Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 1 of 31

TONY WEST (CA Bar #164151) Assistant Attorney General DAVID B. BARLOW (Bar #13117)

United States Attorney

DANIEL D. PRICE (Bar #2646) Assistant United States Attorney ARTHUR R. GOLDBERG (DC Bar #180661)* Assistant Director, Federal Programs Branch

JOSHUA WILKENFELD (NY Bar #4440681)*

VARU CHILAKAMARRI (NY Bar #4324299)*

Department of Justice

Federal Programs Branch

20 Massachusetts Ave., N.W.

Washington, DC 20001

Telephone: (202) 305-7920

Facsimile: (202) 616-8470

Email:

joshua.i.wilkenfeld@usdoj.gov

Attorneys for the United States.

*Applications for admission pro hac vice forthcoming

UNITED STATES DISTRICT COURT DISTRICT OF UTAH

The United States of America,
Plaintiff,
v.
The State of Utah; and Gary R. Herbert, Governor of the State of Utah, in his official capacity,
Defendants.

Case No. 2:11-CV-01072 SA COMPLAINT Honorable Samuel Alba

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Plaintiff, the United States of America, by its undersigned attorneys, brings this civil action for declaratory and injunctive relief, and alleges as follows:
INTRODUCTION 1. In this action, the Un ited States seeks to d eclare invalid and enj oin the enforcement of Sections 3, 10, and 11 of H.B. 497, and Utah Code Ann. § 76-10-2901 (as amended), because these provisions are preempted by federal law and therefore violate the Supremacy Clause of the United States Constitution. 2. In our constitutio nal system, the f ederal government has pre eminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considere d balance of national law enf orcement, foreign relations, and humanitarian interests. To best ef fectuate and balance thes e different interests, the Constitution entrusts the federal government with the exclusive authority to determine both “the character of [immigration] regulations” and “the manner of their exe cution.” Chy Lung v. Freeman, 92 U.S. 275, 280 (1876). 3. Congress has a ssigned to the United Stat es Department of Homeland Security, Department of Justice, and Department of State, along with ot her federal agencies, the task of enforcing and a dministering these immigration-related laws. In administering these l aws, the f ederal agencies balance t he complex – and often competing – objectives that animate federal immigration law and policy. Although states may exercise their police power in a manner that has an in cidental or indirect ef fect on
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aliens, a state may not establish its own immigration policy or e nforce state laws in a manner that interferes with the f ederal immigration laws. A state such as Utah that purports to systematically assist the f ederal government in the enf orcement of federal immigrations laws may do so onl y in cooperation with the f ederal government. The Constitution and the federal immigration laws do not per mit the development of a patchwork of state and local immigration policies throughout the country.
4. Despite the pree minent federal authority and res ponsibility over immigration, the State of Utah recently enacted H.B. 116, H.B. 466, H.B. 469 and H.B. 497 (collectively, “Utah Immigration Statutes”), immigration-related provisions that were designed to be “combined” so as to “ constitute . . . the Utah solution” for immigration reform. See Press Release, Governor Herbert Signs Immigration Reform Legislation (Mar. 15, 2011). In pursuing a “Utah solution” through the Utah I mmigration Statutes, the State of Utah has explicitly disregarded Congress’s policies and objectives in favor of its own.
5. Utah’s adoption of its own immigration policy disrupts the federal government’s ability both to administer a nd enforce the federal immigration laws including as set forth in the Immigration and Nationality Act (“I NA”), and to establish and pursue f ederal policies and prior ities pertaining to, inter alia, the identification, apprehension, detention and re moval of aliens unlawfully in the United S tates. By contributing to this state-specific immigration policy, the challenged provisions of H.B. 497 represent an atte mpt to regulate in an area constitutionally reserved to the f ederal
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government, forcing a conflict with the federal immigration laws and federal immigration policy, interfering with federal primacy in managing the nation’s foreign affairs and in balancing the competing objectives of immigration policy, and impeding the accomplishment and execution of the full purposes and objectives of Congress. Sections 3, 10, and 11 of H.B. 497 are therefore preempted.
6. Through its verification and warrantless arrest provisions, H.B. 497 sets its own enforcement priorities, rendering Utah state and local police unable to respond to federal direction and guidance in this area. Undoubtedly, state and local law enforcement agencies are invaluable partners in the enforcement of federal immigration law. But here, Utah has chosen to enforce federal immigration law i n a w ay that interferes with t he state’s ability to be re sponsive to the policies and prio rities of the federal government. The INA, reflecting federal primacy in immigration enforcement, precludes that choice.
7. Utah’s systematic state enforcement of federal immigration law may only be undertaken in cooperation with the Secretary of Homeland Security and the Attorney General – meaning that Utah must remain in a positi on to be fully responsive to the direction and guidance of the federal government and to federal priorities. But here, H.B. 497 precludes state and local of ficers in U tah from being able to respond t o federal priorities.
8. H.B. 497, if implemented, will therefore disrupt the enforcement of federal immigration law. The statute will additionally cause the detention and harassment of authorized visitors, immigrants, and U.S. citizens, thereby further undermining exclusive
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federal control over the conditions of residence f or lawfully admitted aliens and, potentially, a wide range of U.S. foreign affairs interests and commitments.
9. Utah is n ot the only state that ha s attempted to encroach upon the federal government’s exclusive authority to regulate immigration. When considered in the aggregate, the various conflicting state immigration enforcement schemes would result in further and signif icant damage to the United States’ ability to fairly and consistently enforce and administer the federal immigration laws and to exercise the discretion vested in the executive branch under federal law. S ome state law s seek to evade f ederal enforcement while others seek to force the f ederal government to increase enforcement efforts in certain state -selected areas. And some state laws have explicitly attempted to impact the removal process by so pervasively affecting the cond itions of an alie n’s residence in t he United States as t o force the alien to self -deport. This patchwork of inherently contradictory immigration regimes would result in the d ivergent treatment of aliens across the United States and interfere with the United States’ ability to speak with one voice in this highly sensitive area.
10. The United States has undertaken significant efforts to secure our nation’s borders and to provide a robust, f unctional admission and removal process. The federal government, moreover, welcomes cooperative efforts by states and localities to aid in the enforcement of the nation’s immigration laws. But the United States Constitution forbids Utah from supplanting the federal government’s immigration regime with its own state specific immigration policy – especially where that policy, in purpose and effect,
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interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws. Accordingly, Sections 3, 10, an d 11 of H.B. 497 are invalid under the Supremacy Clause of the United States Constitution and must be enjoined and declared unconstitutional.
JURISDICTION AND VENUE 11. This action arises und er the Constitutio n of the United S tates, Article VI, Clause 2 and Article I, Section 8, and the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1345, and the United States seeks remedies under 28 U.S.C. §§ 1651, 2201, and 2202. 12. Venue lies in the District of Utah pursuant to 28 U.S.C . § 1 391(b). Defendants are t he Governor of Utah, who resides in Utah, and the State of Utah. A substantial part of the events or omissions giving rise to this claim occurred in Utah.
PARTIES 13. The United Stat es of America is the plainti ff in this action, suing on its own behalf, as well as on behalf of the United States Department of Homeland Security (“DHS”), the Department of Justice (“DOJ”), and the Department of State. 14. DHS is an e xecutive department of the Un ited States. See 5 U.S.C. § 101; Homeland Security Act, P ub. L. No. 1 07-296, 116 S tat. 2135 (2002). DHS is responsible for the adm inistration and enforcement of laws relating to immigration, as well as the investigation of immigration crimes and protection of the United States border
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against the illegal entry of aliens. See 8 U.S.C. § 1103. As part of this responsi bility, DHS has been c harged by Congress with setting priorities for the identification and removal of certain classes of aliens. DHS Appropriations Act, 2010, Pub. L. No.111-83, Title II, 123 Stat. 2142, 2149 (2009). DHS is also responsible for providing citizenship and immigration services through U.S. Citizenship and Immigration Services, as well as providing certain aliens with authorization to work in the United States.
15. DOJ is an executive department of the United States. See Act to Establish the Department of Justice, ch. 150, 16 S tat. 162 (1870). The Attorney General, as the head of DOJ, shares certain i mmigration-related responsibilities with the Secretar y of Homeland Security, and he may, among his various immigration functions, order aliens removed from the United States and order the cancellation of any alien’s removal. See, e.g., 8 U.S.C. §§ 1103, 1158, 1182, 1227, 1229a, 1229b.
16. The Department of State is a n executive department of the Unit ed States. See State Department Basic Authorities Act of 1956, Pub. L. No. 84-885, as amended; 22 U.S.C. § 2651 et seq. The Department of State is part ially responsible for administering aspects of the federal immigration laws, including but not limited to the administration of visas.
17. Defendant, the State of Utah, is a state of the United States that entered the Union as the 45th State in 1896.
18. Defendant, Gary R. Herbert, is the Governor of Utah, and is being sued in his official capacity.
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STATEMENT OF THE CLAIM Federal Authority and Law Governing Immigration and Status of Aliens 19. The Supremacy Clause of the Constitu tion mandates that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supre me Law of the Land . . . an y Thing in the C onstitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. 20. The Constitution affords the federal government the power to “establish an uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Commerce with foreign Nations,” U.S. Const., art. I § 8, cl. 3. Further, th e federal government has broad authority to establish the terms and conditions for entry and continued presence in the United States, and to regulate the status of aliens within the boundaries of the United States. 21. The Constitution requires the President of the United S tates to “take Care that the Laws be faithfully executed.” U.S. Const., art. II § 3. Further, the President has broad authority over foreign affairs. Immigration law, policy, and enforcement priorities are affected by and have an impact on U.S. foreign policy, and are themselves the subject of diplomatic arrangements. 22. For these various reasons, the Supreme Court has held that the Constitution grants the federal government exclusive responsibility over the “determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” De Canas v. Bica, 424 U.S. 351, 355 (1976).
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23. Congress has ex ercised its authorit y to make laws governing i mmigration and the status of aliens within the United Stat es by enacting the various provisions of the INA and other laws regulating immigration. Through the I NA, Congress set forth the framework by which the federal government determines which aliens may be eligible to enter and reside in th e United States, which aliens may be removed from the United States, the consequences for unlawful presence, the penalties on persons who violate the procedures established for entry, other conditions of residence, and the process by which certain aliens may ultimately become naturalized citizens of the U nited States. See 8 U.S.C. § 1101, et seq.
Federal Law on Transporting and Harboring Aliens 24. Just as the INA vests exclusive author ity in the f ederal government to regulate alien entry, the INA and the Constitution also leave no room for state regulation on other issues connected to t he process of alien entry or admission and the conditions under which an alien is permitted to remain. The transportation and harboring of aliens is one such example of an area that, because of its close connection with the admission or entry of aliens, is exclusively subject to regulation by the federal government. 25. In a partial exercise of its exclusive authority over the entry and movement of aliens, Congress has criminalized the facilitation of unlawful immigration. In the INA, Congress has p rovided a detai led set of sanctions for those who unlawfully enter, 8 U.S.C. § 1325, and for any third parties who aid in their entry and stay, see 8 U.S.C. § 1323 (penalizing persons for unlawfully bringing aliens into t he United States); 8 U. S.C.
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§ 1324 (penalizing persons for bringing in or harboring certain aliens); 8 U.S.C. § 1327 (penalizing persons who assist certain inadmissible aliens to enter the country); 8 U.S.C. § 1328 (penalizing the importation of aliens for immoral purposes). Specifically, federal law prohibits the kno wing attempt to bring an alien into the United States “at a place other than a designated port of entry or place other than as designated by the [Secretary of Homeland Security],” 8 U.S .C. § 1324(a)(1)(A)(i), and imposes criminal penalties on a person who, “knowing or in r eckless disregard” of the f act that an alien has unlawfully entered or remained in the United States, attempts to “transport or move” the alien within the United States “in furtherance of such violation of law.” 8 U.S.C. § 1324(a)(1)(A)(ii). Although targeted at the third party, these criminal sanctions constitute another regulation of alien entry and movement, in that the y assign liability to a third part y who assists an alien in evading federal government’s admission and enforcement processes.
26. Federal law also provides a specific and limited role for states in this area, by authorizing states to make arrests for violations of the f ederal prohibitions on unlawfully bringing in and harboring aliens. 8 U.S.C. § 1324(c).
The INA Establishes a Procedure for the Identification, Apprehension, and Removal of Unlawfully Present Aliens, and Also Provides Opportunities for State
Assistance 27. Enforcement of the federal immigration laws relating to alien identification, apprehension, detention, and removal involves a diff erent set o f federal laws and considerations from the alien admission processes. Whereas states are w holly barred from involvement in alien ad mission, states do provide critical assistance in alien
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identification, apprehension, detention, and removal efforts. Bu t the Constitution bars states from taking actions that stand a s an o bstacle to acco mplishment of federal goals and objectives in enforcing the immigration laws.
28. Federal primacy in immigration enforcement is necessitated b y a variety of constitutional and statutory factors. First, because immigration law is exclusively federal in character, “the responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government.” Chy Lung v. Freeman, 92 U.S. 275, 280 (1876).
29. Federal primacy is also necessitated b y the tight interconnection between immigration enforcement and foreign relations. The S upreme Court has recognized tha t the treatment of foreign nationals – whether by the federal government or b y any individual state – will affect relations w ith other countries and thus the we lfare of the nation as a whole.
30. The INA also conf irms the i mperative of federal primacy in i mmigration enforcement by crafting immigration enforcement as “a f ield where f lexibility and t he adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program,” U.S. ex rel. Knauff v. Shau ghnessy, 338 U.S. 537, 543 (1950) (internal citations omitted). This flexibility is crucial because of resource constraints, the foreign policy implications of immigration enforcement, the humanitarian considerations underlying the INA, and the various opportunities for exercising discretion conferred by the INA on the a dministering agencies, among other factors. Because the approa ch of
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federal immigration law to immigration enforcement demands the consideration of a large number of case-specific factors, federal enforcement decisions necessarily require individualized scrutiny by federal enforcement officials. See Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement, titled “E xercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, De tention, and Removal of Aliens” (June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretionmemo.pdf. In turn, federal primacy over immigration enforcement is necessar y to guarantee that t he federal government is ab le to appl y these myriad factors both to individual enforcement decisions and overall enforcement policy.
31. Alien identification efforts – like all o ther aspects of federal immigration enforcement – therefore must proceed in a manner that can b e responsive to federal policies and priorities. As the Supreme Court has recognized, federal direction over the systems for immigration status verif ication is necessary so as t o prevent the alien population from being subjected to the type of state-specific systems of “repeated interception and i nterrogation by public officials” that have a tendency to undermine foreign relations. Hines v. Davidowitz, 312 U.S. 52, 66 (1941).
32. As part of its authorization to enforce the federal immigration laws, the INA establishes various procedures by which DHS and DOJ can identify unlawfully present aliens and other aliens who may be removable for, inter alia, working without
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proper federal authorization, committing certain serious crimes, or failing to maintain proper immigration status.
33. For example, the federal registration scheme plays a role in monitoring the entry and movement of aliens within the Un ited States. See 8 U.S.C. §§ 120 1, 13011306; see also 8 C.F.R. Part 264 (regulations regarding “Registration and Fingerprinting of Aliens in the United States”). This system collects information from certain aliens who remain in the United States for 30 days or more, and further requires aliens to report their change of address to DHS within ten days of such change. Id.
34. In most instances, an a lien gains lawful status in the United States through admission at the time of lawful entry into the United States. See 8 U.S.C. §§ 1101(a)(12)(A), 1225. Immigration status is verified whenever an alien ente rs the country. Federal immigration officers are further empowered to “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States” or to arrest any alien seen attempting to illegally enter the United States. 8 U.S.C. § 1357(a).
35. Alien verification also proceeds in conjunction with the federal employment authorization process. Whenever an alien a pplies for employment authorization, the federal government verifies the alien ’s immigration status. Immigration status may be verified in a vari ety of other situations, such as when aliens apply for public benef its at either t he state or federal level, or when anyone (alien or
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otherwise) applies for certain t ypes of employment (such as e mployment with certain government agencies or contractors).
36. Additionally, the federal government verifies the immigration status of many aliens who are booked into detention facilities for any length of time. Whenever a federal, state, or local detention facility where the Secure Communities program is activated submits an alien’s fingerprints to the Federal Bureau of Investigation (“FBI”), the FBI automatically routes the alien’s fingerprints to DHS so as to enable DHS to check that information against DHS immigration records. The results of this immigration records inquiry help determine whether an alien is lawf ully present; information that in turn helps determine whether to subject an alien to immigration enforcement proceedings (in addition to whatever criminal proceedings may result from the original st ate-law arrest) and whether to pursue removal of an alien subject to a final order of removal.
37. Thus, the f ederal government has established a multi-layered system for registering aliens, maintaining records of their residence and o btaining other germane information, and verifying their immigration status at selected opportunities during the time of their residency in or visitation to the United States.
38. State and local law enforcement play a valuable role in assisting the federal government with immigration enforcement in general and with alien identification efforts in particular. Federal law specifies various enforcement actions the states may take to assist the f ederal government’s enforcement efforts. See, e.g., 8 U .S.C. § 1103(a)(10) (authorizing DHS to empower state or local law enf orcement with i mmigration
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enforcement authority when an “actual or imminent mass influx of aliens . . . presents

urgent circumstances requiring an i mmediate Federal resp onse”); 8 U. S.C. § 1 252c

(authorizing state and local law enforcement to arrest aliens who are unlawfully present

in the United States and were previously removed after being convicted of a felony in the

United States); 8 U.S.C. 1324(c) (granting certain state and local law e nforcement

officers the authority to make arrests for violations of federal anti-transporting and

harboring laws).

39. The INA also c ontemplates a role f or states in the ident ification of

unlawfully present aliens. Various statut es invite the states t o assist the f ederal

government in facilitating the federal government’s immigration enforcement objectives.

In turn, DH S has est ablished numerous systems by which states can assist in the

identification of certain aliens, and has published guidance advising states on the types of

state activities that constitute cooperation with federal immigration enforcement efforts.

See DHS, Guidance on State and Local Governments’ Assistance in I mmigration

Enforcement and Related Matters

(Sept. 21, 20

11), available a t

http://www.dhs.gov/xlibrary/assets/guidance-state-local-assistance-immigration-

enforcement.pdf.

40. As a more general matter, the INA r ecognizes two avenues for the

“[p]erformance of immigration officer functions by State officers and e mployees.” 8

U.S.C. § 1357(g).

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41. First, a st ate or l ocality may “enter into a written agreement with” the Secretary of Homeland Security (“Secretary”) “pursuant to which an officer or employee of the S tate or s ubdivision, who is determined by the [Secretary] to be qualified to perform a function of an i mmigration officer in relati on to the investigation, apprehension, or detention of aliens in the United States . . . may carry out such function at the expense of the State or political sub division and to the extent consistent with State and local law .” 8 U. S.C. § 135 7(g)(1). The conditions for any such agree ment are detailed by the INA. See 8 U.S.C. § 1357(g)(1)-(9).
42. Second, even in the absence of an agreement, state and loc al law enforcement may “otherwise . . . cooperate with the [Secretary] in the identif ication, apprehension, detention, or removal of aliens not lawfully present in the United S tates.” 8 U.S.C. § 1357(g)(10)(B). This provision, undoubtedly, recognizes the prospect of state assistance in alie n identification efforts. But, i n keeping with the Constituti on’s expectation of federal primacy in this sensitive area, the plain ter ms of the INA require cooperation with the Secretary in these efforts.
43. This specific textual reference to cooperatio n with the federal government in alien identification efforts confirms the need for cooperation – i.e., acting in a manner that maintains the stat e’s ability to conform to the policies and pri orities of the federal government and to be responsive to federal direction and guidance. A state, for example, may pursue systematic alien identification efforts only if it remains in a position to be responsive to the dire ction and guidance of DHS at all tim es. A state does not act
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cooperatively if it attempts to interfere with this federal discretion, if it attempts to deny the federal government the opportunity to exercise this discretion, if it precludes responsiveness to f ederal direction, or if a state’s pursuit of its own, state-specific priorities interferes with th e federal government’s ability to provide guidance and direction on immigration enforcement.
44. Put otherwise, the opportunity that federal law provides for participation by state and local of ficials in immigration enforcement does not allow states to enact their own immigration policies to rival the natio nal immigration policy – whether on alien identification or any other a spect of the immigration enforcement process. The formulation of immigration policy and balancing of immigration priorities is a matter constitutionally and statutorily reserved for the federal government.
Federal Law on Arrest Authority 45. State efforts to arrest aliens for immigration offenses likewise implicate the need for cooperation. Beyond the general direction p rovided by DHS enforcement priorities, DHS provides some specific direction when it seeks to apprehend ce rtain aliens. Als o, the f ederal government may affirmatively release certain alien s from immigration custody or decide not to detain certain aliens in the first place, demonstrating that DHS does not immediately seek those aliens’ continued apprehension or d etention. For example, DHS issues criminal arrest warrants, which function as a request from DHS to apprehend the alien cited in the particular warrant. By contrast, an order of removal, by itself, does not constitute direction from DHS to arrest an alien. Nor has DHS
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generally requested that states arrest aliens who have been charg ed with aggravated felonies in ot her states. An alien subject to an order of removal may have been affirmatively released by DHS or may be eligible for certain f orms of relief in removal proceedings that will result in that alien’s release from custody.
Utah Immigration Statutes 46. On March 15, 2011, Governor Herbert signed into law H.B. 116, H.B. 466, H.B. 469 and H.B. 497, a series of statutes that “co mbine[]” to “constitute . . . the Utah solution” for immigration reform. See Press Release, Governor Herbert Signs Immigration Reform Legislation (Mar. 15, 2011). Th e legislative histories of these statutes indicate that they were considered as a package. 47. The legislative histo ry of these statutes makes clear that the Utah Immigration Statutes were not meant to bolster cooperation with the federal government, but were instead designed to position Utah in a primary role in establishing immigration law and policy. For example, Representative Litvak suggested that Utah should “tr y to be a lead in this country on how to address” immigration. Debate on H.B. 116 Before the Senate, Day 39 (2011). Similarly, Representative Ivory claimed that the package of Utah immigration statutes was designed to “r eclaim[] a right” over i mmigration control to counter the federal government’s “usurp[ation]” of immigration policy, and described the Utah immigration statutes as an ef fort to “push back against t he federal government and the tradition built up in the courts” regarding federal primacy in immigration enforcement. Debate on H.B. 469 Before the House, Day 38 (2011).
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48. This effort to wrest control over f ederal immigration law is manifest in the specific provisions of H.B. 497 that directly conflict with federal law.
Illegal Immigration Enforcement Act (H.B. 497) 49. Sections 3, 10, and 11 of H.B. 497 represent an atte mpt to wrest control from the federal government over immigration enforcement efforts, and thereby conflict with the INA by directing and supervising the identification, apprehension, and detention of unlawfully present aliens. 50. A statute that is ex plicitly (per its own t itle) designed to reg ulate “illegal immigration enforcement,” H.B. 497 presents a multi-layered scheme to unconstitutionally interfere with federal policy-making in immigration enforcement.
Mandatory Verification Scheme (Section 3) 51. First, the statute establishes a mandatory verification scheme that conflicts with the INA by systematically obstructing responsiveness to federal priorities, guidance, and direction. 52. Under H.B. 497, Utah law enf orcement officials are asked , during the course of every lawful stop, to look for identification that could establish a “presum[ption]” that “[a] person is . . . lawf ully present in the United States. Utah Code Ann. § 76-9-1004. If a presumption of lawful presence is not established, the statutory scheme proceeds to the next stage of verification. 53. This sweeping mandate attempts to systematically identify unlawfully present aliens without any effort to cooperate with the f ederal government as required by
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federal law, or to re main responsive to federal guidance. Every stop, detention, or a rrest is a potential opportunity for a Utah-directed immigration investigation. This type of unilateral immigration enforcement makes no eff ort to cooperate with the f ederal government and thus conflicts with federal law.
54. After the preliminary assessment of lawful presence, further inquiry under H.B. 497 is required if a stopped individua l is “arrested f or an alleged off ense that is a class A misdemeanor or a felony,” at which point an officer “shall request verification of the citizenship or th e immigration status of the person [from the federal govern ment] under 8 U.S.C. § 1 373(c).” Id. § 76-9-1003(1)(a)(i). Verification is also required if a “person is arres ted and booked f or a class B or C misdemeanor.” Id. § 76-91003(1)(a)(ii).
55. Verification of immigration status is further required wherever, during the course of a lawf ul stop, an “officer makes o bservations that give t he officer reasonable suspicion that the operator or any of the passengers in the [stopped] vehicle are violating” Utah’s criminal prohibitions on harboring or transporting unlawfully present aliens. Id. § 76-9-1003(2).
56. These various mandates constitute non-cooperation and therefore stand as an obstacle to the fulfillment of the goals and objectives of the INA. H.B. 497 de mands that Utah law enforcement officers engage in immigration enforcement in all situations where (i) a person is arrested for a class A misdemeanor, (ii) a person is arrested an d booked for a Class B or C m isdemeanor, or (iii) any person happens to be in a vehicle
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that gives rise to a suspicion of smuggling or the transportatio n of unlawfully present aliens. In these situations, then, the statute forecloses the prospect of responsiveness to DHS direction and guidance – including the possible direction not to systematically engage in immigration enforcement in any of these situations or to refrain from particular enforcement actions on a case -by-case basis. These sweeping mandates therefore represent non-cooperative state efforts to part icipate in the “identification . . . of aliens not lawfully present in the United S tates” (8 U.S.C. § 1357( g)(10)(B)), which are preempted because they stand as an obstacle to the objectives of federal law.
57. Beyond rejecting the prospect of federal direction, H.B. 497 also rejects the federal government’s stated immigration enforcement priorities by forcing DHS to conduct multiple verification inquiries based on a sing le arrest. At present, a n alien’s immigration status is often verified when that alien is arre sted and booked int o a Utah jail. B y mandating that the arrestin g officer verify immigration status, H.B. 497 will frequently result in redundant immigration status inquiries when an alien is arrested f or a felony or Class A misdemeanor and then subsequently booked or when an alien is booked in jail af ter a Utah pol ice officer decides to verif y immigration status as an exercise of discretion: An alie n’s status will be verif ied as a result of the arrest (per H.B. 497) and then could be verified again upon booking (whether per H.B. 497, per federal verification based on fingerprint submissions, or both). These redundant checks serve as an unnecessary burden on DHS res ources and will divert federal attention away from exigent circumstances, including high priority aliens who may otherwise be released.
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58. H.B. 497’s mandatory inspection scheme and attendant federal verification requirements will therefore impermissibly impair and burden the federal resources and activities of DHS. H.B. 497’s m andate for verification of alien st atus will necessaril y result in a substantial increase in the nu mber of verification requests being issue d to DHS – some of which will be wholl y redundant of requests already being issued to DHS and some of which will involve U.S. citizens – and will thereby place a burden on DHS resources.
59. The burden resulting from H.B. 497 is magnified by the prospect of all fifty states enacting similar regimes. Such a patchwork of immigration laws – of which H.B. 497 is now a part – broadly contributes to undermining DHS operations by imposing significant burdens on DHS resources. These types of state-imposed burdens on f ederal resources constitute a violation of the Supremacy Clause.
60. Section 3 of H.B. 497 thus conflicts with and otherwise stands as an obstacle to the full purposes and objectives of Congress, and its enforcement would further conflict with the enf orcement prerogatives and priorities of the f ederal government. Moreover, Section 3 does not promote any legitimate state interest.
Warrantless Arrest Authority (Section 11) 61. Beyond its mandatory verification scheme, H.B. 497 f urther disregards federal guidance and direction by systematically allowing its officers to cont radict and disregard federal apprehension and detention decisions.
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Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 23 of 31
62. Among other p rovisions, Section 11 of H.B. 497 amends Utah’s previously-existing warrantless arrest statute to allow for a warran tless arrest “when [a] peace officer has reasonable cause to believe that [a] person is an alien” who is “subject to a civil rem oval order issued b y an i mmigration judge” or “who has been charged or convicted in another state with one or more aggravated felonies as defined by 8 U.S.C. § 1101(a)(43).” Utah Code Ann. § 77 -7-2(5) (a) & (c) . Neither of these bases f or a warrantless arrest constitute affirmative direction from the f ederal government to arre st an alien; and, in fact, Section 11 allows Utah police to affirmatively contradict federal apprehension and detention decisions that have already been issued.
63. Utah has chosen t o participate systematically in the “a pprehension [and] detention” of unlawfully present aliens. Pursuant to 8 U.S.C. § 1 357(g)(10), however, Utah is only authorized to engage in such efforts if it acts in cooperation with the federal government. But rather than pro moting cooperation, Section 11’s grant of warrantless arrest authority undermines federal apprehension decisions. Section 11 a uthorizes the warrantless arrest of an alien who is subject to an order of removal. However, the f act that an alien may have been issued such an order does not necessarily mean that the alien is subject to arrest and d etention. DHS do es not detain all aliens who are placed in removal proceedings or are otherwise ordered removed. DHS may decide not to detain an alien for various reasons, including that the alien has been granted relief from removal, that removal is not immediately possible, that the alien is pursuing f urther legal proceedings, or that legal restrictions preclude continued detention. Similarly, Section 11
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Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 24 of 31
authorizes the warrantless arrest of an alie n who has be en charged or convicte d of an aggravated felony in a nother state. But, again, not all s uch aliens would be subject to arrest and det ention by federal immigration officials, and yet these aliens wo uld be subject to arrest under Section 11. Accordingly, Section 11 authorizes the arrest of aliens whom the federal government – per its superior authority in immigration enforcement – may have affirmatively decided should not or cannot be held in custody. For that reason, Section 11 interf eres with and undermines federal law, including the f ederal government’s enforcement prerogatives, and will nece ssarily impose burdens on l awful aliens in a manner t hat conflicts with the purposes and pract ices of the federal immigration laws. The statute therefore stands as an obstacle to the accomplishment and execution of the full purposes of federal law.
64. Additionally, as a result of these same infirmities, Section 11 authorizes the harassment and repeated interception and interrogation of lawfully present aliens – aliens whom the federal government is not s eeking to detain and arre st, but are subjected t o repeated re-arrests by Utah officials as a result of H.B. 497 – and thereby relatedly risks the type of “international controversies” that the Supreme Court has held “may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.” Hines v. Davidowitz, 312 U.S. 52, 6 4 (1941). For that reason, Section 11 interferes with the federal government’s enforcement prerogatives and control of foreign policy and will necessarily impose burdens on lawful aliens in a manner that conflicts with the purposes and practices of the federal immigration laws.
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Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 25 of 31
65. Similarly, Section 11 requires local pol ice to determine what o ut-of-state crimes constitute aggravated felonies – an extremely complex determination of federal law – and thereby will necessarily result in the harassment of lawfully present aliens. See Padilla v. Kentucky, 130 S. Ct. 1473, 1488 (2010) (Alito, J., concurring). Almost by definition, Section 1 1 is triggered b y non-Utah crimes (with which Utah poli ce are unlikely to be f amiliar), and wi ll demand an instantaneous judgment on an issue of federal law – whether the given out -of-state crime constitutes an a ggravated felony for immigration purposes. These types of determinations are the subject of intense training for federal officers and lie squarely outside of the general expertise of Utah police. Accordingly, Section 11 will necessaril y result in erroneous concl usions on whethe r an alien may be subject to removal proceedings for commission of an aggravated felony, and therefore will result in the harassment of lawfully present aliens.
Transportation or Harboring Aliens (Section 10) 66. Section 10 of H.B. 497 amends a previous statute, Utah C ode Ann. § 76-10-2901, which criminalizes certain conduct relating to th e transportation and harboring of unlawfully present aliens. This provision prohibits a third party from transporting an alien into or within the st ate for commercial advantage or priva te financial gain, in f urtherance of, and in k nowing or re ckless disregard of, the alien’s unlawful presence. Id. § 76-10-2901(2)(a). This statute a lso prohibits the knowing concealment, harboring, or sheltering of an alien for commercial advantage or p rivate financial gain. Id. § 76-10-2901(2)(b).
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Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 26 of 31

67. H.B. 497 amends Section 76-10-2901 by further prohibiting anyone from

“encourag[ing] or induc[ing] an alien to come to, enter, or reside in this state, knowing or

in reckless disregard of the fact that the alien’s coming to, entry, or residence is or will be

in violation of law.” Id. § 76-10-2901(2)(c). H.B . 497 also makes “conspiracy” to

commit any of the prohibited of fenses an independent c riminal offense. Id. § 76-10-

2901(2)(d). In a ddition, H.B. 1 16 excludes from section § 7 6-10-2901’s definition of

“alien,” an unlawfully present alien who obtains a “guest worker” or “immediate family”

permit under Utah’s new Gue st Worker Program.

See id.

§ 76-10-2901(2)(b) (cross-referencing Utah Code § 63G -12-102). Similarly, Section

76-10-2901 has been amended to exclu de sponsors or aliens pa rticipating in Utah’ s

“Resident Immigrant Program” created by H.B. 469, so that such individuals’

participation in the program will “not constitute encouraging or inducing an alien to come

to, enter, or reside in this state in violation of

Subsection (2)(c).” Id.

§ 76-10-2901(2)(b)(6).

68. State statutes purporting to regulate third parties who tra nsport or harbor

aliens – such as Utah Code Ann. § 76-10-2901 – are preempted by Congress’s regulation

of this issue. Congress has exercised its exclusive authority in this area by

comprehensively regulating the transportation, harboring, and concealment of aliens. See

8 U.S.C. § 1324. T his scheme arises from the f ederal government’s undisputedly

exclusive control over the terms and conditions of entry and consequences for unlawful

entry – an area of regulation which includes sanctions on third parties who aid in entry or

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Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 27 of 31
unlawful presence. Because the f ederal scheme for regulating th e transportation and harboring of aliens forms an integral part of Congress’s scheme for regulating alien entry, a state may not supplement the federal scheme. Section 76-10-2901 regulates in an area that is reserved to the federal government and has been comprehensively regulated by the federal government. Additionally, the statute conflicts with federal law. Whereas federal law allows states, in certain circumstances, to make arrests for smuggling, H.B. 497 claims for Utah the authority to both arrest and prosecute smugglers and thereby conflicts with federal law. See 8 U.S.C. § 13 24(c). For all the se various reasons, Section 10 of H.B. 497 is therefore preempted.
69. Additionally, because the purpose of Section 76-10-2901 is to deter and prevent the movement of certain aliens i nto Utah, the law restricts interstate commerce. Enforcement and operation of this state law provision would therefore conflict and interfere with the f ederal government’s management of interstate commerce, and would thereby violate Article I, Section 8 of the United States Constitution.
70. By reason of the f oregoing, defendants’ actions have caused and will continue to cause substantial and irreparable harm to the United States for which plaintiff has no adequate remedy except by this action.
FIRST CAUSE OF ACTION – VIOLATION OF THE SUPREMACY CLAUSE 71. Plaintiff incorporates paragraphs 1 thro ugh 70 of the Complaint as if fully
stated herein.
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Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 28 of 31
72. Sections 3, 10, and 11 of H.B. 497 and Utah Code Ann. section 76-10-2901 (as amended by H.B. 497) represent an impermissible effort by Utah to establish its o wn immigration policy and to directly regulate the immigration status of aliens. In particular, Sections 3, 10, and 11 of H.B. 497 and Utah Code Ann. section 76-10-2901 (as amended by H.B. 497) conflict with f ederal law, d emand immigration enforcement without cooperation with the federal government, disregard federal policies, interfere with federal enforcement priorities and foreign affairs interests in areas committed to the discretion of plaintiff United States, and other wise impede the acco mplishment and execution of the full purposes and objectives of federal law.
73. Sections 3, 10, and 11 of H.B. 497 and Utah Code Ann. section 76-10-2901 (as amended by H.B. 497) thus violate the Supremacy Clause, and are invalid.
SECOND CAUSE OF ACTION – PREEMPTION UNDER FEDERAL LAW 74. Plaintiff incorporates paragraphs 1 thro ugh 74 of the Complaint as if fully
stated herein. 75. Sections 3, 10, and 11 of H.B. 497 and Utah Code Ann. section 76-10-2901
(as amended by H.B. 497) are preempted by federal law, includ ing 8 U.S.C. § 1101, et seq.
THIRD CAUSE OF ACTION – VIOLATION OF THE COMMERCE CLAUSE 76. Plaintiff incorporates paragraphs 1 through 75 of the Complaint as if fully
stated herein.
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Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 29 of 31 77. Utah Code Ann. section 76-10-2901 (as amended by H.B. 497) restricts the interstate movement of aliens in a manner that is prohibited by Article One, Section Eight of the Constitution. 78. Section 76-10-2901 (as amended by H.B. 497) violates the Commerce Clause, and is therefore invalid.
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Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 30 of 31

PRAYER FOR RELIEF WHEREFORE, the United States respectfully requests the following relief: 1. A declarat ory judgment stating that Sections 3, 10, a nd 11 of H.B. 497 and Utah Code Ann. section 76-10-2901 (as amended by H.B. 497) are invalid, null, and void; 2. A perm anent injunction against the S tate of Utah, and its o fficers, agents, and employees, prohibiting the enforcement of Sections 3, 10, and 11 of H.B. 497 and Utah Code Ann. section 76-10-2901 (as amended by H.B. 497); 3. A preliminary injunction against the State of Utah, and its officers, agents, and employees, prohibiting the enforcement of Sections 3, 10, and 11 of H.B. 497 and Utah Code Ann. section 76-10-2901 (as amended by H.B. 497); 4. That this Court award the United States its costs in this action; and 5. That this Court award any other relief it deems just and proper.

DATED: November 22, 2011

Respectfully submitted,
TONY WEST (CA Bar #164151) Assistant Attorney General
DAVID B. BARLOW (Bar #13117) United States Attorney
s/ Daniel D. Price DANIEL D. PRICE (Bar #2646) Assistant United States Attorney
ARTHUR R. GOLDBERG (DC Bar #180661) Assistant Director, Federal Programs Branch
JOSHUA WILKENFELD (NY Bar #4440681) VARU CHILAKAMARRI (NY Bar #4324299) United States Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Avenue NW

30

Case 2:11-cv-01072-SA Document 2 Filed 11/22/11 Page 31 of 31 Washington, DC 20530 (202) 305-7920 (202) 616-8470 (fax) Joshua.I.Wilkenfeld@usdoj.gov Attorneys for the United States
31

 
 Case 2:11-cv-01072-CW Document 11 Filed 11/28/11 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF UTAH

UTAH COALITION OF LA RAZA, et al., Plaintiffs, v. GARY R. HERBERT, GOVERNOR OF THE STATE OF UTAH, et al., Defendants.

Case No. 2:11-cv-00401-CW Case No. 2:11-cv-01072-SA ORDER
Honorable Clark Waddoups

Plaintiff, the United States of America, has filed an unopposed motion to transfer the case United States of America v. State of Utah, et al., No. 2:11-cv-01072-SA (“United States”). The United States also has moved for the court to amend the current briefing and hearing schedule, to which the State of Utah has responded with counter dates. For good cause appearing,
IT IS ORDERED that the United States case shall be transfe rred to the undersigned for all further proceedings and consolidated with Case No. 2:11-cv-401.
IT IS FURTHER ORDERED that:
• The United States shall file its m otion for a prelim inary injunction and supporting memorandum of law on or before December 15, 2011.
• Defendants shall file their opposition to the United States’ m otion on or before January 17, 2012.

Case 2:11-cv-01072-CW Document 11 Filed 11/28/11 Page 2 of 2

• The United States shall file its reply in support of its motion for a prelim inary injunction on or before January 31, 2012.
• Oral argument shall be conducted in the co nsolidated cases on February 17, 2012 at 8:30 a.m. for La Raza plaintiffs’ motion for prelim inary injunction and the United States’ motion for a preliminary injunction.
DATED this 28th day of November, 2011.
BY THE COURT:

Clark United

______________________________ Waddoups States District Judge

 
 Case: 2:11-cv-01072-CW As of: 06/21/2012 12:28 PM MDT 1 of 3
NO_DOCKETING,CLOSED,OPEN_MJ
Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:11−cv−01072−CW

USA v. State of Utah et al Assigned to: Judge Clark Waddoups Lead case: 2:11−cv−00401−CW Member case: (View Member Case) Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 11/22/2011 Date Terminated: 11/28/2011 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: U.S. Government 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

Arthur R. Goldberg US DEPARTMENT OF JUSTICE (CIVIL − 20 MASS) CIVIL DIVISION 20 MASSACHUSETTS AVE NW WASHINGTON, DC 20530 (202)514−4783 Email: arthur.goldberg@usdoj.gov 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 Email: joshua.i.wilkenfeld@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

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

V. Defendant State of Utah
Defendant

Case: 2:11-cv-01072-CW As of: 06/21/2012 12:28 PM MDT 2 of 3
Gary R. Herbert Governor of the State of Utah, in his official capacity

Date Filed 11/22/2011
11/22/2011 11/22/2011 11/22/2011 11/23/2011 11/23/2011 11/23/2011 11/23/2011
11/23/2011
11/28/2011
11/28/2011

# Docket Text
1 Case has been indexed and assigned to Magistrate Judge Samuel Alba. Plaintiff USA is directed to E−File the Complaint and cover sheet (found under Complaints and Other Initiating Documents) by the end of the business day. Filing Fee waived (USA) 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. (jds) (Entered: 11/22/2011)
2 COMPLAINT against Gary R. Herbert, State of Utah No Filing Fee, filed by USA. (Attachments: # 1 Civil Cover Sheet) Assigned to Magistrate Judge Samuel Alba (Price, Daniel) (Entered: 11/22/2011)
3 NOTICE OF REQUIREMENTS for appearance phv mailed to attorney Arthur R. Goldberg, Joshus Wilkenfeld, Varu Chilakamarri, for Plaintiff USA (jds) (Entered: 11/22/2011)
4 NOTICE OF FILING of Motion filed by Plaintiff USA. (Attachments: # 1 Exhibit 1 − Motion to Transfer)(Price, Daniel) (Entered: 11/22/2011)
5 MOTION for Admission Pro Hac Vice of Joshua Wilkenfeld (no registration fee required) filed by Plaintiff USA. (Attachments: # 1 Exhibit A − Application for Admission, # 2 Exhibit B − ECF Registration Form, # 3 Text of Proposed Order)(Price, Daniel) (Entered: 11/23/2011)
6 MOTION for Admission Pro Hac Vice of Varu Chilakamarri (no registration fee required) filed by Plaintiff USA. (Attachments: # 1 Exhibit A − Application for Admission, # 2 Exhibit B − ECF Registration Form, # 3 Text of Proposed Order)(Price, Daniel) (Entered: 11/23/2011)
7 MOTION for Admission Pro Hac Vice of Arthur R. Goldberg (no registration fee required) filed by Plaintiff USA. (Attachments: # 1 Exhibit A − Application for Admission, # 2 Exhibit B − ECF Registration Form, # 3 Text of Proposed Order)(Price, Daniel) (Entered: 11/23/2011)
8 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Gary R. Herbert. 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. (jds) (Entered: 11/23/2011)
9 **RESTRICTED DOCUMENT**Summons Issued Electronically as to State of Utah. 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. (jds) (Entered: 11/23/2011)
10 ORDER granting 5 6 and 7 Motion for Admission Pro Hac Vice of Arthur R. Goldberg,Varu Chilakamarri,Joshua Wilkenfeld 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 Magistrate Judge Samuel Alba on 11/28/11. (alp) (Entered: 11/28/2011)
11 ORDER−IT IS ORDERED that the United States case shall be transferred to the undersigned for all further proceedings and consolidated with Case No. 2:11−cv−401. Signed by Judge Clark Waddoups on 11/28/11. (jmr) (Entered: 11/28/2011)

Case: 2:11-cv-01072-CW As of: 06/21/2012 12:28 PM MDT 3 of 3

11/28/2011

Judge Clark Waddoups added. Magistrate Judge Samuel Alba no longer assigned to case. (jmr) (Entered: 11/28/2011)