Expert: Michael Troy - 10/29/2010

Question
Do illegal aliens have a civil right to occupy a dwelling in a country where they are there illegally?

Answer
Hi Elaine,

Property rights of illegal aliens can be somewhat contradictory given different laws and jurisdictions involved.  

An illegal alien has the right to own or rent property, and has all the rights that anyone else has to use that property.  However, since this person has no right to be present in the country, he/she can be deprived of the occupation of that property by deportation.

Only the federal government can deport aliens.  If a person is a resident in a State, all the State laws protecting renters apply.  A few States have passed laws preventing landlords from renting to illegal aliens, but for the most part State or Federal Courts have struck down these laws.

Federal laws are very contradictory on this issue.  It is illegal to harbor an illegal alien, but it is also illegal to discriminate in providing housing based on a tenant's immigration status.  Most, if not all courts, that have looked at this subject have come down on the side of the illegal alien tenants.  A recent case in NY State, for example, found that a landlord could not evict a tenant based on the tenant's illegal status.  Recalde v. BAE Cleaners (2008).

Federal Courts have also held that Federal fair housing laws apply to illegal aliens and that immigration status cannot be used to deny a tenant any right that any other tenant would have.  One might think, however, that once a tenant's illegal status has been determined that the government would move to have that tenant deported.  However, courts have also held in various cases that it is illegal to enforce a law which would otherwise generally go unenforced against a person, just because that person exercised a Constitutional right such as going to court.  Doing so is seen as retaliation for exercise of one's rights and a way to keep people from asserting their legal rights.

So generally speaking, illegal aliens have the right to occupy dwellings that they have legally rented, purchased, or otherwise come to occupy, unless they are deported for some other reason.

I hope this helps!
- Mike