SALT LAKE CITY — It was just another immigration rally on Capitol Hill: about 80 people on both sides of the issue glared at one another from behind signs made from poster board and yardsticks. "Who would Jesus Deport?" "I support the rule of law!" But before Rep. Stephen Sandstrom could finish, a twenty-something Latina in the back was spouting off snarky comments and the Utah Minutemen were going red in the face. By the time the microphones were turned off, the Utah Highway Patrol had to step in to quell the yelling and shoving.
That was in November. When the Utah State Legislature actually convenes at the end of this month, the debate promises to be even more hot blooded. Though everything associated with immigration — border crossing, visas, citizenship — land squarely under the jurisdiction of the federal government, immigration has inched its way into Utahans' top 10 priorities, according to a recent survey conducted by the Utah Foundation. The number of illegal immigrants living in Utah — an estimated 110,000 people, according to the Pew Hispanic Center — has nearly doubled in the past decade.
"The federal government has really let us down; everyone thought for sure they would take on immigration reform last year," said Senate Majority Leader Scott Jenkins. "Now the issue's become something of a boil. It's just sitting there festering, slowly building to a head."
Over the past decade, Congress has tried multiple times to overhaul the immigration system. In 2007, the most recent attempt, which included enhanced border security, a guest-worker program and legalization for undocumented immigrants, died in the Senate amidst heated public debate about amnesty. Since then, talks have focused, not on comprehensive reform, but on tougher border enforcement and more deportations. In the meantime, states are left to deal with the effects of a broken immigration system. Undocumented immigrants don't integrate into society; rather, frightened of being deported, they have relegated themselves to the shadows. This has led to gross violations of wage and workplace conditions, which, some argue, lowers the floor for all workers. Identity theft, a necessary evil for undocumented immigrants who wish to land a job, has become an epidemic.
"The tension is that the federal government has complete authority over who enters the country but no say, for the majority of them, about where they'll live or work," said Audrey Singer, a demographer with the Brookings Institution Metropolitan Policy Program. "The responsibility of the day-to-day business of immigration, including how people are housed, how children of immigrants are educated, and all kinds of neighborhood level things fall to local governments and local organizations, so it sets up this more urgent need from below than above."
Clamoring for change, people have turned to their local leaders. States are filing immigration-related bills by the hundreds. During the first half of 2010, the National Conference of State Legislatures reported that only six states had not filed immigration-related bills. Even states like Alaska and Maine, where experts estimate there are fewer than 10,000 illegal immigrants, have joined in.
In Utah in 2010, Rep. Stephen Sandstrom, R-Orem, made headlines when he announced plans to adopt a bill that would require state police to enforce federal immigration laws. Sen. Luz Robles, D-Salt Lake City, got similar coverage when she introduced a bill that would give illegal immigrants a legal avenue to hold a job. But the two bills are far from alone. At least a dozen legislators are mulling over immigration-related bills for the 2011 legislative session. There are so many ideas that — for the sake saving discussion time — Senate leaders have pitched the idea of an omnibus bill.
In anticipation of a throw down over the issue, a coalition of business, political and religious leaders banned together earlier this year to draft The Utah Compact, a document pleading for civility. Even the Mormon Church, which has largely shied away from making public declarations about politics, has weighed in. However it shakes out, people on both sides of the argument agree, what Utah does about immigration will color the state's reputation.
The New York Times singled out Utah as the state to watch when it comes to immigration reform. If the legislature can find a workable solution, The Economist recently conjectured, Utah "might be a model for the rest of America."
What can states do?
When it comes to immigration reform, state legislators are walking on shaky ground. Experts agree that fixing the U.S. immigration system is outside states' jurisdiction. Proof of this: after Arizona passed a law in 2010 making illegal immigration a state crime, the United States took them to court for nosing around in its business.
"Immigration isn't a state problem; it's a national problem," said former U.S. Senator Jake Garn. "I don't believe we should have a bunch of individual state laws conflicting with each other."
But while they lack the legal clout to enact comprehensive reform, states are attacking the issue from nearly every other angle. The number of immigration laws filed in state legislatures has rocketed in the past five years: going from just 38 in 2005 to 319 in 2010.
"Despite what a lot of mainstream talking heads are saying, states really have a lot of leeway on immigration policy," said Jon Feere, legal policy analyst for the Center for Immigration Studies, a Washington D.C.-based think tank. "As long as they're not admitting someone to the country or deporting someone there is a lot they can do."
For the most part, state immigration bills can be divided into two categories: those that help illegal immigrants to assimilate into society and those that punish or exclude illegal immigrants, he said. According to a 2008 report by the Progressive States Network, 14 states leaned toward punitive immigration policies and 17 leaned toward integrative measures. The rest had not filed laws or filed laws that sent mixed signals. Things are changing every day, though. After Arizona passed SB1070, legislators in 25 states filed copycat bills.
To accomplish their goals, states are taking a variety of avenues. The majority of state-filed policies fall into three categories: public services, law enforcement and employment.
Experts agree that any federal immigration reform would need to address the presence of the 11 million illegal immigrants already living in the United States. Some believe the government needs to develop a program that would give illegal immigrants a pathway to citizenship. Others are pushing for more rigorous deportation.
States, though, cannot grant citizenship or legal status of any kind. What they can do is allow illegal immigrants to use public services, essentially welcoming them into the state.
"One thing it seems the media has overlooked is the trend of states trying to take a pragmatic approach towards exploring ways they can integrate and invest in immigrants that are here," Blazer said. States that lean this direction maintain that establishing "exclusionary" policies "often worsens the problems communities are trying to address, like people not learning the language," he said.
The first major wave of state policy addressing illegal immigration was inspired by the DREAM Act of 2001, said Ann Morse, program director for the Immigrant Policy Program, which is sponsored by the National Conference of State Legislatures. Many states saw the federal legislation as an unfunded mandate that intruded on their right to educate their constituents. In response, about 10 states rolled out legislation allowing illegal immigrants to pay in-state tuition. Public policy laws that followed include providing illegal immigrants with access to government-subsidized health care, giving them the right to vote and providing them with English and job training. Utah jumped on the next major trend, too: giving undocumented immigrants a form of identification or driver's license.
"Instead of objectifying immigrants, we need to see them as human beings," said Paul Mero, president of the Sutherland Institute, a conservative Utah think tank that helped to draft the Utah Compact. "Our immigration policies should say, 'We recognize that you're here and we appreciate your contributions to society.'"
Conversely, states can institute policies that marginalize illegal immigrants by refusing access.
While Arizona's SB1070 stole the media spotlight in 2010, the state also enacted a law excluding illegal immigrants from the Children's Health Insurance Program. In Georgia, legislators pushed through a law that bars illegal aliens from obtaining a license to carry a gun. Mississippi passed a law that denies illegal aliens unemployment benefits.
"You can't reward illegal behavior with benefits," said Ronald Mortensen, a member of the Utah Coalition on Illegal Immigration. "You do that, you encourage corruption."
Because of its tough policies, more than 100,000 illegal immigrants have fled Arizona since 2007, according to the Department of Homeland Security. Largely because of this, Sandstrom said, Utah must crack down on illegal immigration.
"It is imperative that we pass similar legislation here in Utah," he said. "In the past, when we've seen tougher legislation in Arizona … a lot of illegal immigrants just move here."
During Utah's 2011 session, Rep. Carl Wimmer, R-South Jordan, hopes to repeal in-state college tuition for illegal immigrants. Rep. Paul Ray, R-Clearfield, is sponsoring a resolution petitioning Congress to repeal the 14th amendment. This measure would both help to keep families at risk for deportation together, Ray said, and deny illegal immigrant children access to public benefits like welfare.
Just as states can't admit people to the country, they cannot deport them. But states can help identify and report illegal aliens to the federal government, Feere said. Already, through the 287 (g) program, U.S. Immigration and Customs Enforcement trains state police to determine immigration status when criminals are booked into jail. As of 2009, 26 states, including Utah, were participating in the program. More than 1,120 local police officers have been trained.
There is a fine line, however, between working with the federal government to help round up illegal immigrants and criminally enforcing immigration law. Arizona's SB1070 ran into trouble with the Supreme Court because it allowed the states to prosecute illegal immigrants for offenses related to their immigration status — something that, up to this point, has been "unquestionably exclusively a federal power," said Marc Miller, a professor of law at the University of Arizona.
"States don't have any business criminally enforcing immigration law," he said. "The legal and policy strategy of throwing something against the wall to see if it sticks without addressing whether or not it fits within the legal norms is outrageous."
While Arizona's testing its constitutional limits, other states are overlooking federal immigration laws, Feere said. In some cities in California, for example, enforcement officials have been directed not to report illegal immigrants to the federal government.
"If you are an illegal alien in San Francisco, unless you've committed a horrific, violent crime, odds are you'll never be turned over to federal authorities," he said.
Along those same lines, several states have filed bills prohibiting law enforcement officials from harassing immigrants who have not been convicted or charged with a crime. The hope for such policies is to increase the reach of law enforcement officials, Blazer said. Their priority is to gain the trust of the community — which includes illegal immigrants.
"You don't want victims and witnesses fearful of dealing with the police," Blazer said.
Though it's not unconstitutional, this method's isn't without its flaws either. Because of a lax attitude toward immigration law enforcement, sometimes criminals whose crimes are not considered grievous enough to merit deportation, go on to commit violent crimes. In Oregon, for example, police are prohibited from expending resources for the sole purpose of enforcing immigration laws. From 2007 to 2008, at least three illegal immigrants were convicted of homicide. All three had previously been arrested for drunk driving and released —as many as six times.
In Utah, legislators are pushing both directions.
Sandstrom's bill makes it a state misdemeanor not to have papers and requires the police to actively inquire about immigration status. Sen. Dennis Stowell, R-Parowan, is working on a bill that will mobilize the state work force to identify illegal aliens. Robles' bill, for the most part, advocates overlooking immigration status. Instead of prosecuting, she hopes to create a database of illegal immigrants that law enforcement officials could use as a tool to focus deportation efforts on those immigrants who are committing crimes.
The constitutionality of Sandstrom's bill, like Arizona's, is still questionable. Robles would need a waiver from the federal government to enact her proposal.
On a national level, experts agree, reform will have to take economics into account.
"If people are willing to walk through a desert knowing that hundreds of people — healthy, young males — die, the idea that a short sanction or a minor record that might inhibit legal entrance down the road will keep people from crossing the border is fanciful," Miller said. "The bigger question here is what mix of barriers, sanctions and benefits would reduce the cost-benefit calculation so fewer people would cross?"
Many point to the visa system's disregard for economic demand as a major driving force behind illegal immigration. The United States provides an insufficient number of visas to bring in low-skilled workers, said Tyler Moran, policy director for the National Immigration Law Center, a think tank based in California. Each year, only 5,000 of the 140,000 employment-based green issued are reserved for low-skilled laborers. Each year about 500,000 illegal immigrants come to the country looking for work; the majority of these people find jobs as maids, landscapers and construction workers.
To be effective, a national immigration reform system should take into account "what the U.S. economy needs in terms of number, age and skill-set of immigrants," said Judy Gans, director of immigration policy at the University of Arizona. A working system would include expanded permanent immigration and a more robust temporary worker program. Both should be flexible.
"We're not very nimble right now," Gans said. "We set certain limits, and a certain number of visas for temporary or legal immigrants, but they don't necessarily correspond to the market very well."
While states are powerless when it comes to overhauling the visa program, they can choose whether or not to require employers to validate workers' immigration status. Thirteen states in the U.S. require the use of E-Verify, a federally designed computer program designed to check citizenship. If they can't work, the theory goes, they won't come. E-Verify isn't perfect, though: it can't account for identity theft. According to a report issued last year by U.S. Citizenship and Immigration Services, 54 percent of the illegal aliens who are run through the system are approved to work.
Immigrant sympathetic states tend to take a different approach: enforcing and enhancing labor and employment protections. Illegal aliens are often abused because of their "precarious status," Moran said. Many are paid less than minimum wage and are forced to work in unsafe conditions. Research indicates that on-the-job death rates are disproportionately high for Latino workers. In 2008, Mexican-born workers accounted for 42 percent of foreign-born-worker deaths.
"There's no risk for the employer," Moran said. "If the documented worker complains, the employer will call ICE to have them deported."
Robles' bill suggests a never-been-tried-before angle. The bill gives illegal immigrants, who pass a background check and agree to take English classes, a permit to work in the state. It also enforces labor laws. Immigration policy experts have hailed the legislation as "original" and "creative," but there's some question as to whether Utah has the constitutional power to give illegal aliens the right to work.
When it comes to illegal immigration and employment, though, there's no shortage of ideas in the legislature. Sandstrom's bill establishes a penalty for employers who knowingly hire illegal immigrants. Rep. Bill Wright, R-Holden, and Sen. Howard Stephenson, R-Draper, have both devised a Utah guest-worker program. If passed, Wright's proposal will allow non-citizens to work in Utah as long as they could maintain a job.
Integration vs. deportation
When it comes to immigration policy, experts say Utah's a "tough case" to define. The state requires public employers to verify immigration status. Police are allowed to enforce federal immigration laws. But the state is also one of only ten that allows illegal immigrants to pay in-state tuition at local universities. Since 2005, undocumented immigrants have been able to obtain and use "driver's privilege cards."
"Utah is such an interesting place to look at this," Singer said. "It's been one of those places that has been quietly very tolerant of immigration in surprising ways, and probably very much related to the leadership of the Mormon Church, and yet they appear to be on the bandwagon."
On one extreme, stands Sandstrom, who insists the solution to Utah's immigration woes is upholding current federal law. Hundreds, through associations like the Utah Coalition on Illegal Immigration, Utah's Minutemen and Legal Immigrants for Immigration Law Enforcement, have lent him public support. On the other, stands Robles, who believes it's Utah's responsibility to help undocumented immigrants come out of the shadows — not deport them. Backing her are the signers of the Utah Compact, which includes former Governor Olene Walker, Bishop John C. Wester of the Catholic Diocese of Salt Lake City and the state attorney general.
Gov. Gary Herbert told The Economist in 2010, that he hoped for a "hybrid between worker permits and Arizona-style enforcement." If the state could reach such a compromise, it would likely lead the way for the nation, the magazine conjectured. But at this point, "there's no telling" where the 2011 session will take Utah in terms of immigration policy, Jenkins said. "I can tell you only one thing absolutely: there is no consensus. It's going to be interesting."