Mark A Ivener, A Law Corporation

Justice Dept. Sues Utah Over Immigration Law

On November 22, 2011, the Department of Justice and several other agencies filed suit against Utah’s new immigration-related law, after similar recent law suits against Arizona, Alabama, and South Carolina’s laws.

In a complaint filed in the District of Utah, the Department argued that several provisions of Utah’s H.B. 497, enacted on March 15, 2011, are preempted by federal law. The Department said its lawsuit comes after several months of “constructive discussions” with Utah state officials and that, notwithstanding the lawsuit, Department officials “expect this important dialogue to continue.”

The complaint states that H.B. 497 violates the U.S. Constitution because it attempts to establish state-specific immigration policy. According to a related statement released by the Department, Utah’s law “creates and mandates immigration enforcement measures that interfere with the immigration priorities and practices of the federal government in a way which is not cooperative with the primary federal role in this area.” Among other things, the Department argues that the law’s mandates on law enforcement “could lead to harassment and detention of foreign visitors and legal immigrants who are in the process of having their immigration status reviewed in federal proceedings and whom the federal government has permitted to stay in this country while such proceedings are pending.”

“A patchwork of immigration laws is not the answer and will only create further problems in our immigration system,” said Attorney General Eric Holder. “The federal government is the chief enforcer of immigration laws and while we appreciate cooperation from states, which remains important, it is clearly unconstitutional for a state to set its own immigration policy. We will continue to monitor and coordinate with our federal partners as we remain concerned about the potential impact of these state laws.”

Department of Homeland Security Secretary Janet Napolitano said legislation such as Utah’s new law “diverts critical law enforcement resources from the most serious threats to public safety and undermines the vital trust between local jurisdictions and the communities they serve. The Department will continue to enforce federal immigration laws in Utah in smart, effective ways that focus our resources on criminal aliens, recent border crossers, repeat and egregious immigration law violators and employers who knowingly hire illegal labor.”

The Department recently notified Utah state officials of its position that Utah’s “Immigrant Guest Worker” statutes, H.B. 116 and H.B. 469, are preempted by federal law. Given that the provisions do not take effect until 2013, and “in light of the constructive conversations the department continues to have with Utah officials about these provisions pursuant to the Justice Department’s long-standing policy of exploring resolution short of litigation before filing suit against a state,” the Department said it is not challenging these provisions now. If Utah fails to comply with federal law in this area, however, “the department will not hesitate to take the legal action necessary to vindicate the important federal interests in this matter before these laws go into effect.”

The suit was filed on behalf of the Departments of Justice, Homeland Security, and State, which share responsibilities in administering federal immigration law. The federal government will soon request a preliminary injunction to enjoin enforcement of certain provisions of H.B. 497. Utah’s Republican state Rep. Stephen Sandstrom, who sponsored H.B. 497, said he was disappointed, but Utah’s Attorney General Mark Shurtleff acknowledged that the focus only on an enforcement measure rather than also including the guest worker provisions in the suit demonstrated the Department’s willingness to continue dialogue. “We’re now adversaries in the courtroom but we’re going to continue to discuss this with them,” he said.

Mexico’s Foreign Relations Department released a statement welcoming the news of the suit. “The HB 497 law criminalizes migration and opens the door to possible improper application of the law by local authorities. If it takes effect, it could affect the human and civil rights of Mexicans who visit or live in that state,” the statement said.

The Justice Department previously challenged Arizona’s S.B. 1070, Alabama’s H.B. 56, and South Carolina’s Act No. 69 on federal preemption grounds. The agency said it continues to review immigration-related laws that were passed in Indiana and Georgia. Courts have upheld some provisions but enjoined others and have temporarily restrained enforcement of Utah’s law pending a hearing scheduled for December 2, 2011.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.