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Let us enforce our law on immigration now, Utah argues

Published August 20, 2012 11:23 am

State A.G.'s Office says U.S. Supreme Court ruling is on Utah's side, but feds disagree.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The Utah Attorney General's Office urged a federal judge Friday to forgo a hearing on the state's enforcement-only immigration law and, instead, simply put it into effect immediately.

The 15-page brief, written by Barry Lawrence, Philip Lott and Timothy Evans, argued the U.S. Supreme Court's ruling on Arizona's enforcement-only law, SB1070, gave Utah's version plenty of room to exist without violating the U.S. Constitution.

"That decision," the brief said, "reflects that the state of Utah acted prudently when it rejected some of the Arizona provisions and reworked others."

Utah's law, HB497, took hold for about 12 hours before a temporary restraining order was granted by U.S. District Judge Clark Waddoups in May 2011.

Waddoups had heard arguments on the case but said he didn't want to rule on Utah's law until the U.S. Supreme Court made a decision on Arizona's.

On June 25, a majority of the high court tossed out several provisions of the Arizona law that weren't a part of Utah's HB497.

Those pieces included making it a crime for illegal immigrants to seek employment or fail to carry proper documents as proof of a right to be in the state. The court also forbid allowing police to arrest suspected illegal immigrants without warrants.

But the justices upheld SB1070's requirement that police check legal status upon any lawful stop.

In their brief, Utah's lawyers said the portion of HB497 that makes it different from SB1070 is where it instructs police that they "shall request verification of the citizenship or the immigration status of the person, except as allowed if the person is arrested for an alleged offense that is a class A misdemeanor or a felony."

"The focus of the Arizona law is for law enforcement officials to make an initial status determination," the attorneys wrote. "Whereas, in Utah, law enforcement is simply required to identify the individual and leave all status determinations up to the federal government."

U.S. Justice Department lawyers, in their brief, acknowledged the verification provision in HB497 "does not require immediate pre-emption."

But they also said they would challenge that part if the "scope of enforcement by the state, or its interpretation by state courts, interferes with the administration of federal immigration laws."

Instead, the federal attorneys leveled much of their firepower at Utah's warrantless arrest provision and the language making it a felony to induce an illegal immigrant to Utah. They argued Utah's law "suffers from the same flaws" identified by the Supreme Court in Arizona's statute, including granting police "authority to effect warrantless arrest based on nothing more than possible removability."

And the lawyers said the warrantless arrest provision in HB497 is misdirected when it allows an arrest absent any request, instruction or approval from the federal government.

"Neither a federal order of removal nor an aggravated felony charge functions as a request from the federal government to have an alien arrested," the Justice Department wrote in its July brief.

The federal government joined the initial lawsuit against Utah by the American Civil Liberties Union of Utah and the National Immigration Law Center — both of which were attempting to stop HB497 from taking effect.

Oral arguments in the case have not yet been scheduled.