Unscrupulous landlords and attorneys who help them target immigrants could pay the price

Immigrants residing in California, especially undocumented immigrant tenants, face another harrowing year with Donald Trump's return to the White House. To scare up votes and money for his election campaign, Trump once again used fear tactics such as false accusations against undocumented immigrants of violent criminality, job stealing and illegal voting. They are even "eating your dogs and cats," Trump told the nation and then promised to end these fake horrors by launching the largest mass deportation operation in U.S. history.

Under Trump, the U.S. Immigration and Customs Enforcement (ICE) agency has launched that operation with characteristic anarchy and cruelty. Any immigrant, undocumented or documented, adult or child, is now subject to arrest, detention, deportation or disappearance, criminal history or not, with or without due process. As most immigrant tenants and their landlords are aware, ICE now claims the arrests may occur in any space, whether at home, church, school, hospital or court. Along with a high-profile series of arrests, ICE also fast-tracks no-hearing deportations, claims a sweeping "wartime" authority to do so, defies the judiciary and arrests its members, and then targets some arrestees for indefinite detainments in the notorious military prison at Guantánamo Bay or the Cecot hellhole in El Salvador.

Though these actions are being challenged in court, they and the escalating anti-immigrant rhetoric make life much more perilous for the members of immigrant households. Detainment can happen anywhere, anytime and can lead to the arrests and sudden disappearances of friends, family and co-workers. For undocumented immigrant tenants, there exist unscrupulous landlords aware of a tenant's immigration status and who see a vulnerability that they can exploit by either threatening to report tenants to ICE or reporting them to circumvent eviction law.

It is a fraught situation, but also an ugly echo of recent history. California already touts a law, the Immigrant Tenant Protection Act of 2017 (ITPA), that's tailored to prohibit precisely this type of harassment and not coincidentally so. The exploitable fear held by immigrant tenants this year reverberate from the beginning of Trump's chaotic first term, with the ITPA itself an emblem of what was needed in response to his open-season-on-immigrants tactics as well as being a model response against those emboldened by him in any arena where he threatens civil Constitutional rights.

During the initial months of Trump's first term and amid his escalating anti-immigrant rhetoric, the California legislature collected reports of such landlords. The reports included landlords threatening to report immigrant tenants to ICE if they refused to pay more rent, or refused to have sex with the landlord, or persisted with complaints about sub-standard housing conditions.

Upon citing these examples of exploitation along with ever-ratcheting ICE policies, the California legislature in 2017 bolstered the existing bedrock fair housing protections for immigrants by passing the pioneering ITPA. At the time of passage, the bill's author, Assemblymember David Chiu, stated: "The goal is to deter the small minority of landlords who unscrupulously take advantage of the immigration status of their tenants to engage in abusive acts."

In unique ways, the ITPA prohibits a landlord from several types of abusive acts and discrimination based on a person's immigration status or citizenship status. First, to truly reach all abuse, immigration status is a broad term under the ITPA and includes the following: a person's actual immigration or citizenship status; a perception that a person has a particular immigration or citizenship status; or a person is associated with a person who has, or is perceived to have, a particular immigration or citizenship status.

Notably, the second prong of the definition of immigration status addresses racial and ethnic profiling, while the third prong incorporates any associated with the tenant, such as a family member or friend, even if they do not live in the unit. As most California tenants have an immigrant in their family or in their circle of friends, the association prong may well be as impactful as the first in terms of number of tenants protected.

Next, the ITPA covers every angle of discrimination, intimidation, coercion, extortion, and harassment by naming the specific types of landlord conduct prohibited:

 Threatening to disclose immigration status of anyone in unit or anyone associated with tenant in an attempt to induce tenants to move out.

 Threatening to report or report immigration status in retaliation for filing housing complaints or other exercise of a tenant's rights.

 Evicting based on anyone's immigration status.

 Reporting tenants' suspected immigration status.

 Demanding information about immigration status from tenants.

The ITPA also applies to attorneys who represent landlords. The State Bar Act's section of the California Business and Professions Code was amended so that landlords who make threats to tenants about reporting their immigration status or who actually report it are subject to discipline by the State Bar. This especially applies in the context of unlawful detainer litigation.

Exceptions to the ITPA may apply if the landlord is complying with federal housing program requirements that restrict tenancy based on immigration status or in the event of a court-issued order, subpoena or warrant that seeks a tenant's immigration status. There is not an exception, however, for ICE's administrative subpoenas.

Under the ITPA, landlords in violation are subject to substantial damages and penalties in civil cases, along with criminal prosecution referrals. There is also a private right of action so that any victim may sue. The Legislature further recognized the understandable fears immigrants might have in asserting their rights and broadened standing to sue so that non-profits such as the Southern California Housing Rights Center and the Western Center on Law & Poverty may file ITPA lawsuits.

Other states such as Colorado and Illinois have since passed similar laws and the cities of Oakland, Los Angeles and Santa Monica have ordinances that expressly protect immigrant tenants from harassment.

Thus, anti-immigrant policies and pitched rhetoric will not shield landlords from liability under the ITPA, especially when they threaten tenants. Extortion is extortion in any realm inhabited by immigrants, whether between landlord and tenant, employer and employee, or in other predicaments of the Trump era such as reporting student protesters. The ITPA offers a model law on how to thwart abuse in all of them.   

Advocacy groups handling ITPA complaints include the Western Center on Law & Poverty (wclp.org) and the Southern California Housing Rights Center (housingrightscenter.org).