First Substitute H.B. 497

This document includes House Floor Amendments incorporated into the bill on Fri, Mar 4, 2011 at 2:13 PM by lerror. -->

Representative Stephen E. Sandstrom proposes the following substitute bill:

1 UTAH ILLEGAL IMMIGRATION ENFORCEMENT ACT
2 2011 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Stephen E. Sandstrom
5 Senate Sponsor: Margaret Dayton
6 Cosponsors:
7 Roger E. Barrus
8 Derek E. Brown
9 Melvin R. Brown
10 David G. Butterfield
11 David Clark
12 Brad L. Dee
13 Susan Duckworth
14 Julie Fisher
15 Gage Froerer
16 Brad J. Galvez
17 Francis D. Gibson
18 Richard A. GreenwoodKeith Grover
Stephen G. Handy
Neal B. Hendrickson
Christopher N. Herrod
Gregory H. Hughes
Don L. Ipson
Bradley G. Last
John G. Mathis
Michael T. Morley
Merlynn T. Newbold
Jim Nielson
Michael E. Noel
Curtis OdaPatrick Painter
Lee B. Perry
Val L. Peterson
Dixon M. Pitcher
Kraig Powell
Paul Ray
Holly J. Richardson
Douglas Sagers
Kenneth W. Sumsion
Evan J. Vickers
Ryan D. Wilcox
Brad R. Wilson
Carl Wimmer 19
20 LONG TITLE
21 General Description:
22 This bill modifies state law and enacts the "Illegal Immigration Enforcement Act."
23 Highlighted Provisions:
24 This bill:
25 . requires that an officer verify the immigration status of a person arrested for a
26 felony or a class A misdemeanor and a person booked for class B or C
27 misdemeanors and requires that an officer attempt to verify immigration status for a
28 person detained for a class B or C misdemeanor;
29 . provides enforcement exceptions regarding an officer's verifying immigration

30 status;
31 . clarifies when passengers in a vehicle where the operator has been detained may
32 also be questioned and their immigration status verified;
33 . requires that a law enforcement officer may not consider race, color, or national
34 origin, except as permitted by Utah and United States constitutions;
35 . states grounds for a presumption of a person's lawful presence in the United States;
36 . provides for transportation of an illegal alien to federal custody by a state or local
37 law enforcement officer;
38 . provides that a state or local agency may not limit by ordinance, regulation, or
39 policy the authority of any law enforcement or other governmental agency to assist
40 the federal government in the enforcement of any federal immigration law,
41 including the federal requirement to register as an alien or possess an alien
42 registration document;
43 . provides that any state or local governmental agency is not restricted in sending,
44 receiving, or maintaining immigration status information of any person in carrying
45 out the agency's lawful purposes;
46 . requires verification of immigration status regarding application for public services
47 or benefits provided by a state or local governmental agency or subcontractor,
48 except as exempted by federal law;
49 . provides that this bill does not implement or authorize the federal REAL ID Act to
50 any extent not currently provided by state law;
51 . amends the current state law prohibiting transporting or harboring illegal aliens by
52 removing the limitation to transportation of the alien for a distance greater than 100
53 miles;
54 . prohibits the encouraging or inducing of an illegal alien to come to or reside in
55 Utah; and
56 . amends peace officer arrest authority to include making an arrest when the officer
57 has reasonable cause to believe the person is an alien:
58 . subject to an immigration removal order; and
59 . regarding whom a detainer warrant has been issued who has committed or been
60 charged with a felony in another state.

61 Money Appropriated in this Bill:
62 None
63 Other Special Clauses:
64 This bill coordinates with S.B. 288, Utah Immigration Enforcement Amendments, by
65 providing substantive amendments.
66 Utah Code Sections Affected:
67 AMENDS:
68 76-10-2901, as enacted by Laws of Utah 2008, Chapter 26
69 77-7-2, as last amended by Laws of Utah 2008, Chapter 293
70 ENACTS:
71 76-9-1001, Utah Code Annotated 1953
72 76-9-1002, Utah Code Annotated 1953
73 76-9-1003, Utah Code Annotated 1953
74 76-9-1004, Utah Code Annotated 1953
75 76-9-1005, Utah Code Annotated 1953
76 76-9-1006, Utah Code Annotated 1953
77 76-9-1007, Utah Code Annotated 1953
78 76-9-1008, Utah Code Annotated 1953
79 76-9-1009, Utah Code Annotated 1953
80 Utah Code Sections Affected by Coordination Clause:
81 76-9-1001, Utah Code Annotated 1953
82 76-9-1002, Utah Code Annotated 1953
83 76-9-1003, Utah Code Annotated 1953
84 76-9-1004, Utah Code Annotated 1953
85 76-9-1005, Utah Code Annotated 1953
86 76-10-2901, as enacted by Laws of Utah 2008, Chapter 26
87 77-7-2, as last amended by Laws of Utah 2008, Chapter 293
88
89 Be it enacted by the Legislature of the state of Utah:
90 Section 1. Section 76-9-1001 is enacted to read:
91 Part 10. The Illegal Immigration Enforcement Act

92 76-9-1001. Title.
93 This part is known as "The Illegal Immigration Enforcement Act."
94 Section 2. Section 76-9-1002 is enacted to read:
95 76-9-1002. Definitions.
96 As used in this part:
97 (1) "Alien" means a person who is not a citizen or national of the United States.
98 (2) "ICE" means the federal Immigration and Customs Enforcement agency of the
99 United States Department of Homeland Security.
100 (3) "Law enforcement officer" has the same meaning as in Section 53-13-103 .
101 (4) "SAVE program" means the federal Systematic Alien Verification for Entitlements
102 program operated by the federal Department of Homeland Security.
103 (5) "State or local governmental agency" includes any private contractor or vendor that
104 contracts with the agency to provide the agency's functions or services.
105 (6) "Verify immigration status" or "verification of immigration status" means the
106 determination of a person's immigration status by:
107 (a) a law enforcement officer who is authorized by a federal agency to determine an
108 alien's immigration status; or
109 (b) the United States Department of Homeland Security, ICE, or other federal agency
110 authorized to provide immigration status as provided by 8 U.S.C. Sec. 1373(c).
111 Section 3. Section 76-9-1003 is enacted to read:
112 76-9-1003. Detention or arrest -- Determination of immigration status.
113 (1) (a) Except as provided in Subsection (1)(b), (c), or (d), any law enforcement officer
114 who, acting in the enforcement of any state law or local ordinance, conducts any lawful stop,
115 detention, or arrest of a person as specified in Subsection (1)(a)(i) or (ii), and the person is
116 unable to provide to the law enforcement officer a document listed in Subsection 76-9-1004 (1)
117 and the officer is otherwise unable to verify the identity of the person, the officer:
118 (i) shall request verification of the citizenship or the immigration status of the person
119 under 8 U.S.C. Sec. 1373(c), except as allowed under Subsection (1)(b), (c), or (d), if the
120 person is arrested for an alleged offense that is a class A misdemeanor or a felony; and
121 (ii) may attempt to verify the immigration status of the person, except as exempted
122 under Subsection (1)(b), (c), or (d), if the alleged offense is a class B or C misdemeanor, except

123 that if the person is arrested and booked for a class B or C misdemeanor, the arresting law
124 enforcement officer or the law enforcement agency booking the person shall attempt to verify
125 the immigration status of the person.
126 (b) In individual cases, the law enforcement officer may forego the verification of
127 immigration status under Subsection (1)(a) if the determination could hinder or obstruct a
128 criminal investigation.
129 (c) Subsection (1)(a) does not apply to a law enforcement officer who is acting as a
130 school resource officer for any elementary or secondary school.
131 (d) Subsection (1)(a) does not apply to a county or municipality when it has only one
132 law enforcement officer on duty and response support from another law enforcement agency is
133 not available.
134 (2) When a law enforcement officer makes a lawful stop, detention, or arrest under
135 Subsection (1) of the operator of a vehicle, and while investigating or processing the primary
136 offense, the officer makes observations that give the officer reasonable suspicion that the
137 operator or any of the passengers in the vehicle are violating Section 76-5-309 , 76-5-310 , or
138 76-10-2901 , which concern smuggling and transporting illegal aliens, the officer shall, to the
139 extent possible within a reasonable period of time:
140 (a) detain the occupants of the vehicle to investigate the suspected violations; and
141 (b) inquire regarding the immigration status of the occupants of the vehicle.
142 (3) When a person under Subsection (1) is arrested or booked into a jail, juvenile
143 detention facility, or correctional facility, the arresting officer or the booking officer shall
144 ensure that a request for verification of immigration status of the arrested or booked person is
145 submitted as promptly as is reasonably possible.
146 (4) The law enforcement agency that has custody of a person verified to be an illegal
147 alien shall request that the United States Department of Homeland Security issue a detainer
148 requesting transfer of the illegal alien into federal custody.
149 (5) A law enforcement officer may not consider race, color, or national origin in
150 implementing this section, except to the extent permitted by the constitutions of the United
151 States and this state.
152 Section 4. Section 76-9-1004 is enacted to read:
153 76-9-1004. Grounds for presumption of lawful presence in United States --

154 Statement to officer.
155 (1) A person is presumed to be lawfully present in the United States for the purposes of
156 this part if the person provides one of the following documents to the law enforcement officer,
157 unless the law enforcement officer has a reasonable suspicion that the document is false or
158 identifies a person other than the person providing the document:
159 (a) a valid Utah driver license issued on or after January 1, 2010;
160 (b) a valid Utah identification card issued under Section 53-3-804 and issued on or
161 after January 1, 2010;
162 (c) a valid tribal enrollment card or other valid form of tribal membership identification
163 that includes photo identification; or
164 (d) a valid identification document that:
165 (i) includes a photo or biometric identifier of the holder of the document; and
166 (ii) is issued by a federal, state, or local governmental agency that requires proof or
167 verification of legal presence in the United States as a condition of issuance of the document.
168 (2) A person is presumed to be a citizen or national of the United States for purposes of
169 this part if the person makes a statement or affirmation to the law enforcement officer that the
170 person is a United States citizen or national, unless the officer has a reasonable suspicion that
171 the statement or affirmation is false.
172 Section 5. Section 76-9-1005 is enacted to read:
173 76-9-1005. Illegal alien -- Notification of federal government -- Transportation to
174 federal facility.
175 A state or local law enforcement agency may securely transport an alien who is in the
176 agency's custody and whom the agency has verified is unlawfully present in the United States
177 to a federal detention facility in this state or, with the concurrence of the receiving federal
178 agency, to a federal facility or other point of transfer to federal custody that is outside this state.
179 Section 6. Section 76-9-1006 is enacted to read:
180 76-9-1006. Enforcement of federal immigration laws.
181 A state or local governmental agency of this state, or any representative of the agency,
182 may not:
183 (1) limit or restrict by ordinance, regulation, or policy the authority of any law
184 enforcement agency or other governmental agency to assist the federal government in the

185 enforcement of any federal law or regulation governing immigration; or
186 (2) limit or restrict by ordinance, regulation, or policy the authority of any law
187 enforcement agency to investigate or enforce any violation of the federal misdemeanor offenses
188 of willful failure to register as an alien or willful failure to personally possess an alien
189 registration document as required by 8 U.S.C. Sec. 1304(e) or 1306(a).
190 Section 7. Section 76-9-1007 is enacted to read:
191 76-9-1007. Determining an alien's immigration status -- Transfer or maintenance
192 of information.
193 (1) Except as limited by federal law, any state or local governmental agency is not
194 restricted or prohibited in any way from sending, receiving, or maintaining information related
195 to the lawful or unlawful immigration status of any person by communicating with any federal,
196 state, or local governmental entity for any lawful purpose, including:
197 (a) determining a person's eligibility for any public benefit, service, or license provided
198 by any federal agency, by this state, or by any political subdivision of this state;
199 (b) confirming a person's claim of residence or domicile if determination is required by
200 state law or a judicial order issued pursuant to a civil or criminal proceeding in this state;
201 (c) if the person is an alien, determining if the person is in compliance with the federal
202 registration laws of Title II, Part 7, Immigration and Nationality Act; or
203 (d) a valid request for verification of the citizenship or immigration status of any
204 person pursuant to 8 U.S.C. Sec. 1373.
205 (2) This section does not implement, authorize, or establish the federal REAL ID Act
206 of 2005, P.L. 109-13, Division B; 119 Stat. 302, except as provided by Section 53-3-104.5 ,
207 regarding limitations on the state implementation of the federal REAL ID Act.
208 Section 8. Section 76-9-1008 is enacted to read:
209 76-9-1008. Proof of immigration status to receive public benefits.
210 (1) (a) An agency that provides state or local public benefits as defined in 8 U.S.C. Sec.
211 1621 shall comply with Section 63G-11-104 and shall also comply with this section, except:
212 (i) as provided in Subsections 63G-11-104 (4)(g) or (k); or
213 (ii) when compliance is exempted by federal law or when compliance could reasonably
214 be expected to be grounds for the federal government to withhold federal Medicaid funding.
215 (b) The agency shall verify a person's lawful presence in the United States by requiring

216 that the applicant under this section sign a certificate under penalty of perjury, stating that the
217 applicant:
218 (i) is a United States citizen; or
219 (ii) is a qualified alien as defined by 8 U.S.C. Sec. 1641.
220 (c) The certificate under Subsection (1)(b) shall include a statement advising the signer
221 that providing false information subjects the signer to penalties for perjury.
222 (d) The signature under this Subsection (1) may be executed in person or
223 electronically.
224 (e) When an applicant who is a qualified alien has executed the certificate under this
225 section, the applicant's eligibility for benefits shall be verified by the agency through the federal
226 SAVE program or an equivalent program designated by the United States Department of
227 Homeland Security.
228 (2) Any person who knowingly and willfully makes a false, fictitious, or fraudulent
229 statement of representation in a certificate executed under this section is guilty of public
230 assistance fraud under Section 76-8-1205 .
231 (3) If the certificate constitutes a false claim of United States citizenship under 18
232 U.S.C. Sec. 911, the agency requiring the certificate shall file a complaint with the United
233 States Attorney for the applicable federal judicial district based upon the venue in which the
234 certificate was executed.
235 (4) Agencies may, with the concurrence of the Utah Attorney General, adopt variations
236 to the requirements of the provisions of this section that provide for adjudication of unique
237 individual circumstances where the verification procedures in this section would impose
238 unusual hardship on a legal resident of this state.
239 (5) If an agency under Subsection (1) receives verification that a person making an
240 application for any benefit, service, or license is not a qualified alien, the agency shall provide
241 the information to the local law enforcement agency H. for enforcement
241a of Section 76-8-1205 .H unless prohibited by federal mandate.
242 Section 9. Section 76-9-1009 is enacted to read:
243 76-9-1009. Implementation to be consistent with federal law and civil rights.
244 All state and local agencies shall implement this part in a manner that is consistent with
245 federal laws that regulate immigration, protect the civil rights of all persons, and establish the
246 privileges and immunities of United States citizens.

247 Section 10. Section 76-10-2901 is amended to read:
248 76-10-2901. Transporting or harboring aliens -- Definition -- Penalties.
249 (1) [For purposes of] As used in this part, "alien" means an individual who is illegally
250 present in the United States.
251 (2) It is unlawful for a person to:
252 (a) transport, move, or attempt to transport into this state [or for a distance of greater
253 than 100 miles] or within the state an alien for commercial advantage or private financial gain,
254 knowing or in reckless disregard of the fact that the alien is in the United States in violation of
255 federal law, in furtherance of the illegal presence of the alien in the United States; [or]
256 (b) knowingly, with the intent to violate federal immigration law, conceal, harbor, or
257 shelter from detection an alien in a place within this state, including a building or means of
258 transportation for commercial advantage or private financial gain, knowing or in reckless
259 disregard of the fact that the alien is in the United States in violation of federal law[.];
260 (c) encourage or induce an alien to come to, enter, or reside in this state, knowing or in
261 reckless disregard of the fact that the alien's coming to, entry, or residence is or will be in
262 violation of law; or
263 (d) engage in any conspiracy, for commercial advantage or private financial gain, to
264 commit any of the offenses listed in this Subsection (2).
265 (3) (a) A person who violates Subsection (2)(a), (c), or (d) is guilty of a third degree
266 felony.
267 (b) A person who violates Subsection (2)(b) is guilty of a class A misdemeanor.
268 (4) Nothing in this part prohibits or restricts the provision of:
269 (a) a state or local public benefit described in 8 U.S.C., [Section] Sec. 1621(b); or
270 (b) charitable or humanitarian assistance, including medical care, housing, counseling,
271 food, victim assistance, religious services and sacraments, and transportation to and from a
272 location where the assistance is provided, by a charitable, educational, or religious organization
273 or its employees, agents, or volunteers, using private funds.
274 (5) (a) It is not a violation of this part for a religious denomination or organization or
275 an agent, officer, or member of a religious denomination or organization to encourage, invite,
276 call, allow, or enable an alien to perform the vocation of a minister or missionary for the
277 denomination or organization in the United States as a volunteer who is not compensated as an

278 employee, notwithstanding the provision of room, board, travel, medical assistance, and other
279 basic living expenses.
280 (b) Subsection (5)(a) applies only to an alien who has been a member of the religious
281 denomination or organization for at least one year.
282 Section 11. Section 77-7-2 is amended to read:
283 77-7-2. Arrest by peace officers.
284 A peace officer may make an arrest under authority of a warrant or may, without
285 warrant, arrest a person:
286 (1) (a) for any public offense committed or attempted in the presence of any peace
287 officer; and
288 (b) as used in this Subsection (1), "presence" includes all of the physical senses or any
289 device that enhances the acuity, sensitivity, or range of any physical sense, or records the
290 observations of any of the physical senses;
291 (2) when the peace officer has reasonable cause to believe a felony or a class A
292 misdemeanor has been committed and has reasonable cause to believe that the person arrested
293 has committed it;
294 (3) when the peace officer has reasonable cause to believe the person has committed a
295 public offense, and there is reasonable cause for believing the person may:
296 (a) flee or conceal himself to avoid arrest;
297 (b) destroy or conceal evidence of the commission of the offense; or
298 (c) injure another person or damage property belonging to another person; [or]
299 (4) when the peace officer has reasonable cause to believe the person has committed
300 the offense of failure to disclose identity under Section 76-8-301.5 [.]; or
301 (5) when the peace officer has reasonable cause to believe that the person is an alien:
302 (a) subject to a civil removal order issued by an immigration judge;
303 (b) regarding whom a civil detainer warrant has been issued by the federal Department
304 of Homeland Security; or
305 (c) who has been charged or convicted in another state with one or more aggravated
306 felonies as defined by 8 U.S.C. Sec. 1101(a)(43).
307 Section 12. Coordinating H.B. 497 with S.B. 288 -- Substantive amendments.
308 If this H.B. 497 and S.B. 288, Utah Immigration Enforcement Amendments, both pass,

309 it is the intent of the Legislature that:
310 (1) Sections 76-9-1001 through 76-9-1005 in this H.B. 497 supersede Sections
311 76-9-1001 through 76-9-1005 in S.B. 288;
312 (2) Subsection 76-10-2901 (3)(a) in H.B. 497 supersedes Subsection 76-10-2901 (3)(a)
313 in S.B. 288; and
314 (3) Subsection 77-7-2 (5)(d) in S.B. 288 supersedes Subsection 77-7-2 (5)(d) in H.B.
315 497.