Democratic presidential hopeful Julián Castro doubled down on his call to stop criminalizing migrants who are already facing deportation proceedings, telling HuffPost that Congress should also repeal the law that makes it a felony to reenter the U.S. after being deported.
Since launching his presidential campaign, the former secretary of Housing and Urban Development has repeatedly argued that Congress should separate immigration enforcement from the criminal justice system — ending the entanglement that the Trump administration used to systematically separate migrant families last year.
When Castro has championed the decriminalization of the immigration system, he has usually spoken specifically about repealing the law that makes unauthorized border crossings a misdemeanor. He challenged the rest of the 2020 field to back that position at the first Democratic presidential debate on June 26, and at least 11 candidates have joined Castro in calling for the decriminalization of unauthorized crossings.
But Castro has rarely addressed his views on the more serious penalty written into the law for migrants who cross the border again after being deported. Under U.S. law, that crime is punishable by up to two years in prison for people without serious criminal records and up to two decades for those whose prior convictions subject them to enhanced sentencing.
Castro told HuffPost he has the same position on that statute.
“I’d like to see those being treated as a civil matter,” he said. “I don’t believe in criminalizing desperation.”
Castro affirmed his position on decriminalizing immigration in spite of backlash from fellow former officials in the Obama administration, who appear to view the position as too politically risky in a high-stakes election that will hinge in large part on immigration. Former Homeland Security Secretary Jeh Johnson likened decriminalizing border crossing violations to a declaration that America has “open borders.” President Barack Obama’s last head of Immigration and Customs Enforcement, Sarah Saldaña, told the Dallas Morning News it annoyed her “to no end when these politicians start throwing out these facile solutions.”
But Castro said both the family separation debacle last year and President Donald Trump’s hostility toward migrants convinced him that the criminalization of immigration offenses that are already governed by civil law gives the White House too much power over migrants.
“The terrible way that this administration has treated people over the last two years has prompted many of us to thoroughly think through the best way to respond to a broken immigration system and to make sure that children and families are not treated the same way in the future,” Castro said. Repealing both the laws criminalizing border-crossing violations would “close off every opportunity that any future administration may have to exercise such cruelty.”
Castro also questioned the logic of devoting half or more of the federal criminal docket to immigration violations that civil authorities already police and punish, while federal prosecutions for white-collar crime have plummeted to their lowest numbers in two decades.
“This speaks to the larger game that people like Donald Trump play,” Castro said. “They scapegoat and demonize immigrants, and they make some people believe that they’re worse off because of undocumented immigrants. At the same time, they let off the hook wealthy special interests that are the real cause of so much inequality.”
Castro’s campaign said the candidate has discussed his opposition to the felony version of the border-crossing law in public since launching his presidential nomination bid, but the position is not contained in the immigration plan he unveiled back in April. That document refers specifically to the misdemeanor illegal entry statute, leaving felony illegal entry unmentioned. He likewise referred specifically to Section 1325 of the Immigration and Nationality Act ― the misdemeanor version of the law ― during the presidential debate.
And Castro’s opposition to felony reentry came as news to several immigrant rights activists and criminal justice reformers who have followed his campaign and praised his calls to repeal the misdemeanor law.
“It’s very significant,” said Judy Greene, co-author of the 2016 study “Indefensible: A Decade of Mass Incarceration of Migrants Prosecuted for Crossing the Border.” “It’s not that people are coming to commit crimes or collect welfare. They’re coming to take care of their families. I’m really pleased that Mr. Castro is recognizing that.”
‘This Is Where The Movement Is At’
Repealing the illegal entry law would have broad implications for immigration enforcement, halting one of the top drivers of federal incarceration.
Under U.S. law, living in the United States without authorization is a civil offense, and the vast majority of immigration enforcement takes place under civil law. The migrant detention system run by Immigration and Customs Enforcement that locks up about 50,000 people on a daily basis, the much-maligned temporary holding facilities run by the Border Patrol and the penalty of deportation are all part of the civil system.
But crossing the border without authorization is also a federal crime. Congress first passed the laws criminalizing illegal entry and reentry back in 1929. The laws, put forth by white supremacist U.S. Sen. Coleman Blease of South Carolina, played an early role in the expansion of the federal prison system, according to historian Kelly Lytle Hernández, author of ”City of Inmates.” The Clinton administration toughened those laws in 1990s as part of other immigration reform packages.
It was only in 2005, however, that the George W. Bush administration began systematically expanding those immigration prosecutions across the border through a program called Operation Streamline. By 2008, immigration prosecutions had swallowed up nearly half the federal criminal docket — a trend that has remained constant ever since.
The Trump administration appears to have set a record last year, with about 94,000 combined prosecutions of illegal entry and reentry, which was 57% of the federal criminal caseload, according to the Transactional Records Access Clearinghouse database at Syracuse University — edging out former President Barack Obama’s 91,000 cases in 2013.
Criminal justice reformers have long claimed that one immigration enforcement system is enough. By backing the repeal of the felony reentry law in addition to the misdemeanor version, Castro is positioning himself on the side of reformers. Striking those two laws from the books would give the civil system exclusive legal control over immigration violations.
“Criminal justice organizations have been calling for an end to these prosecutions for years,” Ruthie Epstein, the American Civil Liberties Union’s deputy director for immigration policy, told HuffPost. “This is where the movement is at.”
‘This Isn’t Exclusively A Border Issue’
Although Castro has spent most of his time attacking the misdemeanor law, the felony version carries harsher sentences, and prosecutors often wield it against migrants who have spent significant time in the United States. Unlike the misdemeanor version, which is almost always charged in one of the five federal districts that touch the U.S.-Mexico border, prosecutors can indict unauthorized migrants on illegal reentry charges anywhere in the country.
Under Trump, former Attorney General Jeff Sessions directed U.S. attorneys across the country to consider filing more illegal reentry cases back in 2017.
Last year, all but three of the country’s 94 federal jurisdictions — Alaska, eastern Oklahoma and the Northern Mariana Islands — filed illegal reentry prosecutions. About a quarter of the roughly 23,000 illegal reentry cases were charged outside a border jurisdiction last year. Often cases charged within border jurisdictions will include people arrested far from the border who have lived in the United States for years.
“People don’t necessarily realize this isn’t exclusively a border issue,” Bob Libal, the executive director of the Austin, Texas-based criminal justice reform group Grassroots Leadership, told HuffPost. “We’re seeing a lot of these cases for people who have been residing with their families for years or decades in the United States and might have a deportation from 20 or 30 years ago.”
The skyrocketing caseload of illegal reentry prosecutions in the last decade has made the crime one of the largest drivers of federal incarceration. That one crime currently outpaces all other convictions dealt out in federal district court. (Convictions for the crime of illegal entry are even higher in number, but they are often handled by magistrate courts, which leaves them out of some federal justice statistics.)
Since 1999, the federal government has housed unauthorized migrants in segregated prisons largely run as for-profit enterprises by private contractors. The Obama administration’s widely publicized decision to phase out private prison contracts with the Bureau of Prisons would have mostly affected such Criminal Alien Requirement facilities, where most inmates are serving either immigration or drug-related offenses. The Trump administration awarded three new immigrant prison contracts to private companies in May.
“The reentry prosecutions are the ones that are filling the federal, segregated, private prisons for immigrants,” Libal said. “If, as most Democratic candidates have stated, they want to end federal contracts with private prisons and they don’t want to build a bunch of new private prisons, they’re going to have to end or dramatically reduce the prosecutions of reentry.”