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February 15, 2024

Shen v. Simpson – Florida Land Law Explainer

A deluge of “alien land laws” have recently been proposed in state legislatures and the U.S. Congress seeking to ban or restrict the purchase of certain property for people if they were born in or hold citizenship from a country whose government has been deemed hostile to the U.S. NIAC, along with the American Civil Liberties Union (ACLU) and Asian Americans Advancing Justice (AAJC), has been at the forefront of mobilizing against these discriminatory proposals.

One such proposal that has become law, in Florida, is being challenged in court and a recent ruling offers promise that the challenge will succeed. On February 1st, 2024, Florida’s Eleventh Circuit Court of Appeals granted a partial injunction to two of the plaintiffs in Shen v. Simpson after finding substantial likelihood of success in their claim that SB 264 is preempted by federal law.

How did we get here?

On July 1st, 2023, SB 264 officially became state law in Florida after being signed by Governor Ron DeSantis on May 8th, 2023. This modern-day “alien land law” prohibits nationals from certain immigrant groups – including individuals from China, North Korea, Russia, Cuba, Venezuela, and Iran – from purchasing many types of property in the state of Florida, solely based on their heritage. Following its passage, a group of affected immigrants – with the support of the ACLU and Asian American organizations in favor of immigrant property rights – filed a lawsuit against the state for violating Equal Protection under the Fourteenth Amendment of the Constitution, as well as the Fair Housing Act. 

The plaintiffs subsequently filed a motion for a preliminary injunction – to temporarily halt enforcement of the discriminatory law while the case as a whole remained subject to court review. This motion was denied by the District Court, relying heavily on a century-old legal decision – Terrace v. Thompson –  which historically upheld alien land laws, failing to reflect how the U.S. has long since moved passed such blatant discrimination. Notably, the U.S. Department of Justice submitted an amicus brief on behalf of the federal government to support the plaintiffs’ injunction on June 27th, 2023. 

However, on appeal, the Court of Appeals ultimately granted this injunction, though partially.

What does this decision mean?

The injunction was granted based on the finding that the Florida statute is, in fact, preempted by federal law, specifically the Foreign Investment Risk Review Modernization Act of 2018, which established a review system for real estate purchases made by foreign nationals.

The partial nature of this decision lies in the extension of the injunction to only two of the plaintiffs, Ms. Yifan Shen and Mr. Zhiming Xu, as opposed to all of the plaintiffs involved and the wider state demographic threatened by the statute. The court concluded that even when the requirements for a preliminary injunction are all met, the relief provided under an injunction is not a “matter of right” and that extending such relief is at the discretion of the court. The decision to grant the injunction to only two of the plaintiffs was determined given that Ms. Shen and Mr. Xu’s recent and pending property transactions put them at the most imminent risk of irreparable harm.

Notably, Judge Nancy Gbana Abudu, one of the presiding Circuit Judges on the case, shared her concurring opinion on the ruling where she noted that she would have gone further to grant the preliminary injunction also on the plaintiff’s Equal Protection claim, which outlines that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Judge Abudu then remarks that while the holdings in Terrace v. Thompson, the century-old precedent used to initially deny the motion for a preliminary injunction, “may have had support in 1923…it is now 2024 where ‘state classifications based on alienage are subject to ‘strict judicial scrutiny.’” She further notes that while the Supreme Court has not overturned cases ruled based on the outdated Terrace precedent, the Supreme Court has since questioned its validity. This analysis all goes to show that historical legal arguments against these Equal Protection claims and suits against alien land laws are, in fact, antiquated and only perpetuate the gross standard of immigrant discrimination currently trending in many states across the country, not just in Florida.

What comes next?

While the lawsuit as a whole still remains subject to court review, in the meantime the law itself will not impact the above-mentioned plaintiffs in the case. Securing this win, however small or temporary, is a promising signal that the rights of communities being targeted by recent “alien land law” legislative proposals are safeguarded by legal and constitutional protections.

We will continue to track the progress of this case and push back against the ongoing wave of discriminatory, modern-day alien land laws that continue to threaten the civil rights of our community.

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