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Central American immigrants walk along the border fence after crossing the Rio Grande from Mexico in February in El Paso, Texas. The migrants later turned themselves in to U.S. Border Patrol agents, seeking political asylum in the United States.
The Lowdown

Decoding the Border Law Democrats are Debating

A proposal by Julián Castro would make unauthorized border crossing a civil offense, not a crime.

In the first Democratic presidential debate, Julián Castro, a candidate from Texas who is a former mayor of San Antonio, surprised his rivals with a proposal to repeal a federal law that makes it a crime to cross the border without authorization. Castro said he would make it a civil offense, no longer a crime. He challenged every candidate on the stage to support his plan.

What is the crime?

Under a provision in the immigration code — Castro referred to its number, 1325 — an “improper entry” into the United States is a federal misdemeanor, a low-level offense. Migrants are prosecuted for crossing in between established entry stations or otherwise avoiding inspection by an immigration officer. The punishment is a fine and up to six months in prison for the first offense. Most immigration statutes are civil laws, something like the tax code.

Why now?

This crime is newly controversial because it was at the center of the furor over the separation of migrant families. The former attorney general, Jeff Sessions, issued a policy in 2018 known as “zero tolerance,” which ordered federal prosecutors along the border to bring criminal charges against every migrant caught crossing illegally.

Before 2018, the crime of illegal entry was prosecuted much more selectively, for limited time periods along specific stretches of the border. When enforcement was stepped up and parents were sent to federal court, they were separated from their children. The minors were declared to be unaccompanied and sent to shelters run by health department officials.

Faced with an uproar, President Trump ordered an end to the separation of parents and children. But we now know there was no system in place at the time to reunite the families. Some family separations — of children from relatives who are not parents — continue as a result of these prosecutions.

Are migrants still prosecuted for this crime?

Yes. About 42 percent of all federal prosecutions in the country from October through April were for illegal entry crimes, according to an analysis of Justice Department data by the Transactional Records Access Clearinghouse at Syracuse University.

So does that mean that every immigrant who crossed the border illegally is a criminal?

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No. In the United States, people are not criminals until they have been convicted of a crime. Most undocumented immigrants who entered illegally have never been convicted of this crime because far fewer were prosecuted.

Is this a new proposal?

Yes. Castro first proposed this change in an immigration plan he published in April. The idea of decriminalizing border crossing has not been prominent in immigration debates before now. It’s a sign of how far left President Trump’s tough border policies and anti-immigrant rhetoric have pushed the Democratic candidates.

Was there broad support from Democrats for the proposal?

Too soon to tell. Senator Amy Klobuchar said she would consider it. Representative Tim Ryan said he could support it, noting that other laws would punish crimes of human trafficking and smuggling. Senator Elizabeth Warren has previously called for exempting asylum-seekers from criminal prosecution. Castro sparred with former congressman Beto O’Rourke, also from Texas, chiding him for failing to support the proposal.

What did Republicans say?

Ronna McDaniel, the chair of the Republican National Committee, said the proposals were a “call for open borders.”

Does this mean Democrats want open borders?

In practice, no. Border authorities routinely handle illegal border crossers using the civil immigration laws, which allow many different ways to deport migrants who don’t have legal papers. Prosecuting illegal entry crimes places huge burdens on the federal courts, taking resources away from prosecutions of other crimes like narcotics trafficking and money laundering.

But changing the law could send a strong signal to people considering coming to the United States that border enforcement has softened.