As anyone who watched or heard snippets of the first Democratic presidential debate likely knows, candidate Julián Castro, former mayor of San Antonio, Texas, proposed a repeal of the portion of U.S. law (8 U.S.C. § 1325) that makes it a crime to cross the border into the U.S. without authorization.
People found guilty of a violation under § 1325 can currently be fined up to $5,000 (under the terms of 18 U.S.C. Section 3571) and/or sentenced to a maximum of six months in jail. Unlawful entry is considered a low-level misdemeanor.
Castro’s was a relatively new legislative proposal, which caught most other presidential candidates off guard. It also caused various members of the media to ask whether Castro was advocating “open borders”into the United States.
My own reaction to his suggestion was far different. Castro got me thinking back to my years of practicing immigration law, and trying to remember whether any of the many clients whom I represented in deportation proceedings—many of whom had entered the U.S. unlawfully—were ever separately prosecuted criminally for that act. I couldn’t think of a single one.
Why was that? At no point were the U.S. immigration authorities I dealt with ever “soft” on immigration. Quite the opposite. More often than I would have liked, they did everything in their power to push as hard for deportation as I was pushing against it. Was I operating in some strange parallel universe?
In a way, I was. The thing to understand is that U.S. immigration courts are civil venues, which don’t handle criminal matters at all. My clients would literally have to attend a different hearing, in a different courthouse, to defend themselves against a § 1325 charge, had such charges been brought against them.
Why my clients weren’t so charged, I don’t know. Maybe the U.S. immigration authorities with whom I dealt realized they had plenty of other ways to penalize someone for unlawful entry.
To back up a bit, let’s remember that someone in the U.S. unlawfully might, at any point, get caught by U.S. immigration authorities. The foreign-born person can then be placed into detention, and is likely to be scheduled for a hearing in immigration court. (That’s when they typically call an attorney.) Again, this is all done within the civil, not criminal system.
At an immigration court hearing (or over the course of several hearings), the person can present defenses, such as a claim for asylum. If those defenses don’t work, the immigration judge can order the unlawful entrant removed from the United States. What’s more, the person will then be barred from lawful return to the U.S. for a period of years (most likely five or ten).
That’s the simple case. It’s not the end of the possible penalties for unlawful entry, however. For example, let’s say the foreign-born person DOESN’T get caught, and in fact marries a U.S. citizen. That’s ordinarily grounds upon which to apply for a green card—but an unlawful entrant who tries to do the processing within the U.S. will be denied and deported for having entered unlawfully; while one who leaves and applies for marriage-based residence from abroad could be penalized for an unlawful stay of more than six months with a minimum three-year bar on returning to the United States.
These examples of civil immigration enforcement are done completely without relying on criminal laws or courts. In fact, the consequences of being detained or deported were harsh enough for most of my clients that a federal fine or a few more months in a holding facility would probably not have been their top concern.
I should also mention that § 1325 doesn’t contain only criminal penalties. Someone found to have crossed the U.S. border unlawfully can also be assessed CIVIL fines of between $50 and $250 for each entry, or double that if it’s a repeat offense. Castro in no way suggested getting rid of this civil penalty; he specifically said he thought unlawful entry should be treated as a civil offense.
So why is § 1325 even the focus of Castro or others’ attention? For the simple fact that the Trump administration is using it as a basis for separating children from their families while they await immigration hearings or other processing. You can’t put children into detention with criminals, the basic reasoning goes. (Never mind that they’re charged with only low-level misdemeanors.)
Remove the criminal penalty, and you’ve removed that portion of the Trump administration’s argument. An ongoing humanitarian crisis could perhaps be ameliorated. Meanwhile, you have most certainly NOT opened up the U.S. borders.