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Can Democrats Decriminalize Unauthorized Immigration?

Xavier Becerra joined Julián Castro and Beto O'Rourke in calling to end criminal charges for those who enter the country illegally.
Undocumented immigrants leave a U.S. federal court in shackles on June 11th, 2018, in McAllen, Texas.

Undocumented immigrants leave a U.S. federal court in shackles on June 11th, 2018 in McAllen, Texas.

A growing number of high-profile Democratic politicians, including presidential hopefuls, are calling to end criminal charges for those who enter the country illegally. But as with the long-shot calls to abolish Immigration and Customs Enforcement ahead of the 2018 mid-terms, experts say it is unlikely that a push to decriminalize unauthorized crossings will amount to more than a campaign slogan, unless elections more than a year away yield a sea change in the White House and Congress.

California Attorney General Xavier Becerra reportedly became the latest Democratic politician to call to decriminalize immigration in a recent interview with HuffPost, arguing that civil penalties are sufficient and that any further prosecution demonizes people whose only crime is the pursuit of a better life. Earlier this month, Obama administration Housing and Urban Development Secretary Julián Castro, a 2020 Democratic nomination hopeful, published a policy proposal calling to repeal Immigration and Nationality Act Section 1325, which makes unauthorized entry a federal misdemeanor. That law and another, Section 1326, imposing increased penalties for subsequent re-entry, have enabled the Trump administration to separate immigrant parents from their children while the adults are imprisoned and prosecuted.

"The widespread detention of these individuals and families at our border has overburdened our justice system, been ineffective at deterring migration, and has cost our government billions of dollars," the proposal says.

Becerra and Castro have been joined by several others in their calls to decriminalize unauthorized immigration. Former United States Representative from Texas Beto O'Rourke, another 2020 Democratic ticket hopeful, called to decriminalize unauthorized immigration in the run-up to last year's mid-term elections along with several fellow Texas Democratic politicians.

Becerra and the others did not immediately respond to requests for further comment on the feasibility of a push to decriminalize unauthorized immigration under the current administration. Even if a decriminalization bill were to pass both houses, which have faced great difficulty passing much less divisive legislation, President Donald Trump would very likely veto it. It remains to be seen whether an administration that more greatly favors immigration would bypass Congress to decriminalize undocumented immigrants by executive order. Trump may have set a precedent for that sort of use of executive powers when he bypassed congressional approval for funding to build a wall at the U.S.–Mexico border by declaring a national emergency, experts have said.

Insofar as what appears to be an emerging Democratic call to decriminalize irregular immigration is a campaign talking point, that would mark a change of tack from the mid-term elections, when many candidates seemed to sidestep discussions of immigration in favor of questions on health care and a widening income gap.

Still, immigration experts are skeptical that there will be much actual headway on the decriminalization front—at least until November of next year.

"Given Congress' repeated failures over the past 10 to 12 years to pass any form of immigration legislation, it's unlikely that, under this administration, any 'real action' or legislation to decriminalize immigration will occur," writes Karla McKanders, director of Vanderbilt University's Immigration Practice Clinic. "Congressional leaders have attempted to decipher between 'deserving' immigrants who have not committed crimes and to provide immigration relief for migrant children, DREAMERS, and vulnerable immigrants who are fleeing persecution, [and] refugees, but both calls have not resulted in reform."

McKanders writes that, if politicians are calling to implement long-shot reforms on immigration, that's because the nation has ceased to engage in meaningful debate on immigrants. "The key point to remember is that the criminal narratives around immigrants have become so divisive that it inhibits understanding and dialogue to develop workable solutions," she adds.

While it may be a long-shot for now, some experts are convinced that repealing the laws that criminalize border crossings is actually the first practical response to calls for comprehensive immigration reform that began long before the Trump administration.

"Repealing criminal entry and reentry laws makes sense financially and practically as well as from a moral perspective," says Lynn Marcus, director of the Immigration Law Clinic at the University of Arizona, who spoke to Pacific Standard in a personal capacity and not on behalf of her employers. "Prosecution and incarceration of migrants has cost the country billions of dollars and these offenses now account for more than half of all federal criminal prosecutions, consuming precious resources that could otherwise be devoted to prosecuting more serious crimes, such as drug smuggling and human trafficking."

All of that has amounted to an overwhelming need to fix the system, Marcus says. "The entire immigration system has long been in need of an overhaul and decriminalizing illegal entry would be important step in the right direction."

And while the chance of passing even preliminary immigration reform legislation to address a flailing system—by repealing Section 1325 or otherwise—remains unlikely for now, Marcus maintains that politicians are well advised to continue to push for it. "The president's approach is to ignore the fuller picture and the forces and dynamics behind illegal immigration and simply build higher walls, more detention centers, and more prisons," Marcus says. "I expect only more proposals and policy changes along those lines from this administration, but that doesn't mean that other leaders should not be calling for sensible reforms like this one. They must!"