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

Filing 68

Amicus BRIEF re 67 MOTION to File Amicus Brief by United Mexican States in Support of Plaintiffs' Complaint for Declaratory and Injunctive Relief filed by Movant United Mexican States. (Attachments: # 1 Appendix Cases, # 2 Appendix Authorities Part 1, # 3 Appendix Authorities Part 2)(Jenkins, Lon)

Lon A. Jenkins (USB #4060)
JONES WALDO HOLBROOK & McDONOUGH PC
170 South Main Street, Suite 1500
Salt Lake City, Utah 84101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Henry L. Solano*
Carla Gorniak*
Christopher R. Clark*
DEWEY & LeBOEUF
1301 Avenue of the Americas
New York, NY 10019
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
*Application for admission pro hac vice forthcoming.
Attorneys for Amicus Curiae

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

UTAH COALITION OF LA RAZA, et al.
Plaintiff,
v.
GARY HERBERT, et al.
Defendant.

[LODGED]
BRIEF OF THE UNITED
MEXICAN STATES AS
AMICUS CURIAE
IN SUPPORT OF PLAINTIFFS’
COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
Case No. 2:11-cv-00401 BCW

980686.1

TABLE OF CONTENTS
INDEX OF CITED AUTHORITIES ............................................................................................. iii
INTEREST OF THE AMICUS CURIAE .........................................................................................1
ARGUMENT ...................................................................................................................................2
I.

HB 497 Dangerously Contributes to a Patchwork of Laws That Impede Effective
and Consistent Diplomatic Relations ...................................................................................2

II.

HB 497’s Intrusion in International Affairs Impedes International Relations and
Bilateral Collaboration .........................................................................................................6
A.
B.

III.

HB 497 Will Severely Hinder Mexico-U.S. Trade and Tourism ............................7
HB 497 Derails Efforts Towards a Uniform Legal Framework that Ensures
the Secure, Orderly and Legal Movement of People ...............................................8

HB 497 Poses a Risk of Harassment by Law Enforcement to Mexican Citizens................9

CONCLUSION ..............................................................................................................................12
CERTIFICATE OF SERVICE

980686.1

INDEX OF CITED AUTHORITIES
Page(s)
FEDERAL CASES
Adarand Constructors v. Pena,
515 U.S. 200 (1995) .................................................................................................................11
Chamber of Commerce v. Whiting,
No. 09-115, 2011 U.S. LEXIS 4018 (U.S. May 26, 2011) ........................................................2
City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) .................................................................................................................11
Department of Transportation v. Public Citizen,
541 U.S. 752 (2004) ...................................................................................................................8
Hines v. Davidowitz,
312 U.S. 52 (1941) ...................................................................................................................12
United States v. Arizona,
No. 10-16645, 2011 U.S. App. LEXIS 7413 (9th Cir. Ariz. Apr. 11, 2011) .......................4, 12
United States v. Montero-Camargo,
208 F.3d 1122 (9th Cir. 2000) .................................................................................................11
LEGISLATIVE MATERIALS
H.B. 116, 2011 Leg., Gen. Sess. (Utah 2011)..................................................................................4
H.B. 469, 2011 Leg., Gen. Sess. (Utah 2011)..................................................................................4
H.B. 497, 2011 Leg., Gen. Sess. (Utah 2011)..........................................................................1, 4, 9
H.B. 87, 2011 Leg., Gen. Sess. (Ga. 2011) ..................................................................................3, 4
S.B. 1070, 49th Leg., 2nd Reg. Sess., Chapter 113 (Ariz. 2010), as amended............................1, 4
INTERNATIONAL CONVENTION
Vienna Convention on Consular Relations Article 5, Apr. 24, 1963, 596 U.N.T.S. 261 ................1

iii

OTHER AUTHORITIES
“A Comparison of Select Arizona, Georgia, and Federal Immigration Control Statutes” in
2011 Upcoming Session Issues, Senate Research Office,
http://www.senate.ga.gov/sro/Documents/UpcomingIssues/LegIssues11.pdf. .........................4
Andrew Selee, Christopher Wilson, & Katie Putnam, The United States and Mexico:
More than Neighbors, Woodrow Wilson Institute for Scholars (May 2010), available
at http://wilsoncenter.org/topics/pubs/WWC_MI_More-Than-Neighbors-2010update.pdf...................................................................................................................................6
Chris Burbank, Phillip Atiba Goff & Tracie L. Keesee, Policing Immigration: A Job We
Do Not Want, Huffington Post, June 7, 2010, http://www.huffingtonpost.com/chiefchris-burbank/policing-immigration-a-jo_b_602439.html ......................................................12
Embassy of Mexico, Press Release on the Passing of Immigration Laws in Utah (March
16, 2011) ...............................................................................................................................1, 5
The Federalist No. 4 (John Jay) .................................................................................................2, 12
The Federalist No. 42 (James Madison) ....................................................................................2, 12
Giovanni Peri, The Effect of Immigrants on U.S. Employment and Productivity,
Economic Letter, Federal Reserve Bank of San Francisco (August 30, 2010),
available at http://www.frbsf.org/publications/economics/letter/2010/el2010-26.html ...........7
Governor Herbert Signs Immigration Reform Legislation, Utah.gov, March 15, 2011,
http://www.utah.gov/governor/news_media/ article.html?article=4435 ...................................4
Hatty Lee, Arizona SB 1070 Copycats Fall Flat in Most State Legislatures, Colorlines,
March 31, 2011, http://colorlines.com/archives/2011/03/arizona_
sb_1070_copycats_fall_flat_in_most_state_legislatures.html...................................................3
Hope Yen, Minority Population Growing, Census Says, Associated Press, June 11, 2010,
available at http://www.boston.com/news/nation/washington/articles/
2010/06/11/minority_population_growing_census_says/ .......................................................11
J. F. Hornbeck, U.S.-Latin America Trade: Recent Trends and Policy Issues,
Congressional Research Service (Sept. 3, 2009), available at
http://www.fas.org/sgp/crs/row/98-840.pdf. ..............................................................................7
Jeremy Redmond, Obama Blasts Georgia’s Bill Targeting Illegal Immigrants, Cox
Newspapers, April 28, 2011, http://timesfreepress.com/news/2011/apr/28/obamablasts-georgia-bill-targeting-illegal-immigr/. ............................................................................4

iv

Julia Preston, Utah G.O.P. Adopts Immigration Alternative, New York Times, March 6,
2011........................................................................................................................................3, 4
Liana Maris Epstein & Phillip Atiba Goff, Safety or Liberty?: The Bogus Trade-Off of
Cross-Deputization Policy Analyses of Soc. Issues & Pub. Pol’y 1 (2011)............................12
M. Angeles Villarreal, U.S.-Mexico Economic Relations: Trends, Issues, and
Implications, Congressional Research Service (March 31, 2010), available at
http://www.fas.org/sgp/crs/row/ RL32934.pdf ......................................................................7, 8
Meet the Press with Secretary Clinton [Transcript], May 2, 2010, available at
http://secretaryclinton.wordpress.com/2010/ 05/02/meet-the-press/ .........................................6
Office of Immigration Statistics, 2009 Yearbook of Immigration Statistics, August 2010,
http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_2009.pdf ...................1, 8
Pew Hispanic Center, Census 2010: 50 Million Latinos Hispanics Account for More
Than Half of Nation’s Growth in Past Decade, March 24, 2011,
http://pewhispanic.org/files/reports/ 140.pdf .............................................................................9
Pew Hispanic Center, Statistical Portrait of the Foreign-Born Population in the United
States 2009 (last visited May 31, 2011),
http://pewhispanic.org/files/factsheets/foreignborn2009/Table%205.pdf .................................8
Phillip Atiba Goff, Liana Maris Epstein, Chris Burbank, & Tracie L. Keesee, Deputizing
Discrimination?, The Consortium for Police Leadership in Equity, May 3, 2010 (on
file with authors) ......................................................................................................................12
Press Release, The White House, Remarks by President Calderón of Mexico at Official
Arrival Ceremony, May 19, 2010, available at http://www.whitehouse. gov/the-pressoffice/remarks-president-calder-n-mexico-official-arrival-ceremony ...................................8, 9
Press Release, The White House, Remarks by President Obama and President Calderón
of Mexico at Joint Press Availability, May 19, 2010, available at
http://www.whitehouse.gov/the-press-office/remarks-president-obama-and-presidentcalder-n-mexico-joint-press-availability ....................................................................................7
Seth Freed Wessler, A Year After SB 1070, the Deportation Pipeline Still Begins in
Washington, Colorlines, April 25, 2011,
http://colorlines.com/archives/2011/04/a_year_after_sb_1070_the_deportation_pipeli
ne_still_begins_in_washington.html .........................................................................................3
Statement by the Embassy of Mexico on Lawsuit Filed Against HB 497 in Utah, May 3,
2011, http://embamex.sre.gob.mx/usa/index.php/home/13-press-releases-2011/512statement-by-the-embassy-of-mexico-on-lawsuit-filed-against-hb-497-in-utah-..................6, 7
v

Tamar Jacoby, Immigration Nation, Foreign Affairs 50 (2006) ..................................................7, 8
U.S. Department of Transportation, Border Crossing/Entry Data, June 1, 2010,
http://www.bts.gov/programs/
international/transborder/TBDR_BC/TBDR_BC_Index.html ..............................................1, 8
The White House, Immigration (last visited May 8, 2011) ............................................................8

vi

INTEREST OF THE AMICUS CURIAE
The United Mexican States (“Mexico”) herein expresses its grave concerns over The
Illegal Immigration Enforcement Act, Utah House Bill 497, 2011 Leg., Gen. Sess. (Utah 2011)
(“HB 497”), and underscores the importance of preliminarily enjoining HB 497 and of declaring
it unconstitutional in its entirety.
HB 497 substantially and inappropriately burdens the consistent sovereign-to-sovereign
relations between Mexico and the United States of America (“U.S.”), interfering with the
strategic diplomatic interests of the two countries and encouraging an imminent threat of statesanctioned bias or discrimination. Under Article 5(a) of the Vienna Convention on Consular
Relations, to which both countries are signatories, Mexico has a right to protect the interests of
its nationals within the limits of international law.1 Mexico seeks to ensure that its citizens
present in the U.S. are accorded the human and civil rights granted under the U.S. Constitution,
and affirms that HB 497 threatens the human and civil rights of its nationals.
The enactment of HB 497, like the enactment of Arizona Senate Bill 1070, 49th Leg.,
2nd Reg. Sess., Chapter 113 (Ariz. 2010), as amended (“SB 1070”), was closely followed at the
highest levels of the Mexican government,2 as well as by Mexicans and Americans in Utah and
the U.S. The issues raised herein are of great importance to the people of Mexico, including the
millions of Mexican workers, tourists and students recently admitted to the U.S.,3 those already

1

Vienna Convention on Consular Relations art. 5, Apr. 24, 1963, 596 U.N.T.S. 261.
See, e.g., Embassy of Mexico, Press Release on the Passing of Immigration Laws in Utah
(March 16, 2011), http://embamex.sre.gob.mx/usa/index.php/home/13-press-releases-2011/507embassy-of-mexico-press-release-on-the-passing-of-immigration-laws-in-utah.
3
Office of Immigration Statistics, 2009 Yearbook of Immigration Statistics, August 2010,
http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_2009.pdf; U.S. Department
of Transportation, Border Crossing/Entry Data, June 1, 2010, http://www.bts.gov/programs/

2

1

present in the U.S., the countless millions whose daily lives and jobs depend on international
trade, and those who may also be affected by immigration policies. Mexico respectfully submits
that if HB 497 is allowed to take effect it will have a significant and long lasting adverse impact
on U.S.–Mexico bilateral relations, and on Mexican citizens and other people of Latin American
descent present in Utah.
ARGUMENT
1.

HB 497 Dangerously Contributes to a Patchwork of Laws That Impede Effective and
Consistent Diplomatic Relations
The U.S. Supreme Court has long made clear that “state actions that directly interfere[]

with the operation of a federal program” are preempted.4 As affirmed by Deputy Secretary of
State James B. Steinberg, “U.S. federal immigration law incorporates foreign relations concerns
by providing a comprehensive range of tools for regulating entry and enforcement.”5 Mexico
relies upon this consideration of its concerns in conducting diplomatic relations with the U.S. on
the various bilateral matters impacted by U.S. immigration law. In direct opposition to this
uniform U.S. program, HB 497, SB 1070 and the other bills spurred by the avalanche of
“copycat” legislation create a dangerous patchwork of inconsistent state immigration laws.
Already, at least 24 U.S. states introduced a “copycat bill,” and while about half were not

international/transborder/TBDR_BC/TBDR_BC_Index.html.
4
Chamber of Commerce v. Whiting, No. 09-115, 2011 U.S. LEXIS 4018, at *11 (U.S. May 26,
2011); see also The Federalist No. 42 (James Madison)(concerning regulation of intercourse
with foreign nations)(“If we are to be one nation in any respect, it clearly ought to be in respect
to other nations.”); The Federalist No. 4 (John Jay)(concerning dangers from foreign force and
influence).
5
Declaration of James B. Steinberg ¶ 5, July 2, 2010, United States v. Arizona, No. 2:10-cv01413-SRB (D. Ariz. July 6, 2010).
2

enacted in this legislative session, the attempts continue in several states.6 On May 13, 2011, for
example, Georgia enacted another “copycat” immigration bill, House Bill 87.7 But while these
laws are all characterized as “copycat anti-immigration laws,” their provisions differ in a
significant manner. These differences create a complex and perilous legal patchwork.
Furthermore, like Utah, various states are also introducing immigration bills that are not modeled
after Arizona’s SB 1070.8 As a result, such legislative agendas could result in a mix of disparate
laws across the U.S., creating an environment of uncertainty, making it nearly impossible for
Mexican nationals to understand their rights and obligations in each U.S. state, and significantly
harming the ability of the federal governments of both nations to address issues of international
importance.
The dangers inherent in having a contradictory patchwork of immigration laws have
crystallized with the enactment of HB 497. Even though HB 497 was inspired by SB 1070,9
unlike Arizona’s bill, HB 497 mandates all police officers to inspect the identification documents
of all people they stop, detain or arrest, whereas Arizona’s bill only requires that the officer
inspect the identification documents of persons if they have “reasonable suspicion” to believe

6

As of April 22, 2011, 13 states had active “copycat” bills. Seth Freed Wessler, A Year After SB
1070, the Deportation Pipeline Still Begins in Washington, Colorlines, April 25, 2011,
http://colorlines.com/archives/2011/04/a_year_after_sb_1070_the_deportation_pipeline_still_be
gins_in_washington.html; Hatty Lee, Arizona SB 1070 Copycats Fall Flat in Most State
Legislatures, Colorlines, March 31, 2011, http://colorlines.com/archives/2011/03/arizona_
sb_1070_copycats_fall_flat_in_most_state_legislatures.html.
7
Georgia General Assembly, HB 87 - Illegal Immigration Reform and Enforcement Act of 2011
(last visited May 20, 2011), http://www1.legis.ga.gov/legis/2011_12/sum/hb87.htm (“HB 87”).
8
Arizona SB 1070 Copycats Fall Flat in Most State Legislatures, supra note 7.
9
See Julia Preston, Utah G.O.P. Adopts Immigration Alternative, New York Times, March 6,
2011, http://www.nytimes.com/2011/03/07/us/07utah.html?_r=1.
3

such persons are in the country unlawfully.10 Furthermore, unlike Arizona’s bill, HB 497 permits
police officers to reject identification documents or statements about citizenship based only on
the officer’s “reasonable suspicion” that the documents or statements are false;11 not to mention
the fact that HB 497 is only one bill in the so-called “Utah solution” package of bills, which
widely differs from Arizona’s SB 1070.12 As the Ninth Circuit recognized just recently, “the
threat of 50 states layering their own immigration enforcement rules on top of INA also weighs
in favor of preemption.”13 Similarly, Georgia’s bill also differs from SB 1070 and HB 497, and
conflicts with federal law.14 President Obama reaffirmed the importance of avoiding this
immigration patchwork. He said of Georgia’s bill: “It is a mistake for states to try to do this
piecemeal. We can’t have 50 different immigration laws around the country. Arizona tried this,
and a federal court already struck them down.”15 Mexico stresses that this contradictory
patchwork is “detrimental to the robust relationship that Mexico and the United States have built
10

HB 497 §§ 3, 4; SB 1070 § 2.
HB 497 §§ 3, 4.
12
Under one bill, Utah would be able to grant work permits to undocumented immigrants who
reside in Utah beginning in 2013. H.B. 116, 2011 Leg., Gen. Sess. (Utah 2011). Another bill
would give Utahans the right to sponsor foreign individuals to live in Utah. H.B. 469, 2011 Leg.,
Gen. Sess. (Utah 2011). See also Preston, supra note 10; Governor Herbert Signs Immigration
Reform Legislation, Utah.gov, March 15, 2011, http://www.utah.gov/governor/news_media/
article.html?article=4435.
13
United States v. Arizona, No. 10-16645, 2011 U.S. App. LEXIS 7413, at *34 (9th Cir. Ariz.
Apr. 11, 2011).
14
For example, under Georgia’s bill, a law enforcement officer is not required to confirm lawful
presence prior to an arrest, but is authorized to do so if the officer has “probable cause” to
believe the suspect has committed a criminal offense. HB 87 § 8. In Arizona, officers need only
to have “reasonable suspicion” that a person is an illegal immigrant to be required to confirm the
person’s immigration status. SB 1070 § 2. See also chart titled “A Comparison of Select Arizona,
Georgia, and Federal Immigration Control Statutes” in 2011 Upcoming Session Issues, Senate
Research Office, http://www.senate.ga.gov/sro/Documents/UpcomingIssues/LegIssues11.pdf.
15
Jeremy Redmond, Obama Blasts Georgia’s Bill Targeting Illegal Immigrants, Cox
Newspapers, April 28, 2011, http://timesfreepress.com/news/2011/apr/28/obama-blasts-georgiabill-targeting-illegal-immigr/.
11

4

as partners and neighbors in such important issues as enhancing economic competitiveness and
trade, cooperating against transnational organized crime, promoting clean energy and combating
climate change, and creating a more modern and efficient border.”16
HB 497 undermines the U.S. government’s approach of weighing multiple competing
considerations and choosing among priorities in order to develop an overall effective foreign
policy strategy. The U.S. seeks support of foreign governments through a “delicately-navigated
balance of interests across the entire range of U.S. national policy goals[,]” including
immigration policy.17 Laws like SB 1070 and HB 497 undermine U.S. foreign policy and thereby
“endanger [the] ability to negotiate international arrangements and to seek bilateral, regional or
multilateral support across a range of . . . non-immigration concerns.”18 These inconsistent laws
and obligations across federal and state levels negatively impact bilateral negotiations between
the U.S. and Mexico on a variety of foreign policy fronts. Through its embassy, Mexico
denounced this dangerous patchwork and “reiterates the commitment of the Mexican federal
government to comprehensive solutions and shared responsibility with regard to migration.”19
Mexico has a legitimate interest in preventing U.S. states from affecting bilateral
relations. The roots of cooperation between the U.S. and Mexico run deep and wide. The
executive and legislative branches of the two countries, every federal agency, and dozens of state
and local governments collaborate directly with their counterparts across the border on issues as

16

Press Release on the Passing of Immigration Laws in Utah, supra note 3.
Decl. James Steinberg ¶ 12, supra note 6.
18
Id. ¶ 14.
19
Press Release on the Passing of Immigration Laws in Utah, supra note 3.

17

5

diverse as emergency preparedness and free trade facilitation.20 Because the bilateral cooperation
is extensive, it is essential for the U.S.–Mexico bilateral relations that each sovereign is able to
approach discussions with a consistent front.
2.

HB 497’s Intrusion in International Affairs Impedes International Relations and Bilateral
Collaboration
In order to conduct effective diplomatic negotiations with the U.S., countries such as

Mexico need and depend on consistent and reliable bilateral relations. Amicus Curiae cannot
effectively collaborate with the U.S. to address inherently international matters, such as
immigration, trade and security, if U.S. political subdivisions establish their own requirements
conflicting not only with each other, but also with the U.S. government’s efforts, priorities and
commitments.
Through HB 497, Utah directly interferes with the U.S. Department of State’s ability to
conduct foreign affairs and policy. As was the case with Arizona’s SB 1070,21 even prior to
going into effect, HB 497 is already straining U.S.–Mexico relations. Mexico’s embassy to the
U.S. affirmed that “the Government of Mexico is concerned about the adverse impact initiatives
such as Utah’s HB 497 may have on the breadth and scope of our bilateral relationship [with the
U.S.].”22 Furthermore, the embassy ascertains that “Utah’s actions on this specific issue
[immigration] are detrimental to the robust relationship that Mexico and the United States have

20

Andrew Selee, Christopher Wilson, & Katie Putnam, The United States and Mexico: More
than Neighbors, Woodrow Wilson Institute for Scholars (May 2010), note 9, at 13-14, available
at http://wilsoncenter.org/topics/pubs/WWC_MI_More-Than-Neighbors-2010-update.pdf.
21
See Meet the Press with Secretary Clinton [Transcript], May 2, 2010, available at
http://secretaryclinton.wordpress.com/2010/ 05/02/meet-the-press/.
22
Embassy of Mexico, Statement by the Embassy of Mexico on Lawsuit Filed Against HB 497 in
Utah, May 3, 2011, http://embamex.sre.gob.mx/usa/index.php/home/13-press-releases2011/512-statement-by-the-embassy-of-mexico-on-lawsuit-filed-against-hb-497-in-utah-.
6

built as partners and neighbors in such important issues as enhancing economic competitiveness
and trade, cooperating against transnational organized crime, promoting clean energy and
combating climate change, and creating a more modern and efficient border.”23
a.

HB 497 Will Severely Hinder Mexico-U.S. Trade and Tourism

Mexico is greatly concerned about the possible repercussions of HB 497 on trade and
commercial relations with the U.S. and Utah. Growth in U.S.–Latin-American trade has
historically outpaced all other regions.24 The interaction of labor markets, tourism, business
travel and student migration is of great importance to both economies.25
To enhance economic trade and collaboration, the governments of the U.S. and Mexico
have pursued trade liberalization through collaborative multilateral, regional and bilateral
negotiations, resulting in advantageous multifaceted economic relationships.26 Diplomacy is
crucial to such efforts. Like Arizona’s SB 1070, HB 497 impedes collaboration; together, the
bills push “nations that work together and trade” to “mutual recrimination, which has been so

23

Id.
J. F. Hornbeck, U.S.-Latin America Trade: Recent Trends and Policy Issues, Congressional
Research Service, at 1 (Sept. 3, 2009), available at http://www.fas.org/sgp/crs/row/98-840.pdf.
25
Press Release, The White House, Remarks by President Obama and President Calderón of
Mexico at Joint Press Availability, May 19, 2010, available at http://www.whitehouse.gov/thepress-office/remarks-president-obama-and-president-calder-n-mexico-joint-press-availability. A
Federal Reserve Bank of San Francisco study estimates that immigration from 1990 to 2007 into
the U.S. increased U.S. economic efficiency and productivity resulting in a 6.6% to 9.9%
increase in real income per U.S. worker. Giovanni Peri, The Effect of Immigrants on U.S.
Employment and Productivity, Economic Letter, Federal Reserve Bank of San Francisco, at 10
(August 30, 2010), available at http://www.frbsf.org/publications/economics/letter/2010/el201026.html. See also Tamar Jacoby, Immigration Nation, 85 Foreign Affairs 50, 54-58 (2006).
26
Hornbeck, supra note 25, at 5; M. Angeles Villarreal, U.S.-Mexico Economic Relations:
Trends, Issues, and Implications, Congressional Research Service (Mar. 31, 2010), at 16-18,
available at http://www.fas.org/sgp/crs/row/ RL32934.pdf.
24

7

useless and damaging in previous times.”27 Strained diplomatic relations substantially impede the
ability of the U.S. and Mexico to collaboratively develop, enhance and maintain commercial
exchange critical to both of their economies.
b.

HB 497 Derails Efforts Towards a Uniform Legal Framework that Ensures the
Secure, Orderly and Legal Movement of People

With over 11 million nationals residing in the U.S.28 and millions more admitted to the
U.S. as tourists and travelers each year,29 Mexico has a significant interest in ensuring the secure,
orderly and legal movement of its nationals in and through the U.S. The Obama Administration
recognizes the need for collaboration with Mexico as one of its five guiding immigration
principles.30 Safe and orderly migration conditions can only be achieved through comprehensive,
nationwide U.S. immigration policy.
The effects of U.S.–Mexico migration to labor markets, tourism, business travel, and
education is of great importance to both countries.31 It is due to the benefits of international

27

Press Release, The White House, Remarks by President Calderón of Mexico at Official Arrival
Ceremony, May 19, 2010, available at http://www.whitehouse.gov/the-press-office/remarkspresident-calder-n-mexico-official-arrival-ceremony. See also Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752, 770 (2004) (removing blockade to cross-border trucking); and Villarreal, supra
note 27, at 20-24 (discussing Mexico-U.S. trade issues).
28
Pew Hispanic Center, Statistical Portrait of the Foreign-Born Population in the United States
2009 (last visited May 31, 2011), http://pewhispanic.org/files/factsheets/foreignborn2009/
Table%205.pdf.
29
During 2009, the U.S. admitted over 6 million Mexican citizens under non-immigrant visas
and approximately 58 million people admitted across the U.S.–Mexico border. Office of
Immigration Statistics, 2009 Yearbook of Immigration Statistics, August 2010,
http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_2009.pdf; U.S. Department
of Transportation, Border Crossing/Entry Data, June 1, 2010,
http://www.bts.gov/programs/international/transborder/TBDR_BC/ TBDR_BC_Index.html.
30
The White House, Immigration (last visited June 10, 2010),
http://www.whitehouse.gov/issues/immigration.
31
Id.; see also Jacoby, supra note 26, at 54-58 (noting that foreign labor has complemented, not
competed with, the U.S. labor force).
8

collaboration in these areas, that the U.S. and Mexico recognize the importance of having a
national immigration framework that ensures the secure, orderly and legal movement of people
into and across the U.S.32 HB 497 institutes an independent state immigration enforcement
system that not only derails bilateral economic, social and security efforts, but imperils efforts at
a comprehensive solution for immigration policy. Mexico cannot effectively cooperate with the
U.S. when Utah interferes with the sovereigns’ efforts of both sovereign countries.
3.

HB 497 Poses a Risk of Harassment by Law Enforcement to Mexican Citizens
Discriminatory enforcement of the law has adverse legal, social, economic and political

implications. Mexico has a legitimate interest in ensuring that its citizens are not deprived of
international and constitutional protections or subjected to hostile attitudes or action by U.S. state
actors of the society at large.
Although HB 497 has been enacted with race-neutral language that “[a] law enforcement
officer may not consider race, color, or national origin,”33 Mexico is deeply concerned that the
application of HB 497 by local law enforcement and Utah’s officers who, like local officials in
Arizona, will have the power to make arrests of any individual whom they have “reasonable”
cause to believe is a criminal or an alien,34 could lead to harassment of Mexican citizens and
individuals of Hispanic appearance alike. In light of the continuous growth of the Hispanic and
Mexican–American population in the United States,35 especially in the Western part of the

32

See Remarks by Presidents Obama and Calderón, supra note 26.
HB 497 § 76-9-1003(5).
34
Id.
35
See Pew Hispanic Center, Census 2010: 50 Million Latinos: Hispanics Account for More Than
Half of Nation’s Growth in Past Decade, March 24, 2011, http://pewhispanic.org/files/reports/
140.pdf.
33

9

country, Mexico is concerned and simply unsure how HB 497 can be applied in a race-neutral
manner.
Indeed local law enforcement officials in Utah and across the country have reached the
same conclusion. HB 497 creates a complicated system of mandatory and permissive
immigration status verifications that invites racial profiling and discriminatory enforcement.36
The overly complex interpretation of HB 497, in conjunction with the potential liability faced for
limiting enforcement of federal immigration law, “makes it extremely difficult to monitor or
eliminate racial bias in citizen contacts” and encourages law enforcement officers to exercise the
widest possible latitude when applying the law.37 Officers will “inevitably rely upon race and
ethnicity” in order to be sure they have investigated absolutely anyone who may be
undocumented.38 Even Chris Burbank, Chief of Police of the Salt Lake City Police Department,
is concerned that the complexity of HB 497 will cause “officers in neighboring cities and
counties [to] inquire into immigration status in all situations or [to exercise] discretion based on
race, appearance or manner of speaking.39 HB 497 places a burden on police officers to
determine the veracity of individual’s statements without providing for training, thus inviting
racial profiling and discrimination.40

36

Gascón Decl. 1:26-27; Gonzales Decl. 2:24-28.
Gascón Decl. 2:3-4 (recognizing “it will be extremely difficult, if not impossible, for law
enforcement officers in Utah to understand and differentiate between what HB 497 requires them
to do and what it permits them to do”); 2:10-14; Burbank Decl. 2:20-21; Burbank Decl. 2:12-13.
38
Gascón Decl. 2:16-17.
39
Burbank Decl. 2:20-21.
40
Gonzales Decl. 3:8-10.
37

10

The Ninth Circuit has noted that the “use of race and ethnicity for such purposes [as a
criterion in government decision-making] has been severely limited.”41 The Appeals court
acknowledged that “[t]he Hispanic population of the nation and of the Southwest and Far West
in particular, has grown enormously — at least five-fold in the four [border] states referred to in
the Supreme Court’s decision [Arizona, California, New Mexico and Texas].”42 Even at border
check stops, the Ninth Circuit explained that
at this point in our nation’s history, and given the continuing changes in our ethnic and
racial composition, Hispanic appearance is, in general, of such little probative value
that it may not be considered as a relevant factor where particularized or individualized
suspicion is required . . . [to be used] in determining which particular individuals
among the vast Hispanic populace should be stopped by law enforcement officials on
the lookout for illegal aliens.43
In fact, recent preliminary demographic information establishes that minorities represent more
than 50% of the population in Hawaii, New Mexico, California and Texas.44 Being Latino has as
much to do today with being a U.S. citizen, as it does with being an immigrant. Given the
growing numbers of the Hispanic population, it is imperative that immigration enforcement be
carried out in a way that is fair to all individuals regardless of their ethnic origin. Mexico has a
strong interest in ensuring that its citizens are protected in this regard. For example, one
commentator noted that a former Utah immigration bill, which permitted state law enforcement

41

United States v. Montero-Camargo, 208 F.3d 1122, 1143 (9th Cir. 2000) (citing Adarand
Constructors v. Pena, 515 U.S. 200 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989)).
42
Montero-Camargo, 208 F.3d at 1133-34 n.22. The court instructed that race “may be
considered when the suspected perpetrator of a specific offense has been identified as having
such an appearance.”
43
Id. at 1134.
44
Hope Yen, Minority Population Growing, Census Says, Associated Press, June 11, 2010,
available at http://www.boston.com/news/nation/washington/articles/2010/06/11/minority_
population_growing_census_says/.
11

to identify and detain individuals whose immigration status may be in question, led to chilling
effects on crime reporting by both Whites and Latinos.45 This “allows criminal activity to
transpire unchecked[,]”46 greatly obstructing the international fight against transnational
organized crime.

“[T]he interest of the cities, counties and states, no less than the interests of the people of
the whole nation, imperatively requires that federal power in the field affecting foreign relations
be left entirely free from local interference.”47 HB 497 poses an imminent threat to U.S.–Mexico
bilateral relations. Amicus has a compelling interest in consistent relations among sovereigns,
and in the Court preliminarily enjoining HB 497 and declaring it unconstitutional in its entirety.

CONCLUSION
For the foregoing reasons, Amicus Curiae respectfully requests that this Court
preliminarily enjoin HB 497, and declare it unconstitutional in its entirety.

45

Phillip Atiba Goff, Liana Maris Epstein, Chris Burbank, & Tracie L. Keesee, Deputizing
Discrimination?, The Consortium for Police Leadership in Equity, May 3, 2010 (on file with
authors); see also Liana Maris Epstein and Phillip Atiba Goff, Safety or Liberty?: The Bogus
Trade-Off of Cross-Deputization Policy, 00 Analyses of Soc. Issues & Pub. Pol’y 1 (2011); see
also Chris Burbank, Phillip Atiba Goff & Tracie L. Keesee, Policing Immigration: A Job We Do
Not Want, Huffington Post, June 7, 2010, http://www.huffingtonpost.com/chief-chrisburbank/policing-immigration-a-jo_b_602439.html.
46
Epstein, Safety or Liberty? at 8-9, supra note 47, noting also that “non-White officers,” who
play crucial liaison roles within their own racial and ethnic communities, would be more likely to
quit their jobs if such cross-deputation immigration laws are enacted.
47
United States v. Arizona, 2011 U.S. App. LEXIS 7413, at *34 (quoting Hines v. Davidowitz,
312 U.S. 52, 63 (1941); see also The Federalist No. 42 and The Federalist No. 4.

12

DATED this 7th day of June, 2011.
JONES WALDO HOLBROOK & MCDONOUGH
/s/ Lon A. Jenkins
Lon A. Jenkins (USB #4060
DEWEY & LEBOEUF
Henry L. Solano
Carla Gorniak
Christopher R. Clark
Attorneys for Amicus Curiae

13

CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of June 2011, I electronically filed the foregoing
[LODGED] BRIEF OF THE UNITED MEXICAN STATES AS AMICUS CURIAE IN
SUPPORT OF PLAINTIFFS’ COMPLAINT FOR DECLARATORY AND INJUNCTIVE
RELIEF with the Clerk of the Court using the CM/ECF system, which sent notification to the
following:

Darcy M. Goddard
ACLU OF UTAH
355 N 300 W STE 1
SALT LAKE CITY, UT 84103
[phone]
Email: [e-mail]

Linton Joaquin
NATIONAL IMMIGRATION LAW
CENTER
3435 WILSHIRE BLVD STE 2850
LOS ANGELES, CA 90010
[phone] EXT. 112

Andre Segura
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 BROAD ST 18TH FLOOR
NEW YORK, NY 10004
[phone]

Melissa S. Keaney
THE NATIONAL IMMIGRATION
LAW CENTER
3435 WILSHIRE BLVD STE 2850
LOS ANGELES, CA 90010
[phone] EXT. 120

Bradley Phillips
MUNGER TOLLES & OLSON LLP
355 SOUTH GRAND AVE 35TH FL
LOS ANGELES, CA 90071

Omar Jadwat
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 BROAD ST 18TH FLOOR
NEW YORK, NY 10004
[phone]

Elora Mukherjee
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
RACIAL JUSTICE PROGRAM
125 BROAD ST 18TH FLOOR
NEW YORK, NY 10004

Shiu-Ming Cheer
THE NATIONAL IMMIGRATION
LAW CENTER
3435 WILSHIRE BLVD STE 2850
LOS ANGELES, CA 90010
[phone] EXT. 133

14

Esperanza Granados
1 of 20
355 N 300 W
SALT LAKE CITY, UT 84103
801-521-9862 ext. 113
Email: [e-mail]

Cecillia Wang
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 DRUMM ST
SAN FRANCISCO, CA 94111
[phone]

Karen Tumlin
THE NATIONAL IMMIGRATION
LAW CENTER
3435 WILSHIRE BLVD STE 2850
LOS ANGELES, CA 90010
[phone] EXT. 110

Jerrold S. Jensen
UTAH ATTORNEY GENERAL’S
OFFICE (160-140857)
160 E 300 S
PO BOX 140857
SALT LAKE CITY, UT 84114-0857
[phone]
Email: [e-mail]

Katherine Desormeau
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION (SF)
IMMIGRANT’S RIGHTS PROJECT
39 DRUMM ST
SAN FRANCISCO, CA 94111
[phone]

Thomas D. Roberts
UTAH ATTORNEY GENERAL’S
OFFICE (160-140857)
160 E 300 S
PO BOX 140857
SALT LAKE CITY, UT 84114-0857
[phone]
Email: [e-mail]

/s/

Lon A. Jenkins

15