Supreme Court ruling in hand, attorneys take next step in challenging Utah's immigration law

Published: Tuesday, July 31 2012 8:00 p.m. MDT

In this Feb. 17 file photo, Francisco Ayala protests HB497, Utah's immigration enforcement law, outside of the Frank E. Moss Courthouse in Salt Lake City. According to opponents, the Supreme Court's recent ruling on Arizona's controversial immigration enforcement law "reinforces the conclusion Utah's HB497 is unconstitutional."

Kristin Murphy, File, Deseret News

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SALT LAKE CITY — The Supreme Court's recent ruling on Arizona's controversial immigration enforcement law "reinforces the conclusion Utah's HB497 is unconstitutional," according to attorneys challenging the law.

Based on that interpretation, civil rights attorneys representing Utah Coalition of La Raza have asked in court filings that U.S. District Judge Clark Waddoups grant a preliminary injunction against the Utah law.

Plaintiffs' attorneys argued that a number of sections of the Utah law, passed by the 2011 Legislature, are either unconstitutional or conflict with federal law.

"The Arizona decision leaves no doubt that Utah's warrantless arrest provision impermissibly conflicts with federal law because it authorizes arrests based on mere suspicion of immigration violations without federal direction or control," the attorneys wrote.

The state's "de facto alien registration scheme ... intrudes on an area that Congress has exclusively occupied and must be preempted," plaintiffs' attorneys wrote.

Plaintiffs' attorneys, who include counsel for the National Immigration Law Center and the American Civil Liberties Union, and attorneys for the Department of Justice previously asked Waddoups to stop the Utah law from going into effect. In February, Waddoups conducted a six-hour hearing on the motion for preliminary injunction but held off ruling until the Supreme Court issued its decision on the challenge to Arizona's law.

In late June, the Supreme Court struck down key provisions of Arizona's crackdown on immigrants but ruled that a controversial section of the law regarding suspects' status could go forward.

The court ruled the state cannot criminalize the act of an undocumented person applying for a job nor establish a misdemeanor offense for the failure to carry identification that documents whether someone is in the United States legally. The court also ruled the state cannot arrest someone based solely on suspicion that the person is in the country illegally.

Waddoups then gave plaintiffs' attorneys until July 20 to submit additional briefs on the previous motion for preliminary injunction. The State of Utah has until Aug. 17 to file a response.

In recent filings in U.S. District Court, DOJ attorneys argued that sections of the Utah law should be enjoined, either on constitutional grounds or because the Utah law usurps federal authority.

Specifically, the federal government wrote that the Arizona decision "compels the conclusion that Utah's warrantless arrest provision is unconstitutional."

However, DOJ attorneys acknowledge the Supreme Court ruling "precludes the immediate issuance of a preliminary injunction" on a section of the Utah law that refers to determining a person's immigration status during a lawful stop or arrest.

The attorneys wrote that preliminary injunction should be granted on a section of the Utah law that refers to penalties for transporting or harboring "aliens" as well as a section on arrests when a peace officer has "reasonable cause to believe that the person is an alien."

HB497, which the original plaintiffs have maintained is analogous in sections of Arizona's SB1070, 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 people detained for class B and class C misdemeanors.

The initial challenge to the law was filed last November by attorneys representing civil rights organizations. The DOJ later interved in the lawsuit.

E-mail: marjorie@desnews.com

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