During the Democratic debates, one topic seems to dominate the discussions about immigration: the repeal of section 1325 and the decriminalization of border crossings. Despite this topic’s prevalence, however, there is also a lot of confusion about what exactly would this change. In reality, not much. Although crossing the border without authorization has been a crime since 1929, it is usually not enforced. Instead, offenders are handled by civil, not criminal courts. Essentially, the repeal of section 1325 would simply codify this norm. It would not mean open borders. Violators would continue to be deported through the exact same system that the majority of them already flow through.
Although this law was not enforced for most of its history, in recent years that has begun to change. In 2005, President Bush began to direct US attorneys to try undocumented immigrants under section 1325 in response to an increase in border crossings. Despite multiple government studies this policy was continued under Presidents Obama and Trump. While, as of 2018, almost 70% of individuals apprehended by the Border Patrol were tried in a civil court, this trend still represents a drastic change from the past.
To make matters worse, the Trump administration has used section 1325 to justify its child separation policy. As the minors’ parents were being prosecuted and held in criminal custody, their children had to be separated from them. If the parents were not being criminally prosecuted, the administration would not have a reason to separate these families. Former Housing and Urban Development and Democratic Presidential Nominee Julian Castro, who first proposed the repeal of section 1325, believes that “If you’re not calling for the repeal of the section that means that basically you’re going to keep the status quo and you’re going to allow family separation.”
On the other hand, opponents believe that the problem is not the law, but the Trump administration. According to Montana Governor and Democratic Presidential Nominee Steve Bullock, “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.”
Opponents of the change believe that the law is a useful tool for prosecuting human traffickers and disincentivizing illegal border crossings. According to Sarah Saldaña, the Director of Immigration and Customs Enforcement under President Barack Obama, “You have it on the books and either you exercise your prosecutorial discretion or not, but at least it’s a tool in your toolbox.”
In the past, this law has been used against known gang members and smugglers when witnesses are too scared to come forward or when they are not caught in the act. This is the position taken by former Texas Representative and Democratic Presidential Nominee Beto O’Rourke, who “wants to make sure that we retain some part of 1325 to criminally prosecute people we apprehend who are known smugglers, whether or not they’re in the act of smuggling at the moment.”
Supporters of the change, however, do not believe section 1325 is needed in order to combat smuggling in human trafficking. These offenses are already crimes; therefore, it is unnecessary to have a separate, unrelated law to prosecute them.