Kayyem is wrong, border policy needs to address criminalization
Unfortunately, Kayyem’s analysis seriously underestimates the importance of Section 1325. On the contrary, it is precisely responsible for much of what migrants are currently facing at the border. This is because it acts as the doorway for criminalization; providing a legal justification to separate families. And thus, the current administration’s zero-tolerance policy, which directed prosecutors to seek criminal charges for all possible 1325 cases, led directly to family separations, as children cannot be kept with adults in federal jail.
Nevertheless, Kayyem argues that the statute is largely irrelevant because it is no longer used as grounds for the government to separate families. This is partially true, as the Trump administration is currently continuing its family separation policy by arguing that a parent poses a danger to the child or has a serious criminal record or gang affiliation. However, the legal justification for such claims requires the government to rely on minor crimes, questionable accusations of gang membership and unverified safety concerns. Accordingly, in the face of a legal challenge, there’s a strong chance that the government will lose, as it has already done repeatedly in legal challenges to its immigration enforcement. They could, however, return to using 1325 as a justification with little chance of it getting struck down.
For a number of reasons then repealing 1325 is an understandably attractive proposition. For starters, the civil mechanisms that punish individuals who cross illegally would remain. Deportation hearings would still take place to figure out if those who cross the border have sufficient justification, such as asylum. The government can also levy fines, if appropriate. Repeal would also help to curb the demonization of migrants, who come to this country at great risk to themselves. There’s also the fact that section 1325 prosecutions are not an especially good deterrent to illegal entry. And, it is largely for these reasons that although illegal entry has been a crime since 1929, past administrations did not think it worthwhile to criminally prosecute such cases, instead opting to reserve the considerable time, money and resources to prosecute more serious offenses—a far more efficacious use of precious taxpayer funds.
In defense of her position, Kayyem contends that “even if 1325 remains on the books, a future president will be free to end family separation.” This is certainly true, but a future president will also be free to resume it—as would this administration—as long as the statute remains in force. And, in fact, last year, when the Trump administration claimed to end family separations, it merely meant that they would stop prosecuting most adults with children under 1325. However, those could resume at any time and they have already indicated a desire to do so.
But taking a step back from the question of family separations, the statute clearly still matters for adults without children, for whom zero tolerance has continued unabated. In fact, convictions under 1325 accounted for 49.6 percent of all convictions in federal court this year. As the number of individuals prosecuted and convicted for crossing the border without papers climbs into the hundreds of thousands, we should be mindful of the consequences a criminal conviction carries.
After all, the resultant criminal record makes it nearly impossible for a migrant to immigrate legally in the future. It can also prevent migrant parents from being reuniting with their separated children. And, most pertinent to public safety—a point that 1325 repeal supporters would emphasize—the resources that prosecutors have been forced to pour into these low-level, non-violent infractions constitute a monumental waste of resources that could be spent on more pressing public safety crimes.
And, while Kayyem does imply that other parts of our immigration system require more urgent attention, such as reforms to the asylum process and improving the inhumane conditions of detention centers, she ignores the ways that the statute itself feeds directly into those problems. Under zero tolerance, asylum seekers face prosecution and incarceration before their asylum claims can be adjudicated, which is not only cruel but arguably unconstitutional. And the zero-tolerance policy of criminally prosecuting all apprehended border crossers (often under 1325) has significantly worsened the enormous backlog in immigration courts. Finally, while we agree that it is desperately necessary to fix the atrocious conditions in immigration detention centers, it is easier to treat people inhumanely when you view them all as criminals. That she doesn’t see this connection to 1325 is vexing, to say the least.
In the end, it’s one thing to argue that repealing 1325 wouldn’t be a panacea—Kayyem is indisputably right about that. But it’s quite another to pretend the statute is meaningless and that it does not contribute to the myriad problems faced by migrants at the border today.