Not-So-Safe Harbor 

Salt Lake City Police Chief Chris Burbank’s recent refusal to cross-deputize local police with Immigration and Customs Enforcement powers made most Utahns aware of 2008’s controversial immigration Senate Bill 81. Beyond this standoff, however, critics are equally concerned over portions of the bill that increase legal penalties for those who “harbor” undocumented immigrants for commercial gain.

SB81 is patterned after an Oklahoma law that is currently undergoing a constitutional challenge. Supporters and critics of Utah’s new law—in addition to staying tuned to the outcome of the Oklahoma challenge—also may want to look at Farmers Branch, Texas. There, a city law criminalizing renting homes and apartments to undocumented immigrants has cost taxpayers $2 million in legal fees and penalties. The city lost its battle when the case was recently overturned by the Texas 5th Circuit Court of Appeals.

Utah’s SB81, which goes into effect this July, in addition to allowing for cross-deputizing of local law enforcement, would create new penalties for renting to undocumented immigrants similar to the failed Texas law. And it could share the Lone Star State’s fate.

Kirk Cullimore, a Salt Lake City attorney who has represented Utah’s landlords, helped work with legislators in the 2008 session to protect landlords from liability with SB81. While he’s confident his clients are covered when the law goes into effect, he says the same can’t be said for the state of Utah. “Oh, absolutely, [the state could be liable],” Cullimore says. “I’m surprised it wasn’t brought up this year in the Legislature. Even though [the Texas law is] not binding in Utah because it’s a different district court, you have a federal court that’s ruled on this issue, so [the local law is] going to be out of favor anyway.”

The law in question came out of the Texas community of Farmers Branch, which has battled to uphold a local ordinance criminalizing the renting of apartments to undocumented immigrants since 2006. The Dallas Morning News reported on April 8 that Farmers Branch had racked up $2 million in legal fees for its court battle, including $470,000 to cover opposing attorneys’ fees. Cullimore says the Farmers Branch ordinance was more punitive than the language currently written into Utah’s SB81 but the court’s ruling could still easily apply.

“The district court in Farmers Branch basically held that state, city and local government cannot impose obligations onto individuals regarding immigration, because immigration is the primary domain of the federal government,” Cullimore says. The issues from this case are similar to legal actions in Oklahoma, but the Texas decision is different in that it clearly bars individuals—like landlords—from having to be obligated to check immigration status.

“An individual should not be obligated to determine whether somebody’s legal or not,” Cullimore says. “We would probably fight it on that basis, if it ever came to that.” Whether a legal challenge will be brought against a landlord is difficult to say, however. As SB81 was originally written, it would be a Class A misdemeanor to transport or harbor an undocumented individual for private or commercial gain. But after working with Cullimore and landlord lobby group the Utah Apartment Association, the bill now says the misdemeanor is actionable only if the individual had intent to knowingly harbor or transport an undocumented person.

“It’s pretty hard for the government to prove intent,” says L. Paul Smith, executive director for the Utah Apartment Association.

“We’re recommending that landlords ask a question on their application,” Smith says. “They ought to have an [application] question, ‘Do you attest that everyone who resides in the apartment are or will be legal to reside in the United States?’ If the applicant checks that box, then an owner did not knowingly harbor [an undocumented tenant].”

“We’re in a ‘don’t ask, don’t tell’ situation,” Cullimore says. Smith acknowledges this reality but doesn’t see his industry of having much of a choice. “If someone asks the question and they lie to us, we’re covered,” Smith says. “Skin color and accent aren’t appropriate [enough grounds] for us to think somebody is illegal.

That’s the industry’s response.” With proving intent to violate the law making for a higher hurdle to prosecution the harboring tenet of SB81 may have less practical application than the bill’s sponsor (former Sen. Bill Hickman, R-St. George, who could not be reached for comment on this story) may have wanted.

This housing component of SB81 was designed toward adding penalties to human traffickers and perhaps employers who knowingly employ undocumented workers and arrange for their housing. But as far as aiding law enforcement, Salt Lake City Police Department spokeswoman Lara Jones says that component of the bill, while a legal enhancement, will have little impact.

“My sergeant is on [the Human Trafficking Task Force] and this [part of SB81] won’t make their job any easier or harder,” Jones says. “It’s neither here nor there.”

For Raul Lopez-Vargas, the executive director of the Federation of Mexican Clubs of Utah—a group supporting business development within the Mexican expatriate community in Utah, every aspect of SB81 is causing ripples of fear through the Latino community.

“It is a complicated situation,” Vargas says, searching for the right word. “Agonia.” Agony. “It is a collective fear,” he says. “One that we can do nothing [about].” The fear of not knowing what might happen to their homes is a real one for Latinos, even if Utah landlords feel assured their industry is legally protected.