| Oklahoma ruling could affect Utah immigration law |
| SB81 » Reform here was based heavily on Plains state's measure. |
| By Sheena McFarland The Salt Lake Tribune Salt Lake Tribune |
| Updated:02/05/ |
A court ruling on an Oklahoma immigration law isn't a clear victory for opponents or supporters, but it may eventually lead to changes in Utah's immigration law.
The 10th U.S. Circuit Court of Appeals, which covers both Oklahoma and Utah, ruled on two of the Oklahoma law's provisions that also are in SB81, the bill passed by the 2009 Legislature that enacted Utah's comprehensive immigration reform. The appellate court allowed Oklahoma to require state agencies and state contractors to use the E-Verify system -- a federal electronic database that matches Social Security numbers to identification documents -- to check workers' legal status, but it deemed that federal law supersedes a provision punishing employers who let go an authorized employee while keeping or hiring an undocumented worker for a similar position.
SB81 was based heavily on Oklahoma's law and included both provisions.
"This is not a clear victory for either side," said Roger Tsai, American Immigration Lawyers Association Utah chapter chairman. "The bottom line ... is that it will depend on how Utah wants to react and whether there are any lawyers out there who want to [file to stop] SB81 from going into effect."
Tenth Circuit judges were split in their ruling, and because of subtle but legally important differences in their reasoning for using E-Verify portion of their decision, the door is open for a Utah-based lawsuit , said Randy Dryer, a constitutional lawyer for Parsons Behle and Latimer.
"It's still unresolved," Dryer said. "And the 10th Circuit decision gives no guidance on that issue."
The 9th U.S. Circuit Court of Appeals also upheld an Arizona law with the same requirement, but again gave different reasoning.
The key point, Tsai says, is there is no clear majority on the E-Verify requirement, leaving it open for challenge here in Utah.
Dryer said it is unlikely anyone in Utah would want to fight to show that the provision regarding who an employer may or may not hire has been pre-empted by federal law.
Because Utah's immigration law carries no fine or penalty for discharging an authorized worker while keeping or hiring an undocumented worker, "it most likely will just sit and remain on the books," he said.
An employer likely won't try to change the law because employers face no sanctions for breaking it. The Legislature could remove it from statute, but Dryer says that doesn't make much sense, either.
"There's probably no incentive to do that because it was a controversial issue, so why bring it up again unless they have to?"
The parties in the Oklahoma law appeal can ask for all three judges to come up with a joint decision to clarify some of these points, but if they don't, the case returns to U.S. District Court there, and a judge will decide whether to lift the current injunction on the law. If the parties involved disagree with that decision, they can appeal to the U.S. Supreme Court.
In Utah, there has been little appetite for a lawsuit against the state immigration law, but that may change after the Oklahoma law's case is fully decided.
For now, both critics and advocates of the Utah law are happy with the decision.
Ron Mortensen, co-founder of the Utah Coalition on Illegal Immigration, was pleased the court upheld the E-Verify requirement.
"E-Verify is one of the key components of SB81, and interestingly, the 10th Circuit agrees with the 9th Circuit, so I don't think there's any question that we can look at E-Verify as a bona-fide tool to address immigration in Utah," he said.
Mortensen said the provision regarding the firing of U.S. workers was "not a critical" element to the law, and he did not see a major effect on immigration enforcement in Utah if that disappeared.
Latino community activist Tony Yapias was also pleased with the outcome, saying he was happy to see the 10th Circuit recognize that the federal government should be handling immigration law.
"SB81 really hasn't had much impact at all except on the criminal element, which no one wants," Yapias said. "If the law had had a different effect, I'd be more concerned."
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