Utah Coalition of La Raza et al v. Herbert et al

Filing 37

Plaintiff's MEMORANDUM in Support re 36 Plaintiff's MOTION for Preliminary Injunction filed by Plaintiffs Centro Civico Mexicano, Alicia Cervantes, Coalition of Utah Progressives, Eliana Larios, Latin American Chamber of Commerce, Milton Ivan Salazar-Gomez, Salt Lake City Brown Berets, Service Employees International Union, Utah Coalition of La Raza, Workers United Rocky Mountain Joint Board. (Attachments: # 1 Order granting leave to file over length memorandum, # 2 Index of exhibits in support of Plaintiffs' motion for preliminary injunction, # 3 Exhibit Exhibit 1 (HB 497), # 4 Exhibit Exhibit 2 (Archuleta Decl.), # 5 Exhibit Exhibit 3 (Medina Decl.), # 6 Exhibit Exhibit 4 (Gerkin Decl.), # 7 Exhibit Exhibit 5 (Cordova Decl.), # 8 Exhibit Exhibit 6 (Picardi Decl.), # 9 Exhibit Exhibit 7 (Ruiz Decl.), # 10 Exhibit Exhibit 8 (Cervantes Decl.), # 11 Exhibit Exhibit 9 (Larios Decl.), # 12 Exhibit Exhibit 10 (Gascon Decl.), # 13 Exhibit Exhibit 11 (Gonzalez Decl.), # 14 Exhibit Exhibit 12 (Burbank Decl.), # 15 Exhibit Exhibit 13 (Venegas Decl.), # 16 Exhibit Exhibit 14 (Arguetta Decl.), # 17 Exhibit Exhibit 15 (Lowenthal Decl. & Ex A), # 18 Exhibit Exhibit 16 (Miller Decl. & Exs A-B), # 19 Exhibit Exhibit 17 (Fernandez Decl. & Exs A-G), # 20 Exhibit Exhibit 18 (Fernandez Decl., Exs H-K), # 21 Exhibit Exhibit 19 (Fernandez Decl., Exs L-O))(Goddard, Darcy)

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Enrolled Copy H.B. 497 1 UTAH ILLEGAL IMMIGRATION ENFORCEMENT ACT 2 2011 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Stephen E. Sandstrom 5 Senate Sponsor: Margaret Dayton 6 Cosponsors: Stephen G. Handy Lee B. Perry 7 Roger E. Barrus Neal B. Hendrickson Val L. Peterson 8 Derek E. Brown Christopher N. Herrod Dixon M. Pitcher 9 Melvin R. Brown Gregory H. Hughes Kraig Powell 10 David G. Butterfield Don L. Ipson Paul Ray 11 David Clark Bradley G. Last Holly J. Richardson 12 Brad L. Dee John G. Mathis Douglas Sagers 13 Susan Duckworth Michael T. Morley Kenneth W. Sumsion 14 Julie Fisher Merlynn T. Newbold Evan J. Vickers 15 Gage Froerer Jim Nielson Ryan D. Wilcox 16 Brad J. Galvez Michael E. Noel Brad R. Wilson 17 Francis D. Gibson Curtis Oda Carl Wimmer 18 Richard A. Greenwood Patrick Painter Keith Grover 19 20 LONG TITLE 21 General Description: 22 This bill modifies state law and enacts "The Illegal Immigration Enforcement Act." 23 Highlighted Provisions: 24 This bill: 25 < requires that an officer verify the immigration status of a person arrested for a 26 felony or a class A misdemeanor and a person booked for class B or C 27 misdemeanors and requires that an officer attempt to verify immigration status for a H.B. 497 28 person detained for a class B or C misdemeanor; < provides enforcement exceptions regarding an officer's verifying immigration 29 30 status; < clarifies when passengers in a vehicle where the operator has been detained may 31 32 also be questioned and their immigration status verified; < requires that a law enforcement officer may not consider race, color, or national 33 34 Enrolled Copy origin, except as permitted by Utah and United States constitutions; 35 < states grounds for a presumption of a person's lawful presence in the United States; 36 < provides for transportation of an illegal alien to federal custody by a state or local 37 law enforcement officer; < provides that a state or local agency may not limit by ordinance, regulation, or 38 39 policy the authority of any law enforcement or other governmental agency to assist 40 the federal government in the enforcement of any federal immigration law, 41 including the federal requirement to register as an alien or possess an alien 42 registration document; < provides that any state or local governmental agency is not restricted in sending, 43 44 receiving, or maintaining immigration status information of any person in carrying 45 out the agency's lawful purposes; < requires verification of immigration status regarding application for public services 46 47 or benefits provided by a state or local governmental agency or subcontractor, 48 except as exempted by federal law; < provides that this bill does not implement or authorize the federal REAL ID Act to 49 50 any extent not currently provided by state law; < amends the current state law prohibiting transporting or harboring illegal aliens by 51 52 removing the limitation to transportation of the alien for a distance greater than 100 53 miles; 54 55 < prohibits the encouraging or inducing of an illegal alien to come to or reside in Utah; and -2- Enrolled Copy 56 57 H.B. 497 < amends peace officer arrest authority to include making an arrest when the officer has reasonable cause to believe the person is an alien: 58 C subject to an immigration removal order; and 59 C regarding whom a detainer warrant has been issued who has committed or been 60 charged with a felony in another state. 61 Money Appropriated in this Bill: 62 63 64 None Other Special Clauses: This bill coordinates with S.B. 288, Utah Immigration Enforcement Amendments, by 65 providing substantive amendments. 66 Utah Code Sections Affected: 67 AMENDS: 68 76-10-2901, as enacted by Laws of Utah 2008, Chapter 26 69 77-7-2, as last amended by Laws of Utah 2008, Chapter 293 70 ENACTS: 71 76-9-1001, Utah Code Annotated 1953 72 76-9-1002, Utah Code Annotated 1953 73 76-9-1003, Utah Code Annotated 1953 74 76-9-1004, Utah Code Annotated 1953 75 76-9-1005, Utah Code Annotated 1953 76 76-9-1006, Utah Code Annotated 1953 77 76-9-1007, Utah Code Annotated 1953 78 76-9-1008, Utah Code Annotated 1953 79 76-9-1009, Utah Code Annotated 1953 80 Utah Code Sections Affected by Coordination Clause: 81 76-9-1001, Utah Code Annotated 1953 82 76-9-1002, Utah Code Annotated 1953 83 76-9-1003, Utah Code Annotated 1953 -3- H.B. 497 Enrolled Copy 84 76-9-1004, Utah Code Annotated 1953 85 76-9-1005, Utah Code Annotated 1953 86 76-10-2901, as enacted by Laws of Utah 2008, Chapter 26 87 77-7-2, as last amended by Laws of Utah 2008, Chapter 293 88 89 90 91 Be it enacted by the Legislature of the state of Utah: Section 1. Section 76-9-1001 is enacted to read: Part 10. The Illegal Immigration Enforcement Act 92 76-9-1001. Title. 93 This part is known as "The Illegal Immigration Enforcement Act." 94 Section 2. Section 76-9-1002 is enacted to read: 95 76-9-1002. Definitions. 96 As used in this part: 97 (1) "Alien" means a person who is not a citizen or national of the United States. 98 (2) "ICE" means the federal Immigration and Customs Enforcement agency of the 99 United States Department of Homeland Security. 100 (3) "Law enforcement officer" has the same meaning as in Section 53-13-103. 101 (4) "SAVE program" means the federal Systematic Alien Verification for Entitlements 102 103 104 105 106 107 108 109 110 111 program operated by the federal Department of Homeland Security. (5) "State or local governmental agency" includes any private contractor or vendor that contracts with the agency to provide the agency's functions or services. (6) "Verify immigration status" or "verification of immigration status" means the determination of a person's immigration status by: (a) a law enforcement officer who is authorized by a federal agency to determine an alien's immigration status; or (b) the United States Department of Homeland Security, ICE, or other federal agency authorized to provide immigration status as provided by 8 U.S.C. Sec. 1373(c). Section 3. Section 76-9-1003 is enacted to read: -4- Enrolled Copy H.B. 497 112 76-9-1003. Detention or arrest -- Determination of immigration status. 113 (1) (a) Except as provided in Subsection (1)(b), (c), or (d), any law enforcement officer 114 who, acting in the enforcement of any state law or local ordinance, conducts any lawful stop, 115 detention, or arrest of a person as specified in Subsection (1)(a)(i) or (ii), and the person is 116 unable to provide to the law enforcement officer a document listed in Subsection 76-9-1004(1) 117 and the officer is otherwise unable to verify the identity of the person, the officer: 118 (i) shall request verification of the citizenship or the immigration status of the person 119 under 8 U.S.C. Sec. 1373(c), except as allowed under Subsection (1)(b), (c), or (d), if the 120 person is arrested for an alleged offense that is a class A misdemeanor or a felony; and 121 (ii) may attempt to verify the immigration status of the person, except as exempted 122 under Subsection (1)(b), (c), or (d), if the alleged offense is a class B or C misdemeanor, except 123 that if the person is arrested and booked for a class B or C misdemeanor, the arresting law 124 enforcement officer or the law enforcement agency booking the person shall attempt to verify 125 the immigration status of the person. 126 (b) In individual cases, the law enforcement officer may forego the verification of 127 immigration status under Subsection (1)(a) if the determination could hinder or obstruct a 128 criminal investigation. 129 130 131 (c) Subsection (1)(a) does not apply to a law enforcement officer who is acting as a school resource officer for any elementary or secondary school. (d) Subsection (1)(a) does not apply to a county or municipality when it has only one 132 law enforcement officer on duty and response support from another law enforcement agency is 133 not available. 134 (2) When a law enforcement officer makes a lawful stop, detention, or arrest under 135 Subsection (1) of the operator of a vehicle, and while investigating or processing the primary 136 offense, the officer makes observations that give the officer reasonable suspicion that the 137 operator or any of the passengers in the vehicle are violating Section 76-5-309, 76-5-310, or 138 76-10-2901, which concern smuggling and transporting illegal aliens, the officer shall, to the 139 extent possible within a reasonable period of time: -5- H.B. 497 Enrolled Copy 140 (a) detain the occupants of the vehicle to investigate the suspected violations; and 141 (b) inquire regarding the immigration status of the occupants of the vehicle. 142 (3) When a person under Subsection (1) is arrested or booked into a jail, juvenile 143 detention facility, or correctional facility, the arresting officer or the booking officer shall 144 ensure that a request for verification of immigration status of the arrested or booked person is 145 submitted as promptly as is reasonably possible. 146 (4) The law enforcement agency that has custody of a person verified to be an illegal 147 alien shall request that the United States Department of Homeland Security issue a detainer 148 requesting transfer of the illegal alien into federal custody. 149 (5) A law enforcement officer may not consider race, color, or national origin in 150 implementing this section, except to the extent permitted by the constitutions of the United 151 States and this state. 152 Section 4. Section 76-9-1004 is enacted to read: 153 76-9-1004. Grounds for presumption of lawful presence in United States -- 154 155 Statement to officer. (1) A person is presumed to be lawfully present in the United States for the purposes of 156 this part if the person provides one of the following documents to the law enforcement officer, 157 unless the law enforcement officer has a reasonable suspicion that the document is false or 158 identifies a person other than the person providing the document: 159 (a) a valid Utah driver license issued on or after January 1, 2010; 160 (b) a valid Utah identification card issued under Section 53-3-804 and issued on or 161 162 163 after January 1, 2010; (c) a valid tribal enrollment card or other valid form of tribal membership identification that includes photo identification; or 164 (d) a valid identification document that: 165 (i) includes a photo or biometric identifier of the holder of the document; and 166 (ii) is issued by a federal, state, or local governmental agency that requires proof or 167 verification of legal presence in the United States as a condition of issuance of the document. -6- Enrolled Copy 168 H.B. 497 (2) A person is presumed to be a citizen or national of the United States for purposes of 169 this part if the person makes a statement or affirmation to the law enforcement officer that the 170 person is a United States citizen or national, unless the officer has a reasonable suspicion that 171 the statement or affirmation is false. 172 Section 5. Section 76-9-1005 is enacted to read: 173 76-9-1005. Illegal alien -- Notification of federal government -- Transportation to 174 federal facility. 175 A state or local law enforcement agency may securely transport an alien who is in the 176 agency's custody and whom the agency has verified is unlawfully present in the United States 177 to a federal detention facility in this state or, with the concurrence of the receiving federal 178 agency, to a federal facility or other point of transfer to federal custody that is outside this state. 179 Section 6. Section 76-9-1006 is enacted to read: 180 76-9-1006. Enforcement of federal immigration laws. 181 A state or local governmental agency of this state, or any representative of the agency, 182 183 may not: (1) limit or restrict by ordinance, regulation, or policy the authority of any law 184 enforcement agency or other governmental agency to assist the federal government in the 185 enforcement of any federal law or regulation governing immigration; or 186 (2) limit or restrict by ordinance, regulation, or policy the authority of any law 187 enforcement agency to investigate or enforce any violation of the federal misdemeanor offenses 188 of willful failure to register as an alien or willful failure to personally possess an alien 189 registration document as required by 8 U.S.C. Sec. 1304(e) or 1306(a). 190 Section 7. Section 76-9-1007 is enacted to read: 191 76-9-1007. Determining an alien's immigration status -- Transfer or maintenance 192 193 of information. (1) Except as limited by federal law, any state or local governmental agency is not 194 restricted or prohibited in any way from sending, receiving, or maintaining information related 195 to the lawful or unlawful immigration status of any person by communicating with any federal, -7- H.B. 497 196 197 198 199 200 201 202 203 204 205 Enrolled Copy state, or local governmental entity for any lawful purpose, including: (a) determining a person's eligibility for any public benefit, service, or license provided by any federal agency, by this state, or by any political subdivision of this state; (b) confirming a person's claim of residence or domicile if determination is required by state law or a judicial order issued pursuant to a civil or criminal proceeding in this state; (c) if the person is an alien, determining if the person is in compliance with the federal registration laws of Title II, Part 7, Immigration and Nationality Act; or (d) a valid request for verification of the citizenship or immigration status of any person pursuant to 8 U.S.C. Sec. 1373. (2) This section does not implement, authorize, or establish the federal REAL ID Act 206 of 2005, P.L. 109-13, Division B; 119 Stat. 302, except as provided by Section 53-3-104.5, 207 regarding limitations on the state implementation of the federal REAL ID Act. 208 Section 8. Section 76-9-1008 is enacted to read: 209 76-9-1008. Proof of immigration status to receive public benefits. 210 (1) (a) An agency that provides state or local public benefits as defined in 8 U.S.C. Sec. 211 1621 shall comply with Section 63G-11-104 and shall also comply with this section, except: 212 (i) as provided in Subsection 63G-11-104(4)(g) or (k); or 213 (ii) when compliance is exempted by federal law or when compliance could reasonably 214 215 be expected to be grounds for the federal government to withhold federal Medicaid funding. (b) The agency shall verify a person's lawful presence in the United States by requiring 216 that the applicant under this section sign a certificate under penalty of perjury, stating that the 217 applicant: 218 (i) is a United States citizen; or 219 (ii) is a qualified alien as defined by 8 U.S.C. Sec. 1641. 220 (c) The certificate under Subsection (1)(b) shall include a statement advising the signer 221 222 223 that providing false information subjects the signer to penalties for perjury. (d) The signature under this Subsection (1) may be executed in person or electronically. -8- Enrolled Copy 224 H.B. 497 (e) When an applicant who is a qualified alien has executed the certificate under this 225 section, the applicant's eligibility for benefits shall be verified by the agency through the federal 226 SAVE program or an equivalent program designated by the United States Department of 227 Homeland Security. 228 (2) Any person who knowingly and willfully makes a false, fictitious, or fraudulent 229 statement of representation in a certificate executed under this section is guilty of public 230 assistance fraud under Section 76-8-1205. 231 (3) If the certificate constitutes a false claim of United States citizenship under 18 232 U.S.C. Sec. 911, the agency requiring the certificate shall file a complaint with the United 233 States Attorney for the applicable federal judicial district based upon the venue in which the 234 certificate was executed. 235 (4) Agencies may, with the concurrence of the Utah Attorney General, adopt variations 236 to the requirements of the provisions of this section that provide for adjudication of unique 237 individual circumstances where the verification procedures in this section would impose 238 unusual hardship on a legal resident of this state. 239 (5) If an agency under Subsection (1) receives verification that a person making an 240 application for any benefit, service, or license is not a qualified alien, the agency shall provide 241 the information to the local law enforcement agency for enforcement of Section 76-8-1205 242 unless prohibited by federal mandate. 243 Section 9. Section 76-9-1009 is enacted to read: 244 76-9-1009. Implementation to be consistent with federal law and civil rights. 245 All state and local agencies shall implement this part in a manner that is consistent with 246 federal laws that regulate immigration, protect the civil rights of all persons, and establish the 247 privileges and immunities of United States citizens. 248 Section 10. Section 76-10-2901 is amended to read: 249 76-10-2901. Transporting or harboring aliens -- Definition -- Penalties. 250 (1) [For purposes of] As used in this part, "alien" means an individual who is illegally 251 present in the United States. -9- H.B. 497 Enrolled Copy 252 (2) It is unlawful for a person to: 253 (a) transport, move, or attempt to transport into this state [or for a distance of greater 254 than 100 miles] or within the state an alien for commercial advantage or private financial gain, 255 knowing or in reckless disregard of the fact that the alien is in the United States in violation of 256 federal law, in furtherance of the illegal presence of the alien in the United States; [or] 257 (b) knowingly, with the intent to violate federal immigration law, conceal, harbor, or 258 shelter from detection an alien in a place within this state, including a building or means of 259 transportation for commercial advantage or private financial gain, knowing or in reckless 260 disregard of the fact that the alien is in the United States in violation of federal law[.]; 261 (c) encourage or induce an alien to come to, enter, or reside in this state, knowing or in 262 reckless disregard of the fact that the alien's coming to, entry, or residence is or will be in 263 violation of law; or 264 265 (d) engage in any conspiracy, for commercial advantage or private financial gain, to commit any of the offenses listed in this Subsection (2). 266 267 (3) (a) A person who violates Subsection (2)(a), (c), or (d) is guilty of a third degree felony. 268 (b) A person who violates Subsection (2)(b) is guilty of a class A misdemeanor. 269 (4) Nothing in this part prohibits or restricts the provision of: 270 (a) a state or local public benefit described in 8 U.S.C.[, Section] Sec. 1621(b); or 271 (b) charitable or humanitarian assistance, including medical care, housing, counseling, 272 food, victim assistance, religious services and sacraments, and transportation to and from a 273 location where the assistance is provided, by a charitable, educational, or religious organization 274 or its employees, agents, or volunteers, using private funds. 275 (5) (a) It is not a violation of this part for a religious denomination or organization or 276 an agent, officer, or member of a religious denomination or organization to encourage, invite, 277 call, allow, or enable an alien to perform the vocation of a minister or missionary for the 278 denomination or organization in the United States as a volunteer who is not compensated as an 279 employee, notwithstanding the provision of room, board, travel, medical assistance, and other - 10 - Enrolled Copy 280 281 282 H.B. 497 basic living expenses. (b) Subsection (5)(a) applies only to an alien who has been a member of the religious denomination or organization for at least one year. 283 Section 11. Section 77-7-2 is amended to read: 284 77-7-2. Arrest by peace officers. 285 A peace officer may make an arrest under authority of a warrant or may, without 286 287 288 289 warrant, arrest a person: (1) (a) for any public offense committed or attempted in the presence of any peace officer; and (b) as used in this Subsection (1), "presence" includes all of the physical senses or any 290 device that enhances the acuity, sensitivity, or range of any physical sense, or records the 291 observations of any of the physical senses; 292 (2) when the peace officer has reasonable cause to believe a felony or a class A 293 misdemeanor has been committed and has reasonable cause to believe that the person arrested 294 has committed it; 295 296 (3) when the peace officer has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may: 297 (a) flee or conceal himself to avoid arrest; 298 (b) destroy or conceal evidence of the commission of the offense; or 299 (c) injure another person or damage property belonging to another person; [or] 300 (4) when the peace officer has reasonable cause to believe the person has committed 301 the offense of failure to disclose identity under Section 76-8-301.5[.]; or 302 (5) when the peace officer has reasonable cause to believe that the person is an alien: 303 (a) subject to a civil removal order issued by an immigration judge; 304 (b) regarding whom a civil detainer warrant has been issued by the federal Department 305 306 307 of Homeland Security; or (c) who has been charged or convicted in another state with one or more aggravated felonies as defined by 8 U.S.C. Sec. 1101(a)(43). - 11 - H.B. 497 Enrolled Copy 308 Section 12. Coordinating H.B. 497 with S.B. 288 -- Substantive amendments. 309 If this H.B. 497 and S.B. 288, Utah Immigration Enforcement Amendments, both pass, 310 it is the intent of the Legislature that: 311 312 (1) Sections 76-9-1001 through 76-9-1005 in this H.B. 497 supersede Sections 76-9-1001 through 76-9-1005 in S.B. 288; 313 314 (2) Subsection 76-10-2901(3)(a) in H.B. 497 supersedes Subsection 76-10-2901(3)(a) in S.B. 288; and 315 316 (3) Subsection 77-7-2(5)(d) in S.B. 288 supersedes Subsection 77-7-2(5)(d) in H.B. 497. - 12 -

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