The cover art for this article was created by Jane Li, a student at Harvard College, for the exclusive use of the HPR’s Red Line.
In February 2019, illegal entry at the U.S.-Mexico border reached an 11-year high with 66,450 migrants apprehended by U.S. Border Patrol. According to the Pew Research Center, “people traveling in families accounted for the majority of apprehensions in fiscal 2019, a big shift from the recent past,” and 71% of those migrants were from the Northern Triangle – El Salvador, Guatemala and Honduras – another new trend. The Pew Research Center also notes that every border sector saw a rise in apprehensions in fiscal 2019, with the El Paso region seeing a 477% surge. Most alarmingly, in April 2019, 65.6% of federal prosecutions filed in U.S. magistrate courts had a lead charge for illegal entry.
The debate around the criminalization of border-crossing, codified in law by Section 1325 of Title 8, has intensified under the actions of President Donald Trump’s administration, which has amplified mass prosecutions in federal courts under the law. Section 1325 specifies that a migrant – or, an “alien” – who enters the United States at a time or place not “designated by immigration officers,” or does not enter through a port of entry, can be, for the “first commission” of such offenses, fined or imprisoned for up to six months (and up to two years for subsequent commissions). Additionally, it dictates a civil penalty fee of $50 to $250 for illegal entry for the first time, and double that amount for the second time.
On the 2020 campaign trail, former Democratic presidential candidate Julián Castro was the first of several to argue for the decriminalization of border-crossing during a Democratic primary debate, proposing that illegally crossing the border should be a civil violation, not a criminal one, and highlighting the law’s racist history. On the other hand, Democratic presidential nominee Joe Biden refuses to decriminalize border-crossing, saying immigrants have to “get in line” and wait for their chance to enter the country legally, pushing a common conservative point about maintaining “law and order” at the border. Both sides prompt an investigation: should border-crossing be decriminalized?
The History of Section 1325
Biden, like many moderate Democrats, ignores or lacks knowledge of the racist history of Section 1325. In the early 20th century, it was not a crime to enter the United States without authorization, as authorities deported immigrants who crossed illegally but did not detain and prosecute them for a federal crime – essentially, the myth of the necessity of Section 1325 to ensure national security did not yet exist.
Border Patrol was established in 1924, and when an immigration act was authored in 1929 by Senator Coleman Livingston Blease with the intent of restricting Mexican immigration, the border became a problematic area, as Blease’s white supremacist mentality poisoned administrative affairs at the border. A known segregationist, Blease believed Mexicans were inferior to Americans, showing that the danger to national security was not real, but racially motivated. Thus, when mediating between nativists who wanted to restrict Mexican immigration and agricultural industrialists who relied heavily on Mexican labor, Blease sided with nativists through his immigration act, which forced “Mexican immigrants into an authorized and monitored stream that could be turned on and turned off at will at ports of entry,” according to Kelly Lytle Hernandez, a history professor at the University of California, Los Angeles.
The illegal crossing of the southern border by Mexicans was thus criminalized in Blease’s 1929 immigration act, and so began the conception of “Mexican criminality” in American minds. Shortly after Blease’s 1929 act was passed, according to Lytle Hernandez, Border Patrol “subjected Mexican immigrants, in particular, to kerosene baths and humiliating delousing procedures because they believed Mexican immigrants carried disease and filth on their bodies,” demonstrating the corruption of administrative procedures under the law and the resulting violation of Mexicans. Such degrading government actions were not taken prior to the 1929 act, which reveals its true discriminatory effects on Mexicans.
The prejudice against Mexicans would continue, as in 1952, Congress passed the Immigration and Nationality Act, which repealed Senator Blease’s initial 1929 immigration act but retained its racist foundation: the criminalization of illegal entry at the southern border, as this new act contained Section 1325, a law that remains in effect today.
Most importantly, neither law (the 1929 act nor Section 1325) was enforced throughout much of the 20th century, with Blease’s act having only been used to prosecute approximately 44,000 immigrants in the first 10 years after its passage, as the U.S. economy relied heavily on Mexican labor during World War II and criminal prosecutors drained too many vital resources. In an interview with the HPR, César Cuauhtémoc García Hernández, an associate professor of law at the University of Denver, said this clearly demonstrates the nonnecessity of Section 1325, as “there were many tumultuous events during this time, like the World Wars, the Cold War and great tension with the Soviet Union, and various military engagements throughout the world, so one would think that [the law] was needed for enforcement.” However, given the low usage of Section 1325 during the 20th century, it evidently is not needed for national security, especially since the borders are not facing threats like those during the 20th century.
García Hernández noted that there are “many laws in the U.S. that are not enforced,” so when a law is enforced, it is likely due to the “politics of the moment, [but] not necessarily [due to the] contribution of migrants to the state.” Much like the importance of Chinese migrants to the economy on the West Coast in the second half of the 19th century, before the U.S. curtailed and formally barred their entry due to nativist outcry in 1882, Mexican migrants were – and still are – critical to the U.S. economy. So, why has the desire to keep them out resurfaced in recent years if Section 1325 was not enforced in much of the 20th century?
The Myth of National Security: 9/11 and Section 1325
Under President George W. Bush, and perpetuated by his successors, Barack Obama and Donald Trump, Section 1325 was weaponized to increase national security after the events on Sept. 11, 2001. Doing so created the misconception that Section 1325 ensures national security, and ignored the law’s history of usage that disproves that misconception, as national security was not threatened before the law’s sudden enforcement. Additionally, under these three presidents, the precipitous enforcement of 1325 expanded the law’s targeting of Mexicans to the targeting of all Latino immigrants approaching the border, which decreased Latino immigration, solidifying the law’s true purpose.
This is best exemplified in the way Section 1325 draws national attention to the southern border and Latino immigration, but does not bat an eye to “visa overstayers, [who] are estimated to make up approximately 40 percent of [illegal immigrants] in the United States,” according to Doris Marie Provine, the professor Emérita at the School of Social Transformation at Arizona State University. This is wrong because “[while] an immigrant who crosses the border without documentation may be prosecuted criminally, an immigrant who enters on a tourist visa and stays beyond the period allowed cannot be,” according to Jessica Zhang, a third-year law school student at Harvard Law School, and Andrew Patterson, a second-year J.D. student at Harvard Law School. This policy discriminates against Latinos who mainly enter the U.S. through the southern border, as visas are rarely given in countries with high poverty rates like Mexico and other Latin American nations.
In the context of the plane hijackings of 9/11, the lack of criminal prosecution for illegal entry through airports compared to land ports demonstrates the United States’ racially-motivated and unquestioning acceptance of the southern border’s criminality and demonstrates how Section 1325 does not ensure national security where it is more threatened. Although airports arguably pose a far greater threat to national security than landlords at the U.S.-Mexico border do, conservative media and politicians often falsely assert that the caravans of asylum-seekers at the southern border are secretly planning an “invasion” or bringing massive amounts of drugs to the U.S. or that they are rapists and murderers. These claims ignore the actual struggles of asylum-seekers and the truth (and horrific reality) behind their desire for safety and economic opportunity. In fact, the majority of crimes being committed at the U.S.-Mexico border, like human trafficking, sexual violence, and extortion, are targeted toward vulnerable migrants, not American citizens, who desperately hope for a chance to enter the United States.
Therefore, Section 1325’s blatant discrimination along racial lines, exemplified by visa overstayers’ pass on jail, reveals that the law is rooted in systematic racism, not national security, and should be revoked.
President Bush and the Department of Homeland Security: A Vicious Cycle in the Courts
Apart from the futility of Section 1325 in regulating illegal immigration via airports where national security is arguably more at risk, the impact of the law on federal courts and migrants’ opportunity is also detrimental. According to Zhang and Patterson, in the 1990s, most migrants apprehended at the border were Mexicans who were “quickly deported through a ‘voluntary return’ program, which consisted of the noncitizen signing some papers before being bused back across the border” under Section 1325. However, Border Patrol was faced with the issue of what it termed OTMs or ‘other-than-Mexicans’ who were immigrants that did not originate from Mexico and could not be ‘voluntarily returned.’ Instead, OTMs were “detained and put into regular removal proceedings,” but the “U.S. Attorney’s Office rejected this plan as being obviously discriminatory [against Mexicans] on the basis of national origin, so the Department of Homeland Security came up with a new plan: Prosecute everyone.”
According to the National Immigrant Justice Center, this new plan, titled “Operation Streamline,” was created in 2005, and prosecuted mostly Latino migrants for unauthorized border crossings through “mass hearings in which up to 80 migrants are arraigned, found guilty, convicted and sentenced for unlawful entry in one fell swoop” under Section 1325. 92% of all those imprisoned for unlawful entry and reentry were Mexicans and Central Americans in 2010, according to the Bureau of Justice Statistics, and the number has likely increased due to greater migration at the border in recent years.
Operation Streamline has now evolved into a more serious and harmful policy: the Trump administration’s “zero-tolerance” policy under Attorney General Jeff Sessions, which increases the mass detainment and prosecution of migrants for illegal entry under Operation Streamline, systematically targets parents traveling with children through family separation, and sets up stringent barriers to asylum through metering and changing the definition of an asylum claim to exclude gang and domestic violence claims.
The overwhelming caseload under the “zero-tolerance” policy puts immense pressure on federal court dockets, which then results in the violation of these migrants’ due process rights, as many of them are often represented by one lawyer. Facing a lengthy prison term unless they plead guilty to the crime of unauthorized entry, Mexican and Central American immigrants have criminal records forced on them, which “makes them felons [and] in turn helps to justify stronger enforcement measures against them as ‘dangerous’ criminal,” according to Provine.
Thus, Section 1325’s conception of “Latino criminality” is now a negative feedback loop as it labels illegal immigrants as criminals in law, and then imprisons Latino bodies en masse, and finally gives virtually all of them an actual criminal record that is later held against them, as having a criminal record reduces migrants’ chances of gaining asylum or becoming a citizen, which ultimately serves to keep this particular category of people – Latinos – out of the United States. This blatant racial discrimination occurring under Section 1325, with no proof that national security is bolstered, demonstrates why Democrats should support the decriminalization of border-crossing.
In an interview with the HPR, Linda Rivas, the executive director and attorney at law of the Las Americas Immigrant Advocacy Center, says that if Section 1325 were repealed, immigrants would be eligible to lawfully adjust their status, removing any criminal charges on their record, and giving them a chance to lead a better life.
Furthermore, García Hernández summarized the true question at hand when we consider decriminalizing border-crossing: Section 1325 “allows elected officials to stigmatize migrants… [by] prosecuting and convicting that person of a crime… [but] is this person a criminal?” This issue is more than a question of the law – it is a question of morality, and Americans must decide how they will let their laws treat other human beings.
Is Decriminalizing Border-Crossing an Open Borders Policy?
Despite evidence to the contrary, Democrats reluctant to repeal Section 1325 may argue that revoking the law will result in open borders, or allow for migrants to move to any country and settle there, which will undermine national security. However, decriminalizing border-crossing is not an open borders policy, as there are still many other pieces of legislation in place, apart from Section 1325, that can restrict who enters the country and ensure national security. Rather, the decriminalization of border-crossing would simply mean that a migrant who enters the country illegally will not be fined and/or detained, imprisoned, and prosecuted for a federal crime, nor will they obtain a criminal record.
Instead, those who cross the border illegally will be committing a civil violation, and they can still be deported. Additionally, according to Zhang and Patterson, after the decriminalization of border-crossing, the first effect would be the “unburdening of federal courts and U.S. Attorney’s dockets and a refocusing of federal resources on other priorities” like trafficking and smuggling, which are more serious immigration crimes that have a greater impact on the American public.
Even the argument that illegal entry prosecutions deter migrants is not justified, according to Rivas, as there is scant evidence demonstrating this and it would likely not be true for asylum seekers who are in desperate need of a safe and secure home. In fact, regarding asylum seekers, Section 1325 violates their rights and is fundamentally incompatible with U.S. commitments to the United Nations’ 1951 Refugee Convention that prohibits states from penalizing refugees for their manner of entry.
On the whole, Section 1325 has caused immense pain and trouble on behalf of both federal courts and migrants, especially in that it justifies President Trump’s enforcement of family separation at the border. Family separation would no longer be possible if Section 1325 were repealed because criminal prosecutions would no longer be legal. Thus, adult migrants could not be detained and neither could their children be separated from them.
Additionally, Rivas noted that so long as the immigration court is denied the status of an Article I independent court, or in other words, so long as the immigration court remains a part of the Department of Justice, it will be subject to the political whims of the Attorney General in office, and so, the fate of migrants will remain in the hands of reckless politicians.
The Future of Immigration Law
Therefore, Section 1325 does not ensure national security; in truth, it was built upon racist principles and continues to instill “Latino criminality” in American minds. So, Democrats should hold accountable Biden and others who claim “national security” when supporting the law because they are likely unaware of or refuse to acknowledge the racist history and current, detrimental implications of this law on the immigration system, courts, and migrants. By labeling his refusal to decriminalize border-crossing as a “tolerant” and “moderate” viewpoint, Biden is leading Democrats to support a law they otherwise would not and keeping them from bringing about significant, progressive change to our immigration system and to migrants.