. Id. at *25. The same analysis applies here. The regulation of business licenses and the regulation of residential rental units are in areas historically occupied by the states, and the Ordinance does not regulate who should or should not be admitted into the country. [W]e will not infer pre-emption of the States historic police powers absent a clear statement of intent by Congress. Gade v. National Solid Wastes 23

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Management Assn, 505 U.S. 88, 111-12 (1992) (Kennedy, J., concurring)(citing Rice, 331 U.S. at 230; Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); and English v. General Electric Co., 496 U.S. 72, 79 (1990)). In De Canas, the Supreme Court applied this high standard: [F]ederal regulation should not be deemed pre-emptive of state regulatory power in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion, or that Congress has unmistakably so ordained. 424 U.S. at 356 (quoting Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963))(emphasis added). Appellants have not offered any evidence of congressional intent to preempt ordinances like Ordinance 5165, much less unmistakable evidence thereof. Appellants incorrectly claim that the presumption against preemption should not apply. Martinez Br. 45; Keller Br. 11. Appellants error in this regard stems from their reliance on a 2000 case that has now been superceded with respect to the presumption against preemption: United States v. Locke, 529 U.S. 89, 108 (2000) ([A]n assumption of nonpre-emption is not triggered when the State regulates in an area where there has been a history of significant federal presence.). The relevant passage in Locke gave rise to considerable confusion on the issue confusion that was finally resolved in 2008 and 2009 in the cases of Altria, 129 S. Ct. at 543, and Wyeth, 129 S. Ct. at 1194-95, respectively.

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In Altria and Wyeth, the Supreme Court removed any uncertainty about when to apply the presumption against preemption, confirming that it applies [i]n all pre-emption cases.Wyeth, 129 S. Ct. at 1194-95 (emphasis added)(internal citations omitted). It applies with particular force in cases in which the challenged law is in a field traditionally occupied by the states. Id. Martinez Appellants also attempt to redefine the applicable field in order to reduce the strength of the presumption against preemption, by calling the applicable field the regulation of residence of noncitizens, Martinez Br. 45, or the regulation of immigration. Keller Br. 11. However, under De Canas, their attempt at reframing is wrong: [T]he fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain. Id. at 355. Thus, it is clear that the presumption against preemption applies in all cases; and in this case it applies strongly.

B.

Appellants Rest their Preemption Claims on One Vacated Opinion and One Split Decision.

Appellants rest their preemption case almost entirely upon two flawed decisions from other circuits. When Martinez Appellants declare that every other federal court to consider preemption of [similar ordinances] has struck it down in 25

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its entirety, Martinez Br. 23, they are actually referring to just two circuit cases: Lozano v. City of Hazleton, 620 F.3d 170 (3rd Cir. 2010), vacated and remanded at 131 S. Ct. 2958 (2011); and Villas at Parkside Partners v. Farmers Branch, 675 F.3d 802 (5th Cir. 2012), petition for rehg pending. Martinez Appellants rely particularly heavily on the Third Circuits decision in Hazleton, citing it (or the district court decision that it affirmed) a dozen times as the basis for their preemption theories.4 However, Hazleton is a deeply flawed decision that has already drawn an implicit rebuke from the Supreme Court. Shortly after handing down Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011), in which the Supreme Court rejected implied preemption arguments similar to those adopted by the Third Circuit, the high court vacated the Third Circuits decision in Hazleton, remanding the case for further consideration in light of Whiting. 131 S.Ct. at 2958. The Supreme Courts decision to vacate Hazleton is immensely important for two reasons. First, the Hazleton preemption analysis, upon which Appellants have built their argument, is unreliable and has been implicitly rejected by the Supreme Court. Second, in this Court [a] vacated decision is deprived of its precedential effect. Salitros v. Chrysler Corp., 306 F.3d 562, 575 (8th Cir. 2002) (citing Landrum v. Moats, 576 F.2d 1320, 1324 (8th Cir. 1978)).

Martinez Br. 3, 23-24, 26-27, 29, 33, 35, 38, 43, 45. 26

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Aware that they are treading on thin ice, Martinez Appellants urge this Court to rely on the vacated Hazleton opinion nonetheless, because the Hazleton ordinance involved both the employment and harboring of illegal aliens, whereas the Arizona law in Whiting involved only the employment of illegal aliens. Martinez Br. 29. However, the Supreme Courts decision to vacate Hazleton cannot be avoided by arguing that Whiting rendered the employment portion of the Hazleton decision invalid, but not the harboring portion. The Supreme Court vacated and remanded the entire decision in light of Whitingnot just the employment portion. 131 S. Ct. at 2958. The implied preemption challenges to the harboring provisions of the Hazleton ordinance were based on the same faulty premises as were the implied preemption challenges to the employment provisions of that ordinance. See Hazleton, 620 F. 3d at 202-225. The other decision upon which Appellants rely, Farmers Branch, is equally problematic.5 Farmers Branch is a split decision authored by Judge Thomas Reavley that prompted a vigorous dissent by Judge Jennifer Walker Elrod. It is Elrods opinion, not Reavleys, that is consistent with Supreme Court and Fifth Circuit precedents. In crafting its conclusion, the majority conflates the distinct doctrines of regulation of immigration and conflict preemption. [A] straightforward application of Supreme Court and Fifth Circuit precedent yields a
5

Keller Appellants base their five-and-a-half pages of preemption argument almost entirely on Farmers Branch. See Keller Br. 13-17. 27

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different result. Farmers Branch, 675 F.3d at 826-27 (Elrod, J., dissenting). The majority opinion also supplanted the controlling Supreme Court definition of a regulation of immigration with its own invented definition. [T]he majority concedes that the Ordinance does not determine the entry or exit of anyone into or out of the United States. This should be the end of the regulation of immigration inquiry. Id. at 827. After a petition for rehearing en banc was filed, the Fifth Circuit requested additional briefing. Case No. 10-10751, Doc. No. 00511841335 (May 1, 2012). The petition for rehearing en banc is still pending.

C.

The District Court Correctly Held that the Ordinance is not a Regulation of Immigration.

Appellants claim that the Ordinance is an attempt to regulate immigration. Keller Br. 15; Martinez Br. 30. However, Appellants ignore the Supreme Courts long-standing definition of what constitutes a forbidden state or local regulation of immigration, which is preempted by the Constitution itself. A preempted regulation of immigration is defined narrowly: [T]he fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain. De Canas, 424 U.S. at 355.

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Recognizing that the Ordinance cannot be accurately construed as a regulation of immigration, the district court rejected Appellants claim: Because the Fremont Ordinance is not essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain, it is not preempted by the United States Constitution. JA 105. The correctness of the district courts conclusion is clear. The Ordinance in no way determines who should or should not be admitted into the country. On the contrary, the Ordinance defers to federal categories of immigration status and the federal governments determination of any particular aliens immigration status. Like the Arizona law at issue in Whiting, the Ordinance applies federal immigration categories, classifications and definitions: Unlawfully present in the United States means unlawfully present in the United States according to the terms of United States Code Title 8, Section 1101 et seq. 1(1.B); see Whiting, 131 S. Ct. at 1981 (The Arizona law begins by adopting the federal definitions.). All determinations of an aliens immigration status are made by the federal government pursuant to 8 U.S.C. 1373(c), which Congress enacted to ensure that such local inquiries always receive a federal response. The City shall not conclude that an alien is unlawfully present in the United States unless and until an authorized representative of the City has verified with the federal government, 29

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pursuant to Title 8, United States Code, Section 1373(c), such aliens immigration status. 1(1.B)). The Department shall not attempt to make an independent determination of any occupants immigration status. 1(4.C). The Whiting Court spoke approvingly of the same language in the Arizona law: Not only that, the Arizona law expressly provides that state investigators must verify the work authorization of allegedly unauthorized aliens with the Federal Government, and shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. Whiting, 131 S. Ct. at 1981 (quoting Ariz. Rev. Stat. Ann. 23-212(B)). Nor does the Ordinance determine the conditions under which a legal entrant may remain in the United States. The Ordinance does not establish any new condition that an alien must satisfy to remain lawfully present in the United States. That is entirely a question of federal law, defined under 8 U.S.C. 1101, et seq. The Ordinance does establish conditions for any person (citizen or alien) occupying a rental unit in the City of Fremont. As the Supreme Court has made clear, a state or municipality is free to enact legislation discouraging illegal immigration within its jurisdiction without being preempted: In this case, California has sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does 30

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not thereby become a constitutionally proscribed regulation of immigration. De Canas, 424 U.S. at 355-56 (emphasis added). Appellants assertion that the Ordinance constitutes a preempted regulation of immigration cannot be squared with the Supreme Courts De Canas holding. Martinez Appellants nevertheless attempt to obfuscate the issue. They assert, By imposing conditions on aliens presence in the United States, 1(3) and 1(4) constitute an impermissible regulation of immigration. Martinez Br. 30. The premise of this assertion is misleading in four respects. First, the Ordinance does not impose a condition on aliens presence in the United States. Rather, it imposes a condition on any personcitizen or alienoccupying a rental unit in Fremont. Second, the Ordinance does not impose a condition upon presence. Rather, it imposes a condition upon retention of an occupancy license issued by the City. Third, it does not impose a condition upon presence in the United States; rather, it imposes a condition upon occupying a rental unit in the City of Fremont. Fourth, Martinez Appellants misstate the De Canas definition by omitting the crucial phrase legal entrant and replacing it with aliens. Again, the correct definition of a regulation of immigration is: a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain. De Canas, 424 U.S. at 355. In short, Appellants must resort

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to misstating the De Canas definition and misconstruing the Ordinance in order to claim that it constitutes a regulation of immigration. Keller Appellants offer an even weaker argument. They assert that because eight of the ten whereas clauses in the Ordinance make statements that touch on illegal immigration, the Ordinance is therefore an attempt to regulate immigration in Fremont. Keller Br. 13. However, the concerns mentioned in the whereas clauses are irrelevant to the determination of whether a law constitutes a forbidden regulation of immigration. The Ordinance does not determine who should be admitted into the country; nor does it impose conditions upon legal entrants remaining in the country. See De Canas, 424 U.S. at 355. The analysis need go no further. Keller Appellants are also mistaken in suggesting (without any support) that a city is forbidden to exercise its traditional police powers in a manner that serves to deter illegal immigration. See Keller Br. 13-14. As the Supreme Court has explained: [U]nchecked unlawful migration might impair the States economy generally, or the States ability to provide some important service. Despite the exclusive federal control of this Nations borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.

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Plyler v. Doe, 457 U.S. 202, 225 n.23 (1982). Accordingly, this Court should affirm the holding of the district court below that the Ordinance is not a regulation of immigration.

D.

The District Court Correctly Held that the Ordinance is not Field Preempted.

The district court also rejected Appellants claim that the Ordinance is field preempted. While it may be inferred that Congress has preempted the field of immigrationi.e. what, where, and how aliens or immigrants may enter and must leave the countryit cannot be inferred that states and municipalities have no authority to enact laws and ordinances that are in harmony with federal objectives. JA 107. That holding is correct, as explained below.

1.

There is no Field Preemption on the General Field of Immigration or the Sub-Field of Harboring Illegal Aliens.

Appellants claim that the Ordinance is field preempted, asserting that certain sections intrude in fields fully occupied by federal immigration law. Martinez Br. 36. In making this claim, Appellants once again ignore the

controlling precedent of De Canas. In De Canas, the Supreme Court emphatically rejected the argument that the enactment of the Immigration and Nationality Act

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(INA) constituted general field preemption and thereby displaced state and local laws relating to aliens. In De Canas, the Supreme Court sustained against a preemption challenge a California law that imposed penalties on any employer who knowingly employ[ed] an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers. 424 U.S. at 352. The De Canas Court held that states and localities possessed wide leeway to deal with aliens without being preempted. Id. at 355. Importantly, the De Canas Court considered and expressly rejected the possibility that the regulation of immigration by the federal government might be so comprehensive that it leaves no room for state action on the field: Only a demonstration that complete ouster of state power including state power to promulgate laws not in conflict with federal laws was the clear and manifest purpose of Congress would justify that conclusion . Respondents have not made that demonstration. They fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular. De Canas, 424 U.S. at 357-58 (internal citations omitted)(emphasis added). The Supreme Courts holding that field preemption has not occurred was unequivocal. Thus, it is plain that there is no field preemption on the general field of regulations relating to aliens. 34

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It is equally clear that there is no field preemption on the specific field on which the harboring provisions of the Ordinance operatethe field of harboring illegal aliens. Harboring is one of several crimes regarding interactions between illegal aliens and others that are prohibited by 8 U.S.C. 1324(a)(1)(A); among the other crimes are shielding illegal aliens from detection, transporting illegal aliens, and encouraging or inducing illegal aliens to remain in the United States. Id. In 2009, the California Supreme Court explained why field preemption regarding the criminal provisions of the INA has not occurred: [T]hose federal circuits to have addressed the question (the Fifth, Ninth, and Tenth) have unanimously concluded Congress has not occupied the field and preempted state assistance in the enforcement of federal criminal immigration law. These courts recognize that Congress has established a regime of cooperative federalism, in which local, state, and federal governments may work together to ensure the achievement of federal criminal immigration policy. This is the antithesis of preemption. In re Jose C., 45 Cal. 4th 534, 553 (2009)(citations omitted)(emphasis added). This is particularly true with respect to harboring, because Congress has specifically invited state and local governments to provide assistance in combating the harboring of illegal aliens. Federal law at 8 U.S.C. 1324(c) authorizes all state and local officers whose duty it is to enforce criminal laws to arrest individuals who are guilty of harboring under 8 U.S.C. 1324(a)(1)(A)(iii). Where a federal statute invites the states onto the field in this manner, field preemption cannot exist, by definition. Appellants would have this Court find field 35

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preemption where the Supreme Court (and every appellate court that has considered the question since) has declined to do so. Their field preemption claim must accordingly be rejected.

2.

The Ordinance Has Nothing to Do with Alien Registration.

Perhaps recognizing that it would be futile to argue that cities and states are preempted from the sub-field of harboring, Appellants attempt to mischaracterize the Ordinance in order to place it in a different sub-field. They claim that the law crafted by the district court is akin to an alien registration law. Martinez Br. 33; Keller Br. 17-18. Appellants must concede the obvious: the Ordinance is not identical to the federal alien registration law. Martinez Br. 30. But they attempt to make the argument anyway, insisting that the Ordinance impinges on the same territory, and has similar effects. Id. Appellants argument is nonsensical. It is true that states and cities are preempted from implementing alien registration systems. The Supreme Court held in 1941 that the State of Pennsylvanias attempt to register, document, and track all aliens in the State during the Second World War was preempted by Congresss complete system for alien registration. Hines v. Davidowitz, 312 U.S. 52, 70 (1941). The Court recently reiterated the Hines conclusion, holding that the federal alien registration system displaced an alien registration law adopted by Arizona. The framework 36

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enacted by Congress leads to the conclusion here, as it did in Hines, that the Federal Government has occupied the field of alien registration. Arizona, slip op. at 9. The Arizona law was field preempted because it created state crimes for failing to register in the federal registration system and failure to carry federal registration documents, thereby giv[ing] itself independent authority to prosecute federal registration violations. Id. at 10. The Ordinance in this case is not even close to an alien registration system. The sixty-year-old Alien Registration Act requires all aliens in the United States, fourteen years of age or older, who remain in the United States for thirty days or longer, to register with the federal government and be fingerprinted, carry their alien registration receipt card, and imposes penalties for noncompliance. 8 U.S.C. 1302(a), 1304(e), 1306. The Ordinance does none of the above. It does not in any way involve aliens who are merely present in the City and who do not reside in rental housing. It does not involve aliens who reside in homes that they own. And, most importantly, it also includes U.S. citizens. Thus, the Ordinance cannot plausibly be characterized as an alien registration system. Moreover, Appellants argument proves too much. Appellants suggest that merely by collecting information from tenants on application forms, and requiring tenants to fill out new forms when they move to a new apartment, the Ordinance is close enough to a forbidden registration system. Martinez Br. 31. However, if the 37

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Ordinance is an alien registration system, then so too is a state drivers license statute that limits licenses to lawfully present aliens. Indeed, a drivers license statute is more like an alien registration scheme since it requires license holders to carry licenses with them when they drive, and it is used as a form of identification for air travel, financial transactions, and voting. Of course, it would be absurd to claim that state drivers license statutes constitute forbidden alien registration systems. It is equally absurd to claim that the Ordinance is one. An even greater problem with Appellants argument is that it renders federal law incomprehensible. Specifically, 8 U.S.C. 1373 contemplates that state and local officials will collect information about particular individuals and then submit that information to the federal government, which must respond to any request made by state officials for verification of a persons citizenship or immigration status. Arizona, slip op. at 20. The text of the statute is unambiguous: Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information. 8 U.S.C. 1373(c)(emphasis added). Importantly, in the same section, Congress also recognized the interest of cities in [s]ending and [m]aintaining such information regarding the immigration status, lawful or unlawful, of any 38

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individual. 8 U.S.C. 1373(b)(1)-(2). The fact that Congress wanted municipalities to be able to send and maintain alien status informationnot just receive itis definitive proof that Congress expected state and local governments to implement programs under which they would make inquiries about the legal status of aliens, and that they would maintain records related to such inquiries. If Appellants theory were correctthat maintaining such records is tantamount to establishing a preempted alien registration systemthen 8 U.S.C. 1373 would make no sense, since it specifically contemplates cities and states doing so. The Senate Report accompanying this legislation emphasized Congresss objective of encouraging states to acquire and maintain immigration-related information: Effective immigration law enforcement requires a cooperative effort between all levels of government. The acquisition, maintenance, and exchange of immigration-related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act. S. Rep. No. 104-249, 104th Cong., 2d Sess., at 19-20 (1996) (emphasis supplied). Congress has encouraged the sharing of information about possible immigration violations. Arizona, slip op. at 21. The Ordinance was built around 8 U.S.C. 1373 and the cooperative effort that it envisions. Indeed the Ordinance repeatedly makes express reference to this federal statute. 1(1.A), 1(1.B), 1(1.F), 1(3.G), 1(4.A), 1(4.F.5). To argue that the cooperative maintenance and 39

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sharing of information that Congress encouraged somehow constitutes a preempted alien registration system is simply nonsensical. Finally, there is yet another federal statute that cannot be squared with Appellants argument. In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105 (1996). PRWORA requires cities to collect personal information from applicants for public benefits and to verify with the federal government the immigration status of any aliens seeking such benefits. Congress stated that an unqualified alien who is unlawfully present in the United States is not eligible for any State or local public benefits. 8 U.S.C. 1621(a). States and localities were not only encouraged to collect information from, and verify the status of, aliens seeking public benefits, they were required to do so. 8 U.S.C. 1621(a), (c). The Ordinance is precisely the sort of benefits-denial regulation that Congress envisioned. Congress created an open-ended list of public benefits that must be denied to illegal aliens, including various licenses. 8 U.S.C. 1621(c)(1). Accordingly, the State of Nebraska enacted Neb. Rev. Stat. 4-108, which requires political subdivisions of the state, like the City of Fremont, to verify the lawful presence in the United States of any person who has applied for public benefits administered by an agency or a political subdivision of the State of

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Nebraska. An applicant is required to attest that he or she is a United States citizen or is a qualified alien. Neb. Rev. Stat. 4-111. Nebraska municipalities have collected application forms and attestations from tens of thousands of aliens residing in the state who have sought public benefits. The Appellants strained logic would make each of these municipal programs a forbidden alien registration system, despite the fact that each is compelled by federal law. For all of these reasons, this Court should affirm the district courts conclusion that the Ordinance is not field preempted.

E.

The District Court Correctly Held that Requesting Immigration Status Information from an Alien and Verifying an Aliens Status with the Federal Government are not Conflict Preempted.

In addressing conflict preemption, the district court reached different conclusions with respect to different parts of the Ordinance. The court correctly held that all of the employment provisions, the harboring provisions that require tenants to provide information to receive an occupancy license, and the harboring provisions that verify aliens immigration statuses with the federal government were not conflict preempted. JA 102-08. With respect to the harboring provisions, the district court correctly stated: To the extent that the Ordinance requires persons seeking residential occupancy permits to provide certain information concerning their immigration status, or lack thereof, and requires FPD to communicate such information to federal authorities, the Ordinance is in harmony 41

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with INAs objective of facilitating cooperation between officers and employees of states and political subdivisions and federal immigration authorities regarding the identification of individuals who may be in the United States unlawfully. JA 107-08. However, the district court did find conflict preemption of the licenserevocation provisions and the provisions that penalize the harboring of illegal aliens, namely 1(2), 1(3.L), and 1(4.D). JA 108-09. The district court erred in this respect. The following analysis applies to all of the harboring provisions of the Ordinancesupporting the conclusion that no portion of the Ordinance is conflict preempted. In Section III.F, below, the City provides additional reasons why the district court erred in reaching a different conclusion with respect to the license-revocation and anti-harboring provisions. Martinez Appellants claim that the Ordinance is conflict preempted. The exact nature of the conflict that they assert is unclear, but it appears to be: Permitting new obligations such as Fremonts upends congressional objectives by demanding additional alien information at the expense of Congresss other goal protecting noncitizens from inquisitorial practices. Martinez Br. 37. Keller Appellants do not assert a conflict preemption claim. See Keller Br. 10-18. The greatest flaw in Martinez Appellants argument is their failure to cite a single law that conflicts with the Ordinance. See Martinez Br.36-42. In the landmark case of De Canas, the Supreme Court made it perfectly clear that state and local governments have wide latitude to enact regulations 42

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affecting immigration without being displaced through implied conflict preemption: [A]n independent review does not reveal any specific indication either in the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular. 424 U.S. at 358 (internal citations omitted). States (and localities) are free to enact statutes affecting immigration as long as they are harmonious with federal law and they do not defeat congressional objectives. Id. Conflict preemption only occurs if simultaneous compliance with state and federal law is impossible or the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the INA. Id. at 363 (quoting Hines, 312 U.S. at 67). Six years later, in Plyler v. Doe, the Supreme Court reiterated its holding in De Canas that states may take steps to discourage illegal immigration. As we recognized in De Canas the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. Plyler, 457 U.S. at 225. The Supreme Court has never departed from this holding.

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1.

Whiting and Arizona Have Raised the Bar for Conflict Preemption Claims.

In Whiting, the Supreme Court reiterated the difficulty of succeeding on an implied conflict preemption challenge in the immigration context: Our precedents establish that a high threshold must be met if a state law is to be preempted for conflicting with the purposes of a federal Act. That threshold is not met here. Whiting, 131 S. Ct. at 1985 (quoting Gade, 505 U.S. at 110 (1992) (Kennedy, J., concurring))(emphasis added). The Whiting Court then clarified that a particular type of conflict preemption claims will always be rejected. Specifically, the Court addressed a conflict preemption claim that was based not on an unmistakable conflict with the terms of a specific federal statute, but rather on mere tension with purported federal objectives. The Whiting Court emphatically rejected this approach: Implied preemption analysis does not justify a free-wheeling judicial inquiry into whether a state statute is in tension with federal objectives; such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law. Whiting, 131 S.Ct. at 1985 (quoting Gade, 505 U.S. at 111 (Kennedy, J., concurring)). Martinez Appellants conflict preemption claim is just this sort of untenable claim. Appellants fail to identify a single federal statute that demonstrates congressional intent to preempt laws like the Fremont Ordinance. See Martinez 44

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Br. 36-42. Instead, they base their conflict preemption claim on theoretical tension with unstated congressional objectives, inviting this Court to engage in freewheeling judicial inquiry into whether the harboring provisions of the Ordinance are in tension with federal objectives. With the Whiting decision, the Supreme Court has now made clear that any such preemption claim must be rejected. A year later, in Arizona, the Supreme Court addressed yet another Arizona law. The Court applied conflict preemption principles to two sections of the law, finding one (Section 5(C)) to be conflict preempted and finding the other (Section 2(B)) not to be conflict preempted.6 The section that was conflict preempted was one that imposed state criminal penalties on aliens who seek or engage in unauthorized employment. That section was held to conflict with a specific federal statute (8 U.S.C. 1324a) that penalized employers of unauthorized aliens, but not the unauthorized aliens themselves. Congressional intent was unmistakable:
6

The other provisions of the Arizona law at issue were Section 3 and Section 6. The Court found Section 3 to be preempted under field preemption analysis. Arizona, slip op. at 8-11. The Court did not clearly identify the specific type of preemption at work regarding Section 6, but described the preemption problem as being that an arresting state police officer might attempt make an independent determination of an aliens removability: This state authority could be exercised without any input from the federal government about whether an arrest is warranted in a particular case. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. Arizona, slip op. at 17. Such independent determinations of removability are expressly prohibited by the Ordinance. 1(1.A)-(1.B). In any event, the Ordinance does not authorize Fremont police officers to make immigration arrests. 45

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Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. Arizona, slip op. at 13. In the instant case, there is no specific statute that Martinez Appellants can point to that even suggests Congress intended to allow landlords to harbor illegal aliens in rental accommodations. In contrast, the section that the Court did not find to be conflict preempted is one that bears a significant similarity to the Ordinance. Section 2(B) of the Arizona law required state officers to verify the immigration statuses of certain aliens, just as the Ordinance requires the Fremont Police Department to verify the immigration statuses of certain aliens. Both laws expressly rely on 8 U.S.C. 1373(c), which obligate[s] ICE to respond to any request made by state officials for verification of a persons immigration status. Arizona, slip op. at 20. Moreover, the Court observed, Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to communicate with the [Federal Government] regarding the immigration status of any individual. Id. (quoting 8 U.S.C. 1357(g)(10)(A)). Like Section 2(B) of the Arizona law, the Ordinance facilitates this communication and in no way conflicts with any federal statute.

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2.

Congress Has Encouraged Local Efforts to Reduce Illegal Immigration.

The central question in conflict preemption is whether the state or local law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Geier v. Amer. Honda Motor Co., Inc., 529 U.S. 861, 899 (2000). [T]he purpose of Congress is the ultimate touchstone of preemption. Medtronic, 518 U.S. at 485 (1996). Congress has consistently encouraged states and municipalities to assist in restoring the rule of law to immigration. As the Tenth Circuit has held, in the months following the enactment of 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws. United States v. Vasquez-Alvarez, 176 F.3d 1294, 1300 (10th Cir. 1999). One of the most salient statutes that Congress passed in order to facilitate local ordinances to discourage illegal immigration was 8 U.S.C. 1373the statute upon which the Ordinance is based. By enacting this statute in 1996, Congress expanded the federal statutory structure to expressly facilitate local programs that discourage illegal immigration. Congress placed the executive branch of the federal government under a statutory obligation to respond to all local inquiries about any aliens status: The Immigration and Naturalization Service shall respond to an inquiry for any purpose authorized by law. 8

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U.S.C. 1373(c) (emphasis added). Congress has encouraged the sharing of information about possible immigration violations. Arizona, slip op. at 21. This federal statute provides the foundation for the Ordinance. Congress wanted to assure cities and states that if they enacted programs to discourage illegal immigration and inquire about any aliens status, then the federal government must respond. Where a city or state relies upon the federal governments determination of an aliens immigration status, no preemption exists. As the District of Arizona specifically held in its adjudication of what would become the Whiting case: Importantly, the State defers to the federal governments response to a lawful request under 8 U.S.C. 1373(c) to make this determination. This is harmonization with federal law, not conflict. Ariz. Contractors Assn v. Candelaria, 2007 U.S. Dist. LEXIS 96194, *38 (D. Ariz. 2007), affd sub nom. Chicanos Por La Causa v. Napolitano, 544 F.3d 976 (9th Cir. 2008), affd sub nom. Whiting, 131 S. Ct. 1968. As noted above, Congress also recognized the importance of cities [s]ending and [m]aintaining such information regarding the immigration status, lawful or unlawful, of any individual. 8 U.S.C. 1373(b)(1)-(2). This indicates that Congress expected state and local governments to enact laws like Ordinance 5165. A second action that demonstrated Congresss objective of increasing and facilitating local efforts to stop illegal immigration took place in 1994, when 48

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Congress created and appropriated funds for the Law Enforcement Support Center (LESC). Congress created the LESC to ensure that local law enforcement agencies would always have an efficient mechanism for verifying with the federal government the immigration status of particular aliens. As the Supreme Court has noted, ICEs Law Enforcement Support Center operates 24 hours a day, seven days a week, 365 days a year and provides, among other things, immigration status, identity information and real-time assistance to local, state and federal law enforcement agencies. Arizona, slip op. at 20-21 (internal citations omitted). A third action taken by Congress to encourage local efforts like the Fremont Ordinance was included in the PRWORA of 1996. That Act not only encouraged, but required, states and localities to verify with the federal government the status of aliens seeking public benefits and licenses. Congress mandated that an unqualified alien who is unlawfully present in the United States is not eligible for any State or local public benefits. 8 U.S.C. 1621(a). To implement PRWORA, the federal government expanded the Systematic Alien Verification for Entitlements (SAVE) Program, which enables state and local government agencies to verify electronically whether an alien is lawfully present in the United States. The United States Citizenship and Immigration Services (USCIS) website explains that SAVE is available to municipalities to verify aliens

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immigration statuses, and that it may be used in the issuance of both benefits and licenses: The SAVE Program is an inter-governmental initiative designed to aid benefit-granting agencies in determining an applicants immigration status, thereby ensuring that only entitled applicants receive federal, state or local public benefits and licenses. The program is an information service for benefit-granting agencies, institutions, licensing bureaus, and other governmental entities.7 The City of Fremont already possesses a SAVE memorandum of agreement with the federal government, which allows the City to electronically verify the lawful presence in the United States of aliens seeking various licenses from the City. JA 800-809. The Ordinance specifies that Fremont may utilize the SAVE Program to carry out verification inquiries regarding occupancy licenses, if the federal government agrees to amend the Citys SAVE memorandum accordingly. 1(4.A). If the federal government for whatever reason prefers that the City not use the SAVE program to implement the Ordinance, the Ordinance stipulates that the City may use the LESC, direct communications with the ICE district office, or any other verification method suggested by the federal government, pursuant to 8 U.S.C. 1373(c). 1(4.A). Therefore, the federal government retains discretion to specify how Fremont should submit status inquiries.
7

Available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a/?vgnextoid=dc4f2363d8928310VgnVCM100000082ca60aRCRD&vgnextch annel=dc4f2363d8928310VgnVCM100000082ca60aRCRD. (Last visited July 3, 2012). 50

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Fourth, Congress enacted 8 U.S.C. 1324(c), which specifically contemplated state and local police making arrests for the federal immigration crimes of harboring illegal aliens, transporting illegal aliens within the United States, smuggling illegal aliens into the United States, and encouraging or inducing illegal aliens to remain unlawfully present in the United States. [A]ll other officers whose duty it is to enforce criminal laws were recognized as having the authority to make arrests for violations of these crimes listed in 8 U.S.C. 1324. Finally, in 1996, Congress also expressly put to rest any notion that it did not welcome local efforts to assist with the problem of illegal immigration. In enacting 8 U.S.C. 1357(g), a provision allowing states enter into agreements to deputize specially-trained state and local officers to exercise the full function[s] of an immigration officer of the United States, Congress affirmed that no such agreement was necessary for municipalities to act. Municipalities retained unpreempted authority to otherwise assist in immigration enforcement: Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. 8 U.S.C. 1357(g)(10). The Supreme Court in Arizona confirmed that this provision of law

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encouraged the sharing of information about possible immigration violations. Arizona, slip op. at 21. Taken together, these federal statutes constitute decisive evidence of congressional intent to encourage state and local programs to discourage illegal immigration. To prevail on a conflict preemption claim, Appellants must prove that Congress unmistakably intended to preempt the ordinance at issue. De Canas, 424 U.S. at 356. The fact that at least five statutes enacted by Congress invite or contemplate local government assistance demonstrates much more than what is necessary to defeat a conflict preemption claim in this context. If Congress were entirely silent on the question, the City would still prevail. Appellants fail to identify any congressional action that indicates an intent to preempt local laws like the Fremont Ordinance, much less one that that does so in unmistakable terms. For this reason alone, Appellants have not met the standard necessary to prevail on a conflict preemption claim.

3.

Appellants Inquisitorial Practices Argument is Nonsensical

The closest that Martinez Appellants come to describing a conflict preemption argument is their assertion that the Ordinance upends Congressional objectives by demanding additional alien information at the expense of Congresss

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other goalprotecting noncitizens from inquisitorial practices. Martinez Br. 37.8 Aside from the fact that Martinez Appellants cannot point to a single congressional enactment that states a goal of protecting noncitizens from inquisitorial practices, their argument collapses for three additional reasons. First, Appellants gravely mischaracterize the Ordinance. There is nothing inquisitorial about it. Nothing in the Ordinance authorizes Fremont police officers to accost any personcitizen or alienand demand anything. The Ordinance does not require an occupant to carry any document on his person or keep any document in his place of residence. The Ordinance does not contemplate that Fremont police officers have any investigative role to play at all. Instead, the Fremont Police Departments role under the Ordinance is purely administrative accepting applications for occupancy licenses, 1(3.E), issuing licenses, 1 (3.F), request[ing] the federal government to ascertain whether the occupant is an alien lawfully present in the United States, 1(4.A), and when an occupant is reported to be unlawfully present, send[ing] a deficiency notice to the occupant. 1(4.B). Nothing in the Ordinance suggests that police officers would be roving the streets of Fremont looking for violators.

Martinez Appellants also claim the Ordinance is an impermissible alien registration system. Martinez Br. 36-42. More properly characterized as a field preemption argument, it is addressed in section III.D, supra. 53

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Martinez Appellants also pointedly fail to mention the unequivocal deposition testimony of Fremont Police Chief Timothy Mullen on this subject: We wouldnt send officers out on any call of any kind, really. It would all be done by clerical. JA 1046 (Mullen Dep. 35:12-13). Martinez Appellants argument is not only inaccurate, it contradicts the record. The second problem with Martinez Appellants argument is that it implies that numerous state licensing laws would also be preempted. The information required on the Ordinances occupancy license application form is quite minimal essentially name, address, date of birth, date of lease commencement, country of citizenship, and a relevant visa number if an alien knows of any such number indicating his lawful presence. 1(3.E). If including this basic information on an occupancy license application form amounts to a preempted inquisitorial practice, then so too do applications for a drivers license, a state hunting license, a state fishing license, a state or city occupational license, and dozens of other licenses. For issuance of drivers licenses, the majority of States now verify the lawful presence of aliens applying for licenses using the same SAVE program referred to in the Ordinance. 1(4.A).9 To suggest that asking license applicants to provide basic information, and then taking the extra step of verifying the lawful Most states and territories use the Systematic Alien Verification for Entitlements (SAVE) Program to determine a non-citizens eligibility for many public benefits, including the issuance of a drivers license. ICE Fact Sheet, available at http://www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf (last visited July 4, 2012). 54
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presence of alien applicants amounts to an inquisitorial practice, is simply absurd. Moreover, it must be remembered that federal law requires cities and states to verify the immigration status of aliens seeking public benefits and licenses. 8 U.S.C. 1621(a)-(c). See supra, Section III.D.2. Third, a great deal more than the minimal amount of information required by the Ordinance is required by landlord Appellants when they lease their apartments to tenants. Appellant Steven Dahl, the landlord in the Martinez Appellants group, not only asks for the basic personal identifying information required by the Ordinance (minus citizenship and immigration status), he also asks for a great deal more. Dahl requests: a full drivers license number, a full Social Security number, a copy of a recent paycheck, a checking account number or savings account number, and the tenants automobile license plate number. JA 947-951 (Dahl Dep. 25:10-29:3). This information is far more personal than the basic information required by the Ordinance. It is disingenuous for landlord Appellants to make this argument when they themselves require far more information from tenants seeking rental accommodations. Fourth, if Appellants are suggesting not that the application form is inquisitorial, but that Fremont police officers will take actions that defy the terms of the Ordinance and defy the orders of Chief Mullen, then their argument would be unsupported by any facts presented to the district court. It would be based 55

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solely on implausible speculation which cannot sustain a facial challenge. In determining whether a law is facially invalid, we must be careful not to go beyond the statutes facial requirements and speculate about hypothetical or imaginary cases. Washington State Grange, 128 S.Ct. at 1190 (internal citations omitted). For all of these reasons, Martinez Appellants theory of preemption-throughinquisitorial-practices must be rejected.

F.

The District Court Erred in Holding that Revocation of Illegal Aliens Occupancy Licenses Would be Conflict-Preempted.

The district court correctly held that the vast majority of the Ordinance was not conflict-preempted. However the court reached a different conclusion regarding the anti-harboring and license-revocation provisions of 1(2), 1(3.L), and 1(4.D), holding that those three provisions were conflict preempted. JA 10809. That conclusion was in error, for the reasons explained below.

1.

Under the Doctrine of Concurrent Enforcement, the AntiHarboring and License-Revocation Provisions of the Ordinance Are Not Conflict-Preempted.

The well-established doctrine of concurrent enforcement compellingly supports the Citys position. Where state enforcement activities do not impair federal regulatory interests concurrent enforcement activity is authorized. Gonzales v. Peoria, 722 F.2d 468, 474 (9th Cir. 1983) (citing Florida Lime,373 56

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U.S. at 142). No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nations immigration laws. Lynch v. Cannatella, 810 F.2d 1363, 1367 (5th Cir. 1987). As the Arizona Court of Appeals held in a similar preemption challenge to an Arizona law that tracked the smuggling (as opposed to harboring) subsection of 8 U.S.C. 1324(a)(1)(A): The same act may offend the laws of both the state and the federal government and may be prosecuted and punished by each. Abbate v. United States, 359 U.S. 187, 194-95 (1959). Thus, Arizona may prosecute and punish a person who knowingly transports illegal aliens within its borders for profit or commercial purpose under its human smuggling law, just as the federal government may prosecute and punish a person who knowingly or recklessly transports such illegal aliens within the United States under its laws. State v. Flores, 218 Ariz. 407, 412-413 (Ariz. Ct. App. 2008)(emphasis added). The Supreme Court has long recognized that states may concurrently enforce against the same conduct prohibited by federal law. See Halter v. Nebraska, 205 U.S. 34 (1907); Gilbert v. Minnesota, 254 U.S. 325, 331 (1920) ([T]he state is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.). In Whiting the Court reaffirmed that concurrent enforcement by state and local governments is permissible in the immigration arena. The Court explained that the Arizona law punished the same behavior that was prohibited under federal law. Arizona went 57

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the extra mile in ensuring that its law closely tracks IRCAs provisions in all material respects. Whiting, 131 U.S. at 1981. The Court then noted approvingly that the Arizona law trace[d] federal law: From this basic starting point, the Arizona law continues to trace the federal law. Both the state and federal law prohibit knowingly employing an unauthorized alien. But the state law does not stop there in guarding against any conflict with federal law. The Arizona law provides that the term shall be interpreted consistently with 8 United States Code 1324a and any applicable federal rules and regulations. Whiting, 131 S. Ct. at 1982. Virtually the same language is found in the Ordinance. 2(A)(The requirements and obligations of this section shall be implemented in a manner fully consistent with federal law regulating immigration.). The Eastern District of Missouri applied the concurrent enforcement doctrine in upholding an ordinance of Valley Park, Missouri, against a similar conflict preemption challenge: [G]enerally, a state has concurrent jurisdiction with the federal government to enforce federal laws. This allows for greater enforcement of the federal law, while providing additional local sanctions through the licensing law. There is no conflict between the two laws. Gray at *33 (citing Gonzales, 722 F.2d at 474). Like the Arizona law in Whiting and the Valley Park ordinance in Gray, Ordinance 5165 trace[s] the federal law. Whiting, 131 S. Ct. at 1982. The Ordinance was drafted to match the terminology and scope of federal law. It 58

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prohibits the knowing harboring of illegal aliens in apartments, mirroring the text of the federal statute criminalizing the harboring of illegal aliens, found at 8 U.S.C. 1324(a)(1)(A)(iii). The federal statute imposes criminal penalties on: Any person who knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. Id. The terms of the harboring violation in the Ordinance mirror the terms of federal law: 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 has come to, entered, or remains in the United States in violation of law, unless such harboring is otherwise expressly permitted by federal law. Ordinance 5165, 2(A). Knowingly providing an apartment to an illegal alien is a subset within the larger set of activities prohibited by 8 U.S.C. 1324(a)(1)(A)(iii). This Court has recognized that provid[ing] an apartment for the undocumented aliens is activity that is encompassed by the federal crime of harboring. United States v. Tipton, 518 F.3d 591, 594 (8th Cir. 2008); see also United States v. Sanchez, 963 F.2d 152, 155 (8th Cir. 1992)(defendant convicted of harboring paid to rent an apartment for the illegal aliens.) Under the Eighth Circuits construction of the harboring provision that federal statute does not allow landlords and illegal aliens to enter 59

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into lease agreements for residential dwelling units. JA 124. Making an apartment available to an illegal alien has been a basis for conviction under the federal harboring statute in other circuits as well. United States v. Aguilar, 883 F.2d 662, 669-70 (9th Cir. 1989); United States v. Varkonyi, 645 F.2d 453, 459 (5th Cir. 1981). Charging the illegal alien rent does not erase the crime; renting an apartment to an illegal alien also constitutes harboring. United States v. GomezMoreno, 479 F.3d 350, 354 (5th Cir. 2007); see also United States v. Balderas, 91 Fed. Appx. 354 (5th Cir. 2004). Indeed, harboring for the purpose of commercial advantage or private financial gain increases the severity of the crime. 8 U.S.C. 1324(a)(1)(B)(i). SeeUnited States v. Zheng, 306 F.3d 1080 (11th Cir. 2002). The Ordinance cannot be said to conflict with any congressional objective when it facilitates the congressional objective of preventing the harboring of illegal aliens, as expressed in 8 U.S.C. 1324(a)(1)(A)(iii). Indeed, states have the power to prosecute crimes based on acts which might also violate federal law. Flores, 218 Ariz. at 411 (citing Abbate, 359 U.S. at 195). In upholding Arizonas human smuggling law that tracked the federal anti-smuggling statute at 8 U.S.C. 1324(a)(1)(A)(ii), the Flores court explained: [W]e find that Arizonas human smuggling law furthers the legitimate state interest of attempting to curb the culture of lawlessness that has arisen around this activity by a classic exercise of its police power. Moreover, to a large extent, Arizonas objectives mirror federal 60

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objectives [expressed in 8 U.S.C. 1324(a)(1)(A)(ii)]. Flores, 218 Ariz. at 41213. Likewise, Fremonts Ordinance 5165 mirrors federal objectives and is a classic exercise of its police power. In 2009, the California Supreme Court decided the immigration preemption case of In re Jose C., 45 Cal. 4th 534, and rejected nearly identical preemption challenges to those in the case at bar. The court sustained a California state law that required California courts to determine whether a juvenile had violated federal immigration laws, and if so, penalize the juvenile by declaring him to be a ward of the court. The court held that Congress intended to promote local laws that assist in the enforcement of federal immigration laws: A series of provisions in the INA demonstrate Congress, far from occupying the field, welcomed state and local assistance in enforcement. Id. at 552. Where state law mandates compliance with the federal immigration laws and regulations, it cannot be said [state law] stands as an obstacle to accomplishment and execution of congressional objectives embodied in the INA. Id. at 554 (quoting In re Manuel P., 215 Cal. App. 3d 48, 64 (Ct. App. 1989)). Similarly, Ordinance 5165 is not preempted because it encourages compliance with 8 U.S.C. 1324(a)(1)(A)(iii). Importantly, conflict preemption analysis does not require perfect symmetry between local and federal law. While the Court recognizes Plaintiffs assertion that there need only be a conflict with the purpose of the federal statute, this 61

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does not mean that every slight difference in emphasis between the federal requirements and the local requirements creates such a conflict. Gray at *48. The proper approach is to reconcile the operation of both statutory schemes with one another rather than holding [the state scheme] completely ousted. De Canas, 424 U.S. at 357 n.5 (quoting Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127 (1973))(internal quotations omitted). Knowingly renting an apartment to an illegal alien plainly falls within the broader concept of harboring. The City has focused on that subclass of harboring activities because its traditional police powers include the regulation of rental housing. Finally, it must be remembered that a showing of concurrent enforcement is not necessary to avoid conflict preemption. Rather, it is a merely an indicator that the local law and federal law point in the same direction and share the same general objective. All that is necessary to avoid conflict preemption is to avoid obstructing the objectives of Congress that are unmistakably spelled out in federal statute. That threshold is clearly met here.

2.

The District Courts Erred in Distinguishing the Anti-Harboring and License-Revocation Provisions from the Remainder of the Ordinance.

The concurrent enforcement doctrine supports all of the harboring provisions of the Ordinance. Nevertheless, the district courts conflict preemption 62

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analysis separated the anti-harboring and license-revocation provisions from the rest of the Ordinance. The court supposed that those provisions might conflict with congressional objectives as follows: If states or political subdivisions take independent action to remove aliens from their jurisdiction, essentially forcing them from one state or community to another where their identity and whereabouts may be obscured the potential removal of aliens will be impaired. JA 108. There are three problems with the courts reasoning. First, the court evidently did not consider how the double-verification aspect of the Ordinance affects ICE removal efforts. The City may not revoke an occupancy license until at least 61 days after the federal government first reports that the occupant is not lawfully present in the United States, and the City has offered the alien an opportunity to challenge the report. 1(4.B). In addition, the federal government must have verified the aliens unlawful presence a second time. 1(4.D). Importantly, the Ordinance provides that all of the information included on the occupants applicationincluding the aliens addressmay be provided to ICE. 1(3.G). Therefore, if ICE determines that a particular tenant in Fremont is an alien unlawfully present in the United States, and ICE wishes to serve that alien with a notice to appear in removal proceedings, the Ordinance allows ICE to request the aliens address and gives ICE at least 61 days to take action to remove the alien. See 1(4.D). If ICE instructed the Fremont Police 63

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Department that it wished to place the alien in removal proceedings and preferred that the aliens occupancy license not be revoked immediately on the 61st day, in order to encourage the alien to remain at his residence, the Police Department would certainly cooperate with that request. In short, the Ordinance provides ICE with information about illegal aliens that it otherwise would not obtain, and provides ICE a great deal of time to place a particular illegal alien in removal proceedings. Contrary to the courts supposition, the Ordinance in no way impedes ICE removal efforts. Second, as the Fifth Circuits Judge Elrod pointed out in reviewing virtually identical provisions of the Farmers Branch ordinances, such local ordinances greatly assist the federal government in prosecuting the crime of harboring: Local agencies may assist the enforcement of federal immigration law, Lynch, 810 F.2d at 1371, and this circuit construes the antiharboring provisions broadly. See United States v. Rubio-Gonzalez, 674 F.2d 1067, 1073 n.5 (5th Cir., 1982)(Congress intended to broadly proscribe any knowing or willful conduct fairly within any of these terms that tends to substantially facilitate an aliens remaining in the United States illegally.) The Ordinance makes it easier to prove the anti-harboring element of a defendants knowledge of the aliens unlawful status, removing potential doubt when a landlord leases an apartment. Farmers Branch, 675 F.3d at 830 n.7 (Elrod, J., dissenting). Under the district courts decision, these enforcement advantages are lost, because the court enjoined section 1(4.D), which gives notice to the landlord that his or her tenant has been confirmed to be unlawfully present in the United States. Far from impeding 64

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federal enforcement efforts, the Ordinance assists the federal government both in the removal of illegal aliens and in the prosecution of the crime of harboring. Third, it must be remembered that the hurdle for conflict preemption is very high. Whiting, 131 S.Ct. at 1985. A federal statute must demonstrate that Congress has unmistakably ordained that the law in question is preempted. De Canas, 424 U.S. at 356 (emphasis added). A free-wheeling judicial inquiry into whether a state statute is in tension with federal objectives is not permissible under conflict preemption analysis. Whiting, 131 S.Ct. at 1985. The district courts basis for its preemption conclusion regarding the anti-harboring and license-revocation provisions is entirely speculativeresting on a hypothetical case in which an alien vacates his apartment before ICE can launch removal proceedings. And the courts speculation fails to account for the 60-day window. Such speculation falls far short of the unmistakable congressional intent to preempt demanded by De Canas.

IV.

The Ordinance Does not Violate the Fair Housing Act. The district court began its analysis of the Fair Housing Act (FHA) claim by

correctly rejecting Martinez Appellants disparate treatment claim: Plaintiffs have not met their burden of proving that Fremont voters intended to develop a scheme of unlawful discrimination, nor have they presented sufficient evidence to 65

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demonstrate a genuine issue of material fact as to whether discriminatory animus was a motivating factor in the vote. JA 117 (emphasis in original). Martinez Appellants do not appeal the district courts decision on their disparate treatment claim. The district court then turned its attention to Keller Appellants disparate impact claim.10 As a preliminary matter, if this Court agrees that the two tenants in the Keller Appellants group do not have standing, see Section I, supra, and agrees that Martinez Appellants failed to allege a disparate impact claim in their Third Amended Complaint, then this Court need read no further. No Appellant with standing has properly pled an FHA disparate impact claim. In the alternative, the City argues that the district court erred in accepting Keller Appellants disparate impact claim regarding Ordinance Sections 1(2), 1(3.L), and 1(4D), for three reasons. First, the FHA does not prohibit discrimination on the basis of immigration status. Second, Appellants have not provided a proper adversely affected population subset to state a valid FHA prima facie case. Third, the City has legitimate, non-discriminatory reasons for its actions and no alternative methods would lessen the impact. Before addressing these issues, the City will first explain why the district court was correct in holding that Martinez Appellants did not plead a disparate impact claim. The district court held that Martinez Appellants did not plead a disparate impact claim. JA 117, 149. 66
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A.

The District Court Properly Denied Martinez Appellants Rule 60(a) Motion Because Martinez Appellants did not Plead Disparate Impact.

The district court denied Martinez Appellants Rule 60(a) motion because they did not plead disparate impact. JA 149. Denials of Rule 60(a) motions are reviewed for abuse of discretion. Alpern v. UtiliCorp United, 84 F.3d 1525, 1539 (8th Cir. 1996)(citing L.Z. v. Parrish, 733 F.2d 585, 588 (8th Cir. 1984)). This Court requires a plaintiff to assert facts that affirmatively and plausibly suggest that the pleader has the right he claims, rather than facts that are merely consistent with such a right. Gregory v. Dillards, Inc., 565 F.3d 464, 473 (8th Cir. 2009)(quoting Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir. 2007)(internal quotations omitted)). While a plaintiff need not set forth detailed factual allegations, or specific facts that describe the evidence to be presented the complaint must include sufficient factual allegations to provide the grounds on which the claim rests. Gregory, 565 F.3d at 473 (internal citations omitted)(emphasis added). A court is not required to divine the litigants intent and create claims that are not clearly raised,... and it need not conjure up unpled allegations to save a complaint. Id. (citations omitted). Furthermore, spell[ing] out the limited factual basis for a claim is insufficient

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when a plaintiff fails to make foundational pleading requirements in a complaint. Id. Martinez Appellants filed four complaints in this case. In no complaint, and particularly not in the Third Amended Complaint, did Martinez Appellants even mention a disparate impact claim. JA 149. Martinez Appellants merely stated that The Immigration Ordinance violates the Fair Housing Act, 42 U.S.C. 3601 et seq., because it discriminates on the basis of race and/or national origin. JA 330. This phrasing plainly refers to intentional discrimination, not to disparate impact. In stark contrast, Keller Appellants Amended Complaint clearly alleged that [b]y enacting the Ordinance, Defendants have imposed terms and conditions on the rental of housing the City that has a disproportionate negative impact on Latinos in violation of the federal Fair Housing Act. JA 167. Martinez Appellants protest that the district court erred because they were not required to use magic words. Martinez Br. 54-57.11 However, this argument ignores the district courts holding. The court held that Martinez Appellants failed to plead facts supporting a disparate impact claim, not that they needed to plead

11

If a statement of the phrase disparate impact is required, Martinez Appellants certainly failed. The word disparate appears nowhere in their Third Amended Complaint; and the word impact appears only once, in an unrelated paragraph. JA 308. 68

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magic words: The Keller plaintiffs pled a disparate impact claim under the FHA, and the Martinez plaintiffs did not. JA 149.12 The district court was not required to conjure up unpled allegations to save [Plaintiffs] complaint, and neither should this Court. Gregory, 565 F.3d at 473 (citations omitted). The limited allegations that Martinez Appellants point to in their Complaint confirm that the district court was correct. Martinez Br. 58-59. They point to their allegations involving Spanish-speak[ers] and that a few Fremonters made discriminatory remarks. Martinez Br. 58-59. However, those allegations go to the alleged motive of Fremont voters (discriminatory treatment), not to any impact from Ordinance 5165 on Latinos (discriminatory impact). Martinez Appellants reference to detailed allegations about the Ordinances housing provisions likewise does not help their argument. Martinez Br. 59 (citing JA 307-308). Martinez Appellants were challenging the housing provisions under numerous theories, so naturally descriptions of the housing provisions
12

Martinez Appellants attempt to distinguish Gambill v. Duke Energy Corp., 456Fed. Appx. 578, 587 (6th Cir. 2012) in a footnote, claiming that the complaint in that case lacked any factual allegations making out a disparate impact claim. Martinez Br. 56 n.18. But that was not the courts holding. Instead, the Sixth Circuit explained that allegations in the complaint of a pattern and practice of discrimination and that [plaintiffs] termination allowed the retention of significantly younger individuals constituted at most a disparate treatment claim. Gambill, 456 Fed. Appx. at 587. The Sixth Circuit then noted that the words disparate or impact appear nowhere in the Second Amended Complaint, and plaintiffs did not raise the theory until they filed their opposition to summary judgment, a procedural history that is similar to this case. Id. 69

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would be in the Complaint. Merely discussing the provisions says nothing about disparate impact. Moreover, it is clear that Martinez Appellants are attempting on appeal to reframe the content of the detailed allegations in their Third Amended Complaint. Martinez Br. 59 (citing JA 307-308). Those allegations merely state that two individual Appellants might not be able to live in an apartment with their companions because of their companions immigration statuses, and that Appellant Dahl does not think that immigration status has a bearing on whether a tenant will be good or not. Id. Those allegations have absolutely nothing to do with whether the Ordinance will have a disparate impact on Latinos as a group. Martinez Appellants reference to the size of the foreign-born population, Martinez Br. 58, has no bearing on disparate impact, without more. Appellants simply assert an increase in the foreign-born and Latino populations in Fremont, and that the majority of non-citizens are from Latin America and Asia. JA 315. Without any additional allegations or explanation, these bare facts cannot constitute an allegation that Ordinance 5165 will disproportionately affect Latinos access to housing. Martinez Appellants also seem to think that quoting the FHA statute and noting that it includes disparate impact claims can somehow save their inadequate factual pleadings. Martinez Br. 56-57. The Supreme Court has rejected the 70

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argument that simply reciting the statutory language constitutes sufficient pleading. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2008). And this Court has specifically considered and rejected the argument that simply claiming discrimination permits a plaintiff to then argue any theory the plaintiff wants. In Pulla v. Amoco Oil Co., 72 F.3d 648, 657-58 (8th Cir. 1995), the plaintiff only pled facts showing a disparate treatment claim under the ADEA. Then at trial, the plaintiff attempted to argue a disparate impact claim which the district court pointed out was not pled. Id. As in the case at bar, on appeal the plaintiff argued that his claim that Amoco discriminated against him allowed him to advance any specific theory that a certain act or policy effected such discrimination. Thus based on his general allegation of discrimination, he could later advance the discriminatory impact theory. Id. at 658 compare to Martinez Br. at 56-57. This Court rejected that argument, explaining that the plaintiff had the responsibility of specifically identifying the conduct challenged in his complaint in order to put Amoco on notice of the specific charges levied against it. Id. Martinez Appellants next argue that the City litigated the issue of disparate impact and waited until after summary judgment motions were adjudicated to raise their objections. Martinez Br. 59. This does not accurately reflect the record. In its Opening Brief to the district court, the City addressed the issue, noting the different claims raised by the different plaintiff groups: In alleging a Fair 71

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Housing Act (FHA) violation... Martinez Plaintiffs [allege that] The Immigration Ordinance violates the [FHA] because it discriminates on the basis of race and/or national origin and Keller Plaintiffs offer a different sentence[, that] the Ordinance will have a disproportionate negative impact on Latinos... SA 6-7. The City then proceeded to address Martinez Appellants disparate treatment claim, SA 8, while separately addressing the disparate impact claim asserted only by Keller Appellants. SA 10-13. The City only realized that Martinez Appellants were later attempting to add a disparate impact claim when they attempted to bootstrap it into their Summary Judgment Briefin a throwaway paragraph. See JA 375. The district court correctly held that where a plaintiff sets forth only the disparate treatment theory in his pleadings and does not move to amend his complaint until summary judgment following the close of discovery, the plaintiff is barred from proceeding on the disparate impact theory. JA 150 (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292, 1294 (9th Cir. 2000)(citing Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 641-42 (3d Cir. 1993)). Finally, Martinez Appellants ask this Court to deem Plaintiffs complaint constructively amended to include a disparate impact claim under Rule 15(b), theorizing that it was litigated below with the Citys implied consent. Martinez Br. 61. Appellants have not met the demanding standard required to show 72

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implied consent. S.D. Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583, 590-91 (8th Cir. 2003)(citing Triad Elec. & Controls, Inc. v. Power Sys. Engg, Inc., 117 F.3d 180, 193 (5th Cir. 1997). In Pulla, this Court held that a Rule 15(b) amendment to pleadings post-trial is inappropriate on the basis of some evidence that would be relevant to the new claim if the same evidence was also relevant to a claim originally plead. 72 F.3d at 658 (quoting Gamma-10 Plastics v. American President Lines, Ltd., 32 F.3d 1244, 1256 (8th Cir. 1994)). As in Pulla, some evidence that could be relevant to Martinez Appellants missing discriminatory impact claim is also relevant to their discriminatory treatment claim. Therefore it did not provide the City the required notice that they also intended to challenge the Ordinance under a discriminatory impact claim. Martinez Appellants cannot change their claim so late in the game. A fair reading of their Third Amended Complaint does not reveal the slightest suggestion of a disparate impact claim. Only at the summary judgment stage, when they realized that their disparate treatment claim was going nowhere, did they attempt to raise a disparate impact claim. The district court did not abuse its discretion, and this Court should not disturb the district courts ruling on this issue. See also Torgerson v. City of Rochester, 643 F.3d 1031, 1053 (8th Cir. 2012)(refusing to treat plaintiffs national origin discrimination claim as a race discrimination claim). 73

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B.

Unlawful Immigration Status is Not Protected by the FHA and Therefore the District Courts Disparate Treatment Analysis Based on this Class was Erroneous.

On its face, Ordinance 5165 prevents only one category of individuals from obtaining an occupancy licensealiens who are unlawfully present in the United States. 1(2)-(3). Citing Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973), the district court correctly held that the FHA does not prohibit discrimination on the basis of alienage [or citizenship], and that aliens are not a protected minority group. JA 116-118. Nevertheless, the district court then held that the Ordinance will have a disparate impact on Hispanic/Latino residents by virtue of the fact that undocumented aliens in the Fremont community are more likely to have origins in Latin America than in other countries. JA 118. To do so, the district court effectively used an assumed correlation between Latino and illegal alien populations to create a protected FHA class based on unlawful immigration statusa class that Congress clearly did not intend to protect. The FHA prohibits the denial of housing to individuals on the basis of race, ethnicity, and national origin. 42 U.S.C. 3604. It does not prevent discrimination on the basis of alienage or citizenship. See Espinoza, 414 U.S. at 88; Guimaraes v. SuperValu, Inc., 674 F.3d 962, 973 (8th Cir. 2012). If neither alienage nor citizenship discrimination violates the FHA, it would be illogical to 74

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find that the FHA protects individuals from discrimination on the basis of unlawful immigration status. See id.; see also United States v. Loaiza-Sanchez, 622 F.3d 939, 941 (8th Cir. 2010 )(quoting United States v. Lopez-Salas, 266 F.3d 842, 846 n.1 (8th Cir. 2001)([A] persons legal status as a deportable alien is not synonymous with national origin.); see also United States v. Asalati, 615 F.3d 1001, 1006-7 (8th Cir. 2010)(holding that the Constitution does not prohibit differentiation at sentencing based on a defendants alien status.). Nevertheless, the district court effectively held that illegal aliens can form a protected class under the FHA by ruling that the Ordinance will have a disparate impact on Latino residents because illegal aliens are disproportionately Latino. Therefore, according to the district court, it violates the FHA to discriminate against illegal aliens. JA 118. The courts analysis is incorrect because it undermines the legislative purposes of the FHA. Unlawful immigration status is not an immutable characteristic like race or ethnicityclasses protected by the FHA. Unlawful immigration status is a consequence of a voluntary violation of law. [E]ntry into this class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class itself is a crime. Plyler, 457 U.S. at 219. Committing a crime cannot elevate individuals into a protected status. When a court ignores legitimate distinctions between immutable FHA-protected classes and unprotected voluntary 75

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acts, it defeats the Acts purpose. Other Article III courts have seen this problem and have rejected FHA claims like those in the case at bar. In Martinez v. Partch, 2008 U.S. Dist. LEXIS 4162, (D. Colo. 2008), a trailer park owner had a policy of renting trailer lots only to United States citizens. Id. at **4-6. The plaintiff, a Mexican citizen, claimed that the denial of his rental application violated the FHA. Id. The court disagreed, explaining that it is not an FHA violation to discriminate on the basis of citizenship. Id. at *5. The defendants actions were clearly permissible under the FHA, but a slight twist on the argumentthe twist made by the district court belowconverts that landlords lawful business practice into an FHA disparate impact violation. Under the district courts reasoning, because the majority of noncitizens happened to be Latino, the defendant in Partch violated the FHA by engaging in permissible citizenship discrimination. An even greater problem with the district courts reasoning is that it has untenable implications for federal immigration law. Under the courts analysis, any law that targets illegal aliens would have a disparate impact on Latinos, as they constitute the majority of the illegal alien population. Consequently, the enforcement of numerous immigration laws by ICE would violate the FHA. For instance, enforcement of the federal immigration law against harboring would have the same disparate impact because it is statistically more likely to deprive 76

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Latinos of housing than other ethnic groups. See 8 U.S.C. 1324(a)(1)(A)(iii). Likewise, enforcing 8 U.S.C. 1621, which prohibits the provision of any state or local... public or assisted housing... benefit to illegal aliens would also violate the FHA. The district court seemed to acknowledge this slippery slope in a footnote: The enforcement of federal immigration laws would have the same discriminatory effects, however, in that Latino residents would be disproportionately affected by the enforcement. JA 120, n.11. But the court offered no answer to this problem. Courts should not interpret statutes in ways that lead to absurd results. United States v. Wilson, 503 U.S. 329, 334 (1992)(citing United States v. Turkette, 452 U.S. 576, 580 (1981)). Therefore, this flawed line of argument must be rejected. Furthermore, if the district court is correct that Latino illegal aliens are protected by the FHA, then Appellants claim must fail anyway. No Appellant in this case is a Latino illegal alien and therefore none have standing or are a member of that protected class.13

C.

Keller Appellants Have Not Established a Prima Facie Case of Disparate Impact Because they Have Not Demonstrated that a Relevant Population Subset is Adversely Affected.

13

Juana Doe 2 is a Latina illegal alien, but she lacks standing because she lives in an owned trailer home. See Section I.A, supra. 77

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Even if this Court were to ignore the logical flaw in the district courts reasoning, the district courts order must be reversed because Keller Appellants have not satisfied the first step of the three-part test for FHA disparate impact claims. As this Court has explained, to prevail a plaintiff must first show that a facially neutral policy has a disparate adverse impact on members of a protected minority group; then the burden shifts to the defendant to show that the policy has a manifest relationship to a legitimate government interest; then the plaintiff can still prevail only if he can show that another policy would accomplish the governments objectives without the discriminatory effects. Oti Kaga, Inc. v. South Dakota Housing Dev. Auth., 342 F.3d 871, 883 (8th Cir. 2003). Appellants have not shown the required disparate impact upon protected classes compared to a relevant population. Gallagher v. Magner, 619 F.3d 823, 833 (8th Cir. 2010)(quoting Darst-Webbe Tenant Assn Bd. v. St. Louis Hous. Auth., 417 F.3d 898, 902 (8th Cir. 2005)). To succeed, Appellants must demonstrate that Ordinance 5165 results in, or can be predicted to result in, a disparate impact upon a protected class compared to a relevant population as a whole. Charleston Hous. Auth. v. USDA, 419 F.3d 729, 740-41 (8th Cir. 2005) (citing Oti Kaga, 342 F.3d at 883 (emphasis added)). Where the district court erred was in its failure to correctly identify the relevant population. The court simply assumed that the majority of illegal aliens 78

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in Fremont are Latino, and therefore the majority of individuals denied occupancy licenses are likely to be Latino. JA 118. However, this is not the relevant population for the purpose of assessing a disparate impact claim against Ordinance 5165. The relevant population is the population that is actually adversely affected by the Ordinanceillegal aliens who seek to retain occupancy licenses in Fremont.14 That population must then be divided into Latino and nonLatino subsets. To demonstrate disparate impact, Appellants must demonstrate that the percentage of Latino illegal aliens whose occupancy licenses were revoked grossly exceeded the percentage of non-Latino illegal aliens whose occupancy licenses were revoked. The Appellants never even attempted to make this showing in the court below, either in the allegations of their Amended Complaint, or in their presentation of undisputed facts prior to summary judgment. As this Court has recognized, disparate impact is typically demonstrated through statistics. Gallagher, 619 F.3d at 835-36. The Eleventh Circuits opinion in Hallmark Developers, Inc. v. Fulton County, 466 F.3d 1276 (11th Cir. 2006) is instructive on this point:

Merely looking at aliens in Fremont, or even the smaller subset of illegal aliens, is insufficient for disparate impact analysis. Not all illegal aliens in Fremont will be negatively affected by Ordinance 5165 because not all will seek to obtain occupancy licenses, as the evidence in this case demonstrates. Juana Doe 2, for example, now resides in a trailer home and is unaffected by the Ordinance. JSA 29. Others, like Jane Does spouse, intend to purchase a home, or may already have done so. Sealed SA 10 (Jane Doe dep. 19:15-19:23).
14

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Typically, a disparate impact is demonstrated by statistics. Although no single test controls in measuring disparate impact, ...certain guidelines have developed. First, it may be inappropriate to rely on absolute numbers rather than on proportional statistics. Second, statistics based on the general population [should] bear a proven relationship to the actual applicant flow. Third, the appropriate inquiry is into the impact on the total group to which a policy or decision applies. Id. at 1286 (internal citations omitted)(emphasis added). Importantly, the starting point is always the subset of the population that is affected by the disputed decision. Id. (emphasis added). In this case, the subset of the population adversely affected by Ordinance 5165 is illegal aliens who want to retain an occupancy license in Fremont. It is not Latinos; no citizen or lawfully present alien wishing to rent an apartment, regardless of race, ethnicity, or national origin, would see his or her occupancy license revoked. In Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008), the Eleventh Circuit succinctly explained the analysis necessary to establish disparate impact, once the correct subset of the population is identified: [P]laintiffs could have made a prima facie case of disparate impact by providing statistical evidence (1) that x% of all of the recoverings in [the city] need (or have good reason) to live in the group settings prohibited by the [ordinance] at issue, (2) that y% of all of the nonrecoverings in [the city] need (or have good reason) to live in such group settings prohibited by the [ordinance], and, crucially, (3) that x is significantly greater than y. Id. at 1217 (quoting Tsombanidis West Haven Fire Dept., 352 F.3d 565, 577 (2d Cir. 2003)). Applied to the facts of this case, Appellees must show (1) that x% of 80

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illegal aliens whose occupancy licenses would be revoked are Latino; (2) that y% of illegal aliens whose occupancy licenses would be revoked are non-Latino; and (3) that x is significantly greater than y. Appellants have not even attempted to make this comparison. Instead they simply declare that, because Latinos make up a larger share of aliens (regardless of immigration status) in Fremont than other groups, a disparate impact is shown. The district court erred by accepting this as sufficient to satisfy the first step of disparate impact analysis. See JA 118. Appellants have simply looked at the general population without providing statistics that bear a proven relationship to the actual applicant flow. Hallmark, 466 F.3d at 1286. By failing to quantify the impact upon the group to which Ordinance 5165 applies, they have failed to establish a prima facie discriminatory impact claim. Gallagher, 619 F.3d at 833. Furthermore, nothing in the record establishes, for purposes of summary judgment, that Latino illegal aliens would have their occupancy licenses revoked at a rate disproportionate to that of non-Latino illegal aliens. Without such evidence, the district court was wrong to enter summary judgment in this case.15 This Court need not, and should not, speculate in this facial challenge about what statistical data, if any, might be collected in the future. Appellants have not offered statistical

Indeed, the record even suggests that such an assumption could be invalid given that the only illegal alien Appellant in this case actually owns her own mobile home and therefore is not even affected by Ordinance 5165. JSA 29. 81

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evidence sufficient to make prima facie case under the FHA. Accordingly their disparate impact claim fails the first step of the test.

D.

The City has Legitimate, Non-Discriminatory Reasons for Enforcing the Ordinance and No Less Burdensome Alternatives Exist.

If this Court were to conclude that that Keller Appellants have adequately demonstrated disparate impact on a protected subset population and thereby established a prima facie FHA claim, the district court must still be reversed. Once a plaintiff has adequately alleged a prima facie FHA claim, the burden shifts to the defendant to establish that the enactment has a manifest relationship to a legitimate, non-discriminatory policy objective and was necessary to the attainment of that objective. Gallagher, 619 F.3d at 834 (citing Darst-Webbe, 417 F.3d at 902.) The City has established that the Ordinance serves numerous legitimate, non-discriminatory government interests both in identifying illegal aliens and in revoking the occupancy licenses held by illegal aliens; and Appellants have failed to identify a less burdensome alternative that satisfies those interests. Importantly, Appellants have not appealed the Courts ruling that the City has a legitimate interest in identifying unlawfully present aliens. JA 118-119. Therefore, any challenge to that aspect of the decision has been waived. Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008). The district court held that the 82

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Ordinance bears a relationship to legitimate, nondiscrimniatory policy objectives: [Illegal aliens] have a powerful incentive to commit certain offenses, such as tax evasion, the use or manufacture of false documentation, driving without a license, and the creation of black-market barter systems. Shining a light on this shadow populationrecognizing it and identifying itpromotes legitimate, non-discriminatory policy objectives. JA 119. The court also explained that this shadow population could lead to more crime, either because of an illegal aliens failure to report the crime or because the illegal alien is committing the crime. Id. Nonetheless, the district court held that the City did not have a legitimate interest in revo[king the] occupancy permits because revocation did not further the legitimate interest in identify[ing] who is residing within the Citys boundaries and their immigration status. JA 119-120. The district court erred in refusing to recognize the other numerous legitimate government interests that are furthered by revoking an occupancy license. There are at least four legitimate interests that are served by the revocation of occupancy permits held by illegal aliens. First, the Supreme Court has long acknowledged that States are not without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. Plyler, 457 U.S. at 228 n.23. By prohibiting the harboring of illegal aliens through the revocation of occupancy permits held by illegal aliens, the City could reasonably believe that it will deter a current or future influx of illegal aliens 83

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into Fremont. That justification alone satisfies the minimal requirement of establishing a legitimate, nondiscriminatory government interest. Second, the district court failed to consider the Citys legitimate government interest in not allowing individuals to violate federal immigration laws. It is in the interest of [the city] to discourage illegal aliens by requiring compliance with immigration law. Thomas v. Henry, 260 P.3d 1251, 1258 (Okla. 2011). As the district court acknowledged, this Courts definition of harboring does not require a showing of concealment to establish a violation of 8 U.S.C. 1324(a)(1)(A)(iii). JA 124 (citing Tipton, 518 F.3d at 595). Under this Courts precedents, renting an apartment to a person that the landlord knows is an illegal alien constitutes harboring. Id.; Sanchez, 963 F.2d at 155. Ordinance 5165 was enacted in part to deter and reduce the commission of that federal crime. See Ordinance 5165, Preamble 2, 7. By revoking the occupancy licenses of illegal aliens, the City is furthering its legitimate interest in reducing crimenamely preventing landlords from continuing to knowingly harbor illegal aliens in Fremont. Third, the City has a legitimate governmental interest in reducing the amount of illegal immigration in Fremont in order to prevent crimes committed by illegal aliens. See City of L.A. v. Alameda Books, 535 U.S. 425 (2000). The Ordinance states this interest on its face. Ordinance 5165, Preamble 5. During discovery, the City produced a spreadsheet identifying 180 illegal aliens (illegal 84

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status was verified by ICE) who were arrested for various crimes in and around Fremont since the middle of 2008. JA 1103-1108. At least one illegal alien gang member has been arrested in Fremont. JA 1112-1116. In addition, numerous crimes committed by illegal aliens had been reported in the newspapers and were therefore known to Fremonters. See JA 814, 816, 836-838 (Wiegert dep. 14:3-14:8, 21:20:-21:25, 131:9-133:8); JA 1147-1156. Fourth, Fremont has a legitimate interest in limiting access to its public benefits to citizens and legal residents, in order to reduce the burden on Fremont taxpayers. John Doe No. 1, 147 F.Supp. 2d at 1376; Ordinance 5165, Preamble 4. Congress has stated that it is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits. 8 U.S.C. 1601(6). This compelling interest is furthered by (1) revoking the benefit of the occupancy license, and (2) by discouraging additional illegal immigration. Plyler, 457 U.S. at 228 n.23. It is well-established that a city has an interest in reducing taxpayer costs. United States v. Fort, 248 F.3d 475 (5th Cir. 2001). During discovery, Defendants quantified the considerable costs of housing illegal alien inmates, absorbing unpaid public services bills, and providing other services to illegal alienscosts that are born by Fremont taxpayers. JA 1099-1100; SA 1520. Once the City has demonstrated legitimate, non-discriminatory reasons for 85

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revoking occupancy licenses held by illegal aliens, the burden shifts back to Appellants to offer a viable alternative that satisfies the Citys legitimate policy objectives while reducing the... discriminatory impact of Ordinance 5165. Gallagher, 619 F.3d at 837 (emphasis added); Darst-Webbe, 417 F.3d at 906 (holding that plaintiffs must do more than offer alternative plan that meets government objectives; plan must also reduce discriminatory impact). As the district court correctly held, no such alternative means exists. JA 120, n.11. The only alternative suggested below was to do nothing and hope that ICE has the resources to place the identified illegal aliens in removal proceedings. But as the district court correctly noted, if the enforcement of any law that prohibits or discourages illegal immigration would have a disparate impact upon Latinos, then there is no way to serve these legitimate interests without violating the FHA. Id. There is no way out of this box. Thus, if the City can identify a legitimate interest served by the revocation of an illegal aliens occupancy license, the City must prevail on the FHA disparate impact claim.

V.

The Ordinance Does Not Conflict with Section 1981. A. No Appellant Possesses Standing to Raise this Claim.

The 42 U.S.C. 1981 claim in this case was raised by Keller Appellants. As explained in Section I, supra, Keller tenants Juan Doe and Juana Doe 2 lack 86

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standing to bring any claim in this litigation. The only remaining Keller party is Fred Keller, a landlord who is white. Keller has not alleged that he has suffered any discriminatory treatment cognizable under Section 1981. See JA 153-54. Furthermore, Keller cannot assert an injury on behalf of any tenants he may have, because he does not have prudential standing to raise a third party claim. A landlord lacks standing to assert a Section 1981 claim on behalf of tenants. Mosby v. Williams, 2010 U.S. Dist. LEXIS 105536, *8 (D. Ark. 2010)(citing Clifton Terrace Assocs. v. United Techs. Corp., 929 F.2d 714, 721 (D.C. Cir. 1991)). To establish third party standing, Keller must have a close relationship to the third party, and the third party must be hindered in some way from protecting his or her own interests. Mosby at *8 (citing Powers v. Ohio, 499 U.S. 400, 410-11 (1991)). Nothing in the record demonstrates that any barrier or practical obstacle, exists that prevents or deters the third part from asserting his or her own interest. Mosby at*9 (citing Hodak v. City of St. Peters, 535 F.3d 899, 904 (8th Cir. 2008)).

B.

Keller Appellants Alleged That the Ordinance Discriminated against Latinos Because of their National Origin and Cannot Change their Allegations Through Briefing.

Keller Appellants Amended Complaint alleges: The Ordinance, by targeting the disproportionately Latino occupants of apartment complexes in the City, denies to Latino Plaintiffs, because of their national origin, the right to make 87

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and enforce contracts on the same basis as white persons in violation of 42 U.S.C. 1981. JA 167 (emphasis added). However, Keller Appellants now appear to claim that they asserted a Section 1981 claim against undocumented persons. The Section 1981 heading in their Brief refers to the right of undocumented persons. Keller Br. 18. They also refer to their claim in terms of undocumented aliens: In reviewing Appellants Section 1981 challenge to the harboring and occupational license provisions of Fremont Ordinance 5165, the district court found that undocumented aliens were persons for purposes of Section 1981.Keller Br. 18-19 (citing JA at 123). Keller Appellants cannot change their Amended Complaint through briefing. Recently, this Court sitting en banc rejected a scenario almost identical to the one presented by Keller Appellants. In Torgerson, the plaintiff argued that his claim based on Native American status should be treated as a race-based claim in addition to a national origin claim. Torgerson, 643 F.3d at 1053. This Court refused to construe the plaintiffs claim as requested because the plaintiff failed to make that claim in his complaint: [A] race claim based on Native-American status must be stated as a race claim, which [the plaintiff] failed to do... At no time did [the plaintiff] move to amend his complaint to include race discrimination. Id. at 1053.

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Similarly, Keller Appellants Amended Complaint asserts a Section 1981 claim by Latino occupants...because of their national origin. JA 167 (emphasis added). Torgerson prohibits Keller Appellants from altering, through briefing, their Amended Complaint. 643 F.3d at 1053. If Keller Appellants wished to lodge a Section 1981 challenge on the basis of their undocumented status, they should have sought leave of court to amend their Amended Complaint. See id. Their failure to modify their Complaint is dispositive. It is black letter law that Section 1981 does not authorize discrimination claims based on national origin. Id. (citing Zar v. S.D. Bd. of Examrs of Psychologists, 976 F.2d 459, 467 (8th Cir. 1992). This Court should therefore affirm the district courts dismissal of Keller Plaintiffs national origin claim under Section 1981.

C.

Keller Appellants Failed to Make the Required Showing of Discriminatory Intent Below and Waived Their Right to Appeal the District Courts Holding.

Even if this Court were to hold that Appellants claim can be modified to state a type of discrimination covered by Section 1981, their claim would still fail. The district court correctly granted summary judgment to the City on this claim because Keller Appellants could not show discriminatory intent, which is required under Section 1981. As a preliminary matter, Keller Appellants have not preserved this issue by appealing the adverse judgment below. 89

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The district court held that Keller Plaintiffs suggestion that the Ordinance has a disparate impact on Latino occupants of apartment places fails to state a claim under 1981. JA 124-25 (citing five cases holding that a Section 1981 claim requires discriminatory intent). Keller Appellants do not challenge this holding by the district court. Instead, they limit their appeal to the courts conclusion that IRCA acted as a partial repeal of Section 1981. Keller Br. 18-21. Because Keller Appellants failed to appeal the district courts holding that they did not demonstrate discriminatory intent against Latinos, this Court must affirm the district courts Section 1981 summary judgment. Jenkins, 540 F.3d at 751; see also Dahl v. Rice County, 621 F.3d 740, 743 n.2 (8th Cir. 2010).

D.

Keller Appellants Cannot Show Discriminatory Intent Against Latinos.

If this Court determines that Keller Appellants have not waived the issue of discriminatory intent, their claim must fail nonetheless because they have not shown discriminatory intent behind Fremont Ordinance 5165. A showing of discriminatory intent is a required in order to prevail on any Section 1981 claim. To survive summary judgment on a Section 1981 claim, a plaintiff must demonstrate four elements: (1) membership in a protected class, (2) discriminatory intent on the part of the defendant, (3) engagement in a protected activity, and (4) interference with that activity by the defendant. Gregory, 565 90

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F.3d at 469 (en banc)(citing Green v. Dillards, Inc., 483 F.3d 533, 538 (8th Cir. 2007). Section 1981 can be violated only by purposeful discrimination. A showing of disparate impact through a neutral practice is insufficient to prove a violation of 1981. Bennett v. Nucor Corp., 656 F.3d 802, 817 (8th Cir. 2010) (quoting Gen. Bldg. Contractors Assn v. Pennsylvania, 458 U.S. 375, 391 (1982)). The district court forcefully rejected the claim that the Ordinance was enacted with discriminatory intent. Appellants evidence of discriminatory intent was insufficient because it only consisted generally of demographic data and statements made by a few supporters of the Ordinance that Plaintiffs suggest imply racial or ethnic animus. JA 112. The court noted that the Ordinance on its face is neutral with respect to race and national origin, and specifically mandates [nondiscriminatory application]. Id. The court concluded: The Plaintiffs have directed the Court to no case in which such scant evidence and conjecture has been found sufficient to support a conclusion that unlawful discrimination was a motivating factor in the enactment of a statute, ordinance, or initiative. JA 11213. The district court was correct in its factual finding, and Appellants have not demonstrated otherwise.

E.

Keller Appellants Cannot succeed on a Theory of Discrimination against Illegal Aliens

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If this Court determines that Keller Appellants did in fact assert a Section 1981 claim that undocumented aliens, rather than Latinos, are being discriminated against under Section 1981, their claim must still fail, for two reasons: (1) Section 1981 does not protect illegal aliens right to contract, and (2) if it did protect illegal aliens right to contract, IRCA acted to repeal that protection.

1.

Section 1981 Does Not Protect Illegal Aliens as a Class.

The district court erred in assuming that illegal aliens right to contract was protected by Section 1981. See JA 17, 33. The Supreme Court has held that Section 1981 prohibits public discrimination against legal aliens; however, it has never held that Section 1981 prohibits discrimination against illegal aliens. Takahashi v. Fish and Game Commission, 334 U.S. 410, 418-19 (1948). In Takahashi, the Supreme Court held that a state could not prevent lawfully admitted aliens within its borders from earning a living. Id. (emphasis added). Although the Court was not presented with the question of whether illegal aliens were protected under Section 1981, the Courts purposeful use of the phrase lawfully admitted aliens demonstrates that a different result likely would have occurred if the plaintiff had been an illegal alien. See also Graham v. Richardson, 403 U.S. 365, 378 (1971).

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Other Article III courts confirm that discrimination on the basis of unlawful immigration status is not barred by Section 1981. While alienage-based discrimination is prohibited, immigration-status-based discrimination is not. Anderson v. Conboy, 156 F.3d 167, 180 (2d Cir. 1998)(refusing to contract with an illegal alien is not discrimination on the basis of alienage but of noncompliance with federal law.); Hispanic Interest Coalition of Ala. v. Bentley, 2011 U.S. Dist. LEXIS 137846, **150-51 (D. Ala. 2011)(holding that Section 1981 does not protect persons from discrimination on the basis of unlawful status); id. at **169 (same). This Courts en banc Torgerson decision also confirms that illegal aliens are not protected under Section 1981: Section 1981 protects identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Torgerson, 643 F.3d at 1052 (emphasis added) (quoting St. Francis Coll. V. Al-Khazraji, 481 U.S. 604, 613 (1987)). Illegal aliens are not protected by Section 1981 because any discrimination they suffer is not due to their ancestry or ethnic characteristics. It is due to the fact that they have broken federal immigration laws. The district court did not refer to this body of case law and instead assumed that persons under Section 1981 has the same meaning as person in the Fourteenth Amendment. JA 17, 33. However, the protections of Section 1981 are 93

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not commensurate with those of the Fourteenth Amendment. For example, section 1981 does not prohibit discrimination based on the basis of gender or religion. Conboy, 156 F.3d at 171; Runyon v. McCrary, 427 U.S. 160, 167 (1976). Similarly, it does not prohibit discrimination based on national origin. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987). The district courts assumption was therefore erroneous.

2.

If Section 1981 Once Did Protect Illegal Aliens as a Class, Then 8 U.S.C. 1324(a)(1)(A) Partially Repealed It.

Even if Section 1981 had covered illegal aliens prior to 1986, the district court correctly concluded that coverage of illegal aliens is completely inconsistent with current federal immigration law. A conflict arises when 1981 provides undocumented aliens with the same right to contract as white citizens while IRCA prohibits unauthorized aliens from entering into employment contracts. JA 33. Thus IRCA implicitly repealed Section 1981 with respect to such employment contracts. JA 33-34. Similarly, federal immigration law does not permit contracts to lease rental accommodations when the landlord knows that he would be harboring illegal aliens. 8 U.S.C. 1324(a)(1)(A)(iii). Accordingly, the district court held that the federal anti-harboring statute partially repealed Section 1981 to the extent that 1981 would allow illegal aliens to enter into lease agreements for residential dwelling units. JA 124. 94

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In reaching its conclusion, the district court properly applied this Circuits broad definition of harboring under 8 U.S.C. 1324(a)(1)(A)(iii): [T]he Eighth Circuit has held that a showing of concealment is unnecessary to establish a violation of [the INAs] harboring prohibition, and conduct which merely substantially facilitates an aliens remaining in the country illegally is sufficient to constitute harboring. JA 124 (quoting Tipton, 518 F.3d at 595); see also Sanchez, 963 F.2d at 155. As explained in Section III.F, supra, this Court has long held that the knowing provision of an apartment to an illegal alien constitutes harboring. Tipton, 518 F.3d at 595; Sanchez, 963 F.2d at 155. Keller Appellants claim that the district court misread this Courts holdings in Tipton and Sanchez, and that harboring in those cases involved more than merely renting an apartment to an alien. Keller Br. 20. They are wrong. What Keller Appellants fail to mention is that the defendants in those cases were also convicted of other immigration-related crimes. So it should come as no surprise that the defendants engaged in other activities beyond the provision of an apartment. For example, in Tipton, the defendants were convicted of harboring illegal aliens in violation of 8 U.S.C. 1324(a)(1)(A)(iii), hiring unauthorized aliens in violation of 8 U.S.C. 1324a(a)(1)(A), and conspiring to hire and harbor illegal aliens in violation of 18 U.S.C. 371. Tipton, 518 F. 3d at 594. The defendants additional activities gave rise to the additional charges in the case. 95

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Nowhere did this Court state that additional activities beyond providing an apartment were required for harboring to occur. See id. at 594-95. Similarly, the defendants in Sanchez were convicted of multiple crimes: harboring illegal aliens in violation of 8 U.S.C. 1324(a)(1)(C) (1992), transporting illegal aliens in violation of 8 U.S.C. 1324(a)(1)(B) (1992), creating and supplying false documents for use in making immigration applications in violation of 8 U.S.C. 1160(b)(7)(A)(ii), filing false immigration applications in violation of 8 U.S.C. 1160(b)(7)(A)(i), and conspiracy in violation of 18 U.S.C. 371. Sanchez, 963 F.2d at 154. The defendants additional activities beyond harboring were reflected in these additional crimes; they were not required elements within the crime of harboring. See id. at 154-56. Thus, Keller Appellants attempt to re-characterize what constitutes harboring in this Circuit must be rejected. Furthermore, the Eleventh Circuit has rejected the facts of other cases show more is needed approach to harboring encouraged by Keller Appellants. Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010)(A holding that X + Y is enough to constitute harboring does not mean that X alone is not enough, because the decision can hold nothing beyond the facts of that case.). Perhaps recognizing that they are inviting this Court to depart from its own precedents, Keller Appellants offer the incentive that doing so would be 96

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consistent with findings in other circuits. Keller Br. 20. Actually, it would be consistent only with the findings of the Third and Seventh Circuits. All of the other Circuits to define the crime of harboring have adhered to the broader definition used by this Court. See supra, Section III.F.1. The district courts Section 1981 holding should be affirmed.

VI.

The Ordinance Does Not Exceed the Citys Municipal Authority Under Nebraska State Law. On the question of whether the Ordinance exceeds the Citys municipal

authority under Nebraska state law, the district court correctly concluded that the Ordinance was well within the Citys police powers. JA 121-22. Such statutory police powers delegated to cities of the first class are very broad. JA 121. The district court noted that in September 2010 it had certified the state law question to the Nebraska Supreme Court. JA 120. While the Nebraska Supreme Court declined to formally adjudicate the question, it did respond to the district court as follows: We have stated that in the exercise of police power delegated by the state legislature to a city, the municipal legislature, within constitutional limits, is the sole judge as to what laws should be enacted for the welfare of the people, and as to when and how such police power should be exercised. Keller v. City of Fremont, 280 Neb. 788, 790-91 (2010); (quoting Wolf v. City of Omaha, 177 Neb. 545, 555-56, (1964)). 97

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The district court also noted that state statutes conferred truly sweeping power on Nebraska cities of the first class, in addition to the extremely broad police power. Pointing to Neb. Rev. Stat. 16-229, which states [a] city of the first class by ordinance may provide for the punishment of suspicious persons who can give no account of themselves, the court used this example to illustrate why the Plaintiffs state-law challenge to the Ordinance is not likely to succeed on the merits. JA 121-22, n.12. Accordingly, the district court denied Martinez Appellants claim. They now attempt to resuscitate the same novel theories about Nebraska municipal authority that they presented to the district court. Martinez Br. 47-54. Their theories remain unsupported by case law.

A.

The Ordinance is an Exercise of the Police Powers Authorized by Neb. Rev. Stat. 16-246.

Fremont has between 5,000 and 100,000 residents and is therefore a Nebraska city of the first class. Neb. Rev. Stat. 16-101. Nebraska state law authorizes cities of the first class to exercise very broad police powers to enact any ordinance deemed necessary to promote the health, safety, welfare, morality, and general interests of their residents: A city of the first class may make all such ordinances not inconsistent with the general laws of the state as may be necessary or expedient, in addition to the special powers otherwise granted by law, for maintaining the peace, good government, and welfare of the city for preserving order and securing persons or property from 98

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violence, danger, and destruction and for promoting the public health, safety, convenience, comfort and morals and the general interests and welfare of the inhabitants of the city. Neb. Rev. Stat. 16-246 (emphasis added); see also State ex rel. Andruss v. North Platte, 120 Neb. 413, 417 (1930)(a city has undoubted power by ordinance to make rules not inconsistent with the law under the general welfare clause)(citing Comp. St. 1922, 3986-4030 precursor to current Neb. Rev. Stat. 16-246). Neb. Rev. Stat. 16-246 expresses [t]he general police power delegated to a municipality. School Dist. v. McCook, 163 Neb. 817, 822 (1957). This police power to enact ordinances for the welfare of the people has been defined extremely broadly by the Nebraska Supreme Court. Moreover, the decision regarding what constitutes promoting the welfare of the people is left solely to the municipal legislature, and is not subject to second-guessing by courts. Keller, 280 Neb. at 790-91; Wolf, 177 Neb. at 555-56. In considering the validity of a regulation, courts generally presume that legislative or rulemaking bodies, in enacting ordinances or rules, acted within their authority, and the burden rests on those who challenge their validity. Jacobson v. Solid Waste Agency of Northwest Neb., 264 Neb. 961, 974 (2003)(citing Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484, 623 N.W.2d 672 (2001); Village of Winside v. Jackson, 250 Neb. 851, 553 N.W.2d 476 (1996)); see also Jacobson, 264 Neb. at 972 (All ordinances are presumed to be valid.)(citing Winside, 250 Neb. 851; Whitehead Oil Co. v. City of 99

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Lincoln, 245 Neb. 660, 515 N.W.2d 390 (1994)). An Ordinance will not be deemed invalid unless clear and satisfactory facts show that the ordinance is unreasonable, arbitrary or invades private rights. Jacobson, 264 Neb. at 974 (citing City of Omaha v. Cutchall, 173 Neb. 452, 114 N.W.2d 6 (1962)); Scottsbluff v. Winters Creek Canal Co., 155 Neb. 723, 730 (1952). The face of the Ordinance provides multiple reasons for its enactment, all of which fit within the general police powers of Neb. Rev. Stat. 16-246. First, the Ordinance contemplates promoting the public safety of Fremonts inhabitants. See Preamble 5. In response to discovery requests by Martinez Appellants, the City provided a spreadsheet listing 180 persons in or near Fremont who committed crimes and were determined by ICE to be aliens unlawfully present in the United States. JA 1103-1110. Second, the Ordinance protects the good government, and welfare of the city, Neb. Rev. Stat. 16-246, by reducing the fiscal burden of illegal immigration found in incarceration costs, unpaid utility bills, increased education costs, and other public services. See Preamble 4. During discovery, the City provided estimates of those costs, which are in the tens of thousands of dollars annually. SA 15-20. Third, the Ordinance promotes the general welfare by ensuring that available jobs go to individuals who are authorized to work in the United States and by mitigating the wage depression that is caused by the employment of unauthorized aliens. See Ord. 5165 Whereas Clause No. 6; see 100

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also De Canas, 424 U.S. at 356. Martinez Appellants may disagree as to whether the Ordinance adequately serves those interests, but Appellants policy arguments were rejected on June 21, 2010, when the voters of Fremont enacted the Ordinance. Appellants may not use this Court to resurrect their policy disagreement with Fremont voters. In addition, it is beyond dispute that a Nebraska City of the first class possesses the authority to regulate rental housing and employers, within the general police powers of Neb. Rev. Stat. 16-246. For instance, the Fremont Municipal Code regulates rental housing with respect to the disposal of trash (Fremont Mun. Code Ch. 4, Art. 3), fire prevention (Fremont Mun. Code Ch. 7, Art. 2), building safety (Fremont Mun. Code Ch. 9, Art. 4), energy conservation (Fremont Mun. Code Ch. 9, Art. 6), and other subjects. Likewise, the Fremont Municipal Code regulates businesses with a variety of ordinances that stipulate requirements for particular types of businesses. Fremont Mun. Code Ch 10. The Ordinance is an expression of this well-established authority to regulate rental housing and businesses in the City of Fremont. To be sure, the objectives of the Ordinance are to reduce the wage depression, fiscal burden, and criminal costs of illegal immigration. However all regulations of businesses and rental housing serve broader objectivesbe they the beautification of the city, the elimination of health hazards to tenants, the physical safety of customers, increasing the 101

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availability of parking, or any other objective. Put differently, regulations of businesses and rental housing are never an end in and of themselves. They always serve to promote some larger public interest.

B.

The Ordinance is Not Inconsistent With the General Laws of the State.

Nebraskas police power statute broadly authorizes ordinances that promote the general welfare, with the one proviso that such ordinances are not inconsistent with the general laws of the state. Neb. Rev. Stat. 16-246. There is no Nebraska statute that Ordinance 5165 is inconsistent with. Nevertheless, Martinez Appellants attempt to make the argument. The first statute that they point to, Nebraskas E-Verify law, is a particularly weak example, because the Ordinance promotes the stated objective in the text of the state law, as explained below.

1.

Nebraskas E-Verify Law.

Nebraska law requires every public employer in the State to register in the E-Verify system, and requires that every recipient of a government contract register in E-Verify. Neb. Rev. Stat. 4-114(1)-(2). Although Nebraska does not mandate that every private business also use E-Verify, Nebraska law expressly encourage[es] the use of the federal immigration verification system by all private employers. Neb. Rev. Stat. 4-114(3). The Citys decision to require that 102

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private employers in Fremont utilize the E-Verify Program does not conflict with Nebraskas requirement that public contractors and public employers utilize the system. On the contrary, the Ordinance serves to accomplish the purpose expressed by Neb. Rev. Stat. 4-114(3). The Supreme Court reached the same conclusion with respect to Arizonas law requiring all private employers to use EVerify; that law was consistent with the federal purpose of encouraging E-Verify usage even though the federal law did not make it mandatory. See Whiting, 131 S. Ct. at 1986; see also Chicanos Por la Causa v. Napolitano, 558 F.3d 856, 867 (9th Cir. 2009), affd sub nom. Whiting, 131 S. Ct. 1968 (Though Congress did not mandate E-Verify, Congress plainly envisioned and endorsed an increase in its usage. The Acts requirement that employers participate in E-Verify is consistent with and furthers this purpose, and thus does not raise conflict preemption concerns.)(emphasis added). Nevertheless, Martinez Appellants declare that the Ordinance conflicts with the Nebraska E-Verify law, or rather with the absence of an additional state law. They claim (without any supporting case law) that because the Nebraska legislature has yet to pass a bill requiring all businesses in the state to use EVerify, municipalities are forbidden from doing so. Martinez Br. 50. Their unsupported argument fails, for four reasons.

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First, Martinez Appellants completely ignore Neb. Rev. Stat. 4-114(3), which establishes a Nebraska state policy encourag[ing] the use of the federal immigration verification system by private employers. Appellants failure to even mention Neb. Rev. Stat. 4-114(3) speaks volumes. The Ordinances requirement that employers in Fremont use E-Verify is clearly consistent with that state policy adopted by the Nebraska Legislature in 2009. Thus, it cannot be said that the Ordinance is inconsistent with the general laws of the state. Neb. Rev. Stat. 16-246. Second, Martinez Appellants argument turns Nebraska police powers doctrine on its head. According to Appellants, inaction by the Nebraska Legislature prevents a municipality from exercising its police powers. In other words, they suggest that a state can only exercise its broad police powers if the State Legislature acts first by adopting exactly the same provisions into state law. That theory completely upends Neb. Rev. Stat. 16-246, which clearly allows cities to act without prior authorization. Indeed, that is an inherent aspect of what police powers are. Neb Rev. Stat. 16-246 allows cities to enact any ordinances not inconsistent with the general laws of the state as may be deemed necessary or expedient. Id. (emphasis added). There is a reason that the Legislature chose the double-negative phrasing when describing these police powers: it makes clear that cities do not need prior authorization by a specific state law in an area. 104

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Martinez Appellants can cite no case law supporting their theory, as every precedent says otherwise. An ordinance will not be declared invalid so long as the ordinance is not inconsistent with, nor repugnant to, the general laws of the state. State v. Belitz, 203 Neb. 375, 384 (1975). If the municipal ordinance and state statute in question are not contradictory and can coexist, then both are valid. Jacobson, 264 Neb. at 972. A court has a duty to harmonize state and municipal legislation on the identical subject. Id. The question, when a court is assessing the exercise of police power by a city of the first class, is whether the citys ordinance is in conflict with existing state law. Neb. Rev. Stat. 16-246. Ordinance 5165 is in perfect harmony with the Nebraska State statute that deals with E-Verify. The Citys decision to mandate that private employers utilize the E-Verify Program does not conflict with the state laws requirement that public contractors and public employers utilize the system and the state laws silence regarding other employers. Third, Martinez Appellants theory attempts to determine legislative intent from legislative inaction. It is axiomatic in statutory interpretation that sound conclusions regarding legislative intent cannot be drawn from the failure to enact a bill. Congress does not express its intent by a failure to legislate. Atkinson v. Inter-American Dev. Bank, 156 F.3d 1335, 1342 (D.C. Cir. 1998)(citing United States v. Estate of Romani, 118 S. Ct. 1478, 1488 (1998)(Scalia, J., concurring). 105

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Dozens of possible explanations may account for the failure of a billfrom running out of time in the legislative session, to the opposition of a single committee chairperson. Consequently, reliable conclusions as to legislative intent cannot be drawn from the failure of the Legislature to enact legislation. Presidio Enterprises, Inc. v. Warner Bros. Distributing Corp., 784 F.2d 674, 687 (5th Cir. 1986). Fourth, Martinez Appellants theory makes no sense in practice. According to their logic, a Nebraska city could only possess the authority to require employers within its jurisdiction to register in E-Verify after the State Legislature had enacted a law requiring all employers in Nebraska to register in E-Verify. However, there would be no point in enacting such a local ordinance if the state had already enacted an identical state-wide law. Similarly, under Appellants skewed reasoning, a city would have no authority to adopt a particularly environmentally-efficient building code until the State Legislature first enacted the same code statewide. Again, there would be no point to the city ordinance if the state had already acted. In sum, Martinez Appellants theory is completely inconsistent with the phrasing of Neb Rev. Stat. 16-246, police powers doctrine, and the principles of statutory interpretation.

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2.

Nebraskas Fair Housing Act.

The one state statute that Martinez Appellants identify as supposedly conflicting directly with the Ordinance is easily disposed of. Martinez Appellants point to the Nebraska Fair Housing Act, Neb. Rev. Stat. 20-301 et seq. Martinez Br. 51. They claim that the Ordinance conflicts with the state provision forbidding any written or oral inquiry or record concerning the national origin of a person seeking to rent, or lease any housing. Neb. Rev. Stat. 20318(5). They point to Ordinance 1(3.E(7)), which describes the information required on the application form for an occupancy license, including Occupants country or citizenship. Martinez Appellants evidently misunderstand the meaning of the term national origin. This term is used throughout federal law, as well as throughout state law. It does not, as Martinez Appellants assume, mean a persons citizenship. Rather, it refers to a persons ancestry. Espinoza, 414 U.S. at 89 (1973) (interpreting the Civil Rights Act of 1964 to find that the terms national origin and ancestry were considered synonymous). [N]ational origin refers to an individuals ancestry, not his or her citizenship. Jones v. Hydro Conduit Corp., 2012 U.S. Dist. LEXIS 44768 (D.S.C. Jan. 10, 2012)(citing Espinoza, 414 U.S. at 89.). For example, a person can be a United States citizen, born in the United States, but of Chinese national origin. That person would write United States in 107

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the citizenship line of the Fremont occupancy license application form. The application form nowhere refers to national origin. See 1(3.E). Indeed, the Ordinance specifically forbids consideration of an occupants national origin: The terms of this section shall be applied uniformly, and enforcement procedures shall not differ based on a persons race, ethnicity, religion, or national origin. 1(4.E). As the district court correctly observed, The Ordinance on its face is neutral with respect to race and national origin. JA 112. In short, Appellants are mistaken in asserting this argument.

C.

Appellants Two-Mile Limit Argument Falls Short.

Martinez Appellants next make a transparently feeble argument. They claim that the Ordinance exceeds the requirement that police powers be exercised within a two-mile limit of the city. Martinez Br. 52-53. It is certainly true that a two-mile limit exists: The jurisdiction of the city to enforce such ordinances, bylaws, rules, regulations, and resolutions shall extend over the city and over all places within two miles of the corporate limits of the city. Neb. Rev. Stat. 16-246. However, the Ordinance in no way exceeds this geographic limit. To make this claim, Martinez Appellants grossly misconstrue the Ordinance in a way that contradicts the plain meaning of its text. They absurdly declare that the Ordinance will apply to business entities around the world, including ones 108

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situated in New York, or Shanghai. Martinez Br. 53. Martinez Appellants hypothesize that the Ordinance might apply to a company located hundreds of miles away that delivers a product and sets foot in Fremont to do so. Martinez Br. 53. They then proclaim that [t]he mere traversing of the Citys border by an on-duty employee subjects the employer to the E-Verify requirement. Id. Appellants can only make this argument by ignoring the plain meaning of the words performing work within the city. The Ordinance clearly states: Every business entity employing one or more employees and performing work within the City shall register in the E-Verify Program. 1(5.F)(emphasis added).Within the city means that the business entity is physically located in the City. It defies the ordinary usage of the English language to suggest otherwise. Appellants are intentionally obscuring the line between performing work with the City and delivering a product to customer located in the City. Martinez Appellants strange misinterpretation of the Ordinance illustrates clearly why facial challenges are so disfavored. They are rejected because [t]he State has had no opportunity to implement [the law], and its courts have had no occasion to construe the law in the context of actual disputes or to accord the law a limiting construction to avoid constitutional questions. Washington State Grange, 128 S. Ct. at 1190 (quoting Raines, 362 U.S. at 22). If someday in the future, Ordinance 5165 is enforced against a software customer service 109

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representative located in Singapore who answers a phone call from a computer user in Fremont, then Appellants counsel would have a client with a valid claim. But that day has not arrived, and likely never will.

D.

The Ordinance is Specifically Authorized by Two State Statues.

At this point, this Court need not go further, with respect to Martinez Appellants state law claim. The broad police power of Neb. Rev. Stat. 16-246 is a fully sufficient basis of statutory authority to enact Ordinance 5165. However, if this Court were to conclude that the police power is insufficient to serve as a basis for the Ordinance, there are specific statutes that provide additional, independent sources of authority. In addition to their police powers, Nebraska cities of the first class can also exercise powers that are specifically granted by state law. Each city of the first class shall have power to exercise such other and further powers as may be conferred by law. Neb. Rev. Stat. 16-201. With respect to Fremonts authority Ordinance 5165, two separate and fully sufficient bases of authority are found in Nebraska state law.

1.

The Ordinance is Authorized by Nebraskas Municipal Licensing Statute.

Independent statutory authority to enact Ordinance 5165 is found in Fremonts authority to require licenses of persons and businesses engaged in 110

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various activities in the City, and to impose conditions on the retention of such licenses. Such authority is conveyed by Neb. Rev. Stat. 16-205. A city of the first class may raise revenue by levying and collecting a license tax on any person, partnership, limited liability company, corporation or business within the limits of the city and to regulate same by ordinance, as long as the license taxes are uniform in respect to the class upon which they are imposed. Neb. Rev. Stat. 16-205 (emphasis added). The housing provisions of Ordinance 5165 create a license with a five dollar fee for any person, age 18 or older, who chooses to occupy rental accommodations in Fremont, as defined in the Ordinance. 1(1.C, 3.B). The addition in the Ordinance of conditions that must be met to retain the occupancy license constitutes regulat[ing] [the] same by ordinance. Neb. Rev. Stat. 16-205; see 1(3.A-G). With respect to the employment provisions of the Ordinance, those too are authorized by Neb. Rev. Stat. 16-205. Fremont is expressly authorized by Neb. Rev. Stat. 16-205 to create licenses on businesses and to regulate those licenses by ordinance. The business licenses covered by Ordinance 5165, which may be revoked if an employer violates the Ordinance, are numerous.16 Those business

16

The licenses or permits that may be revoked for noncompliance with the employment provisions of Ordinance 5165 (corresponding sections of the Fremont Municipal Code in parentheses) are: foresters license ( 2-209, 10-401 through 111

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licenses were created by the City prior to the enactment of Ordinance 5165, which serves to impose an additional condition upon the retention of such licenses. See 1(5.E-F). Municipal ordinances like Ordinance 5165 are authorized by the Nebraska licensing statute so long as the charged fee does not exceed the sum required to reimburse the city for the expense of necessary investigation before issuing the license and the cost of supervision afterwards. State v. Phillips, 133 Neb. 209, 212 (1933). However, because this expense cannot accurately be ascertained in advance, the courts will not interfere with the discretion of the council in fixing it, unless the fee required is clearly unreasonable. Id. Accordingly, [s]uch a measure will be upheld by the courts when plainly intended as a police regulation and the revenue derived therefrom is not disproportionate to the cost of issuing the license and the regulation of the business to which it applies. Id. (quoting 10-409), plumbing license ( 2-210, 9-602), solid waste collection permit ( 4309 through 4-311), blasting permit ( 7-302), fireworks sales license ( 7-303), excavation permit ( 8-301-307), sidewalk/curb construction permit ( 8-403), electricians license ( 9-603), mechanics license ( 9-605), manufacture/sale of alcoholic beverages license ( 10-102-129), catering license ( 10-130), sales and solicitation permit ( 10-202-208), house moving permit ( 10-315-321), asphalt and concrete work license ( 10-322), pawnbrokers license ( 10-501-505), alcohol occupation license ( 10-601-609), trailer camp license ( 10-804-811), and bungee jumping license ( 10-904). In addition to these licenses and permits, City-issued licenses to dispense tobacco, or provide water conditioners, and vendor permits, constitute covered business licenses under Ordinance 3139, section 1, paragraph K. Fremont Municipal Code available at http://www.fremontne.gov/index.aspx?NID=427. 112

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Littlefield v. State, 42 Neb. 223, 226 (1894)). Appellants did not claim in their Complaints that the $5 fee for the occupancy license of Ordinance 5165 is unreasonable. Thus, the Ordinance is clearly compliant with, and independently authorized by, Neb. Rev. Stat. 16-205. Martinez Appellants fail to mention this statute in their Brief. See Martinez Br. 46-54.

2.

The Ordinance is Authorized by Nebraskas Statute Requiring Municipalities to Deny Benefits to Illegal Aliens.

An additional independent source of authority beyond the general police power (one that applies only to the harboring provisions of Ordinance 5165) is found in Neb. Rev. Stat. 4-108, which requires political subdivisions of the state of Nebraska, like the City of Fremont, to verify the lawful presence in the United States of any person who has applied for public benefits administered by an agency or a political subdivision of the State of Nebraska. A commercial license is included in the definition of public benefit. Neb. Rev. Stat. 4-109. An applicant for such a public benefit is required to attest that he or she is a United States citizen or a qualified alien. Neb. Rev. Stat. 4-111. So too does Ordinance 5165. 1(3.E). The Nebraska statute even requires that the immigration status of an alien applying for a public benefit be verified in the same manner as Ordinance 5165 does. Neb. Rev. Stat. 4-112 (requiring verification to be done through the 113

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SAVE system or an equivalent program designated by the United States Department of Homeland Security); see 1(4.A). Similar to a commercial license, the occupancy license of Ordinance 5165 constitutes a public benefit within the meaning of Neb. Rev. Stat. 4-109. This source of authority operates in tandem with the Citys licensing authority derived from Neb. Rev. Stat. 16-205, described above. The licensing authority enables the City to impose a license tax on the newly-created occupancy licenses; and Neb. Rev. Stat. 4-109 not only authorizes, but requires the City to deny that license to aliens unlawfully present in the United States.

E.

Appellants Manufactured Test Regarding Issues of Not Purely Local Concern is Irrelevant.

Finding nothing in the statutes of Nebraska to support their restrictive view of general police powers, and unable to deny the additional specific powers held by the City, Martinez Appellants resort to fabricating a new test out of whole cloth: they declare that all cities in Nebraska are prohibited from legislating on matters not of local concern. Martinez Br. 49. They find this test nowhere in the state statutes. Instead they base it on language in one completely inapposite holding of the Nebraska Supreme Court from 48 years ago: Midwest Employers Council, Inc. v. City of Omaha, 177 Neb 877 (1964)(cited in Martinez Br. 48-49).

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In that case, the Nebraska Supreme Court considered whether the City of Omaha had the authority to enact what was essentially a local version of certain provisions in the federal Civil Rights Act of 1964, making it unlawful for employers to discriminate on the basis of race, religious creed, color, national origin, or ancestry. Id. at 881. The central question of the case was whether authority to enact such a law was conferred upon the city by its charter. In answering this question, the court repeatedly and emphatically made clear that its holding was about determining the powers conferred by the state legislature upon a home rule city through its charter: The home rule charter adopted by the city of Omaha is a grant as distinguished from a limitation of power. Being a grant of power the charter is to be construed according to the same rules as a legislative act containing the same provisions in determining what authority is thereby granted the city government. A municipal corporation is a creature of the law established for special purposes, and its corporate acts must be authorized by its charter and other acts applicable thereto. Id. at 883. The question was simply whether or not the City of Omaha had exceeded its authority under its charter. From an examination of the city charter of the city of Omaha, we are unable to find any express authority which granted the city council power to pass legislation pertaining to fair employment practices or civil rights. Neither does the city charter fairly imply that the city council is vested with the power to pass such an ordinance. Id. at 885. 115

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The language that Martinez Appellants seize upon concerning matters of statewide and not of local concern comes thereafter. Id. at 886. When this language is placed in context, it is absolutely clear that the Nebraska Supreme Court was simply saying that because issues of civil rights were larger, statewide issues, it was unwilling to infer that such unstated authority was implicitly conveyed by the citys charter: The matters of fair employment practices and civil rights are matters of statewide and not of local concern. The city of Omaha, when its charter was adopted in 1956, never acquired any power delegated to it by the Legislature to pass an ordinance relating to fair employment practices or civil rights. Id. at 886. The Midwest Employers Council Court cited to, and was applying, a rule for resolving conflicts between home rule charters and state statutes that actually dates back to 1946, in Axberg v. City of Lincoln, 141 Neb. 55 (1946)(cited in Midwest Employers Council, 177 Neb. at 887-88). Under our Constitution, a home rule charter must be consistent with and subject to the Constitution and laws of this state. This means that a provision of a city home rule charter takes precedence over a conflicting state statute only in instances of strictly local municipal concern. Axberg, 141 Neb. at 58. As the Midwest Employers Council Court restated it: This court in several opinions has stated that when the Legislature has 116

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enacted a law affecting municipal affairs, but which are also of statewide concern, such law takes precedence over any provisions in a home rule charter and the provisions of the charter must yield. Id. at 887-88 (citing Axberg, 141 Neb. at 58). Upon this slender reed, Martinez Appellants attempt to create a whole new test, applicable not only to chartered home rule cities, but also to cities of the first class like Fremont. Martinez Appellants assert that any Nebraska city of the first class exercising its police powers must first attempt categorize its power and make sure that the ordinance addresses an issue solely of local concern. Martinez Br. 49. There is nothing in Midwest Employers Council, or in the Axberg line of cases, that even remotely suggests the existence of such a test. Nor is there any suggestion that the reasoning of these cases should apply outside of the context of a home rule charter. The implausibility of such a test is also reflected in the fact that the case on which Martinez Appellants construct this test is 48 years old, and yet no subsequent Nebraska case has applied this supposed test. Of the thousands upon thousands of city ordinances passed by Nebraska cities of the first class, not one has been invalidated because of a purely local concern test. The only other cases that Appellants cite (in an unexplained string citation) are completely irrelevant and concern home rule cities. See Martinez Br. 49. The first, Jacobberger v. 117

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Terry, 211 Neb. 878 (Neb. 1982), concerned Omahas home rule charter. In that case, the Nebraska Supreme Court considered and rejected a challenge to a state law concerning electoral districts that conflicted with the citys home rule charter. Notably, the court referred to the Midwest Employers Council case as applying the general rule concerning conflicting provisions of home rule charters and state statutes. Id. at 884. The court made no mention whatsoever of the new test fabricated by Martinez Appellants. The second case, City of Omaha Human Relations Dept. v. City Wide Rock & Excavating Co., 201 Neb. 405 (Neb. 1978), simply mentions the Midwest Employers Council case in the context of a fair employment practices challenge in the same home rule city. Id. at 408. Again, the court made no mention of Appellants newly-invented test. The third case in their string citation, Niklaus v. Miller, 159 Neb. 301 (Neb. 1954), concerned a conflict between Lincolns home rule charter and a state fair labor standards law, in the context of constructing a local reservoir. The court held that the reservoir was a local concern, and the home rule charter trumped the state statute. Id. at 310. Once again, there was no mention of Appellants test. Moreover, consider just how impossible such a test would be to administer in practice. Crime is an issue of local concern, but it is not an issue of purely local concern. It is also a matter of state concern and a matter of national concern. Yet no Nebraska court has suggested that cities of the first class are without authority 118

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to enact ordinances to reduce crime. So too is clean drinking water a matter of local concern that is also a matter of state and national concern. Yet no Nebraska court has suggested that cities of the first class are without authority to enact ordinances to provide for clean drinking water. For all of these reasons, the district court was correct in rejecting Martinez Appellants state-law claim.

VII. The Provisions of the Ordinance are Severable. As explained above, no part of the Ordinance is preempted or otherwise inconsistent with federal or state law. However, the district court correctly held that any invalid portion of the Ordinance may be severed from the remainder. JA 109. The court properly relied on the Nebraska Supreme Courts recent holding in Sarpy v. City of Papillion, 277 Neb. 829 (2009): If a city ordinance contains valid and invalid provisions, the valid portion will be upheld if it is a complete law, capable of enforcement, and is not dependent upon that which is invalid. In other words, the valid part may be carried into effect if [it] contains the essential elements of a complete ordinance. Id. at 841. Ordinance 5165, as modified by the court below, unquestionably meets this standard. Nevertheless, Martinez Appellants attempt to achieve through their nonseverability argument what they cannot achieve through their arguments on the

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merits. They insist that if any small portion of the Ordinance is struck down, then the entire Ordinance must fall. They are incorrect.

A.

The Ordinance is Clearly Severable Under Sarpy.

Revealingly, Martinez Appellants completely ignore the 2009 Sarpy test for municipal ordinance severability that the district court relied on. See Martinez Br. 13-23. Instead they use a test that is thirteen years older and concerned a state constitutional provision, in Duggan v. Beerman, 249 Neb. 411, 427-28 (1996). The Ordinance is severable under either test, as explained below. But it is obviously so under Sarpy. Under Sarpy, the test is basically whether the remaining ordinance is one that contains the essential elements of a complete ordinance. 277 Neb. at 841. This is a much lower standard than that of Duggan. Indeed, [a] severability clause is not necessary to maintain the partial validity of a law under these standards. Id. at 842. It is absolutely clear that it is possible to sever the specific anti-harboring and license-revocation provisions identified by the district court, and still be left with the essential elements of a complete ordinance. Although the City would prefer to revoke the occupancy licenses of verified illegal alien occupants in Fremont, there is no reason why final revocations under 1(4.D) would need to occur for the preceding provisions of the Ordinance to operate 120

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effectively. Three important objectives of the Ordinance would still be realized: (1) illegal aliens would be deterred from moving to Fremont because the Ordinance would identify them to ICE; (2) some of the illegal aliens identified would be removed by ICE if federal resources were available; and (3) landlords would be made aware of the fact that they were providing housing to an illegal alien, and some would voluntarily cease any harboring activities. In short, while not all of the Citys objectives would be realized, even absent the severed sections the Ordinance would achieve some reduction in the harboring of illegal aliens and some deterrence of illegal immigration in Fremont. Appellants proclaim that the residency-related provisions of the Ordinance operate as one inseparable whole. Martinez Br. 16. Yet, when they attempt to explain why this is so, they point to mere minutiae, such as inconsequential phrasing in the Ordinance that refers to the severed portions. Id. 16-17. At best, these are mere quibbles. There is simply no plausible reason offered by Appellants why revocation of the licenses is necessary to render the remainder of the Ordinance capable of enforcement. Sarpy, 277 Neb. at 841.

B.

The Ordinance is Severable under Duggan.

Rather than applying the Sarpy precedent, Martinez Appellants attempt to apply older case law. They apply Duggan, which essentially adds three additional 121

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considerations to the test used in Sarpywhether the act would have passed without the severed portions, whether severance would violate the legislatures intent, and whether a severability clause was included in the act. Duggan, 249 Neb. at 427. What Appellants neglect to mention is that the Duggan Court expressed great dissatisfaction with these factors, even as it considered them to a limited extent. The reason for the dissatisfaction is that the test came from the older case of Jaksha v. State, 241 Neb. 106, 129 (1992). Jaksha involved severability of an act of the Nebraska Legislature, whereas Duggan concerned a state popular initiative. As the Duggan Court observed, There is no meaningful way to determine the intent which motivates voters to sign a petition [or] vote for the adoption of an enactment. 249 Neb. at 430 (quoting Omaha Bank v. Spire, 223 Neb. 209, 224-25 (1986)). The same is true in the instant case. What is clear from the title of the Ordinance is that it generally addressed the illegal immigration problem by doing two specific things: reducing the hiring of unauthorized aliens, and reducing the harboring of illegal aliens. JA 133. Many voters undoubtedly read every word of the Ordinance too. But to simply declare that voters would not have supported the Ordinance without the inclusions of specific subsections 1(2), 1(3.L), and 1(4.D), without any factual support for such an assertion, is frivolous. See Keller Br. 21-22.

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The remaining Duggan consideration is whether the act includes a severability clause. The Ordinance includes one. 2(A). Nevertheless, Appellants argue that the inclusion of a severability clause in the Ordinance doesnt matter because the entire Ordinance text did not appear on the ballots in the Fremont referendum. Martinez Br. 22. There are three problems with Appellants argument. First, the severability clause (along with the rest of the Ordinance) was posted at every single polling place in Fremont, JA 1186, 1192, as well as printed in the local newspaper. JA 1194-99. The unremarkable fact that the text of the Ordinance was too long to be printed on the ballots does not in any way imply that voters ignored it. Second, the severability clause appeared on each of the signature petitions for the Ordinance. JA 1184, 1189-90. The Dodge County clerk stopped counting valid petition signatures when he reached 3,343 signatures, well above the 3,306 necessary to place the measure on the ballot.17 Thus, thousands of Fremont voters signed their names to the petitions, all of which included the severability language. Third, and most importantly, if Appellants are correct, then they have defeated their own argument. The rest of the Ordinance was not on the ballot either. If, as Appellants assert, the text must appear on the ballot itself to be Dodge County Clerk Verifies Immigration Petition Signatures, Fremont Tribune (Mar. 25, 2009), available at http://fremonttribune.com/news/local/article_32276c70-7c0e-5073-994bde92bdc3821f.html. 123
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considered part of the voters intent, then Appellants argumentthat the will of the voters demands the inclusion of the specific severed sectionsnecessarily collapses. See Martinez Br. 19-20. According to Appellants reasoning, voters were not even aware of the sections if they did not appear on the ballot itself. Appellants argument is without merit. The manifest intent of the voters of Fremont was to enact the Ordinance to deter the harboring and employment of illegal aliens, with a severability clause to ensure that the Ordinance remains in place if any portion is invalidated. In the event that any portion of the Ordinance is deemed invalid, this Court should affirm the district courts holding and sever it from the remainder.

CONCLUSION For the reasons stated above, the City respectfully prays: (1) that the Ordinance be sustained as valid in its entirety; (2) that the judgment of the district court be affirmed in part and reversed in part accordingly; (3) that the City recover its costs of this appeal; and (4) for such other and further relief to which it may be entitled at law or in equity.

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Respectfully submitted, By: /s/ Kris W. Kobach Kris W. Kobach KOBACH LAW, LLC 4701 N. 130th St. Kansas City, KS 66109 T: 913-638-5567 F: 202-464-3590 kkobach@gmail.com

Garrett R. Roe Immigration Reform Law Institute 25 Massachusetts Ave., N.W. Suite 330-B Washington, D.C. 20001 T: 202-742-1830 F: 202-464-3590 groe@irli.org Dated: July 9, 2012.

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CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i) because, per the word count of the word processing system used in preparing the brief, the brief contains 28,975 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I further certify that the brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it was prepared in a proportionally spaced typeface using Microsoft Word 2007 in fourteen-point, Times New Roman font. I further certify that this brief has been scanned for viruses with the most recent version of a commercial virus scanning program (Norton Internet Security) and, according to the program, is free of viruses.

/s/ Kris W. Kobach

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CERTIFICATE OF SERVICE I hereby certify that on July 9, 2012, I filed the foregoing brief with the Clerk of the Court of the United States Court of Appeals for the Eighth Circuit by using the CM/ECF system. I certify service will be accomplished by the CM/ECF system to all attorneys of record that are registered CM/ECF users.

/s/ Kris W. Kobach

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