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.
While the state may need to contact the federal government to determine the legal status of people arrested for felonies or class A misdemeanors or those booked into jail for lesser misdemeanors, "the federal government, if they don't want to, doesn't have to do anything at all."
Once the state determines the status, the state would not at all interfere with the federal government's prosecutorial discretion, he said.
Karen Tumlin, plaintiff's attorney with the National Immigration Law Center, said the state's intent to exercise broader authority was evident in HB497's legislative intent and the plain reading of the law.
Sen. Margaret Dayton, R-Orem, for instance, remarked that HB497 was an attempt by the state of Utah to enforce the federal immigration law, Tumlin said.
At one point during the hearing, about 15 people among about 50 who had been picketing outside the courthouse sat in on the hearing. One man held up a placard in the courtroom that said, "Education, Not Deportation." After U.S. marshals asked him to leave, the rest of group followed him out of the courtroom.
Waddoups cautioned all attorneys at the beginning of the hearing to confine their arguments to issues of law and constitutionality. Waddoups allowed three attorneys who had submitted "friend of the court" briefs to court to also present oral arguments.
"Whether this act is good policy or bad policy is not of concern to this court," Waddoups said.
Joshua Wilkenfeld, attorney for the Department of Justice, said the states provide a role in assisting the federal government in enforcing federal immigration law.
"HB497 turns this on its head," Wilkenfeld said, explaining that the legislation creates new state-specific immigration crimes that are barred by federal law and the U.S. Constitution.
Tumlin said the states have narrow latitude to enforce federal immigration law.
"By way of framing, HB497 is an unconstitutional attempt by the state to regulate in an area where the state has no control," Tumlin said.
During a press conference on the courthouse steps following the hearing, Alicia Cervantes, one of the plaintiffs in the initial lawsuit, said HB497 ran contrary to Utah's reputation as a friendly, welcoming place.
Cervantes said she woke up at 4 a.m. Friday worrying about the hearing. The issue, the mother of four said, has effected her emotionally, mentally and physically.
She now fears that friendly acts, such as driving undocumented neighbor children to school, could be considered a criminal act. "That's plain wrong."
She said she also feared for the welfare of her partner, who is undocumented.
"Please understand, if something happened to him, I don't know what I would do," she said, choking back tears.
"HB497 does not belong in Utah. It does not belong anywhere."
In May, civil rights attorneys representing Utah Coalition of La Raza filed a lawsuit against the state of Utah claiming HB497 is unconstitutional and invites racial profiling.
The DOJ, which intervened in the lawsuit in November, has further argued that enforcing the law would inflict "irreparable injury on the United States' ability to manage foreign policy."
The Utah Attorney General's Office has maintained that Utah's law passes constitutional muster and should be allowed to go into effect because it reflects the state's attempt to "undertake its supporting role in the fight against illegal immigration, within the parameters set by Congress in those statutes."
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