As President Donald Trump threatens to “close” the US-Mexico border, one of the Democrats seeking to run against him in 2020 is coming out with the primary’s first immigration proposal — one that would dramatically reduce immigration enforcement.
Democratic presidential candidate Julián Castro, a former mayor of San Antonio and secretary of housing and urban development, released an immigration platform on Tuesday morning, along with a Medium post outlining what the Castro campaign calls its “People First” immigration policy.
So far, the many Democrats vying for the 2020 presidential nomination have stayed in pretty safe territory on immigration, promising to support bills that would provide a path to citizenship for unauthorized immigrants living in the US — and especially groups that are at risk of losing legal protections under the Trump administration, like immigrants protected from deportation under the DACA, Temporary Protected Status, and Deferred Enforced Departure programs.
Castro’s proposal promises those things, as well as reversals of signature Trump policies like the travel ban and the reduction in refugee resettlement. But it goes much further than that in dismantling immigration enforcement.
In many ways, it seeks to unravel the post-9/11 immigration enforcement system — which has made it legally riskier than ever to live in the US as an unauthorized immigrant.
Most notably, Castro proposes to repeal the provision of US law that makes “illegal entry” into the US a federal crime, which has been on the books since 1929 but has only been routinely enforced in the 21st century. Prosecuting illegal entry — often referred to by “1325,” the relevant section of Chapter 8 of the US Code — gave the Trump administration the power to separate thousands of families in 2018, by referring parents for criminal prosecution.
“The fact that over the last several years this system has been weaponized by the Trump administration to go after immigrants, and the chaos that has been created under 1325, I believe, is the wrong direction for the country,” Castro told Vox. And his response — “to go the opposite way” — is to undo the legal underpinning that made it possible.
That proposal, and others, would require Congress to pass an immigration bill — something that Castro remains optimistic there’s bipartisan appetite for in Congress, but has said elsewhere wouldn’t be his first legislative priority. Unlike other plans 2020 candidates have released on other issues, however, much of the immigration policy Castro addresses is about what to do with existing executive branch resources and authorities — it’s policy, in other words, that Castro or another Democrat could start to change on day one.
Castro, who is polling around 1 percent in most early primary polls, is struggling to gain a foothold in the 2020 primary; unlike several of his competitors, he doesn’t have a US Senate seat from which to launch his campaign proposals as bills. But his immigration platform could help him capitalize on his status as the only Latino candidate in the field, in a party that will likely need to mobilize Latino voters to take back the presidency from Trump in 2020. It could also serve as a marker as other candidates work to define their immigration stances — setting a goalpost far to the left of what Democrats have proposed in previous presidential cycles.
Making “illegal entry” no longer a federal crime
Under Castro’s plan, an immigrant crossing into the US without papers — whether he was seeking asylum in the US or coming for some other reason — would not be committing a federal crime. If caught by Border Patrol agents, she’d be detained for a brief amount of time, but if she didn’t raise any red flags, she’d be released into the US (with a case management system to check up on her whereabouts) pending an immigration hearing.
If she didn’t qualify for some form of legal status like asylum, she’d still ultimately be ordered deported from the US. Being in the US without papers would still be a civil offense — the federal equivalent of a traffic ticket — and deportation would still be the penalty. That’s what Castro points out distinguishes his plan from “open borders”; he’s not actually suggesting that everyone who comes into the US be allowed to stay.
But he is saying that none of them should be charged with a crime, immediately deported, or detained for more time than strictly necessary for crossing the border.
In one respect, this is undoing 90 years of US law. Illegal entry has been a federal misdemeanor since 1929. (This distinguishes unauthorized immigrants who crossed the border without papers, and thus committed a misdemeanor, from those who overstayed their visas and committed only the civil violation.) In another respect, though, it’s a return to the immigration system of the 20th century, when illegal entry was rarely prosecuted and border crossers were simply informally returned after being caught.
The difference is that in the 20th century, this was just a matter of discretion — presidents chose not to pour resources into enforcing this particular misdemeanor. When priorities changed, under the Bush administration, widespread illegal entry prosecutions became common — swamping federal courts along the border. More recently, the Trump administration’s attempts at “zero tolerance” prosecution of illegal entry were the legal basis for its widespread separation of families in 2018: Children were separated because their parents were being transferred to criminal custody for prosecution.
Proposing that “illegal entry” no longer be a federal crime is the policy equivalent of the “no human is illegal” slogan — a way to combat hawkish attitudes toward the “rule of law” by challenging the idea that migration ought to be a matter of crime and punishment to begin with. But it’s also a key justification for reversing the past few decades of border crackdown, by unpinning immigration enforcement — at least when it comes to unauthorized immigrants themselves — from crime.
Dismantling — or at least restructuring — the post 9/11 immigration-enforcement system
Castro’s plan isn’t just focused on the border. It essentially calls for the government to get out of the business of routine immigration enforcement.
- Immigration and Customs Enforcement would retain its investigations unit, but Enforcement and Removal Operations — which is responsible for routine arrests and detention and deportation of unauthorized immigrants — would see its functions split over different agencies under DHS and the Department of Justice. As a result, the Castro campaign told Vox, immigration enforcement “would prioritize individuals with serious criminal convictions, threats to national security, and multiple reentries with a criminal history.”
- Customs and Border Protection would be steered away from routine immigration enforcement within the United States (where it has broad latitude to operate within 100 miles of a US border).
- DHS would stop signing agreements with local law enforcement agencies (known as 287(g) agreements) to help enforce immigration law — undoing one of the key tools that 21st-century presidents have used as a “force multiplier.”
- Immigration detention would only be used in the most serious cases — and since the plan promises to end the use of private prisons, which account for the overwhelming majority of immigration detention facilities, it wouldn’t really have much flexibility as to what those cases were.
- Immigration courts would be removed from the attorney general’s authority. Right now, immigration courts are at best quasi-independent; they’re under the Department of Justice, and the attorney general has power to set court precedent and regulate caseload. (Under Jeff Sessions and his successors, the Trump DOJ has used these powers aggressively.) The Castro proposal, echoing a call that’s been gaining steam among immigration lawyers and advocates, would turn immigration courts into “Article I” courts — like tax court — with more independence.
Some of these proposals would require Congress to pass them — namely, the ones reorganizing parts of federal agencies. Others wouldn’t. But it’s important to think of the two of them together because of the structure of immigration enforcement as it exists right now, where a lot of power is delegated to the executive branch but in practice, policy is often made by the agents on the ground.
Castro is making a statement about what his immigration priorities would be as president — similar to those of the past two years of the Obama administration, if not even more lenient. While pretty much all of the other proposals 2020 candidates have released on various issues have been proposals for bills that Congress could take up (not surprising, since many of them are currently senators), all the candidates admit that they can’t get an infinite number of bills through Congress. This proposal actually explains what one candidate for president would do with the powers he’d (theoretically) have on day one.
At the same time, though — as the Obama administration learned during its first six years — setting immigration priorities at the top doesn’t necessarily work if the agents themselves are unwilling to go along with them. The restructuring Castro is proposing would take an act of Congress to pass, but if it did pass, it would make it easier for future immigration-dove presidents to exert tighter control over enforcement line agents — while making it harder for future immigration-hawk presidents to exert similar control over immigration judges.
Ideas, but no real answers, for the current crisis
Castro’s proposal is better fleshed out in some areas than others — as you might expect for the first full proposal on immigration from a 2020 candidate, or for any proposal being released 10 months before the Iowa caucuses.
For example, reflecting the fact that the Democratic base is currently a lot more riled up about immigration enforcement than legal immigration changes, the only proposals addressing future legal immigration are either ways to address demands of people already in the United States (for example, getting rid of the three- and 10-year bars on the spouse of a US citizen getting his green card for years if he’s lived in the US as an unauthorized immigrant) or responses to particular Trump outrages (a commitment to expanding refugee resettlement again).
But the biggest question mark in Castro’s proposal — and one that the Democratic field is likely to struggle with as a whole — is the immediate crisis facing the US right now: the influx of up to 100,000 unauthorized immigrants, many of them families, children, or asylum seekers, into the US a month, and the challenges of caring for them.
Castro does have plenty of suggestions for this population. His plan calls for expanding ports of entry to make it easier for people to seek asylum without crossing illegally, supporting shelters and humane care for immigrant families, and expanding access to counsel for asylum seekers. And an entire section of his plan, borrowing Mexican President Andrés Manuel López Obrador’s call for a 21st-century “Marshall Plan” for Central America, suggests various ways the US can become a more productive leader in the region — “to create safety and opportunity so that people can stay there and find what they need in their home country,” Castro told Vox.
“In Latin America, we have a checkered past, and one that has bred a lot of resentment,” Castro said. “I’m not naive, I don’t think it can happen overnight, but I do believe we can go in a different direction.”
But, of course, that isn’t going to bear fruit immediately in terms of reducing immigration to the US. (In fact, research shows that economic development can even lead to more migration in the short term.) People will continue to come — perhaps even in unprecedentedly high numbers. Even the short-term proposals to deal with migrants who are already here will take time to build up.
And there’s nothing in this proposal to directly address the large number of people who won’t ultimately qualify for asylum under US law — even if they have attorneys, and even if the Trump administration efforts to restrict asylum for, say, victims of gang and domestic violence are reversed. Not everyone fleeing their home country out of legitimate need qualifies for asylum as US law defines it, and many of the people currently coming will not.
To many migration experts — not just immigration hawks — the “mixed flow” into the US is a problem. They believe it is important to reduce the number of people coming to the US without legitimate asylum claims, both because it frees up resources to address the remaining asylum seekers and because it reduces the possibility of deliberate malfeasance or fraud.
It’s possible that Castro and other Democrats genuinely don’t see that as a problem — that they’re willing to do whatever it takes to treat 100,000 immigrants a month as humanely as possible for as long as their cases take, even if fewer than half of them (at the most generous accounting) ultimately qualify for legal status in the US. Alternatively, it’s possible they believe that most of those 100,000 people a month really ought to qualify for humanitarian protections here, and US law needs to be expanded to accommodate that.
But that hasn’t been something they’ve articulated yet, much less been asked to justify by people who might not agree.
It might not be the turf Democrats want to fight on in 2020. They would probably rather focus on the Trump administration’s biggest political overreaches on immigration: the attempt to rescind DACA, family separation, the travel ban. But depending on what happens at the border between now and then, they may not have a choice.