Explains: The law criminalizing improper border crossings
By SOPHIA TAREEN, Associated Press
CHICAGO, July 12, 2019 (AP): A federal law that Donald Trump
used in justifying the separation of migrant parents and
children at the border last year is creating waves on the 2020
campaign trail, with some Democrats vowing to do away with it
During the first televised presidential debate, Democratic
candidate Julian Castro promised to ``terminate'' the law
that criminalizes unauthorized border crossings and challenged
others to do the same. Several candidates on the stage of the
first debate night said they agreed. By Thursday, all but one
Democratic candidate onstage said they would make illegal border
crossings a civil, not, criminal offense.
The debates gave prominence to a law that's been part of border
enforcement for decades, but rarely has received this level of
Here's a closer look at the law:
WHAT IS THE LAW?
The law is called “illegal entry,” and it makes unauthorized
border crossings a crime. The law specifically bars entry into
the U.S. at places other than through ports of entry, like an
airport or bridge on the U.S.-Mexican border. A violation of the
law, also known as Section 1325 [8 USC Section 1325], is
a misdemeanor with a penalty of six months in prison, though
most are sentenced to time served. A second offense, or illegal
re-entry, is a felony.
Critics say the U.S. government doesn't have the resources to
prosecute every case and the focus should be on more dangerous
Advocates say prosecuting the cases deters “illegal”
immigration, though data on the topic is limited.
HOW HAS IT BEEN USED?
For decades the government didn't actively pursue criminal cases
under Section 1325, which has been on the books since 1929.
Those caught were deported by immigration enforcement.
It wasn't until a 2005 program started by President George W.
Bush, vowing to curb illegal immigration, that the number of
criminal prosecutions soared.
With ``Operation Streamline,'' large groups of people
were tried all at once and slapped with misdemeanors. There were
just under 40,000 criminal prosecutions for immigration that
year, and up to 90,000 under former President Barack Obama
in 2013, according to a research organization at Syracuse
WHAT'S HAPPENING NOW?
The law generated international headlines last year when Trump
rolled out his ``zero tolerance policy,'' vowing to
prosecute first time offenders with six months in prison.
Immigrant parents arriving at the border with their children
were hauled into court and prosecuted for “illegal” entry, and
children were separated from them.
Thousands of children were separated from their parents before
Trump backtracked and signed an executive order stopping the
separations amid widespread outrage over the practice. Shortly
after, a judge also ruled that families could only be split in
Under Trump, the total number of immigration-related
criminal prosecutions reached around 100,000 in 2018, which
includes Section 1325 cases.
Repealing the law would require Congress to act.
HAS THE LAW GENERATED CONTROVERSY PREVIOUSLY?
One year ago, defense lawyers lashed out at how the Justice
Department was prosecuting illegal entry in federal courtrooms
as Operation Streamline expanded to San Diego. California
was a longtime holdout against the mass illegal entry
prosecutions in federal court that were the norm in other border
states since the Bush administration. That changed with ``zero
tolerance,'' and the prosecutions were brought to San Diego.
There were no illegal entry cases in February 2018 in the
Southern District of California, but more than 800 by June as
family separation reached its peak.
Critics say the mass hearings violate the due process of
immigrants. Reuben Camper Cahn, executive director of
Federal Defenders of San Diego Inc., invoked the ``separate
but equal'' doctrine last year in arguing that immigrants in the
Operation Streamline proceedings were being treated differently
from the citizen population in courts.