During the first Democratic primary debate last week, former secretary of Housing and Urban Development Julián Castro succeeded in creating the viral moment that all second-tier candidates hope for when he challenged all of his opponents to support the decriminalization of illegal border crossings.
Castro, having deftly identified the separation of migrant families as the issue that has most exercised the Democratic base, stormed into his first debate performance with a ready-made solution: repeal section 1325 of the Immigration and Naturalization Act, which makes “improper entry” into the U.S. a federal misdemeanor punishable by up to six months in jail, thereby ensuring that no migrants would be detained unless they’d committed another, ostensibly more serious offense.
“The reason that they’re separating these little children from their families is they’re using Section 1325 . . . to incarcerate the parents and then separate them,” Castro said to applause.
Fellow Texan Beto O’Rourke, himself a vocal proponent of more permissive immigration policy, demurred when challenged by Castro to endorse the proposal. But all other candidates on the stage Wednesday night — and eight out of ten candidates the following the night — raised their hand when asked if they supported Castro’s plan, which he first rolled out in May as part of a broader immigration platform.
O’Rourke’s central objection to Castro’s proposal was that it would make it more difficult to detain human and drug traffickers apprehended crossing the border — an argument Castro immediately dismissed on the grounds that existing laws criminalizing those acts obviate the need for section 1325. But Castro’s retort fails to recognize that Section 1325 is currently being used primarily as a backstop to detain the very migrants he claims he still wants to stop: those who are suspected of trafficking or other serious crimes.
“This is the Capone method. You don’t get them where you want them, you get them where you got them,” says one immigration-policy expert familiar with how 1325 is currently used. “If we catch a smuggler, I’ve got him dead to rights on 1325. I can then hold him for his trial.” Detention would be otherwise out of the question, since most traffickers are savvy enough to avoid being apprehended in the act.
We are told that Castro’s proposal should not be confused with a call for open borders, which, according to Castro and his supportive rivals, is simply a “right-wing talking point.” Illegal immigrants who commit serious crimes can still be deported through civil courts, as they are currently, Castro asserted during the debate. On Tuesday, Senator Cory Booker of New Jersey, who raised his hand in support of Castro’s proposal, usefully released his own immigration plan, in which he stops short of calling for decriminalization but instead vows to “deprioritize” the prosecution of illegal border crossers.
Booker ignores that we already “deprioritize” those prosecutions. In fact, only around 10 percent of migrants caught crossing the border illegally this year, the minority whom Border Patrol agents feel most strongly about barring from the country, have been prosecuted under 1325. (Some unknown number of migrants have also been removed from the country under threat of 1325 prosecution without actually being prosecuted.)
To deprive Immigration and Customs Enforcement (ICE) of a tool used to detain and ultimately remove criminals at a time when the system is on the verge of total collapse owing to the influx of innocent migrants would be absurd. And it is not even remotely clear that repealing 1325 is the most effective way to end the tragic family separations. In fact, no less a voice than President Obama’s former assistant secretary of the Department of Homeland Security has pointed out that a creative administration intent on separating families could easily produce a different justification for its actions if 1325 were repealed.
“The administration began by separating families under 1325 a year ago, but it now defends its separations as a way to protect kids. Ironic, yes, but also proof that repealing 1325 won’t stop an administration such as Trump’s from breaking up families. It also means that even if 1325 remains on the books, a future president will be free to end family separation,” the former assistant secretary, Juliette Kayyem, wrote in an op-ed published Tuesday.
Jessica Vaughn of the Center for Immigration Studies argues that the problem is not Section 1325 itself but how it has been wielded. She tells National Review that rather than repealing the statute — which would invite all manner of consequences, including legalizing marriage visa fraud — the administration could avoid separating families by simply overriding the 1997 Flores consent decree, which limits to just 20 days the amount of time that minors can be held in federal custody. Without the 20-day limit, families could be held together while their asylum claims were being adjudicated.
“The way to ensure that families stay together is not to change the law,” Vaughn says. “It’s not like Section 1325 was responsible for family separation; it’s just the section of law they were using. And they only did that because they couldn’t get the Flores decision overturned quickly.”
She adds that since Congress appears unwilling or unable to provide a legislative fix, the Department of Homeland Security is currently at work on an administrative rule change that would supersede Flores.
Prospective migrants are remarkably responsive to changes in U.S. immigration policy. In recent months, migrants have arrived at the border in numbers not seen for over a decade, overwhelming our immigration system. They came secure in the knowledge that they would be admitted to the country while awaiting an asylum hearing that they may or may not ever show up for. If Castro or one of the other Democrats who backs his plan wins the White House and successfully eliminates the possibility of detention, it could introduce a new, even larger wave of migrants to a system already past its breaking point.