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Utah's immigration law should go into effect, A.G. argues

Published: Friday, Aug. 17 2012 5:55 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.

Kristin Murphy, File, Deseret News

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SALT LAKE CITY — Based on the U.S. Supreme Court's recent ruling on Arizona's immigration enforcement law, Utah's HB497 should be able to go into effect, the Utah Attorney General's Office said Friday.

The Supreme Court ruling affirms portions of Utah's controversial immigration enforcement measure, the attorneys wrote in documents filed Friday in U.S. District Court. Other parts of Utah's law were written differently to "avoid the legal infirmities of (Arizona's) SB1070."

The Supreme Court decision "reflects that the state of Utah acted prudently when it rejected some of the Arizona provisions and reworked others" in drafting Utah's law, state attorneys wrote.

In a 20-page response filed Friday in U.S. District Court, state attorneys maintained that the Supreme Court decision specifically "cleared the path for Utah's verification provision."

HB497, passed by the Utah Legislature in 2011, 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 who are detained for class B and class C misdemeanors.

This verification, state attorneys contend, is not pre-empted by federal law nor does it violate the supremacy clause. 

"On that basis alone, Utah's verification provision should likewise be upheld; but even more so because Utah's law is less invasive than Arizona's law," the attorneys general wrote.

Arizona law requires officers to verify a person's immigration status any time "reasonable suspicion exists that person is an alien and unlawfully present in the United States."

Utah's HB497, which has been effectively put on hold until the legal challenge by civil rights organizations and the Department of Justice play out, requires officers to determine the identification of a person.

"As Arizona's verification provision was upheld, it follows that Utah's verification provision must also be upheld," state attorneys argue.

The state attorneys' brief also disputes civil rights attorneys' contentions that a section of Utah's law creates a "de facto alien registration provision" in conflict with federal law.

The argument lacks merit because the Utah law does not affirmatively require anything that is inconsistent with federal law, the attorneys wrote. It provides that state and local law enforcement cannot prevent local authorities from assisting the federal government.

"Utah agrees that a state may not set up its own alien registration process. A plain reading of Section 6 demonstrates, however, that it does nothing of the sort," state attorneys wrote.

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

U.S. District Judge Clark Waddoups conducted a six-hour hearing on the motion for preliminary injunction of the Utah law in February but held off ruling until the Supreme Court handed down the Arizona ruling.

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.

After the Supreme Court ruled in late June, Waddoups allowed attorneys for the plaintiffs and the government additional time to file supplemental briefs. 

While Waddoups indicated in a subsequent order that he intends to hold a hearing at the conclusion of the briefing process, state attorneys argued that another hearing was unnecessary given "the breadth of the prior hearing and narrow nature of this supplemental briefing."

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