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The Trump administration has weaponized provisions in federal law in the most abusive way to demonize immigrants and tear families apart. Two of the most harmful, costly, and unnecessary provisions in federal immigration law are 1325 and 1326 of Title 8 U.S.C., which make it a federal crime for someone to enter the U.S. somewhere other than an official port of entry. The legislative history of these provisions reveals them to have been born from white supremacist ideology and politics.

Striking these harmful laws would leave border crossing as a civil offense, rather than a federal crime. Such repeal is a critical and necessary step toward a humane and just approach to migration law and policy. As long as they remain on the books, Section 1325 and 1326 will fuel the unjust incarceration of immigrants and leave children permanently scarred by the trauma of separation. The National Immigrant Justice Center calls on Member of Congress to support their repeal.

Background: A dark legislative history grounded in racist ideology

Federal laws that criminalize immigrants were first promoted by eugenicists in the early 20th Century.Coleman Livingston Blease, a white supremacist Senator from South Carolina, introduced the law criminalizing border crossings to please nativists who wanted to stop Mexican migration during the 1920s. The law was broadly written to harness growing anti-Mexican sentiment and punish unauthorized entry by barred classes like Asian immigrants. Blease’s law passed and became 8 U.S.C. § 1325, ultimately subjecting any immigrant who entered the U.S. outside a lawful entry point to fines and imprisonment The law has been utilized in the decades since to ascribe immigrants with criminality and then penalize immigrants for that association.

Recent history of prosecutions and family separation

Prosecutions for border crossings were low until 2005, when U.S. Attorneys increased mass prosecutions under President George W. Bush as part of the national securitization of immigration enforcement. By 2009, under the Obama administration, U.S. Attorneys prosecuted more than 50,000 cases of unlawful entry or reentry.

The Trump Administration has pushed the statutes to their limits, with the number of prosecutions soaring to 89,000 in 2018. This “zero tolerance” approach was formally announced in April 2018, the same month Department of Homeland Security (DHS) officials instructed border agents to separate children “so that the parent or legal guardian can be prosecuted.” Border prosecutions thus became the centerpiece of the administration’s family separation policy, with more than 2,300 children torn from their parents in a manner so cruel and systematic as to constitute .

While the official policy of prosecuting every adult for border crossing technically ended in June 2018, newly released documents show that border-crossing prosecutions continue to result in separations to this day. As long as laws exist to criminalize border crossing, thousands of migrants will continue to face federal prosecutions every year, subjecting noncitizens to second-class injustice, denying due process protections, and separating families.

Operation Streamline - the use of mass prosecutions

In 2005, the Bush administration launched “Operation Streamline,” a program in which DHS and the Justice Department target and prosecute migrants en masse for unauthorized border crossings. The process involves mass hearings in which up to 80 migrants are arraigned, found guilty, convicted and sentenced for unlawful entry in one fell swoop. The program expanded as prosecutions accelerated under the Obama administration, before scaling down and changing names in 2016. Streamline resurged and moved into new districts and continues to expand under the Trump administration.

Streamline proceedings violate human rights, international treaty obligations, and due process rights of immigrants. Defendants are dragged into court and tried in hand cuffs and ankle shackles. The judge reads a script that includes questions requiring rote answers. Defendants in Streamline cases are typically detained for 1 to 14 days before appearing in court for the first time. These individuals frequently have no counsel until their hearings, allowing little time to consult with an attorney to understand the charges, consequences of conviction, and potential avenues for legal relief. Because a single attorney often represents dozens of defendants at a time, he or she might not be able to speak confidentially with each client or might have a conflict of interest among clients without even realizing it.

In San Diego, federal defenders have pointed out that the Streamline process violates equal protections by depriving noncitizens charged with unlawful entry of the benefits and advantages of either the district’s federal misdemeanor court or the district’s federal felony court. Moreover, defendants going through the proceedings suffer in reprehensible conditions in border patrol stations where they are held pre-trial in cold, overcrowded facilities, lacking adequate food, water and medicate care.

Prosecution of asylum seekers violates due process protections and international law

Illegal entry and reentry prosecutions systemically violate the rights of asylum seekers. The referral of asylum seekers for criminal prosecution is fundamentally incompatible with U.S. commitments under the Refugee Convention, which prohibits states from penalizing refugees for their manner of entry. In 2015, the DHS Inspector General found that the use of illegal entry prosecutions was likely placing the U.S. in violation of its international treaty obligations; yet the Trump administration has doubled down on this illegal practice, routinely referring asylum seekers for prosecutions.

Even more insidiously, the Trump administration has implemented numerous policies that force asylum seekers to cross outside of ports of entry, leaving them vulnerable to prosecution. The DHS Inspector General has found, and Customs  and Border Protection (CBP) officials have confirmed, that turning people away at ports of entry as the administration has done through its so-called  “metering” policy leads to an increase in illegal border crossings. After being turned away, if they are able to make it across deadly crossing points outside the official entry points, migrants face the risk of being prosecuted, serving jail time, and having their children taken from them.

The use of criminal laws to regulate migration is abusive and wasteful

Repealing laws that criminalize border crossing would leave the civil enforcement system intact. Undocumented immigrants prosecuted under 1325 and 1326 also face the same immigration enforcement measures as those the government chooses not to prosecute, including detention and deportation. Nonetheless, pundits are stoking fears by claiming that stopping illegal entry prosecutions is akin to open borders. Former Obama officials have gone so far as to say that decriminalization would attract hundreds of thousands of new migrants to the southern border, falsely asserting that the laws are “central” to immigration enforcement.

No evidence exists to support the premise that border crossing prosecutions have had any effect on immigrants’ decisions to come to the U.S. Similarly, the high level of criminal prosecutions and incarceration of immigrants has been going on for decades, and there is no evidence that it is deterring repeated reentry, let alone other crimes. Rather, border crossing prosecutions serve as a form of double punishment, applied in a discriminatory way that targets people of color. Such prosecutions function as are part of a separate and unequal system that does not provide the same due process measures afforded to U.S. citizens. For this reason, immigrant rights and criminal justice groups have been calling for an end to federal prosecutions of border crossing violations for years.

Vast government resources are wasted on federal criminal prosecution and incarceration of immigrants. Illegal entry and re-entry are the most prosecuted federal crimes in the United States. The explosion in the prosecution of immigration-related charges has led to ballooning costs for taxpayers, associated not just with the price tag of mass incarcerations but of appointed public defenders, judicial resources and administrative court costs estimated at millions of dollars per month. Private companies are profiting, as new jails open to hold immigrant prosecuted for border crossings.

Prosecuting entry re-entry as a federal crime legitimates the targeting of immigrants. Section 1325 and 1326 drain federal resources, separate families, and disrupt communities. The criminalization of migration heaps second punishments and additional incarceration on immigrant communities of color already facing a punitive deportation and immigration detention system. The time for repeal is now.

Jesse Franzblau is a senior policy analyst at NIJC. For questions, contact him by email.