In the first two Democratic presidential debates, candidate Julián Castro drew attention to US Code Title 8, Section 1325, a federal law that makes “illegal entry” into the United States a criminal offense. Castro and other candidates have expressed support for repealing the law, while Castro’s fellow Texan Beto O’Rourke called for a broader rewrite of US immigration law.

Section 1325 has received this scrutiny largely because prosecuting people for violating it has contributed to the family separation crisis. If the law were repealed, crossing the border without authorization would remain a civil offense (under 8 US Code § 1182(a)(6)) that carries a penalty of deportation. People would not face criminal penalties for the first unauthorized entry.

What is Section 1325?

When people cross the border without going through the proper channels, they may be arrested by Department of Homeland Security (DHS) at a port of entry (by Customs and Border Protection officers) or between these entry points (by Border Patrol agents).

Officers may then administratively process those in their custody for removal proceedings. But they may also transfer them to the Department of Justice’s (DOJ’s) US Marshals Service for criminal prosecution for violating Section 1325. Possible criminal penalties include fines and incarceration in federal prison for up to six months (for a first offense) or up to two years (for a subsequent offense).

This policy applies to any adult violating Section 1325 regardless of his or her criminal history. But prosecuting everyone who is apprehended is infeasible. Under previous administrations, officers used their discretion (PDF) to prioritize prosecution of those with prior arrests and immigration violations.

Officers may also decide to charge people they apprehend with a felony offense for “illegal reentry,” or entering without authorization after a previous deportation, under Section 1326 of the US Code. The 1325 and 1326 Sections do not apply to people that are already present in the US illegally or who overstay a visa.

What are the effects of prosecuting Section 1325 violations?

Since the law was established in the late 1920s, prosecution of Section 1325 offenses has been fairly limited. The post-9/11 DHS organization under the Bush administration led to stricter enforcement, and prosecutions continued to grow through the Obama administration. Illegal entry offenses under Sections 1325 and 1326 now constitute a large share of federal prosecutions (PDF), and the number of entry and reentry offenses prosecuted has grown substantially since the late 1990s.

To support the growing number of prosecutions under Section 1325, the DOJ and federal courts along the southwest border developed Operation Streamline in December 2005. This policy aimed to secure quick guilty pleas and process large caseloads more efficiently through group hearings – in which many defendants have their cases decided simultaneously – and with limited assistance of legal counsel.

Many more people have been detained and criminally prosecuted because of programs like Operation Streamline that facilitate heightened levels of criminalization under Section 1325. The zero-tolerance policy announced in 2018 by then–Attorney General Jeff Sessions exacerbated the issue by requiring enforcement for parents in family units. DHS agents were directed to pursue criminal charges for parents rather than using their discretion to process them through the civil system.

When parents are charged with a civil offense, they may stay with their children pending a court hearing. But when a parent is charged with a criminal offense, such as under Section 1325, his or her children are held in civil detention centers while the parent is detained in federal prison facilities. Parents were not exempt from Section 1325 before the zero-tolerance policy, but adults in family units were not a priority for criminal prosecution.

Why does enforcement of Section 1325 matter?

On top of causing negative physical and emotional impacts by separating children and parents, the prosecution of 1325 cases has overburdened the federal justice system and increased the share of resources spent on misdemeanor offenses (PDF). It labels an exponentially larger share of immigrants as “criminals,” making it more difficult for them to claim asylum and more likely to be prosecuted for a felony under Section 1326 if they return to the US after deportation.

These prosecution increases are similar to the tough-on-crime policies of the past and have a distinct impact on communities of color. Despite research indicating that undocumented immigrants do not increase crime, they are increasingly subject to criminal prosecution for immigration violations. Moreover, prosecuting these offenses poses a serious risk of violating due process, along with basic human rights and dignity, given the assembly-line nature of these proceedings.

What happens if Section 1325 is repealed?

People who cross the border without authorization will still be subject to administrative or legal proceedings for a civil violation if Section 1325 of the US Code were repealed. Immigration officials would decide whether a person is indeed unauthorized to be in the country and order deportation. Fewer people would be handed over to the criminal justice system, which would in turn reduce the burden on criminal courts and federal prosecutors and reduce the number of family separations.