Critics say Utah immigration law unconstitutional

February 15, 2013, 5:01 am

By BRADY McCOMBS

SALT LAKE CITY (AP) — The U.S. Supreme Court's split ruling on Arizona's immigration enforcement law last summer shows that a similar law in Utah should be ruled unconstitutional, argued critics of the 2-year-old law that has yet to be implemented.

An U.S. Department of Justice lawyer and a team of private attorneys made that argument Friday during a hearing before U.S. District Judge Clark Waddoups in Salt Lake City. They urged Waddoups to permanently strike down the Utah law.

Assistant Attorney General Philip Lott countered that the key provisions in the state's law are "night and day" different from Arizona's measures that the Supreme Court blocked in June. The high court upheld Arizona's section that requires police to check the status of people they suspect are in the country illegally, which Lott said bodes well for a similar one in Utah's law. He asked Waddoups to allow Utah's law to go into effect.

The law, HB497, was passed in 2011 but was shelved shortly thereafter for a court review. Friday's hearing was the first on the law since February 2012, when Waddoups announced he would wait until after the Supreme Court weighed in on Arizona's law to take up the issue.

Utah was one of several states around the country to mirror immigration enforcement laws after Arizona's well-known measure. The key provision in Utah's law is a requirement that police check the immigration status of a person arrested for a felony or a class A misdemeanor, while giving authorities discretion to check the citizenship of those stopped for traffic infractions and other lesser offenses. Class A misdemeanors include theft, negligent homicide and criminal mischief.

The law also includes a provision making it a state crime to transport and harbor illegal immigrants. Another provision allows a "warrantless" arrest if police have reasonable suspicion that a person has committed a felony and is an illegal immigrant who has been ordered removed by an immigration judge or has been tagged for a federal immigration hold.

During Friday's 1 1/2-hour hearing, Waddoups asked dozens of questions to attorneys on both sides about several different provisions in the law. At the conclusion, he told them he'd issue a ruling soon.

Waddoups questioned Utah's lawyers several times about the overarching purpose of different provisions in the law — asking if certain measures were necessary and any different than what already takes place daily.

Lott said the law clarifies Utah's role in cooperating with the federal government on immigration enforcement. He also pointed to guidance issued by former Utah Attorney General Mark Shurtleff on how to enforce the law as evidence that police won't overstep their bounds.

But the judge questioned if that guidance from Shurtleff would have any legal binding in relation to the review of the law's constitutionality. The U.S. Justice Department's lawyer, Scott Simpson, said it wouldn't because it could be altered or scrapped by the new attorney general.

The hearing pitted Lott and one other state attorney against a team of lawyers arguing the law should be struck down. That side included Simpson, Karen Tumlin of the National Immigration Law Center, and Jennifer Chang Newell of the American Civil Liberties Union.

Simpson said the federal government concedes that one section of Utah's law is constitutional: a provision that would allow police officers to transport an illegal immigrant to a federal facility. Tumlin and Chang Newell, however, argued that entire law should be struck down.

Cecillia Wang, director of the ACLU's Immigrants' Rights Project, said afterward that the Supreme Court's decision "made it clear that states have no business criminalizing activities that have to do with immigration status and trying to interfere with the federal government's authority."

But Lott said he's quite optimistic that Utah's provision that requires police to check people's immigration status will be upheld based on the Supreme Court's ruling in Arizona.

"We feel like ours is even more restrictive than Arizona," Lott said after the hearing.

Tumlin disagreed, saying Waddoups' questions about whether the provision would violate some basic liberties showed he has real concerns. The judge mentioned he may send this part of the law to the Utah Supreme Court to get a ruling.

Tumlin said that would be a wise move, but Lott said it would only further delay the implementation of the law.

A dozen or so protesters held signs outside the courthouse denouncing the law.

"No, we will not show our papers," one read. "Full rights for immigrants. Stop HB497," said another.

"Laws like HB497 rip families apart," said Alicia Cervantes, a plaintiff in the case. "As a mother I shouldn't have to worry if my daughter is going to get pulled over just because she looks ethnic."

Lott said concerns about the law leading to racial profiling are unjustified.

"Utah's interest really is only in identifying illegal immigrants who break the law in Utah," Lott said. "The state is not going to be going door-to-door to look for illegal immigrants."

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