A string of former Obama administration officials have railed against 2020 hopeful Julián Castro’s call to decriminalize border-crossing, highlighting a widening split between the progressive primary field and parts of the party establishment.
During the Democratic primary debate last week, Castro challenged the rest of the 2020 field to adopt a proposal that would allow the civil immigration enforcement system to have exclusive legal control over border-crossing violations. That system already handles detaining and deporting migrants.
At least 12 of the 20 candidates who made the debate cut, including Castro, have gone on record saying they support repealing the criminal immigration law put forth by segregationist Sen. Coleman Blease back in 1929. Former Vice President Joe Biden, the most prominent Obama alum in the current presidential race, is the only leading candidate who has refused to state a position on the issue.
But the movement toward repealing that law appears to unnerve several former Obama administration officials who have repeatedly batted the idea down since last week’s debates. The dispute highlights longstanding tensions between the dethroned Democratic establishment and the progressive wing of the immigrant rights movement ― a conflict that has largely laid dormant under the uniquely draconian policies of President Donald Trump.
Juliette Kayyem, a former assistant secretary for intergovernmental affairs for the Department of Homeland Security, tweeted during the second night of debates that the law criminalizing illegal entry “sets a baseline for a nation’s enforcement capabilities.”
It’s not entirely clear what Kayyem meant by that. Immigration in the U.S. is enforced primarily through civil law, which includes the sprawling migrant detention system and metes out the penalty of deportation. If such a “baseline” for enforcement exists, it’s regulated under civil law.
Crossing the border without permission is a federal crime, but the Justice Department rarely prosecuted the crime during the era of mass migration from Mexico in the 1990s and early 2000s. It was only under the administration of George W. Bush that immigration prosecutions began to expand exponentially, taking up about half the federal criminal docket annually since 2008 ― the year unauthorized crossings began to plummet, largely for unrelated demographic reasons. The vast majority of immigration enforcement takes place within the civil system; the criminal system does not enforce deportations.
Kayyem’s comments, however unclear, made their way onto “Pod Save America,” a podcast run by former Obama staffers. The hosts lauded Castro’s debate performance, but laid into the politics of decriminalizing border crossings ― which they called a distraction from the ultimate goal of comprehensive immigration reform legislation.
Kayyem elaborated on her take in a Washington Post opinion piece published Tuesday, in which she contended that “decriminalizing the border is not in anyone’s interest.” Other former Obama officials ― most notably Cecilia Muñoz, the former president’s domestic policy director ― circulated the piece. Former Homeland Security Secretary Jeh Johnson added his voice to the mix on Wednesday, telling The Washington Post that decriminalizing border-crossing violations would be “tantamount to declaring publicly that we have open borders.”
Kayyem, Muñoz and Johnson all either declined or did not respond to HuffPost’s requests for comment.
Castro brushed off their criticism.
“I wouldn’t feel like I’m leading with something if there wasn’t a difference of opinion,” he told HuffPost.
Policy vs. Politics
The sudden flurry of criticism over Castro’s position, which he first laid out in April, appears to stem more from fear over the politics of embracing decriminalization than the policy itself, said Michael Kagan, an immigration law professor at the University of Nevada Las Vegas.
People often misunderstand the difference between civil and criminal law, Kagan pointed out ― which makes it easy for critics to make calls for decriminalization look like a rallying cry for open borders.
“A lot of it is political worry,” he said. “But if that’s the case, people should say: ‘I’m worried about the politics of it, not the policy.’”
When it comes to policy, the critics have mounted a thin case. The mass prosecution of border-crossing violations marks a major change in immigration enforcement over the last 15 years. In previous decades, the vast majority of those arrested at the border for crossing without permission were simply escorted to the other side or detained and deported through the civil enforcement system by Border Patrol and Immigration and Customs Enforcement.
That leaves the critics with the burden of defending how the law works in practice. But they rarely do.
“The folks who are criticizing this now are trying to defend the legacy of the 2008 to 2016 immigration framework. ... The Trump administration has taken that framework of criminalizing folks and taken it to a whole new level.”
The “Pod Save America” hosts ― Jon Favreau and Jon Lovett, former speechwriters for President Barack Obama; Tommy Vietor, a former national security spokesman for the Obama administration; and Daniel Pfeiffer, a former Obama communications director and senior adviser ― repeatedly confused basic facts about immigration enforcement or conflated the criminal and civil enforcement systems.
“The next Democratic president will say, ‘I have decriminalized immigration by making sure we only deport the most dangerous criminals,’” one of the hosts said. However, deportations have nothing to do with the push to decriminalize border-crossing violations. Deportation is a civil penalty.
Another host described the illegal entry statute as “Section whatever whatever” and called it a felony. It’s Section 1325, and it’s a misdemeanor.
“I have yet to see a really clear argument about how criminal prosecutions help anything in immigration policy.”
Kayyem argued in her piece for the Post that illegal entry should remain criminal behavior because countries have an interest in establishing a “baseline of desired conduct.” She didn’t explain, however, why civil law isn’t enough to establish that, or why the Justice Department should consistently devote half the federal criminal caseload to jailing folks for an offense that will land them in deportation proceedings.
Johnson’s statement that decriminalizing border-crossings would amount to open borders is patently false ― decriminalization would leave the civil enforcement system intact ― but it reflects the concerns common among DHS officials that human smugglers will take advantage of any change in border enforcement to convince more migrants to make the journey.
“I have yet to see a really clear argument about how criminal prosecutions help anything in immigration policy,” Kagan said. “It seems like the argument for it is that we have to somehow display our willingness to be harsh ― to show that we’re serious. … I find it hard to justify being harsh to a human being because you think it’s a good political play.”
The liberal backlash against the decriminalization proposal is an unwelcome intrusion for progressive groups such as the American Civil Liberties Union, Grassroots Leadership or Mijente, which have for years pushed Democrats to take notice of the issue with little success.
“It’s a call to repeal what are basically redundant provisions in federal law that essentially duplicate the deportation process in the criminal system,” Ruthie Epstein, the ACLU’s deputy director for immigration policy, told HuffPost. “Democratic Party operatives may have ideas about whether talking about decriminalization makes for good politics, but that’s different from policy. And I’ve never heard a persuasive argument for why [the law criminalizing border-crossing] needs to remain on the books.”
For reformers like Castro, however, the spectre of family separation offers a clear reason to purge the law from the books.
The Trump administration used the law criminalizing illegal entry to systematically split parents from their children at the border last year. Officials routed parents into jails, leaving their kids in the custody of immigration authorities. Kayyem said that concern is overplayed ― previous administrations prosecuted tens of thousands of migrants per year on border violations without systematically separating families and the Trump administration has wrenched migrant parents from their kids at the border in other ways.
But the Trump administration still uses the law that criminalizes border-crossing to split up families, according to the Texas Civil Rights Project, a nonprofit legal outfit that monitors the federal courthouse in McAllen ― a main site of the family separation debacle last year. In some instances, the group has documented cases of biological parents split from their kids in violation of U.S. District Judge Dana Sabraw’s injunction on the practice, according to Zenén Jaimes Pérez, the organization’s advocacy and communications director. More often, the law is used against children traveling with relatives other than their parents ― like siblings, or grandparents arriving with their grandchildren.
“The folks who are criticizing this now are trying to defend the legacy of the 2008 to 2016 immigration framework,” Pérez said. “What they fail to recognize is that there was a lot of criticism then. And the criticism now is magnified even more because the Trump administration has taken that framework of criminalizing folks and taken it to a whole new level.”
Even as Castro faces a liberal backlash for challenging the mass criminalization of migrants at the border, some members of the Democratic Party view it as a political battle worth fighting.
“If we run away from it, we demobilize our base,” said one Democratic operative of color. “The way we win the election is to run right into the fight.”
Rep. Alexandria Ocasio-Cortez (D-N.Y.) is among those who have supported decriminalization.
Ocasio-Cortez, a bellwether for progressive ideas jostling their way into the Democratic mainstream, tweeted praise for Castro’s proposal Wednesday. She said the laws criminalizing illegal entry and reentry allow the federal government to “mindlessly throw people in cages.”
“We have to take these proceedings out of criminal code & into civil code,” Ocasio-Cortez wrote. “Torture accomplishes nothing.”