Federal judge may delay ruling on Utah immigration law until high court decides Arizona case

Published: Friday, Feb. 17 2012 11:31 a.m. MST

Alexis Santoyo yells in protest of HB497, Utah's immigration enforcement law, outside of the Frank E. Moss Courthouse in Salt Lake City on Friday, Feb. 17, 2012.

Kristin Murphy, Deseret News

SALT LAKE CITY — A federal judge may wait until after U.S. Supreme Court rules on Arizona's immigration law before he decides whether Utah's immigration enforcement statute should become law.

U.S. District Judge Clark Waddoups told attorneys Friday afternoon that he will notify the parties within a few days of his decision.

"The present (temporary) injunction remains in place until I rule," he said.

During more than six hours of oral arguments on a motion to prevent the law from taking effect, Waddoups probed state attorneys about whether the Utah statute discriminated against certain classes of people with respect to providing identification to law enforcement during lawful encounters such as a traffic stop.

Unless a person has the forms of identification specified in the statute, would they be subject to additional scrutiny, the judge said.

"If you make it easier for some citizens than others to prove they are citizens, that would be discrimination," Waddoups said.

The judge also queried whether HB497 created state immigration law beyond that in federal statute.

For instance, the law makes it a crime to "encourage or induce an alien to come to, enter, or reside in this state knowing or in reckless disregard of the fact that the alien's coming to, entry or residence is or will be in violation of law."

Waddoups asked state attorneys if HB497 could be interpreted to mean if an undocumented pregnant woman asked her husband, an illegal immigrant working in Wyoming, to enter Utah to attend the birth of their child, could the woman could be charged with enticing him to enter the state?

"What is the separate interest of the state has to prohibit that conduct? You're already in violation of federal law by being in the United States," the judge said.

The 2011 Legislature passed HB497 and Gov. Gary Herbert signed it 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.

While attorneys for the Department of Justice and civil rights organizations had the legal burden to convince the judge that HB497 should not be allowed to go into effect, the Utah Attorney General's Office initially argued the Utah law is so different than Arizona's law that "even if the Supreme Court were to strike down the Arizona statue, there may still be vitality for the Utah statute," said assistant Utah attorney general Barry Lawrence.

But by day's end, Lawrence said the judge could conceivably strike down sections of the Utah law while leaving the rest intact.

Utah's immigration enforcement law is widely misunderstood and places no additional burdens on the federal government, Lawrence said.

It is a misnomer to refer to HB497 as a "show me your papers" law.

"It doesn't do that," he said.

State and local law enforcement can ask people they encounter during a lawful stop or arrest to present identification.

"As long as police can identify the person, there's no further inquiry of status," Lawrence said.

The state's primary interest under HB497 is to identify people who commit crimes in the state, which would include determining whether law breakers are of illegal status.

"This is not anywhere as invasive as people think it is," Lawrence said.

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