Utah Coalition of La Raza et al v. Herbert et al
Filing
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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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H.B. 497
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UTAH ILLEGAL IMMIGRATION ENFORCEMENT ACT
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2011 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Stephen E. Sandstrom
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Senate Sponsor: Margaret Dayton
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Cosponsors:
Stephen G. Handy
Lee B. Perry
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Roger E. Barrus
Neal B. Hendrickson
Val L. Peterson
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Derek E. Brown
Christopher N. Herrod
Dixon M. Pitcher
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Melvin R. Brown
Gregory H. Hughes
Kraig Powell
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David G. Butterfield
Don L. Ipson
Paul Ray
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David Clark
Bradley G. Last
Holly J. Richardson
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Brad L. Dee
John G. Mathis
Douglas Sagers
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Susan Duckworth
Michael T. Morley
Kenneth W. Sumsion
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Julie Fisher
Merlynn T. Newbold
Evan J. Vickers
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Gage Froerer
Jim Nielson
Ryan D. Wilcox
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Brad J. Galvez
Michael E. Noel
Brad R. Wilson
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Francis D. Gibson
Curtis Oda
Carl Wimmer
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Richard A. Greenwood
Patrick Painter
Keith Grover
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LONG TITLE
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General Description:
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This bill modifies state law and enacts "The Illegal Immigration Enforcement Act."
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Highlighted Provisions:
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This bill:
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< requires that an officer verify the immigration status of a person arrested for a
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felony or a class A misdemeanor and a person booked for class B or C
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misdemeanors and requires that an officer attempt to verify immigration status for a
H.B. 497
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person detained for a class B or C misdemeanor;
< provides enforcement exceptions regarding an officer's verifying immigration
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status;
< clarifies when passengers in a vehicle where the operator has been detained may
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also be questioned and their immigration status verified;
< requires that a law enforcement officer may not consider race, color, or national
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origin, except as permitted by Utah and United States constitutions;
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< states grounds for a presumption of a person's lawful presence in the United States;
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< provides for transportation of an illegal alien to federal custody by a state or local
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law enforcement officer;
< provides that a state or local agency may not limit by ordinance, regulation, or
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policy the authority of any law enforcement or other governmental agency to assist
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the federal government in the enforcement of any federal immigration law,
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including the federal requirement to register as an alien or possess an alien
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registration document;
< provides that any state or local governmental agency is not restricted in sending,
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receiving, or maintaining immigration status information of any person in carrying
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out the agency's lawful purposes;
< requires verification of immigration status regarding application for public services
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or benefits provided by a state or local governmental agency or subcontractor,
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except as exempted by federal law;
< provides that this bill does not implement or authorize the federal REAL ID Act to
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any extent not currently provided by state law;
< amends the current state law prohibiting transporting or harboring illegal aliens by
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removing the limitation to transportation of the alien for a distance greater than 100
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miles;
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< prohibits the encouraging or inducing of an illegal alien to come to or reside in
Utah; and
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< amends peace officer arrest authority to include making an arrest when the officer
has reasonable cause to believe the person is an alien:
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C
subject to an immigration removal order; and
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C
regarding whom a detainer warrant has been issued who has committed or been
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charged with a felony in another state.
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Money Appropriated in this Bill:
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None
Other Special Clauses:
This bill coordinates with S.B. 288, Utah Immigration Enforcement Amendments, by
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providing substantive amendments.
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Utah Code Sections Affected:
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AMENDS:
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76-10-2901, as enacted by Laws of Utah 2008, Chapter 26
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77-7-2, as last amended by Laws of Utah 2008, Chapter 293
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ENACTS:
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76-9-1001, Utah Code Annotated 1953
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76-9-1002, Utah Code Annotated 1953
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76-9-1003, Utah Code Annotated 1953
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76-9-1004, Utah Code Annotated 1953
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76-9-1005, Utah Code Annotated 1953
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76-9-1006, Utah Code Annotated 1953
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76-9-1007, Utah Code Annotated 1953
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76-9-1008, Utah Code Annotated 1953
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76-9-1009, Utah Code Annotated 1953
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Utah Code Sections Affected by Coordination Clause:
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76-9-1001, Utah Code Annotated 1953
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76-9-1002, Utah Code Annotated 1953
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76-9-1003, Utah Code Annotated 1953
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76-9-1004, Utah Code Annotated 1953
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76-9-1005, Utah Code Annotated 1953
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76-10-2901, as enacted by Laws of Utah 2008, Chapter 26
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77-7-2, as last amended by Laws of Utah 2008, Chapter 293
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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
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76-9-1001. Title.
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This part is known as "The Illegal Immigration Enforcement Act."
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Section 2. Section 76-9-1002 is enacted to read:
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76-9-1002. Definitions.
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As used in this part:
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(1) "Alien" means a person who is not a citizen or national of the United States.
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(2) "ICE" means the federal Immigration and Customs Enforcement agency of the
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United States Department of Homeland Security.
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(3) "Law enforcement officer" has the same meaning as in Section 53-13-103.
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(4) "SAVE program" means the federal Systematic Alien Verification for Entitlements
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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:
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76-9-1003. Detention or arrest -- Determination of immigration status.
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(1) (a) Except as provided in Subsection (1)(b), (c), or (d), any law enforcement officer
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who, acting in the enforcement of any state law or local ordinance, conducts any lawful stop,
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detention, or arrest of a person as specified in Subsection (1)(a)(i) or (ii), and the person is
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unable to provide to the law enforcement officer a document listed in Subsection 76-9-1004(1)
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and the officer is otherwise unable to verify the identity of the person, the officer:
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(i) shall request verification of the citizenship or the immigration status of the person
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under 8 U.S.C. Sec. 1373(c), except as allowed under Subsection (1)(b), (c), or (d), if the
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person is arrested for an alleged offense that is a class A misdemeanor or a felony; and
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(ii) may attempt to verify the immigration status of the person, except as exempted
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under Subsection (1)(b), (c), or (d), if the alleged offense is a class B or C misdemeanor, except
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that if the person is arrested and booked for a class B or C misdemeanor, the arresting law
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enforcement officer or the law enforcement agency booking the person shall attempt to verify
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the immigration status of the person.
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(b) In individual cases, the law enforcement officer may forego the verification of
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immigration status under Subsection (1)(a) if the determination could hinder or obstruct a
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criminal investigation.
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(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
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law enforcement officer on duty and response support from another law enforcement agency is
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not available.
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(2) When a law enforcement officer makes a lawful stop, detention, or arrest under
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Subsection (1) of the operator of a vehicle, and while investigating or processing the primary
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offense, the officer makes observations that give the officer reasonable suspicion that the
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operator or any of the passengers in the vehicle are violating Section 76-5-309, 76-5-310, or
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76-10-2901, which concern smuggling and transporting illegal aliens, the officer shall, to the
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extent possible within a reasonable period of time:
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(a) detain the occupants of the vehicle to investigate the suspected violations; and
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(b) inquire regarding the immigration status of the occupants of the vehicle.
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(3) When a person under Subsection (1) is arrested or booked into a jail, juvenile
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detention facility, or correctional facility, the arresting officer or the booking officer shall
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ensure that a request for verification of immigration status of the arrested or booked person is
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submitted as promptly as is reasonably possible.
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(4) The law enforcement agency that has custody of a person verified to be an illegal
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alien shall request that the United States Department of Homeland Security issue a detainer
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requesting transfer of the illegal alien into federal custody.
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(5) A law enforcement officer may not consider race, color, or national origin in
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implementing this section, except to the extent permitted by the constitutions of the United
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States and this state.
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Section 4. Section 76-9-1004 is enacted to read:
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76-9-1004. Grounds for presumption of lawful presence in United States --
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Statement to officer.
(1) A person is presumed to be lawfully present in the United States for the purposes of
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this part if the person provides one of the following documents to the law enforcement officer,
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unless the law enforcement officer has a reasonable suspicion that the document is false or
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identifies a person other than the person providing the document:
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(a) a valid Utah driver license issued on or after January 1, 2010;
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(b) a valid Utah identification card issued under Section 53-3-804 and issued on or
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after January 1, 2010;
(c) a valid tribal enrollment card or other valid form of tribal membership identification
that includes photo identification; or
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(d) a valid identification document that:
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(i) includes a photo or biometric identifier of the holder of the document; and
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(ii) is issued by a federal, state, or local governmental agency that requires proof or
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verification of legal presence in the United States as a condition of issuance of the document.
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(2) A person is presumed to be a citizen or national of the United States for purposes of
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this part if the person makes a statement or affirmation to the law enforcement officer that the
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person is a United States citizen or national, unless the officer has a reasonable suspicion that
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the statement or affirmation is false.
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Section 5. Section 76-9-1005 is enacted to read:
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76-9-1005. Illegal alien -- Notification of federal government -- Transportation to
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federal facility.
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A state or local law enforcement agency may securely transport an alien who is in the
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agency's custody and whom the agency has verified is unlawfully present in the United States
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to a federal detention facility in this state or, with the concurrence of the receiving federal
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agency, to a federal facility or other point of transfer to federal custody that is outside this state.
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Section 6. Section 76-9-1006 is enacted to read:
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76-9-1006. Enforcement of federal immigration laws.
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A state or local governmental agency of this state, or any representative of the agency,
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may not:
(1) limit or restrict by ordinance, regulation, or policy the authority of any law
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enforcement agency or other governmental agency to assist the federal government in the
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enforcement of any federal law or regulation governing immigration; or
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(2) limit or restrict by ordinance, regulation, or policy the authority of any law
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enforcement agency to investigate or enforce any violation of the federal misdemeanor offenses
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of willful failure to register as an alien or willful failure to personally possess an alien
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registration document as required by 8 U.S.C. Sec. 1304(e) or 1306(a).
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Section 7. Section 76-9-1007 is enacted to read:
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76-9-1007. Determining an alien's immigration status -- Transfer or maintenance
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of information.
(1) Except as limited by federal law, any state or local governmental agency is not
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restricted or prohibited in any way from sending, receiving, or maintaining information related
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to the lawful or unlawful immigration status of any person by communicating with any federal,
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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
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of 2005, P.L. 109-13, Division B; 119 Stat. 302, except as provided by Section 53-3-104.5,
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regarding limitations on the state implementation of the federal REAL ID Act.
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Section 8. Section 76-9-1008 is enacted to read:
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76-9-1008. Proof of immigration status to receive public benefits.
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(1) (a) An agency that provides state or local public benefits as defined in 8 U.S.C. Sec.
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1621 shall comply with Section 63G-11-104 and shall also comply with this section, except:
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(i) as provided in Subsection 63G-11-104(4)(g) or (k); or
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(ii) when compliance is exempted by federal law or when compliance could reasonably
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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
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that the applicant under this section sign a certificate under penalty of perjury, stating that the
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applicant:
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(i) is a United States citizen; or
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(ii) is a qualified alien as defined by 8 U.S.C. Sec. 1641.
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(c) The certificate under Subsection (1)(b) shall include a statement advising the signer
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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.
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(e) When an applicant who is a qualified alien has executed the certificate under this
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section, the applicant's eligibility for benefits shall be verified by the agency through the federal
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SAVE program or an equivalent program designated by the United States Department of
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Homeland Security.
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(2) Any person who knowingly and willfully makes a false, fictitious, or fraudulent
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statement of representation in a certificate executed under this section is guilty of public
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assistance fraud under Section 76-8-1205.
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(3) If the certificate constitutes a false claim of United States citizenship under 18
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U.S.C. Sec. 911, the agency requiring the certificate shall file a complaint with the United
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States Attorney for the applicable federal judicial district based upon the venue in which the
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certificate was executed.
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(4) Agencies may, with the concurrence of the Utah Attorney General, adopt variations
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to the requirements of the provisions of this section that provide for adjudication of unique
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individual circumstances where the verification procedures in this section would impose
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unusual hardship on a legal resident of this state.
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(5) If an agency under Subsection (1) receives verification that a person making an
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application for any benefit, service, or license is not a qualified alien, the agency shall provide
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the information to the local law enforcement agency for enforcement of Section 76-8-1205
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unless prohibited by federal mandate.
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Section 9. Section 76-9-1009 is enacted to read:
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76-9-1009. Implementation to be consistent with federal law and civil rights.
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All state and local agencies shall implement this part in a manner that is consistent with
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federal laws that regulate immigration, protect the civil rights of all persons, and establish the
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privileges and immunities of United States citizens.
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Section 10. Section 76-10-2901 is amended to read:
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76-10-2901. Transporting or harboring aliens -- Definition -- Penalties.
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(1) [For purposes of] As used in this part, "alien" means an individual who is illegally
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present in the United States.
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(2) It is unlawful for a person to:
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(a) transport, move, or attempt to transport into this state [or for a distance of greater
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than 100 miles] or within the state an alien for commercial advantage or private financial gain,
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knowing or in reckless disregard of the fact that the alien is in the United States in violation of
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federal law, in furtherance of the illegal presence of the alien in the United States; [or]
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(b) knowingly, with the intent to violate federal immigration law, conceal, harbor, or
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shelter from detection an alien in a place within this state, including a building or means of
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transportation for commercial advantage or private financial gain, knowing or in reckless
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disregard of the fact that the alien is in the United States in violation of federal law[.];
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(c) encourage or induce an alien to come to, enter, or reside in this state, knowing or in
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reckless disregard of the fact that the alien's coming to, entry, or residence is or will be in
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violation of law; or
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(d) engage in any conspiracy, for commercial advantage or private financial gain, to
commit any of the offenses listed in this Subsection (2).
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(3) (a) A person who violates Subsection (2)(a), (c), or (d) is guilty of a third degree
felony.
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(b) A person who violates Subsection (2)(b) is guilty of a class A misdemeanor.
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(4) Nothing in this part prohibits or restricts the provision of:
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(a) a state or local public benefit described in 8 U.S.C.[, Section] Sec. 1621(b); or
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(b) charitable or humanitarian assistance, including medical care, housing, counseling,
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food, victim assistance, religious services and sacraments, and transportation to and from a
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location where the assistance is provided, by a charitable, educational, or religious organization
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or its employees, agents, or volunteers, using private funds.
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(5) (a) It is not a violation of this part for a religious denomination or organization or
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an agent, officer, or member of a religious denomination or organization to encourage, invite,
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call, allow, or enable an alien to perform the vocation of a minister or missionary for the
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denomination or organization in the United States as a volunteer who is not compensated as an
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employee, notwithstanding the provision of room, board, travel, medical assistance, and other
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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.
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Section 11. Section 77-7-2 is amended to read:
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77-7-2. Arrest by peace officers.
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A peace officer may make an arrest under authority of a warrant or may, without
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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
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device that enhances the acuity, sensitivity, or range of any physical sense, or records the
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observations of any of the physical senses;
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(2) when the peace officer has reasonable cause to believe a felony or a class A
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misdemeanor has been committed and has reasonable cause to believe that the person arrested
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has committed it;
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(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:
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(a) flee or conceal himself to avoid arrest;
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(b) destroy or conceal evidence of the commission of the offense; or
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(c) injure another person or damage property belonging to another person; [or]
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(4) when the peace officer has reasonable cause to believe the person has committed
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the offense of failure to disclose identity under Section 76-8-301.5[.]; or
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(5) when the peace officer has reasonable cause to believe that the person is an alien:
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(a) subject to a civil removal order issued by an immigration judge;
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(b) regarding whom a civil detainer warrant has been issued by the federal Department
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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).
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Section 12. Coordinating H.B. 497 with S.B. 288 -- Substantive amendments.
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If this H.B. 497 and S.B. 288, Utah Immigration Enforcement Amendments, both pass,
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it is the intent of the Legislature that:
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(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;
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(2) Subsection 76-10-2901(3)(a) in H.B. 497 supersedes Subsection 76-10-2901(3)(a)
in S.B. 288; and
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(3) Subsection 77-7-2(5)(d) in S.B. 288 supersedes Subsection 77-7-2(5)(d) in H.B.
497.
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