Utah immigration law under fire even before it's on the books

Policy » Attorneys say some provisions are unconstitutional; defenders say economics is behind new law.
This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah's new immigration law, SB81, takes effect July 1. But several attorneys who belong to the American Immigration Lawyers Association say they're not waiting.

They plan to file a lawsuit later this week challenging various portions of the law.

"There are a number of provisions we think are unconstitutional," said Hakeem Ishola, one of the attorneys filing the suit.

The attorneys, who say federal law should supersede state law in several areas, are focusing on four main areas: new identity document laws, the requirement for businesses with government contracts to use E-Verify, local enforcement of immigration law and a provision making it illegal to harbor an undocumented immigrant.

Defenders of the law, though, say many of its provisions are aimed at preserving precious taxpayer resources for those who follow the rules.

"In these times we are currently looking at, with shortfalls in services, we should provide those services to those who are here legally," said Rep. Mike Noel, R-Kanab, who co-sponsored the bill.

"My issue is, many people out there come to this country and go through the process to get here," Noel said. "The rule of law needs to be applied, and the federal government caused this problem and has not taken the necessary steps to fix it."

Attorney General Mark Shurtleff said he has known about a possible lawsuit since the end of the legislative session and plans to defend the law. He couldn't comment, though, because of the pending litigation.

These are the major focuses of the planned lawsuit:

» The new law requires proof of U.S. citizenship to obtain a driver license or state identification card.

"SB81 will make it impossible for many people to obtain basic state identification. This has the potential to create a chaotic situation in terms of security which will only push people further into the shadows and make it that much harder to tell the good guys from the bad," said Aaron Tarin, another lawyer behind the expected legal challenge. "A key goal of any immigration law is to account for, and identify who is who in our country. SB81 completely misses the mark on this."

» The opponents also question the legality of forcing only companies that contract with public agencies to use the federal E-Verify system while private businesses do not. They also say the status-check system is "unreliable and riddled with inaccuracies."

» While no Utah local police force has said it will cross-train officers to serve as immigration agents, Tarin and his colleagues say having the provision in law undermines the public's confidence in local law enforcement.

» The attorneys also attack part of the law making it a crime to "conceal, harbor, or shelter from detection an alien, in a place within this state for commercial advantage or private financial gain, a person known to be without legal status." They say the language is overly vague.

"This portion of the law will do little to stem illegal immigration and will just cause fear and confusion among both documented and undocumented individuals," Tarin said. "[It also] could have potentially disastrous economic consequences on many sectors of state industry such as construction, tourism and lodging."

A similar lawsuit against Oklahoma's immigration law, on which Utah modeled its statute, has been heard by judges in the 10th Circuit Court of Appeals -- the same federal circuit that oversees Utah. The three-judge panel has not ruled and there is no indication when that will come.

Barbara Szweda, of the American Civil Liberties Union of Utah, wants to make sure that Utahns do not get their hopes too high, she said, because even if the 10th Circuit rules against Oklahoma's law, it is different enough from Utah's law that the ruling may not affect SB81.

She is advising Utahns to realize that the new immigration law may not have as large an impact on most undocumented immigrants' lives as they fear.

"People are leaving the state over this. We want to tell them to calm down. A lot of this bill was hate mongering -- a messaging bill more about not wanting undocumented people in our state," Szweda said. "It shouldn't make people run. People just have to be careful and realize they have rights."

Noel, the House sponsor of SB81, insists the motivation for the bill is an economic one and has nothing to do with racism or bigotry.

"I do not want to be thought of as the poster child for people who preach racial hate," Noel said.


SB81: What the law says

Law enforcement

County sheriffs are required to "make a reasonable effort" to determine the legal status of anyone jailed for a felony or for driving under the influence. If a person is a foreign national, the sheriff is required to determine within 48 hours if that person entered the country legally. While the law does give the option of cross-deputizing local patrol officers to essentially work as immigration agents, no city in the state has agreed to do so.

Supporters say the participation of local police could help keep a check on illegal immigration. Opponents say it would drive major crime victims and witnesses underground.

Public benefits

SB81 will affect very few public benefits, and only people over the age of 18 will be denied certain benefits based on their lack of U.S. Citizenship. Most public health programs, including cancer screenings and WIC, will not be affected. Medicaid and the Children's Health Insurance Program, which require proof of legal status, will continue to do so.

Transporting or harboring

SB81 says anyone transporting an undocumented immigrant more than 100 miles for "commercial advantage or private financial gain" or who "knowingly conceals, harbors or shelters from detection" an undocumented immigrant is guilty of a class A misdemeanor.

Paul L. Smith, executive director of the Utah Apartment Association, says he has advised his landlords to add a line to rental applications stating, "I attest that all residents that will abide in the premises are legal to reside in the United States."

"We obey laws, but we're in the housing business," Smith said. "It's not our business to enforce immigration law."


SB81 states that as long as an undocumented immigrant has been a member of his or her faith for at least a year, church leaders may call that person as a minister or missionary and pay living, medical and other associated costs.

"The [LDS] Church has not taken a position on SB81, nor do we believe that it affects in any way the ability of members to accept callings in their local congregations," said Scott Trotter, spokesman for The Church of Jesus Christ of Latter-day Saints.