It Hasn’t Always Been A Crime To Cross The US-Mexico Border, So When Did Things Change?
Let’s start from the beginning. While immigration has been an issue on everyone’s lips over the past while after the Trump administration started enforcing a zero tolerance policy against border crossings, a new way of thinking about the issue was introduced during the Democratic debates.
Presidential hopeful Julián Castro suggested that border crossings should be decriminalized. Because if border crossings aren’t a criminal offense, then people can’t be charged for crossing the border illegally, right? Well, in short, yes. But the issue concerning what’s officially known as “Section 1325” is more complicated than what it initially seems, on the surface.
Decriminalization does not mean a free-for-all across the border.
As much as the Trump administration would likely characterize the proposed policy as a stab at open borders, that’s not the case. The reality is that crossing the border at the moment is treated as a criminal offense, meaning that those without the appropriate documentation are automatically detained indefinitely: they are treated as a criminal.
However, decriminalizing border crossings would instead ensure that those who do attempt to cross the border are not slapped with charges of a criminal offense.
Instead, border crossings without appropriate documentation would be treated as a civil offense. In the same way that people aren’t considered a criminal for accruing a speeding fine, people crossing the border also wouldn’t be automatically treated as a criminal. This proposed approach is also more consistent with the US’ role as a signatory for the United Nation’s 1951 Refugee Convention. That is, that it’s not illegal for people to cross international borders and request asylum from another country.
Decriminalization would mean considering a new model for regulating the traffic of people across the border.
Granted, the US still has to consider its security interests when processing requests for asylum. However, the current state of things has seen exponential overcrowding and related issues in detention centers near the border, with no indication as to whether people are seeing their requests for asylum considered at all.
Beyond the human rights problems this presents, there is also a legal quandary that must be considered in the US judicial system. Currently, the appropriate punishments for migrating across the border include both detainment and deportation – which, let’s face it, cannot be fulfilled at the same time.
This turns into an argument around semantics: should someone be deported if they haven’t served their time in a detention center? And should someone stay in a detention center when they really should have been deported long beforehand, to prevent them from accessing the US at all? Castro’s proposal is not just about alleviating the stress being placed on US resources by detaining considerable numbers of immigrants, nor is it only about correcting human rights atrocities. It’s also about considering how immigrants are treated by the legal system.
It’s actually possible that decriminalization could reduce the number of illegal immigrants who stay indefinitely in the US.
And yes, that’s including those who have been detained. Instead, if an immigrant was caught crossing the border without papers, they would be detained only for a brief amount of time. Once it is determined by authorities that the immigrant doesn’t raise any red flags, they would be released into the US, complete with a case management system to check in on them. The immigrant would then have to attend an immigration hearing, which would determine their status. Should it be found that the immigrant did not qualify for asylum, they then would accordingly be deported.
The positive of such a proposal is that family separation would be a thing of the past. Because border crossings wouldn’t involve criminal prosecution, there would be no reason to detain, and thus separate, families. Children would not be psychologically scarred for life simply because their parents sought a better future for them.
In fact, the US has had a longer history of decriminalized borders than criminalized ones.
It’s worth noting that this idea of decriminalized borders isn’t really a new one. It wasn’t until 1929 that the US passed a bill that considered border crossings as a criminal misdemeanor, which meant that people could be prosecuted for entering the US without the proper authorization.
Most immigration laws before this point were focused on keeping out alcohol, gun traffickers and Asian immigrants. But, it was a white supremacist senator, Coleman Livingston Blease, who suggested fees and testing at the US-Mexico border – or, Section 1325 of Title 8 in the US Code. Are we surprised? In retrospect, no, no we are not.
To be honest, even with this relatively short history of the criminalized border crossings, most presidents paid immigration little attention, as doing so would result in forever prosecuting misdemeanor illegal entry cases. Generally speaking, those caught crossing the border were simply informally returned.
Granted, there were some exceptions to this attitude. For example, The Great Depression saw Mexicans demonized for taking much-needed work, and deportations spiked around that time. However, it wasn’t really until the Bush administration that more decisive, ongoing action was taken on immigration. This gradual escalation in enforcing immigration policies led us to the catastrophe we’re seeing today at the borders, under the Trump administration.
So, how can you look forward to a future of decriminalized border crossings?
Voting for 2020 presidential candidates who favor decriminalized border crossings are your best bet, if you’re keen on seeing the law changed. It’s worth listening to each candidate’s stance on immigration. For instance, aside from Castro, Democratic candidate Elizabeth Warren has also endorsed repealing Section 1325. On the other hand, Beto O’Rourke rejected the idea from the outset, proposing his own set of aggressive immigration plans. The key is to listen to the policy proposals – not just smooth platitudes.
While voting strategically is probably one of the most effective ways to see decriminalized border crossings, you do have other ways of continuing the conversation. Sharing articles on social media, like this one, can educate people and start worthwhile discussions around the issue. Writing, and even meeting with, your local political representatives can increase their own awareness of constituent interests. After all, it’s their job to represent you! Getting involved with activist groups that promote immigrant rights is another way that you can promote and work towards the decriminalization of border crossings.
Anyway, we’ll leave you with this: the wildest fact is that, from 1980 to 2010, the Border Patrol budget was increased 16 times. This was despite the reality that the number of attempted undocumented entries did not rise during this time. Considering the mounting numbers of detainees at the border, it stands to reason that immigration is yet another issue reduced to sound bites and narrative twisting from those politicians seeking to Make America Great Again – despite human welfare being at stake. While we can discuss all we like about when and how border crossings have been treated by the criminal system, the important thing to focus on is how we value human lives.