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Can We Get Beyond Conversations about Section 1325?

When Julian Castro introduced the idea of decriminalizing border crossing into the Democratic presidential nominee conversation, it took over. That is in part because it is one of the places where daylight exists between the candidates, so debate moderators have focused their attention there. Castro called for a repeal of Section 1325 of The Immigration and Nationality Act. It reads:

Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

It makes crossing the border without authorization a misdemeanor and a federal crime. Section 1325 has been on the books since 1929, but most administrations have considered unauthorized border crossing to be a low priority for law enforcement officials because for much of that time, it was a self-correcting problem. Many undocumented immigrants who came to America to work returned home when seasonal work ended. It wasn’t until the Reagan Administration worked to make America’s southern border less permeable that undocumented immigrants who came to work were forced to make a choice, which led many to put down roots. 

Before Trump, administrations looked for a criminal offense after entering the United States to trigger detention and deportation. The Trump Administration has considered violation of Section 1325 a reason to initiate legal proceedings immediately. Because it carries a sentence of up to six months in prison, enforcing Section 1325 helped to create the detention overpopulation problem. Castro’s argument is that if Section 1325 was repealed, Trump and future presidents wouldn’t have a misdemeanor on the books that could be used to arrest immigrants simply for crossing the border. 

President Trump has already dismissed the idea as opening the borders, but according to Dara Lind of, that’s not how Castro’s plan works. She writes: 

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.  

During Tuesday’s debate, Montana Governor Steve Bullock referred to President Barack Obama’s head of Homeland Security Jeh Johnson, who opposed the idea in a Washington Post op-ed, saying that it would be "tantamount to a public declaration (repeated and amplified by smugglers in Central America) that our borders are effectively open to all." Since smuggling remains illegal and punishable by incarceration, it’s not clear how misperception is a problem. And Johnson acknowledges that detaining everyone who crosses the border without authorization helped to create the humanitarian crisis at hand. 

“First-time illegal border crossers are in fact rarely prosecuted for that misdemeanor (except for last year’s disastrous “zero-tolerance” policy),” he wrote.

The candidates themselves take up this conversation with some enthusiasm because it’s one of the places where they can say what they will do. They’re uniformly horrified by the Trump Administration turning the country’s back on asylum seekers, its family separation policy, and the inhumane treatment of detainees at the U.S./Mexico border. They can all promise with conviction that they’ll reverse those policies. They can all promise that they won’t be Trump, but it’s harder to say what they will do and to draw distinctions that are easily communicated. How will they deal with the influx of asylum seekers and those fleeing poverty, corruption and violence? That problem challenged Obama too. 

If we’re lucky, the subject of decriminalizing border crossing won’t be the newest shiny object and debate moderators will start to ask questions that will give us a clearer picture of how the candidates plan to deal not only with the border, DREAMers, and what to do with the undocumented immigrants already in the country, but comprehensive immigration reform. Many of these issues are easy when handled when framed as simple values questions. As is so often the case with immigration law, the details matter.

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