AP Explains: The Law Criminalizing Improper Border Crossings

Jun 28, 2019
10:19 AM

In this June 27, 2019, file photo, a U.S. Border Patrol car drives along the Rio Grande in Brownsville, Texas, as seen from Matamoros, Tamaulipas state, Mexico.  (AP Photo/Rebecca Blackwell, File)

By SOPHIA TAREEN, Associated Press

CHICAGO (AP) — A federal law that President Donald Trump used in justifying the separation of migrant parents and children at the border last year is creating waves on the 2020 campaign trail, with some Democrats vowing to do away with it completely.

During the first televised presidential debate, Democratic candidate Julián Castro promised to “terminate” the law that criminalizes unauthorized border crossings and challenged others to do the same. Several candidates on the stage of the first debate night said they agreed. By Thursday, all but one Democratic candidate onstage said they would make illegal border crossings a civil, not, criminal offense.

The debates gave prominence to a law that’s been part of border enforcement for decades, but rarely has received this level of national attention.

Here’s a closer look at the law:

What Is the Law?

The law is called illegal entry, and it makes unauthorized border crossings a crime. The law specifically bars entry into the U.S. at places other than through ports of entry, like an airport or bridge on the U.S.-Mexican border. A violation of the law, also known as Section 1325, is a misdemeanor with a penalty of six months in prison, though most are sentenced to time served. A second offense, or illegal re-entry, is a felony.

Critics say the U.S. government doesn’t have the resources to prosecute every case and the focus should be on more dangerous criminals.

Advocates say prosecuting the cases deters illegal immigration, though data on the topic is limited.

How Has It Been Used?

For decades the government didn’t actively pursue criminal cases under Section 1325, which has been on the books since 1929. Those caught were deported by immigration enforcement.

It wasn’t until a 2005 program started by President George W. Bush, vowing to curb illegal immigration, that the number of criminal prosecutions soared.

With “Operation Streamline,” large groups of people were tried all at once and slapped with misdemeanors. There were just under 40,000 criminal prosecutions for immigration that year, and up to 90,000 under former President Barack Obama in 2013, according to a research organization at Syracuse University.

What’s Happening Now?

The law generated international headlines last year when Trump rolled out his “zero tolerance policy,” vowing to prosecute first time offenders with six months in prison. Immigrant parents arriving at the border with their children were hauled into court and prosecuted for illegal entry, and children were separated from them.

Thousands of children were separated from their parents before Trump backtracked and signed an executive order stopping the separations amid widespread outrage over the practice. Shortly after, a judge also ruled that families could only be split in limited circumstances.

Under Trump, the total number of immigration-related criminal prosecutions reached around 100,000 in 2018, which includes Section 1325 cases.

Repealing the law would require Congress to act.

Has the Law Generated Controversy Previously?

One year ago, defense lawyers lashed out at how the Justice Department was prosecuting illegal entry in federal courtrooms as Operation Streamline expanded to San Diego. California was a longtime holdout against the mass illegal entry prosecutions in federal court that were the norm in other border states since the Bush administration. That changed with “zero tolerance,” and the prosecutions were brought to San Diego.

There were no illegal entry cases in February 2018 in the Southern District of California, but more than 800 by June as family separation reached its peak.

Critics say the mass hearings violate the due process of immigrants. Reuben Camper Cahn, executive director of Federal Defenders of San Diego Inc., invoked the “separate but equal” doctrine last year in arguing that immigrants in the Operation Streamline proceedings were being treated differently from the citizen population in courts.


Follow Sophia Tareen on Twitter at @sophiatareen.