04:10 - Source: CNN
2020 Dems aim to prove their immigration policy is opposite of Trump's
CNN —  

As Democratic presidential hopefuls spar in the leadup to 2020, there’s one immigration proposal that keeps coming up.

Should the US repeal the section of the Immigration and Nationality Act that makes illegally crossing the border a crime?

It’s an idea that’s been floated in immigration policy circles for a while. Julian Castro pushed it into the national spotlight during the first Democratic presidential debates in June, and it came up again in Tuesday night’s debate. The notion seems to be gaining steam.

Here’s a look at why this conversation is happening now, and why it matters:

Right now anyone who crosses the border illegally can be charged with a misdemeanor

Part of the Immigration and Nationality Act, known as Section 1325, says illegally entering the United States can be prosecuted as a misdemeanor.

It’s punishable by up to six months in prison. And it’s become one of the most prosecuted federal crimes in the United States.

Immigrants wait to climb over the US-Mexico border fence on December 2, 2018, in Tijuana, Mexico.
John Moore/Getty Images South America/Getty Images
Immigrants wait to climb over the US-Mexico border fence on December 2, 2018, in Tijuana, Mexico.

Section 1325 has been on the books for decades. But for many years it wasn’t often enforced. That notably changed in 2005, when President George W. Bush’s administration implemented what was known as “Operation Streamline,” increasing criminal prosecutions at the border in an effort to deter illegal immigration.

According to an analysis from the Transactional Records Access Clearinghouse at Syracuse University, federal prosecutors charged more than 52,000 people with illegal entry under Section 1325 in the first eight months of the 2019 fiscal year, which began in October.

Supporters say that provision of the law isn’t necessary and was used to separate families

Castro and others who argue that Section 1325 should be repealed – including Sen. Elizabeth Warren and South Bend Mayor Pete Buttigieg – say that it isn’t necessary given that crossing the border illegally is already a civil offense that can result in deportation.

They also argue that Section 1325 made many of the Trump administration’s family separations at the border possible. Under the “zero tolerance” policy, children were separated when their parents were criminally prosecuted for illegally crossing the border.

“What we’re looking for here is a way to take away the tool that Donald Trump has used,” Warren said during CNN’s Democratic debate Tuesday.

One key point to keep in mind: Just a few hours before the debate, a new court filing from the American Civil Liberties Union detailed hundreds of family separations at the border in the past year that had nothing to do with Section 1325. In some of those cases, according to the ACLU, families were separated because of minor offenses on parents’ criminal records, such as traffic offenses or property damage.

So while it’s true that criminally prosecuting immigrants who illegally crossed the border was an approach that paved the way for many family separations, it’s not the only reason family separations have occurred.

Critics say changing the law could incentivize more illegal immigration

Some Democratic candidates, including former Rep. Beto O’Rourke, Montana Gov. Steve Bullock and former Vice President Joe Biden, say they wouldn’t support decriminalizing border crossings.

“I expect that people who come here follow our laws, and we reserve the right to criminally prosecute them if they do not,” O’Rourke said during Tuesday’s debate.

Bullock cited recent comments by Jeh Johnson, who headed the Department of Homeland Security for several years during the Obama administration.

In an op-ed published in the Washington Post, Johnson wrote that decriminalizing border crossing would be “tantamount to a public declaration (repeated and amplified by smugglers in Central America) that our borders are effectively open to all.”