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Why The Trump Administration Treats Illegal Border Crossing As A Criminal Offense


In the first Democratic primary debate last night, one small corner of the U.S. criminal code got a lot of attention.


JULIAN CASTRO: The reason that they're separating these little children from their families is that they're using Section 1325 of that act, which criminalizes coming across the border, to incarcerate the parents and then separate them.

SHAPIRO: That's Julian Castro, former secretary of housing and urban development, during the debate on NBC. Castro called on his fellow presidential hopefuls to support repeal of Section 1325, which makes it a criminal, not civil, offense to cross the border between ports of entry. We're going to talk about where this law came from and what its impact has been with Greg Chen, director of government relations for the American Immigration Lawyers Association. Welcome to the program.

GREG CHEN: Thank you so much for having me.

SHAPIRO: OK. So Castro said Trump is using 1325 to separate families that cross together at the border. Explain how this section of the criminal code applies to family separations.

CHEN: Well, the real nub of this issue here is that the Trump administration has been using the illegal entry statute to target asylum-seekers. More than a year ago now, it announced a zero tolerance policy, that the administration would prosecute all asylum-seekers under this illegal entry statute for having entered between ports of entry.

And once this is applied to a family and a parent is going to be prosecuted under it, what we see happening is that the Trump administration then put the parents into proceedings that require them to be separated from their children. And we then saw the widespread separation of parents from their children, children being detained on their own - lots of terrible conditions that resulted from that policy.

SHAPIRO: Now, the Obama administration also used Section 1325 a lot; so did the George W. Bush administration. Is the difference that those prior administrations didn't apply it to asylum-seekers?

CHEN: That's correct. The 1325 and 1326 prosecutions under illegal entry and reentry had been on the books for years. But the fact is the Trump administration has really used it now to target asylum-seekers. For years, we've seen the criminal justice system add more criminal laws and harsher penalties to the system, and we ended up with massively crowded jails and tax bills and horror stories of people being treated unfairly in the jails.

Now that is exactly what's happening with prosecutions for illegal entry, which has criminalized thousands of people simply for not having legal status. And that happened under the Obama administration and prior administrations, and it's just now being applied to extreme levels by the Trump administration.

SHAPIRO: If 1325 were eliminated, what would that mean? Would people crossing the border without papers get the equivalent of a traffic ticket? Like, what would happen if it became a civil penalty rather than a crime?

CHEN: Well, the important thing to recognize is that there do need to be consequences for violating the immigration laws, and it just depends on how it's going to be done. Almost all of the immigration statute is civil by nature, so that if you entered illegally, you could be put into immigration court removal proceedings. And then if those proceedings went through, you could be deported out of the country, and that would be the specific consequence, which is already obviously very severe.

SHAPIRO: Your title is director of government relations. You're based in Washington, D.C. Do you see any real motion in Washington to actually repeal Section 1325 or would this have to be part of some broader comprehensive immigration package that seems out of reach of Congress?

CHEN: I do think that any kind of solution that addresses the undocumented population needs to be part of a broader reform that includes legalization. I could not see the repeal of 1325 being done on its own. There has not been much appetite for this kind of broad-scale reform. But the fact is that three out of four Americans consistently agree that we need to give permanent legal status for those who are undocumented in the United States.

SHAPIRO: Greg Chen is director of government relations for the American Immigration Lawyers Association. Thanks for joining us.

CHEN: Thank you so much for having me. Transcript provided by NPR, Copyright NPR.