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Legal challenge over Utah immigration law nearing end, Attorney General Mark Shurtleff says

Published: Wednesday, Oct. 10 2012 12:17 p.m. MDT

Protestors march 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

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SALT LAKE CITY — The legal fight over Utah's immigration enforcement is nearing a conclusion.

Utah Attorney General Mark Shurtleff, briefing the Utah Commission on Immigration and Migration Wednesday, said the parties challenging and defending HB497 have completed filing briefs.

"No one has requested an additional hearing. He (U.S. District Judge Clark Waddoups) has not set one. It's really in Judge Waddoups' hands. All the briefing is done at this point," Shurtleff said.

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.

The initial challenge to Utah's law was filed last November by civil rights organizations representing individual plaintiffs. The Department of Justice later intervened in the lawsuit.

The latest filing by plaintiffs' attorneys concerns Section 5 of the Utah law, which addresses transporting "illegal aliens" to federal facilities.

If Utah's immigration enforcement law officially becomes law, there is an "acute" likelihood the plaintiffs who oppose HB497 will be targets of law enforcement scrutiny, the new motion in federal court contends.

Plaintiffs who have opposed the constitutionality of HB497 will be at "imminent and significant risk of unlawful seizure, arrest and detention by law enforcement officers," the attorneys argue.

The motion, filed recently in Utah's U.S. District Court, contends the plaintiffs will be "irreparably harmed" if Section 5 of the 2011 law is not enjoined. 

"The likelihood that plaintiffs will be targeted for law enforcement scrutiny is especially acute because they belong to racial or national origin minority groups, speak foreign languages or foreign-accented English and/or lack HB497's qualifying identity documents — characteristics they cannot easily change."

If the section is not enjoined, the plaintiffs will be "subjected to enforcement of an unconstitutional, pre-empted state law and are at imminent risk of unlawful stops, arrests and detention," the motion states.

Federal authorities are aware of the "unlawful presence" of plaintiffs David Morales and "Jane Doe," who are noncitizens. However, the federal government has exercised its discretion not to remove them, plaintiffs' attorneys wrote.

Doe lacks the identity documents required under HB497, the motion states. Those documents include a valid driver license, state identity card, tribal enrollment card or a valid identification issued by a federal, state or local government agency.

These "circumstances" place the plaintiffs at heightened risk of being stopped, improperly arrested "and therefore at risk of being transferred and detained pursuant to Section 5, according the motion.

Section 5 says "a state or local law enforcement agency may securely transport an alien who is in the agency's custody and whom the agency has verified is unlawfully present in the United States to a federal detention facility in this state or, with the concurrence of the receiving federal agency, to a federal facility or other point of transfer to federal custody that is outside this state."

While the state has argued that enjoining Section 5 would impair the state's efforts to assist the federal government, plaintiffs' attorneys argue the portion of the law gives the state "unilateral authority — even when the federal government does not consent — to transport an unlawfully present noncitizen to a federal detention facility and to detain the noncitizen during the course of the transfer."

Section 5 is not an attempt to help the federal government "but to supplant the federal government," they argue.

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. The law was temporarily enjoined pending the outcome of the lawsuit.

E-mail: marjorie@desnews.com

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