"Secure the border" long has been the refrain on immigration. According to the U.S. Customs and Border Protection agency, from 2001 to 2011 border patrol agent staffing grew from 9,212 to 21,444. During that same decade, the agency's budget grew from $1.1 billion to nearly $3.6 billion.
Undocumented immigration fell sharply. By many accounts, net migration to the United States is zero, perhaps negative. Nevertheless, the number of undocumented immigrants here has remained steady 11.5 million in 2011, according to Homeland Security figures. Moreover, they have grown roots: 86 percent arrived before 2005, 57 percent before 2000 and 30 percent before 1995.
A week ago, I spoke with an undocumented immigrant in his late 30s. Ten years ago, he crossed the border on his way to California. Four years later, he came to Utah because "life is calmer here. The people feel safe. You can get a ticket and not be worried about deportation."
Another person from Mexico who has lived in Utah for almost nine years recently told me, "Nobody is going to deport you if you don't get in trouble. There are not a lot of workers. They have to hire foreigners." This person added, "Maybe our employers are scared of reform because they would have to pay more money."
About a year ago, a Latino activist from Logan told me that the dairy industry would go bust if not for undocumented workers. Agriculture, hospitality and other key economic sectors would also suffer if undocumented workers had to leave.
This economic argument was a key underpinning of the "Utah solution" on immigration, part of which would give state "guest worker" permits to qualifying undocumented workers and their families. HB116 was unconstitutional, according to the Legislature's own counsel. It passed anyway.
In November 2011, the federal government warned Utah it would file a lawsuit if the state tried to implement HB116. It's an open-and-shut case: HB116 directly contradicts 8 USC 1324a, which prohibits hiring undocumented workers. Under the Supremacy Clause, HB116 is unconstitutional.
Earlier this year, the Supreme Court clarified the authority over immigration, saying that "the federal power to determine immigration policy is well settled." Two additional strikes against HB116 are these:
1. A state bureaucracy would cost $6.1 million to implement in 2013.
2. Just the fines for the state permit would cost two to five times what the federal permit costs. It is likely that very few people would apply.
Utah policymakers pushed HB116 as part of a message to the federal government to get real on immigration. If they want to keep that message afloat, it would be prudent to push back the implementation date. Then they should be honest about Utah's need for federal legalization of undocumented workers.
On Dec. 3, a person who identified himself as Juan José called into my radio show with a suggestion: "We need to speak more directly and with less fear about the need for reform. We are not going to go away."
I agree. The fundamental questions on immigration have long been:
1. How should the system handle those who want to come here?
2. At the border and internally, how should the system ensure compliance with, and respect for, the law?
3. How should the country deal with an undocumented population of 11.5 million?
Redesigning the immigration system for the 21st century begins with question three, and with legalization of the undocumented.
Mark Alvarez is an attorney who lives in Salt Lake City and hosts "Sin Rodeos," a Spanish-language radio program.