Some Democrats Want to Decriminalize Illegal Border Crossings. Would It Work?

Crossing the border without permission is a crime, but the law prohibiting it has often gone unenforced since it was passed in 1929. Instead, most first-time violators are deported under civil, not criminal, proceedings.

But a debate is growing over whether the criminal law should be eliminated entirely — fueled by an increase in prosecutions that began under President George W. Bush and a backlash against the Trump administration’s “zero tolerance” policy, which used the law to step up prosecutions and to justify separating migrant children from their parents.

The newly contentious statute, Title 8, Section 1325 of the United States federal code, makes entering the United States “at a time or place other than as designated by immigration officers” a misdemeanor offense, punishable by a fine and up to six months in prison. But many who cross the border illegally never face prosecution.

Some Democratic presidential candidates have embraced the idea of striking the provision entirely, including Julián Castro, a former housing secretary under President Barack Obama; Senator Elizabeth Warren of Massachusetts; and Mayor Pete Buttigieg of South Bend, Ind.

Yet others, including Beto O’Rourke, a former congressman who grew up along the border in West Texas, have said they would leave the law in place, instead favoring reforms that would admit migrants who are entitled to legal protection under asylum or other laws, while preserving the ability to punish those who enter illegally.

While some argue that the impact of a “decriminalization” of border crossings would be minimal, others say the issue is of grave importance — not only because of the way the law is written, but also because of how it could be used in a punitive fashion under a policy like “zero tolerance” in the future.

Prosecutions have expanded under three administrations

The provision that allows the federal government to criminally charge people for improper entry was rarely used until President George W. Bush’s administration introduced Operation Streamline, a policy to ramp up prosecutions for illegal entry in the hope that it would serve as a deterrent to illegal border crossings.

Though government studies have shown that Operation Streamline was not an effective deterrent, the practice of criminal prosecutions continued to expand through both the Obama and Trump administrations.

Practically speaking, that has meant that people who are under civil deportation proceedings can suddenly face criminal charges and be brought before a federal judge. If they are convicted, they complete their criminal sentence before being moved back into immigration custody to finish out that legal process, which can end either in deportation or permission to remain the United States.

Immigrant advocates argue that the process is both confusing and unnecessarily duplicative. “It’s wasteful from a taxpayer dollars perspective and makes an already harsh enforcement system doubly harsh,” said Heidi Altman, the policy director of the National Immigrant Justice Center.

But proponents of the law say that it is important that there be real consequences to convey the seriousness of the offense.

But most illegal crossers are not prosecuted

Even under the Trump administration’s “zero tolerance” policy, under which prosecutions shot up by about 40 percent, only a fraction of those who crossed the border illegally were prosecuted for doing so. The cases place a heavy administrative burden on federal judges, prosecutors and public defenders.

Operation Streamline allows for mass hearings in which dozens of migrants are processed at once — usually entering guilty pleas — often after only a brief discussion with a public defender. The hearings have been criticized by immigrant advocates who argue that they deprive migrants of their legal rights to due process.

Still, Streamline prosecutions have overwhelmed many of the nation’s federal courts. In the Southern District of California, for example, the court converted part of a garage to make space for more illegal entry prosecutions, and created a separate courtroom that is staffed in part by government lawyers who are on loan from Customs and Border Protection, rather than local federal prosecutors, to handle the increased workload.

Repeat offenders face more serious consequences

The Democratic candidates differ over whether they would go further down the decriminalization road to eliminate a second provision of the United States federal code, 1326, which makes illegal re-entry into the United States a much more serious felony offense, punishable by up to 20 years in prison and a fine. Some argue that provision is necessary to discourage people who have been deported from returning to the United States over and over again.

Regardless of whether they are prosecuted, though, people who are deported face civil penalties if they return and are caught. Already under the current law, anyone who is placed in “reinstatement proceedings” — meaning that they have been deported in the past — is ineligible for asylum and the pathway that comes with it to legal permanent residency and, eventually, citizenship.

Depending on where they are arrested, some who are in reinstatement proceedings may also be subject to mandatory detention. And unless they can prove a “reasonable fear” of returning to their home country (a higher bar than is required of asylum seekers), they are subject to “expedited removal,” meaning that they can be swiftly deported again without going before an immigration judge.

Why repeal a law that isn’t widely enforced?

Many argue that some kind of criminal consequence is necessary to deter mass migration to the United States. But a growing number of Democrats favor eliminating the laws that criminalize illegal entry — even as a misdemeanor.

Ms. Warren, in arguing for repeal, said she is concerned with how the law could be used, particularly by Republican administrations bent on a punitive approach to immigration.

She pointed to “zero tolerance,” which forced the separation of migrant children from their parents when their parents were charged and transferred into criminal custody, because children are not allowed in such settings under the law. “As Americans, what we need to do is have a sane system that keeps us safe at the border, but does not criminalize the activity of a mother fleeing here for safety,” she said during a Democratic presidential debate in Detroit on Tuesday night.

Other candidates argue that decriminalization would not entirely block such stringent tactics as family separations in the future, and that it would eliminate important disincentives to prevent possibly large numbers of people seeking to cross the border without authorization.

“You are playing into Donald Trump’s hands,” Gov. Steve Bullock of Montana said during Tuesday’s debate. “The challenge isn’t that it’s a criminal offense to cross the border. The challenge is that Donald Trump is president, and using this to rip families apart. A sane immigration system needs a sane leader. And we can do that without decriminalizing.”