A wonky bit of immigration law known as Section 1325 briefly took center stage during Wednesday night’s Democratic debate with a question about immigration directed at Julián Castro. Section 1325 is the part of the U.S. Code that criminalizes illegal entry and reentry to the United States, and Castro used some of his time during the debate to call for the section’s abolition.
Although being in the United States without status is not a crime, entering the U.S. “without inspection” or entering through an area that is not officially a port of entry is criminalized under Section 1325 and can lead to a conviction and incarceration for immigrants and asylum-seekers looking for protection in the United States. It was this provision that facilitated family separation, as children were taken from their parents when the adults were taken into federal criminal custody to face charges under Section 1325.
Sen. Elizabeth Warren has also endorsed the idea of nixing Section 1325, and during the debate, Tim Ryan was pushed to say he’d be open to the idea. Gutting criminal prosecutions under Section 1325 is an excellent, radical idea. But unless candidates are also willing to jump into the weeds of civil immigration law and push for changes to the Immigration and Nationality Act, in addition to decriminalizing crossing the border, eliminating Section 1325 alone won’t solve much.
What would getting rid of Section 1325 actually do? Well, at its most basic, repealing the provision would virtually eliminate a huge chunk of the federal criminal docket. Immigration cases are the most common federal criminal case. In fiscal year 2018, they made up 34.4 percent of the total federal caseload with a whopping 23,883 cases. Those numbers are a 16.5 percent increase from FY 2017, when 20,496 immigration cases made their way through federal courts. Although Section 1325 has been on the books for almost a century, it was only under George W. Bush’s administration that prosecutors started pushing convictions for the offense.
Because of the desperation to get out of jail and the expediency of the mass trial program implemented under Bush and continued to this day known as “Operation Streamline,” many migrants plead guilty to the accusation. Following their release from criminal custody, migrants are then generally taken into immigration custody, where they face their underlying immigration removal proceedings. Most are ultimately deported.
Getting rid of Section 1325 alone would not change much about removal proceedings in immigration court. Whether or not some who enter without inspection go through criminal proceedings, they are still put into removal proceedings if apprehended, so plenty of people would still end up in immigration court, where under our current laws they have little to no chance of relief. This means that even if they were not charged under Section 1325 when they first entered, they still face almost certain deportation—a fate that for many is worse than a federal misdemeanor conviction.
Eliminating Section 1325 also wouldn’t completely end family separation. Although prosecutions under Section 1325 were the tool used by the Trump administration to systematically separate parents and children during its “zero-tolerance” policy, our immigration laws have always split up families. Families are separated when a parent is detained in immigration detention, when a child crosses alone and the parents remain in the home country, and when families are split because only some of them can get visas. Despite President Donald Trump’s claims that “chain migration” allows immigrants to sponsor large amounts of relatives, our family-based immigration system is exceedingly stingy, allowing only some family members in and sometimes requiring decadeslong waits before a visa is available.
Additionally, getting rid of Section 1325 wouldn’t do much to change the ways that undocumented migrants living in the United States who haven’t been apprehended are treated. Living in the United States itself is not punishable under Section 1325, and getting rid of that provision would not eliminate the most challenging barriers that undocumented migrants face in adjusting status, namely, the lack of a path to documentation and the bars on adjusting status even if someone is eligible to become a lawful permanent resident. Under our current immigration laws, many people who are undocumented will never have the chance to adjust their status, and those who do may be forced to leave the country for up to 10 years before finally being eligible to come back as a legal resident.
Decriminalizing unauthorized entry is a great starting point and would do a lot to free up federal resources and eliminate thousands of unnecessary criminal convictions, but it won’t solve the underlying problems in our immigration system. Migration shouldn’t be a crime, but it will take a lot more than ditching Section 1325 to create a genuinely equitable immigration system. And while Castro’s remarks about Section 1325 got most of the buzz Wednesday night, his immigration plan not only calls for decriminalizing entry but also broadly calls for changes that would address some of these underlying issues. That includes a path to citizenship and the elimination of the bars that make it exceedingly difficult for undocumented people to adjust status from inside the United States. We need to drill down into these less exciting, more complicated aspects of our civil immigration law to meaningfully change our immigration system.
The question is: Will the candidates continue to focus on the hype-worthy promise of decriminalization, or will they give us what our immigration system truly needs—a dull, wonky, tedious system for a humanitarian overhaul and an iron-clad plan for getting those changes passed?
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