Should Improper Entry into the United States be Decriminalized?
Updated: Oct 19
In recent months, decriminalization of improper entry into the United States has become a mainstream issue in the Democratic primary. During the first Democratic debate, presidential candidate Julian Castro called for repealing, 8 U.S. Code § 1325, the statute governing improper entry and creating a new paradigm in which improper entry would only constitute a civil, rather than criminal, offense. Fourteen other Democratic candidates have since indicated that they would also repeal § 1325 if given the opportunity.
The criminal portion § 1325 currently provides that:
"[A]ny alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both."
The history of the evolution of §1325 should be considered when discussing the wisdom of decriminalizing improper entry. The Immigration Act of 1924 first established immigration quotas that were explicitly racist and intended to favor immigrants from northern and western Europe, while disfavoring immigrants from southern and eastern Europe as well as banning a majority of immigrants from Asia. A provision in the subsequent Immigration Act of 1929 implemented new sanctions against entry into the United States without inspection that included a misdemeanor charge punishable by imprisonment for up to one year or by a fine of up to $1,000, or both.
Section 275 of the Immigration and Nationalization Act designated a first instance of improper entry a misdemeanor punishable by up to six months imprisonment, or a fine of up to $500, or both. Subsequent entries constituted a felony punishable by up to two years imprisonment, or a fine up $1,000, or both. Finally, § 543(b)(2) of the Immigration Act of 1990 increased the severity of punishment for illegal entry by raising the cap on fines for a first offense to $2,000. Under the current paradigm, migrants that are criminally prosecuted for improper entry are essentially punished for the same violation twice; civil removal processes only begin after the person convicted of improper entry serve their federal prison sentences.
Despite the increasingly draconian punishments for improper entry, the prosecution mechanisms provided by these statutes were not often utilized until 2005 when President Bush launched Operation Streamline. Operation Streamline provided that every person who illegally crossed the border could face criminal charges. The increase in use of criminal sanctions to punish improper entry continued under President Obama and by the time President Trump assumed office, improper entry proceedings constituted nearly half of all federal prosecutions with enormous costs to the government and other collateral consequences.
Upon first glance, it may be reasonable to assume that migrants would enjoy greater constitutional protections if charged with a criminal sanction instead of a civil sanction. These protections include the right be Mirandized upon arrest, a presumption of innocence, the right to a speedy and impartial trial, the right to a trial by jury, the right to equal protection, the right to confront accuser, the right to legal counsel, and the right to be free from excessive bail. Upon first examination, these rights appear to provide defendants in illegal entry cases a large degree of protections that would otherwise be absent in a civil trial.
In practice, migrants charged under § 1325 receive little, if any, of the protections that criminal defendants typically receive. For example, lawyers assigned to represent migrants in immigration proceedings receive their list of clients the morning of the hearing and are only allowed to meet with each client for 20 minutes to explain, in their native language, the charges they face and the process. In other cases, migrants awaiting hearings can only consult with their lawyers via video conference. Based on a lack of resources, meaningful representation is often times impossible to provide. Migrants present during the multiple-defendant hearings are often shackled, dressed in prison jumpsuits, and do not speak English. In addition, many migrants agree to plea deals without any understanding of the serious consequences that a plea bargain may carry, including waiver of most of the rights criminal defendants enjoy and immediate deportation.
It has become a common practice in immigration courts along the U.S.-Mexico border to conduct multiple-defendant immigration hearings where as many as seven migrants are processed through the courts at the same time. This rapid-fire style of justice existed under both President Bush and President Obama, but the practice of prioritizing violent offenders resulted in fewer criminal prosecutions overall. The Trump administration’s policy of pursuing all migrant cases, without any prioritization, has flooded the federal courts with new defendants. As a consequence, children have been separated from their parents because once an adult migrant has been jailed on criminal charges their children must be separated from them and placed in separate detainment. While beyond the scope of this blog, the Trump administration’s increased focus on criminal prosecution, in conjunction with the 1997 Flores Settlement Agreement (governing how long children may be detained after apprehension) is largely responsible for the large-scale separation of parents and children at the border.
The Trump administration’s approach towards improper entry is not practically effective, or humane. Tens of thousands of migrants are criminally prosecuted each year, placing an enormous strain on both migrants as well as the federal government and ultimately the taxpayers. Consequently, migrants can be sent back to dangerous situations in their native countries and be precluded from ever legally entering the U.S. because of their plea bargains. In terms of the federal government, the focus on prosecution has created tens of thousands of new federal prisoners even as it has become largely accepted that mass incarceration projects, such as the War on Drugs, were ill-advised and imposed enormous social costs on both the government and American society. Beyond that, research strongly suggests that prosecution does not deter future migration. Until the root issues of economic and security concerns are addressed, prosecution will not deter migrants.
Full decriminalization of improper entry is likely not a magic bullet. There are still legitimate reasons to criminally charge a migrant, such as a history of violence or connections to organized crime. However, prosecution is not necessary for the vast majority of migrants charged. Returning to a reliance on civil processes for removal would be prudent.