Case 2:11-cv-00401-CW Document 2 Filed 05/03/11 Page 1 of 44

1 Linton Joaquin* Karen C. Tumlin*
2 Shiu-Ming Cheer* Melissa S. Keaney*
3 NATIONAL IMMIGRATION LAW CENTER
4 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010
5 Telephone: (213) 639-3900 Facsimile: (213) 639-3911
6 joaquin@nilc.org tumlin@nilc.org
7 cheer@nilc.org keaney@nilc.org
8 Omar C. Jadwat*
9 Andre Segura* Elora Mukherjee*
10 AMERICAN CIVIL LIBERTIES UNION
11 FOUNDATION 125 Broad Street, 18th Floor
12 New York, New York 10004 Telephone: (212) 549-2660
13 Facsimile: (212) 549-2654 ojadwat@aclu.org
14 asegura@aclu.org emukherjee@aclu.org
15
16
17

Cecillia D. Wang* Katherine Desormeau* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 cwang@aclu.org kdesormeau@aclu.org
Darcy M. Goddard (USB No. 13426) Esperanza Granados (USB No. 11894) AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Facsimile: (801) 532-2850 dgoddard@acluutah.org egranados@acluutah.org
Bradley S. Phillips*+ MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Brad.Phillips@mto.com

18

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

19

CENTRAL DIVISION

20

Utah Coalition of La Raza; Service

21 Employees International Union; Workers’

United Rocky Mountain Joint Board; Centro

22 Civico Mexicano; Coalition of Utah

Progressives; Latin American Chamber of

23 Commerce; Salt Lake City Brown Berets;

Jane Doe #1; John Doe #1; Milton Ivan

24 Salazar-Gomez; Eliana Larios; Alicia

Cervantes; John Doe #2

25

Plaintiffs,

26

v.

No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CLASS ACTION

Case 2:11-cv-00401-CW Document 2 Filed 05/03/11 Page 2 of 44
1 2 Gary R. Herbert, Governor of the State
of Utah, in his official capacity; Mark 3 Shurtleff, Attorney General of the State
of Utah, in his official capacity, 4
Defendants. 5 6 7 +Attorney for all plaintiffs except Service Employees International Union and the
Workers’ United Rocky Mountain Joint Board 8
*Application for admission pro hac vice forthcoming 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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2

PRELIMINARY STATEMENT

3

1. This action challenges Utah’s immigration enforcement law, House

4 Bill (“HB”) 497. HB 497 was enacted by the State of Utah along with two other

5 immigration laws—HB 469 and HB 116—to create a comprehensive system of

6 immigration regulation. This Utah scheme includes: (1) a punitive immigration

7 enforcement system requiring state and local law enforcement officers to verify the

8 immigration or citizenship status of individuals they encounter in numerous

9 circumstances, to detain those deemed by Utah law enforcement officers to be

10 unlawfully present in the United States, to arrest individuals on immigration-

11 related grounds that differ from federal standards, and to enforce Utah-specific

12 criminal immigration laws (HB 497); (2) a state scheme to admit non-citizens from

13 outside the United States to live, work, or study in Utah (HB 469); and (3) a state

14 program to provide state work authorization for non-citizens without federal

15 employment authorization (HB 116).

16

2. The laws were signed by Governor Gary Herbert on March 15, 2011,

17 and HB 497 is scheduled to take effect on May 10, 2011, long before the other

18 laws are to have any effect.

19

3. If allowed to take effect, HB 497 will significantly harm Utahans,

20 particularly Utahans of color. According to law enforcement officials in Utah and

21 elsewhere, HB 497 will cause widespread racial profiling and will subject many

22 persons of color—including countless U.S. citizens and non-citizens who have

23 federal permission to remain in the United States—to unlawful interrogations,

24 searches, seizures, and arrests. People of color in the state will be compelled to

25 carry additional paperwork on them at all times in order to prove to law

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2 enforcement officials that their presence in the country is approved by the federal

3 government.

4

4. HB 497 fundamentally changes the primary role and day-to-day

5 operations of local law enforcement officials. In the state of Utah, a law

6 enforcement officer’s “primary and principal duties consist of the prevention and

7 detection of crime and the enforcement of criminal statutes or ordinances of this

8 state or any of its political subdivisions.” Utah Code Ann. § 53-13-103. HB 497,

9 however, undermines this state goal by injecting an immigration enforcement

10 directive into every police encounter.

11

5. HB 497 requires law enforcement officers to demand documentation

12 reflecting immigration status from individuals they stop, detain, or arrest. During

13 a stop, if a person is able to produce one of four enumerated types of identity

14 documents he will be presumed to be lawfully present in the United States. Thus,

15 the four enumerated documents (hereinafter, “qualifying identity documents”) are

16 not simply documents that establish identity; they are explicitly intended to

17 function as proof of lawful presence in the United States.

18

6. HB 497’s document requirement amounts to a mandatory initial

19 immigration status check by law enforcement officers out in the field. If an

20 individual cannot produce a qualifying identity document, law enforcement

21 officers are authorized, and in many cases required, to detain the individual in

22 order to attempt to verify their immigration status— a process that takes more than

23 an hour on average.

24

7. By requiring persons to produce a qualifying identity document and

25 providing for immigration verification during stops, HB 497 establishes a de facto

26 state alien registration scheme. If implemented, HB 497 would require everyone

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2 in the State of Utah, but particularly persons of color, to carry specific forms of

3 documentation with them at all times or risk interrogation and detention by law

4 enforcement.

5

8. In enacting its state immigration laws, the State of Utah sought to

6 displace various aspects of federal immigration authority. Indeed, in signing these

7 bills, Governor Herbert issued a press release stating that “combined, [they]

8 constitute” “the Utah solution” for immigration reform. See Press Release,

9 Governor Herbert Signs Immigration Reform Legislation (Mar. 15, 2011).

10

9. This system of state immigration laws constitutes a pervasive

11 regulation of immigration and non-citizens touching on areas that are

12 constitutionally committed to the exclusive control of the federal government—

13 from the admission of non-citizens to the country, to their ability to work, and the

14 identification of those immigrants whom Utah deems to be unlawfully present in

15 the United States. These laws impermissibly encroach into an area of sole federal

16 authority and will interfere and conflict with the comprehensive federal

17 immigration system enacted by Congress and implemented through a complex

18 scheme of federal regulations and policies.

19

10. HB 497 is unconstitutional in myriad ways. It violates the

20 Supremacy Clause and core civil rights and liberties secured by the U.S. and Utah

21 Constitutions, including the Fourth Amendment right to freedom from

22 unreasonable searches and seizures, the Right to Travel, the Equal Protection

23 Clause’s protection from arbitrary state classifications, and the Utah Constitution’s

24 guarantee of the uniform operation of laws.

25

11. The plaintiffs in this action will suffer serious and irreparable

26 violations of their constitutional rights and civil liberties if HB 497 is allowed to

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2 take effect. The named plaintiffs bring this action on behalf of themselves and a

3 class of all others similarly situated to obtain preliminary and permanent injunctive

4 relief and a declaration that HB 497 violates the U.S. and Utah Constitutions.

5

JURISDICTION AND VENUE

6

12. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331

7 and 1343 over Plaintiffs’ claims under the U.S. Constitution, which are brought

8 directly and under 42 U.S.C. §§ 1981 and 1983.

9

13. This Court has subject matter jurisdiction over this action pursuant to

10 28 U.S.C. § 1331 because this action arises under the Constitution and laws of the

11 United States, and pursuant to 28 U.S.C. § 1343 because this action seeks to

12 redress the deprivation, under color of state law, of Plaintiffs’ civil rights and to

13 secure equitable or other relief for the violation of those rights.

14

14. This Court has supplemental jurisdiction over Plaintiffs’ state law

15 claims. Pursuant to 28 U.S.C. § 1367 because they are so related to the federal

16 claims that it forms part of the same case or controversy under Article III of the

17 U.S. Constitution.

18

15. This Court has jurisdiction to grant declaratory relief pursuant to 28

19 U.S.C. §§ 2201 and 2202, and Federal Rules of Civil Procedure Rule 57.

20

16. Venue is proper in this District under 28 U.S.C. § 1391(b). All

21 Defendants are sued in their official capacity and their official places of business

22 are all located within this District. All of the events giving rise to this Complaint

23 occurred within this District.

24

25

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2

PARTIES

3

Organizational Plaintiffs

4

17. Plaintiff Utah Coalition of La Raza (“UCLR”) is an affiliate of the

5 National Council of La Raza, the largest national Latino civil rights advocacy and

6 service organization in the United States. UCLR was established in 1992 to

7 improve conditions and opportunities for Latinos living in Utah. UCLR focuses

8 its advocacy and work on a range of civil rights issues including: education,

9 economic development, immigration, and leadership development. The primary

10 geographic areas for UCLR’s activities are the four counties of Salt Lake, Davis,

11 Utah, and Weber. Hundreds of people routinely attend UCLR co-sponsored

12 events. A large percentage of individuals who attend UCLR events and activities

13 are undocumented immigrants. UCLR has had to shift resources from its existing

14 priority areas to focus more attention on immigration issues because of the passage

15 of HB 497 and related bills. UCLR board members have spent much of their time

16 on immigration issues this year. This has led to other key organizational issues

17 being put on hold. Individuals who regularly attend UCLR co-sponsored events,

18 including U.S. citizens and lawful immigrants as well as undocumented

19 immigrants, have expressed serious concern about HB 497. They have indicated

20 they will refrain from attending UCLR events if HB 497 takes effect because they

21 fear being stopped by police based on their Latino appearance and asked for their

22 immigration papers.

23

18. Plaintiff Service Employees International Union (“SEIU”) is one of

24 the largest labor organizations in the world, representing 2.2 million working men

25 and women employed primarily in the public sector and in the janitorial, health

26 services, long-term care, and security industries. Many of SEIU’s members are

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1 2 recent immigrants to the United States and many of its members are racial 3 minorities. SEIU has long called for and worked toward comprehensive reform of 4 U.S. immigration laws. Another priority for SEIU is fighting discrimination 5 against minorities, women, and other groups in the workplace and in society. In 6 Utah, SEIU has a local affiliate, Workers’ United Rocky Mountain Joint Board 7 (“Rocky Mountain Joint Board”) (see ¶ 19, infra). This affiliate has approximately 8 70 members in the state, over 50 percent of whom are Latino. SEIU works in 9 partnership with Workers’ United Rocky Mountain Joint Board and other groups 10 to combat discrimination and advocate for immigration reform at the national 11 level. Because so many of SEIU members are public sector employees, the impact 12 of HB 497 on already distressed county and municipal budgets will harm SEIU’s 13 members to the extent that it will result in further pay cuts, furloughs, and layoffs. 14 Furthermore, some of SEIU’s Latino members and their families have already 15 been subjected to stops by local law enforcement, during which they have been 16 asked to produce proof of immigration status. SEIU is concerned that its minority 17 members in Utah, including U.S. citizens and lawful immigrants as well as 18 undocumented immigrants, will be even more likely to be stopped, detained, 19 arrested, and questioned by state and local police after HB 497 goes into effect. 20 This will cause hardship for members of SEIU. In addition, SEIU is concerned 21 that members and potential members, regardless of nationality and immigration 22 status, will refrain from exercising their rights to attend rallies, demonstrations, 23 and union meetings or to engage in leafleting or other traditional labor activities 24 because of the possibility of being stopped by police under HB 497. This will 25 significantly impede the ability of SEIU to protect its current members and to 26 organize new members in Utah. SEIU joins this lawsuit to preserve its ability to
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2 organize new members and to protect the rights and interests of its members and

3 prospective members.

4

19. Plaintiff Workers’ United Rocky Mountain Joint Board (“Rocky

5 Mountain Joint Board”), is a labor union and an affiliate of Plaintiff SEIU. Rocky

6 Mountain Joint Board represents 70 workers in Utah. Over 50 percent of Rocky

7 Mountain Joint Board’s Utah membership is Latino. The primary mission of

8 Rocky Mountain Joint Board is to organize, represent, and empower employees in

9 Utah. In addition, Rocky Mountain Joint Board works in partnership with SEIU

10 and other groups to combat discrimination and mobilize for immigration reform at

11 the national level. Rocky Mountain Joint Board is concerned that its minority

12 members, including U.S. citizens and lawful immigrants, are likely to be

13 unlawfully stopped, detained, arrested, and questioned by state and local police

14 after HB 497 goes into effect. This will cause hardship for members of Rocky

15 Mountain Joint Board. In addition, Rocky Mountain Joint Board is concerned that

16 members and potential members will refrain from exercising their rights to attend

17 rallies, demonstrations, and union meetings or to engage in leafleting or other

18 traditional labor activities because of the possibility of being stopped by police

19 under HB 497. This will significantly impede the ability of Rocky Mountain Joint

20 Board to protect its current members and to organize new members. Rocky

21 Mountain Joint Board joins this lawsuit to preserve its ability to organize new

22 members and to protect the rights and interests of its members and prospective

23 members.

24

20. Plaintiff Centro Civico Mexicano (“Centro”) is the oldest nonprofit

25 Latino organization in Utah. Centro serves the Latino community in the Salt Lake

26 Valley by offering educational, cultural, social, and athletic activities and by

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2 fostering greater appreciation and awareness of the rich heritage and history of

3 Mexican and other Latino cultures. Centro has a community center where

4 educational, cultural, social, and athletic activities are held. The large majority of

5 individuals who use Centro’s facilities are Latino immigrants. Since HB 497 was

6 first introduced in the Utah legislature, Centro has had to divert significant

7 organizational resources to respond to its members’ concerns about the law. This

8 has taken valuable staff time away from other priority issues and work for Centro.

9 This year, Centro had intended to focus its resources on addressing mental health

10 issues in the Latino community. Because of HB 497 and the other immigration

11 bills, however, Centro has devoted virtually no resources to mental health issues

12 this year and instead has focused intensely on educating the Latino community

13 about HB 497. Members of the community who regularly attend Centro events or

14 use the Centro’s facility space, including U.S. citizens and lawful immigrants have

15 reported that if HB 497 takes effect they will cease using Centro’s facilities

16 because they will be too afraid to leave their homes for fear of being stopped by

17 police based on their Latino appearance and being asked for immigration papers.

18

21. Plaintiff Coalition of Utah Progressives (“CUP”) is a membership-

19 based, non-profit organization in Utah that advocates for policies that prohibit and

20 prevent discrimination based on race, ethnicity, religion, national origin, sexual

21 orientation, gender identity or expression, and ability. CUP’s membership consists

22 of approximately 40 people, about 15 percent of whom are undocumented

23 immigrants. One of CUP’s primary activities is to host community meetings and

24 rallies for its members and prospective members on key policy issues.

25 Immigration, and particularly advocating for reform of federal immigration policy,

26 is a primary issue for CUP. Plaintiff CUP will be harmed if HB 497 is allowed to

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2 take effect. CUP’s members and other community members who participate in

3 CUP activities, including U.S. citizens and lawful permanent residents, have

4 reported that they will be too afraid to come to CUP’s public events if HB 497

5 takes effect because police are often present at CUP rallies and they are worried

6 they will be stopped, questioned, and detained by police for not having proper

7 immigration papers under HB 497. Attendance at CUP events has already dropped

8 since HB 497 was signed by the Governor, and the drop in attendance is directly

9 attributable to HB 497. This year, CUP intended to use its scarce organizational

10 resources to work towards opening a thrift store to raise money to benefit people

11 suffering from AIDS. Because of HB 497 and the other immigration bills, CUP

12 has devoted virtually no resources to setting up the thrift store and instead has

13 focused on educating the community about HB 497.

14

22. Plaintiff Latin American Chamber of Commerce (“LACC”) was

15 founded in 2004 in order to help both local and Latino immigrant businesses make

16 the most of their business opportunities through education, networking and solid

17 integration dynamics. Currently, LACC has 488 members in the state. LACC’s

18 members operate businesses in the retail, light manufacturing, and services

19 industries. LACC works with Latino business owners who are usually first

20 generation immigrants, many of whom do not speak English well. Approximately

21 half of LACC’s members are undocumented immigrants. In a year, LACC

22 typically hosts three large events that are attended by thousands of people from

23 across Utah and 36 smaller events for 20 to 100 people. If HB 497 takes effect,

24 attendance at LACC events will be lower. LACC members have said that if HB

25 497 takes effect, they will be afraid to attend events where large numbers of

26 Latinos are gathering because they fear the police will stop them at the event and

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2 ask them for their documents. LACC has been forced to devote significant

3 organizational resources to responding to HB 497 and educating its members about

4 the law. As a result, LACC has had to divert organizational resources away from

5 other core areas of their mission. LACC has seen a 300 percent increase in calls

6 related to HB 497, which its current six-person staff cannot handle.

7

23. Plaintiff Salt Lake City Brown Berets (“SLC Brown Berets”) is a

8 statewide organization founded in 2006 to empower and educate youth in

9 underprivileged communities in Utah. Plaintiff SLC Brown Berets organizes

10 youth programs for elementary and high school children and provides food for the

11 afterschool FACE movement program at Kearns High School in Utah. Plaintiff

12 SLC Brown Berets has approximately 30 members—most of whom are Latino, but

13 some of whom are also Asian and White. Every member of the SLC Brown

14 Berets has a story of being racially profiled by law enforcement; this is equally

15 true for SLC Brown Berets members who are documented and those who are

16 undocumented. Because of HB 497, Plaintiff SLC Brown Berets has had to divert

17 significant organizational resources to educate the community about the law. This

18 takes precious organizational resources away from other priorities—such as

19 expanding programming to more elementary schools and middle schools or

20 starting a scholarship fund for high school students. In addition, Plaintiff SLC

21 Brown Berets’ organizational goal is to work on issues of importance to all

22 underrepresented communities, however, because of HB 497 SLC Brown Berets

23 has had to singularly focus on immigration as its key issue—stalling other

24 important work of the organization.

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2

Individual Plaintiffs

3

24. Plaintiff Jane Doe #1 is a resident of Murray, Utah. She is a Mexican

4 national, is married to a U.S. citizen, and has two U.S. citizen children who are

5 teenagers. Jane Doe #1 has built her life in Utah and has been in the United States

6 for more than 20 years. Plaintiff Jane Doe #1 was in a previous relationship with

7 an abuse partner who reported her to federal immigration officials after she left

8 him. Jane Doe #1 was put into deportation proceedings; however, the court

9 administratively closed her case. Although the federal government knows that she

10 is present in the United States without a visa or other immigration status, it has

11 opted not to remove her. Jane Doe #1 had a valid Utah driver’s license, but that

12 license expired on April 24, 2011. She has applied for a Utah driving privilege

13 card (a document issued under Utah law that permits persons who are unable to

14 show lawful immigration status to drive) because she lacks valid federal

15 immigration status and no longer qualifies for a state driver’s license. Once HB

16 497 goes into effect, Jane Doe #1 will be too afraid to drive for fear of being

17 stopped by state or local police. As a result, she will drastically reduce her day-to-

18 day activities outside her home. Plaintiff Jane Doe #1 is afraid that if she is

19 stopped by law enforcement for any reason, she will be subjected to prolonged

20 questioning, arrest, and detention because she will only be able to present a valid

21 Utah driving privilege card and will not be able to prove to a police officer’s

22 satisfaction that the federal government is aware she is in the country, but has

23 elected not to remove her. Plaintiff Jane Doe #1 will not travel to see her family

24 members in neighboring areas of the state if HB 497 is implemented out of fear

25 that she will be stopped by local law enforcement and asked to show her “papers.”

26 She will also stop running errands, including buying groceries, for the same

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2 reason. Instead, Jane Doe #1 will only make these trips when her husband can

3 drive her, which is infrequently due to his work obligations.

4

25. Plaintiff John Doe #1 has been in the United States since he was a

5 young child. He is a Mexican national who was brought to the United States by

6 his parents when he was nine years old. Utah is his home. Since he was six years

7 old, Plaintiff John Doe #1 has wanted to be a pastor. After graduating from high

8 school in Utah, he applied and was accepted to an academy in Louisiana to study

9 to become a pastor. While he was traveling to this academy, he was stopped at a

10 Border Patrol checkpoint and arrested. He spent the next 17 days in immigration

11 detention. He was then released from detention into the Intensive Supervision

12 Appearance Program (ISAP), which requires him to report to a program officer

13 twice a month. Currently, his immigration case is on-going. His only form of

14 Utah identification is a Utah driving privilege card. He has no document

15 establishing that the federal government is aware that he is in the country and has

16 allowed him to be free while his immigration case proceeds. Plaintiff John Doe #1

17 is afraid that if HB 497 takes effect he will be detained for a prolonged period if

18 stopped by law enforcement for any reason because he does not have one of the

19 four documents establishing presumption of lawful status under HB 497. In

20 addition, John Doe #1 is afraid that if he is detained for even a brief period of time

21 it could violate the terms of his release program. If HB 497 is implemented,

22 Plaintiff John Doe #1 will reduce his driving substantially in order to avoid

23 encounters with law enforcement. As a result, he will not be able to attend church

24 as often as he usually does—five days a week.

25

26. Plaintiff Milton Ivan Salazar-Gomez is a resident of west Salt Lake

26 City, Utah. He has lived in the United States for nearly his entire life. He is a

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2 Mexican national who was brought by his parents to the United States when he

3 was ten months old. The United States is the only country that he knows as his

4 home. He has two U.S. citizen children. In August 2010, he was stopped by a

5 sheriff’s deputy because the registration tags on his car had expired. Although the

6 deputy did not ticket Mr. Salazar-Gomez for the expired tags, he did turn Mr.

7 Salazar-Gomez over to federal immigration officials. After two months in

8 immigration detention, Mr. Salazar-Gomez was ordered released after he paid an

9 immigration bond. Mr. Salazar-Gomez’s immigration case is moving forward and

10 he is contesting his removability from the United States. Mr. Salazar-Gomez is

11 extremely fearful of being stopped and detained by local law enforcement officers

12 if HB 497 takes effect because although he has a Utah driving privilege card he

13 has no document that he could produce to satisfy law enforcement officers that he

14 is known to federal immigration officials but has been ordered release on bond.

15 As a result, Plaintiff Salazar-Gomez will greatly curtail his travel and activities

16 outside of his home if HB 497 is implemented.

17

27. Plaintiff Eliana Larios is a U.S. citizen and resident of the State of

18 Washington, where she has lived for the past three years. Plaintiff Larios has a

19 Washington State driver license. Prior to living in Washington, Plaintiff Larios

20 lived in Salt Lake City for over ten years. She still has many family members and

21 friends who live in Utah, whom she visits on a regular basis. Plaintiff Larios

22 travels to Utah at least a few times a year to visit family and friends. When she

23 visits Utah, she usually travels only with her Washington State driver license. This

24 year, Plaintiff Larios was planning to visit Utah approximately five times, however

25 because of the passage of HB 497, she will curtail her travel to Utah for fear that

26 presenting her Washington driver license will subject her to police interrogation

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2 and detention because of her Latina appearance and the fact that her home state

3 does not verify immigration status as a prerequisite to issuance of its driver

4 licenses. In addition, some of Plaintiff Larios’ family and friends living in Utah

5 are undocumented. When she is in Utah, she regularly travels with them

6 throughout the state, however because of HB 497, Plaintiff Larios fears that

7 driving her undocumented family and friends could subject her to liability under

8 the provisions that criminalize encouraging or inducing undocumented individuals

9 to remain in the state. As a result, Plaintiff Larios will limit her driving of her

10 undocumented family and friends, if HB 497 takes effect.

11

28. Plaintiff Alicia Cervantes is a U.S. citizen, born in Utah, where she

12 lives with her four children. Plaintiff Cervantes is Latina. Approximately one

13 month ago, Plaintiff Cervantes was driving in the South Salt Lake area when she

14 was pulled over by a police officer. Although she was driving the speed limit, the

15 officer told Plaintiff Cervantes that he pulled her over because he thought she was

16 driving a stolen vehicle. With no other explanation, Plaintiff Cervantes was let go.

17 Plaintiff Cervantes feels that she was targeted by the police officer because of her

18 Latina appearance and because she was listening to Mexican music. When

19 Plaintiff Cervantes drives in Utah, she usually carries only her Utah driver license,

20 issued on February 4, 2009. She fears that if HB 497 goes into effect, she will be

21 subject to police interrogation and detention based on her Latina appearance.

22 Because Plaintiff Cervantes has a Utah driver license that was issued before 2010,

23 this document does not entitle her to a presumption of lawful presence under HB

24 497. Only Utah driver licenses issued after January 1, 2010 give rise to this

25 presumption according to the law. As a result, Plaintiff Cervantes fears being

26 subjected to prolonged detention by law enforcement after HB 497 takes effect

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2 because she does not regularly carry either her U.S. passport or other

3 documentation to show that she is a U.S. citizen out of fear that she will lose them.

4 Plaintiff Cervantes’ boyfriend is undocumented and she drives with on a daily

5 basis. She also has undocumented family and friends whom she drives to various

6 places about twice a week. If HB 497 is implemented, Plaintiff Cervantes is afraid

7 that she will be subjected to prolonged interrogation and detention by law

8 enforcement officers if she is stopped while driving her boyfriend or

9 undocumented family members or friends. Plaintiff Cervantes will limit her

10 driving with undocumented family, friends, and her boyfriend because of her fear

11 that doing so may lead to inquiries into their immigration status. Plaintiff

12 Cervantes feels the passage of HB 497 has contributed to an increase in anti-

13 immigrant sentiment in the state. Recently her daughter reported to her that

14 classmates have been saying “Send the Mexicans home.” Plaintiff Cervantes feels

15 that her daughter should not have to hear statements like this.

16

29. Plaintiff John Doe #2 is a U.S. citizen who was born and raised in

17 Salt Lake City Utah. He is White and speaks Spanish fluently. Because he speaks

18 Spanish fluently people often think he is Latino. Plaintiff John Doe #2’s wife is a

19 Guatemalan national who is currently undocumented. His wife has a prior

20 deportation order against her. She is currently in federal immigration proceedings

21 that have been stayed pending the outcome of her application for a U-visa based

22 on her assistance in helping law enforcement prosecute a crime. Even though the

23 federal government is aware of her presence in the country, they have not opted to

24 detain her. John Doe #2 is afraid that if HB 497 takes effect and he is driving with

25 his wife, she could be subject to prolonged detention because she cannot easily

26 prove that the federal government is aware that she is in the country. John Doe

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2 #2’s wife does not have a document that shows that the government is aware of her

3 presence and has opted not to detain her. In addition, John Doe #2 regularly drives

4 undocumented people to church on Tuesdays and Sundays. He is concerned that if

5 HB 497 is implemented that he could be stopped and accused of smuggling

6 immigrants under the law and that the immigration status of everyone in his car

7 would be verified. John Doe #2 is also a Scout Master for the Latino unit of the

8 Boy Scouts. Most of the scouts in that group are undocumented and John Doe #2

9 regularly drives them to scouting events around the state. If HB 497 takes effect

10 John Doe #2 will drive his church friends and his boy scout troop less out of fear

11 that he will be stopped by law enforcement and potentially subject to prosecution

12 for alien smuggling or for encouraging immigrants to remain in the State of Utah.

13

Defendants

14

30. Defendant Gary Herbert is the Governor of Utah. According to Utah

15 law, the Governor is responsible for “supervis[ing] the official conduct of all

16 executive and ministerial officers” and “see[ing] that all offices are filled and the

17 duties thereof performed.” Utah Code Ann. § 67-1-1. As such, Defendant Herbert

18 is responsible for the enforcement of HB 497 in the State of Utah. Defendant

19 Herbert is sued in his official capacity.

20

31. Defendant Mark Shurtleff is the Attorney General of Utah.

21 According to Utah law, the Attorney General’s powers and duties include:

22 “defend[ing] all causes to which . . . any officer, board, or commission of the state

23 in an official capacity is a party.” Utah Code Ann. § 67-5-1(2). In addition, under

24 Utah law, the Attorney General shall: “exercise supervisory powers over the

25 district and county attorneys of the state in all matters pertaining to the duties of

26 their offices.” Utah Code Ann. § 67-5-1(6). As such, Defendant Shurtleff is

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2 responsible for the enforcement of HB 497 in the State of Utah. Defendant

3 Shurtleff is sued in his official capacity.

4

FACTUAL ALLEGATIONS

5

History and Intent of the Three Bills

6

32. On March 7 and 8, 2011, the Utah Legislature enacted three pieces of

7 legislation (HB 497, HB 116, and HB 469), which together comprise a

8 comprehensive system of state laws touching upon virtually every aspect of

9 immigration regulation. The full text of HB 497, which is the subject of this

10 challenge, is attached hereto as Exhibit 1 and incorporated herein by reference.

11

33. Although four separate state immigration laws were signed by

12 Governor Herbert on March 15, 2011, these bills are widely regarded as a package 13 meant to work together to implement Utah’s vision for immigration reform.1 The

14 legislators’ statements during the floor debates on these bills make clear that the

15 legislature intended the laws to work hand-in-hand to achieve a comprehensive

16 and new Utah vision for state immigration regulation. For example, several

17 legislators commented that it was essential to enact the enforcement provisions in

18 HB 497 side-by-side with the provisions allowing for the sponsorship of

19 immigrants to Utah in HB 469 and the state “guest worker” program in HB 116.

20 See Debate on H.B. 116 Before the House, Day 30 (2011) (remarks of Rep.

21 Wright) (“[W]e can have enforcement, and we can also have guest worker

22 [legislation], we can coordinate these things and they can go hand-in-hand to be

23 able as a state to accomplish what we really want to accomplish”); see also Debate

24 1 HB 466, which was also signed by Governor Herbert on the same day does not
25 create a new state immigration scheme, but rather calls for the creation of a commission to study a possible program between the state of Utah and the
26 Mexican State of Nuevo Leon to encourage promotion of federal non-immigrant visas.

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2 on H.B. 469 Before the Senate, Day 43 (2011) (remarks of Sen. Niederhauser)

3 (“[HB 497] works in conjunction with and not in opposition to other legislation

4 that has already passed”); Debate on H.B. 116 Before the House, Day 30 (2011)

5 (remarks of Rep. Draxler) (calling the combination of the guest worker and

6 enforcement bills a “pragmatic approach to trying to deal with this situation” and

7 noting that “[w]e need this kind of approach [HB 116], side-by-side with stricter

8 enforcement [HB 497],” and that HB 497, “deal[ing] with enforcement, will not by

9 itself help this problem go away.”). Thus, the legislative history makes clear that

10 the Utah legislature intentionally enacted HB 497 along with HB 116, and HB 469

11 as a comprehensive solution to the perceived problem of the federal government’s

12 failure to regulate immigration to Utah’s liking.

13

34. Of the new Utah immigration laws, only HB 497 is expected to take

14 effect in 2011.2 Absent court intervention, HB 497 is due to be implemented on

15 May 10, 2011.

16

35. In enacting these state immigration bills, Utah legislated in an area

17 committed to the federal government under the U.S. Constitution. Indeed, Utah

18 expressly intended not only to intrude into an area of exclusive federal control but

19 indeed to supplant the federal government. The legislative debate on these bills

20 makes clear that a key motivating factor in passing these laws was the state

21 legislature’s disagreement with the federal government’s handling of immigration

22 policy. For example, during the debate on HB 497, Senator Dayton commented:

23 2 HB 469 provides for the Governor to implement the program by no later than

24

July 1, 2013 and to end the program on June 30, 2018. Utah Pilot Sponsored Resident Immigrant Program Act, H.B. 469, 2011 Gen. Session Ch. 20 (2011).

25 HB 116 is to take effect the sooner of the date 120 days after the state is granted a federal waiver, exemption, or authorization for the program, or on July 1, 2013.

26 Utah Immigration Accountability and Enforcement Amendments, H.B. 116, 2011 Gen. Session Ch. 18 (2011).

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2 “[O]ne of the few and defined duties of the federal government is to protect our

3 borders and they are utterly failing to do their duty.” Debate on H.B. 497 Before

4 the Senate, Day 39 (2011). Similarly, during the debate on HB 469,

5 Representative Ivory asked rhetorically: “Having assumed power over

6 immigration, how well has the federal government exercised that power that it’s

7 usurped? We see a border that’s completely porous. In fact, southern states have a

8 war zone on their borders. We see that the federal government, in assuming

9 powers never delegated to it, has done largely what the federal government is good

10 at, and that is destroying things.” Debate on H.B. 469 Before the House, Day 38

11 (2011). During the same debate, the Sponsor of HB 469, Representative Dougall,

12 commented that the federal government had failed in its handling of immigration

13 as evidenced by “the problems that we face in regards to a broken immigration

14 process.” Debate on H.B. 469 Before the House, Day 38 (2011). During the

15 House debate on HB 116, Representative Sagers commented: “[I]t’s shameful that

16 the federal government cannot take the position they need to and lead on this

17 matter.” Debate on H.B. 116 Before the House, Day 30 (2011).

18

36. Without question, the Governor and the Utah legislature intended to

19 supplant the federal government’s authority over immigration with this state

20 package of immigration laws. In signing the bills into law, Governor Gary Herbert

21 called the package a “Utah solution.” See Press Release, Governor Herbert Signs

22 Immigration Reform Legislation (Mar. 15, 2011). Previously, in response to an

23 earlier version of HB 497 Governor Herbert had stated: “Absent any meaningful

24 leadership from the federal government on this issue, individual states are being

25 forced to take up the charge.” See Press Release, Governor Herbert Issues

26 Statement on Illegal Immigration Reform in Utah (Aug. 13, 2010).

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2

37. In addition, during the legislative debate on these three state

3 immigration bills, several legislators expressly stated that they intended for the

4 State of Utah to wrest control over immigration regulation away from the federal

5 government. For example, Senator Dayton stated during debate on HB 497:

6 “What we have in this bill are federal laws put into state statutes so that we can

7 enforce the federal laws since the federal government is not.” Debate on H.B. 497

8 Before the Senate, Day 39 (2011). She explained that HB 497 “empowers law

9 enforcement to enforce, on the state level, federal law.” Id.

10

38. Similarly, during the debate on HB 469 several legislators indicated a

11 clear intent to take over immigration regulation from the federal government. For

12 example, the sponsor, Representative Dougall stated: “This bill also recognizes

13 that historically . . . the states ran immigration for about the first 100 years of our

14 nation before the feds started assuming more and more authority over immigration.

15 And so this recognizes and speaks to the states’ rights issue regarding

16 immigration.” Debate on H.B. 469 Before the House, Day 38 (2011). Contrary to

17 the Supremacy Clause and settled Supreme Court jurisprudence, Representative

18 Ivory stated during the debate on HB 469 that he “applaud[ed]” the bill’s sponsor

19 for “reclaiming a right that was never delegated [to the federal government] and

20 exercising power over immigration in the state of Utah.” Debate on H.B. 469

21 Before the House, Day 38 (2011). In addition, Representative Dougall also stated

22 in response to a question about the bill’s constitutionality by the Legislative

23 Research and General Counsel: “if that means that we need to push back against

24 the federal government and the tradition [of federal control over immigration] that

25 built up in the courts, I would suggest that we push back.” Debate on H.B. 469

26 Before the House, Day 38 (2011). He also stated, “I would suggest that there is a

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2 lot of wrongness, if that is a word, with what the Supreme Court has said in

3 regards to immigration. I believe that states who deal with the frontline benefits

4 and issues, [and] challenges regarding immigration stand in the best position to

5 deal with it.” Id.

6

Key Provisions of HB 497

7

39. HB 497 establishes a comprehensive state immigration enforcement

8 scheme complete with new state immigration crimes and immigration verification

9 requirements for state and local law enforcement officials conducting field stops.

10 The interrelated provisions of HB 497 work together to compel law enforcement

11 officers to investigate individuals’ immigration status—a complex question of

12 federal law—and authorizes law enforcement officers to make warrantless arrests

13 on immigration grounds in situations where even federal immigration officers

14 would not be authorized to make an arrest. HB 497 also sets out new state crimes

15 related to unlawful presence in the country and requires state officers and

16 prosecutors to take over enforcement of 8 U.S.C. § 1306, a federal misdemeanor

17 criminal statute penalizing certain violations of a federal registration scheme that is

18 now obsolete in key respects.

19

40. Under HB 497, law enforcement officers must demand that

20 individuals they lawfully stop, detain, or arrest produce one of four enumerated

21 types of identity documents. Utah Code Ann. §§ 76-9-1004. Only individuals

22 who can produce a document from this statutory list receive a presumption of

23 lawful status in the country. Id. Other individuals will be subject to immigration

24 status verification on a mandatory or discretionary basis, depending on the

25 circumstances of their initial stop. This “show me your papers” provision requires

26 Utah police officers to verify immigration status at the outset of every stop; only

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2 documents that require proof of immigration status as a pre-condition for issuance

3 will satisfy the documentation requirement and allow a person to avoid having the

4 stop extended for a lengthy and intrusive immigration status investigation.

5

41. Under HB 497, immigration verification is required where (1) the

6 stop or arrest concerns a suspected class A misdemeanor or felony, (2) the

7 individual is unable to provide the officer with a qualifying document, and (3) the

8 officer is “otherwise unable to verify the identity of the person.” Utah Code Ann.

9 § 76-9-1003(1). Immigration status verification is also required in any case where

10 a suspect is arrested and booked on a class B or C misdemeanor. Id. Finally,

11 immigration status verification is required when an individual is “arrested or

12 booked into a jail, juvenile detention facility, or correctional facility” for any of

13 these types of offenses. Utah Code Ann. § 76-9-1003(3) (emphasis added). This

14 would include instances where individuals are cited with minor traffic violations,

15 even though under current police practices these individuals would usually be

16 released after a citation is given.

17

42. In addition, for any stops based on suspected B or C misdemeanors,

18 the law authorizes officers to verify status. Utah Code Ann. § 76-9-1003(1)(a)(ii).

19

43. The statute also requires that a law enforcement officer must detain

20 all occupants of the vehicle while their immigration status is verified any time the

21 officer develops “reasonable suspicion” that any occupant in that vehicle is

22 violating the newly created provision of state law that makes it a crime to transport

23 or smuggle “illegal aliens.” Utah Code Ann. § 76-9-1003(2).

24

44. HB 497 invites racial profiling by law enforcement officials. First,

25 the law allows an officer to deny the presumption of lawful status to individuals

26 who provide one of the four enumerated types of identity documents specified in

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2 HB 497 if “the officer has a reasonable suspicion that the document is false or

3 identifies a person other than the person providing the document.” Utah Code

4 Ann. § 76-9-1004. This caveat permits a police officer to second-guess an

5 individual’s documentation, opening the door to racial profiling and discrimination

6 based on an individual’s appearance, language choice, or English-language ability.

7 Second, section 76-9-1004 affords a presumption of citizenship or nationality

8 status for individuals who affirm to a law enforcement officer that they are U.S.

9 citizens or nationals, “unless the officer has a reasonable suspicion that the

10 statement or affirmation is false.” Id. This provision similarly permits a police

11 officer to discredit an individual’s affirmation, which necessarily entails a high

12 risk of discrimination based on stereotypes about what an undocumented

13 immigrant might look or sound like.

14

45. HB 497 also allows state or local law enforcement officials to make

15 warrantless arrests when the officer has “reasonable cause” to believe the

16 individual is an alien who is (1) subject to a removal order by an immigration

17 judge; (2) subject to an immigration detainer request; or (3) charged or convicted

18 in another state with one or more “aggravated felonies” as defined by federal

19 immigration law. Utah Code Ann. § 77-7-2. This provision will result in unlawful

20 detentions without suspicion of criminal wrongdoing while state and local

21 enforcement officers attempt to verify federal immigration information. In

22 addition, this provision inappropriately requires state and local law enforcement

23 officials to make independent assessments of an individual’s federal immigration

24 status as well as what offenses qualify as aggravated felonies, both complex

25 questions of immigration law. Moreover, it authorizes the warrantless arrest of

26 individuals who are not subject to removal or detention under federal law.

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2

46. HB 497 also prohibits any state or local governmental agency, or any

3 representative of such an agency, from having any policy limiting or restricting the

4 authority of any law enforcement agency to investigate or enforce violations of the

5 federal misdemeanor offenses of willful failure to register as an alien or willful

6 failure to personally possess an alien registration document, under 8 U.S.C. §§

7 1304(e) and 1304(a). Utah Code Ann. § 76-9-1006(2). These federal code

8 provisions were designed to create a single, uniform, national scheme. The

9 preemptive effect of the federal alien registration scheme was expressly

10 recognized by the President of the United States when the scheme was created and

11 has been expressly upheld by the U.S. Supreme Court, and the provisions are not

12 susceptible to enforcement by state or local officers.

13

47. The federal alien registration provisions have long been regarded as

14 obsolete, impracticable to enforce, and outside the federal government’s

15 enforcement priorities.

16

48. For example, the federal regulation implementing 8 U.S.C. §§ 1302,

17 1304, and 1306 specifies forms that will serve as “evidence of registration.” See 8

18 C.F.R. § 264.1. The list, however, has not been kept up to date with current

19 federal immigration forms and procedures. As a result, there are categories of

20 noncitizens who have applied for immigration benefits, have been granted a lawful

21 status in the United States, or whose presence in the country is otherwise known

22 to federal immigration agencies, but who do not have registration documents that

23 would satisfy the federal regulation.

24

49. The Bureau of Justice Services reports that there have been only 30

25 prosecutions for misdemeanor offenses of 8 U.S.C. §§ 1304(e) and 1306(a) in the

26

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2 past 15 years. Decl. of Susan T. Boyd, Friendly House, et al., v. Whiting, No. 10-

3 1061 (June 14, 2010).

4

50. HB 497’s provisions not only improperly require enforcement of the

5 federal alien registration scheme, but they also impose a state alien registration

6 scheme by requiring non-citizens to obtain and carry specific documents if they

7 wish to avoid lengthy and intrusive immigration status investigation and

8 verification at the hands of Utah state and local police.

9

51. Section 10 of HB 497 also creates a new state criminal offense of

10 encouraging or inducing a non-citizen “to come to, enter, or reside” in Utah

11 “knowing or in reckless disregard of the fact” that the non-citizen’s “coming to,

12 entry, or residence is or will be in violation of law,” as well as other related

13 offenses. Utah Code Ann. § 76-10-2901(2)(c). Federal law already establishes

14 penalties for the conduct covered in Section 10.

15

Comprehensive Federal Immigration System

16

52. The federal government has exclusive power over immigration

17 matters. The U.S. Constitution grants the federal government the power to

18 “establish a uniform Rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4, and to

19 “regulate Commerce with foreign Nations,” U.S. Const. art. I, § 8, cl. 3. In

20 addition, the Supreme Court has held that the federal government’s power to

21 control immigration is inherent in the nation’s sovereignty.

22

53. The U.S. Congress has created a comprehensive system of federal

23 laws regulating and enforcing immigration in the Immigration and Nationality Act

24 (“INA”). See 8 U.S.C. § 1101 et seq. This extensive statutory scheme leaves no

25 room for supplemental state immigration laws.

26

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2

54. The federal government has also issued numerous regulations,

3 policies, and procedures interpreting the provisions of the INA and has established

4 a large and complex administrative apparatus to carry out its mandates.

5

55. The INA carefully calibrates the nature (criminal or civil) and degree

6 of penalties applicable to each possible violation of its terms.

7

56. The INA contains complex and exclusive procedures for determining

8 immigration and citizenship status, deciding whether the civil provisions of the

9 immigration laws have been violated, and determining whether an individual may

10 lawfully be removed from the United States.

11

57. Under the INA, a non-citizen’s immigration status may be fluid and

12 subject to change over time. For example, a non-citizen who enters the United

13 States with authorization, with a student visa for example, may overstay and thus

14 no longer be in status. Conversely, a non-citizen who enters the United States

15 without authorization may subsequently gain lawful status, such as through a

16 successful asylum application or U-visa application.

17

58. Under federal law, there is no single, readily ascertainable category or

18 characteristic that establishes whether a particular person may or may not remain

19 in the United States. The answer to that question is a legal conclusion that can

20 only be reached through the processes set forth in the INA and may depend on the

21 discretionary determinations of federal officials.

22

59. There are many non-citizens who are present in the United States

23 without formal permission who lack the documents that would establish a

24 presumption of “lawful presence” under HB 497, yet would not be removed if

25 placed in federal removal proceedings or who actually have temporary permission

26 from the federal government to be in the United States. For example, an

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2 individual without federal immigration status may be eligible for a form of

3 immigration relief, such as asylum, adjustment of status, or withholding of

4 removal. Some of these individuals are known to the federal government; others

5 will not be identified until they are actually placed in proceedings by the federal

6 government and their cases are adjudicated. In addition, some individuals like

7 those granted Temporary Protected Status due to turmoil or natural disasters in

8 their native countries have permission to be in the United States, but are unlikely

9 to have one of the enumerated identity documents that establish a presumption of

10 lawful presence under HB 497.

11

60. Federal immigration agencies, such as U.S. Immigration and Customs

12 Enforcement or U.S. Customs and Border Protection, do not and cannot determine

13 whether a particular person may remain in the United States, or whether a

14 particular person has been charged with or convicted in another state with one or

15 more “aggravated felonies” as defined by immigration law, without going through

16 the complex procedures set forth in the INA. Federal agencies similarly do not

17 and cannot determine definitively, in response to a demand from a state or local

18 official, whether an individual is “unlawfully present” or has “authorization to

19 remain in the United States” as those phrases are used in HB 497. The federal

20 databases that are searched when performing an immigration status query are not

21 set up to make final determinations of whether an individual has federally

22 authorized immigration status. The federal immigration agencies can only

23 determine whether they believe a non-citizen may be charged with deportability.

24 A determination of whether an individual has federal immigration authorization is

25 a complex administrative process that may take years, and where the federal

26 government often exercises its prosecutorial discretion. In addition, not all

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2 inquiries into the federal government’s verification system as established under 8

3 U.S.C. §1373(c) yield a definitive response. Plaintiffs’ Motion for Preliminary

4 Injunction, Exh. 3, U.S. v. Arizona, No. 10-1413 (D. Ariz., July 7, 2010). In fact,

5 as of June 2010, inquiries into this system took under the best case scenario an

6 average of 81 minutes to process and in some cases took two days or more when a

7 review on an individual’s file was required. Id.

8

61. Furthermore, determining whether a person is a citizen of the United

9 States can be a complex and counterintuitive process. U.S. citizens are not

10 required to carry documentary proof of their citizenship. There is no national

11 database that contains information about every U.S. citizen. Some people are

12 actually unaware of their U.S. citizenship because they may have acquired U.S.

13 citizenship at birth by operation of law due to their parents’ citizenship, despite not

14 being born in the United States. See, e.g., 8 U.S.C. § 1433. Others automatically

15 obtained citizenship when their parents became naturalized U.S. citizens. See,

16 e.g., 8 U.S.C. § 1431.

17

62. HB 497’s creation of a state immigration verification system

18 fundamentally conflicts with the INA’s statutory scheme, impermissibly

19 encroaches on the federal government’s exclusive power to regulate immigration,

20 and will lead to erroneous determinations and unlawful detention by state and local

21 officials.

22

63. Mere presence inside the United States without federal immigration

23 status is not a criminal offense. Rather, it is a civil violation under federal

24 immigration law.

25

64. Moreover, HB 497 conflicts with and is preempted by provisions of

26 the INA that set forth comprehensive federal schemes addressing the participation

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2 of state and local law enforcement in immigration enforcement and the ability to

3 make warrantless arrests for civil immigration violations.

4

65. State and local law enforcement officers have no general authority to

5 enforce federal civil immigration law. Federal law specifically authorizes state

6 officers to assist in immigration enforcement only in narrowly defined

7 circumstances, and otherwise reserves immigration enforcement authority to the

8 federal government.

9

66. Section 1357(g) of Title 8 of the U.S. Code allows the federal

10 government to “enter into a written agreement with a State, or any political

11 subdivision” to carry out “function[s] of an immigration officer in relation to the

12 investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C.

13 § 1357(g). These agreements are commonly referred to as “287(g) agreements”

14 after the section of the INA in which they are codified. Such agreements,

15 however, may be entered into only if the federal government determines the state

16 officers are “qualified to perform a function of an immigration officer,” id., and

17 the federal government must train and supervise each officer who is authorized

18 under such an agreement. Currently, only two agencies in Utah have agreements

19 pursuant to this statutory provision—the Washington County Sheriff’s Office and

20 the Weber County Sheriff’s Office. See U.S. Immigration and Customs

21 Enforcement, Fact Sheet: Delegation of Immigration Authority Section 287(g)

22 Immigration and Nationality Act.

23

67. HB 497 violates the Constitution by granting state and local law

24 enforcement officers authority to make immigration determinations, civil arrests,

25 and investigations without and outside of the authority provided by a 287(g)

26 agreement. In addition, even with respect to the two counties in Utah with current

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2 287(g) agreements, these local officers are limited to making immigration status

3 inquiries of individuals who are already in local criminal custody. HB 497’s

4 provisions mandating or allowing immigration status verification by law

5 enforcement officials in the field conflicts with the limited manner in which the

6 federal government has allowed Utah law enforcement agencies to engage in the

7 enforcement of federal immigration law.

8

68. The other provisions in federal law authorizing state or local

9 participation in immigration enforcement are also carefully constrained. Federal

10 immigration statutes expressly authorize state and local police to make arrests for

11 exactly two immigration crimes—smuggling, transporting, or harboring criminal

12 aliens, and illegal entry by a previously deported felon. 8 U.S.C. §§ 1103(a)(10),

13 1252c. Another provision, 8 U.S.C. § 1103(a)(10), allows the U.S. Attorney

14 General to authorize “any State or local law enforcement officer” to enforce

15 immigration laws upon certification of “an actual or imminent mass influx of

16 aliens,” but no such certification has ever occurred.

17

69. Congress’s intent that state and local officers are generally prohibited

18 from enforcing civil immigration laws is clear both from the statutory scheme and

19 from the statements of its members.

20

70. Even as to federal immigration officers, the INA and associated

21 regulations impose significant restrictions on the circumstances in which

22 warrantless arrests may be made and the procedures that are required following

23 such arrests. 8 U.S.C. §§ 1357(a), (d); 8 C.F.R. §§ 287.1-287.3, 287.5, 287.8,

24 287.10. HB 497, in contrast, authorizes state and local officers to make

25 warrantless arrests even in circumstances where federal immigration agents would

26 not have such authority.

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2

HB 497 Interferes with the Federal Government’s Interests in a

3 Uniform Immigration System and Adversely Impacts Foreign Relations

4

71. HB 497 interferes with the core federal interests in setting a uniform

5 federal immigration scheme, as well as in conducting foreign relations with other

6 nations.

7

72. As recently as April 27, 2011, President Barack Obama criticized

8 state efforts to regulate immigration: “It is a mistake for states to try to do this

9 piecemeal. We can’t have 50 different immigration laws around the country.

10 Arizona tried this and a federal court already struck them down.” See Matthew

11 Bigg, “Obama criticizes new Georgia immigration law,” REUTERS, Apr. 26, 2011.

12

73. Utah’s immigration status verification scheme would invariably

13 undermine federal immigration enforcement priorities by subjecting countless

14 individuals in Utah to detention and referral to federal immigration officials

15 without regard for whether they would fit within federal immigration enforcement

16 priorities.

17

74. In addition, because immigration policy is inextricably intertwined

18 with foreign relations. Utah’s attempt to regulate immigration through HB 497

19 will adversely impact the United States’ ability to conduct foreign relations. HB

20 497 will undermine the ability of the U.S. government to speak with a single voice

21 about immigration, including communicating to foreign nations what their

22 nationals can expect when they come to visit or reside in the United States. State

23 attempts to interfere with these inherently federal issues can have severe impacts

24 on foreign relations.

25

26

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2

HB 497 Promotes Racial Profiling and Endangers Minority

3

Communities

4

75. HB 497 promotes an environment of rampant racial profiling by state

5 and local law enforcement officials. The law mandates immigration status

6 verification in certain circumstances and allows it in other instances. As a result,

7 law enforcement officers are likely to make decisions about whether to verify a

8 person’s immigration status, and whether to credit their affirmation of citizenship

9 or the reliability of their identity documents, based on the way they look or speak.

10 Law enforcement officers are most likely to verify the immigration status of

11 individuals they believe look or sound foreign.

12

76. Law enforcement officials across the country and in Utah have cited

13 concerns that HB 497 cannot be implemented in a race-neutral fashion and will

14 inevitably lead law enforcement officers to rely inappropriately on race and

15 ethnicity in making decisions about whom to subject to additional scrutiny with

16 questions regarding their immigration status. In addition, implementation of HB

17 497 will have a significant negative impact on the ability of local police to protect

18 immigrant communities. Because immigrants will avoid the police out of fear that

19 any interaction could lead to immigration status inquiries, Utah law enforcement

20 officers will not get the assistance they need to prosecute crimes. As Salt Lake

21 City Police Chief, Chris Burbank has recognized, “When we take into account race

22 or ethnicity in making decisions in whether or not to take enforcement action, it

23 compromises every single law enforcement agent throughout the state.” Lee

24 Davidson, Latino group to states: Copy Utah Compact, not its law, THE SALT

25 LAKE TRIBUNE, Apr. 20, 2011.

26

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2

CLASS ACTION ALLEGATIONS

3

77. The Individual Plaintiffs bring this action on behalf of themselves

4 and all other persons similarly situated pursuant to Federal Rules of Civil

5 Procedure 23(a) and 23(b)(2). The class, as proposed by Plaintiffs, consists of all

6 persons:

7

(a) who as a result of their race, national origin, customary

8

language, accent, or lack of certain documents are or will be subject

9

to stops, detention, arrest, or questioning about their immigration or

10

nationality status or required to produce documentation of that

11

status, pursuant to a provision of HB 497; or

12

(b) who are or will be deterred from living, associating,

13

worshipping, or traveling with immigrants in Utah because of the

14

provisions of HB 497; or

15

(c) who are or will be deterred from traveling into or through

16

the State of Utah because of the provisions of HB 497.

17

78. The requirements of Federal Rules of Civil Procedure 23(a) and

18 23(b)(2) are met here, in that the class is so numerous that joinder of all members

19 is impracticable.

20

79. There are questions of law and fact common to the proposed class,

21 including: (1) whether HB 497 is preempted by the U.S. Constitution and federal

22 law; (2) whether HB 497 violates the Fourth Amendment of the U.S. Constitution;

23 (3) whether HB 497 infringes on the Right to Travel of members of the proposed

24 class; and (4) whether HB 497 violates the Equal Protection clause of the U.S.

25 constitution and its equivalent under Utah law. These questions predominate over

26 any questions affecting only the Individual Plaintiffs.

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1

2

80. The claims of the Individual Plaintiffs are typical of the claims of the

3 proposed class.

4

81. All of the Individual Plaintiffs will fairly and adequately represent the

5 interests of all members of the proposed class because they seek relief on behalf of

6 the class as a whole and have no interests antagonistic to other members of the

7 class. The Individual Plaintiffs are also represented by pro bono counsel,

8 including the ACLU of Utah, the ACLU Foundation, and the National

9 Immigration Law Center, who have extensive expertise in class action litigation,

10 including litigation regarding the rights of immigrants. Finally, Defendants have

11 acted and will act on grounds generally applicable to the class in executing their

12 duties to enforce HB 497, thereby making appropriate final injunctive relief with

13 respect to the class as a whole.

14

DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS

15

82. An actual and substantial controversy exists between Plaintiffs and

16 Defendants as to their respective legal rights and duties. Plaintiffs contend that

17 they face an imminent threat of harm if HB 497 is enforced, and that this law

18 violates the U.S. Constitution, federal law, and state law. Defendants are obligated

19 to enforce this law unless it is found to be illegal.

20

83. In violating Plaintiffs’ rights under the U.S. Constitution, federal law,

21 and state law, Defendants have acted and will be acting under color of law.

22

84. If allowed to go into effect, HB 497 will cause irreparable injury to

23 Plaintiffs.

24

85. Plaintiffs have no plain, speedy, and adequate remedy at law against

25 HB 497 other than the relief requested in this Complaint.

26

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1

2

86. If HB 497 takes effect, the Plaintiffs and other individuals of color in

3 Utah will be subject to unlawful detention, arrest, and harassment including

4 plaintiffs Jane Doe #1, John Doe #1, Milton Ivan Salazar-Gomez, Alicia

5 Cervantes, members of Plaintiffs SEIU and Rocky Mountain Joint Board, and

6 members of the proposed plaintiff class.

7

87. If allowed to take effect, HB 497 would also violate the right of

8 Plaintiff Eliana Larios, as well as members of the proposed plaintiff class, to travel

9 into and throughout Utah.

10

88. In addition, the laws will thwart the missions of organizational

11 Plaintiffs Centro, UCLR, and CUP by forcing them to continue to spend more time

12 and resources on HB 497 and immigration enforcement matters rather than other

13 pressing organizational priorities, and by deterring their members from

14 participating in membership activities.

15

89. In doing the things alleged in this Complaint, Defendants will deny

16 Plaintiffs’ rights secured by the U.S. Constitution, federal law, and state law.

17

90. Defendants’ enforcement of HB 497 will constitute an official policy

18 of the state of Utah.

19

91. Plaintiffs are entitled to a declaration that HB 497 is unconstitutional

20 on its face and to an order preliminarily and permanently enjoining its

21 enforcement.

22

CAUSES OF ACTION

23

COUNT ONE

24

SUPREMACY CLAUSE; 42 U.S.C. § 1983

25

92. The foregoing allegations are repeated and incorporated as though

26 fully set forth herein.

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1

2

93. The Supremacy Clause, Article VI, Section 2, of the U.S.

3 Constitution provides:

This Constitution, and the Laws of the United States which shall

4

be made in Pursuance thereof; and all Treaties made, or which

shall be made, under the Authority of the United States, shall be

5

the supreme Law of the Land; and the Judges in every State shall

6

be bound thereby, any Thing in the Constitution of Laws of any

State to the Contrary notwithstanding.

7

94. The Supremacy Clause mandates that federal law preempts state law

8 in any area over which Congress expressly or impliedly has reserved exclusive

9 authority or which is constitutionally reserved to the federal government, or where

10 state law conflicts or interferes with federal law.

11

95. HB 497 is void in its entirety because it attempts to bypass federal

12 immigration law and to supplant it with a state policy of immigration enforcement,

13 in violation of the prohibition on state regulation of immigration.

14

96. HB 497 conflicts with federal laws and policies, usurps powers

15 constitutionally vested in the federal government exclusively, attempts to legislate

16 in fields occupied by the federal government, imposes burdens and penalties on

17 legal residents not authorized by and contrary to federal law, and unilaterally

18 imposes burdens on the federal government’s resources and processes, each in

19 violation of the Supremacy Clause.

20

COUNT TWO

21

FOURTH AMENDMENT; 42 U.S.C. § 1983

22

97. The foregoing allegations are repeated and incorporated as though

23 fully set forth herein.

24

98. The Fourth Amendment to the U.S. Constitution prohibits

25 “unreasonable searches and seizures.” The Fourth Amendment’s guarantees are

26 applied to the States through the Fourteenth Amendment.

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1

2

99. HB 497 requires that officers unreasonably prolong seizures of

3 individuals without reasonable suspicion of criminal activity, in violation of the

4 Fourth Amendment.

5

100. Section 11 of HB 497 provides for warrantless arrests of individuals

6 in the absence of probable cause that they have committed crimes, in violation of

7 the Fourth Amendment.

8

101. Sections 3, 4, and 5 of HB 497 authorize officers to detain individuals

9 without reasonable suspicion of unlawful activity for purposes of investigating

10 their immigration status and transporting them into federal custody, in violation of

11 the Fourth Amendment.

12

COUNT THREE

13

PRIVILEGES AND IMMUNITIES; RIGHT TO TRAVEL; 42 U.S.C.

14

§ 1983

15

102. The foregoing allegations are repeated and incorporated as though

16 fully set forth herein.

17

103. The Privileges and Immunities Clause of the U.S. Constitution,

18 Article IV, Section 2, Clause 1, provides that “[t]he Citizens of each State shall be

19 entitled to all Privileges and Immunities of Citizens in the several States.”

20

104. Similarly, the Privileges and Immunities Clause of the Fourteenth

21 Amendment to the U.S. Constitution provides that “[n]o State shall make or

22 enforce any law which shall abridge the privileges or immunities of citizens of the

23 United States.”

24

105. All residents in the United States enjoy a fundamental right to travel,

25 which has also been held to derive from the Equal Protection Clause of the U.S.

26 Constitution as well as the Commerce Clause.

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Case 2:11-cv-00401-CW Document 2 Filed 05/03/11 Page 40 of 44

1

2

106. The constitutional right to travel prevents states from burdening,

3 penalizing, or infringing upon the right to travel, including the right to be treated

4 as a welcome visitor rather than an unfriendly alien when temporarily present in

5 another state, without a rational or compelling justification.

6

107. Sections 76-9-1003 and 76-9-1004 of HB 497 subjects those out-of-

7 state residents who lack certain documents and appear to a law enforcement officer

8 to not to be “citizens or nationals” of the United States to investigation and

9 detention pending a determination of immigration status if they do not present an

10 identification document deemed acceptable by the State of Utah.

11

108. HB 497 thus interferes with the rights of such out-of-state citizens to

12 travel freely through the State of Utah without being stopped, interrogated, and

13 detained.

14

COUNT FOUR

15

EQUAL PROTECTION CLAUSE; 42 U.S.C. § 1983

16

109. The foregoing allegations are repeated and incorporated as though

17 fully set forth herein.

18

110. The Fourteenth Amendment to the U.S. Constitution provides that

19 “No State shall . . . deny to any person within its jurisdiction the equal protection

20 of the laws.”

21

111. HB 497 impermissibly targets individuals who do not possess one of

22 an enumerated set of identity documents for differential treatment by law

23 enforcement officers. Individuals who do not have one of the favored identity

24 documents will be subject to prolonged detention and arrest by law enforcement

25 officers based solely on their lack of having a preferred document.

26

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Case 2:11-cv-00401-CW Document 2 Filed 05/03/11 Page 41 of 44

1

2

112. There is no valid justification for this differential treatment of state

3 residents or visitors.

4

113. As a result, HB 497 denies plaintiffs and other individuals lacking

5 one of the preferred identity documents residing or traveling in Utah of the equal

6 protection of the laws within the meaning of the Fourteenth Amendment to the

7 U.S. Constitution.

8

COUNT FIVE

9

VIOLATION OF ARTICLE I, SECTION 24 OF THE UTAH

10

CONSTITUTION

11

114. The foregoing allegations are repeated and incorporated as though

12 fully set forth herein.

13

115. Article I, section 24 of the Utah Constitution provides that “All laws

14 of a general nature shall have uniform operation.”

15

116. HB 497 violates the Utah Constitution by impermissibly targeting

16 and treating disparately similarly situated individuals who do not possess one of an

17 enumerated set of identity documents. Individuals who do not have one of the

18 favored identity documents will be subject to prolonged detention and arrest by

19 law enforcement officers based solely on their lack of having a preferred

20 document.

21

117. As a result, HB 497 denies Plaintiffs and other individuals lacking

22 one of the preferred identity documents the guarantee of uniform application of the

23 laws within the meaning Article I, Section 24 of the Utah Constitution.

24

COUNT SIX

25

EQUAL PROTECTION CLAUSE; 42 U.S.C. § 1983

26

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Case 2:11-cv-00401-CW Document 2 Filed 05/03/11 Page 42 of 44

1

2

118. The foregoing allegations are repeated and incorporated as though

3 fully set forth herein.

4

119. The Fourteenth Amendment to the U.S. Constitution provides that

5 “No State shall … deny to any person within its jurisdiction the equal protections

6 of the laws.”

7

120. Section 4 of HB 497 impermissibly discriminates against non-citizen

8 Plaintiffs on the basis of alienage and deprives them of the equal protection of the

9 laws within the meaning of the Fourteenth Amendment to the U.S. Constitution.

10 Section 4 affords a presumption of lawful presence to U.S. citizens and nationals

11 who make an oral affirmation or statement to a law enforcement officer as to their

12 status; however, Section 4 does not grant any presumption of lawful presence to

13 lawful permanent residents or other noncitizens who similarly affirm their lawful

14 immigration status.

15

COUNT SEVEN

16

VIOLATION OF ARTICLE I, SECTION 24 OF THE UTAH

17

CONSTITUTION

18

121. The foregoing allegations are repeated and incorporated as though

19 fully set forth herein.

20

122. Article I, section 24 of the Utah Constitution provides that “All laws

21 of a general nature shall have uniform operation.”

22

123. Section 4 of HB 497 violates the Utah Constitution by impermissibly

23 targeting and treating disparately similarly situated individuals. Under Section 4,

24 U.S. citizens and nationals are afforded a presumption of lawful presence when

25 they make an affirmation or statement to a law enforcement officer of their

26 citizenship or national status; however, the provisions of Section 4 do not grant

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1

2 any presumption of lawful presence to permanent residents or other noncitizens

3 with lawful immigration status who affirm their lawful presence.

4

124. As a result, Section 4 of HB 497 denies Plaintiffs the guarantee of

5 uniform application of the laws within the meaning Article I, Section 24 of the

6 Utah Constitution.

7

COUNT EIGHT

8

SECTION 1981; 42 U.S.C. § 1983

9

125. The foregoing allegations are repeated and incorporated as though

10 fully set forth herein.

11

126. Section 1981 of Title 42 of the United States Code guarantees that

12 “[a]ll persons within the jurisdiction of the United States shall have the same right

13 in every State and Territory . . . to the full and equal benefit of all laws and

14 proceedings for the security of persons and property.” Section 1981 also provides

15 that all persons “shall be subject to like punishments, pains, penalties, taxes,

16 licenses, and exactions of every kind, and to no other.”

17

127. Section 1981 prohibits discrimination under color of state law on the

18 basis of alienage, national origin, and race.

19

128. HB 497 impermissibly discriminates against persons within the State

20 of Utah on the basis of alienage and national origin and race.

21

PRAYER FOR RELIEF

22

WHEREFORE, in light of the foregoing facts and arguments, Plaintiffs

23 request that the Court:

24

a. Assume jurisdiction over this matter;

25

b. Declare that HB 497 is unconstitutional in its entirety;

26

c. Enjoin Defendants from enforcing HB 497;

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1

2

d. Grant Plaintiffs’ costs of suit, and reasonable attorneys’ fees and

3 other expenses pursuant to 28 U.S.C. § 1988; and

4

e. Grant such other relief as the Court may deem appropriate.

5

6

Dated: May 3, 2011

Respectfully submitted,

7

/s/ Karen C. Tumlin

NATIONAL IMMIGRATION LAW

8

CENTER

9 /s/ Cecillia D. Wang

10

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, IMMIGRANTS’

11

RIGHTS PROJECT

12

/s/ Darcy M. Goddard

13

AMERICAN CIVIL LIBERTIES UNION

OF UTAH FOUNDATION, INC.

14

/s/ Elora Mukherjee

15

AMERICAN CIVIL LIBERTIES UNION

16

FOUNDATION, RACIAL JUSTICE PROGRAM

17 /s/ Bradley S. Phillips

18

MUNGER, TOLLES & OLSON LLP

19

20

21

22

23

24

25

26

-44-

 
 Case 2:11-cv-00401-CW Document 37 Filed 05/06/11 Page 1 of 49

Linton Joaquin* Karen C. Tumlin* Shiu-Ming Cheer* Melissa S. Keaney* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 Telephone: (213) 639-3900 Facsimile: (213) 639-3911 joaquin@nilc.org tumlin@nilc.org cheer@nilc.org keaney@nilc.org
Omar C. Jadwat* Andre I. Segura* Elora Mukherjee* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 ojadwat@aclu.org asegura@aclu.org emukherjee@aclu.org
Attorneys for Plaintiffs
* Pro hac vice motion pending + Counsel for all plaintiffs except SEIU and
Workers’ United

Cecillia D. Wang* Katherine Desormeau* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 cwang@aclu.org kdesormeau@aclu.org
Darcy M. Goddard (USB No. 13426) Esperanza Granados (USB No. 11894) AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Facsimile: (801) 532-2850 dgoddard@acluutah.org egranados@acluutah.org
Bradley S. Phillips*+ MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 brad.phillips@mto.com

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

Utah Coalition of La Raza, et al.,

v. Gary R. Herbert, et al.,

Plaintiffs, Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Case No. 2:11-cv-00401-BCW
Judge: Hon. Brooke C. Wells

Case 2:11-cv-00401-CW Document 37 Filed 05/06/11 Page 2 of 49
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 FACTUAL BACKGROUND......................................................................................................... 2
Sections 3 and 4: Immigration Investigation and Detention by State and Local Officers...................................................................................................... 3 Section 6: Prohibiting Limits on State and Local Authority to Enforce Immigration Laws ................................................................................................. 5 Section 10: Criminalizing Harboring of Unauthorized Immigrants .................................. 6 Section 11: Authorizing Warrantless Arrests for Suspected Immigration Violations....................................................................................................... 6 Effect of HB 497’s Comprehensive Immigration Enforcement Provisions............................................................................................................................ 6 ARGUMENT.................................................................................................................................. 8 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS......................................... 9 A. Plaintiffs Are Likely To Succeed in Their Claim that HB 497
Violates the Supremacy Clause ....................................................................................... 9 1. HB 497 Constitutes Impermissible State “Regulation of
Immigration”........................................................................................................... 9 2. HB 497 Conflicts With Federal Immigration Law .................................................. 14
a. HB 497 Grants State and Local Officers Greater Authority to Make Arrests for Immigration Violations Than Federal Officers Have Under Federal Law............................................ 14
b. HB 497 Conflicts with Federal Laws Limiting State and Local Officers’ Authority To Enforce Civil Immigration Laws........................................................................................... 17
c. HB 497 Undermines Federal Policies and Priorities for Immigration Enforcement............................................................................... 21
d. HB 497 Is Preempted Because It Imposes a De Facto Alien Registration Requirement ..................................................................... 24
e. HB 497 Creates State Criminal Immigration Offenses that Are Preempted by Federal Laws.............................................................. 25
i

Case 2:11-cv-00401-CW Document 37 Filed 05/06/11 Page 3 of 49
B. Plaintiffs Are Likely To Succeed in Their Claim that HB 497 Violates the Fourth Amendment.................................................................................... 26 1. Sections 3 and 4 Violate the Fourth Amendment By Allowing for Prolonged Detention of Individuals Without Reasonable Suspicion of Illegal Activity................................................................. 27 2. Section 11 of HB 497 Violates The Fourth Amendment By Allowing Warrantless Arrests Without Any Criminal Predicate................................................................................................................... 31
C. Plaintiffs Are Likely To Prevail in Their Claim that HB 497 Violates the Constitutional Right To Travel.................................................................. 32
II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF HB 497 IS ALLOWED TO GO INTO EFFECT .................................................................... 35
III. THE BALANCE OF THE EQUITIES TIPS SHARPLY IN FAVOR OF GRANTING A PRELIMINARY INJUNCTION ........................................ 38
IV. PRELIMINARILY ENJOINING HB 497 WILL NOT BE ADVERSE TO THE PUBLIC INTEREST...................................................................... 39
CONCLUSION............................................................................................................................. 40 CERTIFICATE OF SERVICE ..................................................................................................... 41
ii

Case 2:11-cv-00401-CW Document 37 Filed 05/06/11 Page 4 of 49
TABLE OF AUTHORITIES
CASES Adams v. Baker, 919 F. Supp. 1496 (D. Kan. 1996)......................................................................39 Almendarez-Torres v. U.S., 523 U.S. 224 (1998) ..........................................................................35 Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003).......................................................................13 American Civil Liberties Union v. Johnson, 194 F.3d 1149 (10th Cir.
1999) ..........................................................................................................................................39 Arizona v. Johnson, 129 S. Ct. 781 (2009) ....................................................................................30 Atty. Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898 (1986)..................................................................33 Austin v. New Hampshire, 420 U.S. 656 (1975)............................................................................34 Bank One v. Guttau, 190 F.3d 844 (8th Cir.1999).........................................................................39 Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001)....................................................23 Carrasca v. Pomeroy, 313 F.3d 828 (3d Cir. 2002) ......................................................................20 Chamber of Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010) ..................................14, 39 Chy Lung v. Freeman, 92 U.S. 275 (1875)....................................................................................13 Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007)....................................................................31 Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) ..........................................14, 23, 26 Davida v. United States, 422 F.2d 528 (10th Cir. 1970) ...............................................................20 DeCanas v. Bica, 424 U.S. 351 (1976)....................................................................9, 10, 12, 13, 25 Devenpeck v. Alford, 543 U.S. 146 (2004) ....................................................................................32 Dunn v. Blumstein, 405 U.S. 330 (1972) .......................................................................................33 Edelman v. Jordan, 415 U.S. 651 (1974) ......................................................................................33 Fid. Fed. Sav. & Loan Ass’n. v. de la Cuesta, 458 U.S. 141 (1982) .............................................14 Florida v. Royer, 460 U.S. 491 (1983) ..........................................................................................28 Garrett v. City of Escondido, 465 F. Supp. 2d 1043 (S.D. Cal. 2006) ..........................................25 Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983) .......................................................19, 20 Goodlett v. Louisiana & Nashville R.R., 122 U.S. 391 (1887)......................................................35 Henderson v. Mayor of the City of New York, 92 U.S. 259 (1875) ...............................................13 Hines v. Davidowitz, 312 U.S. 52 (1941) ............................................................5, 9, 13, 24, 25, 40 Hodgers-Durgin v. De la Vina, 199 F.3d 1037 (9th Cir. 1999).....................................................19 Keirnan v. Utah Transit Authority, 339 F.3d 1217 (10th Cir. 2003).............................................38 Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001)......................................................................35 League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755 (C.D.
Cal. 1995)...................................................................................................................................12 Leavitt v. Utah Licensed Beverage Ass’n, 256 F.3d 1061 (10th Cir. 2001) ............................36, 39
iii

Case 2:11-cv-00401-CW Document 37 Filed 05/06/11 Page 5 of 49
Leocal v. Ashcroft, 543 U.S. 1 (2004)............................................................................................16 Manzanares v. Higdon, 575 F.3d 1135 (10th Cir. 2009)...............................................................28 Martinez-Medina v. Holder, __ F.3d __, 2011 WL 855791 (9th Cir. Mar.
11, 2011) ..............................................................................................................................19, 20 Mohammed v. Davis County, 2011 WL 65728 (D. Utah Jan. 10, 2011) .......................................28 Morales v. Trans World Airlines, 504 U.S. 374 (1992).................................................................35 Mount Olivet Cemetery Ass’n v. Salt Lake City, 164 F.3d 480 (10th Cir.
1998) ............................................................................................................................................9 Muehler v. Mena, 544 U.S. 93 (2005) .....................................................................................30, 31 Nat’l Ctr. For Immigrants’ Rights, Inc. v. INS, 743 F.2d 1365 (9th Cir.
1984) ..........................................................................................................................................39 Newton v. Buckley, No. 96-4202, 1997 WL 642085 (10th Cir. Oct. 17,
1997) ...........................................................................................................................................5 Padilla v. Kentucky, 130 S.Ct. 1473 (2010) ..................................................................................16 Pro-Choice Network of W.N.Y. v. Project Rescue W.N.Y., 799 F. Supp.
1417 (W.D.N.Y. 1992) ..............................................................................................................37 Romero v. Fay, 45 F.3d 1472 (10th Cir. 1995)..............................................................................31 Saenz v. Roe, 526 U.S. 489 (1999) ................................................................................................33 Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357 (1997) .................................................37 Shapiro v. Thompson, 394 U.S. 618 (1969).............................................................................32, 33 State v. Harmon, 910 P.2d 1196, 1199-1200 (Utah 1995) ..............................................................5 Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948)...........................................................10 Terry v. Ohio, 392 U.S. 1 (1968) ...................................................................................................27 Toll v. Moreno, 458 U.S. 1 (1982).................................................................................................10 United States v. Arizona, __ F.3d __, 2011 WL 1346945
(9th Cir. Apr. 11, 2011) .......................................................13, 18, 19, 20, 21, 23, 25, 26, 35, 40 United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010)...........................................5, 16, 35 United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995) .....................................................28 United States v. Choudhury, 461 F.3d 1097 (9th Cir. 2006) .........................................................31 United States v. Gonzalez-Lerma, 14 F.3d 1479 (10th Cir. 1994)...........................................27, 28 United States v. Guerrero-Espinoza, 462 F.3d 1302 (10th Cir. 2006) ..........................................30 United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988)............................................................27 United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) ..................................................................28 United States v. Janik, 723 F.2d 537 (7th Cir. 1983).....................................................................20 United States v. Lee, 73 F.3d 1034 (10th Cir. 1996) .....................................................................28 United States v. McRae, 81 F.3d 1528 (10th Cir. 1996)..........................................................28, 31 United States v. Patten, 183 F.3d 1190 (10th Cir. 1999)...............................................................28
iv

Case 2:11-cv-00401-CW Document 37 Filed 05/06/11 Page 6 of 49
United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984) .............................................20 United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001) ...............................................21 United States v. Santillanes, 848 F.2d 1103 (10th Cir. 1988) .......................................................31 United States v. Sokolow, 490 U.S. 1 (1989) .................................................................................27 United States v. Swarovski, 557 F.2d 40 (2d Cir. 1977)................................................................20 United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008) ...........................................................19, 28 United States v. Vasquez-Alvarez, 176 F.3d 129 (10th Cir. 1999) ................................................20 US Airways, Inc. v. O’Donnell, 627 F.3d 1318 (10th Cir. 2010) ....................................................9 Utah Licensed Beverage Assn. v. Leavitt, 256 F.3d 1061 (10th Cir. 2001).....................................9 Villas at Parkside Partners v. City of Farmers Branch, 701 F. Supp. 2d
835 (N.D. Tex. 2010)...........................................................................................................25, 39 Virginia v. Moore, 553 U.S. 164 (2008) ........................................................................................31 Whren v. United States, 517 U.S. 806 (1996)................................................................................31
STATUTES 8 C.F.R. § 287.3 ............................................................................................................................ 17 8 C.F.R. § 287.7(d) ....................................................................................................................... 15 8 U.S.C. § 1101(a)(43).................................................................................................................. 16 8 U.S.C. § 1101(a)(43)(F)............................................................................................................. 17 8 U.S.C. § 1101(a)(43)(G) ............................................................................................................ 17 8 U.S.C. § 1101(a)(43)(J) ............................................................................................................. 17 8 U.S.C. § 1101(a)(43)(R) ............................................................................................................ 17 8 U.S.C. § 1101(a)(43)(S)............................................................................................................. 17 8 U.S.C. § 1101(a)(43)(Q) ............................................................................................................ 17 8 U.S.C. § 1101(a)(43)(T)............................................................................................................. 17 8 U.S.C. § 1103(a)(10).................................................................................................................. 18 8 U.S.C. § 1187............................................................................................................................. 15 8 U.S.C. § 1225(b) ........................................................................................................................ 15 8 U.S.C. § 1227(a)(2)(A)(iii) ........................................................................................................ 16 8 U.S.C. § 1252c ........................................................................................................................... 19 8 U.S.C. § 1252c(a)....................................................................................................................... 19 8 U.S.C. § 1304(a) ........................................................................................................................ 23 8 U.S.C. § 1304(e) .............................................................................................................. 5, 23, 24 8 U.S.C. § 1306(a) .................................................................................................................... 5, 24 8 U.S.C. § 1324................................................................................................................... 6, 25, 26 8 U.S.C. § 1357(a)(2).................................................................................................................... 17
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8 U.S.C. § 1357(g) .................................................................................................................. 18, 19 8 U.S.C. § 1357(g)(1) ................................................................................................................... 18 8 U.S.C. § 1357(g)(3) ................................................................................................................... 18 8 U.S.C. § 1357(g)(5) ................................................................................................................... 18 8 U.S.C. § 1357(g)(10) ................................................................................................................. 19 8 U.S.C. § 1373(c) .......................................................................................................................... 4 HB 116 § 10, Utah Code Ann. § 63G-12-202(1)............................................................................ 2 HB 466 § 6, Utah Code Ann. § 63G-12-202 .................................................................................. 2 HB 466 § 6, Utah Code Ann. § 63G-12-301 .................................................................................. 2 N.M. Code R. § 18.19.5.12(D) ..................................................................................................... 34 N.M. Stat. Ann. § 66-5-9(B) (1978) ............................................................................................. 34 U.S. Const., Art. VI, cl. 2................................................................................................................ 9 Utah Code Ann § 76-9-1003(3) ...................................................................................................... 4 Utah Code Ann. § 53-13-103........................................................................................................ 12 Utah Code Ann. § 53-3-202.......................................................................................................... 29 Utah Code Ann. § 63G-12-101, et seq............................................................................................ 2 Utah Code Ann. § 63G-12-201(1)(b).............................................................................................. 3 Utah Code Ann. § 63G-12-201....................................................................................................... 2 Utah Code Ann. § 63G-12-202(3) .................................................................................................. 3 Utah Code Ann. § 76-10-2901.................................................................................................. 6, 25 Utah Code Ann. § 76-10-2901(2)(a)............................................................................................. 25 Utah Code Ann. § 76-10-2901(2)(b) ............................................................................................ 25 Utah Code Ann. § 76-10-2901(2)(d) ............................................................................................ 25 Utah Code Ann. § 76-9-1002(6) ............................................................................................... 7, 27 Utah Code Ann. § 76-9-1003........................................................................................ 3, 27, 29, 33 Utah Code Ann. § 76-9-1003(1)(a)(i)............................................................................................. 4 Utah Code Ann. § 76-9-1003(1)(a)(ii)............................................................................................ 4 Utah Code Ann. § 76-9-1003(2) ..................................................................................................... 5 Utah Code Ann. § 76-9-1004........................................................................................................ 27 Utah Code Ann. § 76-9-1004(1) ........................................................................................... 3, 8, 33 Utah Code Ann. § 76-9-1004(2) ........................................................................................... 4, 8, 24 Utah Code Ann. § 76-9-1006.................................................................................................... 5, 23 Utah Code Ann. § 77-7-1................................................................................................................ 5 Utah Code Ann. § 77-7-2.............................................................................................................. 16 Utah Code Ann. § 77-7-2(5) ..................................................................................................... 6, 32 Utah Code Ann. § 77-7-2(5)(a)..................................................................................................... 15
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Case 2:11-cv-00401-CW Document 37 Filed 05/06/11 Page 8 of 49 Utah Code Ann. § 77-7-2(5)(b) .................................................................................................... 15 Wash. Rev. Code 46.20.035(3)..................................................................................................... 34 OTHER AUTHORITIES Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009, Pub. L. No. 110-329, Title II, 122 Stat. 3574 (2008).........................................................................................................................................21 Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, Title II, 123 Stat. 2142 (2009) ......................................................................................21
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INTRODUCTION Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs move for a preliminary injunction barring the enforcement of the Utah Illegal Immigration Enforcement Act (“HB 497”), which establishes a comprehensive state-law system for the regulation of immigration. HB 497 creates new state-law criminal penalties for immigration-related conduct and imposes on state and local police officers a complex web of responsibilities to demand identification documents and to investigate immigration status. HB 497 violates the U.S. Constitution by: (1) regulating immigration in myriad ways forbidden under the Supremacy Clause, including through direct conflict with federal laws and enforcement priorities as well as with U.S. foreign policy; (2) authorizing and in some cases requiring state and local police officers to violate the Fourth Amendment through discriminatory and unlawful seizures and warrantless arrests; and (3) interfering with the rights of citizens of other states to travel freely in and through Utah. Plaintiffs are likely to succeed on the merits of their constitutional challenge to HB 497. Unless the Court grants a preliminary injunction, Plaintiffs will suffer immediate and irreparable injury when HB 497 goes into effect on May 10, 2011, because they will be subject to a constitutionally preempted law, unlawful seizures and arrests at the hands of Utah police officers, and will be unable to travel freely in Utah. The public interest will also be harmed if HB 497 is permitted to take effect, because it will result in systemic violations of constitutional rights throughout the state of Utah. HB 497 should be preliminarily enjoined to preserve the status quo while the Court adjudicates its constitutionality.
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FACTUAL BACKGROUND
The Utah legislature enacted HB 497 as part of a comprehensive system of immigration
regulation that also includes two other laws, HB 116 and HB 469. In a press release issued upon
signing these laws, Governor Gary Herbert proclaimed that “combined,” the new immigration laws “constitute … ‘the Utah solution’” for immigration reform.1 See News Release, Governor
Herbert Signs Immigration Reform Legislation (Mar. 15, 2011) (copy attached as Exhibit A to
Decl. of Lorena Fernandez (“Fernandez Decl.”)). This “Utah Solution” puts the state
government in charge of fundamental aspects of immigration regulation, including: (1) the admission of non-citizens from outside the United States (HB 469);2 (2) the granting of work
authorization under state law to non-citizens without federal immigration or employment authorization (HB 116);3 and (3) a complex web of immigration enforcement responsibilities for
Utah police officers and prosecutors, including investigation of immigration status, detention and
arrest for civil immigration violations, and enforcement of new state-law criminal offenses
1 Governor Herbert’s press statement also referred to a fourth law, HB 466, which creates the Utah Commission on Immigration and Migration, and charges it with “develop[ing] a comprehensive, coordinated, and sustainable state plan to address … immigration and the use of migrant workers in the state.” HB 466 § 6, Utah Code Ann. § 63G-12-202. HB 466 also authorizes the Governor of Utah to enter into an agreement with the government of the Mexican state of Nuevo León for a “pilot project” to obtain “foreign migrant workers.” HB 466 § 6, Utah Code Ann. § 63G-12-301. HB 466 does not have an immediate or direct effect on immigration. 2 HB 469 purports to establish the “Utah Pilot Sponsored Resident Immigrant Program,” under which non-citizens living outside the U.S. can apply for a Utah resident immigrant permit giving them permission to reside and work in Utah. Utah Code Ann. § 63G-12-101, et seq. 3 HB 116 purports to establish a state guest worker program, under which non-citizens without federal employment authorization will be granted a state-issued work permit. Recognizing that the state lacks this authority, the law instructs the Governor to seek a federal “waiver” for the program. HB 116 § 10, Utah Code Ann. § 63G-12-202(1). If federal approval is not given, however, the state is directed to move forward with the program by July 1, 2013. Utah Code Ann. § 63G-12-201.
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relating to immigration (HB 497). HB 116 and HB 469 have no immediate effect4 and are not at issue in this lawsuit. HB 497, however, will take effect on May 10, 2011 unless it is enjoined. Sections 3 and 4: Immigration Investigation and Detention by State and Local Officers
Sections 3 and 4 of HB 497 impose a complex set of mandates and authorizations on Utah police officers to demand documentation of immigration status during ordinary stops, detentions, and arrests and to convert many routine encounters into lengthy and intrusive immigration status investigations. Section 3 of HB 497 requires Utah officers to demand that any person who is the subject of a “lawful stop, detention, or arrest” produce one of four types of documents listed in Section 4: (1) a valid Utah driver’s license issued on or after January 1, 2010; (2) a valid Utah identification card issued on or after January 1, 2010; (3) a valid tribal enrollment card; or (4) a valid identification document that includes a photograph or biometric identifier and is issued by a government agency that requires proof of legal presence in the United States. Utah Code Ann. §§ 76-9-1003 & 76-9-1004(1).
Section 4 provides that production of one of these four types of identity documents (hereafter, “qualifying identity document”) creates a presumption that the person stopped is lawfully present in the United States “unless the law enforcement officer has a reasonable suspicion that the document is false or identifies a person other than the person providing the document.” Utah Code Ann. § 76-9-1004(1). In cases where a person does not have a qualifying identity document, Section 4 provides that a person may make a statement or oral
4 HB 116 provides that the state shall implement the guest worker program 120 days after “the state has the one or more federal waivers, exemptions, or authorizations needed to implement the program,” or on July 1, 2013, whichever is sooner. Utah Code Ann. § 63G-12-202(3). HB 469 requires the Governor to implement the “pilot sponsored resident immigrant program” no later than July 1, 2013. Utah Code Ann. § 63G-12-201(1)(b).
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affirmation of U.S. citizenship or nationality; however, the officer has the discretion to reject such an affirmation if he or she has “reasonable suspicion that the statement or affirmation is false.” Utah Code Ann. § 76-9-1004(2). Section 4 does not provide for a similar affirmation option for non-citizens who are lawfully present in the United States.
In cases where a person cannot produce a qualifying identity document; or the police officer has “reasonable suspicion” to believe that the document is false; and either the person does not make or the officer disbelieves an affirmation of U.S. citizenship or nationality, Section 3 provides for the officer to verify immigration status by contacting the federal government “or an authorized immigration agent,” as follows: In cases where the person is stopped for a suspected felony or class A misdemeanor, if “the officer is otherwise unable to verify the identity of the person”—a phrase that is not defined in HB 497—the officer is required to verify the person’s immigration status. Utah Code Ann. § 76-9-1003(1)(a)(i) (citing 8 U.S.C. § 1373(c)). If the person is “arrested and booked” for a class B or C misdemeanor, the officer is also required to verify immigration status. Utah Code Ann. § 76-9-1003(1)(a)(ii). And if the person is merely stopped or briefly detained for a class B or C misdemeanor—a category that includes minor traffic violations—the officer has the discretion to verify immigration status. Id. Even more broadly, immigration verification is required “as promptly as reasonably possible” in any case where a suspect “is arrested or booked into a jail, juvenile detention facility, or correctional facility.” Id. at § 76-9-1003(3) (emphasis added). Thus, even when a person is cited and released for a Class B or C misdemeanor (e.g., given a traffic ticket), he or she will be subject to prolonged detention while an officer attempts to verify immigration status.5
5 Under Utah law, a person who is stopped and issued a citation is deemed to be “arrested.” See, 4

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Section 3 also provides that, in the course of a stop if the officer develops reasonable suspicion that any occupant of a vehicle has violated any of three state offenses concerning smuggling, transporting, or encouraging non-citizens to come to Utah without federal immigration status, including new criminal offenses created by Section 10 of HB 497 (see infra), the officer is required to detain not just the suspect but all of the vehicle’s occupants to verify their immigration status. Utah Code Ann. § 76-9-1003(2).
Notably, HB 497’s immigration status verification requirements and warrantless arrest provisions suffer from the same constitutional defects as provisions in Arizona’s similar immigration law, SB 1070, which has been preliminarily enjoined by the federal district court in Arizona and the Ninth Circuit. United States v. Arizona, 703 F. Supp. 2d 980, 998, 1006 (D. Ariz. 2010), aff’d, __ F.3d __, 2011 WL 1346945, at *4-10, *15-19 (9th Cir. Apr. 11, 2011). Section 6: Prohibiting Limits on State and Local Authority to Enforce Immigration Laws
Section 6 of HB 497 prohibits any state or local government agency from having any policy limiting or restricting authority to investigate or enforce violations of the federal misdemeanor offenses of willful failure to register as an alien, 8 U.S.C. § 1304(e), and willful failure to personally possess an alien registration document, 8 U.S.C. § 1306(a). Utah Code Ann. § 76-9-1006. These federal statutory provisions, however, are not a proper subject for Utah law enforcement; they are part of a federal alien registration scheme that the Supreme Court found to be broadly preemptive of state authority in Hines v. Davidowitz, 312 U.S. 52, 73-
e.g., State v. Harmon, 910 P.2d 1196, 1199-1200 (Utah 1995) (citing Utah Code Ann. § 77-7-1); Newton v. Buckley, No. 96-4202, 1997 WL 642085, at *2 (10th Cir. Oct. 17, 1997) (unpublished op.) (“Under Utah law, when a police officer arrests someone on a misdemeanor or infraction charge, the officer can issue the arrestee a citation, directing him to appear in court at a particular time and location, rather than take the arrestee into custody.”).
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74 (1941). Moreover, these federal laws have become obsolete because the federal government no longer prioritizes their enforcement and has let the implementing regulations lapse. See Decl. of Bo Cooper (“Cooper Decl.”) ¶¶ 27-29, filed in Friendly House v. Whiting, No. CV 10-1061 (D. Ariz. filed June 21, 2010) (copy attached as Exhibit B to Fernandez Decl.). Section 10: Criminalizing Harboring of Unauthorized Immigrants
Section 10 of HB 497 creates new state criminal provisions for transporting unauthorized immigrants into or within the state of Utah; concealing, harboring or sheltering an unauthorized immigrant within Utah; “encourag[ing] or induc[ing]” non-citizens to come to, enter, or reside in Utah where doing so would be in violation of federal law; or engaging in a conspiracy to commit any of the foregoing offenses. Utah Code Ann. § 76-10-2901. The new Utah alien harboring statute largely overlaps with a federal statute, 8 U.S.C. § 1324. As noted above, when an officer believes that any occupant of a vehicle may have committed this state offense, the officer must detain all of the vehicle’s occupants pending verification of immigration status. Section 11: Authorizing Warrantless Arrests for Suspected Immigration Violations
Section 11 of HB 497 grants Utah officers broad new authority to make warrantless arrests in the immigration arena. Utah Code Ann. § 77-7-2(5). HB 497 authorizes warrantless arrests in three new circumstances that do not implicate any criminal conduct. Section 11 grants state and local officials in Utah much broader immigration arrest authority than even federal immigration officers have. It also requires state and local officers to make arrests based on complex determinations of federal immigration law in the field without adequate information. Effect of HB 497’s Comprehensive Immigration Enforcement Provisions
HB 497 will work a fundamental change in Utah law enforcement practices, in violation
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of U.S. constitutional norms. Sections 3 and 4 effectively require all persons in Utah to carry a qualifying identity document in order to avoid being detained for a prolonged period of time while an officer attempts to verify their immigration status in the course of a traffic stop or other encounter. Sections 3 and 4 will impose a de facto state-law alien registration requirement that conflicts with federal law, which does not impose such a universal documentation requirement.
Second, Section 3 will result in the systemic prolonging of stops for the purpose of immigration status verification, which violates settled Fourth Amendment norms and also imposes enormous burdens on local law enforcement agencies and, contravening the Supremacy Clause, the federal government. Section 3 provides that police officers must contact either the federal government or a state or local officer who has been authorized by the federal government to determine immigration status. Utah Code Ann. § 76-9-1002(6). In Salt Lake City, police officers annually issue approximately 30,000 citations, which take, on average, less than 10 minutes to issue. Decl. of Chris Burbank (“Burbank Decl.”) ¶ 11. These traffic citations are considered arrests under Utah law, and thus trigger mandatory immigration verification under section 76-9-1003(3). See id.; supra note 5. Therefore, if HB 497 goes into effect, many ordinary stops will be extended by more than an hour while police officers attempt to verify immigration status through contact with the federal government. See Decl. of David C. Palmatier (“Palmatier Decl.”) ¶ 8, filed in United States v. Arizona, No. 10-CV-1413 (D. Ariz. filed July 6, 2010) (copy attached as Exhibit C to Fernandez Decl.). This substantial prolonging of traffic stops for immigration investigations violates the Fourth Amendment, as set forth in Part I(B) below. The immigration status verification requirement also imposes a substantial burden on federal authorities, who will be required to respond to an enormous increase in the number of
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immigration status inquiries because of HB 497. Section 11 gives Utah police officers broader authority than even federal immigration
agents have to make warrantless arrests for immigration purposes, not requiring probable cause to believe a person has committed a crime. This violates the Supremacy Clause and the Fourth Amendment. Moreover, Section 11 requires complex determinations about immigration status that are simply impossible for a police officer to make in the field. See Burbank Decl. ¶ 16; Decl. of George Gascón (“Gascón Decl.”) ¶¶ 21, 22.
Finally, HB 497 invites Utah police officers to detain people for immigration purposes based on nothing more than racial and ethnic stereotypes, in violation of the Fourth Amendment. Sections 3 and 4 vest officers with authority to accept or reject a person’s affirmation of U.S. citizenship, Utah Code Ann. § 76-9-1004(2), and to discredit a proffered qualifying identity document, HB 497 § 4, Utah Code Ann. § 76-9-1004(1). Section 3 also gives officers broad discretion to determine when to conduct immigration status verification during stops for Class B and C misdemeanors. These provisions create a grave risk that officers will rely on racial and ethnic stereotypes, and that these decisions will lead to prolonged detention. Burbank Decl., ¶ 16; Gascón Decl., ¶ 11; Decl. of Eduardo Gonzalez (“Gonzalez Decl.”) ¶ 14; Decl. of Arturo Venegas (“Venegas Decl.”) ¶ 8.
ARGUMENT A preliminary injunction is appropriate if the moving party establishes: “(1) that it has a substantial likelihood of prevailing on the merits; (2) that it will suffer irreparable injury if the injunction is denied; (3) that the threatened injury to the movant outweighs the injury that the opposing party will suffer under the injunction; and (4) that the injunction would not be adverse
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to the public interest.” Utah Licensed Beverage Assn. v. Leavitt, 256 F.3d 1061, 1066 (10th Cir. 2001). All four factors are established here. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
A. Plaintiffs Are Likely To Succeed in Their Claim that HB 497 Violates the Supremacy Clause
HB 497 is preempted by federal law in at least two ways. First, it is a state “regulation of immigration,” and accordingly trespasses on authority exclusively reserved to the federal government by the Constitution. See DeCanas v. Bica, 424 U.S. 351, 353-54 (1976).6 Second, HB 497 is subject to “‘conflict preemption, which occurs … when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” See US Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1324 (citing Mount Olivet Cemetery Ass’n v. Salt Lake City, 164 F.3d 480, 486 (10th Cir. 1998)).
1. HB 497 Constitutes Impermissible State “Regulation of Immigration” In both operation and express intent, HB 497 is a key component of a comprehensive system for the regulation of immigration by the state of Utah. It therefore violates the Supremacy Clause of the U.S. Constitution, which forbids any state “regulation of immigration.” DeCanas, 424 U.S. at 353-54; U.S. Const., Art. VI, cl. 2. Any state law regulating immigration is void, regardless of whether Congress has enacted comparable federal statutory provisions. See Hines, 312 U.S. at 66. The Supreme Court has emphasized that the constitutional prohibition on
6 As set forth in DeCanas, in the field of immigration, constitutional preemption principles apply. In addition, by enacting the Immigration and Nationality Act, Congress has occupied the entire field of immigration enforcement, and thus state immigration laws are subject to statutory “‘field preemption, which occurs when the federal scheme of regulation is so pervasive that Congress must have intended to leave no room for a State to supplement it.’” See US Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1324 (10th Cir. 2010) (citation omitted).
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state regulation of immigration is absolute: The “[p]ower to regulate immigration is unquestionably exclusively a federal power.” DeCanas, 424 U.S. at 354 (emphasis added). Thus, at a minimum, no state may intrude on the “determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” Id. at 355; see also Toll v. Moreno, 458 U.S. 1, 11 (1982) (citing Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948)). To be valid, a state law that affects immigration must primarily address legitimate local concerns and have only a “purely speculative and indirect impact on immigration.” DeCanas, 424 U.S. at 355. Under these settled authorities, HB 497 is preempted.
First, HB 497 is a central part of a comprehensive state-law system for regulating immigration; indeed, the legislature provided for HB 497 to be the first component of the “Utah solution” to go into effect. HB 497 was expressly intended to supplant federal immigration enforcement. During the legislative debate leading up to the passage of HB 497, Governor Gary Herbert stated: “Absent any meaningful leadership from the federal government on this issue, individual states are being forced to take up the charge.” News Release, Governor Herbert Issues Statement on Illegal Immigration Reform (Aug. 13, 2010) (copy attached as Exhibit D to Fernandez Decl.). Thus, the “Utah solution” does not even purport to address an area of local concern apart from immigration policy. DeCanas, 424 U.S. at 355. Instead, the package of laws is expressly meant to implement Utah’s preferred immigration policy “solution,” in disagreement with the federal government’s current immigration laws and policies.
Utah legislators also expressed that, in passing HB 497, they intended to wrest control over immigration regulation away from the federal government. For example, Senator Dayton stated during debate on HB 497: “What we have in this bill are federal laws put into state
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statutes so that we can enforce the federal laws since the federal government is not.” Decl. of Sheila Miller (“Miller Decl.”), Exh. A at 2:16-18 (Tr. of Senate Floor debate on HB 497, Day 39). She explained that HB 497 “empowers law enforcement to enforce, on the state level, federal law.” Id. at 3:12-13. Representative Dougall stated: “This bill also recognizes that historically . . . the states ran immigration for about the first 100 years of our nation before the feds started assuming more and more authority over immigration. And so this recognizes and speaks to the states’ rights issue regarding immigration.” Miller Decl., Exh. B at 1:14-18 (Tr. of House debate on HB 469, Day 38). Representative Ivory stated during the debate on HB 469 that he “applaud[ed]” the bill’s sponsor for “reclaiming a right that was never delegated [to the federal government] and exercising power over immigration in the state of Utah.” Miller Decl., Exh. B at 3:10-12 (Tr. of House debate on HB 469, Day 38).
The legislators recognized that the intent and effect of HB 469 is counter to settled constitutional precedent. HB 469’s sponsor, Representative Dougall, stated in response to a question about the bill’s constitutionality by the Legislative Research and General Counsel: “[I]f that means that we need to push back against the federal government and the tradition [of federal control over immigration] that built up in the courts, I would suggest that we push back.” Miller Decl., Exh. B at 7:5-8 (Tr. of House debate on HB 469, Day 38). He also stated, “I would suggest that there is a lot of wrongness, if that is a word, with what the Supreme Court has said in regards to immigration. I believe that states who deal with the frontline benefits and issues, [and] challenges regarding immigration stand in the best position to deal with it.” Id, ln. 10-14.
In their actual operation, HB 497 and its companion laws implement this stated intent to regulate immigration and to supplant federal law, by establishing: conditions under which non-
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citizens residing outside the United States may be admitted to Utah (HB 469); conditions under which immigrants may remain in the country (HB 497 and 469); conditions under which noncitizens who lack federal employment authorization may be granted state work authorization (HB 116); procedures for verifying the immigration status of individuals encountered by state and local law enforcement officers and providing for the arrest of those deemed to be unlawfully present (HB 497); and requirements that state and local officers detain and turn persons they deem to be unlawfully present over to federal authorities for further detention and removal (HB 497). These are precisely the sorts of functions that regulate immigration and therefore are reserved exclusively to the federal government. DeCanas, 424 U.S. at 356; League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 768-70 (C.D. Cal. 1995).
HB 497 must be struck down as a state law regulating immigration. HB 497 imposes requirements on Utah police officers to verify immigration status and to detain persons they deem to be unauthorized immigrants strictly for the purpose of enforcing immigration violations, and not for the purpose of enforcing any separate state-law criminal violations. Thus, HB 497 represents a fundamental departure from the “primary and principal duties” of Utah police officers in addressing truly local concerns, which are “the prevention and detection of crime and the enforcement of criminal statutes or ordinances of [Utah] or any of its political subdivisions.” Utah Code Ann. § 53-13-103. HB 497 diverts police officers away from local concerns and focuses them instead on the regulation of immigration. See Burbank Decl. ¶ 10 (“HB 497 inappropriately imposes civil enforcement priorities ahead of criminal activity.”).
HB 497 has far more than an incidental or “speculative” connection to the regulation of immigration; it is therefore preempted. DeCanas, 424 U.S. at 355-56. HB 497’s very purpose is
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to subject non-citizens in Utah to a new set of state-created immigration rules, legal interpretations, and procedures that do not exist or apply in other states. It will bring about exactly what the Supreme Court struck down in Hines—the subjection of non-citizens to “indiscriminate and repeated interception and interrogation by public officials” and “the possibility of inquisitorial practices and police surveillance” in the name of a state effort to enforce immigration law. 312 U.S. at 66, 74. By subjecting non-citizens to detention and arrest for immigration purposes, and state officials’ determinations about who is subject to removal, HB 497 impermissibly sets the conditions under which non-citizens may remain in the country and thus intrudes on the core of the federal immigration power. DeCanas, 424 U.S. at 355.
Indeed, HB 497 has a direct effect on the national interests at the core of preemption in the immigration context. Federal supremacy in immigration has, since its earliest days, been aimed at preventing states from interfering with the foreign relations of the United States through separate regulation of foreign nationals. See Chy Lung v. Freeman, 92 U.S. 275, 279 (1875); Henderson v. Mayor of the City of New York, 92 U.S. 259, 273 (1875). “Experience has shown that international controversies of the gravest moment… may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.” Hines, 312 U.S. at 64; see also id. at 63-64 & n.9-12. And indeed, “even . . . the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law.” Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 420 (2003) (emphasis added); see also United States v. Arizona, __ F.3d __, 2011 WL 1346945, at *22-23 (Noonan, J., concurring).
More than a “likelihood” of foreign policy implications is at stake here. Abraham F.
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Lowenthal, an international relations expert who specializes in U.S.-Latin American relations, has declared that “this law, if allowed to stand, would significantly impair the relations of Mexico with the United States, the attitudes and opinions of Mexicans, officials and the general public, toward the United States, and the capacity of US Government officials to conduct constructive relations with Mexico in the national interest of the United States and its citizens.” Decl. of Abraham F. Lowenthal ¶ 11. Indeed, the government of Mexico has made a formal statement that HB 497 is detrimental to U.S.-Mexico relations. Fernandez Decl., Exh. E (Statement by the Embassy of Mexico on Lawsuit Filed Against HB 497 in Utah (May 3, 2011)).
For all of these reasons, HB 497 is an impermissible, direct regulation of immigration. 2. HB 497 Conflicts With Federal Immigration Law
HB 497 is also preempted on the separate ground that it conflicts with federal law. The Supremacy Clause “prohibits states from enacting laws that make compliance with both federal and state law a physical impossibility or that ‘stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Chamber of Commerce v. Edmondson, 594 F.3d 742, 766 (10th Cir. 2010) (quoting Fid. Fed. Sav. & Loan Ass’n. v. de la Cuesta, 458 U.S. 141, 152-53 (1982)). Even when a state law and the federal law “share the same goals,” “[t]he fact of a common end hardly neutralizes conflicting means.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 379 (2000). Sections 3, 4, 6, 10, and 11 of HB 497 conflict with Congress’s comprehensive federal immigration enforcement scheme.
a. HB 497 Grants State and Local Officers Greater Authority to Make Arrests for Immigration Violations Than Federal Officers Have Under Federal Law
Section 11 of HB 497 creates three new categories of warrantless arrest authority for Utah officers. Each new provision authorizes arrest of non-citizens who are not subject to arrest
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by immigration officers under federal law, and for this reason conflicts with Congress’s considered judgment about what circumstances justify arrest under federal immigration law.
First, Section 11 authorizes warrantless arrests of non-citizens who are “subject to a civil removal order issued by an immigration judge.” Utah Code Ann. § 77-7-2(5)(a). It is impossible for an officer in the field to determine whether a removal order was issued by “an immigration judge after a hearing,” as the statute requires.7 Moreover, Section 11 authorizes arrests of non-citizens with removal orders regardless of whether they have been released from federal custody and thus are not subject to arrest by federal immigration authorities. For example, under Section 11, Utah police officers may arrest individuals whom the federal government has released on bond or under supervision while their removal cases are pending.
Second, Section 11 authorizes warrantless arrests for non-citizens “regarding whom a civil detainer warrant has been issued by the federal Department of Homeland Security.” Utah Code Ann. § 77-7-2(5)(b). This subsection is based upon a misunderstanding of federal law, since an immigration detainer is not a warrant of any sort. Unlike an arrest warrant, which issues only upon a showing of probable cause by a neutral judicial officer, an ICE detainer is merely a notice from ICE to another law enforcement agency, indicating that ICE has an interest in a person in that law enforcement agency’s custody and requesting that the agency temporarily maintain custody of the person for up to 48 hours. 8 C.F.R. § 287.7(d). An immigration detainer does not authorize either federal immigration agents or state or local officials to make an arrest, as formal federal guidance explicitly confirms. See Fernandez Decl., Exh. F (U.S. Immigration
7Among other things, many removal orders are issued not by an immigration judge but by a federal agent. See 8 U.S.C. § 1225(b) (expedited removal orders); 8 U.S.C. § 1187 (removal orders under Visa Waiver Program).
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and Customs Enforcement, Interim Policy Number 10074.1: Detainers (Aug. 2, 2010)). HB 497 assigns a meaning to ICE detainers that is plainly inconsistent with federal law and requires police officers to act upon ICE detainers in conflict with federal law.
Third, Section 11 authorizes a warrantless arrest if the officer believes a non-citizen “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).” Utah Code Ann. § 77-7-2. This provision requires local officers to make extremely complicated determinations regarding whether charges brought in other states, under those states’ penal codes, may constitute an “aggravated felony” for purposes of federal immigration law. Utah police officers implementing this provision inevitably will make erroneous determinations that lead to arrests. See United States v. Arizona, 703 F. Supp. 2d 980, 1005-06; Gascón Decl. ¶ 22. The determination of what crimes constitute “aggravated felonies” under federal immigration law is enormously complex.8 There is no way a state or local law enforcement officer in the field can make that determination.
More fundamentally, the warrantless arrest provision conflicts with federal law by authorizing arrest when federal law would not even deem the individual deportable. Under federal law, being charged with an aggravated felony does not make a non-citizen removable; only conviction for an aggravated felony is a ground of removal. 8 U.S.C. § 1227(a)(2)(A)(iii).
8 The federal statutory definition encompasses 21 subsections, most of which in turn encompass numerous crimes. 8 U.S.C. § 1101(a)(43). “Defense counsel who consults a guidebook on whether a particular crime is an ‘aggravated felony’ will often find that the answer is not ‘easily ascertained.’” Padilla v. Kentucky, 130 S.Ct. 1473, 1489 (2010) (Alito, J., concurring). Because of this complexity, it is not uncommon that different federal appellate courts reach different conclusions as to whether an offense constitutes an “aggravated felony” for immigration purposes. See, e.g., Leocal v. Ashcroft, 543 U.S. 1 (2004) (resolving conflict among circuits by holding that Florida felony of driving under the influence and causing serious bodily injury conviction was not “aggravated felony”).
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Under many subsections of the federal statute defining “aggravated felony,” whether the offense meets the definition ultimately depends upon facts that cannot be determined until a person is convicted and sentenced.9 And while the initial charges may be for a crime that potentially constitutes an aggravated felony, the ultimate disposition may not be.
Finally, Section 11 grants to state and local law enforcement officers broader warrantless arrest authority than Congress has authorized for immigration violations. Even federal immigration officers are authorized to make warrantless arrests only where the officer has reason to believe the arrestee is in the United States in violation of immigration law and “is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357(a)(2).10 Section 77-7-2 does not include this limitation. Thus, HB 497 impermissibly subjects non-citizens in Utah to arrest for federal immigration violations in circumstances where federal law requires a warrant.
b. HB 497 Conflicts with Federal Laws Limiting State and Local Officers’ Authority To Enforce Civil Immigration Laws
By requiring Utah police officers to act as immigration enforcers, HB 497 directly conflicts with federal laws setting out specific requirements for state and local law enforcement officers’ involvement in immigration enforcement functions. As the Ninth Circuit recently explained in reviewing Arizona’s SB 1070, the federal laws “foreclose[] any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law.”
9 For example, under some subsections, whether a conviction is for an aggravated felony depends on the length of sentence imposed, a fact that cannot be determined prior to a conviction. See, e.g., 8 U.S.C. §§ 1101(a)(43)(F), (G), (J), (R), (S), (Q), (T). 10In addition, federal law requires that specific procedures be followed when non-citizens are arrested by immigration officers without a warrant, and HB 497 contains no such provisions. For example, when federal immigration agents make a warrantless arrest for an immigration violation, the individual arrested must be provided with specific notices of their rights in immigration proceedings. See 8 U.S.C. § 1357(a)(2); 8 C.F.R. § 287.3.
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United States v. Arizona, 2011 WL 1346945, at *11. Federal immigration law contains specific provisions specifying when state and local
officers may participate in enforcement of civil immigration laws. First, 8 U.S.C. § 1103(a)(10) provides that the U.S. Attorney General may authorize state or local law enforcement officers to perform immigration enforcement duties in the event the Attorney General “determines that an actual or imminent mass influx of aliens… presents urgent circumstances requiring an immediate Federal response.” This provision has never been invoked by the Attorney General.
Second, certain state and local officers may be authorized under 8 U.S.C. § 1357(g) to perform immigration enforcement functions under the control and supervision of the Attorney General. Under Section 1357(g), the Attorney General may enter into a written agreement with a state or local agency, allowing a limited number of officers “who [are] determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States… may carry out such function[s].” 8 U.S.C. § 1357(g)(1). State or local officers who perform such immigration enforcement functions “shall be subject to the direction and supervision of the Attorney General.” Id. § 1357(g)(3). The written agreement authorizing officers to perform immigration enforcement functions must specify “the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual.” Id. § 1357(g)(5). Thus, section 1357(g) demonstrates Congress’s intent to allow state and local officers to perform civil immigration enforcement functions only where each officer has been approved by the Attorney General to perform the specifically authorized
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function, and where the Attorney General retains control over the officer’s conduct.11 Finally, 8 U.S.C. § 1252c permits state and local law enforcement officers, “to the extent
permitted by relevant State and local law,” to arrest and detain non-citizens who are illegally present in the United States, where they have previously been convicted of a felony in the United States and either were deported or left the country following the conviction, “but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual.” 8 U.S.C. § 1252c(a). HB 497 goes far beyond this limited grant of authority to arrest for criminal reentry.
The complex and comprehensive nature of federal immigration law has led two federal appeals courts – the Ninth and the Sixth Circuits – to hold that federal law preempts the authority of state and local officers to make arrests for civil violations of federal immigration law except as expressly provided by federal law. United States v. Arizona, 2011 WL 1346945, at *17; Martinez-Medina v. Holder, __ F.3d __, 2011 WL 855791, at *6 (9th Cir. Mar. 11, 2011); Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983), overruled on other grounds by Hodgers-Durgin v. De la Vina, 199 F.3d 1037 (9th Cir. 1999); United States v. Urrieta, 520 F.3d
11 8 U.S.C. § 1357(g) concludes with a provision that “[n]othing in this subsection [i.e., section 1357(g)] shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State … (A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention or removal of aliens not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10). Subsection 1357(g)(10) is not a broad grant of authority to states; indeed, if it were read as such, the rest of section 1357(g) would be nugatory. United States v. Arizona, 2011 WL 1346945, at *5. As the Ninth Circuit held in United States v. Arizona, “Congress intended for state officers to aid in federal immigration enforcement only under particular conditions, including the Attorney General’s supervision.” Id. HB 497 does not provide for such supervised cooperation; to the contrary, Utah clearly intended the law to supplant federal authority, as set forth above at 10-11.
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569, 574 (6th Cir. 2008). Both the Ninth and Sixth Circuits have emphasized the distinction between civil and criminal immigration laws in reaching this conclusion. United States v. Arizona, 2011 WL 1346945, at *17 (citing Gonzales, 722 F.2d at 475); Martinez-Medina, 2011 WL 855791, at *6. See also Carrasca v. Pomeroy, 313 F.3d 828, 836-37 (3d Cir. 2002) (noting distinction between civil and criminal immigration laws and expressing “uncertainty… with respect to state rangers’ authority to detain immigrants”).
While the Tenth Circuit has stated that state and local officers have the authority to make arrests for immigration violations, it has only done so in cases involving violations of the federal criminal laws. In United States v. Vasquez-Alvarez, the Tenth Circuit upheld a police officer’s arrest of a non-citizen with a history of prior criminal convictions and deportations suspected of participating in a drug transaction. 176 F.3d 1294, 1295-96 (10th Cir. 1999). The court concluded that the arrest did not meet the requirements of 8 U.S.C. § 1252c, but that the arrest came within state “general authority to investigate and make arrests for violations of federal immigration laws” and so was permissible. Id. at 1296. But critically, in reaching this conclusion the court relied exclusively on cases upholding state arrest authority for federal criminal violations. Vasquez-Alvarez, Id. (citing Davida v. United States, 422 F.2d 528, 530 (10th Cir. 1970) (federal felony offense); United States v. Janik, 723 F.2d 537, 548 (7th Cir. 1983) (same); United States v. Swarovski, 557 F.2d 40, 43-49 (2d Cir. 1977) (same); United States v. Salinas-Calderon, 728 F.2d 1298, 1301-02 & n.3 (10th Cir. 1984) (same); Gonzales, 722 F.2d at 477 (expressly distinguishing civil and criminal immigration laws)). In particular, the Vasquez-Alvarez court’s reliance on the Ninth Circuit’s Gonzales decision demonstrates that
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its analysis was based on criminal immigration enforcement authority.12 The Tenth Circuit has never approved of arrests for civil immigration violations by state or local police officers.
c. HB 497 Undermines Federal Policies and Priorities for Immigration Enforcement
In addition to conflicting with federal statutes, HB 497 also conflicts and interferes with the federal government’s authority to implement its priorities and strategies for immigration law enforcement.13 Congress repeatedly has directed the Department of Homeland Security to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, Title II, 123 Stat. 2142, 2149 (2009); Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-329, Title II, 122 Stat. 3574, 3659 (2008) (same language). U.S. Immigration and Customs Enforcement has identified specific enforcement priorities, with individuals who pose recognized risks to national security or public safety as the highest priority for enforcement. See Fernandez Decl., Exh. G (John Morton, Director of U.S. Immigration and Customs Enforcement, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011)); Decl. of Daniel H. Ragsdale ¶
12 In United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001), the Tenth Circuit upheld the validity of a state arrest that was based in part on probable cause to believe that the defendants violated federal immigration law. The court followed Vasquez-Alvarez but did not consider the distinction between civil and criminal violations. 13 Preventing such conflicts is at the heart of preemption in the immigration field, as the Constitution specifically provides for uniformity in treatment of non-citizens with respect to their immigration status in the United States. See Decl. of Doris Meissner (“Meissner Decl.”) ¶ 11, filed in Friendly House v. Whiting, No. 10-CV-1061 (D. Ariz. filed June 21, 2010) (copy attached as Exh. I to Fernandez Decl.) (“it is critical to have a single, coordinated federal system”); see also United States v. Arizona, 2011 WL 1346945, at *4828 (“[T]he threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption”).
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17, filed in United States v. Arizona, No. 10-CV-1413 (D. Ariz. filed July 7, 2010) (copy attached as Exh. H to Fernandez Decl.). The Utah law’s mandates for immigration enforcement reflect no such tailoring and in fact clash directly with these federal priorities.
Sections 3 and 4 of HB 497 directly undermine federal immigration enforcement priorities, because they will result in a vast increase in immigration status verification queries from Utah law enforcement officers to the federal agency, which will impose burdens on the federal government and directly “compete with” and “adversely affect” the federal government’s ability to respond to queries about “aliens arrested for particularly serious crimes.” Decl. of David C. Palmatier ¶ 7, filed in United States v. Arizona, No. 2:10-cv-01413-SRB (D. Ariz., filed July 7, 2010) (copy attached as Exhibit C to Fernandez Decl.). The federal Law Enforcement Support Center (“LESC”), which is responsible for responding to immigration status queries from law enforcement agencies, has experienced “continuous and dramatic increases” in immigration status determination queries over the past four years. Palmatier Decl., ¶ 9. As of June 2010, the average immigration status query waited for approximately 70 minutes at the LESC before it could be handled by a Law Enforcement Specialist, who would then take, on average, an additional 11 minutes per query to research Department of Homeland Security (DHS) data systems and make an immigration status determination. Id. at ¶ 8. In some cases, where a review of the individual’s physical file is required, the review may take two days or more. Id. at ¶ 11. In addition, the LESC is unable to verify the status of most U.S. citizens, since their records are not contained in the LESC databases. Id. at ¶ 19.
Thus, like the now-enjoined provisions of Arizona’s SB 1070, HB 497 “is inconsistent with the discretion Congress vested in the Attorney General to supervise and direct State officers
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in their immigration work according to federally-determined priorities.” United States v. Arizona, 2011 WL 1346945, at *8. “By imposing mandatory obligations on state and local officers, [the state] interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning [state] officers into state-directed DHS agents.” Id. at *4824. That interference violates the Supremacy Clause. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 374, 377 (striking down state law as preempted where “Congress clearly intended the federal Act to provide the President with flexible and effective authority,” and the state law’s “unyielding application undermines the President’s intended statutory authority”); see also Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 349 (2001).
Section 6 of HB 497, like Sections 3 and 4, compels local officers to engage in immigration enforcement actions in circumstances where the federal government has deemphasized enforcement in favor of other priorities. Utah Code Ann. § 76-9-1006. Section 6 prohibits any state or local governmental agency from having any policy limiting or restricting the authority of any law enforcement agency to investigate or enforce violations of the federal misdemeanor offenses of willful failure to register as an alien or willful failure to personally possess an alien registration document, under 8 U.S.C. §§ 1304(e) and 1304(a). This provision prohibits state and local law enforcement agencies from limiting their enforcement of the federal immigration registration requirement “that has long been obsolete and widely regarded by the federal authorities, at the very highest levels, to be practically impossible to enforce and of extremely limited value as an immigration enforcement tool.” Cooper Decl. ¶ 25 (copy attached
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as Exh. B to Fernandez Decl.).14 Currently, numerous categories of non-citizens who have pending applications with immigration authorities, including many who have been granted a lawful status in the United States, are not issued a document or other form designating compliance with the registration requirement. Decl. of Michael Aytes (“Aytes Decl.”) ¶ 2, filed in United States v. Arizona, 10-CV-1413 (D. Ariz. filed July 7, 2010) (copy attached as Exh. K to Fernandez Decl.). By prohibiting law enforcement agencies from limiting their enforcement of these obsolete provisions, Section 6 will inevitably lead to erroneous enforcement efforts against non-citizens for technical violations of federal statutory provisions the federal government itself recognizes are obsolete.
d. HB 497 Is Preempted Because It Imposes a De Facto Alien Registration Requirement
Section 4 enumerates the four types of qualifying identity documents that create a presumption of lawful presence. Section 4 also provides that a person who makes a “statement or affirmation” to a law enforcement officer that he or she is a U.S. citizen or national is presumed to be such “unless the officer has a reasonable suspicion that the statement or affirmation is false.” Utah Code Ann. § 76-9-1004(2). Yet HB 497 does not provide a similar opportunity for non-citizens with lawful immigration status to make an affirmation of status. Section 4 thus operates as a de facto alien registration law, requiring non-citizens to carry a stateapproved qualifying identity document in order to avoid extended police questioning each time they encounter law enforcement. The Supreme Court has expressly declared such state schemes preempted by federal law. Hines, 312 U.S. at 68-69, 74. Even laws that “complement the 14 Indeed, Bureau of Justice Services statistics show only 30 prosecutions for the misdemeanor offenses of 8 U.S.C. §§ 1304(e) and 1306(a) in the past 16 years. Fernandez Decl., Exh. J (statistics obtained from Federal Justice Statistics Resource Center website).
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federal [alien registration] law [and] enforce additional or auxiliary regulations” are preempted. Id. at 66-67; accord United States v. Arizona, 2011 WL 1346945, at *11.
e. HB 497 Creates State Criminal Immigration Offenses that Are Preempted by Federal Laws
Section 10 of HB 497 creates new state criminal provisions for transporting unauthorized immigrants into or within the state of Utah; concealing, harboring or sheltering an unauthorized immigrant within Utah; “encourag[ing] or induc[ing]” non-citizens to come to, enter, or reside in Utah where doing so would be in violation of federal law; or engaging in a conspiracy to commit any of the foregoing offenses. Utah Code Ann. § 76-10-2901. The new Utah alien harboring statute largely overlaps with a federal statute, 8 U.S.C. § 1324.15 Courts have held that 8 U.S.C. § 1324 has broad preemptive effect. Villas at Parkside Partners v. City of Farmers Branch, 701 F. Supp. 2d 835, 856-59 (N.D. Tex. 2010) (holding that 8 U.S.C. § 1324 preempts city ordinance forbidding rental of housing to unauthorized immigrants); Garrett v. City of Escondido, 465 F. Supp. 2d 1043 (S.D. Cal. 2006). More generally, as discussed above, conditions and penalties for non-citizens’ entry into the United States are constitutionally committed to the exclusive authority of the federal government and Congress has occupied the field by enacting a comprehensive Immigration and Nationality Act. DeCanas, 424 U.S. at 359.
The fact that Section 10 of HB 497 appears to be modeled after the federal statute, 8 U.S.C. § 1324, does not save it. Even if the Utah statute were identical, it places prosecutorial discretion in the hands of Utah state officials, so that decisions about when to charge a person for encouraging or inducing a non-citizen to enter the United States, and the total penalty to be 15 Unlike the federal alien harboring statute, 8 U.S.C. § 1324, all of the Utah statute’s section except the “encouraging or inducing” subsection require an element of committing the offense for commercial gain. Utah Code Ann. § 76-10-2901(2)(a), (b), (d).
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imposed for that conduct, are no longer under the full control of the federal government. If allowed to take effect, Section 10 would pose numerous conflicts with federal law. For example, Utah may elect to charge an individual whom the federal government has exercised the discretion not to prosecute. Or Utah prosecutors may pile additional penalties on top of a federal sentence under 8 U.S.C. § 1324, effectively increasing the penalty calibrated by Congress and the federal justice system. Even if a state law shares the same goals as the federal law, “[t]he fact of a common end hardly neutralizes conflicting means.” Crosby, 530 U.S. at 377; see also United States v. Arizona, 2011 WL 1346945, at *10. Section 10 impermissibly “undermines the congressional calibration of force,” Crosby, 530 U.S. at 380, and is preempted.
On each and every one of the grounds above, HB 497 conflicts with federal law and is therefore preempted.
B. Plaintiffs Are Likely To Succeed in Their Claim that HB 497 Violates the Fourth Amendment
Sections 3 and 4 of HB 497 authorize, and in some cases require, state and local law enforcement officers to extend a traffic stop or other seizure for the purpose of verifying an individual’s immigration status, based only on the individual’s failure to produce a qualifying identity document and without any suspicion of unlawful conduct. Section 11 of HB 497 allows for the warrantless arrest of individuals whom the police believe to be subject to a civil removal order or an immigration detainer, or charged or convicted in another state with an aggravated felony. As explained below, these provisions violate the Fourth Amendment by authorizing the prolonged detention and warrantless arrest of individuals without suspicion of any wrongdoing, much less criminal activity.
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1. Sections 3 and 4 Violate the Fourth Amendment By Allowing for Prolonged Detention of Individuals Without Reasonable Suspicion of Illegal Activity
As set forth above at pages 2-3, Section 3 of HB 497 authorizes police officers to “verify the immigration status” of a person stopped or detained for an alleged class B or C misdemeanor if the person is unable to provide the officer with a qualifying identity document and the officer is “otherwise unable to verify the identity of the person.” Utah Ann. Code §§ 76-9-1003, 76-91004. Section 3 therefore authorizes officers to prolong traffic stops and other seizures for as long as necessary for the officer to verify immigration status with ICE. See Utah Code § 76-91002(6). Persons stopped for even a class C misdemeanor, which includes minor traffic violations, littering, or jaywalking, will be held by a police officer until immigration status can be verified if the person happens not to be carrying a qualifying identity document. Gascón Decl. ¶ 13; Burbank Decl. ¶ 10.
HB 497’s requirement that stops be prolonged violates basic Fourth Amendment law permitting a brief investigatory stop only if an officer has “a reasonable suspicion supported by articulable facts that criminal activity may be afoot.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). In the context of a vehicle stop, the parameters of permissible activity during the encounter are well established:
An officer conducting a routine traffic st op may request a driver’s license and vehicle registration, run a com puter check, and issue a citation. W hen the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay b y police for additional questioning. United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994) (quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988), overruled in part on other grounds by, United
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States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995)). In other words, the “investigative detention must ‘last no longer than is necessary to effectuate the purpose of the stop.’” United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)); see also United States v. Lee, 73 F.3d 1034, 1038-39 (10th Cir. 1996), overruled on other grounds by United States v. Holt, 264 F.3d 1215 (10th Cir. 2001).
Once the purpose of the stop has been effectuated, however, “[d]etention beyond that time period is only justified if the officer ‘has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring . . . [or] the initial detention has become a consensual encounter.’” United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996) (quoting Gonzalez-Lerma, 14 F.3d at 1483). “An investigative detention evolves into an arrest when the scope of police conduct is no longer reasonably related to the circumstances initially justifying the seizure.”16 Manzanares v. Higdon, 575 F.3d 1135, 1148 (10th Cir. 2009); United States v. Urrieta, 520 F.3d 569, 578 (6th Cir. 2008) (“Under the Fourth Amendment, even the briefest of detentions is too long if the police lack a reasonable suspicion of specific criminal activity.”).
HB 497 requires police officers to violate this basic Fourth Amendment principle. An officer is authorized to verify immigration status—and therefore necessarily must prolong a stop—based on nothing more than the person’s failure to produce a qualifying identity document. But critically, lack of a qualifying identity document does not give rise to any suspicion of unlawful activity. While it is unlawful to drive without a valid driver’s license,
16 For example, in Mohammed v. Davis County, the court found that once an officer had issued and delivered a citation for speeding, the purpose for the stop was complete, and therefore, it was not reasonable to prolong the person’s detention by insisting that he sign the citation or arrest the person for refusing to sign when the person was not required to do so. 2011 WL 65728, *7 (D. Utah Jan. 10, 2011).
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Utah Code Ann. § 53-3-202, HB 497 does not limit prolonged investigation to such circumstances. For example, an officer may stop a person, such as a pedestrian or passenger in a vehicle, who is not required to carry any identification document at all and would have no expectation that he or she should. A person driving in Utah with a valid New Mexico or Washington driver’s license (which are issued pursuant to those states’ laws without an immigration status check), including U.S. citizens like Plaintiff Larios, would be unable to produce a qualifying identity document upon being stopped. Burbank Decl. ¶ 14. Thus, HB 497 subjects even U.S. citizens and lawful immigrants to prolonged detention pending an immigration status verification. Gascón Decl. ¶ 13; Burbank Decl. ¶¶ 10, 14.
Many foreign nationals legally in the United States do not possess or have readily available documentation required by § 76-9-1003 or any documentation that would demonstrate their status. This includes tourists eligible to enter the United States through the Visa Waiver Program and non-citizens who have been granted temporary protected status or who have immigration applications pending with the federal government. Aytes Decl. ¶ 5 (copy attached as Exh. K to Fernandez Decl.); Decl. of David V. Aguilar ¶ 24, filed in United States v. Arizona, No. 10-CV-1413 (D. Ariz. filed July 6, 2010) (copy attached as Exh. L to Fernandez Decl.). The number of individuals in these situations is significant. In fiscal year 2009, more than 14 million aliens were admitted under the Visa Waiver Program, Aguilar Decl. ¶ 24, and DHS estimates that up to 200,000 individuals were eligible for temporary protected status based solely on the designation of Haiti due to last year’s earthquake, Decl. of James B. Steinberg ¶ 19, filed in United States v. Arizona, No. 10-CV-1413 (D. Ariz. filed July 6, 2010) (copy attached as Exh. M to Fernandez Decl.). All of these people are subject to prolonged detention under HB 497, even
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though they are not subject to removal proceedings under federal law and there is no evidence of criminal activity justifying additional investigation.
Verifying immigration status under Section 3 will necessarily require traffic stops and other seizures to be prolonged beyond the bounds of the Fourth Amendment. The Supreme Court has held that a police officer may ask questions unrelated to the original purpose of a stop, provided that such questioning does not unreasonably prolong the stop. Arizona v. Johnson, 129 S. Ct. 781, 788 (2009); Muehler v. Mena, 544 U.S. 93, 100-01 (2005); see also United States v. Guerrero-Espinoza, 462 F.3d 1302, 1308 n.6 (10th Cir. 2006) (finding that a trooper’s further questioning of a lawfully stopped individual unlawfully prolonged the detention, since there was no dispute that the traffic stop had ended prior to the additional inquiry). But under HB 497 immigration status verification will drastically extend an ordinary traffic stop. An average traffic stop and citation takes less than 10 minutes. Burbank Decl. ¶ 11. HB 497 requires officers to call ICE for immigration status verification. When ICE is able to make such a determination telephonically, it will take on average more than 80 minutes before a police officer will receive a response from ICE. Palmatier Decl. ¶ 8. But in many cases, it will take two days or more because ICE cannot make a determination without a file review. Id. ¶ 11. Moreover, such inquiries to ICE do not necessarily yield accurate or definite results. For example, in Arizona almost 10,000 of the 80,000 requests for immigration-status verification received during 2009 produced an indeterminate answer, which would require DHS to search additional databases and even paper files in an effort to resolve the inquiry.17 See Palmatier Decl. ¶¶ 12, 19.
17 Moreover, the ICE database verification method entails a critical opportunity for grave errors as the fact that a person does not appear in ICE databases may mean either that the person is a U.S. citizen or is a non-citizen who has entered without inspection, depending on whether the
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More fundamentally, it is well-established that police may not extend a stop for purposes other than investigating criminal activity.18 McRae, 81 F.3d at 1534; Mena, 544 U.S. at 101. Thus, the continued detention of an individual solely on the basis of a suspected civil immigration violation, such as unlawful presence, is not permitted under the Fourth Amendment. For example, in United States v. Santillanes, the Tenth Circuit held that the initial stop and questioning of an individual for a non-criminal reason—in that case, violation of a condition of pretrial release—violated the Fourth Amendment. 848 F.2d 1103, 1107-10 (10th Cir. 1988).
Because Section 76-9-1003 allows for the prolonged detention and arrest of individuals in situations involving either no unlawful conduct or merely civil violations, it violates the Fourth Amendment and should be enjoined.
2. Section 11 of HB 497 Violates The Fourth Amendment By Allowing Warrantless Arrests Without Any Criminal Predicate.
Section 11 of HB 497 violates the Fourth Amendment by allowing warrantless arrests of individuals who have not committed any violation, civil or criminal. Courts have long recognized that “[a] warrantless arrest is permissible when an officer ‘has probable cause to believe that a person committed a crime.’” Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (emphasis added) (quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995)); see also Virginia v. Moore, 553 U.S. 164, 171 (2008) (“[W]hen an officer has probable cause to believe a person committed even a minor crime . . . . [t]he arrest is constitutionally reasonable.”);
person was born in the United States. Palmatier Decl. ¶ 12. 18 The only exception to the requirement that the suspicion be of criminal activity is for civil traffic code violations. The Supreme Court has “carve[d] out an exception in the context of traffic stops, i.e., a stop is ‘reasonable’ where an officer suspects an individual has committed a traffic violation.” United States v. Choudhury, 461 F.3d 1097, 1102 (9th Cir. 2006) (citing Whren v. United States, 517 U.S. 806, 810 (1996)). No similar exception has been created for other civil violations, such as unlawful presence in the United States.
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Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Yet HB 497 contemplates warrantless arrests for civil immigration purposes—that is, to apprehend unauthorized immigrants and to turn them over to ICE for removal.
Moreover, HB 497 subjects individuals to arrest for civil immigration violations even when they are not subject to removal at all or have been released pending completion of their removal proceedings. Section 11 authorizes a warrantless arrest when a police officer has “reasonable cause” to believe a person “has been charged or convicted in another state with one or more aggravated felonies,” Utah Code Ann. § 77-7-2(5), “even though such individuals may not be deportable. Similarly, Section 11 authorizes warrantless arrests of individuals who have final removal orders, while many such individuals are routinely released on bond or conditions pending judicial review of those administrative orders. In addition, as explained above in Part I(A)(2)(a), being charged with an aggravated felony is not a ground for removal. In any event, a Utah police officer simply cannot make such determinations in the field. See Gonzalez Decl. ¶ 15; Burbank Decl. ¶ 16; Gascón Decl. ¶¶ 21, 22. In summary, Section 11 circumvents the Fourth Amendment by not requiring any criminal predicate for a warrantless arrest.
C. Plaintiffs Are Likely To Prevail in Their Claim that HB 497 Violates the Constitutional Right To Travel
By subjecting persons traveling in Utah to prolonged stops if they do not have a qualifying identity document, even if they have valid driver’s licenses, HB 497 violates the fundamental right to travel. The Supreme Court has long “recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” Shapiro v. Thompson, 394
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U.S. 618, 629 (1969), overruled on other grounds, Edelman v. Jordan, 415 U.S. 651 (1974). The Supreme Court has repeatedly held that the right is fundamental. Atty. Gen. of N.Y. v. SotoLopez, 476 U.S. 898, 902 (1986) (plurality op.).19 A state law infringes on the right to travel if it uses “‘any classification which serves to penalize the exercise of that right’” even in an “indirect manner,” Soto-Lopez, 476 U.S. at 903 (quoting Dunn v. Blumstein, 405 U.S. 330, 340 (1972)), or treats residents of other states as “unfriendly alien[s]” rather than “welcome visitor[s],” Saenz v. Roe, 526 U.S. 489, 500 (1999). If either condition is met, the law must be analyzed under strict scrutiny and invalidated unless the state can satisfy the “heavy burden of proving that it has selected a means of pursuing a compelling state interest which does not impinge unnecessarily on constitutionally protected interests.” Soto-Lopez, 476 U.S. at 911; id. at 906; Saenz, 526 U.S. at 499; Shapiro, 394 U.S. at 634.
HB 497, on its face, burdens and penalizes certain out-of-state drivers’ exercise of the right to travel. As described above, the law requires a law enforcement officer to verify an individual’s immigration status in certain circumstances and grants wide discretion to verify immigration status in other instances. Utah Code Ann. § 76-9-1003. HB 497 affords a presumption of “lawful presence in the United States” if an individual presents “a valid Utah driver’s license,” or a valid out-of-state driver’s license if the issuing state “requires proof or verification of legal presence in the United States as a condition of issuance of the document.” Utah Code Ann. § 76-9-1004(1). Some states—currently New Mexico and Washington—issue
19 The right to travel has been derived from: the Privileges and Immunities Clause of Article IV, § 2; the Equal Protection Clause; the Commerce Clause; and the Privileges and Immunities Clause of the Fourteenth Amendment. See Soto-Lopez, 476 U.S. at 902.
33

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driver’s licenses without requiring proof of federal immigration status.20 Thus, although Utahans can use their driver’s licenses to create a presumption that they are “lawfully present,” out-ofstate drivers, including New Mexico and Washington drivers such as Plaintiff Larios, cannot use their valid state driver’s licenses for the same purpose. Instead, those out-of-state drivers will be subjected to additional scrutiny by Utah law enforcement officers and will be effectively required to obtain and carry additional documentation that is acceptable under HB 497 while driving or traveling in Utah. See Burbank Decl. ¶ 14 (“… my officers will require additional proof of lawful presence for individuals presenting these forms of identification.”). This is a significant burden, particularly because other states do not have such a requirement.
HB 497 further violates the right to travel because it pressures other states to legislate in response so that their citizens do not face discriminatory treatment in Utah. See Austin v. New Hampshire, 420 U.S. 656, 666-67 (1975) (explaining that such pressure on other states “compounds” the constitutional violation). By creating a discriminatory classification for drivers from certain states, HB 497 interferes with those states’ sovereign power to regulate issuance of their own driver’s licenses.21 This interference will be particularly pronounced in neighboring states such as New Mexico, whose residents often travel to Utah.22
20 N.M. Stat. Ann. § 66-5-9(B) (1978); N.M. Code R. § 18.19.5.12(D) (allowing foreign national to obtain driver’s license with federal tax identification number and valid foreign passport or Matrícula Consular card); Wash. Rev. Code 46.20.035(3) (allowing use of “other available documentation,” on a discretionary basis, for issuance of driver’s license); Fernandez Decl., Exh. N (Washington State Dep’t of Licensing rules allowing issuance of driver’s license if resident provides valid foreign passport or other identification document). 21 HB 497 burdens the ability of every state except Utah to enact driver documentation policies akin to those in New Mexico and Washington. See Austin, 420 U.S. at 666 (holding a New Hampshire statute unconstitutional and finding it especially burdensome because of the risk that it would affect other states’ lawmaking). 22 In fact, Senator Jeff Bingaman of New Mexico wrote to Attorney General Holder expressing
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HB 497’s differential treatment of licensed drivers based on the issuing states’ driver’s license policies cannot withstand strict scrutiny because it is not narrowly tailored to the purpose of the law—immigration regulation and enforcement—even if such a purpose could be deemed a compelling state interest (which it is not).23 HB 497 penalizes all licensed drivers from certain states, including U.S. citizens and other lawfully present immigrants, and subjects them to investigation and prolonged detention to which licensed drivers from Utah and other states are not subject. This discrimination violates the constitutional right to travel. II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF HB 497 IS ALLOWED
TO GO INTO EFFECT Plaintiffs will suffer irreparable harm if HB 497 is not enjoined. Courts have repeatedly recognized that being subjected to the enforcement of an unconstitutional law constitutes irreparable injury. This principle applies not only to laws that violate the Supremacy Clause, see, e.g,, Morales v. Trans World Airlines, 504 U.S. 374, 381 (1992); United States v. Arizona, 2011 WL 1346945, at *19, but also to laws that violate individuals’ constitutional rights. See Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (“‘When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.’”)
concerns that his constituents would be unduly burdened by the implementation of a similar provision under Arizona’s SB 1070. Letter from U.S. Senator Jeff Bingaman of New Mexico to U.S. Attorney General Eric Holder (Apr. 29, 2010), filed in United States v. Arizona, No. 10CV-1061 (D. Ariz. filed June 21, 2010) (copy attached as Exh. O to Fernandez Decl.). This provision in Arizona has since been enjoined. U.S. v. Arizona, 703 F. Supp. 2d 980, 997-98 (D. Ariz. 2010); aff’d 2011 WL 1346945, *8-10 (9th Cir. 2011). 23 HB 497 does not contain an express statement of legislative intent; however, the plain language of the statute as well as its title, “The Illegal Immigration Enforcement Act,” make clear the legislature’s intent to enforce federal immigration law violations by identifying and detaining individuals who have violated federal immigration law. See Almendarez-Torres v. U.S., 523 U.S. 224 (1998) (noting that title of statute is legitimate guide for legislative interpretation); Goodlett v. Louisiana & Nashville R.R., 122 U.S. 391, 408 (1887) (allowing consideration of statute’s title in determining legislative intent).
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(citation omitted); see also Leavitt v. Utah Licensed Beverage Ass’n, 256 F.3d 1061, 1076 (10th Cir. 2001).
As set forth above, HB 497 subjects certain persons in Utah to unconstitutional detention while police officers investigate immigration status. Thus, HB 497 poses an acute and immediate danger to Plaintiffs. Plaintiffs are a diverse group of individuals and organizations who represent racial minorities, national origin minorities, individuals who speak foreign languages or who have accents when speaking English, and individuals who lack the qualified identity documents enumerated in HB 497. If HB 497 takes effect, Plaintiffs will be at risk of discriminatory treatment, unwarranted police scrutiny, prolonged detentions, and arrest every time they come into contact with Utah law enforcement. Several of the individual Plaintiffs have experienced racial profiling in the past, and all of them are worried that if HB 497 goes into effect they will be subjected to repeated stops, questioning, detention, and possibly arrest. See Decl. of Milton Salazar ¶¶ 4-5, 7-9; Decl. of John Doe #1 ¶¶ 8-9; Decl. of Alicia Cervantes ¶¶7, 11. See also Decl. of Robert Archuleta ¶¶ 13-14 (discussing incidents and patterns of racial profiling and pretextual arrests in several Utah counties); Decl. of Frank Cordova ¶ 10; Decl. of Katie Gerken ¶ 6; Decl. of Michael Picardi ¶¶ 19-20; Decl. of Daniel Argueta, ¶ 5, 10-11.
Because of the threat of unreasonable searches and seizures and racial profiling, Plaintiffs will fear having any contact with law enforcement if HB 497 goes into effect. Decl. of Jane Doe ¶ 11-13; Decl. of Alicia Cervantes, ¶¶ 6, 9; Decl. of Eliana Larios ¶8; Decl. of John Doe #2 ¶¶78. This fear will deter them and countless others in Utah from reporting crimes to the police or acting as witnesses, thus making them particularly vulnerable targets for criminals and undermining public safety in their communities. See Burbank Decl. ¶ 8 (citing a recent Utah-
36

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based study showing that people “are significantly less likely to report crimes if they feel officers are engaged in immigration enforcement,” as well as “numerous anecdotal reports of individuals who have fallen victim to a crime and have failed to report it because of the rhetoric surrounding proposed immigration laws.”); Picardi Decl. ¶ 11 (“[A]fter HB 497 is implemented immigrants will no longer trust law enforcement. Immigrants will stop coming forward to report crimes and crimes will skyrocket.”); Gascón Decl. ¶ 16-19; Gonzalez Decl. ¶¶ 10, 11; Venegas Decl. ¶ 5.
Moreover, all Plaintiffs will be harmed as local law enforcement resources are diverted away from criminal law enforcement to effectuate HB 497’s status-verification and immigration enforcement provisions. See Burbank Decl. ¶¶ 11-12; Gascón Decl. ¶ 20. This is not a case with a limited, technical violation of the Supremacy Clause, rather it is an attempt by a state to take over an area of exclusive federal authority—the regulation of immigration.
HB 497’s severe burdening of Plaintiffs’ constitutional right to travel threatens further irreparable harm. Several Plaintiffs regularly drive themselves and loved ones to work, school, church, and charitable activities, using out-of-state licenses or Utah driving privilege cards as their identification. See Decl. of Eliana Larios at ¶ 9; Decl. of Jane Doe ¶¶ 14-15; Decl. of John Doe #1 ¶¶ 10-13. Because they lack the privileged forms of identification that would protect them from additional inquiry by police officers, they will be afraid to travel to Utah or to drive within the state once HB 497 goes into effect, and will suffer irreparable harm due to the limitation on their freedom of movement. See Pro-Choice Network of W.N.Y. v. Project Rescue W.N.Y., 799 F. Supp. 1417, 1428, 1430 (W.D.N.Y. 1992) (holding alleged violation of right to travel constitutes irreparable injury), aff’d in part, rev’d in part on other grounds sub nom. Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357 (1997). See, e.g., Larios Decl. ¶¶ 5-9
37

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(describing how she will curtail her visits to Utah to see her father, recently diagnosed with cancer, for fear that her Washington driver license and physical appearance will subject her to prolonged detention while officers attempt to verify her citizenship).
Finally, the organizational Plaintiffs will suffer irreparable harm because they will need to divert organizational resources away from core mission activities to address their members’ concerns about the law and repercussions from its enforcement. See Decl. of Juan M. Ruiz ¶¶ 10-11, 15-20; Decl. of Eliseo Medina ¶ 12; Decl. of Frank Cordova ¶¶ 13-15; Decl. of Katie Gerken ¶ 9; Decl. of Daniel Argueta ¶¶ 6-7; see also Decl. of Robert Archuleta ¶ 8. The missions of the organizational Plaintiffs have been and will continue to be frustrated as their members will be afraid to gather in public places, attend marches and meetings, and engage in other advocacy and organizing activities that might bring them into contact with law enforcement. Decl. of Juan M. Ruiz ¶¶ 7-8; Decl. of Eliseo Medina ¶ 13; Decl. of Katie Gerken ¶¶ 8-9; Decl. of Michael Picardi ¶ 12; Decl. of Frank Cordova ¶¶ 9-10. III. THE BALANCE OF THE EQUITIES TIPS SHARPLY IN FAVOR OF
GRANTING A PRELIMINARY INJUNCTION A preliminary injunction will impose only minimal harm on the state of Utah, because Plaintiffs ask merely for the status quo to be maintained while serious questions about the law’s constitutionality are adjudicated. This is precisely the purpose of a preliminary injunction: “to preserve the status quo pending a final determination of the case on the merits.” Keirnan v. Utah Transit Authority, 339 F.3d 1217, 1220 (10th Cir. 2003). Any harm to the State in adhering to the status quo is dramatically outweighed by the immediate and irreparable harms Plaintiffs will face, outlined above, if HB 497 is allowed to go into effect. The requested preliminary injunction would prevent the implementation of a new law that
38

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would upset the longstanding allocation of authority between state and federal government, intrude on the federal government’s ability to regulate immigration and conduct foreign affairs, and impose irreparable harms on Plaintiffs and the public. Therefore, the equities tip sharply in favor of granting a preliminary injunction while the constitutionality of HB 497 is decided. See Chamber of Commerce v. Edmondson, 594 F.3d 742, 771 (10th Cir. 2010) (affirming district court’s preliminary injunction because “Oklahoma does not have an interest in enforcing a law that is likely constitutionally infirm.”); Leavitt, 256 F.3d at 1076 (balance of equities favors preliminarily enjoining state statute likely to be held unconstitutional); Nat’l Ctr. For Immigrants’ Rights, Inc. v. INS, 743 F.2d 1365, 1368, 1370-71 (9th Cir. 1984) (affirming district court decision that irreparable harm to plaintiffs outweighed harm to government from delayed implementation of regulation). IV. PRELIMINARILY ENJOINING HB 497 WILL NOT BE ADVERSE TO THE
PUBLIC INTEREST Preliminarily enjoining HB 497 will not be adverse to the public interest. In fact, the interests of Plaintiffs and the general public are aligned in favor of a preliminary injunction in this case. The public interest is not served by allowing an unconstitutional law to take effect. See Leavitt, 256 F.3d at 1076; American Civil Liberties Union v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). Where civil rights are at stake, “the public interest … favors granting [an] injunction as the public as a whole has an interest in protecting constitutional rights.” Adams v. Baker, 919 F. Supp. 1496, 1505 (D. Kan. 1996). And courts have specifically held that enjoining a state statute that is preempted by federal law will serve the public interest. See Edmondson, 594 F.3d at 771 (quoting Bank One v. Guttau, 190 F.3d 844, 848 (8th Cir.1999)); Villas at Parkside Partners, 701 F. Supp. 2d 835, 859 (N.D. Tex. 2010) (“[T]he public interest favor[s]
39

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preserving the uniform application of federal immigration standards.”). This is particularly true

in the field of immigration, in light of the risk of encroachment on the federal government’s

relations with foreign countries. See Hines, 312 U.S. at 64; United States v. Arizona, 2011 WL

1346945, at *21-23. Without an injunction, Utah residents and visitors will face enforcement of

a statutory scheme that not only violates the Constitution in several respects, but also presents a

grave risk of other harms to the public interest, such as the undermining of public safety as a

result of diversion of law enforcement resources away from criminal investigations.

CONCLUSION

Plaintiffs have met all four factors for the issuance of a preliminary injunction.

Therefore, Plaintiffs respectfully request that the Court grant their Motion for a Preliminary

Injunction barring the enforcement of HB 497.

Dated: May 6, 2011

Respectfully submitted,

/s/ Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

/s/ Linton Joaquin NATIONAL IMMIGRATION LAW CENTER

/s/ Darcy M. Goddard AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC.

/s/ Elora Mukherjee AMERICAN CIVIL LIBERTIES UNION FOUNDATION RACIAL JUSTICE PROGRAM

/s/ Bradley S. Phillips MUNGER, TOLLES & OLSON LLP

40

Case 2:11-cv-00401-CW Document 37 Filed 05/06/11 Page 49 of 49

CERTIFICATE OF SERVICE
I, Darcy M. Goddard, hereby certify that on this 6th day of May 2011, I electronically filed the foregoing MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION and its supporting attachments with the Clerk of the Court using the CM/ECF system, which sent notification to the following:

Jerrold S. Jensen UTAH ATTORNEY GENERAL'S OFFICE (160-140857) 160 E 300 S PO BOX 140857 SALT LAKE CITY, UT 84114-0857 (801)366-0350 Email: jerroldjensen@utah.gov

Thomas D. Roberts UTAH ATTORNEY GENERAL'S OFFICE (160-140857) 160 E 300 S PO BOX 140857 SALT LAKE CITY, UT 84114-0857 (801)366-0353 Email: ThomRoberts@utah.gov

Dated: May 6, 2011

Signed: /s/ Darcy M. Goddard Darcy M. Goddard

41

 
 ..
 ...


Case 2:11-cv-00401-CW Document 45 Filed 05/11/11 Page 1 of 3

FILED U.S. DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT 2m \ HAY I \ I P 2: I Lt

DISTRICT OF UTAH, CENTRAL DIVISION

DISTRICT OF UTAH

B

y:--DEPUTY

-C\-.. E:.t-~K;

-

­

UTAH COALITION OF LA RAZA et aI.,

ORDER

Plaintiffs,
v.
GARY R. HERBERT and MARK SHURTLEFF,

Case No. 2:11-CV-401 CW Judge Clark Waddoups

Defendants.

This matter is before the court on Plaintiffs' Motion for a Temporary Restraining Order.! The Illegal Immigration Enforcement Act (H.B. 497) was to take effect May 10, 2011. Plaintiffs sought to enjoin the law from going into effect on the grounds that it violates the Supremacy Clause, the Fourth Amendment, and the Right to Travel. A hearing on Plaintiffs' motion was held on May 10,2011. After due consideration of the parties' filings and oral arguments, and otherwise being fully advised,
IT IS HEREBY ORDERED that Plaintiffs' Motion for a Temporary Restraining Order is GRANTED for the reasons stated below:
1. Plaintiffs presented evidence to support their assertion that their constitutional rights will be violated if H.B. 497 goes into effect. The court concludes that such harm is
! The plaintiffs in this matter are Utah Coalition ofLa Raza; Service Employees International Union; Workers' United Rocky Mountain Joint Board; Centro Civico Mexicano; Coalition ofUtah Progressives; Latin American Chamber of Commerce; Salt Lake City Brown Berets; Jane Doe # 1; John Doe #1; Milton Ivan Salazar-Gomez; Eliana Larios; Alicia Cervantes; and John Doe #2 (collectively "Plaintiffs").

Case 2:11-cv-00401-CW Document 45 Filed 05/11/11 Page 2 of 3
irreparable. 2. Plaintiffs seek to preserve the status quo until the court can more fully address their
Complaint. Plaintiffs have presented sufficient evidence to create a substantial question about the constitutionality of H.B. 497. The court concludes this is sufficient to meet the "likelihood of success on the merits" prong. 3. The court finds the balance of the harm weighs in favor of Plaintiffs. Because Plaintiffs' harm would be irreparable, it is a serious harm. In contrast, there is no apparent harm to the defendants to maintain the status quo. 4. The court also finds that the public interest weighs in favor of Plaintiffs. The public has an interest in ensuring that laws which govern a society are constitutional and that constitutional rights are protected. Although the public also has an interest in seeing laws take effect that have been signed into law, such interest does not outweigh the interest in ensuring that a law is proper. Based on these findings, it is FURTHER ORDERED that H.B. 497 is stayed and may not be executed or enforced by the defendants or those who work under the direction of the defendants, whether directly or indirectly. This stay shall remain in effect until further order of the court. Plaintiffs' Motion for Preliminary Injunction shall be heard on July 14, 2011 at 8:30. Defendants shall file their opposition to Plaintiffs' motion on or before June 8, 2011. Plaintiffs shall file their reply on or before June 22, 2011. This schedule may be adjusted if a party determines that additional time is necessary to complete briefing.
-2­

...

Case 2:11-cv-00401-CW Document 45 Filed 05/11/11 Page 3 of 3

-{y DATED this /1

of May, 2011.

BY THE COURT:
~../

Clark Waddoups United States District Judge

-3­

 
 Case 2:11-cv-00401-CW Document 183 Filed 02/21/12 Page 1 of 2

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

UTAH COALITION OF LA RAZA et al., Plaintiffs,
v. GARY R. HERBERT and MARK SHURTLEFF,
Defendants.

ORDER Case No. 2:11-cv-401 CW Consolidated Case No. 2:11-cv-1072 Judge Clark Waddoups

On February 17, 2012, this court heard oral argument on the plaintiffs’ motions for preliminary injunction.1 Important issues have been raised involving the Supremacy Clause and preemption. It is clear that the United States has preempted state action to a certain degree in the area of immigration. How extensive that preemption is, however, is less clear. In Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968 (2011), the Supreme Court held that an Arizona law pertaining to business licensing was not preempted by federal immigration statutes. Plaintiffs contend that ruling was limited to the area of employment. Defendants contend it should be read more broadly.
Shortly, the Supreme Court is expected to issue a decision on another immigration-related law from Arizona. Although Arizona’s law is different from Utah’s law in several respects, some aspects are sufficiently similar that the Supreme Court’s ruling likely will inform this court in its
1 The Utah Coalition of La Raza and related plaintiffs filed one motion for preliminary injunction. The United States of America, as consolidated plaintiff, filed a separate motion for preliminary injunction.

Case 2:11-cv-00401-CW Document 183 Filed 02/21/12 Page 2 of 2
decision. Because this case addresses significant constitutional issues, the court does not believe it would be helpful to the parties for the court to rule on the present motions before it receives the additional guidance from the Supreme Court. It therefore will reserve ruling until the Supreme Court has issued its decision. The present injunction shall continue in place until the court rules on the pending motions for preliminary injunction.
DATED this 21st day of February, 2012. BY THE COURT: ____________________________________ Clark Waddoups United States District Judge
-2-

 
 Case 2:11-cv-00401-CW Document 241 Filed 12/04/14 Page 1 of 5

Linton Joaquin* Karen C. Tumlin* Shiu-Ming Cheer* Melissa S. Keaney* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 Telephone: (213) 639-3900 Facsimile: (213) 639-3911 joaquin@nilc.org tumlin@nilc.org cheer@nilc.org keaney@nilc.org
Omar C. Jadwat* Andre I. Segura* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 ojadwat@aclu.org asegura@aclu.org
Attorneys for Plaintiffs
* Admitted Pro hac vice + Counsel for all plaintiffs except SEIU and
Workers’ United

Cecillia D. Wang* Jennifer Chang Newell* Katherine Desormeau* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 cwang@aclu.org jnewell@aclu.org kdesormeau@aclu.org
Leah Farrell (USB No. 13696) AMERICAN CIVIL LIBERTIESUNION OF UTAH FOUNDATION, INC. 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Facsimile: (801) 532-2850 lfarrell@acluutah.org
Bradley S. Phillips*+ MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 brad.phillips@mto.com

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH - CENTRAL DIVISION

_____________________________________________________________________________

Utah Coalition of La Raza, et al.,

Plaintiffs,

FINAL JUDGMENT

v.

Case No. 2:11-cv-00401-CW;

Governor Gary R. Herbert, et al.,

Case No. 2:11-cv-1072-CW

Defendants.

Judge: Honorable Clark Waddoups

Case 2:11-cv-00401-CW Document 241 Filed 12/04/14 Page 2 of 5
Pursuant to the ruling of this Court on June 18, 2014 and the parties’ Stipulation, the Court hereby enters final judgment in this action as follows:
1. For the reasons given in my Memorandum Decision and Order of June 18, 2014, the Defendants State of Utah, Governor Gary R. Herbert, Attorney General Sean Reyes, and their successors, are PERMANENTLY ENJOINED from implementing Section 6(2) of H.B. 497 (Utah Code Ann. § 76-9-1006(2)); Section 11 of H.B. 497 (Utah Code Ann. § 77-72(5)); and Utah Code Ann. § 76-10-2901, as amended. The State may implement the remaining sections of H.B. 497 subject to the limiting constructions outlined herein.
2. The Court adopts the construction of Section 3 of H.B. 497 (Utah Code Ann. § 76-9-1003) as set forth in Utah Attorney General Opinion No. 2012-001 (Dkt. No. 146-3) as follows: Section 3 only requires (or authorizes, where indicated) officials to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released. Officials must have a lawful stop, detention, or arrest as a predicate to any verification. Section 3 does not provide an independent basis for stops, detentions or arrests. Nor may a stop, detention or arrest be prolonged merely to confirm a person’s immigration status. Officers may not delay or postpone addressing the original purpose of the stop, detention, or arrest. In the enforcement of Section 3, law enforcement officers are also prohibited from considering race, color, or national origin, except to the extent permitted by the Constitution.
3. Section 4 of H.B. 497 (Utah Code Ann. § 76-9-1004) simply outlines what forms of identification (or what affirmations) constitute acceptable verification of immigration status, in accordance with the otherwise constitutionally permissible requirement of Section 3
2

Case 2:11-cv-00401-CW Document 241 Filed 12/04/14 Page 3 of 5
to verify immigration status in certain situations. Section 4 does not impose on aliens any new requirement to register, nor does it make failure to register a state offense. Section 4 does not require any person to carry any immigration documents, nor does it require or authorize law enforcement officers to seek to ascertain whether persons are carrying certain immigration documents as required under federal law. As with Section 3, Section 4 of H.B. 497 does not provide an independent basis for a stop, detention, or arrest and in the absence of an underlying, independent basis, law enforcement officials are not authorized to seek identification from a person for the purpose of seeking to ascertain their immigration status or nationality. Under Section 4, an officer can use any means by which the officer might normally and reasonably verify a person’s identity and status.
4. Section 5 of H.B. 497 (Utah Code Ann. § 76-9-1005) must be considered in context and read in relation to other relevant sections, especially Section 3. Read in conjunction with the rest of H.B. 497 and the limiting construction of the Utah Attorney General’s Opinion, pursuant to Section 5, officials must have a lawful stop, detention, or arrest as a predicate to any verification; verification may not prolong any such detention; suspicion that an individual may be unlawfully present in the United States does not constitute such a lawful basis for detention; officials must have continuous lawful custody over the individual during the course of the transportation; and the state official must be acting under federal direction to transport the individual to a federal detention facility. If any of the predicates is missing, transportation of the individual to a federal facility is not permissible under Section 5.1
1 This paragraph describes the requirements of H.B. 497 and should not be understood as describing federal law or federal policy.
3

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5. Subsection 1 of Section 6 of H.B. 497 (Utah Code Ann. § 76-9-1006(1)) must be construed to include assistance only with those activities that have been invited or expressly authorized by the federal government. Consistent with Section 9 of H.B. 497, which requires that the Act must be implemented ‘in a manner that is consistent with federal laws that regulate immigration,’ nothing in subsection 1 of Section 6 would prohibit a locality from adopting a policy requiring compliance with the Constitution and/or federal law as a predicate for assisting the federal government in immigration enforcement. Subsection 2 of Section 6 of H.B. 497 (Utah Code Ann. § 76-9-1006(2)) is impermissible because it seeks to regulate in the field of alien registration, which is fully occupied by the federal government. Arizona v. United States, 567 U.S. ____, 132 S. Ct. 2492 (2012), makes clear that any regulation in the field of alien registration, regardless of what type, is preempted.
6. Neither La Raza nor the United States directly challenge Sections 7, 8, or 9 of H.B. 497 (respectively, Utah Code Ann. § 76-9-1007, 1008, and 1009). Because there are no direct challenges to these provisions, the Court does not address them.
7. Utah Code Ann. § 76-10-2901 is impermissible because it seeks to regulate the entry and residence of aliens and makes new state offenses for conduct already criminalized by Congress’ existing immigration regulation scheme. In Arizona the Supreme Court held that states cannot regulate behavior in a field that is occupied by a complete and comprehensive scheme of regulation, and that the States cannot criminalize behavior already made criminal by federal law. Criminalizing this behavior interferes with Congress’ chosen balance.
8. Section 11 of H.B. 497 (Utah Code Ann. § 77-7-2(5)) is impermissible because it seeks to bestow on state officers greater discretion and authority than that possessed by
4

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federal immigration officials, establishes a de facto state immigration policy which may be in conflict with Congress’ carefully crafted policy, and violates the removal process that has been entrusted to the federal government.
9. Any of Plaintiffs La Raza’s or the United States’ remaining claims which have not been adjudicated are dismissed without prejudice.
AND IT IS SO ORDERED.

Dated: December 3, 2014

____________________________________ Honorable Clark Waddoups UNITED STATES DISTRICT COURT JUDGE

Approved as to form and content:

/s/ Jennifer C. Newell JENNIFER CHANG NEWELL* American Civil Liberties Union Foundation
Immigrants’ Rights Project 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 jnewell@aclu.org
Attorney for Plaintiffs Case No. 2:11-cv-0401-CW
/s/ Philip S. Lott PHILIP S. LOTT (Bar #5750) Assistant Utah Attorneys General 160 East 300 South, Sixth Floor Post Office Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 phillott@utah.gov

/s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487)* Senior Trial Counsel United States Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 scott.simpson@usdoj.gov
Attorney for United States of America Case No. 2:11-cv-1072-CW

Attorney for Defendants Case No. 2:11-cv-0401-CW Case No. 2:11-cv-1072-CW

*Admitted pro hac vice

5

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

UTAH COALITION OF LA RAZA et al., Plaintiffs,
v. GARY R. HERBERT et al.,
Defendants.

MEMORANDUM DECISION AND ORDER
Case No. 2:11-cv-401 CW Related Case 2:11-cv-1072 Judge Clark Waddoups

INTRODUCTION AND BACKGROUND
During its 2011 legislative session, the Utah State Legislature enacted the Utah Illegal
Immigration Enforcement Act (hereinafter “H.B. 497” or the “Act”), in conjunction with three
other bills, as part of a comprehensive “Utah solution” on immigration reform.1 H.B. 497 was
signed into law by Governor Gary Herbert on March 15, 2011, and was scheduled to take effect
on May 10, 2011.
On May 3, 2011, Plaintiff Utah Coalition of La Raza and others2 (collectively “La Raza”)
filed a Complaint seeking declaratory and injunctive relief. La Raza seeks to have the entire Act
declared unconstitutional based on alleged violations of both the United States and Utah’s
1 See News Release, Governor Herbert Signs Immigration Reform Legislation (Mar. 15, 2011). Of the four bills named by the Governor’s office as part of this “solution,” only H.B. 497 is challenged here. The other three bills may be roughly summarized as follows: H.B. 116 modified the Utah Workforce Services Code to establish a guest worker program that provides for the issuance of work permits to undocumented individuals. H.B. 469 required the Governor to create the Utah Pilot Sponsored Resident Immigrant Program. H.B. 466 called for the creation of a commission to study the possibility of an agreement and/or program between Utah and Mexico to promote and increase the issuance of federal non-immigrant visas. 2 The additional named Plaintiffs are: Service Employees International Union; Workers United Rocky Mountain Joint Board; Centro Civico Mexicano; Coalition of Utah Progressives; Latin American Chamber of Commerce; Salt Lake City Brown Berets; Milton Ivan Salazar-Gomez; Eliana Larios; Alicia Cervantes; Jane Doe #1; John Doe #1; and John Doe #2.
1

constitutions. On May 6, 2011, La Raza filed a Motion for Preliminary Injunction, seeking to enjoin state enforcement of H.B. 497. A hearing was held on May 10, 2011, and this court granted a Temporary Restraining Order, staying H.B. 497 pending further order. See Order (Dkt. No. 45).
The United States filed a parallel action on November 22, 2011and immediately moved to consolidate that case with the present one. After the court granted that motion, the United States then filed its own motion for preliminary injunction. In its motion, however, the United States only seeks to enjoin enforcement of three sections of H.B. 497 – Sections 3, 10, and 11.
On February 17, 2012, the court held a hearing on both motions for preliminary injunction and took the matter under advisement. Four days later, the court issued a written order stating that, given the significant constitutional issues raised by this case, and the likelihood that the Supreme Court would address some of the issues in a forthcoming ruling, it would not be prudent to rule until it had received such guidance.3 See Order (Dkt. No. 183).
On June 25, 2012, the Supreme Court announced its holding in Arizona v. United States, 567 U.S. ____, 132 S. Ct. 2492 (2012). In the wake of this ruling, the parties submitted additional briefing on the motions. La Raza also filed an additional motion for preliminary injunction, seeking to enjoin section 5 of H.B. 497. The court then held another hearing on February 15, 2013 to address all three motions. The court took the motions under advisement and stated that the court’s previous injunction would remain in effect pending its decision. The court now rules on the three outstanding motions.
For the reasons stated below, La Raza’s Motion for Preliminary Injunction (Dkt. No. 36) is GRANTED IN PART and DENIED IN PART, the United States’ Motion for Preliminary
3 At the hearing and in the order, the court also stated that the temporary “injunction shall continue in place until the court rules on the pending motions for preliminary injunction.” Order, at 2 (Dkt. No. 183).
2

Injunction (Dkt. No. 136) is GRANTED IN PART and DENIED IN PART, and La Raza’s Motion for Preliminary Injunction Against § 5 of H.B. 497 (Dkt. No. 201) is DENIED.
ANALYSIS La Raza’s first motion for preliminary injunction challenges the entirety of H.B. 497 on its face based on the Supremacy Clause. It then makes specific facial challenges to individual sections of the Act in its first and second motions for preliminary injunction. In contrast, while the United States makes a facial challenge based on the Supremacy Clause, it only challenges Sections 3, 10, and 11 of the Act rather than the Act as a whole. Nevertheless, the three motions are highly interrelated and many of the controlling legal principles overlap. The court will therefore address the motions together, starting first with the overall facial challenge, and then reviewing H.B. 497 section by section,4 to address the specific facial challenges that have been made by La Raza and the United States. I. OVERALL FACIAL CHALLENGE
A. Challenge La Raza alleges that H.B. 497, as a whole, violates the Supremacy Clause of the United States Constitution in at least two ways. First, La Raza claims that H.B. 497 is preempted as an impermissible “state regulation of immigration,” a power reserved solely to the federal government. Preliminary Inj. Mem., at 9 (Dkt. No. 37). Additionally, La Raza claims that H.B. 497 is subject to conflict preemption because it creates an obstacle to accomplishing the purposes of Congress’ immigration legislation. Id.
4 Section 1 of the bill states the title of the Act. Section 2 provides definitions for terms used in the Act. Thus, the court begins its analysis with Section 3.
3

B. Legal Principle of Preemption As the Supreme Court observed, “[f]ederal governance of immigration and alien status is extensive and complex.” Arizona, 132 S. Ct. at 2499. Despite its complex nature, there are wellestablished principles which guide the interpretation and application of immigration-related legislation. The first and most prominent of these is the principle of preemption. The principle of preemption has its roots in the Supremacy Clause of the U.S. Constitution, which states federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, § 1, cl. 2. Thus, when Congress, acting within the bounds of its constitutional authority, enacts legislation regulating some matter, it has the power to preempt any existing or subsequent state law. See Arizona, 132 S. Ct. at 2500-2501 (citing Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000); Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 210-211 (1824)). Under this authority, Congress may, by explicit edict, prohibit state legislation in a given area of law. Id.; see Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008); Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). This type of preemption is known as “express preemption.” In addition to express preemption, there is another type of preemption – implied preemption – which may be broadly grouped into two sub-categories: “field preemption” and “conflict preemption.” Field preemption precludes a state “from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Arizona, 132 S. Ct. at 2501. The intent to occupy a field in such a way that state regulations become impermissible “can be inferred from a framework of regulation ‘so pervasive
4

. . . that Congress left no room for the States to supplement it’ or where there is a ‘federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see English v. Gen. Elec. Co. 496 U.S. 72, 79 (1990)) (alteration in original). Matters left unaddressed, however, in a “comprehensive and detailed” regulatory “scheme are presumably . . . subject to the disposition” of state law. O’Melveny & Myers v. F.D.I.C., 512 U.S. 79, 85 (1994).
Conflict preemption preempts state laws which make “compliance with both federal and state regulations . . . a physical impossibility.” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963) (citations omitted). It also preempts state laws which stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also Crosby, 530 U.S. at 372-73. When state legislation is thus preempted, any conflicting state laws are “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981) (citations omitted).
This dual-category of express and implied preemption guides the examination of both the overall facial challenge as well as the specific facial challenges to H.B. 497’s individual sections.5
C. Application The Constitution commits to Congress the authority and power to “establish an uniform Rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4, as well as the power “[to] regulate Commerce with foreign Nations,” U.S. Const. art. I, § 8, cl. 3. Taken together, these clauses
5 For a fuller explication of the principle of preemption, as well as its relationship to the principle of Federalism in the context of immigration reform, see Parts I-III of the Arizona decision. As noted, Arizona deals with an Arizona law which bears many similarities to H.B. 497. It is the Supreme Court’s most recent and definitive opinion on state regulation of immigration and, as such, its principles permeate this court’s consideration of the motions before it.
5

include and necessitate a broad power to regulate immigration and the status of aliens. See Toll v.
Moreno, 458 U.S. 1, 10 (1982). This power is underscored by Congress’ “broad authority over
foreign affairs,” generally. Id. (citing United States v. Curtiss-Wright Export Corp., 299 U.S.
304, 318 (1936); Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952); Mathews v. Diaz, 426
U.S. 67, 81 n.17 (1976)).
Pursuant to this power, Congress has enacted an extensive and complex scheme for
regulating immigration and alien status, which is codified in Title 8 of the United States Code.
See Arizona, 132 S. Ct. at 2499. This includes “specif[ying] categories of aliens who may not be
admitted to the United States,” 8 U.S.C. § 1182, prohibiting unlawful entry and reentry into the
United States, id. §§ 1325, 1326, requiring registration and proof of registration status by aliens
admitted to the country, id. §§ 1301-1306, as well as many other provisions. Id.
La Raza argues that the Constitution not only grants Congress these powers, but by so
doing, the Supremacy Clause “forbids any state regulation of immigration,” period. Memo. in
Supp. Mot. for Preliminary Inj. (Dkt. No. 37, at 9). In other words, La Raza claims that Utah is prohibited from regulating immigration by virtue of field-preemption.6 While it is clear that
Congress has regulated extensively in the field of immigration, it is not clear that the regulation
has been so pervasive that Congress left “no room” to supplement immigration regulation. If this
were the case, the Court in Arizona could have simply struck down all of S.B. 1070 as field
6 In La Raza’s Reply, the structure of its argument would suggest a distinction between being an “impermissible state regulation of immigration” and being conflict or field preempted. However, the only way there could be such a distinction is if there were language in the Constitution or federal law expressly preempting state regulation of immigration. La Raza points to no such language, nor is any cited by the Supreme Court in Arizona. Indeed, if there were language expressly preempting any and all state regulation of immigration, both Arizona and this case could be summarily decided on that basis alone. Because no such language exists in the Constitution or federal law, any classification of legislation as “impermissible” must be inferred. True, some case law, like the heavily-relied upon De Canas v. Bica, 424 U.S. 351 (1976) case, suggests that the power to regulate immigration is exclusively a federal power. But any such language is a judicial declaration under either field or conflict preemption analysis. Thus, in order for the overall facial challenge to succeed, this court would have to find that H.B. 497, in its entirety, is either field preempted or conflict preempted.
6

preempted. On the contrary, however, the Court crafted a careful analysis, deliberately distinguishing among various fields within the broader field of state regulation of immigration. This resulted in the Court reaching varying conclusions for the four challenged provisions.
The provision most analogous to Utah’s H.B. 497 is Section 2(B) of Arizona’s S.B. 1070. That section requires an officer to make a reasonable attempt to verify the status of a person during a stop, detention, or arrest, if the officer has a reasonable suspicion that the person is an undocumented alien. Arizona, 132 S. Ct. at 2507 (citing Ariz. Rev. Stat. Ann. § 11-1051(B) (West 2012). It further requires that a person’s immigration status be verified before that person is released from an arrest. Id. The Court found that Section 2(B) could be read to avoid constitutional concerns and enforcement of the provision was not inherently problematic. Accordingly, it held “[i]t was improper . . . to enjoin § 2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objections.” Id. at 2510.
In contrast, the court concluded the other three challenged provisions were preempted. Section 3 of S.B. 1070 made it a crime for a person to be in Arizona without proper immigration papers. The Court held the section was field preempted because it intruded on a specific area of immigration regulation, namely alien registration. Arizona, 132 S. Ct. at 2502.7 As to Section 5(C), which made it a crime for a person to apply for or perform work if the person lacked proper immigration papers, the Court held the State was not expressly preempted, but it was conflict preempted. Id. at 2505. Section 6 of S.B. 1070 authorized officers to make warrantless arrests if an officer had probable cause to believe the person was subject to deportation. The Court held
7 To the extent the specific reasoning of the Court in Arizona applies to the specific provisions challenged here, such as is the case with the provisions regarding alien registration, it will be discussed in more detail, infra. What is important here, however, is not what the Court did find, but what it did not find – namely, it did not find that it was entirely impermissible for the state to regulate immigration in any way.
7

Section 6 was also preempted because “the removal process is entrusted to the discretion of the Federal Government,” and actions by Arizona could interfere with the Nation’s foreign policy decisions. Id. at 2506-2507.
At no point, however, did the Court find that state regulation of immigration was per se impermissible, despite ample opportunity to do so. Instead, the Court opted to engage in a detailed, section-by-section analysis of the challenged provisions. Tellingly, the Court in its final paragraphs wrote, not that Congress has exclusive power to regulate immigration, as La Raza contends, but rather that “[t]he National Government has significant power to regulate immigration.” Id. at 2510 (emphasis added). Accordingly, while a “state may not pursue policies that undermine federal law,” it can pursue immigration regulation under limited circumstances. Id.
Therefore, in the absence of constitutional language expressly preempting all immigration-related state legislation, and given the Supreme Court’s failure to hold that the entire field of immigration regulation is either conflict or field preempted, La Raza’s overall facial challenge fails. This court now proceeds to address the specific section-by-section facial challenges of H.B. 497.
II. SECTION 3 A. Challenges La Raza and the United States both challenged Section 3 of H.B. 497. Section 3 provides
for mandatory and discretionary verification of a person’s immigration status, subsequent to a lawful stop, detention, or arrest. Utah Code Ann. § 76-9-1003(1)(a) (2011). In the event an individual is determined to be an illegal alien, Section 3 also directs law enforcement officials to contact the Department of Homeland Security. Id. § 76-9-1003(4).
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The United States initially challenged this section as conflict preempted because it “imped[es the] operation of federal enforcement systems and [precludes] cooperation with the federal government, despite an explicit federal statutory provision requiring such cooperation.” (Dkt. No. 137, at 25). Following the Supreme Court’s Arizona ruling, however, “the United States acknowledge[d] that, on the present record, the Supreme Court’s ruling . . . does not require immediate preemption of Utah’s analogous verification provision” stated in Section 3 of H.B. 497.8 (Dkt. No. 194, at 2, 11-12). The court therefore focuses only on La Raza’s challenge.
La Raza contends that Section 3 undermines federal immigration enforcement priorities. It also contends Section 3 violates the Fourth Amendment protection against unreasonable and prolonged detention and the individual Constitutional right to travel under the Privileges and Immunities provision. (Dkt. No. 37, at 14-30).
B. Legal Principles As stated above, the Supreme Court considered the lawfulness of a similar provision under Arizona’s S.B. 1070, namely Section 2(B). In doing so, the Court noted that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns” because “it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.” Arizona, 132 S. Ct. at 2509 (citations omitted). The Court then observed, however, the S.B. did not require detention solely to verify immigration status. Instead, it could be interpreted as only requiring that officers make a reasonable attempt to verify status – reasonability being understood to mean, among other things, verifying status in a way that does not prolong the stop. Id. (citing Muehler
8 To the extent Utah’s enforcement of the statute, “or its interpretation by state courts, interferes with the administration of federal immigration laws,” the United States reserved its right to challenge Section 3. (Dkt. No. 194, at 2).
9

v Mena, 544 U.S. 93, 101 (2005) (“finding no Fourth Amendment violation where questioning about immigration status did not prolong a stop.”)). Hence, it was possible for a state court to construe Section 2(B)9 in such a way as to avoid concerns about unreasonable delays and warrantless arrests. Id.
Finally, the Court noted that “[c]onsultation between federal and state officials is an important feature of the immigration system.” Arizona, 132 S. Ct. at 2508. “Congress has done nothing to suggest it is inappropriate” for states to communicate with the federal government regarding immigration matters. Id. “Indeed, it has encouraged the sharing of information about possible immigration violations.” Id. (citing 8 U.S.C. § 1357(g)(10(A)). “The federal scheme thus leaves room for a policy requiring state officials to contact [government officials] as a routine matter.” Id. (citation omitted).
Consequently, it held that “if Section 2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.” Id. at 2509.
C. Application The provision of H.B. 497 at issue here, Section 3, is highly analogous to Arizona S.B. 1070, Section 2(B). Like the Arizona law, it mandates or authorizes state officials to attempt to ascertain the immigration status of individuals detained pursuant to a lawful stop, detention, or arrest. Whether verification of status is mandatory or discretionary depends on the underlying or
9 The Court noted “[t]he nature and timing of [the Arizona] case counsel[ed] caution” because state courts had not yet had the opportunity to provide “a definitive interpretation.” Arizona, 132 S. Ct. at 2509.
10

alleged crime, and whether an individual is arrested and/or booked into jail.10 Utah Code Ann. § 76-9-1003(1) (2011).
Like the Arizona law, Section 3 requires officials who discover relevant information about the immigration status of a detained individual to communicate that information to federal officials. And like the Arizona law, Section 3 contains several safeguards for protecting the constitutional rights of those detained. For example, it requires status inquiries to be done within a reasonable period of time, id. § 76-9-1003(2)-(3), and it prohibits officials from considering race, color, or national origin, except to the extent permitted by the Constitution. Id. § 76-91003(5). Likewise, it does not permit the stop, detention, or arrest of individuals solely to verify their immigration status. As in Arizona, these protections help to alleviate unsubstantiated concerns about Section 3 in practice.
Moreover, in 2012, the Utah Attorney General issued an opinion on how Section 3 of H.B. 497 is to be implemented. When “‘evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered.”’11 Quik Payday, Inc. v. Stork, 549 F.3d 1302, 1308 (10th Cir. 2008) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982)). The opinion states, in most relevant part:
10 If an individual cannot identify him or herself after being arrested for a felony or class A misdemeanor, or is arrested and booked for a class B or class C misdemeanor, then an officer is required to verify that person’s immigration status. Utah Code Ann. § 76-9-1003(1)(a) (2011). If, however, an officer stops a person for a class B or C misdemeanor, and cannot identify the person, then Section 3 permits, but does not require, the officer to verify immigration status. Id. § 76-9-1003(1)(a)(ii). 11 As Defendants note in their brief, the Attorney General’s Opinion on H.B. 497 is of no small significance, and must be afforded due consideration. (Dkt. No. 146, at 4 n.3).
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Identification of an Arrested or Stopped Person:
In the absence of an underlying voluntary encounter, legal stop, detention, or arrest, state or local law enforcement is not authorized to either seek identification from persons for the purpose of ascertaining their citizenship status or nationality, nor are they authorized to attempt to verify the person’s citizenship or immigration status.
Any time a person is lawfully stopped, detained, or arrested (again, for a reason unrelated to their citizenship status or nationality), law enforcement may seek to identify that person. A law enforcement officer may use his or her discretion in identifying the person and is not required to ask for, or demand, any specific documentation. An officer may identify a person based on a valid federal, state, or local identification document that includes a photo or biometric identifier of the holder, including a valid Utah driver license, a valid tribal enrollment card, or a valid license from another State.
Even in the absence of any of these specific documents, it is acceptable for an officer to otherwise verify the identification of a person through any other means on which the officer might normally and reasonably rely. The Act does not require any person to carry certain documents with them at all times[,] nor does it require or authorize State or local law enforcement to ascertain whether persons are carrying federally-required citizenship documents.
Verification of an Arrested or Stopped Person:
If an officer can verify the identity of a person who is lawfully stopped, detained, or arrested, the officer is not required to verify the person’s citizenship status. If, however, the officer is unable to verify the person’s identity, the Act requires verification of citizenship status in some instances.
x An officer is required to verify the person’s citizenship status if: (1) the person is arrested for a felony or a class A misdemeanor, or (2) is arrested and booked for a class B or class C misdemeanor.
x An officer may, but is not required to attempt to verify the immigration status of a person stopped for a class B or C misdemeanor, if the person cannot be identified.
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Whenever an individual is arrested, verification should take place at the time of booking and not in the field.
Verification of immigration status can only be determined by the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), or other federal agency or law enforcement officer authorized to determine an alien’s immigration status.
An officer’s verification of immigration status may not measurably extend or prolong a stop or detention. Once the purpose for the underlying stop is complete, or if an arrestee is entitled to release from custody, law enforcement may not continue to detain the person solely for the purpose of verifying immigration status. Any further attempt to verify immigration status must be done without further detaining or maintaining control or custody over the person.
In the event the person is verified to be an alien unlawfully present in the United States, the law enforcement agency that has custody of the person shall request DHS to issue a detainer requesting transfer of the alien into federal custody.
An officer may forego verifying a person’s immigration status if: (a) the determination could hinder or obstruct a criminal investigation; (b) the officer is acting as a school resource officer; or (c) a county or municipality has only one law enforcement officer on duty and response support from another law enforcement agency is not available.
Utah Attorney General Mark Shurtleff, Opinion No. 2012-001 (hereinafter “Shurtleff Op. No.
2012-001”).
A court may apply a proposed limiting construction when the statutory language is
“readily susceptible to the narrowing construction.” ACLU v. Johnson, 194 F.3d 1149, 1159
(10th Cir. 1999) (citing Reno v. ACLU, 521 U.S. 844, 884 (1997)). The court concludes that
Section 3 is readily susceptible to the limiting construction stated in the Utah Attorney
General’s opinion because it merely clarifies existing language about when verification
procedures may be applied and that such procedures may not inappropriately extend a stop,
arrest, or detention. The court therefore adopts the construction.
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When Section 3 is interpreted thus, the principles set forth in Arizona lead to the conclusion that Section 3 is not preempted. Nor does it violate the Fourth Amendment or the Privileges and Immunities clause. Section 3 sets clear standards for when law enforcement officials may and may not verify immigration status. These standards fall within the constitutional bounds of reasonableness. Section 3 only requires officials to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released. It does not provide an independent basis for stops, detentions or arrests. Nor may a stop, detention, or arrest be prolonged merely to confirm a person’s immigration status. Finally, the communication regarding immigration status required by Section 3 does not interfere with federal regulatory schemes because it has been invited and encouraged by the federal government.
Therefore, to the extent Section 3 is interpreted consistent with the limiting construction in the Utah Attorney General’s Opinion, La Raza’s challenges fail, and its Motion for Preliminary Injunction, with respect to Section 3, is denied.
III. SECTION 4 A. Challenges
Plaintiff La Raza challenges Section 4 of H.B. 497. Section 4 provides that an individual may be presumed to be lawfully present in the United States, for the purpose of status verification, if the person provides an authentic copy of one of the following documents:
x A valid Utah driver license issued on or after January 1, 2010. x A valid Utah identification card, issued on or after January 1, 2010. x A valid tribal enrollment card, or other form of valid tribal membership which
includes a photo.
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x A valid identification document that includes a photo or biometric identifier and is issued by a federal, state, or local governmental agency that requires proof of verification of legal presence in the United States as a condition of issuance of the document.
Utah Code Ann. § 76-9-1004(1)(a)-(d).12
A person also may be presumed to be lawfully present if the person makes a statement or affirmation that he or she is a United States citizen or national. Utah Code Ann. § 76-9-1004(2). This presumption may be rebutted, however, if an officer has reasonable suspicion to believe the person’s statement is false. Id. Additionally, Section 4 does not afford a non-citizen the opportunity to make an affirmation of being lawfully present in the United States. La Raza argues that Section 4 is preempted because “it creates an obstacle for the federal government’s ability to properly allocate its resources” with respect to immigration enforcement, and it results in conflicting priorities. (Dkt. No. 116, at 7; Dkt. No. 195, at 10). In particular, it contends the section creates a de facto registration requirement. It further contends Section 4 acts together with Section 3 to authorize or mandate (1) detention without a lawful, independent basis; (2) violation of the Fourth Amendment because it allows for prolonged detention of individuals without a reasonable suspicion of illegal activity; and (3) interference with the Right to Travel. (Dkt. No. 37, at 27-31; Dkt. No. 195, at 5, 10).
B. Legal Principles
In Arizona, the Supreme Court considered a provision of S.B. 1070 that made it a misdemeanor for the “willful failure to complete or carry an alien registration document . . . in
12 This section has been amended to also recognize a valid resident immigration permit issued pursuant to the Utah Pilot Sponsored Resident Immigration Program. See Utah Code Ann. § 76-9-1004(1)(e). That new provision, however, is not before the court. Consequently, the court does not address it here.
15

violation of 8 United States Code section 1304(e) or 1306(a).”13 Arizona, 132 S. Ct. at 2501 (citing Ariz. Rev. Stat. Ann. § 13-1509(A) (West Supp. 2011)). Arizona’s state provision had the same aims as the federal scheme, and in many ways mirrored federal regulation. The Court concluded, however, that the Arizona law was conflict preempted because it required prosecution and eliminated probation as a possible sentence for the offense of failing to register. Id. at 2503. Those two requirements conflicted with Congress’ carefully balanced policy decisions.
Additionally, the Court held that this provision was field preempted because Congress had extensively regulated the field of alien registration. Arizona, 132 S. Ct. at 2502-2503. Under federal regulation, an alien must register and carry proof of registration at all times. See 8 U.S.C. §§ 1304, 1306. Arizona, however, made it a new crime to fail to comply with existing regulation. This added an additional regulation to an area in which Congress had already legislated. Accordingly, the Supreme Court held Arizona had acted beyond its scope of authority by legislating in the field of alien registration, which had already been fully occupied.
C. Application In contrast to the Arizona statute, the Utah legislature has not imposed on aliens any new requirement to register, nor has it made failure to register a state offense. Rather, Section 4 simply outlines what forms of identification (or what affirmations) constitute acceptable verification of immigration status, in accordance with the otherwise constitutionally permissible requirement of Section 3 to verify immigration status in certain situations. It does not take away from, nor does it even seek to compliment the federal regulatory scheme. It merely defines more clearly the parameters of Section 3, which this court has just found to be a permissible exercise
13 This provision was contained in Section 3 of Arizona’s S.B. 1070, which should not be confused with Section 3 of Utah’s H.B. 497.
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of state legislative powers. Unlike in Arizona, Section 4 is not a regulation at all. Therefore, the argument that it provides an independent basis for detention fails.
This is especially so when interpreted in light of the following limiting construction contained in the Utah Attorney General Opinion.
In the absence of an underlying voluntary encounter, legal stop, detention, or arrest, state or local law enforcement is not authorized to either seek identification from persons for the purpose of ascertaining their citizenship status or nationality, nor are they authorized to attempt to verify the person’s citizenship or immigration status. Shurtleff Op. No. 2012-001, at 1. The statute’s language and the limiting construction negate La Raza’s assertion that Section 4 “operates as a de facto alien registration law, requiring non-citizens to carry a stateapproved qualifying identity document in order to avoid extended police questioning each time they encounter law enforcement.” La Raza’s Mot. for Preliminary Inj., at 24 (Dkt. No. 37). As discussed above, neither Section 3 nor Section 4 permit prolonging a stop, detention, or arrest to verify a person’s immigration status. Moreover, the limiting construction provides, “The Act does not require any person to carry certain documents with them at all times nor does it require or authorize State or local law enforcement to ascertain whether persons are carrying federally-required citizenship documents.” Shurtleff Op. No. 2012-001, at 1 (emphasis added). Rather, Section 4 only addresses “[g]rounds for presumption of lawful presence.” Utah Code Ann. § 76-9-1004 (section heading). It does not provide an exhaustive mechanism for verifying status during the lawful stops, detentions, or arrests contemplated by Section 3. Indeed, Section 3 and the limiting construction expressly allow for an officer to use “any other means on which the officer might normally and reasonably rely” to verify a person’s identity and status. See Shurtleff Op. No. 2012-001, at 1; see also Utah Code Ann. § 76-9-1003(1)(a)
17

(stating only when an “officer is otherwise unable to verify the identity of the person,” may an officer proceed with additional identification steps).
Thus, so long as Section 4 is interpreted in accordance with the limiting construction there is no field or conflict preemption. Nor, as discussed with Section 3, is there any violation of constitutional rights. If Section 4 were afforded an interpretation which allowed for broader detentions, it might be problematic. But, as in Arizona, there is no evidence that this has or will happen. La Raza’s argument therefore fails, and its Motion for Preliminary Injunction, with respect to Section 4, is denied.
IV. SECTION 5 A. Challenges La Raza challenges Section 5 of H.B. 497. Section 5 permits a state or local law
enforcement agency to securely transport an alien who is lawfully in the custody of the agency, and whom the agency has verified is unlawfully present in the country, to an in-state federal detention facility, or with the permission of the federal agency, to a federal facility outside state boundaries. La Raza argues that this provision is both conflict and field preempted, and that it violates the Fourth Amendment. (Dkt. No. 202).
B. Legal Principles In Arizona, the Court did not directly address any such provision of law. Nevertheless, several principles articulated therein are relevant and applicable. First, as stated earlier, under the theory of field preemption, it is well established that congressional “intent to displace state law altogether can be inferred from a framework of regulation ‘so pervasive . . . that Congress left no room for the States to supplement it’ or where there is a ‘federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same
18

subject.’” Arizona, 132 S. Ct. at 2501 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (other citation omitted)) (alteration in original). The Court in Arizona, however, only inferred such intent in one area of immigration regulation – alien registration. Also relevant is the principle of conflict preemption, which preempts state legislation which conflicts with Congressional objectives and policies and the accomplishment of those objectives and policies, as discussed, supra. Finally, because La Raza’s makes a facial challenge, it may “only succeed . . . by establishing that no set of circumstances exists under which the Act would be valid, i.e., that the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (emphasis added) (quotations and alteration omitted).
C. Application La Raza contends that Utah is field preempted from regulating the detention and transport of unlawful aliens in any way. Yet, La Raza actually admits in an earlier section of their argument that federal law specifically provides for state participation in federal immigration enforcement. See Dkt. No. 202, at 5. If such participation is statutorily permitted, even under limited circumstances, then it cannot be said to be field preempted. La Raza also argues that Section 5 conflicts with provisions of the Immigration and Nationality Act (“Immigration Act”), because it supersedes the specific grant of authority expressly made in the Immigration Act. La Raza argues that the Immigration Act’s complex scheme only allows for state enforcement of immigration in “four narrow instances” (1) making arrests for crimes of transporting, smuggling, or harboring certain aliens, (2) arrest and detention for illegal reentry by a deported felon, with confirmation of status from a federal agency, (3) pursuant to the Attorney General’s power to authorize local officials to enforce immigration laws
19

under certain circumstances, and (4) under written agreement with the Attorney General.14 Id. La Raza characterizes the ability to detain and transport aliens under Section 5 as “independent” and “unilateral” authority, not granted by the Immigration Act. Id.
If Section 5 were read in isolation, this argument may have some merit. Statutes, however, must be construed to give meaning to all of their parts. Bridger Coal Co./Pacific Minerals Inc. v. Director, Office of Workers’ Comp. Programs, 927 F.2d 1150, 1153 (10th Cir. 1991) (“We will not construe a statute in a way that renders words or phrases meaningless, redundant, or superfluous.”) (citations omitted)). Moreover, when construing a statute, “the elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988) (quotations and citation omitted).
Applying these principles, Section 5 must be considered in context and read in relation to other relevant sections, especially Section 3. Pursuant to Subsection (4) of Section 3, a local official must request that federal officials issue a detainer requesting transfer of the illegal alien into federal custody. The court construes this to mean the local official can act neither independently nor unilaterally when transporting an illegal alien to a federal detention facility instate. Rather, the local official must obtain a detainer before transporting the individual to such a facility. Likewise, Section 5 provides that local officials may only transport aliens in their custody out of state with the “concurrence” of federal officials. When read in conjunction with Section 3(4), the problems alleged by La Raza are not supported. Thus, because the regulation neither creates an obstacle to the accomplishment of federal immigration policy, nor makes compliance with both the overall scheme and state law impossible, there is no conflict preemption.
14 See also Arizona, 132 S. Ct. at 2506.
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Finally, although transportation of aliens takes time, there is no evidence that it unreasonably prolongs the detention of individuals in violation of the Fourth Amendment. Reading Section 5 in conjunction with the rest of H.B. 497 and the limiting construction, it is obvious that officials must have a lawful stop, detention, or arrest as a predicate to any verification, that verification may not prolong any such detention, that transportation may only take place when an individual is lawfully in custody of state officials, and that the state official must have authorization to transport the individual to a federal detention facility. If any of the predicates are missing, transportation of the individual is not permissible. If the person is lawfully in custody, then the stop is, by definition, not unreasonably prolonged. Therefore, there is no Fourth Amendment violation.
Thus, La Raza’s arguments fail, and its Motion for Preliminary Injunction, with respect to Section 5 is denied. (Dkt. No. 201.)
V. SECTION 6 A. Challenges
La Raza challenges Section 6 of H.B. 497. Section 6 has two subsections. The first subsection prohibits local government from enacting an ordinance, regulation, or policy to limit assisting “the federal government in the enforcement of any federal law or regulation governing immigration.” Utah Code Ann. § 76-9-1006(1). The second subsection prohibits local government from enacting an ordinance, regulation, or policy that limits “the authority of any law enforcement agency to investigate or enforce any violation” of two specific federal misdemeanors, namely, willful failure to register as an alien and willful failure to personally possess an alien registration document. La Raza argues Section 6 is an impermissible, fieldpreempted regulation of alien registration.
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B. Legal Principles
As discussed above, the legal province of immigration regulation, as a whole, is not a field preempted area of law. As also discussed above, however, the Supreme Court held in Arizona that Section 3 of S.B. 1070 was field preempted because it attempted to legislate in the area of alien registration – a field already fully occupied by federal law.
In reaching that conclusion, the Court reasoned that there was no room in the “complete” and “comprehensive” alien registration framework for Section 3, which made it a state crime to willfully fail to complete or carry an alien registration document. Arizona, 132 S. Ct. at 25012502. The Court cited Hines in which it held that, “because this ‘complete scheme . . . for the registration of aliens’ touched on foreign relations, it did not allow the States to ‘curtail or compliment’ federal law.” Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 66 (1941)) (alteration in original). The Court then unequivocally declared “[t]he framework enacted by Congress leads to the conclusion here, as it did in Hines, that the Federal Government has occupied the field of alien registration,” and “[w]here Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.” Id. at 2502 (citations omitted).
C. Application
Section 6 of H.B. 497 reads as follows:
A state or local governmental agency of this state, or any representative of the agency, may not:
(1) limit or restrict by ordinance, regulation, or policy the authority of any law enforcement agency or other governmental agency to assist the federal government in the 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 enforcement agency to investigate or enforce any violation of the federal misdemeanor offenses of willful failure to register as an alien or willful failure to personally possess an alien registration document as required by 8 U.S.C. Sec. 1304(e) or 1306(a).
Utah Code Ann. § 76-9-1006.
Applying Arizona, the second subsection of Section 6 is impermissible because it seeks to regulate, albeit by way of encouraging cooperation, in the field of alien registration, which is fully occupied. Arizona makes clear that any regulation in the field of alien registration, regardless of what type, is preempted. Thus, the second subsection of Section 6 must be enjoined.
The first subsection of Section 6, however, does not specifically regulate in a field preempted area, and to the extent the assistance given to federal agencies is invited, as provided for in statute, or as authorized by the Attorney General, either by oral invocation or written agreement, it is not problematic.15 Specifically, the statutory language that allows a local government “to assist the federal government in the enforcement of any federal law or regulation governing immigration,” must be read to include assistance only with those activities that have been invited or expressly authorized. Otherwise, a local government would be acting beyond the scope of their authority and contrary to Section 9 of the Act, which states the Act must be implemented “in a manner that is consistent with federal laws that regulate immigration.” Utah Code Ann. § 76-9-1009.
Thus, to the extent that La Raza challenges subsection two of Section 6 as an impermissible regulation of alien registration, La Raza’s Motion for Preliminary Injunction is
15 It is also relevant to note the existence of 8 U.S.C. § 1357(g)(10)(B), which permits state officers “to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” To the extent “assistance” in paragraph one of Section 6 is interpreted to mean the same thing as “cooperate” in Section 1357(g)(10)(B), this reinforces the conclusion that it is not problematic.
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granted and § 76-9-1006(2) is enjoined. To the extent subsection one of Section 6 does not intrude on the field of alien regulation, and any participation by local authorities is invited or expressly authorized by the federal government, La Raza’s challenge fails, and La Raza’s Motion for Preliminary Injunction is denied with respect to subsection one of Section 6.
VI. SECTION 7 Neither La Raza nor the United States directly challenge Section 7 of H.B. 497. Section
7 permits local government agencies to send, receive, and maintain information related to the immigration status of an individual by communicating with federal, state, or local government agencies for any lawful purpose. Utah Code Ann. § 76-9-1007. Because there is no direct challenge to this provision, the court does not address it.
VII. SECTION 8 Neither La Raza nor the United States specifically challenges Section 8 of H.B. 497.
Section 8 requires agencies that provide state or local public benefits under 8 U.S.C. § 1621 to verify immigration status before providing benefits, except as otherwise exempted by federal law. Verification is done by signing a certificate of compliance confirming eligibility for public benefit, under penalty of perjury. Utah Code Ann. § 76-9-1008. Because there is no direct challenge to this provision, the court does not address it.
VIII. SECTION 9 Neither La Raza nor the United States directly challenge Section 9 of H.B. 497. Section
9 reads, in its entirety: “All state and local agencies shall implement this part in a manner that is consistent with federal laws that regulate immigration, protect the civil rights of all persons, and establish the privileges and immunities of United States Citizens.” Utah Code Ann. § 76-9-1009. Because there is no direct challenge to this provision, the court does not address it.
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IX. SECTION 10 A. Challenges
Both La Raza and the United States challenge Section 10 of H.B. 497. Section 10 makes it a crime to encourage or induce an alien to enter Utah or to engage in a conspiracy to harbor an alien for commercial or private gain. Utah Code Ann. 76-10-2901. La Raza argues that this provision is both field and conflict preempted. The United States argues that this provision is similarly preempted under the Supreme Court’s ruling in Arizona.
B. Legal Principles The Federal Government has significant authority to regulate immigration. Arizona, 132 S. Ct. at 2510. As part of this authority, the government regulates the conditions of aliens’ lawful entry and movement within the country. Mathews v. Diaz, 426 U.S. 67, 84 (1976) (“[I]t is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens.”). Pursuant to this authority, Congress has enacted a detailed set of controls and sanctions for those who unlawfully enter the United States, and those who help them to do so. See Part VIII of Chapter 12 of the Immigration and Nationality Act; 8 U.S.C. §§ 1325, 1326 (regarding unlawful entry); § 1323 (penalizing persons for unlawfully bringing aliens into the United States); § 1324 (penalizing persons for bringing in or harboring certain aliens); § 1327 (penalizing persons who assist certain inadmissible aliens to enter the country); § 1328 (penalizing the importation of aliens for immoral purposes). These statutory provisions provide criminal sanctions for those who assist or aid in entry. See Dkt. No. 137, at 20. As discussed above, when the Federal Government systematically and comprehensively regulates in a given area, states may be preempted from legislating in the same area, even if
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legislation is complimentary. Relatedly, when a system of regulation reflects the reasoned policy choices of Congress to criminalize or not to criminalize certain conduct, states may not pass legislation which interferes with that careful balance. Arizona, 132 S. Ct. at 2505.
C. Application Here, as in Arizona, we are dealing with a state statute which purports to regulate an area in which Congress has already extensively regulated – that of regulating the entry and residence of aliens. Congress has balanced multiple concerns to make careful policy choices about what behavior should be punished, and how. Here, as in Arizona, the State has passed a bill which criminalizes the same types of behavior as federal law, making new state offenses for conduct that is otherwise already criminal. Criminalizing this behavior interferes with Congress’ chosen balance. Utah argues that Section 10 does not actually constitute an attempt to regulate immigration, but rather was only tangentially related to immigration. (Dkt. No. 146, at 40-42). This argument fails. Section 10 directly concerns the transportation, movement, and attempt to move unlawful aliens within the borders of the United States. It makes criminal the conduct of third parties who assist or encourage violations of federal immigration law. Moreover, the conduct it criminalizes is also criminalized by Congress’ existing immigration regulation scheme.16 In Arizona, the Court held that states cannot regulate behavior in a field that is occupied by a complete and comprehensive system of regulation, and that States cannot criminalize behavior already made criminal by federal law. Such enactments, irrespective of whether they seek to counter or compliment federal law, are impermissible.
16 The only difference between the two is that Utah’s regulation purports to relate to activity that takes place within the State boundaries only.
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Because Section 10 is preempted by federal law, it must be enjoined and Plaintiffs’ Motions for Preliminary Injunction, as to Section 10, are granted.
X. SECTION 11 A. Challenges
Both La Raza and the United States challenge Section 11 of H.B. 497. Section 11 allows for warrantless arrest when an officer has “reasonable cause” to believe a person is subject to civil removal or has committed an aggravated felony. Both La Raza and the United States contend this section is preempted under the Supreme Court’s ruling in Arizona. La Raza also contends it violates the Fourth Amendment because it allows for an arrest without probable cause.
B. Legal Principles In Arizona, the Court considered Section 6 of S.B. 1070, which permitted state officers “without a warrant [to] arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes him removable from the United States.” Arizona, 132 S. Ct. at 2505 (quoting Ariz. Rev. Stat. Ann. § 13-3883(A)(5) (West Supp. 2011)) (alteration in original). In considering the legality of this provision, the Court laid out several important facts and principles that influenced its ultimate holding. First, the Court noted, “[a]s a general rule, it is not a crime for a removable alien to remain present in the United Sates.” Id. “If the police stop someone” purely for “possible removability, the usual predicate for an arrest is absent.” Id. Even when a person is suspected of being in the country unlawfully, the proper form of action is not arrest, but the issuance of a Notice to Appear, and then conducting a removal hearing. Id. (citing 8 U.S.C. § 1229).
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Second, the court noted “[t]he federal statutory structure instructs when it is appropriate to arrest an alien during the removal process.” Id. The Attorney General has the discretion whether to issue a warrant pending decision on an individual’s removability. If this discretion is not exercised, no warrant is issued until after a hearing is held and a determination regarding removability is made. Id. at 2506. In both of these cases, the warrant issued is executed by federal officers. Where no federal warrant is issued, officers have more “limited authority” to make arrests. Id.
Third, the court observed that Section 6 of S.B. 1070 “attempt[ed] to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress” gave to trained federal immigration officers. Id. “This state authority could be exercised without any input from the Federal Government,” irrespective of whether a warrant was issued or a suspect was likely to escape, and had the potential to effectively establish a state immigration policy. Id.
Next, the Court noted that “[f]ederal law specifies [the] limited circumstances in which state officers may perform the functions of an immigration officer.” Arizona, 132 S. Ct. at 2506. These are, respectively (1) making arrests for crimes of transporting, smuggling, or harboring certain aliens, (2) arrest and detention for illegal reentry by a deported felon, with confirmation of status from a federal agency, (3) pursuant to the Attorney General’s power to authorize local officials to enforce immigration laws under certain circumstances, and (4) under written agreement with the Attorney General.17 Id. (citations omitted).
Fifth, the Court observed that “authorizing state officers to decide whether an alien should be detained for being removable . . . violates the principle that the removal process is
17 Agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigration officer.
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entrusted to the discretion of the Federal Government.” Id. (citing case law and policy reasons for the existence of such a principle). The Court acknowledged there is federal statutory law that permits officers to cooperate with the Attorney General in identifying, apprehending, detaining and removing unlawful aliens. Id. at 2507 (citing 8 U.S.C. § 1357(g)(10)(B)). Nevertheless, it ultimately concluded that, whatever cooperation means, “no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” Id.
Ultimately, the Court held that, considering Section 6 in light of these facts and principles, the section “create[d] an obstacle to the full purposes and objectives of Congress.” Id. Because “Congress [had] put in place a system in which state officers may not make warrantless arrests of aliens . . . except in specific, limited circumstances,” Arizona was precluded from “engag[ing] in these enforcement activities as a general matter.” Id. (emphasis added).
C. Application Section 11 of H.B. 497 is similar to Section 6 of S.B. 1070. It grants peace officers the authority to make warrantless arrests when the officer has reasonable cause to believe (1) a person is an alien subject to civil removal, (2) a civil detainer warrant has been issued for the individual, or (3) a person has been charged or convicted of an aggravated felony in another state. Utah Code Ann. § 77-7-2(5). As in Arizona, by authorizing warrantless arrests, Section 11 seeks to bestow on state officers greater discretion and authority than that possessed by federal immigration officials. The section exceeds the four Congressionally authorized scenarios in which state officers may perform the functions of federal immigration officials. Exceeding authority and statutory constraints in this way establishes a de facto state immigration policy which may be in conflict with Congress’ carefully crafted policy. Finally, by committing the
29

decision of whether to remove aliens to state officers, Section 11 violates the same principle violated by Arizona’s Section 6 – it violates the removal process that has been entrusted to the Federal Government.
Taken together, all of these facts illustrate that Section 11 creates the same “obstacle to the full purposes and objectives” of Congress that were problematic under Section 6 of Arizona’s law. Accordingly, Section 11 of H.B. 497 is preempted by federal law. The court therefore grants the Plaintiffs’ Motions for Preliminary Injunction as to Section 11.
CONCLUSION For the foregoing reasons, La Raza’s Motion for Preliminary Injunction (Dkt. No. 36) is GRANTED IN PART and DENIED IN PART; the United States’ Motion for Preliminary Injunction (Dkt. No. 136) is GRANTED IN PART and DENIED IN PART; La Raza’s specific Motion for Preliminary Injunction Against § 5 of H.B. 497 (Dkt. No. 201) is DENIED. Pursuant to this ruling, the State is enjoined from enacting and enforcing subsection 2 of Section 6. It is also enjoined from enacting and enforcing Section 10 and Section 11. While the State may implement the remaining sections of the Act, such implementation is subject to the limiting constructions outlined in this decision. DATED this 18th day of June, 2014.
BY THE COURT:
__________________________________________ Clark Waddoups United States District Judge
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 Case 2:11-cv-00401-CW Document 240-1 Filed 11/25/14 Page 1 of 6
Attachment 1

Case 2:11-cv-00401-CW Document 240-1 Filed 11/25/14 Page 2 of 6

Linton Joaquin* Karen C. Tumlin* Shiu-Ming Cheer* Melissa S. Keaney* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 Telephone: (213) 639-3900 Facsimile: (213) 639-3911 joaquin@nilc.org tumlin@nilc.org cheer@nilc.org keaney@nilc.org
Omar C. Jadwat* Andre I. Segura* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 ojadwat@aclu.org asegura@aclu.org
Attorneys for Plaintiffs
* Admitted Pro hac vice + Counsel for all plaintiffs except SEIU and
Workers’ United

Cecillia D. Wang* Jennifer Chang Newell* Katherine Desormeau* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 cwang@aclu.org jnewell@aclu.org kdesormeau@aclu.org
Leah Farrell (USB No. 13696) AMERICAN CIVIL LIBERTIESUNION OF UTAH FOUNDATION, INC. 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Facsimile: (801) 532-2850 lfarrell@acluutah.org
Bradley S. Phillips*+ MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 brad.phillips@mto.com

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH - CENTRAL DIVISION

_____________________________________________________________________________

Utah Coalition of La Raza, et al.,

[PROPOSED] FINAL JUDGMENT

Plaintiffs,

Case No. 2:11-cv-00401-CW;

v.

Case No. 2:11-cv-1072-CW

Judge: Honorable Clark Waddoups

Governor Gary R. Herbert, et al.,

Defendants.

Case 2:11-cv-00401-CW Document 240-1 Filed 11/25/14 Page 3 of 6
Pursuant to the ruling of this Court on June 18, 2014 and the parties’ Stipulation, the Court hereby enters final judgment in this action as follows:
1. For the reasons given in my Memorandum Decision and Order of June 18, 2014, the Defendants State of Utah, Governor Gary R. Herbert, Attorney General Sean Reyes, and their successors, are PERMANENTLY ENJOINED from implementing Section 6(2) of H.B. 497 (Utah Code Ann. § 76-9-1006(2)); Section 11 of H.B. 497 (Utah Code Ann. § 77-72(5)); and Utah Code Ann. § 76-10-2901, as amended. The State may implement the remaining sections of H.B. 497 subject to the limiting constructions outlined herein.
2. The Court adopts the construction of Section 3 of H.B. 497 (Utah Code Ann. § 76-9-1003) as set forth in Utah Attorney General Opinion No. 2012-001 (Dkt. No. 146-3) as follows: Section 3 only requires (or authorizes, where indicated) officials to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released. Officials must have a lawful stop, detention, or arrest as a predicate to any verification. Section 3 does not provide an independent basis for stops, detentions or arrests. Nor may a stop, detention or arrest be prolonged merely to confirm a person’s immigration status. Officers may not delay or postpone addressing the original purpose of the stop, detention, or arrest. In the enforcement of Section 3, law enforcement officers are also prohibited from considering race, color, or national origin, except to the extent permitted by the Constitution.
3. Section 4 of H.B. 497 (Utah Code Ann. § 76-9-1004) simply outlines what forms of identification (or what affirmations) constitute acceptable verification of immigration status, in accordance with the otherwise constitutionally permissible requirement of Section 3
2

Case 2:11-cv-00401-CW Document 240-1 Filed 11/25/14 Page 4 of 6
to verify immigration status in certain situations. Section 4 does not impose on aliens any new requirement to register, nor does it make failure to register a state offense. Section 4 does not require any person to carry any immigration documents, nor does it require or authorize law enforcement officers to seek to ascertain whether persons are carrying certain immigration documents as required under federal law. As with Section 3, Section 4 of H.B. 497 does not provide an independent basis for a stop, detention, or arrest and in the absence of an underlying, independent basis, law enforcement officials are not authorized to seek identification from a person for the purpose of seeking to ascertain their immigration status or nationality. Under Section 4, an officer can use any means by which the officer might normally and reasonably verify a person’s identity and status.
4. Section 5 of H.B. 497 (Utah Code Ann. § 76-9-1005) must be considered in context and read in relation to other relevant sections, especially Section 3. Read in conjunction with the rest of H.B. 497 and the limiting construction of the Utah Attorney General’s Opinion, pursuant to Section 5, officials must have a lawful stop, detention, or arrest as a predicate to any verification; verification may not prolong any such detention; suspicion that an individual may be unlawfully present in the United States does not constitute such a lawful basis for detention; officials must have continuous lawful custody over the individual during the course of the transportation; and the state official must be acting under federal direction to transport the individual to a federal detention facility. If any of the predicates is missing, transportation of the individual to a federal facility is not permissible under Section 5.1
1 This paragraph describes the requirements of H.B. 497 and should not be understood as describing federal law or federal policy.
3

Case 2:11-cv-00401-CW Document 240-1 Filed 11/25/14 Page 5 of 6
5. Subsection 1 of Section 6 of H.B. 497 (Utah Code Ann. § 76-9-1006(1)) must be construed to include assistance only with those activities that have been invited or expressly authorized by the federal government. Consistent with Section 9 of H.B. 497, which requires that the Act must be implemented ‘in a manner that is consistent with federal laws that regulate immigration,’ nothing in subsection 1 of Section 6 would prohibit a locality from adopting a policy requiring compliance with the Constitution and/or federal law as a predicate for assisting the federal government in immigration enforcement. Subsection 2 of Section 6 of H.B. 497 (Utah Code Ann. § 76-9-1006(2)) is impermissible because it seeks to regulate in the field of alien registration, which is fully occupied by the federal government. Arizona v. United States, 567 U.S. ____, 132 S. Ct. 2492 (2012), makes clear that any regulation in the field of alien registration, regardless of what type, is preempted.
6. Neither La Raza nor the United States directly challenge Sections 7, 8, or 9 of H.B. 497 (respectively, Utah Code Ann. § 76-9-1007, 1008, and 1009). Because there are no direct challenges to these provisions, the Court does not address them.
7. Utah Code Ann. § 76-10-2901 is impermissible because it seeks to regulate the entry and residence of aliens and makes new state offenses for conduct already criminalized by Congress’ existing immigration regulation scheme. In Arizona the Supreme Court held that states cannot regulate behavior in a field that is occupied by a complete and comprehensive scheme of regulation, and that the States cannot criminalize behavior already made criminal by federal law. Criminalizing this behavior interferes with Congress’ chosen balance.
8. Section 11 of H.B. 497 (Utah Code Ann. § 77-7-2(5)) is impermissible because it seeks to bestow on state officers greater discretion and authority than that possessed by
4

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federal immigration officials, establishes a de facto state immigration policy which may be in conflict with Congress’ carefully crafted policy, and violates the removal process that has been entrusted to the federal government.
9. Any of Plaintiffs La Raza’s or the United States’ remaining claims which have not been adjudicated are dismissed without prejudice.
AND IT IS SO ORDERED.

Dated: November ________, 2014

____________________________________ Honorable Clark Waddoups UNITED STATES DISTRICT COURT JUDGE

Approved as to form and content:

/s/ Jennifer C. Newell JENNIFER CHANG NEWELL* American Civil Liberties Union Foundation
Immigrants’ Rights Project 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 jnewell@aclu.org
Attorney for Plaintiffs Case No. 2:11-cv-0401-CW
/s/ Philip S. Lott PHILIP S. LOTT (Bar #5750) Assistant Utah Attorneys General 160 East 300 South, Sixth Floor Post Office Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 phillott@utah.gov

/s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487)* Senior Trial Counsel United States Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 scott.simpson@usdoj.gov
Attorney for United States of America Case No. 2:11-cv-1072-CW

Attorney for Defendants Case No. 2:11-cv-0401-CW Case No. 2:11-cv-1072-CW

*Admitted pro hac vice

5

 
 Case 2:11-cv-00401-CW Document 248 Filed 04/28/15 Page 1 of 1

PHILIP S. LOTT (# 5750) TIMOTHY D. EVANS (# 10389) Assistant Utah Attorneys General 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 Email: phillott@utah.gov Email: tevans@utah.gov Attorneys for Defendants

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

UTAH COALITION OF LA RAZA, et. al., Plaintiffs,

NOTICE RE: SETTLEMENT OF ATTORNEY FEES AND COSTS CLAIM

vs.
THE STATE OF UTAH; and GARY R. HERBERT, Governor of the State of Utah, in his official capacity,

Civil Case No. 2:11-cv-0401 Civil Case No. 2:11-cv-1072
Judge Clark Waddoups

Defendants.

The parties, by and through their respective counsel of record, notify the court that an

agreement has been reached to settle Plaintiffs’ claim for attorneys’ fees and costs. The parties

further advise the court that a subsequent notice will be filed when payment of the agreed

amount has been made and at which time this matter may be closed.

NATIONAL IMMIGRATION LAW CENTER
By: /s/ Karen C. Tumlin Karen C. Tumlin, Attorney for Plaintiffs

DATED this 28th day of April, 2015

OFFICE OF THE UTAH ATTORNEY GENERAL
By: /s/ Philip S. Lott Philip S. Lott, Attorney for Defendants

DATED this 28th day of April, 2015

 
 Case 2:11-cv-00401-CW-EJF Document 228 Filed 10/15/13 Page 1 of 4

Linton Joaquin* Karen C. Tumlin* Shiu-Ming Cheer* Melissa S. Keaney* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 Telephone: (213) 639-3900 Facsimile: (213) 639-3911 joaquin@nilc.org tumlin@nilc.org cheer@nilc.org keaney@nilc.org
Omar C. Jadwat* Andre I. Segura* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 ojadwat@aclu.org asegura@aclu.org
Attorneys for Plaintiffs
* Admitted Pro hac vice + Counsel for all plaintiffs except SEIU and
Workers’ United

Cecillia D. Wang* Jennifer Chang Newell* Katherine Desormeau* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 cwang@aclu.org jnewell@aclu.org kdesormeau@aclu.org
Leah Farrell, Utah Bar No. 13696 AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Facsimile: (801) 532-2850 lfarrell@acluutah.org
Bradley S. Phillips*+ MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 brad.phillips@mto.com

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH - CENTRAL DIVISION

_____________________________________________________________________________

Utah Coalition of La Raza, et al.,

NOTICE OF SUPPLEMENTAL

Plaintiffs,

AUTHORITY IN SUPPORT OF

v.

PLAINTIFFS’ MOTIONS FOR

PRELIMINARY INJUNCTION

Governor Gary R. Herbert, et al.,

Case No. 2:11-cv-00401-BCW;

Defendants.

Case No. 2:11-cv-1072-CW

Judge: Honorable Clark Waddoups

____________________________________________________________________________

Case 2:11-cv-00401-CW-EJF Document 228 Filed 10/15/13 Page 2 of 4
In support of their Motion for Preliminary Injunction (Doc. 36) and their Motion for Preliminary Injunction against HB 497 § 5 (Doc. 201), Plaintiffs Utah Coalition of La Raza, et al., respectfully submit the Ninth Circuit’s recent decision in Valle del Sol v. Whiting, No. 1217152 (9th Cir. Oct. 8, 2013) (attached as Exhibit A). Valle del Sol provides additional support for the conclusion that HB 497 is invalid on Supremacy Clause grounds.
In Valle del Sol, the Ninth Circuit affirmed a preliminary injunction against an Arizona statute nearly identical to § 10 of HB 497, holding that the provision was field and conflict preempted by federal immigration law. Ex. A at 31-43. Like § 10, the Arizona law would have criminalized transporting, moving, concealing, harboring, or shielding from detection an alien with knowledge or reckless disregard of “the fact that the alien has come to, has entered or remains in the United States in violation of law.” Ex. A at 8-10. The Arizona law would also have criminalized encouraging or inducing such an alien to come to or reside in the state. Id. at 9-10; cf. HB 497 § 10. In finding these provisions preempted, the Ninth Circuit joins the Eleventh, Fourth, Third, and Fifth Circuits in invalidating analogous state or local harboring laws on Supremacy Clause grounds, based on the Supreme Court’s guidance in Arizona v. United States, 132 S. Ct. 2492 (2012). See Pl. Notice of Suppl. Auth., July 30, 2013 (Doc. 224) (citing cases); Pl. Resp. to Amicus Curiae’s Notice of Suppl. Auth., Aug. 27, 2013 (Doc. 227) (citing cases).
In reaching its conclusion, Valle del Sol recognized that federal law contains an antiharboring scheme that “provides ‘a full set of standards’ designed to work as a ‘harmonious whole,’” and accordingly, held the Arizona statute field preempted because it attempts to regulate in a field fully occupied by the federal scheme. Ex. A at 33-35 (quoting Arizona, 132 S.
1

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Ct. at 2501); 37-38. See also Pl. Mem. in Supp. Prelim. Inj., May 6, 2011 (Doc. 37), at 25; Pl. Suppl. Auth. (Arizona v. United States), July 20, 2012 (Doc. 195), at 11-12.
In addition, the Ninth Circuit found the Arizona statute conflict preempted on several grounds that apply equally to § 10. See, e.g., Ex. A. at 39 (noting that the Arizona statute imposes “additional and different” penalties for harboring); id. at 42 (explaining that the state law seeks to “punish conduct that Congress chose not to punish”); id. at 39 (stating that “[b]y allowing state prosecution of the same activities in state court, Arizona has conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration enforcement priorities”). See generally id. at 38-43. See also Pl. Mem. in Supp. Prelim. Inj., May 6, 2011 (Doc. 37), at 25-26; Pl. Reply Mem. in Supp. Prelim. Inj., Sept. 2, 2011 (Doc. 116), at 11-13; Pl. Suppl. Auth. (Arizona v. United States), July 20, 2012 (Doc. 195), at 10-13.

Dated: October 15, 2013

Respectfully submitted,
/s/ Jennifer Chang Newell AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
/s/ Karen C. Tumlin NATIONAL IMMIGRATION LAW CENTER
/s/ Leah Farrell AMERICAN CIVIL LIBERTIES UNION
OF UTAH FOUNDATION, INC.
Attorneys for Plaintiffs

2

Case 2:11-cv-00401-CW-EJF Document 228 Filed 10/15/13 Page 4 of 4

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION was served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:

BARRY G. LAWRENCE blawrence@utah.gov
PHILIP S. LOTT phillott@utah.gov
TIMOTHY EVANS tevans@utah.gov
OMAR C. JADWAT ojadwat@aclu.org
ANDRE SEGURA asegura@aclu.org
CECILLIA D. WANG cwang@aclu.org
KATHERINE DESORMEAU kdesormeau@aclu.org

LEAH FARRELL lfarrell@acluutah.org
LINTON JOAQUIN joaquin@nilc.org
KAREN C. TUMLIN tumlin@nilc.org
SHIU-MING CHEER cheer@nilc.org
MELISSA KEANEY keaney@nilc.org
BRADLEY S. PHILLIPS brad.phillips@mto.com
STUART F. DELERY DAVID B. BARLOW DANIEL D. PRICE ARTHUR R. GOLDBERG W. SCOTT SIMPSON scott.simpson@usdoj.gov

Dated: October 15, 2013

/s/ Jennifer Chang Newell AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

3

 
 Case 2:11-cv-00401-CW Document 227 Filed 08/27/13 Page 1 of 33

Linton Joaquin* Karen C. Tumlin* Shiu-Ming Cheer* Melissa S. Keaney* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 Telephone: (213) 639-3900 Facsimile: (213) 639-3911 joaquin@nilc.org tumlin@nilc.org cheer@nilc.org keaney@nilc.org
Omar C. Jadwat* Andre I. Segura* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 Telephone: (212) 549-2660 Facsimile: (212) 549-2654 ojadwat@aclu.org asegura@aclu.org
Attorneys for Plaintiffs
* Admitted Pro hac vice + Counsel for all plaintiffs except SEIU and
Workers’ United

Cecillia D. Wang* Jennifer Chang Newell* Katherine Desormeau* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 Telephone: (415) 343-0775 Facsimile: (415) 395-0950 cwang@aclu.org jnewell@aclu.org kdesormeau@aclu.org
Leah Farrell AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. 355 North 300 West Salt Lake City, Utah 84103 Telephone: (801) 521-9862 Facsimile: (801) 532-2850 lfarrell@acluutah.org
Bradley S. Phillips*+ MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 brad.phillips@mto.com

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH - CENTRAL DIVISION

_____________________________________________________________________________

Utah Coalition of La Raza, et al.,

RESPONSE TO AMICUS CURIAE’S

Plaintiffs,

NOTICE OF SUPPLEMENTAL

v.

AUTHORITY, IN SUPPORT OF

PLAINTIFFS’ MOTIONS FOR

Governor Gary R. Herbert, et al.,

PRELIMINARY INJUNCTION

Defendants.

Case No. 2:11-cv-00401-BCW;

Case No. 2:11-cv-1072-CW

Judge: Honorable Clark Waddoups

____________________________________________________________________________

Case 2:11-cv-00401-CW Document 227 Filed 08/27/13 Page 2 of 33
In support of their Motion for Preliminary Injunction (Doc. 36) and their Motion for Preliminary Injunction against HB 497 § 5 (Doc. 201), Plaintiffs Utah Coalition of La Raza, et al., respectfully submit this response to the Notice of Supplemental Authorities (Doc. 226) filed by Amicus Curiae Immigration Reform Law Institute. Amicus attempts to draw support for Defendants’ position from Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 U.S. Dist. LEXIS 57788, 2013 WL 1744422 (N.D. Tex. April 23, 2013), abrogated on jurisdictional grounds, July 31, 2013 Order (Doc. 75), and Keller v. Fremont, 719 F.3d 931 (8th Cir. 2013), pet’n for reh’g en banc pending.
As Amicus notes parenthetically, in a subsequent decision the district court in Crane dismissed the case for lack of subject matter jurisdiction. See Crane, No. 3:12-cv-03247-O, July 31, 2013 Order (Doc. 75), at 6-7 (attached as Exhibit A). The Crane court’s preliminary views on matters over which it ultimately concluded it lacked jurisdiction are not only wrong on the merits1 and therefore of limited persuasive value, but are not even binding on the parties in Crane itself.
Similarly unpersuasive is the Fremont decision. Its holdings and reasoning conflict with the decisions of every other court of appeals to have considered preemption of state or local prohibitions on harboring of aliens. The Third, Fourth, Fifth, and Eleventh Circuits have uniformly held such harboring laws preempted. See Villas at Parkside Partners v. City of Farmers Branch, __ F.3d __, 2013 WL 3791664, at *4-*8 (5th Cir. July 22, 2013) (en banc); Lozano v. City of Hazleton, __ F.3d __, 2013 WL 3855549, at *12-*18 (3d Cir. July 26, 2013); United States v. South Carolina, __ F.3d __, 2013 WL 3803464, at *9-*10 (4th Cir. July 23,
1 See, e.g., David Martin, A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade, 122 Yale L.J. Online 167 (2012), available at http://yalelawjournal.org/2012/12/20/martin.html (attached as Exhibit B).

Case 2:11-cv-00401-CW Document 227 Filed 08/27/13 Page 3 of 33

2013); United States v. Alabama, 691 F.3d 1269, 1285-88 (11th Cir. 2012); Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d. 1250, 1263, 1265-66 (11th Cir. 2012). Accord Valle del Sol v. Whiting, No. CV 10–1061–PHX–SRB, 2012 WL 8021265, at *3*6 (D.Ariz. Sept. 5, 2012), appeal pending, 9th Cir. No. 12-17152. See also Pl. Notice of Suppl. Auth., July 30, 2013 (Doc. 224). Notably, Fremont was decided prior to, and without the benefit of, the recent decisions in Farmers Branch, Hazleton, and South Carolina. Accordingly, the Fremont decision is the subject of a pending petition for rehearing and rehearing en banc, and the United States has filed an amicus brief in support of the rehearing petition.2

Dated: August 27, 2013

Respectfully submitted,
/s/ Jennifer Chang Newell AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
/s/ Karen C. Tumlin NATIONAL IMMIGRATION LAW CENTER
/s/ Leah Farrell AMERICAN CIVIL LIBERTIES UNION
OF UTAH FOUNDATION, INC.
Attorneys for Plaintiffs

2 See Keller v. Fremont, 8th Cir. Nos. 12-1705, 12-1708, Petition for Panel Rehearing and Rehearing En Banc (Aug. 12, 2013); Keller v. Fremont, 8th Cir. Nos. 12-1702, 12-1705, 121708, United States’ Motion for Leave to File Amicus Brief in Support of Petition for Rehearing En Banc (Aug. 12, 2013); Keller v. Fremont, 8th Cir. Nos. 12-1702, 12-1705, 12-1708, Order Granting United States’ Motion for Leave to File Amicus (Aug. 20, 2013).

Case 2:11-cv-00401-CW Document 227 Filed 08/27/13 Page 4 of 33

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing RESPONSE TO AMICUS CURIAE’S NOTICE OF SUPPLEMENTAL AUTHORITY, IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR PRELIMINARY INJUNCTION was served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:

BARRY G. LAWRENCE blawrence@utah.gov
PHILIP S. LOTT phillott@utah.gov
TIMOTHY EVANS tevans@utah.gov
OMAR C. JADWAT ojadwat@aclu.org
ANDRE SEGURA asegura@aclu.org
CECILLIA D. WANG cwang@aclu.org
KATHERINE DESORMEAU kdesormeau@aclu.org

LEAH FARRELL lfarrell@acluutah.org
LINTON JOAQUIN joaquin@nilc.org
KAREN C. TUMLIN tumlin@nilc.org
SHIU-MING CHEER cheer@nilc.org
MELISSA KEANEY keaney@nilc.org
BRADLEY S. PHILLIPS brad.phillips@mto.com
STUART F. DELERY DAVID B. BARLOW DANIEL D. PRICE ARTHUR R. GOLDBERG W. SCOTT SIMPSON scott.simpson@usdoj.gov

Dated: August 27, 2013

/s/ Jennifer Chang Newell AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

Case 2:11-cv-00401-CW Document 227 Filed 08/27/13 Page 5 of 33
EXHIBIT A

Case C3:a1s2e-c2v:-1013-2cv4-70-0O401D-oCcWumeDnotc7u5meFnilte2d2077/3F1il/e1d308P/2a7g/1e31 oPfa7geP6aogfe3ID3 1323

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

§

CHRISTOPHER L. CRANE et al.,

§

§

Plaintiffs,

§

§

v.

§

§

JANET NAPOLITANO, in her official

§

capacity as Secretary of Homeland Security, §

et al.,

§

§

Defendants.

§

§

Civil Action No. 3:12-cv-03247-O

ORDER

Pending before the Court is Plaintiffs’ Application for Preliminary Injunctive Relief (ECF No. 24).1 The Court held a hearing on this matter on April 8, 2013, and ordered the parties to submit

additional briefing addressing the effect, if any, of the Collective Bargaining Agreement and the

Civil Service Reform Act (“CSRA”) on the Court’s jurisdiction to hear the case. See Electronic

Minute Entry, Apr. 8, 2013; Mem. Op. & Order 37, Apr. 23, 2013, ECF No. 58. The parties

complied with the Court’s request.

Accordingly, now before the Court are Plaintiffs’ Amended Supplemental Brief in Support

of Plaintiffs’ Application for Preliminary Injunctive Relief (ECF No. 63), Defendants’ Response to

Plaintiffs’ Supplemental Memorandum on the CSRA (ECF No. 67), and Plaintiffs’ Supplemental

Reply Brief Regarding the CSRA (ECF No. 71). Also before the Court are Defendants’

Supplemental Memorandum on Why the CSRA Precludes Plaintiffs’ Requested Relief (ECF No.

60), Plaintiffs’ Responsive Supplemental Brief Regarding the CSRA (ECF No. 68), and Defendants’

1 “Plaintiffs” throughout this Order refers to the ICE agent plaintiffs.

Case C3:a1s2e-c2v:-1013-2cv4-70-0O401D-oCcWumeDnotc7u5meFnilte2d2077/3F1il/e1d308P/2a7g/1e32 oPfa7geP7aogfe3ID3 1324
Reply to Plaintiffs’ Responsive Supplemental Brief Regarding the CSRA (ECF No. 70). After considering the foregoing the Court concludes as follows: I. FACTUAL & PROCEDURAL BACKGROUND
The Court set forth the factual and procedural background of this case in detail in its Memorandum Opinion and Order granting in part and denying in part Defendants’ Motion to Dismiss and its Memorandum Opinion and Order deferring ruling on Plaintiffs’ Application for Preliminary Injunction. See Mem. Op. & Order 1–4, Jan. 24, 2013, ECF No. 41; Mem. Op. & Order 2–5, Apr. 23, 2013, ECF No. 58. In its previous Order, the Court found that Congress’s use of the word “shall” in Section 1225(b)(2)(A) of the Immigration and Nationality Act imposes a mandatory obligation on immigration officers to initiate removal proceedings against aliens they encounter who are not “clearly and beyond a doubt entitled to be admitted.” Mem. Op. & Order 15–22, Apr. 23, 2013, ECF No. 58; see 8 U.S.C. § 1225(b)(2)(A); see also In re: Application of USA for Historical Cell Site Data, No. 11-20884, slip op. at 10–11 (5th Cir. July 30, 2013) (finding that the word “shall” in Section 2703(d) of the Stored Communications Act imposes a mandatory duty on courts to issue an order for disclosure when certain prerequisites are satisfied). Therefore, the Court concluded that Plaintiffs were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate. However, the Court finds that Congress has precluded Plaintiffs from pursuing their claims in this Court by enacting the CSRA. Therefore, the Court finds that this case should be and is hereby DISMISSED without prejudice for lack of subject-matter jurisdiction. II. ANALYSIS
Plaintiffs contend that the Court retains jurisdiction under 28 U.S.C. § 1331 to hear Plaintiffs’
2

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Administrative Procedure Act and Declaratory Judgment Act claims because the threatened threeday suspension of Plaintiff James Doebler is outside the scope of the CSRA’s remedial scheme. Pls.’ Am. Supplemental Br. Supp. Appl. Prelim. Inj. 1–4, ECF No. 63; Pls.’ Supplemental Reply Br. 8–9, ECF No. 71. Plaintiffs also contend that the Merit Systems Protection Board lacks jurisdiction to hear Plaintiffs’ claims because Plaintiffs have yet to suffer an adverse action within the scope of the Merit Systems Protection Board’s jurisdiction, and the CSRA does not extend to cases involving potential future adverse actions. Pls.’ Responsive Supplemental Br. Regarding CSRA 1–2, 7, ECF No. 68. Additionally, Plaintiffs contend the Merit Systems Protection Board does not have the authority to issue an injunction against an allegedly unconstitutional and unlawful policy. Id. at 2–5.
Defendants argue that this Court lacks subject-matter jurisdiction to resolve Plaintiffs’ claims because they are employment disputes and the CSRA provides a comprehensive and exclusive scheme for resolving employment disputes brought by federal employees against the federal government. Defs.’ Supplemental Mem. on CSRA 2–11, ECF No. 60. Defendants further contend that Plaintiffs’ asserted claims are within the scope of the CSRA’s exclusive and comprehensive administrative and judicial remedies; therefore, Plaintiffs are bound to follow the procedures set forth in the CSRA and this Court lacks jurisdiction. See Defs.’ Supplemental Mem. on CSRA 10–11, ECF No. 60; Defs.’ Resp. Pls.’ Supplemental Br. 7–8, ECF No. 67; Defs.’ Reply Regarding CSRA 1–3, 7–8, ECF No. 70. The Court finds that the CSRA precludes review of Plaintiffs’ claims in this Court.
Congress enacted the CSRA as “a comprehensive system for reviewing personnel action taken against federal employees.” United States v. Fausto, 484 U.S. 439, 455 (1988); see Bush v. Lucas, 462 U.S. 367, 368, 388–90 (1983). The CSRA’s remedies are “the comprehensive and
3

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exclusive procedures for settling work-related controversies between federal civil-service employees and the federal government.” Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991) (citing Fausto, 484 U.S. 439; Bush, 462 U.S. 367). Thus, when a particular employee’s class or asserted claim has been excluded from the CSRA’s framework for administrative and judicial review of adverse personnel actions, that excluded employee cannot seek redress in a federal district court. See Fausto, 484 U.S. at 455; Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004) (finding that the CSRA precluded judicial review of a federal employee’s claim challenging a letter of censure, which was “below the CSRA minima for both major and minor adverse employment actions”); Carducci v. Regan, 714 F.2d 171, 173–75 (D.C. Cir. 1983) (finding that judicial review was unavailable under the Administrative Procedure Act with respect to employment claims as to which the CSRA provided no relief to anyone, because the alleged adverse actions were too minor); Galvin v. FDIC, 48 F.3d 531, at *4 (5th Cir. 1995) (per curiam) (not selected for publication) (noting that the lack of a remedy under the CSRA precludes a plaintiff “from bringing suit challenging the personnel action in federal court”). Furthermore, the CSRA precludes district-court adjudication of a covered employee’s challenge to a covered adverse employment action, even when the employee raises constitutional challenges to federal statutes and seeks equitable relief. Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2132–33, 2139 (2012); see Dooley v. Principi, 250 F. App’x 114, 116 (5th Cir. 2007) (per curiam) (not selected for publication) (noting that “[t]he CSRA provides the exclusive remedy for claims against federal employers, thereby precluding any causes of action relating to employment disputes covered by the statute” (citing Grisham v. United States, 103 F.3d 24, 26 (5th Cir. 1997))).
Here, Plaintiffs’ injury is based on being compelled to violate a federal statute upon pain of
4

CaseC3a:1se2-2c:v1-10-3c2v4-070-O401D-CocWumDenotc7u5meFntile2d2707/F3i1le/1d308/P27a/g1e35 Pofa7ge P10agoefI3D31327
adverse employment action. See Pls.’ Resp. Mot. Dismiss 2–7, ECF No. 30; Mem. Op. & Order 18–22, Jan. 24, 2013, ECF No. 41. Plaintiffs allege that Defendants have taken disciplinary action against Plaintiff James D. Doebler and threatened to take disciplinary action against the remaining plaintiffs if they fail to comply with the Directive and Morton Memorandum by issuing Notices to Appear to Directive-eligible aliens as required by law. Pls.’ Am. Compl. ¶¶ 6, 49–51, ECF No. 15; App. Pls.’ Resp. Mot. Dismiss Ex. 3 (Doebler Aff.), ¶¶ 2–9, ECF No. 31; Id. Ex. 2 (Engle Aff.), ¶¶ 8, 20; see 8 U.S.C. § 1225(b)(2)(A); Morton, John, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (the “Morton Memorandum”), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf; see also Pls.’ Am. Compl. Ex. 1 (Napolitano, Janet, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (the “Directive”)), ECF No. 15-1. Plaintiffs argue that they should not be disciplined for failing to comply with the Directive and Morton Memorandum because those documents and the Deferred Action for Childhood Arrivals program they implement conflict with the Immigration and Nationality Act and violate the Constitution and the Administrative Procedure Act. Pls.’ Am. Compl. ¶¶ 48–49, 67–80, 92–116, ECF No. 15; see 8 U.S.C. § 1225(b)(2)(A). Plaintiffs seek a declaratory judgment from the Court finding the Directive unlawful and in violation of federal statutes and the Constitution, as well as an injunction preventing the implementation of the Directive and prohibiting Defendants from taking disciplinary action against Plaintiffs for failure to comply with the Directive. Pls.’ Am. Compl. ¶¶ A–F, ECF No. 15.
Plaintiffs—federal employees—assert claims against the federal government based on retaliatory acts, or threats thereof, taken by their supervisors. Although they bring their dispute
5

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pursuant to the United States Constitution and the Administrative Procedure Act, their claims are
based on their challenge to the Deferred Action for Childhood Arrivals program after Plaintiffs’ non-
compliance with the program led to the threat of workplace disciplinary action against them. The
above-referenced authorities command that this dispute be governed by the CSRA’s comprehensive
and exclusive remedial scheme provided by Congress. Therefore, this Court does not have subjectmatter jurisdiction to address Plaintiffs’ claims.2 While the Court finds that Plaintiffs are likely to
succeed on the merits of their claim challenging the Directive and Morton Memorandum as contrary
to the provisions of the Immigration and Nationality Act, see generally Mem. Op. & Order, Apr. 23,
2013, ECF No. 58, Congress has determined that this Court does not have jurisdiction over Plaintiffs’ disputes. As a result, the Court must dismiss Plaintiffs’ claims without prejudice.3
The Court notes that this case has been pending for several months, and the preclusive effect
of the CSRA on the Court’s jurisdiction was not fully addressed until the Court ordered the parties
to submit additional briefing. See Mem. Op. & Order 36–37, Apr. 23, 2013, ECF No. 58.
2 The Court finds it unnecessary to determine whether Plaintiffs have an available remedy under the CSRA. The Supreme Court has stated that Congress enacted the CSRA as a comprehensive and exclusive scheme for resolving federal employment disputes. Fausto, 484 U.S. at 455. If the CSRA provides a remedy for Plaintiffs’ challenged disciplinary action, then the CSRA’s remedy is Plaintiffs’ exclusive avenue for redressing their claims. See Elgin, 132 S. Ct. at 2132–33. See, e.g., 5 U.S.C. §§ 1214(a)(1), 1214(a)(3), 2302(a)(1), 2302(a)(2)(A)(iii), 2302(b)(9)(D) (providing that certain federal employees may seek corrective action from the Office of Special Counsel when a supervisory employee takes or threatens to take “disciplinary or corrective action” against the employee for “refusing to obey an order that would require the individual to violate a law”). If the CSRA does not provide a remedy for Plaintiffs’ challenged disciplinary action (for example, because the disciplinary action is too minor), then a federal district court cannot provide relief because it would be affording a greater remedy than that provided by the CSRA. See Fausto, 484 U.S. at 455; Graham, 358 F.3d at 935. Under either scenario, this Court does not have subjectmatter jurisdiction over Plaintiffs’ federal employment disputes.
3 Given the Court’s determination that the CSRA deprives the Court of subject-matter jurisdiction over Plaintiffs’ claims, the Court finds it unnecessary to address the preclusive effect, if any, of the Collective Bargaining Agreement on Plaintiffs’ claims.
6

CaseC3a:1se2-2c:v1-10-3c2v4-070-O401D-CocWumDenotc7u5meFntile2d2707/F3i1le/1d308/P27a/g1e37 Pofa7ge P12agoefI3D31329 Defendants raised this issue in a footnote in their Motion to Dismiss and addressed the argument in a few sentences in their reply brief. See Defs.’ Mot. Dismiss 11 n.3, ECF No. 23; Defs.’ Reply Mot. Dismiss 5, ECF No. 33. They again addressed this issue in their opposition to Plaintiffs’ Application for Preliminary Injunctive Relief, but in no greater detail than at the motion-to-dismiss stage. See Defs.’ Opp’n Appl. Prelim. Inj. 16, ECF No. 34. The Court regrets that Defendants unreasonably expended so much of this Court’s time before this issue could be fully addressed and resolved. III. CONCLUSION
Based on the foregoing, it is ORDERED that Plaintiffs’ claims are DISMISSED without prejudice for lack of subject-matter jurisdiction.
SO ORDERED on this 31st day of July, 2013.
_____________________________________ Reed O’Connor UNITED STATES DISTRICT JUDGE
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EXHIBIT B

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DAVID A. MARTIN
A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade
This Essay disputes the legal claims set forth in a recent lawsuit that seeks to invalidate a policy of the Department of Homeland Security. The policy gives protection against deportation to unauthorized immigrants who came to the country as children, and the Department defends it as an exercise of prosecutorial discretion. The plaintiffs claim that no such discretion exists, because the Immigration and Nationality Act, as amended in 1996, requires that virtually all aliens who entered without inspection be detained and placed in removal proceedings whenever encountered by immigration agents. Closely examining the statutory language and drawing on the author’s own extensive involvement as General Counsel of the Immigration and Naturalization Service in the 1996 consideration of legislative amendments and administrative implementation, this Essay makes the case that the plaintiffs’ argument misunderstands both Congress’s intent and consistent agency practice before and after those amendments.
On August 23, 2012, ten Immigration and Customs Enforcement (ICE) officers sued in federal court to block the Obama Administration’s program to grant deferred action to longtime U.S. residents who came here illegally as children.1 Under that program, eligible persons will be shielded from deportation for two years (potentially renewable) and will generally receive work authorization. The covered individuals are sometimes called “DREAMers,”
1. Complaint, Crane v. Napolitano, No. 3:12-cv-03247-O (N.D. Tex. Aug. 23, 2012). The plaintiffs filed an amended complaint on Oct. 10, 2012, primarily to add the State of Mississippi, through its governor, Phil Bryant, as an additional plaintiff. Amended Complaint, Crane v. Napolitano, No. 3:12-cv-03247-O (N.D. Tex. Oct. 10, 2012), http://big.assets.huffingtonpost.com/ICElawsuit.pdf. The substantive arguments remained unchanged.
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because most would have been given lawful immigration status by the DREAM Act, a bipartisan bill that at times has garnered majority support in both houses of Congress, but has never been enacted.2 The officers claim that the program, officially known as Deferred Action for Childhood Arrivals (DACA), violates immigration statutes and transgresses our constitutional separation of powers. The Department of Homeland Security justifies DACA as a systematic and thoughtful way of exercising prosecutorial discretion. Under the program, the Department exercises its discretion by forgoing enforcement, after careful screening, against young unauthorized immigrants not considered culpable for their unauthorized entry or presence.3
Lead counsel for the officers in this case, Crane v. Napolitano, is Kris Kobach, who was a prime mover behind the recent wave of state and local legislation designed to crack down on illegal migration.4 Kobach is also the elected Secretary of State of Kansas, although he is representing the plaintiffs here in his private capacity and, one assumes, his spare time. Evidently, since

2. The initial Development, Relief, and Education for Alien Minors (DREAM) Act was introduced in 2001, S. 1291, 107th Cong. (2001), and reintroduced, with variations, in succeeding congresses. The House passed a version of the DREAM Act in the 2010 lameduck session, but the bill failed in the Senate when a cloture motion received only 55 votes (with 41 opposed). David M. Herszenhorn, Senate Blocks Bill for Young Illegal Immigrants, N.Y. TIMES, Dec. 18, 2010, http://www.nytimes.com/2010/12/19/us/politics/19immig.html.
The criteria for deferred action under the Obama Administration’s policy, however, diverge slightly from the DREAM Act. More significantly, the benefits of the executive action are more ephemeral than the full legal status that legislation could provide. Describing the policy in a Time essay, President Obama specifically noted that difference and called on Congress to enact the DREAM Act during its 2012 session. Barack Obama, Exclusive: A Nation of Laws and a Nation of Immigrants, TIME, June 17, 2012, http://ideas.time.com/2012/06/17/a-nation-of-laws-and-a-nation-of-immigrants.
3. See Memorandum from Janet Napolitano, U.S. Sec’y of Homeland Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot., et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came -to-us-as-children.pdf. For a thorough review of the history of deferred action in the immigration field, see Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 CONN. PUB. INT. L.J. 243, 246-65 (2010). To be eligible for DACA, applicants must have taken up residence in the United States before their sixteenth birthday, and on or before June 15, 2007—five years before the program was announced—and must not have reached their thirty-first birthday as of June 15, 2012. Other requirements, particularly with regard to schooling and criminal record, also apply. See Consideration of Deferred Action for Childhood Arrivals Process, U.S. CITIZENSHIP & IMMIGR. SERVS., http://www.uscis.gov/childhoodarrivals (last updated Sept. 14, 2012).
4. See John Hanna, Kan. Lawyer Is Architect of Many Immigration Laws, SAN DIEGO UNIONTRIB., May 10, 2010, http://www.utsandiego.com/news/2010/may/10/kan-lawyer-is-architect -of-many-immigration-laws.
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the Supreme Court squelched most of those crackdown provisions in its June ruling in Arizona v. United States,5 he feels the itch to find a new stage on which to complain about federal immigration policy.
Policy objections to the new program are fair game, of course, but as a lawsuit this is a very strange beast, and its full and disturbing implications have not been widely noted. In essence, the plaintiff officers say they are empowered to make their own choices about which immigration violators to arrest, no matter what their bosses may say about enforcement priorities. Their position represents both unwise policy and deeply flawed legal analysis.
The suit relies primarily on a superficially attractive and syllogistically neat statutory theory that Kobach first trumpeted in TV appearances and op-eds shortly after DACA was announced in June.6 Under Kobach’s theory, virtually every time an ICE agent encounters unauthorized aliens, he or she has a duty under federal law—with which no supervisor can interfere—to place the aliens into formal removal proceedings. The same argument has also been picked up by congressional opponents of DACA.7 But the argument’s central reasoning is legally erroneous. The theory takes out of context a provision Congress enacted in 1996, marries it with a misunderstanding of two provisions that have been in place for decades, and ignores the actual practice under those provisions.
I present this Essay primarily as a work of statutory interpretation. But it also draws on close personal knowledge of the legislative project that led to major statutory amendments in 1996,8 including the legal provisions on which Kobach relies. From summer 1995 to early 1998, I was on leave from my lawfaculty position, where my main specialty has been immigration law, to serve as General Counsel of the Immigration and Naturalization Service. In that capacity, I was involved in hundreds of discussions within the executive branch and on Capitol Hill regarding the immigration-reform legislation—initially as it was being shaped and later as it was being implemented. The Crane lawsuit
5. 132 S. Ct. 2492 (2012). 6. See Kris W. Kobach, The ‘DREAM’ Order Isn’t Legal, N.Y. POST, June 21, 2012,
http://www.nypost.com/p/news/opinion/opedcolumnists/the_dream_order_isn_legal _4WAYaqJueaEK6MS0onMJCO. The complaint also presents other legal theories, but I focus here on this statutory argument, which is the centerpiece of Kobach’s public attack on DACA and of the lawsuit, as presented in the complaint’s first cause of action. 7. See, e.g., Letter from Congressman Lou Barletta to House Judiciary Comm. and Homeland Sec. Comm. (June 26, 2012), http://www.fairus.org/DocServer/Rep_Barletta_Investigation _Letter_6-26-12.pdf. 8. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. IV, 110 Stat. 1214, 1258-81 (1996); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). The changes on which the lawsuit relies were enacted in the Illegal Immigration Reform and Immigrant Responsibility Act.
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refashions history and distorts what Congress and the executive branch intended in 1996. This Essay gives a richer account of why Congress adopted the key provisions than may be apparent from the traditional legislative history of committee reports and floor colloquies.
Part I addresses the core statutory argument that the officers’ lawsuit presents. Part II goes on to reflect on the wider implications for sound and accountable law enforcement if the plaintiffs were to prevail.
i. the statutory argument
A. The Syllogism
Here is the legal syllogism, as spelled out in the complaint. The argument relies on three provisions of section 235 of the Immigration and Nationality Act (INA),9 a section that governs inspections of people who have not been admitted to the United States. The first of those provisions, section 235(a)(1), was wholly new in 1996, and the other two are slightly revised versions of earlier provisions that have been in the INA since it was enacted in 1952. Specifically, the complaint contends:
[Section 235(a)(1) of the INA] requires that “an alien present in the United States who has not been admitted . . . shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers [section 235(a)(3)], which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers [section 235(b)(2)(A),] which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding [in immigration court].”10
The complaint then concludes that “federal law clearly requires Plaintiffs to place [aliens covered by these provisions] into removal proceedings.”11 Kobach’s op-ed is even more sweeping, asserting that Congress “inserted [these] interlocking provisions into the law that require deportation when

9. 8 U.S.C. § 1225 (2006). The complaint cites only the United States Code. In the text of this Essay, however, I refer to the relevant statutory provisions by their section numbers in the INA. In citations, I cite the United States Code as well as, where relevant, the INA.
10. Amended Complaint, supra note 1, ¶ 68. 11. Id. ¶ 69.
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Executive Branch officials become aware of illegal aliens.”12 He goes on: “[T]he ‘prosecutorial discretion’ that Obama claims he is ordering ICE agents to exercise no longer exists, because Congress eliminated it in 1996.”13 In other words, in Kobach’s view, Congress left no room for prosecutorial discretion, at least not before an unadmitted person has been charged, detained, and haled into immigration court.
B. Legal Flaws
1. Entrants Without Inspection vs. Overstays
Kobach’s statutory argument presents several serious problems. First, he acts as though it applies to all “illegal aliens.” (This is particularly true of the op-ed, but any nuances qualifying the legal argument in the complaint are at best subtly buried.) By its very terms, however, section 235(a)(1) applies only to “an alien present in the United States who has not been admitted”—that is, someone who entered clandestinely away from the port of entry where inspection and admission take place.14 These entrants without inspection (EWIs, in immigration-speak) probably constitute the stereotypical “illegal alien” in the public mind, but by commonly accepted estimates they make up only fifty to sixty-seven percent of the unlawfully present population.15 The rest entered through normal nonimmigrant channels (primarily on a student, tourist, or business visa), were admitted after inspection at the border, and then overstayed or otherwise violated the conditions of their temporary admission. Therefore, up to fifty percent of the unauthorized immigrants encountered by ICE agents would fall outside Kobach’s sweeping claim about the repeal of prosecutorial discretion, and there is no reason to think that different percentages would apply to DACA applicants.
2. How Congress Changed the Treatment of EWIs in 1996
But let us set aside this rather significant qualification on Kobach’s claim (perhaps it was only a made-for-media shorthand) that prosecutorial discretion no longer exists, and henceforth focus only on EWIs. Even as applied to them,
12. Kobach, supra note 6. 13. Id. 14. 8 U.S.C. § 1225(a)(1). 15. Modes of Entry for the Unauthorized Migrant Population, PEW HISP. CENTER 3 (May 22, 2006),
http://pewhispanic.org/files/factsheets/19.pdf.
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the argument, for all its lockstep “triggering,” is unsound. The complaint implicitly argues that there can be no reason for Congress to have specified, in INA section 235(a)(1), that every alien found in the country without having been admitted shall be deemed to be an applicant for admission, other than to trigger the other paragraphs and thus mandate that EWIs be inspected and then detained for removal proceedings. This argument deeply misunderstands a fundamental architectural change that Congress was making in 1996 to the structure of immigration law, and the role that section 235(a)(1) plays in that change. Moreover, the ultimate explanation of that paragraph of the law actually leads in the opposite direction from where Kobach wants the court to go, because it reflects a congressional wish to expand, not contract, the options open to the immigration-enforcement agency as it chooses when and whether to file charges.
To fully understand Congress’s handiwork, we must plunge deeply into the history of some immigration technicalities. Before 1996, and tracing back for at least a hundred years, immigration enforcement was marked by a key dividing line between exclusion and deportation—between blocking unqualified persons from entry and removing them after they had entered.16 The laws contained separate statutory sections setting forth grounds for exclusion and a somewhat shorter and more focused list of grounds for deportation. The statute also provided different procedures for exclusion and deportation, most importantly regarding the burden of proof. To avoid exclusion, the alien applicant for admission bore the burden of proof. In deportation proceedings, however, the burden fell on the government to show that one of the deportation grounds applied. Although the procedural and substantive differences were never great in practical effect and had narrowed over time, the overall provisions remained somewhat more favorable for deportable aliens than for excludable aliens.
Crucially, whether a person would be in exclusion or in deportation turned on whether he or she had entered U.S. territory. Thus applicants who did what they were supposed to—presented their documents at a port of entry—would be in the less favorable position of an excludable alien if their admissibility were questioned. But someone who sneaked across the border and thereby accomplished an entry would be subject to the more advantageous deportation

16. See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 187 (1958).
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grounds and deportation procedures.17 This ironic privileging of EWIs had drawn adverse comment in several court cases and in academic commentary.18
Changing that framework to end the more favorable treatment of EWIs drew wide support within Congress and the executive branch as immigration reform legislation moved forward in 1995 and 1996.19 As enacted, the new legislation made several changes toward this end. Primarily, it amended the prefatory language in the section setting forth deportation grounds (which, after 1996, have generally been called “deportability grounds”). The repealed language stated that deportation grounds apply to aliens “in the United States.”20 The new language declared the grounds applicable to aliens “in and admitted to the United States.”21 Further, the preexisting deportation ground for entering without inspection was repealed.22 Instead, EWIs would be covered by a brand new inadmissibility ground (the new terminology after 1996, which replaced “exclusion ground”), which renders inadmissible persons “present in the United States without being admitted or paroled.”23 Finally, Congress changed a key paragraph of the definitions section of the INA,24 so that, instead of defining “entry,” the statute would define “admission” or “admitted.”25 In short, the key factor in determining which substantive provisions apply and which procedures govern is now admission, not entry. Because they were never “admitted,” EWIs are now, once charged, treated
17. See THOMAS ALEXANDER ALEINIKOFF, DAVID A. MARTIN & HIROSHI MOTOMURA, IMMIGRATION: PROCESS AND POLICY 474-510 (3d ed. 1995).
18. See id. at 402. 19. See, e.g., Immigration in the National Interest Act of 1995: Hearing on H.R. 1915 Before the
Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 104th Cong. 24 (1995) (statement of T. Alexander Aleinikoff, Executive Associate Comm’r for Programs, United States Immigration and Naturalization Service); see also Matter of Quilantan, 25 I. & N. Dec. 285, 291 (B.I.A. 2010) (stating that the 1996 amendments were intended “to eliminate that aspect of the ‘entry doctrine’ that permitted aliens who had entered without inspection to have greater procedural and substantive rights in deportation proceedings than those who had presented themselves for inspection at a port of entry and had been placed in exclusion proceedings”). In this footnote, and as well as on page 174 and in footnote 52, I depart from standard citation style for the names of administrative adjudications and instead follow the terminology used by the Board of Immigration Appeals (BIA) and by many immigration scholars and practitioners. 20. 8 U.S.C. § 1251(a) (1994) (codifying the former section 241(a) of the INA). 21. 8 U.S.C. § 1227(a) (2006) (codifying section 237(a) of the INA). 22. 8 U.S.C. § 1251(a)(1)(B) (1994) (codifying the former section 241(a)(1)(B) of the INA). 23. 8 U.S.C. § 1182(a)(6)(A)(i) (2006) (codifying section 212(a)(6)(A)(i) of the INA). 24. 8 U.S.C. § 1101(a)(13) (2006) (codifying section 101(a)(13) of the INA). 25. Compare 8 U.S.C. § 1101(a)(13) (1994), with 8 U.S.C. § 1101(a)(13) (2006).
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essentially the same as persons identified as inadmissible (formerly “excludable”) at a port of entry.26
3. Badalamenti and the Statutory Designation of EWIs as Applicants for Admission
The statutory changes just described were the primary engines of the effort to end any favorable treatment of EWIs, and they might well have been enough to secure the basic architectural change that the political branches wanted: making EWIs inadmissible rather than deportable. But there was one more complication that the immigration agencies feared might hamper efficient enforcement against EWIs once that change took effect, and that complication was the real reason that Congress enacted section 235(a)(1). The complication derived from a 1988 decision by the Board of Immigration Appeals (BIA), Matter of Badalamenti,27 which had very limited significance when handed down, but which might have had much wider application after the 1996 amendments.
Exclusion grounds, the BIA noted in Badalamenti, apply to “applicants for admission.”28 In the pre-1996 world, this linkage rarely presented any issue at all. The litigated cases29 almost always involved someone ruled excludable at a port of entry. By the very nature of the process of arrival and port inspection, a person challenging exclusion was clearly seeking admission. The picture becomes a bit more complex, however, because exclusion grounds could also be applied to some persons outside the port-of-entry context: parolees. In immigration law, a parolee is a person who has received official permission to come into U.S. territory for a stated period (which might sometimes extend for years, or even decades). From the beginning, parole as a legal concept did not amount to admission, and a parolee was deemed not to have accomplished an

26. There are still a few respects in which the statute and its implementing regulations differentiate between “arriving aliens” who present themselves at the port of entry for inspection and other removable aliens—a category that includes EWIs. See, e.g., 8 U.S.C. §§ 1182(a)(9)(A), 1225(b)(1)(A)(i), (iii) (2006) (codifying sections 212(a)(9)(A), 235(b)(1)(A)(i), and 235(b)(1)(A)(iii) of the INA); 8 C.F.R. §§ 1.2, 235.3(c), 1003.19(h)(2)(i)(B) (2012). But because EWIs are now subject to the INA inadmissibility grounds and most of the inadmissibility procedures, the differences are limited compared to the disparities under pre-1996 law, and they are not material to the issues presented in the Crane litigation.
27. 19 I. & N. Dec. 623 (B.I.A. 1988).
28. Id. at 626.
29. The exclusion grounds were—and now the inadmissibility grounds are—also regularly applied by U.S. consular officers deciding whether to issue a visa, but such decisions are generally not subject to administrative or judicial review.

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entry.30 Under a legal fiction, a parolee remained constructively at the border and would be treated as an applicant for admission once again (thus subject to the exclusion grounds and procedures) whenever the parole ended. This also rarely presented an issue, however, because parolees generally wanted to stay. When parole termination was litigated, the controversy almost always centered on the propriety of the termination or the substantive interpretation of an exclusion ground.
Vito Badalamenti’s case was different. An Italian citizen, he had been extradited to the United States from Spain in 1984 as one of nineteen defendants charged in a massive indictment meant to break up the so-called Pizza Connection drug-smuggling ring run by his father, Gaetano Badalamenti. In order to stand trial, he had been paroled into the United States. This move had been a standard practice for decades: parole is necessary if extradited defendants are to proceed beyond the port of entry to the jail and then the courthouse, because they would almost always be barred from admission owing to the evidence of their criminal activity. After a seventeenmonth Pizza Connection trial, seventeen defendants were convicted, but Vito Badalamenti was acquitted. The local INS office told him he had a week to make arrangements to leave the United States at his own expense. When he missed the deadline, he was taken into INS custody and charged under the applicable exclusion grounds.31
Badalamenti did not dispute the possible substantive relevance of the stated grounds. He argued instead that he was not an applicant for admission and thus not subject to any exclusion grounds at all. Clearly he had not desired to come to the United States, and he would be happy to leave now, but he had been unable to secure travel plans in the time allowed.32 (He did not want to return to Italy, his country of nationality, because he probably faced prosecution there, and initial arrangements with Paraguay fell through.)33
30. For a general account of the concept of parole and its application, see ALEINIKOFF ET AL., supra note 17, at 379-84. Parole is provided for in section 212(d)(5) of the INA. 8 U.S.C. § 1182(d)(5) (2006).
31. 19 I. & N. Dec. at 624-25; Ralph Blumenthal, Acquitted in ‘Pizza Connection’ Trial, Man Remains in Prison, N.Y. TIMES, July 28, 1988, http://www.nytimes.com/1988/07/28/nyregion /acquitted-in-pizza-connection-trial-man-remains-in-prison.html; Arnold H. Lubasch, 17 Found Guilty in ‘Pizza’ Trial of a Drug Ring, N.Y. TIMES, Mar. 3, 1987, http://www.nytimes.com /1987/03/03/nyregion/17-found-guilty-in-pizza-trial-of-a-drug-ring.html.
32. 19 I. & N. Dec. at 625. 33. Id.; Blumenthal, supra note 31; see also Badalamenti v. Moyer, No. 87-c-8503, 1988 WL 9125,
at *1 (N.D. Ill. Feb. 4, 1988) (describing—in the course of rejecting Badalamenti’s habeas corpus petition, filed before the BIA ruling in the case—Badalamenti’s allegations about the
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The BIA agreed with his basic argument. It stated that, “once the purpose of parole has been served and parole has been terminated, the alien must be given a reasonable opportunity to depart unless there is evidence that he is an applicant for admission.”34 At some point, the BIA stated, a parolee who fails to depart will become subject to exclusion and to treatment as an applicant for admission, but first he must be given a “fair and reasonable opportunity to depart.”35 The case was remanded to the immigration judge for a hearing on whether Badalamenti had had such an opportunity, including what efforts he had made to secure departure and whether the government had impeded his efforts.36 If the opportunity to depart fell short of these standards, the judge should terminate the exclusion proceedings as premature.
As the immigration-reform legislation was under consideration in 1995, INS and the Department of Justice grew concerned that Badalamenti might apply to EWIs upon their apprehension. That is, now that EWIs could be removed only under an inadmissibility ground, they might claim upon apprehension that they really did not want to apply for admission and that they would happily depart on their own if given a week or two to do so. Under Badalamenti, INS feared that the BIA might allow application of the inadmissibility provisions only to a person for whom INS could present direct “evidence that he is an applicant for admission”37—at least until the person had a reasonable opportunity to depart on his own. In the meantime, lacking authority to charge, much less detain, the person, officers faced the prospect that many EWIs could easily abscond. Congressional staffers who were crafting the new system understood the concern and wanted to make certain to avoid this outcome.38

Italian government’s interest in prosecuting him and the circumstances of his thwarted flight to Paraguay). 34. 19 I. & N. Dec. at 626. 35. Id. at 627. 36. Id. 37. Id. at 626. 38. I emphasize that the concern arose from an abundance of caution, rather than from any slam-dunk argument that an EWI had to be treated like an acquitted extraditee (for whom the claim of no desire to apply for admission is far more plausible). Nonetheless, early drafts of the legislation did not squarely foreclose the Badalamenti argument, and one could easily envision a defense lawyer pressing it in the future. Further, the concept of “seeking admission” does still appear in some locations in the post-1996 law (e.g., section 235(b)(2)(A), one of the provisions Kobach highlights). INS and the Department of Justice prudently wanted Congress to take direct steps to eliminate any misunderstanding and foreclose one litigation issue. Perhaps because this additional safeguard provision was added at the staff level early in the drafting process and without real controversy, the
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Congress reacted by stating in section 235(a)(1) that any “alien present in the United States who has not been admitted” shall be deemed, as a matter of law, to be an applicant for admission.39 Accordingly, once the reformed system took effect, INS could immediately charge an EWI, whatever his declared subjective intent, without first giving him a couple of weeks to leave. The congressional purpose was to broaden the discretion of the enforcement agency to choose when to charge an EWI. This new provision gave INS the option to charge EWIs with inadmissibility upon discovery when it otherwise might not have been able to file immediate charges at all because of Badalamenti. To my knowledge, no one at the time even came close to suggesting that this provision required the agency to file charges whenever it encountered an EWI. Kris Kobach has it backward.
4. The Other Provisions of Section 235 of the Immigration and Nationality Act
Even if section 235(a)(1) were read as Kobach argues, it still precludes prosecutorial discretion only if the remaining two paragraphs themselves leave no room for discretion. Those two provisions call, first, for inspection of applicants for admission and, second, for detention leading up to removal proceedings in cases of doubt about admissibility. But versions of these two provisions have been in the immigration laws at least since the current Immigration and Nationality Act was adopted in 1952,40 and the longstanding practice of immigration agencies, at the ports of entry where these provisions classically applied, reveals substantial exercises of discretion, without an inexorable march into detention and then immigration court.
First, consider the well-established practice of withdrawal of an application for admission. For many years before 1996, and continuing thereafter, immigration inspectors have annually allowed tens of thousands of applicants for admission in the ports of entry to withdraw their applications, without charging or detaining them or placing them in removal proceedings. Withdrawal permission commonly reflects a judgment by the officer that the
reasons for adding what is now section 235(a)(1) have not been expressly stated, so far as I am aware, in the formal legislative history. (I took up my INS position in August 1995 after this change had already been made to the leading draft bills. But I had many conversations about section 235(a)(1) and its derivation from Badalamenti in succeeding months, while working with executive-branch and congressional staff on further necessary refinements in the provisions that would operationalize the shift of EWIs from deportable to inadmissible.) 39. 8 U.S.C. § 1225(a)(1) (2006). 40. Before 1996, the relevant provisions were the first two sentences of section 235(a) of the INA, which became the current section 235(a)(3), and the first sentence of section 235(b), which became the current section 235(b)(2)(A). See 8 U.S.C. § 1225(a), (b) (1994).
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individual presented a document with a merely technical flaw or otherwise had made an honest mistake.41 Withdrawal allows the person to go home right away, fix the problem (perhaps by getting a new visa), and return without the automatic disqualifications that attach if a judge issues a formal removal order.42 This practice unmistakably amounts to prosecutorial discretion, routinely exercised for persons who came before an immigration officer for examination and were not “clearly and beyond a doubt entitled” to land.
If Kobach’s argument about the current, only slightly changed language, is correct, then from 1952 to 1996 the withdrawal practice was illegal. Under the Kobach interpretation, all that an examining officer could do upon finding a flaw in the application for admission would be to detain, charge, and bind the person over to immigration court. Congress never thought this withdrawal practice illegitimate or deemed it a violation of the “shall” commands in the governing statute. Indeed, in 1996 Congress gave explicit statutory blessing to this practice of permitting withdrawals, in the discretion of the officer, instead of detaining for removal.43
Perhaps more closely relevant to assessing the legality of DACA are several varieties of immigration parole. Parole, like withdrawal, originated as a purely administrative innovation. It permits a person’s physical presence in the United States even when she could not legally be granted formal admission. The practice was well established by the time parole gained explicit statutory sanction in the original 1952 Immigration and Nationality Act. Consistent with

41. See Stanley Mailman & Stephen Yale-Loehr, Withdrawing the Application for Admission, N.Y. L.J., June 23, 1997, at 1, http://www.ssbb.com/index.php/publications/entry/22 (describing the background of the withdrawal practice). Once a person presents himself or herself for admission at a port of entry, withdrawal is not at the individual’s discretion; it requires the officer’s approval. But approval is far from rare. When Congress began consideration of the 1996 amendments to the INA, withdrawals, which at that time had no explicit statutory basis, but were instead an “administrative invention” justified under the general INS authority to administer the immigration laws, were running above 900,000 per year. Id. (reporting 961,444 withdrawals in 1994, “a typical year,” as compared to 17,419 exclusion cases decided that year by immigration judges). In 2005, the most recent year for which withdrawal statistics have been officially reported, the Department of Homeland Security counted 316,898 withdrawals. Mary Dougherty, Denise Wilson & Amy Wu, Annual Report—Immigration Enforcement Actions: 2005, DEP’T OF HOMELAND SECURITY 4 (Nov. 2006), http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2005/Enforcement_AR_05.pdf.
42. See 8 U.S.C. § 1182(a)(9)(A)(i) (2006) (codifying section 212(a)(9)(A)(i) of the INA) (generally rendering inadmissible for five years a person who had been ordered removed in a proceeding initiated upon her or his arrival).
43. 8 U.S.C. § 1225(a)(4) (2006) (codifying section 235(a)(4) of the INA).
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the earlier treatment, Congress expressly provided that parole “shall not be regarded as an admission of the alien.”44
Because that same 1952 Act contained the predecessor provisions to the current section 235(a)(3) and (b)(2)(A), Kobach’s interpretation of those two paragraphs must indicate that parole could take place only after the potential parolee–almost by definition a person “not clearly and beyond a doubt entitled” to admission–had been detained and placed in proceedings in immigration court. To be sure, a respectable percentage of paroles do conform to the Kobach model, because parole is often used to release from immigration custody an ostensibly inadmissible applicant for admission, pending completion of his removal proceedings. Under this type of parole, the person is released from actual physical custody, often after posting bond, based on a judgment that he is neither dangerous nor a flight risk.45
But parole has also been used in hundreds of thousands of cases each year to allow arriving aliens at the port of entry to establish physical presence in the United States, without detention and without the initiation of immigrationcourt proceedings, even though these persons appear to be inadmissible. Humanitarian parole, granted so that an inadmissible person may receive urgent medical care, for instance, or may be united with a dying relative, furnishes one important example.46 A far more common situation involves advance parole–approved by U.S. Citizenship and Immigration Services
44. Immigration and Nationality Act, Pub. L. No. 82-414, § 212(d)(5), 66 Stat. 163, 188 (1952) (codified as amended at 8 U.S.C. § 1182(d)(5) (2006)).
45. See 8 C.F.R. §§ 235.3(c), 236.1(c)(8), (11), 1003.19(h) (2012) (governing release from custody pending an immigration-court hearing); Leng May Ma v. Barber, 357 U.S. 185, 18890 (1958) (describing the history of parole and its use to avoid “needless confinement”).
46. In recent years, U.S. Citizenship and Immigration Services (USCIS) has granted roughly three hundred to four hundred humanitarian paroles annually. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO 08-208, IMMIGRATION BENEFITS: INTERNAL CONTROLS FOR ADJUDICATING HUMANITARIAN PAROLE CASES ARE GENERALLY EFFECTIVE, BUT SOME CAN BE STRENGTHENED 11 (2008), http://www.gao.gov/new.items/d08282.pdf. Immigration inspectors at the port of entry may also grant humanitarian and special public-interest parole without advance USCIS processing. U.S. CUSTOMS & BORDER PROT., INSPECTOR’S FIELD MANUAL, § 16.1(c), http://www.visaserveblog.com/tp-090109080449/post-120221102209 /U.S.CustomsandBorderProtection%28CBP%29Inspector%27sFieldManual.pdf (last visited Dec. 6, 2012) (redacted version). Another significant example can be found in the regulations governing “parole for deferred inspection,” a practice under which an alien is allowed to travel freely to his U.S. destination, where he will be further inspected by Department of Homeland Security officers. This practice is used primarily in circumstances where the officer at the port of entry “has reason to believe that the alien can overcome a finding of inadmissibility” by, inter alia, posting a bond or presenting additional evidence. 8 C.F.R. § 235.2(b) (2012).
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(USCIS) upon the application of an alien currently in the United States (and
ordinarily awaiting the processing of a benefit) but otherwise unable to reenter
in the same status or on the initial nonimmigrant visa if he or she undertakes
temporary travel. In fiscal year 2011, USCIS granted more than 245,000
freestanding applications for advance parole and more than 500,000 more applications as part of the adjustment of status process.47 People who receive
these types of parole, with few exceptions, are permitted to proceed at liberty
onto U.S. territory, after minimal additional processing at the port of entry.
Agency practice before 1996 in the ports of entry thus included a history of
thousands of paroles allowed without detention, charge, or appearance in
immigration court, and that pattern continued smoothly after the 1996 amendments.48 I am aware of no evidence that Congress either intended a change or has objected to the continuing use of parole in this manner.49

47. DATA ANALYSIS & REPORTING BRANCH, U.S. CITIZENSHIP & IMMIGRATION SERVS., SERVICEWIDE RECEIPTS AND APPROVALS FOR ALL FORM TYPES, FISCAL YEAR 2011, http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms %20Data/All%20Form%20Types/allformtypes_performancedata_fy11.pdf. Advance parole is primarily granted to persons in the United States awaiting adjustment of status who need to travel before they receive their green card through the adjustment process. By 2007, applications for advance parole had become so common on the part of adjustment applicants that USCIS decided to require all adjustment applicants to complete the advance parole application and pay one consolidated fee that covers both adjustment processing and advance parole processing (plus interim employment authorization). See Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule, 27 Fed. Reg. 29,851, 29,861-62 (May 3, 2007) (codified at 8 C.F.R. pt. 103) (final rule); see also Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule, 72 Fed. Reg. 4888, 4894 (Jan. 26, 2007) (proposed rule). Of course, only a fraction of adjustment applicants actually travel during the relevant period and return to the port of entry using advance parole.
48. Advance approval of parole does not guarantee actual parole at the port of entry. See U.S. CUSTOMS & BORDER PROT., supra note 46, § 16.1(b). If the inspecting officer detects a problem with the case, he may instead place the person into removal proceedings or permit withdrawal of the application for admission, accompanied by prompt return to the country the person left.
49. Some court decisions, most of them relying on Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), have read section 235(b)(2)(A) of the INA as giving the immigration officer “no choice but to place the alien in removal proceedings.” Id. at 27; see, e.g., Bona v. Gonzales, 425 F.3d 663, 669-70 (9th Cir. 2005); Zheng v. Gonzales, 422 F.3d 98, 117 (3d Cir. 2005). But in these cases, which involved aliens at the ports of entry, not EWIs, the courts were focusing not on inspection and charging procedures, but on the validity of a separate regulation that precluded certain arriving aliens in removal proceedings from applying for adjustment of status. This rigid reading of section 235(b)(2)(A) of the INA by the courts was one small part of a complicated statutory interpretation that led the courts to conclude that the regulation was invalid. These pronouncements on section 235(b)(2)(A) are probably dicta because the holdings rest on the regulation’s inconsistency with the underlying statute

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If Kobach’s statutory argument in Crane v. Napolitano prevails, it must follow that these convenient and salutary uses of parole at the ports of entry are illegal. The deleterious effects (and utter impracticality) of such a change can be illustrated by focusing on one particular use of parole explicitly recognized in the Inspector’s Field Manual: for an “[e]mergency worker responding to a natural disaster.”50 In earlier years, parole came to be used for such persons because, in disaster situations, time is too short for full visa processing in nonimmigrant categories that include work authorization. Under Kobach’s theory, a European search-and-rescue team or a squad of Canadian electricpower technicians would be allowed to proceed to their duty stations in the aftermath of an earthquake or hurricane only after the insult of detention and the filing of formal immigration charges. That is surely not what Congress intended.
5. Prosecutorial Discretion and the Word “Shall”
Finally, the entire statutory argument in Crane v. Napolitano depends on reading the word “shall” as a categorical mandate wherever it appears, negating any exercise of judgment—at least at any level above the frontline officer. But
governing adjustment of status, section 245 of the INA. 8 U.S.C. § 1255 (2006). (CruzMiguel v. Holder, 650 F.3d 189, 197 (2d Cir. 2011), did involve EWI petitioners, and it also contains dictum addressing application of section 235(b)(2)(A) of the INA to EWIs, but the court ultimately affirmed a BIA ruling that the petitioners were ineligible for adjustment of status.) In any event, these courts’ statements on the mandatory nature of section 235(b)(2)(A) were not based on a fully informed exploration of the actual administrative practice under that section and its predecessors. In particular, the court in Zheng was clearly incorrect when it stated that “[p]arole is a form of relief from immigration detention[;] it is not a form of relief from removal proceedings.” 422 F.3d at 117. As described in the text above, hundreds of thousands of parolees have been allowed to come into the United States without being placed into proceedings. See THOMAS ALEXANDER ALEINIKOFF, DAVID A. MARTIN, HIROSHI MOTOMURA & MARYELLEN FULLERTON, IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 521 (7th ed. 2012) (stating that parole “can thus be used for a wide variety of purposes, either before or after an administrative finding of inadmissibility”).
In contrast, the Supreme Court gave a more nuanced and careful signal about the meaning of section 235(b)(2)(A) when it began its 2005 opinion in Clark v. Martinez with these words:
An alien arriving in the United States must be inspected by an immigration official and, unless he is found ‘clearly and beyond a doubt entitled to be admitted,’ must generally undergo removal proceedings to determine admissibility. Meanwhile the alien may be detained, subject to the Secretary’s discretionary authority to parole him into the country. 543 U.S. 371, 373 (2005) (emphasis added) (citations omitted). 50. U.S. CUSTOMS & BORDER PROT., supra note 46, § 16.1(c)(2)(A).
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enforcement statutes, notably in the criminal field, commonly employ that word, and yet discretion survives. For example, a typical petty-larceny statute reads: “Whoever steals . . . the property of another . . . shall be guilty of larceny, and . . . if the value of the property stolen . . . does not exceed two hundred and fifty dollars, shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars.”51 No one considers that such a law absolutely requires police to investigate or prosecutors to charge every time they have even minimal evidence of such a theft. To be sure, officers are unlikely to ignore someone shoplifting groceries right in front of them. But, even in such a case, the officer or district attorney could properly drop the case before charges are filed—based on a judgment that the criminal docket is already overloaded with more serious cases, for example, or that the defendant acted to feed a famished child. The statute’s ostensibly directive language would not render such a decision ultra vires. In this vein, the BIA ruled recently that “shall,” in a different paragraph of section 235, “does not carry its ordinary meaning, namely, that an act is mandatory. It is common for the term ‘shall’ to mean ‘may’ when it relates to decisions made by the Executive Branch of the Government on whether to charge an individual and on what charge or charges to bring.”52
In that decision, the BIA relied on classic prosecutorial-discretion decisions by the Supreme Court in the criminal-justice field, including United States v. Armstrong.53 In Armstrong, the Court rejected the defendant’s selectiveprosecution argument with these words: “A selective-prosecution claim asks a court to exercise judicial power over a ‘special province’ of the Executive[, which traces to] . . . the President’s . . . constitutional responsibility to ‘take Care that the Laws be faithfully executed.’”54 Armstrong relied in part on Heckler v. Chaney, a landmark decision that generally precludes judicial review under the Administrative Procedure Act of “agency decisions to refuse enforcement.”55 Heckler summarized the reasons for the “general unsuitability” of judicial review in this context:
[A]n agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation

51. MASS. GEN. LAWS ANN., ch. 266, § 30(1) (West 2008) (emphasis added). 52. Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 522 (B.I.A. 2011). The provision at issue
was section 235(b)(1)(A)(i) of the INA. 53. 517 U.S. 456 (1996). 54. Id. at 464 (citing U.S. CONST. art. II, § 3). 55. 470 U.S. 821, 831 (1985).

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has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.56
It is the agency, not each individual enforcement officer, that has the responsibility to make these decisions about resource allocation and overall policy.
The normal selective-prosecution claim, of course, is filed by the accused, alleging that she was improperly singled out. But the ICE officers’ suit also amounts to a selective-prosecution suit, although it comes from the opposite angle. The officers assert that their supervisors require them to be selective, when the statute’s “shalls” do not permit selectivity. But as long as the same constitutionally based discretion that the executive branch possesses in the criminal realm also applies to immigration enforcement—as the BIA and the Supreme Court have indicated57—then discretion continues, and it belongs not personally to line officers, but to the President and his delegates who head the relevant agency.
ii. a broader perspective
Now that we have taken a deep dive into the technicalities, let us regain some altitude and think about the kind of enforcement regime we would have if Kobach’s argument prevails. Supervisors could not tell front-line officers how to focus their enforcement efforts, ostensibly because Congress has said directly to the line officer: you must pick up every EWI you ever encounter and place them all in proceedings. An officer assigned to an interagency task force charged with investigating and then prosecuting or deporting major foreign
56. Id. at 831-32. 57. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489-92 (1999); E-R-M- & L-R-
M-, 25 I. & N. Dec. at 522. American-Arab Anti-Discrimination Committee applied Armstrong in the immigration field, rejecting judicial review of a selective-enforcement challenge to deportation charges. As in the other settings, however, the Court said it was not necessarily foreclosing the possibility of review in a case presenting evidence of “outrageous” discrimination. Am.-Arab Anti-Discrimination Comm., 525 U.S. at 491.
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drug dealers would have to break off from pursuit of the organization’s leaders if he came across EWIs in the course of his investigation. An officer assigned to a fugitive-operations team—which concentrates on locating and removing persons who ignored a final order of removal issued after a full hearing—would have to divert her attention and use whatever time might be required to arrest and charge all EWIs encountered at the site where she expected to find the fugitive. It is even possible that an officer ordered to interview foreigners booked into a local jail after arrests for common crime could escape discipline for failing to show up if he could demonstrate that he spent the whole morning instead arresting and charging EWIs he happened to encounter on his way to the jail.
Equally important, Kobach’s relentless mandate to arrest EWIs would apply even when detention space is full, even when local immigration-court dockets are overwhelmed. Any effort by supervisors and managers to prioritize based on judgments about the relative threat posed by various individuals, by reference to humanitarian concerns, or even just to accommodate the real world of limited enforcement resources, would be illegitimate.
This portrait of the anarchic enforcement regime that might result if the suit is successful is not fanciful. In fact, the complaint reveals that one of the plaintiffs has apparently already tried to act in this fashion. According to a section of the complaint titled “Harm” (evidently included to help establish that the officer plaintiffs have standing), plaintiff James Doebler was told that he had to stop issuing charging documents “to certain illegal aliens” who were not within the guidelines. His supervisors then moved to impose a three-day suspension when he still went ahead and arrested someone who was a low priority.58
In any other law enforcement environment, this discipline would be unremarkable. Picture a mayor and police chief directing officers to join a new concerted operation to arrest drug dealers. But one of the officers decides instead to spend his day arresting unlicensed sidewalk hucksters whom he sees along the streets. A police officer who insists on arresting just the people he chooses, defying the chain of command that runs up to electorally accountable officials, is rightly regarded as a rogue agent—a troubling thing in a democracy. The officer is entitled to disagree with the policy, but not to defy it. Those who do not like the policy can work to elect a different mayor. In the meantime, enforcement officers have to follow orders.
No sensible law enforcement agency operates the way Kobach advocates. If Congress meant in 1996 to remove all enforcement discretion, particularly in view of the President’s constitutionally based authority over enforcement, one

58. Amended Complaint, supra note 1, ¶ 50.
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would expect a far more explicit statement than the complicated three-step triggering on which Kobach relies. Moreover, one would have to wonder why Congress would pick out EWIs, most of whom are diligent hard workers, and elevate them above criminals or national security threats for an absolute requirement to file charges. (The Administration, it should be noted, has firmly anchored DACA in ongoing policy changes meant to focus most immigration-enforcement resources on criminals, recent border crossers, and serious violators of the immigration laws.)59 Nothing in the legislative history supports Kobach’s counterintuitive reading. Indeed, twenty-eight members of Congress wrote to the Attorney General in 1999, indicating that prosecutorial discretion survived the 1996 legislation and urging that it be used more systematically to reduce hardship and promote fairness. The signers included several Republicans normally seen as hard-liners on immigration, including Representative Lamar Smith of Texas, the current Chairman of the House Judiciary Committee, and Representative F. James Sensenbrenner, Jr., of Wisconsin, the previous Republican chair of that committee.60
Kobach’s relentless push for blanket and indiscriminate enforcement, here and in the state legislation he helped draft and defend, contributes mightily to the bitter polarization on this issue—although he shares that blame with a few advocates on the other side whose maximalist opposition to enforcement initiatives gives little practical respect to immigration restrictions enacted in law. Those of us who hope someday to see a viable regime that restores credibility to our immigration laws lament stances such as Kobach’s. Enforcement without a sense of proportion—or even of sensible administration
59. See Obama, supra note 2; Memorandum from John Morton, Dir., U.S. Immigration & Customs Enforcement, to All Field Office Dirs., Special Agents in Charge, and Chief Counsel, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011), http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial -discretion-memo.pdf; Memorandum from John Morton, Dir., U.S. Immigration & Customs Enforcement, to All ICE Employees, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011), http://www.ice.gov /doclib/news/releases/2011/110302washingtondc.pdf. For a further discussion of the link between declining removals of low-priority cases and increased removals of criminals, see David A. Martin, A Lawful Step for the Immigration System, WASH. POST, June 24, 2012, http://www.washingtonpost.com/opinions/a-lawful-step-for-the-immigration-system/2012/06 /24/gJQAgT0O0V_story.html, which notes that overall ICE removals have remained at approximately 400,000 per year under Obama even as noncriminal removals decreased.
60. Letter from 28 Members of Cong. to Att’y Gen. Janet Reno & Doris Meissner, Comm’r, Immigration & Naturalization Serv. (Nov. 4, 1999), reprinted in 76 INTERPRETER RELEASES 1720 app. 1 (1999).
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in the real world of limited resources—will fail at restoring the rule of law in this fractious and troubled realm.
In Arizona v. United States, the Supreme Court emphasized the federal government’s “broad discretion” in immigration enforcement, a discretion that is grounded in the President’s constitutional powers and also “embraces immediate human concerns.”61 The Crane challenge to DACA is technically deficient for the many reasons canvassed here. But it deserves rejection primarily because of its blindness to this larger principle, so recently reaffirmed.
David A. Martin is the Warner-Booker Distinguished Professor of International Law and Joel B. Piassick Research Professor of Law at the University of Virginia School of Law. The author served as General Counsel of the Immigration and Naturalization Service from 1995 through 1997 and returned to government service as Principal Deputy General Counsel of the Department of Homeland Security from 2009 through 2010. The views presented here are the author’s and should not be taken as the views of the Department of Homeland Security or any other government agency. Thanks go to Andrew Schoenholtz, Nicholas Perry, Paul Virtue, and Michael Wishnie for helpful comments on an earlier draft, and to Jennifer Bryer for excellent research assistance.
Preferred Citation: David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade, 122 YALE L.J. ONLINE 167 (2012), http://yalelawjournal.org/2012/12/20/martin.html.

61. Arizona v. United States, 132 S. Ct. 2492, 2499 (2012). These early sections of the majority opinion seem to have been designed to counter the intemperate separate opinion of Justice Scalia, id. at 2511, 2520-22 (Scalia, J., concurring in part and dissenting in part), who went out of his way to thunder against the June 15 DACA policy, then only two weeks old (and obviously not discussed in the record before the Court). See David A. Martin, Reading Arizona, 98 VA. L. REV. IN BRIEF 41, 45-46 (2012), http://www.virginialawreview.org /inbrief/2012/04/14/Martin_Web.pdf.
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 Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 1 of 49
CLOSED,CONSOLIDATED,LEAD_CASE,LODGE_DOC,OPEN_MJ
US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:11−cv−00401−CW

Utah Coalition of La Raza et al v. Herbert et al Assigned to: Judge Clark Waddoups Cause: 42:1981 Civil Rights
Plaintiff Utah Coalition of La Raza

Date Filed: 05/03/2011 Date Terminated: 12/04/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Darcy M. Goddard OFFICE OF THE DISTRICT ATTORNEY 2001 S STATE ST STE 3600 SALT LAKE CITY, UT 84190−1200 (385)468−7761 Email: dgoddard@slco.org TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esperanza Granados 484 W 300 N BLACKFOOT, ID 83221 (801)879−4670 Email: mezaeg@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer C. Newell AMERICAN CIVIL LIBERTIES UNION FOUNDATION (SF) 39 DRUMM ST SAN FRANCISCO, CA 94111 (415)343−0774 Email: jnewell@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leah M. Farrell ACLU OF UTAH 355 N 300 W STE 1 SALT LAKE CITY, UT 84103 (801)521−9862 Email: lfarrell@acluutah.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andre Segura AMERICAN CIVIL LIBERTIES UNION FOUNDATION (NY) 125 BROAD ST 18TH FL NEW YORK, NY 10004 (212)549−2676 Email: asegura@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Bradley Stuart Phillips MUNGER TOLLES & OLSON LLP

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 2 of 49
350 S GRAND AVE 50TH FL LOS ANGELES, CA 90071−3426 (213)683−9262 Email: brad.phillips@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Elora Mukherjee AMERICAN CIVIL LIBERTIES UNION FOUNDATION (NY) 125 BROAD ST 18TH FL NEW YORK, NY 10004 (212)549−2664 PRO HAC VICE
Joseph S. Cohn ACLU 1 VIRGINIA AVE FIRST FL WESTMONT, NJ 08108 (215)680−0988 Email: jcohn@acluutah.org TERMINATED: 03/30/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin NATIONAL IMMIGRATION LAW CENTER 3435 WILSHIRE BLVD STE 2850 LOS ANGELES, CA 90010 (213)639−3900 Email: tumlin@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau AMERICAN CIVIL LIBERTIES UNION FOUNDATION (SF) 39 DRUMM ST SAN FRANCISCO, CA 94111 (415)343−0778 Email: kdesormeau@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman AMERICAN CIVIL LIBERTIES UNION FOUNDATION (SF) 39 DRUMM ST SAN FRANCISCO, CA 94111 (415)343−0777 Email: irp_ks@aclu.org TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
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Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 3 of 49

Plaintiff Service Employees International Union

Melissa S. Keaney NATIONAL IMMIGRATION LAW CENTER 3435 WILSHIRE BLVD STE 2850 LOS ANGELES, CA 90010 (213)639−3900 Email: keaney@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION (NY) 125 BROAD ST 18TH FL NEW YORK, NY 10004 (212)549−2620 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Shiu−Ming Cheer NATIONAL IMMIGRATION LAW CENTER 3435 WILSHIRE BLVD STE 2850 LOS ANGELES, CA 90010 (213)639−3900 Email: cheer@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Darcy M. Goddard (See above for address) TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Esperanza Granados (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leah M. Farrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Stuart Phillips (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 4 of 49

Cecillia Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION (SF) 39 DRUMM ST SAN FRANCISCO, CA 94111 (415)343−0775 Email: cwang@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE

Joseph S. Cohn (See above for address) TERMINATED: 03/30/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth John Sugarman (See above for address) TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa S. Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Omar Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Workers United Rocky Mountain Joint Board

represented by Darcy M. Goddard (See above for address) TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esperanza Granados

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 5 of 49
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah M. Farrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Stuart Phillips (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) PRO HAC VICE
Jennifer C. Newell (See above for address) ATTORNEY TO BE NOTICED
Joseph S. Cohn (See above for address) TERMINATED: 03/30/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shiu−Ming Cheer

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(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Centro Civico Mexicano

represented by Darcy M. Goddard (See above for address) TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esperanza Granados (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer C. Newell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andre Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Bradley Stuart Phillips (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cecillia Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE

Joseph S. Cohn (See above for address) TERMINATED: 03/30/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth John Sugarman (See above for address)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 7 of 49

TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa S. Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Omar Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Coalition of Utah Progressives

represented by Darcy M. Goddard (See above for address) TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esperanza Granados (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer C. Newell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andre Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Bradley Stuart Phillips (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cecillia Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 8 of 49

PRO HAC VICE

Joseph S. Cohn (See above for address) TERMINATED: 03/30/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth John Sugarman (See above for address) TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa S. Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Omar Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Latin American Chamber of Commerce

represented by Darcy M. Goddard (See above for address) TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esperanza Granados (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer C. Newell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address)

Plaintiff

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 9 of 49
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Stuart Phillips (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) PRO HAC VICE
Joseph S. Cohn (See above for address) TERMINATED: 03/30/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 10 of 49

Salt Lake City Brown Berets

represented by Darcy M. Goddard (See above for address) TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esperanza Granados (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer C. Newell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andre Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Bradley Stuart Phillips (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cecillia Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE

Joseph S. Cohn (See above for address) TERMINATED: 03/30/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth John Sugarman (See above for address) TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 11 of 49

PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa S. Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Omar Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Milton Ivan Salazar−Gomez

represented by Darcy M. Goddard (See above for address) TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esperanza Granados (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer C. Newell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andre Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Bradley Stuart Phillips (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cecillia Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE

Joseph S. Cohn (See above for address) TERMINATED: 03/30/2012 PRO HAC VICE

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 12 of 49

ATTORNEY TO BE NOTICED

Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth John Sugarman (See above for address) TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa S. Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Omar Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Eliana Larios

represented by Darcy M. Goddard (See above for address) TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esperanza Granados (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer C. Newell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Leah M. Farrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andre Segura (See above for address) PRO HAC VICE

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 13 of 49

ATTORNEY TO BE NOTICED

Bradley Stuart Phillips (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cecillia Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) PRO HAC VICE

Joseph S. Cohn (See above for address) TERMINATED: 03/30/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kenneth John Sugarman (See above for address) TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Melissa S. Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Omar Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Alicia Cervantes

represented by Darcy M. Goddard (See above for address) TERMINATED: 10/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 14 of 49
Esperanza Granados (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leah M. Farrell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley Stuart Phillips (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) PRO HAC VICE
Joseph S. Cohn (See above for address) TERMINATED: 03/30/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) TERMINATED: 04/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 15 of 49
PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shiu−Ming Cheer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Consol Plaintiff USA

represented by Daniel D. Price US ATTORNEY'S OFFICE (UT) SALT LAKE CITY, UT 00000 (801)524−5682 Email: Daniel.Price2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson US DEPARTMENT OF JUSTICE (883) CIVIL DIVISION PO BOX 883 WASHINGTON, DC 20044 (202)514−3495 Email: scott.simpson@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Arthur R. Goldberg US DEPARTMENT OF JUSTICE (CIVIL − 20 MASS) CIVIL DIVISION 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20530 (202)514−4783 PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua I. Wilkenfeld US DEPARTMENT OF JUSTICE (CIVIL − 20 MASS) CIVIL DIVISION 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20530 (202)305−7920 PRO HAC VICE
Varu Chilakamarri US DEPARTMENT OF JUSTICE (CIVIL − 20 MASS) CIVIL DIVISION 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20530 (202)616−8489 Email: varudhini.chilakamarri@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 16 of 49

V.
Defendant
Gary R. Herbert Governor of the State of Utah, in his official capacity

represented by Barry G. Lawrence UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856) LITIGATION UNIT 160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 TERMINATED: 10/19/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerrold S. Jensen UTAH ATTORNEY GENERAL'S OFFICE (160−5−140812) 160 E 300 S PO BOX 140812 SALT LAKE CITY, UT 84114−0812 (801)366−0350 Email: jerroldjensen@utah.gov TERMINATED: 06/13/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas D. Roberts UTAH ATTORNEY GENERAL'S OFFICE (160−140857) 160 E 300 S PO BOX 140857 SALT LAKE CITY, UT 84114−0857 (801)366−0353 Email: ThomRoberts@utah.gov TERMINATED: 06/13/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey S. Gray UTAH ATTORNEY GENERAL'S OFFICE (160−6−140854) 160 E 300 S 6TH FLOOR PO BOX 140854 SALT LAKE CITY, UT 84114−0854 (801)366−0180 Email: jgray@utah.gov ATTORNEY TO BE NOTICED
Philip S. Lott UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856) LITIGATION UNIT 160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 Email: phillott@utah.gov ATTORNEY TO BE NOTICED
Timothy D. Evans UTAH ATTORNEY GENERAL'S OFFICE (160−6−140856)

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LITIGATION UNIT 160 E 300 S 6TH FL PO BOX 140856 SALT LAKE CITY, UT 84114−0856 (801)366−0100 Email: tevans@utah.gov ATTORNEY TO BE NOTICED

Defendant
Mark Shurtleff Attorney General of the State of Utah, in his official capacity

represented by Barry G. Lawrence (See above for address) TERMINATED: 10/19/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jerrold S. Jensen (See above for address) TERMINATED: 06/13/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas D. Roberts (See above for address) TERMINATED: 06/13/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey S. Gray (See above for address) ATTORNEY TO BE NOTICED

Philip S. Lott (See above for address) ATTORNEY TO BE NOTICED

Timothy D. Evans (See above for address) ATTORNEY TO BE NOTICED

V. Consol Defendant State of Utah
Amicus United Mexican States

represented by Barry G. Lawrence (See above for address) TERMINATED: 10/19/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lon A. Jenkins 405 S MAIN STREET STE 600 SALT LAKE CITY, UT 84111 (801)596−2884 Email: ljenkins@ch13ut.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak CLIFFORD CHANCE US LLP 31 W 52ND ST NEW YORK, NY 10019 (212)878−8000

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 18 of 49

PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark DEWEY & LEBOEUF LLP (NY) 1301 AVENUE OF THE AMERICAS NEW YORK, NY 10019 (212)259−7163 TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano DEWEY & LEBOEUF LLP (NY) 1301 AVENUE OF THE AMERICAS NEW YORK, NY 10019 (212)259−8030 TERMINATED: 10/15/2014 PRO HAC VICE

Amicus Legal Momentum

represented by Kathleen E. McDonald NO ADDRESS NO ADDRESS 00000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth W. Newsom CROWELL & MORING LLP (DC) 1001 PENNSYLVANIA AVE NW STE 1000 WASHINGTON, DC 20004−2595 (202)624−2522 Email: bnewsom@crowell.com TERMINATED: 01/31/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Laura J. Walther CROWELL & MORING LLP (DC) 1001 PENNSYLVANIA AVE NW STE 1000 WASHINGTON, DC 20004−2595 (202)624−2613 Email: lwalther@crowell.com PRO HAC VICE ATTORNEY TO BE NOTICED

V. Intervenor Immigration Equality

represented by Alan E. Schoenfeld WILMER CUTLER PICKERING HALE & DORR 399 PARK AVE NEW YORK, NY 10022 (212)937−7294 Email: alan.schoenfeld@wilmerhale.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Brian M. Barnard UTAH LEGAL CLINIC

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214 E 500 S SALT LAKE CITY, UT 84111−3204 (801)328−9531 Email: ulcr2d2c3po@utahlegalclinic.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Movant Asian American Justice Center
Movant Government of Argentina
Movant Government of Brazil

represented by Katherine J. Santon DORSEY & WHITNEY (COSTA MESA) 600 ANTON BLVD STE 2000 COSTA MESA, CA 92626 (714)800−1400 Email: santon.kate@dorsey.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Milo Steven Marsden DORSEY & WHITNEY (UT) 136 S MAIN ST STE 1000 SALT LAKE CITY, UT 84101−1685 (801)933−7360 Email: marsden.steve@dorsey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah Kathleen Shaholli DORSEY & WHITNEY (COSTA MESA) 600 ANTON BLVD STE 2000 COSTA MESA, CA 92626 (949)932−3600 Email: shaholli.sarah@dorsey.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE
Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE
represented by

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Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant Government of Chile

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant Government of Columbia

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 21 of 49

Government of Costa Rica

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant Government of Ecuador

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant Government of El Salvador

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 22 of 49

Government of Guatemala

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant Government of Honduras

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant Government of Nicaragua

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 23 of 49

Government of Paraguay

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant Government of Peru

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant Government of Uruguay

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Henry L. Solano (See above for address) TERMINATED: 10/15/2014 PRO HAC VICE

Movant

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 24 of 49

American Immigration Lawyers Association

represented by Aaron Tarin IMMIGRANT DEFENDERS LAW GROUP PLLC 5675 S REDWOOD RD #10 TAYLORSVILLE, UT 84123 (801)255−8472 Email: aaron@immigrantdefenders.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Government of Bolivia

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Government of the Domician Republic

represented by Lon A. Jenkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Immigration Reform Law Institute

represented by Frank D. Mylar MYLAR LAW PC 2494 BENGAL BLVD SALT LAKE CITY, UT 84121 (801)858−0700 Email: mylar−law@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garrett R. Roe IMMIGRATION REFORM LAW INSTITUTE 25 MASSACHUSETTS AVE NW STE 335 WASHINGTON, DC 20001 (202)232−5590 Email: groe@irli.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 25 MASSACHUSETTS AVE NW STE 335 WASHINGTON, DC 20001 (202)232−5590 Email: litigation@irli.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Anti Defamation League

represented by Andrew R. Hale ANDERSON & KARRENBERG 50 W BROADWAY STE 700 SALT LAKE CITY, UT 84101 (801)534−1700

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 25 of 49
Email: ahale@aklawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael F. Skolnick KIPP & CHRISTIAN 10 EXCHANGE PLACE FOURTH FL SALT LAKE CITY, UT 84111−2314 (801)521−3773 Email: mfskolnick@kippandchristian.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle N. Deutchman ANTI DEFAMATION LEAGUE 10495 SANTA MONICA BLVD LOS ANGELES, CA 90025 (310)446−4249 Email: mdeutchman@adl.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Steven M. Freeman ANTI DEFAMATION LEAGUE 605 THIRD AVE NEW YORK, NY 10158 (212)885−7733 Email: sfreeman@adl.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Yael Lerman Mazar ANTI DEFAMATION LEAGUE 10495 SANTA MONICA BLVD LOS ANGELES, CA 90025 (310)446−4232 LEAD ATTORNEY PRO HAC VICE

Date Filed 05/03/2011
05/03/2011

# Docket Text
1 Case has been indexed and assigned to Magistrate Judge Brooke C. Wells. 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 is directed to E−File the Complaint and cover sheet (found under Complaints and Other Initiating Documents) and pay the filing fee of $ 350.00 by the end of the business day. NOTE: The court will not have jurisdiction until the opening document is electronically filed and the filing fee paid in the CM/ECF system. Civil Summons may be issued electronically. Prepare the summons using the courts PDF version and email it to utdecf_clerk@utd.uscourts.gov for issuance. (tls) (Entered: 05/03/2011)
2 COMPLAINT against All Defendants (Filing fee $ 350, receipt number 1088−1344257), filed by Eliana Larios, Alicia Cervantes, Workers United Rocky Mountain Joint Board, Milton Ivan Salazar−Gomez, Service Employees International Union, Utah Coalition of La Raza, Centro Civico Mexicano, Coalition of Utah Progressives, Latin American Chamber of Commerce, Salt Lake City Brown Berets. (Attachments: # 1 Civil Cover Sheet) Assigned to Magistrate Judge Brooke C. Wells (Goddard, Darcy) (Entered: 05/03/2011)

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3 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Gary R. Herbert, Mark Shurtleff. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (Attachments: # 1 Summons)(jlw) (Entered: 05/03/2011)
4 NOTICE OF REQUIREMENTS for appearance phv mailed to attorney Linton Joaquin, Karen Tumlin and Shiu−Ming Cheer (tls) (Entered: 05/03/2011)
5 NOTICE OF REQUIREMENTS for appearance phv mailed to attorney Omar C. Jadwat, Andre Segura and Elora Mukherjee (tls) (Entered: 05/03/2011)
6 NOTICE OF REQUIREMENTS for appearance phv mailed to attorney Cecillia D. Wang and Katherine Desormeau (tls) (Entered: 05/03/2011)
7 NOTICE OF REQUIREMENTS for appearance phv mailed to attorney Bradley S. Phillips (tls) (Entered: 05/03/2011)
8 MOTION for Admission Pro Hac Vice of Katherine Desormeau, Registration fee $ 15, receipt number 1088−1344965, 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. (Goddard, Darcy) (Entered: 05/03/2011)
9 MOTION for Admission Pro Hac Vice of Omar C. Jadwat, Registration fee $ 15, receipt number 1088−1344970, 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. (Goddard, Darcy) (Entered: 05/03/2011)
10 MOTION for Admission Pro Hac Vice of Elora Mukherjee, Registration fee $ 15, receipt number 1088−1344977, 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. (Goddard, Darcy) (Entered: 05/03/2011)
11 MOTION for Admission Pro Hac Vice of Andre Segura, Registration fee $ 15, receipt number 1088−1344998, 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. (Goddard, Darcy) (Entered: 05/03/2011)
12 MOTION for Admission Pro Hac Vice of Cecillia Wang, Registration fee $ 15, receipt number 1088−1345000, 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. (Goddard, Darcy) (Entered: 05/03/2011)
13 MOTION for Admission Pro Hac Vice of Linton Joaquin, Registration fee $ 15, receipt number 1088−1345025, 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 Text of Proposed Order)(Goddard, Darcy) (Entered: 05/03/2011)
14 MOTION for Admission Pro Hac Vice of Karen C. Tumlin, Registration fee $ 15, receipt number 1088−1345026, 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

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Mountain Joint Board. (Attachments: # 1 Text of Proposed Order)(Goddard, Darcy) (Entered: 05/03/2011)
15 MOTION for Admission Pro Hac Vice of Shiu Ming Cheer, Registration fee $ 15, receipt number 1088−1345027, 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 Text of Proposed Order)(Goddard, Darcy) (Entered: 05/03/2011)
16 MOTION for Admission Pro Hac Vice of Melissa S. Keaney, Registration fee $ 15, receipt number 1088−1345028, 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 Text of Proposed Order)(Goddard, Darcy) (Entered: 05/03/2011)
17 MOTION for Admission Pro Hac Vice of Bradley S. Phillips, Registration fee $ 15, receipt number 1088−1345029, 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 Text of Proposed Order)(Goddard, Darcy) (Entered: 05/03/2011)
18 Plaintiff's MOTION for Leave to File Excess Pages 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 Text of Proposed Order)(Goddard, Darcy) (Entered: 05/04/2011)
19 MOTION for Leave for Doe Plaintiffs to Proceed Under Pseudonyms 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. (Goddard, Darcy) (Entered: 05/04/2011)
21 CERTIFICATE OF SERVICE by 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 re 19 MOTION for Leave for Doe Plaintiffs to Proceed Under Pseudonyms, 20 Memorandum in Support of Motion,, 18 Plaintiff's MOTION for Leave to File Excess Pages (Goddard, Darcy) (Entered: 05/05/2011)
22 NOTICE of Appearance by Jerrold S. Jensen on behalf of Gary R. Herbert, Mark Shurtleff (Jensen, Jerrold) (Entered: 05/05/2011)
23 NOTICE of Appearance by Thomas D. Roberts on behalf of Gary R. Herbert, Mark Shurtleff (Roberts, Thomas) (Entered: 05/05/2011)
24 MOTION to Seal Document Declarations of Doe Plaintiffs (Jane Doe #1, John Doe #1, and John Doe #2) 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 Text of Proposed Order)(Goddard, Darcy) (Entered: 05/05/2011)
25 ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE AN OVER LENGTH MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION− granting 18 Motion for Leave to File Excess Pages. The Memorandum shall be no more than 40 pages long. Signed by Magistrate Judge

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Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
26 ORDER granting 8 Motion for Admission Pro Hac Vice of Katherine Desormeau for Centro Civico Mexicano,Katherine Desormeau for Alicia Cervantes,Katherine Desormeau for Coalition of Utah Progressives,Katherine Desormeau for Eliana Larios,Katherine Desormeau for Latin American Chamber of Commerce,Katherine Desormeau for Milton Ivan Salazar−Gomez,Katherine Desormeau for Salt Lake City Brown Berets,Katherine Desormeau for Service Employees International Union,Katherine Desormeau for Utah Coalition of La Raza,Katherine Desormeau for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Brooke C. Wells on 5/4/11. (jmr) (Entered: 05/06/2011)
27 ORDER granting 9 Motion for Admission Pro Hac Vice of Omar Jadwat for Centro Civico Mexicano,Omar Jadwat for Alicia Cervantes,Omar Jadwat for Coalition of Utah Progressives,Omar Jadwat for Eliana Larios,Omar Jadwat for Latin American Chamber of Commerce,Omar Jadwat for Milton Ivan Salazar−Gomez,Omar Jadwat for Salt Lake City Brown Berets,Omar Jadwat for Service Employees International Union,Omar Jadwat for Utah Coalition of La Raza,Omar Jadwat for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
28 ORDER granting 10 Motion for Admission Pro Hac Vice of Elora Mukherjee for Centro Civico Mexicano,Elora Mukherjee for Alicia Cervantes,Elora Mukherjee for Coalition of Utah Progressives,Elora Mukherjee for Eliana Larios,Elora Mukherjee for Latin American Chamber of Commerce,Elora Mukherjee for Milton Ivan Salazar−Gomez,Elora Mukherjee for Salt Lake City Brown Berets,Elora Mukherjee for Service Employees International Union,Elora Mukherjee for Utah Coalition of La Raza,Elora Mukherjee for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
29 ORDER granting 11 Motion for Admission Pro Hac Vice of Andre Segura for Centro Civico Mexicano,Andre Segura for Alicia Cervantes,Andre Segura for Coalition of Utah Progressives,Andre Segura for Eliana Larios,Andre Segura for Latin American Chamber of Commerce,Andre Segura for Milton Ivan Salazar−Gomez,Andre Segura for Salt Lake City Brown Berets,Andre Segura for Service Employees International Union,Andre Segura for Utah Coalition of La Raza,Andre Segura for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
30 ORDER granting 12 Motion for Admission Pro Hac Vice of Cecillia Wang for Centro Civico Mexicano,Cecillia Wang for Alicia Cervantes,Cecillia Wang for Coalition of Utah Progressives,Cecillia Wang for Eliana Larios,Cecillia Wang for Latin American Chamber of Commerce,Cecillia Wang for Milton Ivan Salazar−Gomez,Cecillia Wang for Salt Lake City Brown Berets,Cecillia Wang for Service Employees International Union. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
31 ORDER granting 13 Motion for Admission Pro Hac Vice of Linton Joaquin for Centro Civico Mexicano,Linton Joaquin for Alicia Cervantes,Linton Joaquin for Coalition of Utah Progressives,Linton Joaquin for Eliana Larios,Linton Joaquin for Latin American Chamber of Commerce,Linton Joaquin for Milton Ivan Salazar−Gomez,Linton Joaquin for Salt Lake City Brown Berets,Linton Joaquin for Service Employees International Union,Linton Joaquin for Utah Coalition of La Raza,Linton Joaquin for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov

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. Signed by Magistrate Judge Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
32 ORDER granting 14 Motion for Admission Pro Hac Vice of Karen Tumlin for Centro Civico Mexicano,Karen Tumlin for Alicia Cervantes,Karen Tumlin for Coalition of Utah Progressives,Karen Tumlin for Eliana Larios,Karen Tumlin for Latin American Chamber of Commerce,Karen Tumlin for Milton Ivan Salazar−Gomez,Karen Tumlin for Salt Lake City Brown Berets,Karen Tumlin for Service Employees International Union,Karen Tumlin for Utah Coalition of La Raza,Karen Tumlin for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
33 ORDER granting 15 Motion for Admission Pro Hac Vice of Shiu−Ming Cheer for Centro Civico Mexicano,Shiu−Ming Cheer for Alicia Cervantes,Shiu−Ming Cheer for Coalition of Utah Progressives,Shiu−Ming Cheer for Eliana Larios,Shiu−Ming Cheer for Latin American Chamber of Commerce,Shiu−Ming Cheer for Milton Ivan Salazar−Gomez,Shiu−Ming Cheer for Salt Lake City Brown Berets,Shiu−Ming Cheer for Service Employees International Union,Shiu−Ming Cheer for Utah Coalition of La Raza,Shiu−Ming Cheer for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
34 ORDER granting 16 Motion for Admission Pro Hac Vice of Melissa S. Keaney for Centro Civico Mexicano,Melissa S. Keaney for Alicia Cervantes,Melissa S. Keaney for Coalition of Utah Progressives,Melissa S. Keaney for Eliana Larios,Melissa S. Keaney for Latin American Chamber of Commerce,Melissa S. Keaney for Milton Ivan Salazar−Gomez,Melissa S. Keaney for Salt Lake City Brown Berets,Melissa S. Keaney for Service Employees International Union,Melissa S. Keaney for Utah Coalition of La Raza,Melissa S. Keaney for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
35 ORDER granting 17 Motion for Admission Pro Hac Vice of Bradley Phillips for Centro Civico Mexicano,Bradley Phillips for Alicia Cervantes,Bradley Phillips for Coalition of Utah Progressives,Bradley Phillips for Eliana Larios,Bradley Phillips for Latin American Chamber of Commerce,Bradley Phillips for Milton Ivan Salazar−Gomez,Bradley Phillips for Salt Lake City Brown Berets,Bradley Phillips for Service Employees International Union,Bradley Phillips for Utah Coalition of La Raza,Bradley Phillips for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Brooke C. Wells on 5/5/11. (jmr) (Entered: 05/06/2011)
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 Text of Proposed Order)(Goddard, Darcy) (Entered: 05/06/2011)
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

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(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) (Entered: 05/06/2011)
38 DOCKET TEXT ORDER FOR CASE TO BE REASSIGNED. Pursuant to court policy, Plaintiff's filing of a motion for immediate injunctive relief renders this case ineligible for consent to the jurisdiction of a magistrate judge. Accordingly, the court orders that this case be reassigned to a district judge through random reassignment. Signed by Magistrate Brooke C. Wells on 05/09/2011. (docket text order, no attached document). (amn) (Entered: 05/09/2011)
Judge Clark Waddoups added. Magistrate Judge Brooke C. Wells no longer assigned to case. (jmr) (Entered: 05/09/2011)
39 Case Reassigned to District Judge per Order 38 of Magistrate Judge. Case randomly assigned to Judge Clark Waddoups. Magistrate Judge Brooke Wells is no longer assigned to this case. (jmr) (Entered: 05/09/2011)
40 NOTICE OF HEARING ON MOTION re: 36 Plaintiff's MOTION for Preliminary Injunction : (Notice generated by jwt) Motion Hearing set for 5/10/2011 02:00 PM in Room 102 before Judge Clark Waddoups. (jwt) (Entered: 05/09/2011)
41 NOTICE FROM THE COURT re 36 Plaintiff's MOTION for Preliminary Injunction − at the hearing scheduled for 5/10/2011 counsel should be prepared to update the status of the case and set briefing schedule for the motion. (jwt) (Entered: 05/09/2011)
42 NOTICE of Hearing by 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 (Goddard, Darcy) (Entered: 05/10/2011)
43 Minute Entry for proceedings held before Judge Clark Waddoups: Motion Hearing held on 5/10/2011 re 36 Plaintiff's MOTION for Preliminary Injunction filed by Milton Ivan Salazar−Gomez, Alicia Cervantes, Salt Lake City Brown Berets, Latin American Chamber of Commerce, Coalition of Utah Progressives, Utah Coalition of La Raza, Service Employees International Union, Workers United Rocky Mountain Joint Board, Centro Civico Mexicano, Eliana Larios, Set Deadlines/Hearing as to 36 Plaintiff's MOTION for Preliminary Injunction. The court advises all present that no recordings are to be taken. Ms. Goddard updates the court as to the status of the parties negotiations on a stay of enforcement of HB 497. Plaintiffs move for a TRO. The court hears argument from the parties. The motion for TRO is GRANTED for the reasons stated on the record. HB 497 is stayed pending further order of this court. The court will prepare a written ruling. Briefing schedule discussed. Responses due by 6/8/2011, Replies due by 6/22/2011. Motion Hearing set for 7/14/2011 08:30 AM in Room 102 before Judge Clark Waddoups. The schedule may be adjusted if more time is needed. The court does not impose a bond for the reasons stated. All parties named as defendants and anyone who is obligated to follow the defendants' instructions are bound by the order until further ruling. Attorney for Plaintiff: Jerrold Jensen, Thomas Roberts, Attorney for Defendant: Darcy Goddard, Cecelia Wang, Andrew Segura, Esperanza Granados, Karen Tumlin, Linton Joaquin, Melissa Keaney (by phone), Shiu−ming Cheer (by phone). Court Reporter: Kelly Peterson. (jwt) (Entered: 05/10/2011)
44 MOTION for Temporary Restraining Order per Minute Entry 43 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. (jtj) (Entered: 05/11/2011)
45 ORDER granting 44 Motion for TRO. HB 497 is stayed pending further order of this court. Responses due by 6/8/2011, Replies due by 6/22/2011. Motion Hearing set for 7/14/2011 08:30 AM in Room 102 before Judge Clark Waddoups. See Order for details. Signed by Judge Clark Waddoups on 5/11/2011. (jtj) (Entered: 05/11/2011)

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46 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING held on May 10, 2011 before Judge CLARK WADDOUPS. Court Reporter/Transcriber Kellie Peterson, RPR, Telephone number 801−983−2180.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

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Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/14/2011. Redacted Transcript Deadline set for 6/24/2011. Release of Transcript Restriction set for 8/22/2011. (jmr) Modified by removing restricted text on 8/22/2011 (rks). (Entered: 05/24/2011)
48 NOTICE of Appearance by Milo Steven Marsden on behalf of Asian American Justice Center (Marsden, Milo) (Entered: 05/27/2011)
49 MOTION for Admission Pro Hac Vice of Katherine J. Santon, Registration fee $ 15, receipt number 1088−1360792, filed by Movant Asian American Justice Center. (Attachments: # 1 Text of Proposed Order)(Marsden, Milo) (Entered: 05/27/2011)
50 MOTION for Admission Pro Hac Vice of Sarah K. Shaholli, Registration fee $ 15, receipt number 1088−1360802, filed by Movant Asian American Justice Center. (Attachments: # 1 Text of Proposed Order)(Marsden, Milo) (Entered: 05/27/2011)
51 MOTION for Leave to File Amicus Curiae Brief filed by Movant Asian American Justice Center. (Attachments: # 1 Memorandum of Points and Authorities in Support of Motion for Leave to File Amicus Curiae Brief, # 2 Exhibit, # 3 Text of Proposed Order)(Marsden, Milo) (Entered: 05/27/2011)
52 NOTICE of LODGED PROPOSED AMICUS CURIAE BRIEF by Asian American Justice Center re 51 MOTION for Leave to File Amicus Curiae Brief (Attachments: # 1 Exhibit) (Marsden, Milo) (Entered: 05/27/2011)
53 NOTICE of Appearance by Brian M. Barnard on behalf of Immigration Equality (Barnard, Brian) (Entered: 05/31/2011)
54 MOTION to Intervene as Amicus Curiae filed by Movant Immigration Equality. (Attachments: # 1 Text of Proposed Order)(Barnard, Brian) (Entered: 05/31/2011)
55 MOTION for Admission Pro Hac Vice of Alan E. Schoenfeld, Registration fee $ 15, receipt number 1088−1361833, filed by Movant Immigration Equality. (Attachments: # 1 Exhibit "A" Application for Admission Pro Hac Vice, # 2 Exhibit "B" Electronic Case Filing Registration Form, # 3 Text of Proposed Order)(Barnard, Brian) (Entered: 05/31/2011)
56 MOTION for Leave to File Memorandum of Amicus Curiae Immigration Equality in Support of Plaintiffs filed by Movant Immigration Equality. (Attachments: # 1 Exhibit "A" Brief Amicus Curiae of Immigration Equality in Support of Plaintiffs, # 2 Text of Proposed Order)(Barnard, Brian) (Entered: 05/31/2011)
57 MOTION for Extension of Time Responsive Motion to Plaintiffs' Motion for Preliminary Injunction filed by Defendants Gary R. Herbert, Mark Shurtleff. (Jensen, Jerrold) (Entered: 06/01/2011)
58 ORDER granting 49 Motion for Admission Pro Hac Vice of Sarah Kathleen Shaholli,Katherine J. Santon for Asian American Justice Center. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov ; granting 50 Motion for Admission Pro Hac Vice of Sarah Kathleen Shaholli,Katherine J. Santon for Asian American Justice Center. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov

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. Signed by Judge Clark Waddoups on 05/31/2011. (asp) (Entered: 06/01/2011)
59 ORDER granting 55 Motion for Admission Pro Hac Vice of Alan E. Schoenfeld for Immigration Equality. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 06/01/2011. (asp) (Entered: 06/02/2011)
60 ORDER granting 54 Motion to Intervene. Signed by Judge Clark Waddoups on 06/01/2011. (asp) (Entered: 06/02/2011)
61 ORDER granting 56 Motion for Leave to File. Signed by Judge Clark Waddoups on 06/01/2011. (asp) (Entered: 06/02/2011)
62 Amicus Curiae BRIEF In Support of the Plaintiffs filed by Intervenor Immigration Equality. (asp) (Entered: 06/02/2011)
63 ORDER granting 51 Motion for Leave to File. Signed by Judge Clark Waddoups on 06/01/2011. (asp) (Entered: 06/02/2011)
64 Amicus Curiae BRIEF in Support re 36 Plaintiff's MOTION for Preliminary Injunction filed by Movant Asian American Justice Center. (asp) (Entered: 06/02/2011)
65 ORDER granting 57 Motion for Extension of Time. Defendants hereby are granted an additional 30 days to file a responsive pleading. Signed by Judge Clark Waddoups on 6/2/2011. (jtj) (Entered: 06/02/2011)
66 NOTICE of Appearance by Lon A. Jenkins on behalf of United Mexican States (Jenkins, Lon) (Entered: 06/07/2011)
67 MOTION to File Amicus Brief by United Mexican States filed by Movant United Mexican States. (Attachments: # 1 Text of Proposed Order)(Jenkins, Lon) (Entered: 06/07/2011)
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) (Entered: 06/07/2011)
69 NOTICE of Appearance by Lon A. Jenkins on behalf of Government of Argentina, Government of Brazil, Government of Chile, Government of Columbia, Government of Costa Rica, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay (Jenkins, Lon) (Entered: 06/07/2011)
70 MOTION for Joinder in Brief of United Mexican States as Amicus Curiae in Support of Plaintiffs filed by Movants Government of Argentina, Government of Brazil, Government of Chile, Government of Columbia, Government of Costa Rica, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay. (Attachments: # 1 Text of Proposed Order)(Jenkins, Lon) (Entered: 06/07/2011)
71 Plaintiff's MOTION for Admission Pro Hac Vice of Kenneth Sugarman, Registration fee $ 15, receipt number 253IFF8E, 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 Text of Proposed Order Motion for Admisison Pro Hac Vice, Ken Sugarman)(Goddard, Darcy) (Entered: 06/07/2011)
72 MOTION for Admission Pro Hac Vice of Henry L. Solano and Consent of Local Counsel, Registration fee $ 15, receipt number 1088−1367017, filed by Movants Government of Argentina, Government of Brazil, Government of Chile, Government of Columbia, Government of Costa Rica, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 33 of 49

06/07/2011 06/07/2011 06/08/2011 06/08/2011 06/09/2011
06/09/2011
06/09/2011

Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, United Mexican States. (Attachments: # 1 Text of Proposed Order)(Jenkins, Lon) (Entered: 06/07/2011)
73 MOTION for Admission Pro Hac Vice of Carla Gorniak and Consent of Local Counsel, Registration fee $ 15, receipt number 1088−1367033, filed by Movants Government of Argentina, Government of Brazil, Government of Chile, Government of Columbia, Government of Costa Rica, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, United Mexican States. (Attachments: # 1 Text of Proposed Order)(Jenkins, Lon) (Entered: 06/07/2011)
74 MOTION for Admission Pro Hac Vice of Christopher R. Clark and Consent of Local Counsel, Registration fee $ 15, receipt number 1088−1367040, filed by Movants Government of Argentina, Government of Brazil, Government of Chile, Government of Columbia, Government of Costa Rica, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, United Mexican States. (Attachments: # 1 Text of Proposed Order)(Jenkins, Lon) (Entered: 06/07/2011)
75 ORDER granting 67 Motion to File Amicus Brief. Signed by Judge Clark Waddoups on 6/7/2011. (jtj) (Entered: 06/08/2011)
76 ORDER granting 70 Motion for Joinder re: Amicus Curiae Brief of the United Mexican States. Signed by Judge Clark Waddoups on 6/7/2011. (jtj) (Entered: 06/08/2011)
77 ORDER granting 72 Motion for Admission Pro Hac Vice of Henry L. Solano for Government of Argentina,Henry L. Solano for Government of Brazil,Henry L. Solano for Government of Chile,Henry L. Solano for Government of Columbia,Henry L. Solano for Government of Costa Rica,Henry L. Solano for Government of Ecuador,Henry L. Solano for Government of El Salvador,Henry L. Solano for Government of Guatemala,Henry L. Solano for Government of Honduras,Henry L. Solano for Government of Nicaragua,Henry L. Solano for Government of Paraguay,Henry L. Solano for Government of Peru,Henry L. Solano for Government of Uruguay,Henry L. Solano for United Mexican States. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 6/8/2011. (jtj) (Entered: 06/09/2011)
78 ORDER granting 73 Motion for Admission Pro Hac Vice of Carla Gorniak for Government of Argentina,Carla Gorniak for Government of Brazil,Carla Gorniak for Government of Chile,Carla Gorniak for Government of Columbia,Carla Gorniak for Government of Costa Rica,Carla Gorniak for Government of Ecuador,Carla Gorniak for Government of El Salvador,Carla Gorniak for Government of Guatemala,Carla Gorniak for Government of Honduras,Carla Gorniak for Government of Nicaragua,Carla Gorniak for Government of Paraguay,Carla Gorniak for Government of Peru,Carla Gorniak for Government of Uruguay,Carla Gorniak for United Mexican States. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 6/8/2011. (jtj) (Entered: 06/09/2011)
79 ORDER granting 74 Motion for Admission Pro Hac Vice of Christopher R. Clark for Government of Argentina,Christopher R. Clark for Government of Brazil,Christopher R. Clark for Government of Chile,Christopher R. Clark for Government of Columbia,Christopher R. Clark for Government of Costa Rica,Christopher R. Clark for Government of Ecuador,Christopher R. Clark for Government of El Salvador,Christopher R. Clark for Government of Guatemala,Christopher R. Clark for Government of Honduras,Christopher R. Clark for Government of Nicaragua,Christopher R. Clark for Government of Paraguay,Christopher R. Clark for Government of Peru,Christopher R. Clark for Government of Uruguay,Christopher R. Clark for United Mexican States. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 34 of 49

06/09/2011
06/13/2011 06/13/2011 06/13/2011 06/13/2011 06/13/2011 06/14/2011 06/14/2011 06/14/2011 06/15/2011
06/15/2011
06/15/2011

rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 6/8/2011. (jtj) (Entered: 06/09/2011)
80 ORDER granting 71 Motion for Admission Pro Hac Vice of Kenneth John Sugarman for Centro Civico Mexicano,Kenneth John Sugarman for Alicia Cervantes,Kenneth John Sugarman for Coalition of Utah Progressives,Kenneth John Sugarman for Eliana Larios,Kenneth John Sugarman for Latin American Chamber of Commerce,Kenneth John Sugarman for Milton Ivan Salazar−Gomez,Kenneth John Sugarman for Salt Lake City Brown Berets,Kenneth John Sugarman for Service Employees International Union,Kenneth John Sugarman for Utah Coalition of La Raza,Kenneth John Sugarman for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 6/8/2011. (jtj) (Entered: 06/09/2011)
81 NOTICE of Appearance by Aaron Tarin on behalf of American Immigration Lawyers Association (Tarin, Aaron) (Entered: 06/13/2011)
82 First MOTION for Leave to File Amicus Brief in Support of Plaintiff's Complaint for Declaratory and Injunctive Relief filed by Movant American Immigration Lawyers Association. (Attachments: # 1 Text of Proposed Order Order Granting Leave to File as Amicus)(Tarin, Aaron) (Entered: 06/13/2011)
83 NOTICE of Lodged Proposed Amicus Curiae Brief by American Immigration Lawyers Association (Attachments: # 1 Exhibit Memorandum Decision and Order_Truong Case 2:10−cv−00797−CW −SA) (Tarin, Aaron) (Entered: 06/13/2011)
84 SUBSTITUTION OF COUNSEL Barry G. Lawrence replacing Jerrold S. Jensen and Thomas D. Roberts as counsel on behalf of Gary R. Herbert, Mark Shurtleff. (Lawrence, Barry) (Entered: 06/13/2011)
88 DOCUMENTS LODGED consisting of Memorandum in Support of the Complaint submitted by non party The Utah Association of Criminal Defense Lawyers. (asp) (Entered: 06/15/2011)
85 ANSWER to Complaint filed by Gary R. Herbert, Mark Shurtleff.(Lawrence, Barry) (Entered: 06/14/2011)
86 NOTICE of Appearance by Timothy D. Evans on behalf of Gary R. Herbert, Mark Shurtleff (Evans, Timothy) (Entered: 06/14/2011)
87 NOTICE of Appearance by Philip S. Lott on behalf of Gary R. Herbert, Mark Shurtleff (Lott, Philip) (Entered: 06/14/2011)
89 DOCKET TEXT ORDER − the court hereby enters a standing order that counsel, including those filing amicus curiae briefs, are to provide chambers with courtesy copies of all briefing at the time the briefs are filed with the court. For briefs that have been filed already, if counsel has not provided a courtesy copy to chambers, the court requests that a copy be provided now. Signed by Judge Clark Waddoups on 6/15/2011. (No attached document.) (jwt) (Entered: 06/15/2011)
90 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Workers United Rocky Mountain Joint Board, Milton Ivan Salazar−Gomez, Utah Coalition of La Raza, Coalition of Utah Progressives, Latin American Chamber of Commerce, Eliana Larios, Alicia Cervantes, Service Employees International Union, Salt Lake City Brown Berets, Centro Civico Mexicano as to Gary R. Herbert served on 5/4/2011, answer due 5/25/2011. (Attachments: # 1 Exhibit A−Return of service & summons)(Goddard, Darcy) (Entered: 06/15/2011)
91 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Workers United Rocky Mountain Joint Board, Milton Ivan Salazar−Gomez, Utah Coalition of La Raza, Coalition of Utah Progressives, Latin American Chamber of Commerce, Eliana Larios, Alicia Cervantes, Service Employees International Union, Salt Lake City Brown Berets, Centro Civico Mexicano as to Mark Shurtleff served on 5/4/2011, answer due 5/25/2011. (Attachments: # 1 Exhibit A−Return of service & summons)(Goddard, Darcy) (Entered: 06/15/2011)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 35 of 49

06/20/2011 06/20/2011 06/20/2011 06/20/2011 06/21/2011
06/21/2011
06/24/2011 06/24/2011 07/07/2011 07/07/2011 07/20/2011
07/27/2011 08/01/2011
08/01/2011

92 NOTICE of Appearance by Kathleen E. McDonald on behalf of Legal Momentum (McDonald, Kathleen) (Entered: 06/20/2011)
93 MOTION for Admission Pro Hac Vice of Laura J. Walther, Registration fee $ 15, receipt number 1088−1376094, filed by Movant Legal Momentum. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(McDonald, Kathleen) (Entered: 06/20/2011)
94 MOTION for Admission Pro Hac Vice of Elizabeth W. Newsom, Registration fee $ 15, receipt number 1088−1376124, filed by Movant Legal Momentum. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(McDonald, Kathleen) (Entered: 06/20/2011)
95 MOTION to File Amicus Brief by Legal Momentum filed by Movant Legal Momentum. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(McDonald, Kathleen) (Entered: 06/20/2011)
96 ORDER granting 93 Motion for Admission Pro Hac Vice of Laura J. Walther for Legal Momentum. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 6/20/2011. (ce) (Entered: 06/21/2011)
97 ORDER granting 94 Motion for Admission Pro Hac Vice of Elizabeth W. Newson for Legal Momentum. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 6/21/2011. (ce) (Entered: 06/21/2011)
98 ORDER granting 95 Motion to File Amicus Brief. Signed by Judge Clark Waddoups on 06/23/2011. (asp) (Entered: 06/24/2011)
99 Amicus Curiae BRIEF re 36 Plaintiff's MOTION for Preliminary Injunction filed by Amicus Legal Momentum. (asp) (Entered: 06/24/2011)
100 Stipulated MOTION to Amend/Correct Schedule filed by Defendants Gary R. Herbert, Mark Shurtleff. (Attachments: # 1 Text of Proposed Order)(Lawrence, Barry) (Entered: 07/07/2011)
101 ORDER TO AMEND SCHEDULE− Set Deadlines as to 36 Plaintiff's MOTION for Preliminary Injunction.( Motion Hearing set for 9/2/2001 09:00 AM in Room 102 before Judge Clark Waddoups.). See order for details. Signed by Judge Clark Waddoups on 7/7/11. (jmr) (Entered: 07/07/2011)
102 MEMORANDUM in Opposition re 36 Plaintiff's MOTION for Preliminary Injunction filed by Defendants Gary R. Herbert, Mark Shurtleff. (Attachments: # 1 Appendix of Exhibits, # 2 Exhibit A HB 497, # 3 Exhibit B Declaration of Jon Greiner, # 4 Exhibit C Illegal Immigrants in Prison, KSL News, # 5 Exhibit D HB 165, # 6 Exhibit E Legislative Auditor Report Public Education Costs)(Lawrence, Barry) (Entered: 07/20/2011)
103 NOTICE OF HEARING ON MOTION re: 36 Plaintiff's MOTION for Preliminary Injunction. Motion Hearing reset for 9/16/2011 09:00 AM in Room 102 before Judge Clark Waddoups due to a conflict in the court's schedule. (Notice generated by jwt) (jwt) (Entered: 07/27/2011)
104 MOTION to Certify Class 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 Text of Proposed Order)(Cheer, Shiu−Ming) (Entered: 08/01/2011)
105 MEMORANDUM in Support re 104 MOTION to Certify Class 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. (Cheer, Shiu−Ming) (Entered: 08/01/2011)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 36 of 49

08/01/2011 08/01/2011
08/01/2011 08/01/2011 08/15/2011 08/16/2011 08/17/2011
08/25/2011 08/29/2011 09/01/2011 09/02/2011

106 APPENDIX to 105 Memorandum in Support of Motion, filed by Plaintiffs Centro Civico Mexicano, Alicia Cervantes, Coalition of Utah Progressives, 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. (Cheer, Shiu−Ming) (Entered: 08/01/2011)
107 DECLARATION of Linton Joaquin re 105 Memorandum in Support of Motion, 104 MOTION to Certify Class, 106 Appendix, filed by 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 Exhibit)(Cheer, Shiu−Ming) (Entered: 08/01/2011)
108 DECLARATION of Cecillia D. Wang re 105 Memorandum in Support of Motion, 104 MOTION to Certify Class, 106 Appendix, filed by Centro Civico Mexicano, Alicia Cervantes, Coalition of Utah Progressives, 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. (Cheer, Shiu−Ming) (Entered: 08/01/2011)
109 DECLARATION of Bradley S. Phillips re 105 Memorandum in Support of Motion, 104 MOTION to Certify Class, 106 Appendix, filed by Centro Civico Mexicano, Alicia Cervantes, Coalition of Utah Progressives, 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. (Cheer, Shiu−Ming) (Entered: 08/01/2011)
110 MEMORANDUM in Opposition re 104 MOTION to Certify Class filed by Defendants Gary R. Herbert, Mark Shurtleff. (Lott, Philip) (Entered: 08/15/2011)
111 STIPULATION re 102 Memorandum in Opposition to Motion, by 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 Text of Proposed Order [Proposed] Order)(Tumlin, Karen) (Entered: 08/16/2011)
112 ORDER GRANTING 111 Stipulation, filed by Milton Ivan Salazar−Gomez, Alicia Cervantes, Salt Lake City Brown Berets, Latin American Chamber of Commerce, Coalition of Utah Progressives, Utah Coalition of La Raza, Service Employees International Union, Workers United Rocky Mountain Joint Board, Centro Civico Mexicano, Eliana Larios. Plaintiffs shall have until September 2, 2011, to respond to Defendants Opposition to Motionfor Preliminary Injunction. And, Plaintiffs shall be permitted to file a 20−page Reply Brief. Signed by Judge Clark Waddoups on 8/17/11. (jmr) (Entered: 08/17/2011)
113 DECLARATION of Terry M. Keefe re 102 Memorandum in Opposition to Motion, filed by Gary R. Herbert, Mark Shurtleff. (Lawrence, Barry) (Entered: 08/25/2011)
114 REPLY to Response to Motion re 104 MOTION to Certify Class IN SUPPORT 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. (Cheer, Shiu−Ming) (Entered: 08/29/2011)
115 STANDING ORDER− Amending 89 Order. See order for details. Signed by Judge Clark Waddoups on 8/31/11. (jmr) (Entered: 09/01/2011)
116 REPLY to Response to Motion re 36 Plaintiff's MOTION for Preliminary Injunction In Support of 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 Appendix Index of Exhibits, # 2 Exhibit No. 1 Burns Declaration, # 3 Exhibit No. 2 Ragsdale Declaration, # 4 Exhibit No. 3 Morton Memo, # 5 Exhibit No. 4 Napolitano Letter, # 6 Exhibit No. 5 Aguilar Declaration, # 7 Exhibit No. 6

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 37 of 49

09/08/2011 09/13/2011 09/13/2011 09/19/2011 10/05/2011
10/17/2011 11/14/2011 11/17/2011 11/17/2011 11/22/2011 11/28/2011 11/28/2011 11/28/2011

Scialabba Declaration, # 8 Exhibit No. 7 Gentile Declaration, # 9 Exhibit No. 8 Griffen Declaration)(Joaquin, Linton) (Entered: 09/02/2011)
117 ORDER GRANTING MOTION OF THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION AS AMICUS CURIAE FOR LEAVE TO FILE BRIEF IN SUPPORT OF PLAINTIFFS' COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF−granting 82 Motion for Leave to File. Signed by Judge Clark Waddoups on 9/8/11. (jmr) (Entered: 09/08/2011)
118 MOTION to Continue Hearing on Plaintiffs' Motion for Preliminary Injunction filed by Defendants Gary R. Herbert, Mark Shurtleff. (Attachments: # 1 Text of Proposed Order)(Lawrence, Barry) (Entered: 09/13/2011)
119 ORDER, Motions terminated: 118 MOTION to Continue Hearing on Plaintiffs' Motion for Preliminary Injunction filed by Mark Shurtleff, Gary R. Herbert., Set Deadlines as to 36 Plaintiff's MOTION for Preliminary Injunction.( Motion Hearing re−set for 11/18/2011 09:00 AM in Room 102 before Judge Clark Waddoups.). Signed by Judge Clark Waddoups on 9/13/11. (jmr) (Entered: 09/13/2011)
120 NOTICE OF HEARING ON MOTION re: 36 Plaintiff's MOTION for Preliminary Injunction. Motion Hearing reset for 12/2/2011 09:00 AM in Room 102 before Judge Clark Waddoups by stipulation re counsels' unavailability on 11/18/11. (Notice generated by jwt) (jwt) (Entered: 09/19/2011)
121 NOTICE of Conversion of John Doe #1 to a Named Plaintiff by 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 Exhibit 1 − Declaration of David Morales, # 2 Exhibit 2 − John Morton Memo, # 3 Exhibit 3 − Janet Napolitano Letter, # 4 Exhibit 4 − David Morales Press Conference, # 5 Exhibit 5 − Salt Lake Tribune Article, # 6 Exhibit 6 − Utah News Article) (Cheer, Shiu−Ming) (Entered: 10/05/2011)
122 NOTICE of Withdrawal of Counsel by 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 , of Darcy M. Goddard (Granados, Esperanza) (Entered: 10/17/2011)
123 DECLARATION of Jacob Dunn re: NCIC filed by Gary R. Herbert, Mark Shurtleff. (Attachments: # 1 Exhibit A − NCIC 2000 Operating Manual − Immigration Violator File)(Lott, Philip) (Entered: 11/14/2011)
124 ORDER Granting Doe Plaintiffs' Motion for Leave to Proceed Under Pseudonyms−granting 19 Motion. Signed by Judge Clark Waddoups on 11/16/11. (jmr) (Entered: 11/17/2011)
125 ORDER Granting Plaintiffs' Motion for Leave to File Declarations Under Seal−granting 24 Motion to Seal Document in re: 20 Memorandum in Support of Motion. Signed by Judge Clark Waddoups on 11/16/11. (jmr) (Entered: 11/17/2011)
126 MOTION to Transfer Pursuant to Local Rule 83−2(g) and to Set Briefing Schedule filed by Movant USA. (Attachments: # 1 Text of Proposed Order)(Price, Daniel) Modified on 11/28/2011 to change event to motion to consolidate cases(jmr). (Entered: 11/22/2011)
127 RESPONSE to Motion re 126 MOTION to Transfer Pursuant to Local Rule 83−2(g) and to Set Briefing Schedule filed by Defendants Gary R. Herbert, Mark Shurtleff. (Lawrence, Barry) (Entered: 11/28/2011)
128 CERTIFICATE OF SERVICE by Gary R. Herbert, Mark Shurtleff of State of Utah's Response to the United States of America's Motion to Transfer and Set Briefing Schedule (Lawrence, Barry) (Entered: 11/28/2011)
129 ORDER granting 126 Motion to Consolidate Cases and to Set Briefing Schedule. See order for details. Signed by Judge Clark Waddoups on 11/28/11. (jmr) (Entered: 11/28/2011)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 38 of 49

11/28/2011 11/28/2011
12/01/2011
12/07/2011 12/07/2011 12/12/2011 12/13/2011 12/15/2011 12/15/2011 12/16/2011
12/16/2011
12/20/2011 12/20/2011

Set/Reset Deadlines as to 36 Plaintiff's MOTION for Preliminary Injunction. Motion Hearing set for 2/17/2012 08:30 AM in Room 102 before Judge Clark Waddoups per Order 129 . (jmr) (Entered: 11/28/2011)
130 MOTION for Admission Pro Hac Vice of Joseph Cohn, Registration fee $ 15, receipt number 1088−1480460, 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. (Granados, Esperanza) (Entered: 11/28/2011)
131 ORDER granting 130 Motion for Admission Pro Hac Vice of Joseph S. Cohn for Centro Civico Mexicano,Joseph S. Cohn for Alicia Cervantes,Joseph S. Cohn for Coalition of Utah Progressives,Joseph S. Cohn for Eliana Larios,Joseph S. Cohn for Latin American Chamber of Commerce,Joseph S. Cohn for Milton Ivan Salazar−Gomez,Joseph S. Cohn for Salt Lake City Brown Berets,Joseph S. Cohn for Service Employees International Union,Joseph S. Cohn for Utah Coalition of La Raza,Joseph S. Cohn for Workers United Rocky Mountain Joint Board. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 12/1/11. (jmr) (Entered: 12/01/2011)
132 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by USA as to State of Utah served on 11/30/2011, answer due 12/21/2011. (asp) (Entered: 12/09/2011)
133 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by USA as to Gary R. Herbert served on 11/30/2011, answer due 12/21/2011. (asp) (Entered: 12/09/2011)
134 Consent MOTION for Leave to File Excess Pages filed by Consol Plaintiff USA. (Attachments: # 1 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 12/12/2011)
135 ORDER granting 134 Motion for Leave to File Excess Pages. Signed by Judge Clark Waddoups on 12/13/11. (jmr) (Entered: 12/13/2011)
136 MOTION for Preliminary Injunction filed by Consol Plaintiff USA. (Attachments: # 1 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 12/15/2011)
137 MEMORANDUM in Support re 136 MOTION for Preliminary Injunction filed by Consol Plaintiff USA. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6)(Wilkenfeld, Joshua) (Entered: 12/15/2011)
138 MOTION for Leave to File Amended Brief in Support of Plaintiffs' Complaint for Declaratory and Injunctive Relief filed by Movants Government of Argentina, Government of Brazil, Government of Chile, Government of Columbia, Government of Costa Rica, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, Amicus United Mexican States. (Attachments: # 1 Text of Proposed Order)(Jenkins, Lon) (Entered: 12/16/2011)
139 Amended Amicus BRIEF in Support of Plaintiffs' Complaint for Declaratory and Injunctive Relief filed by Movants Government of Argentina, Government of Brazil, Government of Chile, Government of Columbia, Government of Costa Rica, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, Amicus United Mexican States. (Jenkins, Lon) (Entered: 12/16/2011)
140 MOTION for Joinder re 138 MOTION for Leave to File Amended Brief in Support of Plaintiffs' Complaint for Declaratory and Injunctive Relief filed by Movants Government of Bolivia, Government of the Domician Republic. (Attachments: # 1 Text of Proposed Order)(Jenkins, Lon) (Entered: 12/20/2011)
141 ANSWER to Complaint filed by Gary R. Herbert, State of Utah.(Lawrence, Barry) (Entered: 12/20/2011)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 39 of 49

12/21/2011 12/21/2011 01/09/2012 01/12/2012 01/17/2012
01/25/2012 01/25/2012 01/25/2012 01/25/2012
01/25/2012
01/25/2012 01/26/2012 01/26/2012
01/27/2012 01/27/2012

142 ORDER Granting Motion for Leave to File Amended Brief in Support of Plaintiff's Complaint for Declaratory and Injunctive Relief−granting 138 Motion for Leave to File. Signed by Judge Clark Waddoups on 12/21/11. (jmr) (Entered: 12/21/2011)
143 ORDER Granting Motion for Leave to Join Motion for Leave to File Amended Brief in Support of Plaintiffs' Complaint for Declaratory and Injunctive Relief−granting 140 Motion for Joinder. Signed by Judge Clark Waddoups on 12/21/11. (jmr) (Entered: 12/21/2011)
144 MOTION for Leave to File Overlength Memorandum filed by Defendant Gary R. Herbert, Consol Defendant State of Utah. (Attachments: # 1 Text of Proposed Order)(Lawrence, Barry) (Entered: 01/09/2012)
145 ORDER granting 144 Motion for Leave to File Overlength Memorandum. Signed by Judge Clark Waddoups on 1/12/12. (jmr) (Entered: 01/12/2012)
146 MEMORANDUM in Opposition re 136 MOTION for Preliminary Injunction filed by Defendant Gary R. Herbert, Consol Defendant State of Utah. (Attachments: # 1 Appendix of Exhibits, # 2 Exhibit A − Utah Illegal Immigration Enforcement Act 2011 General Session, State of Utah, H.B. 497, # 3 Exhibit B − Attorney General Opinion No. 2012−001, # 4 Exhibit C − USA v. The State of Arizona, et al. Order)(Lawrence, Barry) (Entered: 01/17/2012)
147 Consent MOTION for Leave to File Excess Pages filed by Consol Plaintiff USA. (Attachments: # 1 Text of Proposed Order)(Wilkenfeld, Joshua) (Entered: 01/25/2012)
148 ORDER Granting United States' Consent Motion for Leave to Exceed the PAge Limit−granting 147 Motion for Leave to File Excess Pages. Signed by Judge Clark Waddoups on 1/25/12. (jmr) (Entered: 01/25/2012)
149 NOTICE of Appearance by Frank D. Mylar on behalf of Immigration Reform Law Institute (Mylar, Frank) (Entered: 01/25/2012)
150 MOTION for Admission Pro Hac Vice of Michael Hethmon , Registration fee $ 15, receipt number 1088−1516858, filed by Movant Immigration Reform Law Institute. (Attachments: # 1 Exhibit A − Application for Pro Hac Vice Admission, # 2 Exhibit B − ECF Registration Form, # 3 Text of Proposed Order)(Mylar, Frank) (Entered: 01/25/2012)
151 MOTION for Admission Pro Hac Vice of Garrett Roe , Registration fee $ 15, receipt number 1088−1516866, filed by Movant Immigration Reform Law Institute. (Attachments: # 1 Exhibit A − Application for Pro Hac Vice Admission, # 2 Exhibit B − ECF Registration Form, # 3 Text of Proposed Order)(Mylar, Frank) (Entered: 01/25/2012)
152 MOTION for Leave to File Amicus Curiae Brief by I.R.L.I in Support of Defendants and in Opposition to Plaintiffs' Motion for Preliminary Injunction filed by Movant Immigration Reform Law Institute. (Attachments: # 1 Text of Proposed Order, # 2 Amicus Brief by I.R.L.I)(Mylar, Frank) (Entered: 01/25/2012)
153 NOTICE of Appearance by Michael F. Skolnick on behalf of Anti Defamation League (Skolnick, Michael) (Entered: 01/26/2012)
154 MOTION for Leave to File Brief of Amicus Curiae The Anti−Defamation League in Support of Plaintiff's Motion for Declaratory and Injunctive Relief filed by Movant Anti Defamation League. (Attachments: # 1 Exhibit A − Motion for Leave to File Brief of Amicus Curiae the Anti−Defamation League in Support of Plaintiff's Motion for Declaratory and Injunctive Relief, # 2 Text of Proposed Order)(Skolnick, Michael) (Entered: 01/26/2012)
155 ORDER granting 152 Motion for I.R.L.I. TO FILE AMICUS CURIAEand IN SUPPORT OF DEFENDANTS AND IN OPPOSITION TO PLAINTIFFSMOTION FOR PRELIMINARY INJUNCTION. Signed by Judge Clark Waddoups on 1/27/12. (jmr) (Entered: 01/27/2012)
156 NOTICE of WITHDRAWAL OF COUNSEL ELIZABETH W. NEWSOM by Legal Momentum (Attachments: # 1 Exhibit Exhibit A) (McDonald, Kathleen) (Entered: 01/27/2012)

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01/27/2012 01/27/2012 01/31/2012 02/01/2012 02/01/2012 02/02/2012 02/07/2012
02/07/2012 02/07/2012 02/07/2012 02/07/2012 02/08/2012

157 ORDER granting 150 Motion for Admission Pro Hac Vice of Michael M. Hethmon for Immigration Reform Law Institute. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 1/27/12. (jmr) (Entered: 01/27/2012)
158 ORDER granting 151 Motion for Admission Pro Hac Vice of Garrett Roe for Immigration Reform Law Institute. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 1/27/12. (jmr) (Entered: 01/27/2012)
159 REPLY to Response to Motion re 136 MOTION for Preliminary Injunction filed by Consol Plaintiff USA. (Wilkenfeld, Joshua) (Entered: 01/31/2012)
160 ORDER granting 154 Motion for Leave to File Brief of Amicus Curiae The Anti−Defamation League in Support of Plaintiff's Motion for Declaratory and Injunctive Relief filed by Movant Anti Defamation League. Signed by Judge Clark Waddoups on 2/1/12. (jmr) (Entered: 02/01/2012)
161 Amicus Curiae BRIEF re 146 Memorandum in Opposition to Motion, In Support filed by Movant Immigration Reform Law Institute. (Mylar, Frank) (Entered: 02/01/2012)
162 NOTICE OF HEARING: (Notice generated by jwt) Telephone Conference set for 2/7/2012 01:00 PM in Room 102 before Judge Clark Waddoups. The court will discuss with counsel for named parties the procedure for the preliminary injunction hearing set for 2/17/2012. (jwt) (Entered: 02/02/2012)
163 Minute Entry for proceedings held before Judge Clark Waddoups: Telephone Conference held on 2/7/2012. This matter was set to discuss how the motion hearing on 2/17/12 will proceed. The parties outline their agreement on the order of the arguments. No testimony will be presented. Discussion as to amicus participation in the hearing. The court may leave some limited time for amicus counsel to address the court with rebuttal from the named parties. The court informs counsel that due the number parties and interest in this case the hearing on 2/17/2012 at 08:30 AM will be held in Room 246. Any equipment set up may be coordinated with the courtroom deputy, Jeff Taylor. Attorney for Plaintiff: Karen Tumlin, Shiu−Ming Cheer, Esperanza Granados, Linton Joaquin, Cecillia Wang; Joshua Wilkenfeld for consol plaintiff USA, Attorney for Defendant: Barry Lawrence, Philip Lott. Court Reporter: Karen Murakami. (jwt) (Entered: 02/07/2012)
164 Amicus BRIEF re 136 MOTION for Preliminary Injunction filed by Movant Anti Defamation League. (Skolnick, Michael) (Entered: 02/07/2012)
165 MOTION for Admission Pro Hac Vice of Michelle Deutchman , Registration fee $ 15, receipt number 1088−1525764, filed by Movant Anti Defamation League. (Attachments: # 1 Exhibit A − Application pro hac for Michelle Deutchman, # 2 Exhibit B − Electronic Case Filing form for Michelle Deutchman, # 3 Text of Proposed Order Order for Pro Hac Admission)(Skolnick, Michael) (Entered: 02/07/2012)
166 MOTION for Admission Pro Hac Vice of Yael Lerman Mazar , Registration fee $ 15, receipt number 1088−1525777, filed by Movant Anti Defamation League. (Attachments: # 1 Exhibit A − Application for pro hac admission for Yael Lerman Mazar, # 2 Exhibit B − Electronic Case Filing Registration Form for Yael Lerman Mazar, # 3 Text of Proposed Order Order for Pro Hac Vice Admission)(Skolnick, Michael) (Entered: 02/07/2012)
167 MOTION for Admission Pro Hac Vice of Steven M. Freeman , Registration fee $ 15, receipt number 1088−1525795, filed by Movant Anti Defamation League. (Attachments: # 1 Exhibit A − Application for Pro Hac Vice Admission of Steven M. Freeman, # 2 Exhibit B − Electronic Case Filing Registraiton Form for Steven M. Freeman, # 3 Text of Proposed Order Order for Pro Hac Admission)(Skolnick, Michael) (Entered: 02/07/2012)
168 DOCKET TEXT ORDER − the court will allow counsel for the amicus parties to present oral arguments at the hearing scheduled for 2/17/2012. However, the total time allotted for such argument will be 40 minutes to be divided among by the amicus

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 41 of 49

02/09/2012 02/09/2012
02/10/2012 02/10/2012 02/14/2012 02/14/2012 02/14/2012
02/14/2012
02/14/2012
02/14/2012 02/16/2012

parties. The state may have a 20 minute response to the amicus arguments. Signed by Judge Clark Waddoups on 2/8/2012. ( No attached document. )(jwt) (Entered: 02/08/2012)
169 NOTICE of Oral Argument & Request for Ten Minutes by Immigration Reform Law Institute re 163 Telephone Conference, Set Motion and R&R Deadlines/Hearings,,,,,, (Mylar, Frank) (Entered: 02/09/2012)
170 DOCKET TEXT ORDER re DECORUM for the hearing on 2/17/2012 and all future hearings. The court understands the widespread interest in this case, however, it will not allow the use of social media, live texting, tweeting, recording, or photography of any kind by the parties or any other individual in attendance during the hearing. Counsel for the parties may have access to their cellphones but only for purposes of accessing their calendars should the need to schedule further matters arise. Signed by Judge Clark Waddoups on 2/9/2012. (No attached document)(jwt) (Entered: 02/09/2012)
171 **SEALED DOCUMENT** Declaration of Plaintiff Jane Doe #1 in Support of 19 MOTION for Leave for Doe Plaintiffs to Proceed Under Pseudonyms filed by Plaintiffs Centro Civico Mexicano, Alicia Cervantes, Coalition of Utah Progressives, Eliana Larios, Milton Ivan Salazar−Gomez, Salt Lake City Brown Berets, Utah Coalition of La Raza. (jmr) (Entered: 02/13/2012)
172 **SEALED DOCUMENT** Declaration of Plaintiff John Doe #2 in Support of 19 MOTION for Leave for Doe Plaintiffs to Proceed Under Pseudonyms 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, Utah Coalition of La Raza. (jmr) (Entered: 02/13/2012)
173 NOTICE of Appearance by Andrew R. Hale on behalf of Anti Defamation League (Hale, Andrew) (Entered: 02/14/2012)
174 REQUEST for Oral Argument re 36 Plaintiff's MOTION for Preliminary Injunction Request for Oral Argument By Amicus Curiae Legal Momentum in Support of Plaintiffs' Motion for Preliminary Injunction filed by Amicus Legal Momentum. (McDonald, Kathleen) (Entered: 02/14/2012)
175 MOTION for Admission Pro Hac Vice of Michelle Deutchman , Registration fee $ 15, receipt number 1088−1525764, filed by Movant Anti Defamation League. (Attachments: # 1 Exhibit A − Application pro hac for Michelle Deutchman, # 2 Exhibit B − Electronic Case Filing form for Michelle Deutchman, # 3 Text of Proposed Order Text of Proposed Order for Pro Hac Admission)(Skolnick, Michael) (Entered: 02/14/2012)
176 MOTION for Admission Pro Hac Vice of Steven M. Freeman , Registration fee $ 15, receipt number 1088−1525795, filed by Movant Anti Defamation League. (Attachments: # 1 Exhibit A − Application for Pro Hac Vice Admission of Steven M. Freeman, # 2 Exhibit B − Electronic Case Filing Registration form of Steven M. Freeman, # 3 Text of Proposed Order Text of Proposed Order for Pro Hac Admission)(Skolnick, Michael) (Entered: 02/14/2012)
177 MOTION for Admission Pro Hac Vice of Yael Lerman Mazar , Registration fee $ 15, receipt number 1088−1525777, filed by Movant Anti Defamation League. (Attachments: # 1 Exhibit A − Application for Pro Hac Admission for Yael Lerman Mazar, # 2 Exhibit B − Electronic Case Filing Registration form for Yael Lerman Mazar, # 3 Text of Proposed Order Text of Proposed Order for Pro Hac Vice Admission)(Skolnick, Michael) (Entered: 02/14/2012)
178 REQUEST for Oral Argument re 36 Plaintiff's MOTION for Preliminary Injunction Request for Oral Argument on behalf of Anti−Defamation League filed by Movant Anti Defamation League. (Skolnick, Michael) (Entered: 02/14/2012)
179 ORDER granting 175 Motion for Admission Pro Hac Vice of Yael Lerman Mazar,Steven M. Freeman,Michelle Deutchman for Anti Defamation League. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov ; granting 176 Motion for Admission Pro Hac Vice of Yael Lerman Mazar,Steven M.

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 42 of 49

02/16/2012 02/16/2012 02/17/2012
02/21/2012 03/30/2012 04/26/2012

Freeman,Michelle Deutchman for Anti Defamation League. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov ; granting 177 Motion for Admission Pro Hac Vice of Yael Lerman Mazar,Steven M. Freeman,Michelle Deutchman for Anti Defamation League. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 02/16/2012. (asp) (Entered: 02/16/2012)
180 NOTICE of Regarding Unavailability to Participate in Hearing. by Government of Argentina, Government of Bolivia, Government of Brazil, Government of Chile, Government of Columbia, Government of Costa Rica, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, Government of the Domician Republic, United Mexican States (Gorniak, Carla) (Entered: 02/16/2012)
181 NOTICE of Appearance by Jeffrey S. Gray on behalf of Gary R. Herbert, Mark Shurtleff (Gray, Jeffrey) (Entered: 02/16/2012)
182 Minute Entry for proceedings held before Judge Clark Waddoups: Motion Hearing held on 2/17/2012 re 136 MOTION for Preliminary Injunction filed by USA, 36 Plaintiff's MOTION for Preliminary Injunction filed by Milton Ivan Salazar−Gomez, Alicia Cervantes, Salt Lake City Brown Berets, Latin American Chamber of Commerce, Coalition of Utah Progressives, Utah Coalition of La Raza, Service Employees International Union, Workers United Rocky Mountain Joint Board, Centro Civico Mexicano, Eliana Larios. The court hears arguments and takes the matter under submission. The present injunction will continue in effect pending the court's ruling. The court will notify the parties should it decide to wait to rule until the Arizona case has been decided by the Supreme Court. Attorney for Plaintiff: Joshua Wilkenfeld, William Orrick, Monica Ramirez, Varu Chilakamarri, David Barlow, Daniel Price, Shiu−Ming Cheer, Joseph Cohn, Esperanza Granados, Linton Joaquin, Melissa Keaney, Andre Segura, Karen Tumlin, Cecillia Wang, Attorney for Defendant: Barry Lawrence, Timothy Evans, Phillip Lott, Jeff Gray. Amicus counsel: Laura Walther, Andrew Hale, Michael Hethmon. Court Reporter: Laura Robinson. (jwt) (Entered: 02/17/2012)
183 ORDER re 182 Motion Hearing. Follows oral order of 2/17/12. Because this case addresses significant constitutional issues, the court does not believe it would be helpful to the parties for the court to rule on the present motions before it receives the additional guidance from the Supreme Court. It therefore will reserve ruling until the Supreme Court has issued its decision. The present injunction shall continue in place until the court rules on thepending motions for preliminary injunction. Signed by Judge Clark Waddoups on 2/21/12. (jmr) (Entered: 02/21/2012)
184 NOTICE OF WITHDRAWAL OF COUNSEL of Joseph Cohn filed by Joseph S. Cohn on behalf of 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 (lnp) (Entered: 04/02/2012)
185 NOTICE OF WITHDRAWAL OF COUNSEL of Kenneth J. Sugarman filed by Kenneth John Sugarman on behalf of American Immigration Lawyers Association, Anti Defamation League, Asian American Justice Center, Centro Civico Mexicano, Alicia Cervantes, Coalition of Utah Progressives, Government of Argentina, Government of Bolivia, Government of Brazil, Government of Chile, Government of Columbia, Government of Costa Rica, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, Government of the Domician Republic, Gary R. Herbert, Immigration Equality, Immigration Reform Law Institute, Eliana Larios, Latin American Chamber of Commerce, Legal Momentum, Milton Ivan Salazar−Gomez, Salt Lake City Brown Berets, Service Employees International Union, Mark Shurtleff, State of Utah, USA, United Mexican States, Utah Coalition of La Raza, Workers United Rocky Mountain Joint Board (Sugarman, Kenneth) (Entered: 04/26/2012)

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06/15/2012 06/20/2012 06/26/2012 06/27/2012 06/27/2012
06/28/2012
07/05/2012 07/10/2012 07/20/2012 07/20/2012
07/20/2012
07/25/2012 07/26/2012

186 MOTION for Admission Pro Hac Vice of W. Scott Simpson (no registration fee required) filed by Consol Plaintiff USA. (Attachments: # 1 Exhibit A − Application for Admission, # 2 Exhibit B − ECF Registration form, # 3 Text of Proposed Order)(Price, Daniel) (Entered: 06/15/2012)
187 ORDER granting 186 Motion for Admission Pro Hac Vice of W. Scott Simpson for USA. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Judge Clark Waddoups on 6/20/12. (jmr) (Entered: 06/20/2012)
188 NOTICE of SUPPLEMENTAL AUTHORITY by Gary R. Herbert, Mark Shurtleff, State of Utah (Lawrence, Barry) (Entered: 06/26/2012)
189 Plaintiff's RESPONSE re 188 Notice of Supplemental Authority, filed by USA. (Simpson, W.) (Entered: 06/27/2012)
190 Plaintiff's RESPONSE re 188 Notice of Supplemental Authority,Utah Coalition of La Raza, et al., filed by 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. (Tumlin, Karen) (Entered: 06/27/2012)
191 Request for Further Briefing/ORDER−The court requests that the plaintiffs in each of the consolidated actions provide a supplemental memorandum on or before July 20, 2012 addressing how the Courts decision in the Arizona case informs as to pending motions. The court requests that the defendants in the consolidated actions file a responsive memorandum on or before August 17, 2012. Each memorandum shall not exceed 15 pages. No other memoranda will be accepted. Upon receipt of the memoranda the court will schedule oral argument. Signed by Judge Clark Waddoups on 6/28/12. (jmr) (Entered: 06/28/2012)
192 MOTION for Leave to File Supplemental Memorandum by Amicus Curiae Immigration Reform Law Institiute, INC. In Support of Defendants and in Opposition to Plaintiffs' Motions for a Preliminary Injunction filed by Movant Immigration Reform Law Institute. (Attachments: # 1 Text of Proposed Order)(Mylar, Frank) (Entered: 07/05/2012)
193 DOCKET TEXT ORDER denying 192 Motion for Leave to File Signed by Judge Clark Waddoups on 7/10/2012. No attached document. (saw) (Entered: 07/10/2012)
194 Supplemental MEMORANDUM in Support re 136 MOTION for Preliminary Injunction filed by Consol Plaintiff USA. (Simpson, W.) (Entered: 07/20/2012)
195 Supplemental 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. (Tumlin, Karen) (Entered: 07/20/2012)
196 MOTION for Admission Pro Hac Vice of Jennifer C. Newell , Registration fee $ 15, receipt number 1088−1638311, 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 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Granados, Esperanza) (Entered: 07/20/2012)
197 DOCKET TEXT ORDER REFERRING CASE to Magistrate Judge Evelyn J. Furse under 28:636 (b)(1)(A), Magistrate to hear and determine all nondispositive pretrial matters. Signed by Judge Clark Waddoups on 7/25/2012. No image attached.(saw) (Entered: 07/25/2012)
198 Amended MOTION for Admission Pro Hac Vice of Jennifer C. Newell , Registration fee $ 15, receipt number 1088−1638311, filed by Plaintiffs Centro Civico Mexicano, Alicia Cervantes, Coalition of Utah Progressives, Eliana Larios, Latin American

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07/27/2012
08/17/2012 08/17/2012 08/17/2012 08/17/2012 08/22/2012 08/30/2012 08/30/2012

Chamber of Commerce, Milton Ivan Salazar−Gomez, Salt Lake City Brown Berets, Service Employees International Union, Utah Coalition of La Raza. (Attachments: # 1 Exhibit Application Form, # 2 Exhibit Registration Form, # 3 Text of Proposed Order)(Granados, Esperanza) (Entered: 07/26/2012)
199 ORDER granting 196 Motion for Admission Pro Hac Vice of Jennifer C. Newell for Centro Civico Mexicano,Jennifer C. Newell for Alicia Cervantes,Jennifer C. Newell for Coalition of Utah Progressives,Jennifer C. Newell for Eliana Larios,Jennifer C. Newell for Latin American Chamber of Commerce,Jennifer C. Newell for Milton Ivan Salazar−Gomez,Jennifer C. Newell for Salt Lake City Brown Berets,Jennifer C. Newell for Service Employees International Union,Jennifer C. Newell for Utah Coalition of La Raza. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov ; granting 198 Motion for Admission Pro Hac Vice of Jennifer C. Newell for Centro Civico Mexicano,Jennifer C. Newell for Alicia Cervantes,Jennifer C. Newell for Coalition of Utah Progressives,Jennifer C. Newell for Eliana Larios,Jennifer C. Newell for Latin American Chamber of Commerce,Jennifer C. Newell for Milton Ivan Salazar−Gomez,Jennifer C. Newell for Salt Lake City Brown Berets,Jennifer C. Newell for Service Employees International Union,Jennifer C. Newell for Utah Coalition of La Raza. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov . Signed by Magistrate Judge Evelyn J. Furse on 7/26/12. (jmr) (Entered: 07/27/2012)
200 Supplemental MEMORANDUM in Opposition re 136 MOTION for Preliminary Injunction filed by Defendant Gary R. Herbert, Consol Defendant State of Utah. (Lawrence, Barry) (Entered: 08/17/2012)
201 Plaintiff's MOTION for Preliminary Injunction AGAINST § 5 OF HB 497 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 Text of Proposed Order [Proposed] Order)(Newell, Jennifer) (Entered: 08/17/2012)
202 BRIEF re 201 Plaintiff's MOTION for Preliminary Injunction AGAINST § 5 OF HB 497 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. (Newell, Jennifer) (Entered: 08/17/2012)
203 EXHIBITS filed by 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 re 202 Brief,. (Attachments: # 1 Affidavit Updated Declaration of David Morales, # 2 Affidavit Supplemental Declaration of John Doe #2, # 3 Affidavit Declaration of Aaron Tarin)(Newell, Jennifer) (Entered: 08/17/2012)
204 NOTICE of Supplemental Authority by 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 re 36 Plaintiff's MOTION for Preliminary Injunction (Attachments: # 1 Exhibit Ex A − GLAHR Opinion, # 2 Exhibit Ex B − USA v AL Opinion, # 3 Exhibit Ex C − HICA Opinion) (Keaney, Melissa) (Entered: 08/22/2012)
205 MOTION for Extension of Time to Respond to Motion for Preliminary Injunction filed by Defendants Gary R. Herbert, Mark Shurtleff, Consol Defendant State of Utah. (Attachments: # 1 Text of Proposed Order Proposed Order) Motions referred to Evelyn J. Furse.(Lawrence, Barry) (Entered: 08/30/2012)
206 Motions No Longer Referred: 205 MOTION for Extension of Time to Respond to Motion for Preliminary Injunction (saw) (Entered: 08/30/2012)

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08/30/2012 08/31/2012 09/14/2012 09/18/2012 09/19/2012 09/19/2012 10/05/2012
10/15/2012
10/18/2012 12/18/2012 01/31/2013
02/14/2013
02/15/2013

207 MOTION for Extension of Time to Respond to Motion for Preliminary Injunction (Amended) filed by Defendants Gary R. Herbert, Mark Shurtleff, Consol Defendant State of Utah. (Attachments: # 1 Text of Proposed Order Proposed Order) Motions referred to Evelyn J. Furse.(Lawrence, Barry) (Entered: 08/30/2012)
208 ORDER granting 205 Motion for Extension of Time; granting 207 Motion for Extension of Time. Defendants shall have until September 14,2012, to respond to the La Raza plaintiffs Motion for Preliminary Injunction Against 5 of HB 497. Signed by Judge Clark Waddoups on 8/30/12. (jmr) (Entered: 08/31/2012)
209 MEMORANDUM in Opposition re 201 Plaintiff's MOTION for Preliminary Injunction AGAINST § 5 OF HB 497 filed by Defendant Gary R. Herbert, Consol Defendant State of Utah. (Lawrence, Barry) (Entered: 09/14/2012)
210 MOTION for Extension of Time Motion for Preliminary Injunction re Section 5 filed by Plaintiff Centro Civico Mexicano. (Attachments: # 1 Text of Proposed Order) Motions referred to Evelyn J. Furse.(Tumlin, Karen) (Entered: 09/18/2012)
211 Motions No Longer Referred: 210 MOTION for Extension of Time Motion for Preliminary Injunction re Section 5 (saw) (Entered: 09/19/2012)
212 ORDER granting 210 Motion for Extension of Time. Plaintiffs shall have until 10/5/12 to file their Reply in Support of Plaintiffs' Motion for Preliminary Injunction Against 5 of HB 497. Signed by Judge Clark Waddoups on 9/19/12. (jmr) (Entered: 09/19/2012)
213 REPLY to Response to Motion re 201 Plaintiff's MOTION for Preliminary Injunction AGAINST § 5 OF HB 497 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 Exhibit Exhibit A)(Newell, Jennifer) (Entered: 10/05/2012)
214 NOTICE OF HEARING ON MOTION re: 36 Plaintiff's MOTION for Preliminary Injunction, 201 Plaintiff's MOTION for Preliminary Injunction AGAINST § 5 OF HB 497, 136 MOTION for Preliminary Injunction : Motion Hearing set for 2/15/2013 08:30 AM in Room 246 before Judge Clark Waddoups. (Notice generated by jwt) (jwt) (Entered: 10/15/2012)
215 NOTICE OF WITHDRAWAL OF COUNSEL of Barry G. Lawrence filed by Barry G. Lawrence on behalf of Gary R. Herbert, Mark Shurtleff, State of Utah (Lawrence, Barry) (Entered: 10/18/2012)
216 NOTICE of Appearance by Leah M. Farrell on behalf of All Plaintiffs (Farrell, Leah) (Entered: 12/18/2012)
217 NOTICE of SUPPLEMENTAL AUTHORITY by 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 Exhibit A − South Carolina Op, # 2 Exhibit B − Arizona Op, # 3 Exhibit C − GA reh'g denied, # 4 Exhibit D − AL reh'g denied) (Tumlin, Karen) (Entered: 01/31/2013)
218 AMENDED NOTICE OF HEARING ON MOTION re: 36 Plaintiff's MOTION for Preliminary Injunction, 201 Plaintiff's MOTION for Preliminary Injunction AGAINST § 5 OF HB 497, 136 MOTION for Preliminary Injunction : (Notice generated by jwt) Motion Hearing set for 2/15/2013 10:00 AM in Room 102 before Judge Clark Waddoups. Note change in time; date remains the same. (jwt) (Entered: 02/14/2013)
219 Minute Entry for proceedings held before Judge Clark Waddoups: Motion Hearing held on 2/15/2013 re 136 MOTION for Preliminary Injunction filed by USA, 201 Plaintiff's MOTION for Preliminary Injunction AGAINST § 5 OF HB 497 filed by Milton Ivan Salazar−Gomez, Alicia Cervantes, Salt Lake City Brown Berets, Latin American Chamber of Commerce, Coalition of Utah Progressives, Utah Coalition of La Raza, Service Employees International Union, Workers United Rocky Mountain Joint Board, Centro Civico Mexicano, Eliana Larios, 36 Plaintiff's MOTION for Preliminary Injunction filed by Milton Ivan Salazar−Gomez, Alicia Cervantes, Salt

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 46 of 49

02/15/2013 02/28/2013

Lake City Brown Berets, Latin American Chamber of Commerce, Coalition of Utah Progressives, Utah Coalition of La Raza, Service Employees International Union, Eliana Larios, Centro Civico Mexicano, Workers United Rocky Mountain Joint Board. The court hears argument and takes the matter under submission. The court's previous order will remain in effect pending its decision. Attorney for Plaintiff: Scott Simpson, Leah Farrell, Linton Joaquin, Melissa Keaney, Jennifer Newell, Karen Tumlin, Cecillia Wang, Attorney for Defendant: Philip Lott, Timothy Evans. Court Reporter: Laura Robinson. (jwt) (Entered: 02/15/2013)
220 DOCKET TEXT ORDER re 45 Order on Motion for TRO. As stated at the hearing today, the court's previous order remains in effect until it rules on the pending motions for preliminary injunction. Signed by Judge Clark Waddoups on 2/15/2013. ( No attached document.)(jwt) (Entered: 02/15/2013)
221 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on February 15, 2013 before Judge CLARK WADDOUPS. Court Reporter/Transcriber Laura W. Robinson, Telephone number (801)328−4800.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

03/29/2013 04/29/2013 07/30/2013 07/30/2013

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/21/2013. Redacted Transcript Deadline set for 4/1/2013. Release of Transcript Restriction set for 5/29/2013. (asp) Modified by removing restricted text on 5/31/2013 (rks). (Entered: 02/28/2013)
222 NOTICE of SUPPLEMENTAL AUTHORITY by 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 Exhibit Buquer decision) (Tumlin, Karen) (Entered: 03/29/2013)
223 NOTICE of SUPPLEMENTAL AUTHORITY by 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 Exhibit A) (Tumlin, Karen) (Entered: 04/29/2013)
224 NOTICE of SUPPLEMENTAL AUTHORITY by 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 in Support of Plaintiffs' Motions for Preliminary Injunction (Attachments: # 1 Exhibit A − US v. South Carolina, # 2 Exhibit B − Villas at Parkside Partners v. City of Farmers Branch, # 3 Exhibit C − Lozano v. City of Hazelton) (Tumlin, Karen) (Entered: 07/30/2013)
225 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on February 17, 2012 before Judge CLARK WADDOUPS. Court Reporter/Transcriber Laura W. Robinson, Telephone number (801)328−4800.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 47 of 49

electronically available on the date set forth below.

08/21/2013
08/27/2013
10/15/2013
01/21/2014 02/11/2014 06/18/2014 07/11/2014 09/02/2014 09/03/2014 09/04/2014 09/10/2014
09/10/2014

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/20/2013. Redacted Transcript Deadline set for 8/30/2013. Release of Transcript Restriction set for 10/28/2013. (asp) Modified by removing restricted text on 10/28/2013 (rks). (Entered: 07/30/2013)
226 NOTICE of SUPPLEMENTAL AUTHORITY by Immigration Reform Law Institute re 161 Brief In Support of Defendants and in Opposition to Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Exhibit A − Letter to Judge Waddoups and Unpublished Opinion, Crane v. Napolitano, # 2 Exhibit B − Letter to Judge Waddoups and Unpublished Opinion, Keller v. Freemont) (Mylar, Frank) (Entered: 08/21/2013)
227 NOTICE of Response to Amicus Curiae's Notice of Supplemental Authority ISO Plaintiffs' MT for PI by 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 re 226 Notice of Supplemental Authority, (Newell, Jennifer) (Entered: 08/27/2013)
228 NOTICE of SUPPLEMENTAL AUTHORITY by 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 Exhibit Opinion − Valle del Sol v. Whiting) (Newell, Jennifer) (Entered: 10/15/2013)
229 DOCKET TEXT ORDER − The court orders the parties to follow the Short Form Discovery Motion procedure as outlined in the attached document in this case for all discovery disputes arising after this date. Signed by Judge Clark Waddoups on 01/21/2014. (rks) (Entered: 01/21/2014)
230 Mail Returned as Undeliverable. Mail sent to Henry L. Solano (las) (Entered: 02/11/2014)
231 MEMORANDUM DECISION and Order−granting in part and denying in part 36 Motion for Preliminary Injunction; granting in part and denying in part 136 Motion for Preliminary Injunction; denying 201 Motion for Preliminary Injunction. See Order for details. Signed by Judge Clark Waddoups on 6/18/14. (jmr) (Entered: 06/18/2014)
232 Mail Returned as Undeliverable. Unable to forward. Mail sent to Henry L. Salano. (kpf) (Entered: 07/11/2014)
233 NOTICE OF HEARING: (Notice generated by aw) Status Conference set for 9/17/2014 02:30 PM in Rm 8.100 before Judge Clark Waddoups. Court Address: NEW COURTHOUSE − 351 South West Temple, Salt Lake City, Utah (aw) (Entered: 09/02/2014)
234 NOTICE of Unavailability of Counsel for Plaintiff United States of America by USA (Simpson, W.) (Entered: 09/03/2014)
235 Joint MOTION re 233 Notice of Hearing and Memorandum in Support Re: Status Conference and Schedule filed by Consol Plaintiff USA. (Attachments: # 1 Text of Proposed Order) Motions referred to Evelyn J. Furse.(Simpson, W.) (Entered: 09/04/2014)
236 ORDER granting 235 Motion. It is hereby ORDERED that the status conference currently scheduled for September 17, 2014, is adjourned sine die, and that the parties shall submit a proposed final judgment or, alternatively, a joint status report regarding their discussions toward agreeing on a proposed final judgment no later than October 31, 2014. Signed by Judge Clark Waddoups on 9/10/14. (jmr) (Entered: 09/10/2014)
Deadlines/Hearings terminated. Status conference stricken per request of counsel. (aw) (Entered: 09/10/2014)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 48 of 49

10/16/2014 10/31/2014 11/03/2014 11/25/2014
12/04/2014 12/08/2014
12/09/2014 02/12/2015
02/12/2015 04/10/2015
04/13/2015 04/28/2015 09/15/2015

237 Mail sent to atty Henry L. Solano Returned as Undeliverable as Addressed. Firm has gone into bankruptcy and closed − no new address. (alt) (Entered: 10/16/2014)
238 STATUS REPORT (Joint) by USA. (Attachments: # 1 Text of Proposed Order)(Simpson, W.) (Entered: 10/31/2014)
239 ORDER−it is hereby ORDERED that the parties shall submit a proposed final judgment or, alternatively, a joint status report regarding their discussions toward agreeing on a proposed final judgment no laterthan November 25, 2014. Signed by Judge Clark Waddoups on 11/3/14. (jmr) (Entered: 11/03/2014)
240 STATUS REPORT (Joint) Regarding Agreed Proposed Disposition by 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 Proposed Final Judgment)(Newell, Jennifer) (Entered: 11/25/2014)
241 Final JUDGMENT−Any of Plaintiffs La Razas or the United States remaining claims which have not been adjudicated are dismissed without prejudice. See Judgment for details Case Closed. Magistrate Judge Evelyn J. Furse no longer assigned to case. Signed by Judge Clark Waddoups on 12/3/14. (jmr) (Entered: 12/04/2014)
242 MOTION for Extension of Time TO FILE MOTION FOR ATTORNEYS FEES AND COSTS Unopposed 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 Text of Proposed Order)(Tumlin, Karen) (Entered: 12/08/2014)
243 ORDER granting 242 Motion for Extension of Time. Plaintiffs shall have until February, 162015, to submit a Motion for Attorneys Fees and Costs.. Signed by Judge Clark Waddoups on 12/9/14. (jmr) (Entered: 12/09/2014)
244 MOTION for Extension of Time for Filing Attorneys' Fees and Costs Motion (UNOPPOSED) 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 Text of Proposed Order)(Tumlin, Karen) (Entered: 02/12/2015)
245 ORDER granting 244 Motion for Extension of Time to File Attorneys Fees and Costs Motion, and for good cause shown therein, it is ORDERED that the deadline is extended from February 16, 2015 to April 13, 2015. Signed by Judge Clark Waddoups on 2/12/15. (jmr) (Entered: 02/12/2015)
246 MOTION for Extension of Time to file Plaintiffs' Motion for Attorney Fees and Costs 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 Text of Proposed Order)(Tumlin, Karen) (Entered: 04/10/2015)
247 ORDER granting 246 Motion for Extension of Time to File Plaintiffs' Motion for Attorney Fees and Costs. Plaintiffs shall have until May 15, 2015, to submit Motion for Attorneys' Fees and Costs. Signed by Judge Clark Waddoups on 4/13/2015. (jds) (Entered: 04/13/2015)
248 NOTICE of Settlement of Attorney Fees and Costs Claim by Gary R. Herbert (Lott, Philip) (Entered: 04/28/2015)
249 NOTICE of Receipt of Payment of Attorneys Fees and Costs; and Request to Close Case by 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 re 248 Notice (Other)

Case: 2:11-cv-401 As of: 03/25/2017 01:29 PM MDT 49 of 49 (Attachments: # 1 Text of Proposed Order) (Tumlin, Karen) (Entered: 09/15/2015)