Approximately one year ago, many Utah groups and individuals signed on to the Utah Compact in an effort to establish Utah's community values as a guide to discussion about immigration reform.
The guidance the Utah Compact was designed to provide was strongly misinterpreted during the 2011 legislative session when Gov. Gary Herbert signed into law a package of immigration related laws, referred to as the Utah Solution.
The Utah Solution has been strategically associated with the Utah Compact. However, none of the laws from this package fall within the principles of the Utah Compact, including HB116. HB497, Utah's Arizona-style "show me your papers" law currently under legal challenge by the ACLU and the National Immigration Law Center, is similar.
HB116 attempts to create a guest worker program for undocumented individuals currently residing in Utah. Because the federal government has exclusive jurisdiction over immigration matters, the state has to obtain a federal waiver. If the state moves forward with implementation in the absence of the waiver, the state is likely to be sued by the federal government.
By pitting Utah against the federal government in a probable lawsuit, HB116 violates the Utah Compact's first principle, which establishes a commitment to creating a federal immigration solution.
The Identification Enforcement Act incorporated in HB116 creates a database where information will be stored on any individual living or traveling through the state, citizen or non-citizen, who refuses to be photographed or fingerprinted upon request by a law enforcement officer in the course of a "lawful stop."
This process will impose a financial and logistical burden on law enforcement, ignoring the second principle of the Utah Compact, which provides "Local law enforcement resources should focus on criminal activities, not civil violations of federal code." In addition, this practice risks violating the Fourth Amendment right to be free from unreasonable searches and seizures, and the right to due process and equal protection incorporated in the Fifth and Fourteenth Amendments.
Contrary to the Utah Compact's third principle, promoting family unity, HB116 does not protect permit holders from deportation, and thus separation from their families.
A worker permit would be valid only for employment purposes in the State of Utah; permit holders could still get deported at any time. In fact, permit holders could be reported to ICE for deportation by employers for failing to appear to work for a consecutive number of days.
HB116 provides an illusory benefit to undocumented immigrants and has caused great confusion and a false sense of hope. This hope has led to their exploitation by people who realize the shortcomings of the law.
HB116 requires undocumented immigrants to self-report in a database without any guarantee that the information they provide will not be used in a deportation proceeding against them or that state criminal charges will not be filed. This practice hardly seems in line with the Utah Compact's desire to "adopt a humane approach to [the immigration] reality" as expressed in the compact's final principle. All people in this country have a right to due process and equal protection.
Laws that grind away at the constitutional and civil rights of the most vulnerable groups in our communities will by consequence grind away at the constitutional rights of all people in the United States.
Without a waiver, state laws regulating immigration are moot, impractical and unsound. We understand the frustration with the federal government at ignoring the immigration issue for such a long time. But a solution that compromises our constitutional and civil rights is no solution at all.
Esperanza Granados is public policy advocate for ACLU of Utah.