Utah Attorney General Opinion
General Guidelines To Local Law Enforcement
"Utah Illegal Immigration Enforcement Act" (HB 497)
Purpose and General Concerns:
The purpose of this Opinion is to provide state and local law enforcement with guidelines concerning the enforcement of the "Utah Illegal Immigration Enforcement Act" (the "Act.") It is not intended to limit law enforcement’s underlying authority. The Act, in most respects, does not significantly change state or local law enforcement’s existing authority pertaining to aliens unlawfully present in the United States.
The provisions of the Act only apply when law enforcement conducts a lawful stop, detention, or arrest based on prior law or authority. The Act does not itself provide any cause or reason to stop, detain, or arrest a person and does not create a separate crime relating to a person’s citizenship or nationality. As before, racial profiling remains illegal. A stop, detention, or arrest cannot be made based upon a suspicion concerning that person’s citizenship status, race, ethnicity, or nationality.
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.
• 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.
• 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.
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.
State and local law enforcement officers have the general authority to make warrantless arrests when they have probable cause to believe the person is in violation of federal immigration law.
Under the Act an officer may make a warrantless arrest when the officer has reasonable cause to believe the person is an alien (a) subject to a civil removal order issued by an immigration judge; (b) regarding whom a civil detainer warrant has been issued by the federal Department of Homeland Security; or (c) has been charged or convicted in another state with one or more aggravated felonies as defined by federal law.
The information supporting an arrest under the Act should come from an NCIC (National Crime Information Center) inquiry or from communication with ICE. The role of state and local law enforcement is to communicate and cooperate with the federal government in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. All final determinations of immigration status and disposition are made by the federal government.
Transportation, Harboring, and Human Trafficking Provisions:
If, during the course of a lawful traffic stop, an officer has reasonable suspicion that any person in the vehicle is violating state law governing the smuggling or transporting of aliens (pursuant to Utah Code sections 76-5-309, 76-5-310, or 76-10-2901), the officer is required to investigate the suspected violations and inquire regarding the immigration status of the occupants of the vehicle. Such inquiry can simply consist of asking the occupants about their immigration status. This provision does not trigger the verification procedure through DHS described above. An officer must conduct such further investigation and inquiry to the extent possible within a reasonable time. In acting within a reasonable time, officers are to act expeditiously in a manner that will confirm or dispel their suspicions quickly. An officer may not conduct a traffic stop based solely on race or ethnicity.
Amendments to Utah Code Section 76-10-2901 make it unlawful for a person to encourage or induce an illegal immigrant to enter or reside in Utah. Further, the amendments provide criminal sanctions for third parties who engage in a conspiracy to commit any of the offenses contained in Section 76-10-2901. Prosecution, under the conspiracy provisions, of the illegal immigrant who is the subject of unlawful transportation, harboring, or inducement will not be allowed.