A Utah law requiring police to verify the immigration status of people arrested on felony charges violates the U.S. Constitution and must be blocked, lawyers for the federal government said.
That measure was included in a package of four bills signed into law last year by Governor Gary R. Herbert in a legislative package he called “the Utah solution” to illegal immigration.
The U.S. asked U.S. District Judge Clark Waddoups in Salt Lake City for an order temporarily blocking the status- verification law and two other measures it says conflicts with powers reserved to the federal government. Justice Department attorney Joshua Wilkenfeld told Waddoups today that the law also risks damaging federal prosecution of more serious crimes, such as drug trafficking.
“Just asking aliens for information can interfere with government’s ability to pursue high priorities of federal law enforcement,” he said.
Barry Lawrence, a lawyer in the office of Utah Attorney General Mark Shurtleff, said the purpose of the statute is to identify people who are arrested and to determine how many crimes are committed by those who aren’t lawfully in the U.S.
“An officer cannot walk up and say, ‘Show me your papers,’” Lawrence said. “What we are doing is identifying people who are committing crimes. If there isn’t an arrest, we don’t get to the verification.”
Subject to Removal
The U.S. also asked the judge to block enforcement of measures authorizing police to arrest without a warrant people they believe are subject to the removal order of an immigration judge and making it a felony to encourage or induce an illegal alien to enter or settle in Utah.
“In our constitutional system, the power to regulate immigration is exclusively vested in the federal government,” the U.S. argued in court papers. “The state of Utah has crossed this constitutional line.”
The U.S. sued to block the law in November, six months after a challenge was first lodged by a Latino civil rights advocacy group, Utah Coalition of La Raza. Waddoups has consolidated the cases.
The state argues the U.S. is mischaracterizing the legislation, known as HB 497, and says it’s consistent with congressional mandates and is constitutional.
“This issue is neither difficult nor complicated,” the state’s attorneys told Waddoups in a Jan. 17 submission.
Utah spends almost $8 million a year to keep about 300 illegal immigrants in prison, according to the state’s filing, while more than $55 million is spent on public education of undocumented children.
“There are those who will say these bills may not be perfect, but they are a step in the right direction and they are better than what we had,” Herbert said in a statement after signing the legislation on March 15.
The U.S. Supreme Court in December said it would review a San Francisco-based federal appeals court’s 2011 ruling that barred enforcement of an Arizona law requiring police to check immigration status when they stop or arrest a person they have reasonable suspicion to believe is in the country illegally.
Utah lies in a different federal appellate circuit than Arizona, its neighbor to the south.
An Atlanta-based appeals court on March 1 will hear arguments on state and federal government challenges to a September ruling by U.S. District Judge Sharon Lovelace Blackburn in Birmingham, Alabama, blocking parts of package of immigration control measures signed into law by Alabama Governor Robert Bentley.
A federal judge in South Carolina, Richard M. Gergel, in December blocked enforcement of a law in that state which would require police officers suspecting somebody of unlawfully being in the U.S. to check their legal status.
South Carolina Governor Nikki Haley’s administration is appealing Gergel’s decision to the U.S. Court of Appeals in Richmond, Virginia.
Congress has empowered the states to communicate and cooperate with one another and with the federal government on immigration enforcement efforts, Utah said in court papers opposing the U.S. bid for a court order blocking the law.
“HB 497 reflects Utah’s attempt to undertake its supporting role in the fight against illegal immigration, within the parameters set by Congress,” Utah told Waddoups. “HB 497 does not conflict with Congress’ mandate, but is entirely consistent with it.”
While Waddoups heard about six hours of argument today, he issued no ruling on the preliminary injunction request and said he may refrain from doing so until after the Supreme Court rules in the Arizona case.
A temporary restraining order issued by Waddoups in May blocked the law from taking effect. The judge today said at the end of today’s hearing that that order remains in effect.
Outside the court, Alicia Cervantes -- a Utah native of Latino descent who was a co-plaintiff when the lawsuit was filed by the Utah Coalition of La Raza last year -- told reporters she feared the legislation could separate families and divide communities.
“It’s not the Utah I grew up in,” she said. “Utah deserves better than that.”
The case is Utah Coalition of La Raza v. Herbert, 11-401, U.S. District Court, District of Utah (Salt Lake City).
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