Julián Castro has challenged fellow 2020 contenders to join his call to decriminalize crossing the U.S. border without permission. Most have — handing a gift to the president and other Republicans who’ve insisted that Democrats stand for “open borders” even before all those hands went up in the first debate.
For progressives, scrapping that law has become a litmus test, a virtue signal on immigration in an era of family separations and threats of mass round-ups and deportation.
But it’s a more nuanced issue than came across when Castro used it to bludgeon Beto O’Rourke in the first debate.
Even some immigrant advocates say that it’s a bad idea to scrap one of the tools used to deter unauthorized migration. Enforcement experts worry about the message repeal would send, 90 years after Congress made unlawful entry a crime.
“It annoys me to no end when these politicians start throwing out these facile solutions,” said Sarah Saldaña, the former Dallas-based U.S. attorney and director of the Immigration and Customs Enforcement in the Obama administration. “You have it on the books and either you exercise your prosecutorial discretion or not, but at least it’s a tool in your toolbox.”
Advocates for restricting immigration fully condemn the idea.
Gang members can be charged with unlawful entry and removed from the United States even if witnesses to more serious crimes refuse to come forward. It’s a tool used against known drug smugglers and human traffickers nabbed at the border but not in the act of plying their illicit trade.
“It basically is open borders because there’s no longer a criminal deterrent,” Andrew Arthur, resident fellow in law and policy at the Center for Immigration Studies, a pro-enforcement group. “Plenty of people speed but very few people drunk drive. Because if you drunk drive you go to jail. If you speed, you get a ticket.”
Last month, nearly 250 civil rights and immigrant advocacy groups sent an open letter demanding decriminalization and other steps to House Speaker Nancy Pelosi and the GOP minority leader, Rep. Kevin McCarthy.
The groups demand repeal of a 1996 law signed by President Bill Clinton, a Democrat, that boosted fines to $2,000 for a first illegal entry offense, raising the punishment to two years in prison, and a felony, for subsequent convictions.
That was an update of a 90-year-old law: Section 1325 of Title 8 of the U.S. Code, which made it a crime for the first time to enter the U.S. except at a port of entry. A first offense was a misdemeanor. Re-entry after removal became a felony.
After a decade of robust enforcement, the law was rarely invoked, until 2005. Under the last three presidents, unlawful entry has been one of the most common charges brought in federal court.
It’s one reason for the family separation crisis under President Donald Trump, but not the only one.
The law dates to 1929, proposed by a white supremacist senator who wanted to broker a compromise between forces seeking to close the border entirely and business interests demanding access to migrant labor.
Soon after World War I, Congress set strict immigration quotas, choking off the flow from Asia and Southern and Eastern Europe.
But employers in the Southwest lobbied to ward off restrictions on Mexicans, because farms, ranches, railroads and mines relied on these workers.
According to Kelly Lytle-Hernández, a UCLA historian of immigration and incarceration who chronicled the genesis of the law outlawing border crossings in a book “City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771-1965,” employers also staved off restrictions by arguing that unlike immigrants from across the oceans, Mexicans often returned home.
That argument wore thin over time. By 1929, nearly 1.5 million Mexicans lived in the United States. Pressure in Congress peaked. And with entry fees rising, migrants were more apt to cross at unguarded spots along the Rio Grande and elsewhere.
Enter U.S. Sen. Coleman Livingston Blease, a South Carolina Democrat who openly defended lynching and whipping of blacks.
Blease’s idea was to make “unlawfully entering the country” a crime, funneling migrants toward ports of entry where flows could be monitored and adjusted. There was a racial tinge, in that the bill promoted the cause of those seeking to curb migration other than from Northern and Western Europe.
Congress enacted the law eight months before the market crashed, setting off the Great Depression.
By the end of 1930, according to Lytle-Hernandez, the federal government had prosecuted 7,001 cases of unlawful entry. The tally topped 44,000 by the end of the decade. The Bureau of Prisons built three new prisons to handle the influx, in El Paso, Tucson and Los Angeles.
Prosecutions fell sharply after Pearl Harbor. U.S. industries needed Mexican labor, and the statute largely fell into disuse. In two terms of the Clinton presidency, only about 14,000 cases were brought.
The turning point came in 2005, with President George W. Bush determined to jump start a grand deal on immigration — and project toughness during his “war on terror.” Operation Streamline began in Del Rio, where the detention center had run out of beds.
There were over 16,000 prosecutions that year nationwide. Within a decade, nearly three quarters of a million people had been prosecuted: 412,240 for improper entry and 317,916 for illegal re-entry, according to a July 2016 study that relied on data collected by a clearinghouse at Syracuse University.
In 2016, the final year of the Obama administration – when Castro was in the cabinet, as secretary of housing and urban development – those two charges alone accounted for more than half of all federal prosecutions.
So, the trend pre-dated Trump. But he built on it.
In June 2018, his then-attorney general, Jeff Sessions, announced a new zero-tolerance policy, directing U.S. attorneys to prosecute all adults caught crossing the Southwest border without permission with illegal entry under Section 1325 – including adults traveling with children.
Since federal courts don’t allow prolonged detention of children, parents and kids would soon be separated, in large numbers – fueling the outrage that has made Castro’s call for decriminalization so popular on the left.
The Democratic presidential contenders universally condemn Trump for mistreating migrants, separating families, “metering” the number of migrants who can request asylum and keeping them outside the country while they wait their turn. They all would end his blanket policy of criminal prosecutions.
Where O’Rourke and Castro differ, and where Castro accused his rival of failing to do his homework on immigration policy, is that O’Rourke wants to keep the legal deterrent on the books for use later, once Trump and his excesses are gone.
“I want to make sure that we retain some part of 1325 to criminally prosecute people we apprehend who are known smugglers, whether or not they’re in the act of smuggling at the moment, or known traffickers, whether or not they’re in the act of trafficking at the moment,” he said July 2 during a campaign stop in Ames, Iowa.
Some prominent immigrant advocates side with O’Rourke on this, among them Ali Noorani, executive director of America is Better.
Even if Castro isn’t advocating open borders, he said, “It lends itself to being painted as open borders.”
“We need to have secure borders, and there needs to be a legal disincentive to crossing the border,” he said Friday.
Juliette Kayyem, an assistant secretary of homeland security under Obama and now, chair of the homeland security program at Harvard’s Kennedy School of Government, argues that decriminalization is no panacea.
“Little of what is being done now by the Trump administration can be laid at the door of Section 1325,” she wrote in the Washington Post after the debate. “Not the interior enforcement efforts that have separated families; not the `dreamers’ waiting in limbo; not the wall; not the changes to asylum law; not the conditions of deprivation that children are suffering under this administration.”
Other federal laws, including a sister provision to section 1325 — section 1326, which makes illegal re-entry a felony – that would remain under Castro’s plan.
And he vehemently disputes that his approach amounts to “open borders.”
“Nobody’s talking about open borders,” he said last Sunday on NBC’s Meet the Press. “We have 654 miles of fencing, we have thousands of personnel at the border, we have planes, we have helicopters, we have guns, we have boats, we have security cameras. …That’s just a right-wing talking point.”
But on the right, that’s exactly the argument.
“You take out 1325, there is no longer any sanction. We’d have to put you through removal proceedings,” which take at least 90 days, often a year or more, said Arthur, the Center for Immigration Studies fellow, and a former immigration judge and top lawyer at the Immigration and Naturalization Service. (In 2003, the INS was folded into new agencies at the Department of Homeland Security.)
At the least, he said, under Castro’s plan, immigrants would get “one free pass” to enter the United States illegally.
Shikha Dalmia, a senior analyst at the Reason Foundation, a libertarian think tank, lauded Castro for raising the issue.
“This proposal is a far cry from open borders,” she argued in a recent essay. “After all, being in the country without proper authorization would remain a civil–and therefore a deportable–offense.”
Saldaña agreed. As U.S. attorney in Dallas from 2011 to 2014, she rarely pursued illegal entry claims, though prosecutors along the border did.
Still, repeal strikes her as an unnecessary invitation.
“It could contribute to more people coming…. Anything that encourages [illegal migration] is a real difficult thing to support. There is a deterrent effect in criminal codes,” she said.