Utah immigration enforcement law on hold pending federal ruling

Published: Friday, Feb. 15 2013 6:25 p.m. MST

Alicia Cervantes wipes a tear as she talks to the media Friday, Feb. 15, 2013, outside the Frank E. Moss Federal Courthouse, where U.S. District Court Judge Clark Waddoups heard arguments on constitutionality of HB497, Utah's immigration enforcement law passed by the Legislature in 2011. Cervantes is a plaintiff in the lawsuit.

Scott G Winterton, Deseret News

SALT LAKE CITY — Utah's immigration enforcement law remains on hold as a federal judge weighs arguments whether HB497 should be allowed to take effect.

After a two-hour hearing Friday, U.S. District Court Judge Clark Waddoups took under advisement arguments by an attorney for the Department of Justice and the plaintiffs' counsel that sections of Utah's law preempt federal authority and are otherwise unconstitutional.

The DOJ and plaintiffs relied heavily on the recent Supreme Court decision on Arizona's controversial immigration enforcement law to support their positions.

"That decision is controlling in some respects and very helpful in others," said Scott Simpson of the U.S. Attorney's Office.

Assistant attorney general Phil Lott, defending the 2011 bill, cautioned against direct comparisons between the states' respective laws.

The warrantless arrest provisions of Utah's law, he said, "are as different as night and day."

Karen Tumlin of the National Immigration Law Center said the warrantless arrest provision of HB497 conflicts with Fourth Amendment protections. The state, in an attempt to create its own immigration policy, is "determining the type of individual should be subject to warrantless arrest."

An informal legal opinion by former Utah Attorney General Mark Shurtleff intended to provide guidelines to state and local law enforcement agencies in enforcing HB497 was the focus of other arguments.

While the opinion states that HB497 "does not significantly change state or local law enforcement's existing authority pertaining to aliens unlawfully present in the United States," Tumlin questioned its application since Shurtleff has since left office and the opinion was written prior to Supreme Court's ruling on Arizona's SB1070.

"This is clearly not the same (legal) landscape since the Supreme Court decision," she said.

While Waddoups gave no indication when he would rule on the motion for preliminary injunction, he broached the possibility of certifying a question to the Utah Supreme Court on verification and identification provisions of the Utah law.

On several occasions during the hearing, Waddoups frequently asked the state's attorneys why the state law was needed.

The Utah law was intended to clarify and codify the authority of Utah police officers with respect to immigration matters, Lott said.

"It's in cooperation with the federal government. It's not unilateral," he said.

HB497, passed by the Utah Legislature and signed into law by Gov. Gary Herbert 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 someone detained for class B and class C misdemeanors.

The Supreme Court struck down three of four provisions of the Arizona law, ruling they were preempted by federal law. The provisions would have made it a crime for an illegal immigrant to search for a job, or to hold one; allowed state police to arrest any person for suspicion of being an illegal immigrant; and required legal immigrants to carry registration documents at all times.

Two of the plaintiffs in the in lawsuit, Alicia Cervantes and Archie Archuleta, spoke with reporters outside the courthouse at the conclusion of the hearing.

Cervantes said she once believed Utah was a family friendly state. But HB497, she said, "rips families apart."

The law does not belong in Utah, Cervantes said. "In a better world, we wouldn't judge people based on their status."

Archuleta took note of the fresh breeze and sunshine outside the courthouse, suggesting the ugliness and fear of the fight over HB497 was beginning to lift.

"The air is beginning to clear," he said. "We have real hope."

What is needed more than anything, Archuleta said, is comprehensive immigration reform.

E-mail: marjorie@desnews.com

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