A provision in Utah's enforcement-only immigration law that makes it a felony to induce an illegal immigrant into the state likely won't stand up in federal court, Attorney General Mark Shurtleff said Monday.
Shurtleff and Assistant Attorney General Philip Lott made the comments at the Utah Immigration and Migration Commission meeting while briefing the 27-member board on the status of HB497 a version of Arizona's enforcement-only law, which was largely tossed by the U.S. Supreme Court last week.
"That basically created a state crime, so clearly they ruled in [Arizona's] SB1070 you cannot create a state crime if it's an immigration-related issue," Shurtleff said. "That inducement would be a state crime, so for that reason we think it will go down."
Lott also said that portion of HB497 presents "problems" for the state's defense.
The section of HB497 in question makes it a felony for a Utahn to "encourage or induce an alien to come to, enter or reside in this state, knowing or in reckless disregard of the fact the alien's coming to, entry or residence is or will be in violation of the law."
Arizona has a similar state-crime provision in its enforcement-only law, but it was not made a part of the Justice Department's lawsuit argued before the Supreme Court.
Shurtleff believed, on balance, HB497 will stand up in court despite the inducement portion.
Karen Tumlin an attorney with the National Immigration Law Center, which is fighting HB497 along with the American Civil Liberties Union of Utah said Shurtleff was "following the logic" of the high court's decision on the state crime provision.
"The attorney general is correct that the writing is on the wall for HB497 and that it will be found unconstitutional," Tumlin said. "I think the attorney general has shown remarkable candor on their position."
Last week, federal Judge Clark Waddoups asked both sides on HB497 to begin submitting written arguments. Oral arguments could be heard as early as late August.
Utah is one of six states to have an SB1070-style law on the books, but it was only employed for a few hours before lawyers successfully argued before Waddoups to issue a temporary restraining order and block it from taking effect.
The Supreme Court tossed two provisions in SB1070 that made it a state crime for an illegal immigrant to seek employment or to fail to carry proper documents as proof of a right to be in Arizona. The justices also barred police from arresting suspected illegal immigrants without warrants.
But the court upheld Arizona's right to require police to ask the legal status of anyone detained during a lawful stop.
Shurtleff said that's where he believes HB497 differs from SB1070. In Utah's version, it requires legal status to be checked only after an arrest on a felony or a class A misdemeanor.
House Speaker Becky Lockhart, R-Provo, who sits on the commission, expects immigration laws such as HB497 to be studied before the next legislative session, but she also said there likely wouldn't be any discussions on specifics until after a ruling on the enforcement-only law.
Rep. Curt Oda, R-Clearfield, an HB497 co-sponsor, said he hoped Waddoups would rule to keep it in effect.
"If you knowingly bring someone in, to me that's no different than aiding and abetting somebody committing a crime," Oda said. "But if the courts say we can't, we'll have to find another way to tweak it."
The Immigration Commission was formed to advise the governor and lawmakers on proposed immigration legislation "for the purpose of encouraging a comprehensive, coordinated and sustainable state response to issues related to immigration."
It flexed some muscle in the previous legislative session by recommending no immigration bills come out of the Capitol in 2012. Only Sen. Luz Robles, D-Salt Lake City, managed to get a bill regulating immigration consultants signed by Gov. Gary Herbert.