Open Borders- A False Choice
The Law
Title 18, §1325. Improper entry by alien
- (a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts
- Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
The History
Under Title 18,§1325 of the Federal Code it is misdemeanor crime to cross the US border outside of the legal “ports of entry.” That same section also provides for non-criminal fines that can also be imposed.
Prior to 1929, it wasn’t a “crime” to cross the border outside of the ports of entry locations. People who illegally entered the United States were still deported, but, they simply weren’t charged with the “crossing” crime. They were, legitimately, charged with being illegal “residents.”
The reasons for the 1929 law were clearly racist, aimed as much against Asians as Mexicans. It was marginally enforced through the Depression. Deportations were more likely for illegal residents then, as competition for scarce Depression era employment. Once World War II began, there was less enforcement as the need for workers increased.
Today
Today the law still remains on the books, defined as a “First Degree Misdemeanor.” Both the Obama and Trump Administrations have used this law to take custody of migrants found coming across the border outside of the few “ports of entry.” This criminal “charge” under the Trump Administration has become the justification for detention camps, child separation, and now child detention camps.
The logic the Trump officials argue is this: migrants crossing outside the ports of entry are breaking the law. Lawbreakers must be punished, and if we don’t hold them, they might disappear into the US population and avoid punishment. Therefore we must put them in detention.
Castro’s Solution
It is already illegal to be “unlawfully present” in the United States. That simply means that someone is in the US without legal permission. So the difference between “improper entry” and “unlawful presence” is that a migrant who crosses the border to ask for asylum, a legal right, is not necessarily “unlawfully present.” They are in fact legally allowed to come in to ask for asylum.
If, as former Housing Secretary Julian Castro calls for, §1325 was removed, the result then would not be “Open Borders.”
It would work this way. The Border Patrol (getting out of the detention camp guard business and back to what they are supposed to do) would apprehend those crossing the border outside of the ports of entry. Those with a lawful purpose, seeking asylum, would be processed and released, to return later for their asylum hearings. When this was done in the past by ignoring §1325; 85 to 90% return to appear at the hearings. They wanted to be in the United States legally.
Others apprehended, smuggling drugs or people or for other reasons, could either be charged with the crimes they committed, or for being “unlawfully present.” Those would then be held for trial, just like any other criminal.
The False Choice
This is not OPEN BORDERS, as the Trump administration has claimed. They have created a false choice, their detention camps or unregulated access to the United States. The choice really is, DETENTION CAMPS (or more correctly, concentration camps) or HUMANE TREATMENT and recognition of the legal right to claim asylum under US Law.
The benefits: the United States would no longer be in the “detention camp” business, and worse, in the child separation business. The Border Patrol would also not be in violation of Federal Court Order in the Flores Agreement, that states that they cannot detain children for longer than 72 hours. And the cost of caring for the migrants would be carried by their relatives already in the US, or the humanitarian agencies along the border, and not by the US Government.
The drawbacks: it would require an increase in the number of prosecutors, defense lawyers, and judges to deal with the asylum claims. Currently there is a backlog of close to a million claims nationwide; whether we imprison folks or not, we need to expand our legal system for this issue.
Oh, there’s one more benefit. We wouldn’t need a “WALL” to stop folks. We could spend that money more wisely somewhere else, maybe in aid to the Northern Triangle of Central America, where even Republicans agree the migrant crisis begins. The anticipated WALL cost of $40 billion would go a long way towards changing conditions at the source. That might make the rest of these responses less necessary.
