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Can I Be Evicted For Being Undocumented?

Victoria Pappas
Victoria Pappas Law Student, Cardozo School of Law
I am a current law student interested in intellectual property and tech law.
can you be evicted if you are undocumented
As moratoriums are being lifted in several states, many fear eviction. Landlords must have a legitimate, legal reason to evict a tenant such as failure to pay rent for multiple months. 

Undocumented persons in the United States may be nervous that their landlords will evict them based on their undocumented status, but are they legally allowed to do that? 

There is no clear federal law 

Many states, including California, Illinois, New York, have laws in place to protect immigrant, undocumented tenants. These laws protect tenants from being evicted solely because they are undocumented and do not allow landlords to threaten or report tenants to immigration authories.

It is important to check if your state has similar laws in place to know your rights and protections. 

There does not seem to be a federal law explicitly protecting undocumented tenants from eviction like the state laws do. 

However, this does not necessarily mean your landlord can legally evict you solely for being undocumented. 

Landlords need legitimate reasons to evict tenants such as non-payment of rent, illegal activity in the apartment or house, if the lease was explicitly violated, there was property damage, or the lease expired. 

Landlords must use a formal eviction process to legally evict you. They cannot just lock you out or kick you out of your rental property. 

It is not clear, under federal law, that evicting someone for being undocumented is a legal, legitimate reason. 

A Potential Solution 

The Fair Housing Act (FHA) is a federal law that prevents discrimination based on “race, color, national origin, religion, sex, familial status, or disability” when renting a home or apartment. 

According to the U.S. Department of Housing and Urban Development (HUD), “every person in the United States is protected by the Fair Housing Act” and such discrimincation under the FHA “is illegal regardless of the victim’s immigration status.”

For example, “If a landlord charges a different price or asks for additional identification documents because of a person’s national origin, that is illegal discrimination regardless of immigration status.” 

Under the FHA many practices are prohibited, including evicting a tenant based on “race, color, national origin, religion, sex, familial status, or disability.”

The potential argument can be made that evicting someone based on undocumeted status is prohibited under the FHA because it is discrimination based on someone’s national origin.

It is important to note that no one has argued nor declared that “national origin” encompasses being undocumented. But the HUD does state, “Procedures to screen potential and existing tenants for citizenship and immigration status may violate the Fair Housing Act’s prohibitions on national origin housing discrimination.”

While it is possible that the FHA makes discrimination because a person is undocumented illegal, it is not certain.

Discrimination based on national origin is defined as, “different treatment in housing because of a person’s ancestry, ethnicity, birthplace, culture, or language.” For example, refusing to rent an apartment because they were born in Colombia is illegal  national origin discrimination under the FHA. 

What Landlords Cannot do Under FHA 

The HUD states that it is illegal to threaten to report a person to Immigration and Customs Enforcement (ICE) if such a person complains to the HUD for illegal discrimination. The Department of Housing does not ask about your immigration status. 

So your landlord cannot threaten to call immigration services in retaliation to legitimate complaints that you make. Such complaints include discrimination or requests to fix unsafe conditions in the home or apartment. 

Landlords can ask for documents from potential tenants to determine if such a person meets the requirements to rent the property. Landlords can ask for identification documents, like a license or passport, and run credit checks to see if a tenant can pay the rent, according to the HUD.

Landlords should be asking the same questions and request the same documents from all potential renters. If a landlord requires a credit check for one person but not another based on race for example, illegal discrimination may be happening. 

These required documents and questions are not necessarily related to someone's immigration status. 

Visit this website for instructions on how to file a complaint with the HUD if you believe you have been illegally discriminated against. The email and mail complaint forms are available in Arabic, Cambodian, Chinese, Korean, Russian, Somali, Spanish, and Vietnamese. The phone services can accommodate over 175 languages. 

Remember to check your state’s laws.

Many states have laws that prevent landlords from asking about immigration status, threatening to call immigration services on tenants, and retaliate against or evict tenants for being undocumented. 

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