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Decriminalize the Border? Obviously. But Then What?

In the recent Democratic debate, Julián Castro raised the idea of ending the criminalization of crossing the border. It’s a good idea: prosecuting border crossings is stupid, cruel, and has a sordid, racist history. Let’s do it — then go much further.

Julián Castro speaks at the National Forum on Wages and Working People: Creating an Economy That Works for All at Enclave on April 27, 2019 in Las Vegas, Nevada. (Ethan Miller / Getty Images)

Julián Castro did us all a favor. During his limited time on the debate stage, he challenged fellow Texan Beto O’Rourke and the rest of his rivals to support repealing the law that makes crossing the border between official ports of entry a crime.

The press has oversold what this policy would actually do. Alisha Gupta in the New York Times described it as “decriminalizing illegal immigration,” making it sound something like open borders. In Vox, immigration journalist Dara Lind dubbed it “the most radical immigration idea” of the 2020 primary and “the policy equivalent of the ‘no human is illegal’ slogan.”

But decriminalization is hardly radical. Although it would remove the threat of criminal prosecution, its effects on the detention and removal system would be narrow and indirect. (Moreover, Castro’s ideas to eliminate the three- and ten-year bars on admission for the undocumented and to split up Immigration and Customs Enforcement (ICE) would probably be more “radical” changes than decriminalization.)

But more significantly, thanks to Castro, we are finally challenging the idea that we need more enforcement to “secure” the border. And that is a radical change.

On the substance, Castro is absolutely right. Prosecuting people for crossing the border is stupid, cruel, and has a sordid, racist history. Any humane system we can imagine that respected the need, or right, to move from one country to another would not criminalize crossing borders. We should all support repeal.

What is “Improper Entry”?

The crime itself — found at section 1325, Title 8 of the US Code — is actually called “improper” entry, not illegal entry. Section 1325 makes eluding inspection by immigration officers, or willfully misleading them, a misdemeanor punishable by up to six months in jail and a fine of at least fifty dollars. Doing it a second time is a felony offense and is punishable by up to two years in jail. Hoping to control immigration from Mexico, in 1929, Congress made it a crime to enter the United States without going through controlled inspection areas.

Many critics have pointed out that the law was drafted by Coleman Livingston Blease, a white supremacist senator from South Carolina. But being written by racists is hardly a distinctive feature in American law, or immigration law in particular.

Five years earlier, Congress passed the Immigration Act of 1924, which was heavily influenced by the American eugenics movement. The 1924 law banned virtually all immigrants from Asia, the “feeble-minded,” alcoholics, and the physically disabled from immigrating to the United States.

Importantly, as a criminal offense, an improper entry prosecution is completely separate from the administrative proceedings of the immigration system. An immigrant charged with improper entry has at least two bureaucracies to navigate.

The Trump administration used these dual bureaucracies as a mechanism for separating families — the parents’ criminal prosecution justified separating them from their children. When Trump issued an executive order ending family separation, he merely instructed the Department of Homeland Security to maintain custody of the parents while their criminal charges were pending.

In short, Castro is saying that one system — immigration removal proceedings — is enough. But that one system still has plenty of detention, deportation, and bureaucratic cruelty of its own. Isn’t that one system still too much?

It Wasn’t Always This Way

Improper entry prosecutions are not an invention of the Trump administration — nor were they always as widespread as they are today. These prosecutions used to be relatively infrequent. That changed when President George W. Bush began a program called “Operation Streamline.”

Typically, Border Patrol agents “voluntarily returned” immigrants they apprehended crossing the border, or sometimes formally detained and deported them through the civil immigration system. But Border Patrol believed that one section of the border near Del Rio, Texas was particularly bad, and simply turning people back wasn’t enough. Under Streamline, Border Patrol started referring people they apprehended to the Justice Department for criminal prosecution.

Buying into the logic of deterrence, the federal government rolled out the full-blown “Streamline Initiative” in other sections of the border. This meant prosecuting a lot of people, and quickly. The Justice Department didn’t have enough attorneys to do it — it deputized lawyers from CBP to carry some of the caseload.

Streamline pushed the court system to its limits. Judges sentenced migrants in mass trials that offended any reasonable concept of fairness or due process. As many as eighty people appeared before magistrate judges at a single time. One federal magistrate judge told the New York Times that he could process seventy people in less than thirty minutes. The breakneck pace of Streamline led to the declaration of a judicial emergency in Arizona in 2011, because the Ninth Circuit believed the district court no longer had the capacity to bring cases to trial within statutorily required time limits.

Federal defenders challenged Streamline in the Ninth Circuit, arguing that it violated the federal rules of criminal procedure, which require courts to personally address defendants and determine that they understand that their pleas are voluntary. They won, and managed to buy defendants a bit more individualized attention. But the program is still up and running. In 2018, Attorney General Jeff Sessions took Streamline up a notch by imposing a “zero tolerance” policy for improper entry that instructed line prosecutors to pursue every person referred to them by DHS.

Today, Streamline runs in every federal court along the southern border. In the 1997 fiscal year, immigration cases represented 15 percent of all cases at the federal magistrate court level; they made up 63 percent of the entire federal magistrate caseload by fiscal year 2013, according to the Migration Policy Institute. In April 2019, it rose to 65.6 percent.

Improper entry prosecutions are a powerful weapon for an administration to use against asylum-seekers. Prosecutors routinely coerce migrants to abandon their claims for relief — including asylum — in order to avoid jail time, a practice which some legal analysts believe violates international law.

CBP is forcing many asylum-seekers to break the law. Through a process called “metering,” which is currently being challenged in court, CBP limits the number of asylum-seekers who can enter the United States and request asylum on any given day. Unable to wait in Mexico’s overcrowded shelters, they choose to cross illegally.

The government knows exactly what it’s doing. “Although DHS asserts that the Zero Tolerance Policy and metering at ports of entry are distinct issues, a CBP official reported that the backlogs created by these competing directives likely resulted in additional illegal border crossings,” according to a report from the DHS inspector general’s office.

The Trump administration wrongly insists that the only proper way to apply for asylum is to enter through a controlled port. At the same time, it illegally turns immigrants away when they try to do so — forcing them to cross between ports, and potentially face criminal charges.

Although a future Democratic administration could theoretically abandon improper entry prosecutions, we have no reason to believe that they will until they actually say so. The illegal “metering” policy actually began in 2016 under the Obama administration. Obama continued —and expanded — the Streamline program.

How Did We Get Here?

Decriminalizing improper entry is good policy — every Democratic candidate should support it. So why don’t they?

In theory, they all believe in something bigger and better. For more than a decade, Democrats have promised to deliver “comprehensive immigration reform,” a magical elixir that promises to cure every ailment of the immigration system.

Although differing “comprehensive” bills have been introduced in Congress, the fundamental framework has always been the same: trading increased enforcement for a legalization program, and the liberalization of various employment-based visa programs that benefit big business.

In order to preserve the potential for a grand bargain, Democrats put off passing any discrete bills, like agriculture visas or the DREAM Act. Why fix this now, the argument goes, when we could fix everything later? In other words, for more than a decade, Democrats have made “comprehensive” the enemy of the good.

The “comprehensive” framework has been a complete and total disaster for Democrats and the immigrants who needed them. But it has been especially bad for the border, which the Democrats have treated as a bottomless well of potential Republican support.

Early in Obama’s presidency, the Democrats hoped to pass a sweeping immigration bill that would legalize millions of undocumented immigrants in the United States. Between 2005 and 2007, several reform packages had failed, and Democrats were eager to finally get it done on their terms.

The time seemed right. They had a supportive president and commanding majorities in both chambers of Congress. As these newly legalized immigrants became citizens, most likely, they would become a new base of Democratic support. There was just one problem: Obama’s chief of staff, Rahm Emanuel.

Emanuel believed immigration was a political loser for Democrats, and almost singlehandedly prevented Congress from passing any pro-immigrant legislation. US Rep. Raul M. Grijalva (D-Ariz.) told the Los Angeles Times in 2010 that “There’s always a sense that no matter how hard we work, to get through the White House, we have to get through Rahm.”

As a senior political advisor, Emanuel urged President Bill Clinton to make immigration enforcement an extension of his law-and-order public image. “He had a very strong sense that enforcement . . .  needed to be visible,” said Doris Meissner, a former Director of the Immigration and Naturalization Service, of Emanuel.

Emanuel gave Obama the same advice he gave Clinton. “There was definitely in the Obama Administration an intention to do tough enforcement as a down payment for comprehensive immigration reform later,” Marc Rosenblum, of the Migration Policy Institute, said to the New Yorker. “The idea was to prove to Republicans that he could be trusted on enforcement, so that he could get a path to citizenship in return.”

In retrospect, Emanuel’s plan should go down as one of the worst political miscalculations in history.

Setting aside — to the extent one can — the complete indifference to the people who truly made this “down payment,” it was obvious that giving Republicans everything they wanted up front would only make them find more things to ask for. But that’s exactly what Obama did, and Republicans have demanded more ever since.

Even worse, Democrats blew the last chance they would have to pass a bill without Republican support. The 2009 bill was hardly progressive, but it was better than what came later. On the down side, it would have created a nationwide employment verification program, increased CBP staff, and delivered tons of new surveillance tech to the southern border. But on the upshot, it would have repealed the one-year bar to applying for asylum, established stronger standards for detention and professional conduct for ICE and CBP officers, required unaccompanied children to be released from CBP custody within twenty-four hours, and improved oversight of the detention system.

Democrats sold immigration reform hard using the conservative rhetoric of law and order. Former Representative Luis Gutierrez, Congress’s most outspoken advocate of reform at the time, called the 2009 bill “a plan that forces those already here illegally to take personal responsibility and action to get legal.”

The bill never went anywhere. Rahm didn’t want it to, and shortly after the bill’s introduction, Democrats were completely embroiled in the fight for “comprehensive health care reform” now known as the Affordable Care Act. And then Democrats lost the House of Representatives to the Tea Party Republicans.

After Obama was reelected in 2012, it looked like Republicans might open the door to bipartisan immigration legislation. The Republican National Committee commissioned a now-infamous “post-mortem” on the 2012 election recommending that the party soften its stance on the issue.

“We must embrace and champion comprehensive immigration reform,” the report declared. “If we do not, our party’s appeal will continue to shrink to its core constituencies only.”

Through bipartisan negotiations led by the “Gang of Eight,” Democrats introduced another bill in 2013. An amendment added by Senators Bob Corker and John Hoeven would have increased the Border Patrol to a total of 38,500 agents — nearly double the size it is today — and built 350 more miles of fencing along the border. It would have also required employers to use E-Verify nationwide and developed an electronic entry-exit system at all ports of entry.

“There is a heck of a lot of border security in this bill,” Senator Chuck Schumer said on the Senate floor in support of the bill. He noted that the bill would provide “more than one Border Patrol agent for every city block of the southern border.”

For their trouble, Democrats won fourteen Republican votes in the Senate, only to see it die on House Speaker John Boehner’s desk. According to Boehner, Republicans didn’t trust Obama to enforce the nation’s immigration laws.

“The crisis at our southern border reminds us all of the critical importance of fixing our broken immigration system,” Boehner said amid the influx of unaccompanied minors in 2014. “It is sad and disappointing that — faced with this challenge — President Obama won’t work with us, but is instead intent on going it alone with executive orders that can’t and won’t fix these problems.”

Today’s Border Politics

The Democrats still won’t hesitate to give the Republicans a “heck of a lot” of border security whenever they ask. Even in a moment where we see images of children practically piled into a room, going days without diapers, House Democrats were willing to cut the Trump administration a blank check for border enforcement.

We’re here because the Democrats, too busy trying to make Rahm’s “down payment,” never decided for themselves what border enforcement should look like. It was up to the Republicans to decide when the border was “secure,” to which the answer would always be never.

Keeping the “comprehensive” dream alive, in this moment, is absurd — but the party doesn’t have much else to say. When Trump announced that he would delay a planned series of raids, House Speaker Nancy Pelosi tweeted “Mr. President, delay is welcome. Time is needed for comprehensive immigration reform. Families belong together.”

At least some Democrats are willing to change course. Reps. Alexandria Ocasio-Cortez, Ilhan Omar, Ayanna Pressley, and Rashida Tlaib, the left-wing quartet in the House known as “The Squad,” has been willing to break with leadership on enforcement. Representative Marc Pocan called the Democrats who voted for the Republican border security bill the “Child Abuse Caucus,” reportedly drawing a stern condemnation from Pelosi.

From the presidential debate stage, Castro is helping the party get its act together. Although decriminalization isn’t a complete solution, it’s a start, and it says something about what we want the enforcement system to look like.

Moreover, border politics are starting to change. Republicans no longer control the image of the border in the public imagination. The television b-roll image of the border isn’t tattooed men peering through a fence anymore — it is children in cages, sleeping with their mothers on benches and concrete floors. Even Republicans have to act like they want to do something for the children.  Instead of security, border enforcement looks more like abject cruelty.

Right now, Democrats have a chance to offer an alternative vision of the border.  Hopefully they won’t blow it. Because the crisis at the border is only going to get worse, and the path we’ve been on has consistently led us toward greater and more severe forms of enforcement.

So let’s start by demanding an end to criminal prosecutions on the border. And then we’ll demand more.