Democrats and Immigration Part 1: Decriminalizing Improper Entry
Since Trump officially announced his re-election bid there have been a series of high profile initiatives from his administration that have thrown immigration front and center into policy debates in the presidential campaign.
As a result, in recent weeks most of the candidates seeking the nomination for president with the Democratic Party have been forced to hone some kind of detailed message on immigration policy. All of the candidates by and large support extending Deferred Action for Childhood Arrivals (DACA), affecting the people designated "DREAMers" who arrived in the United States as minors, making this the signature issue for the Democrats on immigration. However, as candidates have begun releasing plans, some at least are going beyond support for DACA and boilerplate condemnation of Trump, to present reform ideas that could actually have a systemic impact.
Over the next few weeks, we will be reviewing the candidates' positions on a variety of immigration-related policy issues. This week, we take a look at the little known law that makes improper entry a federal crime - and the discussion about repealing it that surfaced in the Democratic presidential debates.
La Tuna Prison, originally opened to incarcerate people arrested at the border in the 1930s
Decriminalizing “improper entry”
In 1929 Congress made improper entry into the United States a Federal misdemeanor. Improper entry is defined as entering outside of regular ports of entry, eluding inspection by border agents, or using fraudulent documents to gain admittance. Improper re-entry is a felony. The context for the law’s passage was an effort to control migration from Mexico, balancing the demands of Southwestern business interests reliant on migrant labor with those of nativist politicians who were in the midst of a crackdown on immigration from non-European countries:
The idea was to force Mexican immigrants into an authorized and monitored stream that could be turned on and turned off at will at ports of entry. Any immigrant who entered the United States outside the bounds of this stream would be a criminal subject to fines, imprisonment and ultimately deportation. But it was a crime designed to impact Mexican immigrants, in particular.
Over the next ten years, 44,000 migrants were prosecuted under the law. Three new border prisons were constructed to incarcerate them. By World War II, increased demand for labor and frustration within the federal court system of dealing with misdemeanor crimes, led to a relaxation of enforcement. Between 1940 and 2005 very few people were prosecuted for improper entry, limited primarily to people with violent criminal records or repeated re-entry violations.
In 2005 the Bush administration began aggressively and indiscriminately enforcing the law again, as part of its post-9/11 border security push. From Grassroots Leadership:
In 2005, the Del Rio sector of the Border Patrol, an agency within the federal Department of Homeland Security’s Customs and Border Protection, faced a peculiar issue. With civil detention facilities at capacity and voluntary return to Mexico available only to Mexican citizens, non-Mexican migrants were given a notice to appear in front of an immigration judge and released in the United States.” In 2004, Border Patrol apprehended approximately 10,000 non-Mexican migrants in the Del Rio sector; just one year later, the figure spiked to 15,000. The solution to this enforcement issue, Border Patrol decided, was to circumvent the civil immigration system by turning non-Mexican migrants over for criminal prosecution, a practice until then relegated almost exclusively to cases of violent criminal history or numerous re-entries. Upon considering the proposition, the U.S. Attorney’s Office for the Western District of Texas responded with one caveat: in order to avoid an equal protection violation, the courts would have to criminally prosecute all migrants within a designated area, not just those from countries other than Mexico.
With the signature of Secretary of Homeland Security Michael Cherto, it was decided to do just that. Starting in December of 2005, “Operation Streamline” required all undocumented border-crossers in the Eagle Pass area of the Del Rio Border Patrol sector to be funneled into the criminal justice system and charged with unlawful entry or re-entry (8 U.S.C. § 1325 or 1326). Those charged with improper entry usually face a sentence of up to 180 days, and a judge may impose a sentence of over ten years dependent upon criminal history. Re-entry offenders also face tough sentences, including a felony charge that places up to a ten-year bar on legal immigration.
Operation Streamline was extended into other border sectors and has become a central component of the framework for border security. The results of circumventing the civil immigration enforcement system and redirecting people for criminal prosecution are well known, even if the underlying law is not: Family separation, clogged court dockets, and the expanded presence of private prison contractors in immigrant enforcement.
In the last year, the Trump administration exploited this system to press its most well known and abusive deterrent strategy - separating families at the border. This was not a new phenomenon. Family separation was a well documented effect of redirecting adults in a family group for federal prosecution and incarceration (and family separation occurs in other facets of enforcement and border policy as well). The failure to develop an adequate infrastructure to ensure family reunification, track separated children, and maintain communication between parents and children was also well documented under the Obama administration. Nothing was done.
Despite the systemic weaknesses, Trump used the infrastructure available to him to establish a policy of purposefully separating family groups, all the time claiming he had no choice because “it was the law.” The real purpose, also not hidden in administration discourse, was to deter families from migrating to the United States. After much outcry over the practice, Trump issued an executive order to end the policy of family separation (after a federal judge gave him little choice); only it has not ended. The underlying legal infrastructure remains in place and separating children from adults redirected for federal prosecution will remain a result of enforcement. Beyond family separation, criminal enforcement impacts tens of thousands of immigrants every year, leading to prolonged periods of incarceration and prosecutions that can later be used to justify criminal removal proceedings.
Decriminalizing improper entry would alleviate time taken up in the Federal Courts, where nearly one-half of all cases currently heard are for violations of improper entry or improper re-entry. Immigration is mostly dealt with as a civil offense already; however, repealing USC 1325 in and of itself would not change many other problematic features of our immigration system. People could still be deported, face incarceration in “civil detention,” struggle with changes in asylum rules, and so on.
On the other hand, repealing the law would remove the indiscriminate and unnecessary criminal layer of enforcement that leads to tens of thousands of people being incarcerated in federal prisons each year - often to then be handed over to civil authorities for further detention and adjudication. By itself, repealing the law would not end all family separation, but it would remove one of the chief legal justifications for the practice. Finally, axing USC 1325 could also have a longer-term impact on how immigration is viewed. Ana Campoy writes in Quartz:
Over time, though, repealing 1325 could have an impact on the U.S.’s broader immigration policy. Beyond the courts, the law helped build an image of undocumented immigrants as criminals. Removing that legal label could have an effect on public opinion. That might eventually give lawmakers some political room to fix the U.S.’s broken immigration system, including the bottlenecks in the asylum process behind the humanitarian crisis at the U.S.-Mexico border.
Where the Democratic candidates stand
Julian Castro has made repealing USC 1325 a centerpiece of his immigration policy platform. In detailing his plan in a @JulianCastro2020/putting-people-first-e0f765cee00c">Medium post, Castro says,
The worst of the government’s actions stem from a little-known, but significant policy that is central to today’s inhumane and flawed immigration system: Section 1325. This antiquated law dates back to the era when my grandmother presented herself at Texas’ Eagle Pass border crossing, remanded as an orphan to her nearest relatives in San Antonio. In that decade — the 1920s — the U.S. government moved to cut off a wave of Mexican immigrants like her. These laws got a new life in 2005, when the Bush administration decided to charge those that crossed the border with criminal violations, rather than civil ones. This shift to criminalize immigration is at the core of many of this administration’s most egregious immigration policies — from family separation to indiscriminate ICE raids to targeting asylum seekers. It also underlies some of this administration’s most damaging rhetoric that vilifies immigrants and families
To be clear, Castro is still advocating for enforcement of civil penalties. If someone is found to have crossed the border improperly they would still face deportation as a possibility unless they had specific grounds to stay, such as a valid asylum claim. As discussed in Vox,
Being in the U.S. without papers would still be a civil offense — the federal equivalent of a traffic ticket — and deportation would still be the penalty. That’s what Castro points out distinguishes his plan from “open borders”; he’s not actually suggesting that everyone who comes into the U.S. be allowed to stay.
But he is saying that none of them should be charged with a crime, immediately deported, or detained for more time than strictly necessary for crossing the border.
Elizabeth Warren has come out in support of repealing USC 1325 as well. She @teamwarren/a-fair-and-welcoming-immigration-system-8fff69cd674e">writes:
This additional criminal provision is totally unnecessary for border security, and for a century, it was rarely enforced. But since the early 2000s, it has been used to build and sustain a massive immigration detention complex. In 2016, over half of all federal criminal prosecutions were for immigration violations — more than prosecutions for terrorism, organized crime, hate crimes, or financial fraud. This obsessive focus ties up federal prosecutors and overwhelms federal courts. It’s costly and unnecessary. And under Trump, it has become increasingly abusive. We should repeal this criminal prohibition to prevent future abuse. As president, I will immediately issue guidance to end criminal prosecutions for simple administrative immigration violations; end Operation Streamline, which subjects migrants to mass prosecutions; and refocus our limited resources on actual criminals and real threats to the United States.
Warren’s emphasis on executive actions is important to highlight, as repealing the law would require congressional action and that will likely not happen anytime soon.
Corey Booker issued a detailed plan for “virtually ending” immigrant detention that emphasizes executive actions that could be taken quickly. He supports eliminating USC 1325, but in his plan of Executive actions he simply states a priority would be, “Reversing President Trump’s “zero-tolerance” policy and directing U.S. attorneys to deprioritize improper entry prosecutions across the U.S., unless an individual poses a public safety risk.”
Bernie Sanders has not taken a specific line on USC 1325, but recently pushed back strongly against the idea that he supports an “open border.” Sanders has been skeptical of liberalizing immigration because of the potential impact on wages and possibly undercutting support for other policies he promotes - universal health care and college access, for example. The analysis underlying these positions is not strong, but is a common hesitation among social democrats. Sanders has been an outspoken critic of Trump’s inhumane enforcement policies, and has indicated he would seek to cut out private contractors from child detention. His record otherwise suggests he would not make repealing USC 1325 a priority, though he has not spoken out against it.
Joe Biden has not taken a position on USC 1325 in the context of this election, but he is unlikely to support its repeal. Biden’s immigration plan does not specifically address many of the systemic features of enforcement; rather he criticizes Trump’s approach and emphasizes improved relations with Latin America as a means to address the roots of migration. As part of the Obama administration, Biden did oversee the expansion of Operation Streamline, which relied on enforcement of USC 1325, and he has not stepped back from that support.
Beto O’Rourke is the only candidate to explicitly state he does not support repeal of USC 1325. He did so in the context of the first Democratic debate, when Julián Castro pressed him to take a position on this matter. O’Rourke does have many creative ideas on immigration reform, some of which we will take up in future posts. But in response to this particular issue, he said,“I don’t think it’s asking too much for people to follow our laws when they come into this country.” O’Rourke’s specific objection had to do with enforcement against traffickers. However, as Castro pointed out, repealing USC 1325 would not make trafficking legal.
Conclusion
As noted above, repeal of USC 1325 alone would still leave in place many other problematic features of our immigration system. Indeed, the candidates that support its repeal place the act within a broader context of reform - so no one is arguing that this is a fix by itself. That said, it could be a very important catalyst for transformation of our immigration system, one that would move us away from criminalization and toward a system built on respect for human dignity.
It is a hopeful sign that the proposal to repeal USC 1325 is now entering mainstream discussion. The more that candidates articulate how unnecessary, wasteful and inhumane this added layer of criminal prosecution is for immigration enforcement, the more, we hope, people will begin to recognize the need for its repeal.