This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
After practicing immigration law for almost 15 years, I have collected volumes of books, CDs and online resources containing tens of thousands of pages of immigration laws, regulations, memos and case law. None of these laws were passed by state legislatures. Why?
Under our Constitution, states cannot pass immigration laws because such statutes represent an aspect of foreign policy which only the U.S. Congress can regulate. Imagine if foreign countries had to deal with 50 different immigration systems when just one is difficult enough.
For the same reasons, individual states cannot declare war or establish treaties with another country. The states can legislate in many areas, but not immigration law.
House Bill 497 and 116 are examples of state legislation that could very well be found unconstitutional. One bill allows police officers in certain circumstances to ask individuals their immigration status. Why do we need this bill?
Federal Immigration & Customs Enforcement officers visit Utah jails every day to locate and interview both undocumented and documented immigrants and decide whether they should be placed in removal proceedings — another function exclusively in the realm of the federal government. If ICE is already doing its job, why do we want to task already overworked police officers with additional and duplicative duties that distract from local law enforcement's real purpose: keeping our communities safe from violent criminals?
The "work" and "residence permit" provisions of the bill are unlikely to ever have any real effect. Those provisions require the governor to negotiate with the federal government to obtain any waivers to give effect to this law. It would go into effect when that occurs, or in July of 2013. I cannot imagine the federal government giving permission to each state to come up with its own immigration laws, or the extraordinary complexity of the situation, were this to be allowed.
If Utah ignores the federal government and implements the residence and work permit on its own, what benefit will this provide to the undocumented population of Utah? Absolutely none. The law requires a payment of $2,500 to live and work in Utah. However, as long as Utah is part of the United States, only the U.S. Congress can decide who can legally work and live anywhere in the country, including Utah.
Already, many immigrants both in and outside of Utah are frantically calling immigration attorneys to see when they can apply for this supposed "benefit." They have been given the false hope that if they live in Utah they will be given an immigration benefit, when this is far from the truth. Unfortunately, immigrants (and the rest of us) have no choice but to wait for a real immigration law to be passed by Congress, signed by the president and implemented by the U.S. Department of Homeland Security.
As frustrated as all sides of the immigration debate are about the total inaction of the federal government in this area, taking matters into our own hands will not solve the problem but will create many others.
Instead of trying to pass laws that will be challenged in court at a high cost to our state, our legislators' time would be better spent passing a resolution that recognizes the value and contributions of all individuals in our community and encourages the federal government to pass comprehensive immigration reform that makes sense and considers both the enforcement and benefits side of the immigration equation.
Leonor Perretta is an immigration attorney in Draper.