Tom Smart, Deseret News
Utah State Capitol before Governor Gary R. Herbert delivers his 2012 State of the State address Wednesday, Jan. 25, 2012, in Salt Lake City, Utah.
I know there is a difference of opinion on what the local law enforcement people should be doing; that's part of the constitutional challenge we have on the law that is in court today. —Govenor Gary Herbert

SALT LAKE CITY — A bill that backers describe as a "compassionate family-oriented pilot program" has been proposed as a replacement to a controversial guest worker bill that the Utah Legislature passed last year.

HB300, sponsored by Rep. Chris Herrod, R-Provo, would create a pilot program to deal with people who are in the country illegally because they have overstayed visas. But it also targets local police by withholding funding and yanking the Peace Officers and Standard and Training certification of police chiefs whose departments fail to enforce immigration laws.

The certification provision has been dubbed the "Burbank rule," in reference to Salt Lake City Police Chief Chris Burbank who has been outspoken in his opposition to local police acting as immigration agents.

He said the bill, unveiled Thursday, was "very disappointing."

"Why are we wandering down this road?" Burbank said, rather than wait for direction when the Supreme Court rules on Arizona's controversial immigration enforcement law.

If Herrod's measure is intended to be intimidating, it fails on its face, Burbank said. "It does not make me change my position."

Layton Police Chief Terry Keefe, chairman of the Utah Chiefs of Police Association, said Thursday that POST certification is needed "to be a law enforcement officer in any position in the state of Utah."

Keefe said the police chiefs association "has concerns with this bill" such as jail overcrowding and local governments bearing the costs of picking up and processing undocumented immigrants only to learn that federal authorities do not want them held.

"It seems to me the current federal administration made it pretty clear they don't want local law enforcement enforcing these laws. They're suing us for our law. They're suing Arizona and other states. It's unclear how the law is going to be different."

Herrod said he was willing to work with law enforcement officials who have concerns about the bill. One of the public's greatest frustrations is that there is insufficient enforcement of existing laws, he said, which is why he included those provisions.

The bill was intended to "bridge some of the divisions out there. Let's talk about some things we can actually agree upon," he said, explaining that a wide array of people want to create solutions for people who had overstayed visas, had married and started families and were otherwise lawful.

"I put something together I believe could be model legislation for the nation," he said.

HB300 would apply only to people who have overstayed visas. People who entered the country illegally could not participate in the program, Herrod said, noting that legislation should not condone breaking the law.

The bill's pilot program establishes two paths for people with expired visas to eventually regain legal status. One tier deals with married individuals with families or single parents who obtained a visa, let it expire, but have not committed any criminal offenses.

The second involves people with expired visas who have committed other offenses such as working when they were not eligible to do so or accepting government services. This group is subject to fines and would be expected to repay costs of government services they have used. They also would have to leave the country, and reapply for a visa.

"The problem with (the existing guest worker law) was, it didn't provide any way for people to regulate status," said Ron Mortensen, founder of the Utah Coalition on Illegal Immigration.

Mortensen, a retired foreign service officer, said HB300 would establish a link to U.S. Agency for International Development programs to help meet the workforce needs of Utah employers. Foreign national workers who are being helped by federal government development programs would receive on-the-job training in certain jobs, such as working on a dairy farm. They could the take their skills to their home nations.

The bill, if passed, would require changes in federal law before the pilot program could be implemented.

That's a steep hurdle, said community activist Tony Yapias. "I would assume even if it passes, it would be dead on arrival on the federal level."

He said lawmakers should hold off on passing new laws until the Supreme Court rules on the Arizona case. "In a few months, we'll know what authority states have, if they can make immigration law," Yapias said.

In sponsoring HB300, Herrod is "shooting from the hip without realizing the full consequences of it," Yapias said. 

Herrod, who is running for the U.S. Senate, said in a previous interiew that he would introduce the law as an "olive branch" to the Republican Party. Delegates at Republican Party county conventions throughout the state passed resolutions calling for the repeal of HB116, the guest worker bill passed last year.

But he said he recognizes that the political climate on Utah's Capitol Hill is such that there may be little appetite to address bills such as HB300.

"Does anyone want to go through the pain we went through last time around? I don't think so," he said. "At the same time, can I give up on my principles? I think 116 is a bad bill."

House Speaker Becky Lockhart, R-Provo, said she doubts there will be an "outright, total" repeal of HB116, but that it will likely be amended.

As for the so-called "Burbank rule," Lockhart said, "I think that's an interesting provision, one that I'm going to have to read."

In concept, there is a problem when police agencies won't enforce the law, she said.  "The law is the law. Federal law applies."

But Burbank said HB300 and similar proposals would hinder police in their primary mission unnecessarily spread fear among undocumented immigrants as well as families with mixed immigration status.

"When local law enforcement is not protecting everyone and not accessible to everyone, we're not doing our job," he said.

If people view local police also as immigration agents, they will be reluctant to seek help when they are victims of crimes. "That's a scary situation. That's when criminal activity thrives," he said.

Because of the department's community policing efforts, Salt Lake City's crime rate is at a 26-year low, Burbank said, "and this is despite a fairly large population of 'illegal immigrants' they're all worried about and this legislation supposedly targets."

Gov. Gary Herbert said he’ll watch the legislation closely to "see whether I concur."

"It was always thought there was going to be some modification, some changes. That's why the implementation (for HB116) was for 2½ years later," he said Thursday during the governor's monthly KUED press conference.

"I guess I don't care whether it's repeal and replace or modify and replace. I think you can get to the same place of an improved bill."

Whatever happens, Herbert said, he hopes there can be some reconciliation among the various factions on the issue.

The governor sidestepped a question about the bill's so-called "Burbank rule."

"I know there is a difference of opinion on what the local law enforcement people should be doing; that's part of the constitutional challenge we have on the law that is in court today," he said.

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Herbert said states are saying if the federal government isn't going to enforce the law, they will. "I think that's the attitude here in Utah," he said.

Some police agencies like that and some don't, Herbert said. "If Chief Burbank doesn't, that's something we'll have to work through," he said.

Herbert also favors a tougher E-Verify law.

"The business community has got to step up. They cannot continue to be a magnet and an enticement and a reward for people that break the law. We can't say 'Come in here and break the law and we’ll give you a job.'"

Contributing: Dennis Romboy