Appeals court urged to block Florida’s Chinese property law

Published on October 6, 2023 at 10:34 am

Attorneys for a group of plaintiffs this week urged a federal appeals court to block a new Florida law that restricts people from China from owning property in the state, saying the measure “mandates egregious national-origin discrimination.”

A 57-page brief filed at the 11th U.S. Circuit Court of Appeals said the law, approved this spring by Gov. Ron DeSantis and the Republican-led Legislature, is unconstitutional and violates the federal Fair Housing Act. The plaintiffs went to the Atlanta-based appeals court after U.S. District Judge Allen Winsor in August refused to issue a preliminary injunction against the law (SB 264).

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“It singles out Chinese people for extraordinary restrictions on the ability to buy a home, even though Congress enacted the FHA (Fair Housing Act) to eradicate discriminatory policies in housing,” the brief said.

In approving the law, DeSantis and the Legislature pointed to a need to curb the influence of the Chinese government and Chinese Communist Party in Florida.

The overall law affects people from what Florida calls “foreign countries of concern” — China, Russia, Iran, North Korea, Cuba, Venezuela and Syria. But the lawsuit focuses on part of the measure that specifically puts restrictions on people from China who are not U.S. citizens or permanent U.S. residents.

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That part prevents people “domiciled” in China from purchasing property in Florida, with some exceptions. Such people each would be allowed to purchase one residential property up to two acres if the property is not within five miles of a military base and they have non-tourist visas. Three of the plaintiffs are in the United States on visas, while one is seeking asylum. Another plaintiff is a real-estate broker, Multi-Choice Realty, that serves a large number of Chinese clients.

As he rejected the request for a preliminary injunction, Winsor wrote that U.S. Supreme Court precedents have “held that states could deny aliens ownership interests in land within their respective borders absent an arbitrary or unreasonable basis.” He also indicated a key is that the “law classifies based on where an alien is domiciled.”

“It does not facially discriminate against noncitizens based on race or ancestry. It does not discriminate against noncitizens based on ‘the particular country in which one was born,’” Winsor wrote, partially quoting a Supreme Court precedent.

“So contrary to plaintiffs’ arguments, the challenged law is facially neutral as to race and national origin. It would apply to a person of Chinese descent domiciled in China the same way it would apply to a person not of Chinese descent domiciled in China. And its application would never turn on a person’s race.”

But the plaintiffs’ brief filed this week disputed Winsor’s conclusions, including about the issue of the law applying to people “domiciled” in China.

The brief said the law’s “reference to ‘domicile’ in China is an obvious proxy for national origin; virtually everyone domiciled in China is of Chinese national origin. Yet the district court concluded that SB 264 is neutral as to national origin, ignoring common sense and longstanding precedent that forbids the use of proxies to discriminate against protected classes.”

“If the district court’s analysis is allowed to stand, it risks eviscerating the FHA’s protections,” the brief said. “It would allow state and local governments — and any property owner — to freely discriminate based on national origin, simply by labeling it ‘domicile’-based discrimination.”

The brief also said the law “recapitulates the errors and harms of similar state ‘alien land laws’ from more than a century ago that restricted Asians’ rights to hold land in America. Their purpose was to discourage and prevent ‘non-desirable’ Asian immigrants from settling permanently in the United States and its territories, and their prohibitions are part of a long history of racial discrimination against Asian Americans across the United States.”

“Not only does SB 264 harken back to this racist chapter in American history, but it perpetuates odious stereotypes by treating Chinese people as mere instruments of the Chinese government,” the brief said.

But Winsor, who was appointed to the federal bench by former President Donald Trump, wrote that the plaintiffs had not “shown a substantial likelihood that unlawful animus motivated the Legislature” in passing the law.

“The most relevant impact-related evidence that plaintiffs offer are legislative committee reports,” he wrote. “At best, however, these reports evince awareness of the consequences for aliens domiciled in China.”

“‘Discriminatory purpose’ requires more than that. And as to race and national origin, the reports do not even show any awareness of consequences for those of Chinese descent or those born in China. As for the statements from the governor or legislators, none evinces racial animus or any intent to discriminate based on race or where someone was born. Nor do they show any intent to discriminate against Chinese citizens ‘because of’ their Chinese citizenship. Instead, the statements are consistent with motivations independent of any protected traits.”

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