Utah's immigration enforcement law 'threatens Mexican nationals' human and civil rights,' amicus brief says

Published: Tuesday, Dec. 20 2011 8:02 p.m. MST

SALT LAKE CITY — Utah's new immigration enforcement law "threatens the human and civil rights" of Mexican nationals, attorneys for the government of Mexico wrote in a friend of the court brief filed in U.S. District Court in conjunction with a lawsuit that challenges the law's constitutionality.

In a separate filing seeking a preliminary injunction against certain sections of the law, federal attorneys cite the legislative debate over HB497 earlier this year as evidence Utah lawmakers intend to usurp the government's authority over immigration enforcement.

Attorneys representing Mexico and 13 other Latin American countries wrote in an amicus brief filed recently that Utah's immigration enforcement law "dangerously contributes to a patchwork of laws that impede effective and consistent diplomatic relations."

The bill, signed into law in March, has been challenged on constitutional grounds by civil rights organizations as well as the U.S. Department of Justice. Mexico was joined in the amicus brief by the governments of Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru and Uruguay.

"Through HB497, Utah directly interferes with the U.S. Department of State's ability to conduct foreign affairs and policy. As was the case with Arizona's SB1070, even prior to going into effect, HB497 is already straining U.S.-Mexico relations," the brief said.

Specifically, the government of Mexico is concerned about the adverse impact initiatives such as HB497 may have on "the breadth and scope of our bilateral relationship (with the U.S.)"

The DOJ motion filed last week seeking a preliminary injunction said the enforcement of the law would inflict "irreparable injury on the United States' ability to manage foreign policy. The enactment of Utah's package of immigration statutes has already had negative effects on U.S. foreign policy interests, and these consequences will intensify if HB497 is permitted to operate."

HB497 was passed during the 2011 Legislature and signed into law in March. The law requires police to verify the immigration status of people arrested for felonies and class A misdemeanors as well as those booked into jail on class B and class C misdemeanors. It also says officers may attempt to verify the status of someone detained for class B and class C misdemeanors.

A class-action lawsuit was filed in May claiming the law is unconstitutional and invites racial profiling. Last month, the DOJ intervened in the lawsuit, claiming the law is unconstitutional because it attempts to establish a state immigration policy.

In its brief seeking a preliminary injunction, the DOJ said HB497 represents an attempt to usurp the federal government's constitutional authority to set immigration policy.

"This package of legislation explicitly sought to trump federal immigration authority, by positioning Utah as the 'lead in this country how to address' immigration," federal lawyers wrote, quoting Rep. David Litvack, D-Salt Lake, during debate on the bill in the Utah House of Representatives.

DOJ attorneys also quote Rep. Ken Ivory, R-West Jordan, who explained during the debate that the package of Utah immigration statutes was designed to "reclaim a right" over immigration to counter the federal government's "usurp(ation)" of immigration policy.

Utah's laws were "an effort to push back against the federal government and the tradition built up in the courts" regarding federal primacy in immigration enforcement, DOJ attorneys wrote, quoting Ivory in the House debate.

Utah Attorney General Mark Shurtleff said Tuesday that the federal government's motion and the amicus brief filed by Mexico and other Latin American countries were nearly identical to briefs filed by the parties while challenging other states' immigration laws.

"Obviously, those who filed these briefs haven't read our law or understand how different our law is," Shurtleff said.

Shurtleff said Utah's laws were specifically written not to pose a threat to Mexico or other Latin American countries.

"We are confident when we get our chance to respond to the DOJ motion that will be understood," he said.

Meanwhile, the Utah Legislature may in its 2012 session amend some of the provisions of HB497 that are objectionable to the DOJ. "Maybe if we change some of those things, they will pull out of the case," Shurtleff said.

The DOJ memorandum says "the U.S. State Department advises that HB497 is likely to interfere with the national government's ability to collaborate with foreign governments on matters of joint concern."

Moreover, "this ongoing and expected irreparable harm to weighty foreign interests alone warrants preliminary injunctive relief," the memorandum said.

The DOJ memorandum says the "United States is likely to succeed on the merits of this preemption challenge because "HB497 encroaches on exclusively federal responsibilities and conflicts with the INA (Immigration and Nationality Act). The Supremacy Clause of the U.S. Constitution provides that federal laws and treaties are the supreme Law of the Land."

E-mail: marjorie@desnews.com

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