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Does landlord have RICO liability for ‘harboring’ illegals?

A New Jersey man claims that the property manager of his apartment complex has laid out the welcome mat for those who have entered the country illegally. Friday, the 3rd Circuit decided that the upset tenant could not hold the property manager liable for “harboring” illegal immigrants under the Racketeer Influenced and Corrupt Organizations Act.

“We cannot imagine that Congress contemplated that our nation’s landlords (not to mention our hotel and motel operators, innkeepers, and others who are in the business of providing accommodations) would be tasked with making complex legal determinations about who is permitted to live in this country, much less that they would be criminalized for an error in so doing,” wrote Judge Julio M. Fuentes in Delrio-Mocci v. Connolly Properties

The civil RICO case was brought by Richard Bolmer. Since 2004, Bolmer has lived in the Pingry Arms apartment complex in Plainfield, New Jersey. After Bolmer became a tenant, Connolly Properties began managing the apartment. 

According to Bolmer, the apartment complex has gone downhill since Connolly Properties took over. In addition to asserting that the building has fallen into disrepair, Bolmer claims that Connolly Properties has permitted overcrowding, failed to remedy flooding and mold, allowed the building to become infested with bugs and rodents, and generally turned a blind eye to criminal activity.

Bolmer alleges that the apartment’s problems are directly related to a scheme hatched by Connolly Properties back in 2006 to solicit illegal immigrants as tenants.

According to Bolmer, the property manager hired a Spanish-speaking leasing agent to market to the Hispanic community. He claims that the leasing agent operated under instructions to exempt from normal background checks those prospective tenants who were suspected of being in the country illegally.

Bolmer claims that Connolly Properties sought out illegal immigrants as tenants because it believed that they were less likely to complain about poor housing conditions or report housing code violations.

Fed up, Bolmer filed his lawsuit in federal court in 2008, alleging that Connolly Properties violated RICO by engaging in an “Illegal Alien Rental Scheme.” As a predicate offense, Bolmer contended that the property manager violated 8 U.S.C. §1324(a)(1)(A)(iii), which makes it a criminal offense to “conceal, harbor, or shield” an individual who has entered the country illegally.

The district court dismissed the case, concluding that Bolmer’s allegations were insufficient to show that the property manager committed the predicate offense of harboring.

Last week, the 3rd Circuit affirmed the dismissal of Bolmer’s complaint. Writing for the court, Judge Fuentes explained:

While Bolmer has plausibly asserted that the Property Managers sought to conceal their own violations of local housing code and of federal prohibitions against discrimination in housing, he has not shown that they did anything to prevent their undocumented residents from being apprehended by immigration authorities. …. The picture Bolmer paints … is one of a company whose leadership cared little of what happened to its tenants so long as Connolly Properties received a steady stream of rental income from any source. Bolmer has alleged that the Property Managers engaged in a great deal of unsavory and possibly discriminatory behavior. However, he has not sufficiently alleged that their conduct “‘tend[ed] to substantially facilitate an alien’s remaining in the United States illegally’ and to prevent government authorities from detecting the alien’s unlawful presence.”

The 3rd Circuit also rejected Bolmer’s contention that Connolly Properties’ actions violated 8 U.S.C. §1324(a)(1)(A)(iv), which prohibits a person from “encourag[ing] or induc[ing] an alien to . . . reside in the United States, knowing or in reckless disregard of the fact that such . . . residence is or will be in violation of law.”

In finding that Connolly Properties did not engage in the predicate offense of encouraging or inducing illegal immigration, Fuentes explained that the property manager “did not engage in an affirmative act that served as a catalyst for aliens to reside in the United States in violation of immigration law when they might not have otherwise.”

Specifically, the judge observed that “Bolmer did not allege that these aliens would not or could not have resided in the United States without renting apartments in Connolly Properties’ buildings.”

Further, Fuentes concluded that “defining the conduct at issue in this case as encouraging or inducing runs the risk of criminalizing actions contemplated by federal law and undermining the federal system of immigration enforcement.”

– Pat Murphy


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