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'Clarity' on states' immigration measures needed from high court, attorneys say

Published: Monday, Dec. 12 2011 6:30 p.m. MST

SALT LAKE CITY — The Supreme Court likely won't decide until late in its upcoming term whether Arizona can impose its own stringent immigration measures, but a number of Utah attorneys welcome guidance from the high court on the issues.

"I would like the Supreme Court to very clearly state that immigration is a federal authority with a tiny bit of authority for the states," said Salt Lake immigration attorney Mark Alvarez, who has raised constitutional concerns about a number of the laws passed by the Utah Legislature.

"I've been, for a long time, wishing for some clarity," Alvarez said.

One of the more controversial issues the justices will consider is a requirement that police in Arizona question people they stop about their immigration status.

In April, the 9th Circuit Court of Appeals blocked enforcement of portions of the Arizona law. The Department of Justice challenged portions of the law, arguing it could not be reconciled with federal immigration laws and policies.

Utah Attorney General Mark Shurtleff has described Utah's laws as "Arizona-lite," meaning Utah's laws are markedly different than Arizona's.

“We argue in a practical manner, a pragmatic manner, the states are all saying, ‘Well, they’ve (the federal government) failed to do their jobs, therefore we have to step in,’” Shurtleff said.

“[But] we can’t step in if the Constitution prohibits it, and that’s why it’s such a key decision.”

The Constitution gives Congress the power “to establish an uniform rule of naturalization.”

Roger Tsai, former president of the Utah chapter of the American Immigration Lawyers Association, said it was interesting that the U.S. Solicitor General had opposed the Supreme Court taking up the case. That may be because Justice Department attorneys have been largely successful in enjoining state laws in federal appellate courts.

In the Arizona case, for instance, the 9th Circuit blocked four provisions of Arizona's laws.

Until the court rules, the impact on Utah's state laws will not be known, Tsai said.

Late last month, the U.S. Department of Justice filed a lawsuit against Utah over HB497, claiming the enforcement measure is unconstitutional because it attempts to establish a state immigration policy. The bill was passed during the 2011 Legislature.

Utah's law requires police to verify the immigration status of people arrested for felonies and class A misdemeanors as well those booked into jail on class B and class C misdemeanors. The law also says officers may attempt to verify the status of someone detained for class B and class C misdemeanors.

Alvarez said the Supreme Court taking up the Arizona law may send a message to Congress that it needs to move immigration reform to the top of its agenda.

"Let's start demanding that our federal representatives address this issue," he said.

Shurtleff said the immigration issues before the Supreme Court are "very politically charged."

“So now we’re going to have two cases heard next year, during an election year — one on Obamacare, which is highly political, and now this one as well.”

Contributing: Becky Bruce

E-mail: marjorie@desnews.com

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