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Illegal Immigrants Receive Reprieve From Federal Judge

Some tenants and landlords in Escondido are protected , for the time being , from a newly created city law that could someday leave many undocumented residents homeless.

A federal judge Nov. 16 stayed the ordinance restricting illegal immigrants from renting within the city a day before the controversial ordinance would have gone into effect.

Now it is a waiting game until the March 8, 2007 hearing to determine the constitutional merits of the law.

A team of attorneys and civil rights advocates, including the American Civil Liberties Union, filed the temporary restraining order on behalf of landlords Roy and Mary Garrett, who own more than a dozen properties in Escondido, and two unnamed residents who fear they would be classified as illegal aliens and subsequently forced out of rental homes.

Hal Rosner, of San Diego-based law firm Rosner & Mansfield LLP, said the judge had serious questions about the ordinance.


One Question

Rosner, a member of the plaintiffs’ legal team, said the judge kept repeating one question throughout the hearing: “What about the tenants?”

“The judge looked at the city attorneys and said there is no tenant rights here. There is no fairness to the tenants,” said Rosner. “The ordinance (doesn’t) care about the tenant, it (doesn’t) consider the tenant; all it does is intimidate the tenant.”

Rosner said he believed the law violated due process.

He advised the city to “withdraw the ordinance now and save taxpayers money.”

Philip Tencer, of the San Diego office of Cooley Godward Kronish LLP, said the next step is for the plaintiffs to seek a preliminary injunction and ultimately a permanent injunction.

Tencer is also a member of the plaintiffs’ counsel.

U.S. District Judge John A. Houston granted a temporary restraining order to halt enforcement of the new law until the hearing.

Houston said he had serious questions on nearly every argument the plaintiffs raised, including whether the law bears irreparable harm for tenants and landlords.

He said the “ordinance is void of any mention of due process rights” and lacks an opportunity for tenants to be heard “in a meaningful time and in a meaningful manner.”

The judge also expressed concerns regarding an interpretive memo signed Nov. 10 by the city manager.

The memo amended the law, which was approved Oct. 18 in a 3-to-2 vote, to exclude illegal immigrants living in rental units under existing lease agreements.


No New Leases

The renewal of existing leases would not be considered as entering into new leases, according to the memo.

They could not enter into new leases, said the memo.

Attorney Alan Mansfield, of Rosner & Mansfield LLP, said both the ordinance and memo are unconstitutional because they limit where individuals can live or work.

“Because unconstitutional law remains, irreparable harm remains,” said Mansfield.

If the court upholds Escondido’s law, landlords would have three options in reaction to a complaint.

Landlords could comply with the city’s request for tenant information to be used to verify legal residency or notify the city that the tenants have moved out or are in the process of moving out through eviction.

If the landlord is not able to correct violations within 10 days, they would lose the business license for the unit named in the complaint.


Law Put On Hold

For the period of suspension, the owner of the unit would not be permitted to collect any rent and not be able to do so until proving the violation has ended.

According to City Attorney Jeffrey Epp, the court’s decision to put the law on hold while the legal issues are decided was a “very prudent measure.”

Epp said the city would now shift its attention to resolving the key legal issues as quickly as possible so the ordinance can be implemented.

He said it was obvious from the length of the hearing and number of questions by the court that the city “raised some legitimate issues in this area of the law.”

The judge asked the city what the harm would be in waiting to enforce the law until a formal hearing and decision could be made.

Christopher Garrett, of Latham & Watkins’ San Diego office and counsel for Escondido, said, unfortunately, when temporary restraining orders are granted, there is a stigma attached that something was done wrong.

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