Opening Remarks: The United States should decriminalize illegal immigration

Sachin Shukla, NU Political Union Contributor

Every week a member of Political Union’s executive board will share their thoughts on an issue of their choice in this column. The pieces do not represent the opinions or stances of the wider Political Union, but rather offer an individual’s ideas to spark a conversation.

On April 1, 2019, former Secretary of Housing and Urban Development and former San Antonio Mayor Julián Castro called for decriminalizing border crossings in his candidacy for president. Despite widely being seen as just another example of the Democratic Party’s race to the far left, it embodies a small but important change that would make the way our system handles illegal immigrants more humanitarian and efficient.

What Castro is referring to is Section 1325 of the U.S. Code, which stipulates that anyone caught crossing the border illegally is to be tried before a judge and fined, imprisoned for up to two years, or both. At no point does it provide for deportation. Deportation is the penalty for the civil offense of illegal immigration. The criminal offense outlined in Section 1325 simply puts illegal immigrants through the criminal justice system and imprisons them for up to two years.

Even conservatives who want to deport illegal immigrants should see a problem with this: It seems remarkably inefficient to put them through the criminal justice and prison system, instead of deporting them in the first place.

But to really get a sense of why this is so deleterious requires an understanding of Section 1325’s history, which dates back to the 1920s. Congress had basically eliminated nonwhite immigration to the U.S. from pretty much everywhere else other than Northern and Western Europe. But the one hole it couldn’t plug was Mexico, because agribusinesses in the Southwest depended on Mexican immigrant labor.

So no matter how hard white supremacists in Congress tried, any efforts to cap Mexican immigration were shot down by agricultural lobbying.

Enter Democratic Senator Coleman Blease from South Carolina, who “entered Congress committed, above all else, to protecting white supremacy,” according to UCLA prof. Kelly Lytle Hernandez. Blease noticed that the U.S. already had an awful system for border crossings at legal ports of entry. It required the payment of entry fees that were prohibitively high for Mexican laborers, and a humiliating and dangerous delousing procedure that often expropriated immigrants’ property.

Understandably, many laborers crossing the border preferred to avoid this route.

Blease’s idea was to criminalize illegal border crossings, forcing all immigrants from Mexico into “authorized and monitored stream that could be turned on and turned off at will at ports of entry.”

From the start, Section 1325 was designed to drive Mexican immigrants into the abuse of the federal government.

That design is echoed today in its most grave effects.

Section 1325 wasn’t enforced seriously through most of the 20th century, until 2005, when the Bush administration ramped up prosecutions with Operation Streamline. This was a policy “aimed to secure quick guilty pleas and process large caseloads more efficiently through group hearings” — sometimes up to 80 defendants at a time. According to the ACLU, defendants “frequently have no counsel until their hearings, allowing little time to consult with an attorney to understand the charges and plea offers, consequences of conviction, and potential avenues for legal relief.” They may not even get a chance to speak confidentially with their attorneys, who often represent 7 to 8 clients at once. Due process goes out the window.

But it gets worse. Prosecutions went up so sharply under Operation Streamline, the Departments of Justice and Homeland Security were overwhelmed. The predictable result of this is the current crisis at the southern border, a crisis many years in the making.

The horrors of the humanitarian crisis speak for themselves: more than 2,500 children have been separated from their families, some of whom have died in custody, while adults are kept in overcrowded concrete cells with no running water. In June of 2019, Customs and Border Protection estimated that it had 15,000 people in custody. It considers its full capacity to be 4,000.

The saddest part of all this is that if Coleman Blease — the man who came to Congress committed to preserving white supremacy and ending Mexican immigration — were still alive today, he would be very pleased: Lytle Hernandez pointed out in The Conversation that “Latinos, led by Mexicans and Central Americans, make up 92 percent of all immigrants imprisoned for unlawful entry and reentry” to the United States.

The loudest voices concerning immigration on the left — and one of the most tried and true attack lines for those on the right — often call for “open borders,” or ending all deportations.

And that’s a debate we can have another day. But Section 1325 has no bearing on any of that. All it does is expose illegal immigrants to the needless abuse and gross incompetence of the federal government — and it unwittingly serves the ends of white supremacy in the process.

Castro is right to point this out and call for its repeal. The cruelty on display at the southern border is not a tragic side-effect of keeping our borders safe. The cruelty is the point.

Sachin Shukla is a Bienen junior. He can be contacted at [email protected]. If you would like to respond publicly to this op-ed, send a Letter to the Editor to [email protected]. The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.