Changing unauthorized immigration from a criminal to a civil offense

In the first debate, in the discussion on immigration reform Julian Castro made an issue of the importance of repealing section 1325 of the criminal code and criticized Beto O’Rourke for not calling for such an action. I was curious as to what that was all about and found this article in which Dara Lind explained its significance, saying that it is this section that enables the government to carry out its current policy of separating families apprehended at the border.

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.

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.

More recently, the Trump administration’s attempts at “zero tolerance” prosecution of illegal entry were the legal basis for its widespread separation of families in 2018: Children were separated because their parents were being transferred to criminal custody for prosecution.

Under the Castro proposal, the only plan any candidate has put out that fleshes out the idea, family separation wouldn’t be possible because criminal prosecution wouldn’t be possible.

Under that plan, an immigrant crossing into the US without papers, whether he was seeking asylum in the US or coming for some other reason, would not be committing a federal crime. If caught by Border Patrol agents, she’d be detained for a brief amount of time, but if she didn’t raise any red flags, she’d be released into the US (with a case management system to check up on her whereabouts) pending an immigration hearing. If she didn’t qualify for some form of legal status like asylum, she’d still ultimately be ordered deported from the US.

This seems like an important but largely ignored topic so I am glad that Castro brought it to more people’s attention.

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