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Would HB7 create a Catch-22?

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When he was admitted to Brigham Young University, Alex Castro tried to go the legal route.

After graduating from high school in Utah County, the 17-year-old returned to his home in Peru in 2003 to apply for a student visa. His application was declined because of his mother's pending business visa, said Castro's attorney S. Austin Johnson.

"Immigration said, 'It looks like your mother wants to stay there forever,' " Johnson said of Castro's visa denial.

It's a situation that higher education officials say undocumented students planning on a college education in Utah could find themselves in if a bill pending in the Legislature becomes law.

The bill, HB7, would repeal a 2002 law that allows undocumented students who attend a Utah high school for three years and graduate from college to bypass getting a student visa and to pay in-state tuition.

Those who support HB7, sponsored by Rep. Glenn Donnelson, R-North Ogden, say it's discriminatory to give a better tuition rate to undocumented students than to U.S. citizens from other states or students with visas.

Last week, University of Missouri law professor Kris Kobach testified before the House Education Committee that by offering the tuition benefit, the state of Utah is luring undocumented students into a "nightmare" of trying to gain legal status.

Under most circumstances undocumented immigrants who remain in the United states for six months after their 18th birthday will be barred from re-entering the United States for three years if they leave. After a year, the bar rises to 10 years.

"You will probably never get on the track to legalize your status in the United States," Kobach said. "When you turn 18, you need to immediately go back to your country of origin, stay with relatives, and get a student visa . . . You can realize the American dream by following our laws."

But immigrant rights activists who oppose HB7 say it's difficult or impossible for an undocumented student to leave the country and obtain a student visa for readmission.

While there is some disagreement over whether an undocumented student can legally attend a public institution of higher education, the Utah System of Higher of Education's current position is that HB7 would mean that undocumented students would be classified as "nonresident aliens," and would have to leave the country and apply for a student visa for readmission.

There were 10,348 students with temporary visas enrolled in Utah's colleges and universities in the 2004-05 school year, according to Utah System for Higher Education figures, compared to 169 undocumented students who were enrolled under the tuition law.

Student visas are temporary, non-immigrant visas, meaning that applicants must "show sufficient ties outside the U.S. to prove they do not intend to immigrate," said U.S. State Department press officer Janelle Hironimus.

Timothy Wheelwright, president of the Utah chapter of the American Immigration Lawyers Association, said it's extremely difficult for applicants with parents, siblings or a spouse living in the United States to prove they plan to return to their native country after getting an education here.

"(Having family living here is) just very strong evidence of intent to immigrate to the United States," he said. "The burden to overcome that would be very high."

Student visa applicants must also show they have sufficient funds to pay for their education and living expenses, according to the State Department.

Student visa holders pay out-of-state tuition and fees, which in the 2003-04 school year ranged from $6,228 at the College of Eastern Utah to $11,296 at the University of Utah.

Kobach disagrees with those who contend it would be nearly impossible for an undocumented student to leave, obtain a student visa, then return to the United States. He told the Deseret Morning News that consular officials don't look for evidence whether someone would try to permanently immigrate.

"They're not trying to decide whether you might want to stay, they're trying to predict whether you're going to overstay the visa," Kobach said, contending there is a difference. "I think it's a reasonable assertion that the State Department would take into account the fact that a student had made efforts to comply with U.S. law."

E-mail: dbulkeley@desnews.com