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Fremont Immigration Ordinance Rehearing Request Denied by 8th Cir.

By Aditi Mukherji, JD on October 22, 2013 5:49 PM

The Eighth Circuit Court of Appeals has rejected a request for an en banc rehearing of a case challenging a Fremont, Nebraska, housing ordinance. The law requires people to prove they're in the country legally before they can rent an apartment.

In a four-sentence order issued Thursday, the Eighth Circuit denied the petition for a rehearing of the case en banc, reports the Lincoln Journal Star.

Fremont Ordinance and Previous Rulings

The case challenged a 2010 ordinance approved by Fremont voters requiring potential renters to pay a $5 fee for an occupancy license and show proof of being in the country legally.

Attorneys representing several groups challenged the law in federal court.

Last year, U.S. District Judge Laurie Smith Camp ruled that parts of the ordinance denying housing permits to those not in the country legally were discriminatory and interfered with federal law.

But in June, two judges of the three-member Eighth Circuit panel rejected that reasoning, leading the majority to uphold the ordinance and reverse Camp's ruling that parts of the law violated federal law.

No En Banc Rehearing

There are 11 active judges and four senior judges on the court. To get a rehearing, a majority of the judges needed to support it.

Three judges -- Kermit E. Bye of Fargo, North Dakota; Lavenski R. Smith of Little Rock, Arkansas; and Jane Kelly of Cedar Rapids, Iowa -- would grant the petitions for rehearing en banc, according to the order. And Senior Judge Myron H. Bright of Fargo would grant rehearing by the panel, reports the Journal Star.

Falling short of the needed majority to get a rehearing, the only option left for the challengers is to petition the U.S. Supreme Court to hear the case. Given the circuit split, it may just make the cut.

Growing Circuit Split

Last year, the historically conservative Fifth Circuit Court of Appeals struck down a Texas city's housing ordinance that required citizenship or lawful immigration status as a precondition to renting housing as unconstitutional. Similarly, the Third Circuit Court of Appeals rejected a like-minded ordinance in Hazelton, Pennsylvania. Even the notoriously conservative Eleventh Circuit Court of Appeals rejected similar provisions in Alabama.

We'll just have to stay tuned to see how this constantly evolving issue develops.

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