The 'Utah Solution' to immigration reform

Our immigration system is broken. Unfortunately, the folks in Washington cannot agree on how to fix it. Consequently, we have President Obama bravely issuing executive orders deferring the deportation of certain undocumented aliens and ending the Secure Communities program.

Not to be outdone, the states have tried to impose their views of reform on the system. You may recall Arizona S.B. 1070, which the Supreme Court upheld in part and invalidated in part, Arizona v. United States, 567 U.S. __, 132 S. Ct. 2492 (2012).

Less well known is the Utah Illegal Immigration Enforcement Act, or H.B. 497, enacted in 2011. Supporters hailed the act as the "Utah solution" to immigration reform. Critics derided it as another "show-me-your-papers" law, targeting Hispanics.

In June, a federal district court, following Arizona, upheld some sections of H.B. 497 and struck down other sections, Utah Coalition of La Raza v. Herbert, No. 2:11-cv-401 (D. Utah 2014).

H.B. 497 contains six key provisions, many of which mirror S.B. 1070. The act (1) permits and in some occasions requires a police officer to verify a person's immigrant status, subsequent to a lawful stop or arrest and communicate relevant information to the Department of Homeland Security (DHS), (2) presumes lawful presence based on the presentation of certain documents, such as a Utah driver's license, (3) permits police to transport a person who is not lawfully present to a federal detention facility, (4) prohibits a local government from enacting an ordinance or policy declining to enforce any federal immigration law, (5) criminalizes the smuggling of aliens into Utah, and (6) authorizes an officer to arrest without a warrant a person if the officer has "reasonable cause" to believe the person is subject to deportation.

Various groups and individuals, with the assistance of the ACLU, immediately challenged the act. The plaintiffs argued federal law preempted the act and the verification process could result in an unreasonable detention in violation of the Fourth Amendment. Initially they were successful, obtaining a preliminary injunction.

Recognizing the relevance of the Supreme Court's pending decision in Arizona, the district court put its final decision on hold. In the meantime, the Utah attorney general issued an opinion which narrowed the scope of the act.

An officer had to have a lawful basis for stopping, detaining or arresting a person before he could verify the person's citizenship status. Being suspicious of a person's status is not such a basis. An officer could not prolong the stop or arrest merely to confirm a person's status. Any documentation will suffice to prove lawful presence, not just the documents listed in the act. Before transporting a person found not to be lawfully present, police had to obtain from DHS a detainer in the name of the person.

The Utah attorney general could see which way the Supreme Court was going in Arizona. His construction of H.B. 497 brought the provisions dealing with verification and documentation in line with the eventual holding of Arizona.

The district court explicitly adopted the construction of the attorney general. Doing so enabled it to uphold the verification and documentation provisions against the preemption and Fourth Amendment challenges of the plaintiffs. The court did note if in practice police did stop persons just to check their status or police prolonged stops for this purpose, it would revisit the issue.

S.B. 1070 did not contain a provision on the transportation of aliens. Again, the opinion of the attorney general helped save the provision, so stated the court.

A person could not be transported unless he was lawfully stopped. Utah police would not be acting unilaterally or in conflict with the DHS, but only pursuant to a detainer issued by DHS.

Ironically, the transportation provision may be moot at the moment. With the termination of the Secure Communities program, DHS will not be sending detainers to local police. These "requests" to hold a person of interest to DHS had received much pushback. Many sheriffs, including Wayne County's, refused to honor them.

The court also upheld the prohibition on local government not cooperating with DHS. What government does or does not do at the local and state level does not conflict with federal efforts to enforce the federal immigration laws. This provision is definitely moot with DHS not seeking the cooperation of local governments now.

The court did strike down the anti-smuggling provision. Congress had extensively regulated the field of alien entry and residence in the United States. Utah could not criminalize the same behavior already criminal under federal law.

The court also struck down the provision authorizing the warrantless arrest of persons suspected of being removable. Congress granted the authority to arrest such persons to the attorney general of the United States. Warrants are generally required. Actually, Congress did give state officers the authority to make warrantless arrests but in only four very "limited circumstances."

Like Arizona, Utah was trying to expand the arresting authority of its officers in one particular field of immigration fully regulated by Congress. Like Arizona, Utah "was precluded from engag(ing) in these enforcement activities as a general matter."

Just before Thanksgiving, the plaintiffs and Utah settled the case, along the lines of the final decision, foregoing an appeal.

Even though the court upheld more provisions than it struck down, the plaintiffs celebrated the "undoing" of H.B. 497. Utah police will play a role in enforcing the immigration laws but the role is predicated on a lawful stop or arrest.

-----

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to a chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Fri, Dec 12, 2014