During the first Democratic presidential debate of the 2020 race last week, former Housing and Urban Development secretary Julián Castro challenged all candidates to join his call for the repeal of a controversial immigration law.
The law, Section 1325 of Title 8 of the U.S. Code, makes entering the United States “at any time or place other than as designated by immigration officers” a federal crime.
It’s among the most prosecuted federal crimes in the United States. Thousands of defendants are charged with violating Section 1325 each month.
The government shouldn’t “criminalize desperation,” Castro argued. Instead, he advocated, it should treat the unlawful entry of undocumented migrants as “a civil violation.” That is, migrants who enter the United States without permission should be deported, not incarcerated.
Castro acknowledged that several other candidates on the stage in Miami, including Senator Cory Booker, Washington Governor Jay Inslee, and Senator Elizabeth Warren, already agree with him.
But others, like former Congressman Beto O’Rourke, don’t support Section 1325’s repeal.
“I don’t think it’s asking too much for people to follow our laws when they come to this country,” O’Rourke said.
During the second night of the debates, which featured a slate of another 10 Democratic hopefuls, most of the candidates on stage indicated their support for the measure’s repeal.
I would repeal Section 1325 of the Immigration and Nationality Act — the only way to ensure that another administration like Trump’s could not separate little children from their mothers. They use that law to justify their cruel policy of family separation. It must end. pic.twitter.com/bl9NcdjWsK
— Julián Castro (@JulianCastro) June 27, 2019
The United States placed few legal restrictions on crossing borders prior to the 1920s. Even then, entering the U.S. without authorization wasn’t a crime. Deportations could be effected through civil legal process.
Criminal enforcement, however, remained rare for decades—even when the deportation of Mexican Americans surged in the 1930s, 1940s and 1950s. Prosecutions based on Section 1325 only started ramping up in the first decade of this century, during President George W. Bush’s administration.
Due to the Justice Department’s current “zero tolerance” policy, anyone who can be charged under Section 1325 should be charged with a misdemeanor. That has, in thousands of cases, included parents traveling with children. Once charged with this federal crime, parents must be taken into the custody of the U.S. Marshals—where children are not allowed.
The White House publicly disowned this policy in June 2018, just days before a U.S. District Court judge ordered the government to reunify all separated families. Yet this practice has continued at the border.
Based on my research about the federal prosecution of immigration crimes, I’m confident that repealing Section 1325 would not increase the number of undocumented people living in the United States.
Anyone without authorization to live in this country would continue to be subject to deportation, a remedy the Supreme Court has called “burdensome and severe.”