#section 1325

Dara Lind at Vox: 

Julián Castro really wants to make sure that his fellow Democratic presidential candidates, and the voters watching the first 2020 Democratic presidential debate, know what “Section 1325” is.

It’s the section of Title 8 of the United States Code that makes it a misdemeanor for immigrants to enter the United States without papers.

Castro wants to get rid of it — so that being an unauthorized immigrant in the US would still be a civil offense but no longer a federal crime.

And he’s pushing the rest of the Democratic field to join him.

Elizabeth Warren already has endorsed repeal of the “illegal entry” provision. Even moderate Tim Ryan implied he’d be open to repeal during Wednesday’s debate. Beto O’Rourke, who has an aggressive immigration plan of his own, was the only candidate who refused.

In a Democratic primary that has shown the party has shifted leftward on several issues since the Obama administration, this exchange was still remarkable. In fiscal year 2016, immigration offenses — illegal entry and reentry chief among them — made up a majority of federal criminal prosecutions. In 2019, as a result of Castro’s hectoring on the debate stage, the Democratic presidential field debated, for several minutes, whether it should be a crime at all.

Illegal entry has been a crime for 90 years, but only recently has prosecution for it become common

Decriminalizing migration isn’t exactly the same as opening the borders. People coming to the US without papers could still be deported if they were caught and brought before an immigration judge. But it would make unauthorized immigration purely a civil offense, instead of a criminal one.

The distinction matters a lot. Criminal prosecution of illegal entry was what gave the Trump administration the power to separate thousands of families in 2018. It referred thousands of parents for criminal prosecution for illegal entry — advertised as a “zero tolerance” approach — and thus separated them from their children to send them to criminal custody.

If you’re an unauthorized immigrant in the US, you’re committing a civil violation: being present in the US without a valid immigration status. That’s breaking a law, but it’s not a crime, in the same way that violating the speed limit isn’t a crime. If you’re arrested, you can be deported — a huge change to an immigrant’s life, but not technically a criminal punishment.

But if you cross the US-Mexico border between ports of entry without papers, you are committing a federal misdemeanor: illegal entry. And you can be jailed and fined in addition to getting deported.

In one respect, this system has been on the books since 1929, when illegal entry was first made a misdemeanor. But for most of the 20th century, it was kind of irrelevant. Most people who came into the US without papers weren’t tracked down and deported. Presidents generally decided that it wasn’t worth it to spend US attorneys’ time prosecuting endless misdemeanor illegal entry cases. Those who were caught crossing the border were generally informally returned.

Under the Bush administration, however, as an independent immigration enforcement system began to develop and mature, both civil immigration cases (in separate immigration courts) and widespread criminal illegal entry prosecutions became common.

The result swamped federal criminal courts along the border. For the past several years, immigration offenses — illegal entry and reentry — have been the most common crimes for which people are convicted in US federal criminal courts. (In fiscal year 2016, immigration offenses made up a majority of all federal criminal prosecutions.) And the courts along the border where entrants are prosecuted are routinely the busiest in the country.