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Utah immigration law in judge's hands

Published February 18, 2012 10:21 am

HB497 • While lawyers argue inside, protesters gather outside courthouse.
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When it comes to enforcement-only immigration law, Utah isn't Arizona, state lawyers argued in federal court Friday. Nor, they said, is it Alabama, Georgia or South Carolina.

But U.S. District Judge Clark Waddoups said at the conclusion of the 6½ -hour hearing that he might wait until Arizona has its SB1070 law heard at the U.S. Supreme Court in April before making a ruling on whether Utah's would violate civil rights and is unconstitutional.

A few protesters from The Salt Lake Dream Team were removed from the courtroom after one held up a sign that said "Education not Deportation" and about 50 demonstrators gathered outside the downtown Salt Lake City courthouse to voice opposition to the immigration law.

Inside the courtroom, the arguments turned on finer points.

The case hinged on whether Utah has the right to require local law enforcement to inquire about the legal status of people stopped for committing a crime. U.S. Department of Justice attorneys argued Utah couldn't trump the federal government's ability to oversee immigration law, and the National Immigration Law Center charged it was discriminatory and would lead to racial profiling.

Karen Tumlin, lead counsel of the NILC, said HB497 was bad for society.

"Laws like this will not be tolerated," Tumlin said. "Laws that attempt to tell Utah who is part of their community, who has a right to belong and who we think is American."

Utah passed the law a year ago and it was signed by Gov. Gary Herbert in March. However, it was only in effect for a few hours when Waddoups issued a temporary restraining order in May at the request of the plaintiffs in the case.

State Assistant Attorney General Barry Lawrence said Utah's statute was working in conjunction with federal law and disputed arguments that it attempted to set a parallel immigration system in place.

The law allows for the state to "communicate" with the federal government on a person's legal status once he or she is booked on criminal behavior. After that, he said, the state hands the case off and it is up to the federal government to decide if it wants to pursue deportation.

"For HB497, that's the end of our involvement," Lawrence said. "The federal government ... can do what they want."

He also sought to distinguish Utah's law from Arizona's. He said Arizona required a suspected undocumented immigrant remain held in detention until status could be determined and it also required people in Arizona to have identification papers on them at all times.

Lawrence said Utah's law was far narrower in scope.

But Justice Department lawyer Joshua Wilkenfeld said it didn't matter whether Utah's law wasn't as sweeping as other state's attempts at state-based immigration enforcement.

"The scope of the mandate isn't precisely the issue," Justice Department lawyer Joshua Wilkenfeld said. "But it's the very existence of a mandate."

The law only mandates police check the legal status of individuals stopped for felonies and class A misdemeanors while leaving it up to the discretion of police to check status for minor crimes and infractions.

The lengthy hearing — Tumlin said only Alabama's hearing was longer at seven hours — featured an active Waddoups engaging the attorneys in several exchanges in attempting to clarify arguments. He also allowed three lawyers who filed friend-of-the-court briefs to speak — with two supporting an injunction and one in support of the state attorneys.

Michael Hethmon, with the Immigration Reform Law Institute, who had assisted Rep. Stephen Sandstrom, R-Orem, in originally drafting HB497, was given 40 minutes to argue in support of HB497. Prior to the hearing Hethmon had expressed skepticism of the ability of Attorney General Mark Shurtleff's office to adequately defend the law — a charge Shurtleff took umbrage at.

Waddoups said he would let both sides know next week whether he would wait on a ruling from the Supreme Court on Arizona's law before issuing his decision.

dmontero@sltrib.comTwitter: @davemontero






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