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Under Federal law, illegal entry into the United States is both a criminal violation and a civil violation. But historically, most people caught crossing the border illegally were not criminally prosecuted for illegal entry. Instead, most people just went through civil deportation proceedings. This changed under the Trump Administration, when then-Attorney General Jeff Sessions implemented a "zero tolerance policy", requiring the Department of Justice to criminally prosecute every single person caught crossing the border illegally. This resulted in large numbers of children being separated from their parents. So in the June 26 Democratic Presidential Debate, then-candidate Julián Castro proposed that section 1325 of the Immigration and Nationality Act, which made illegal entry a criminal violation, be repealed:

My plan also includes getting rid of Section 1325 of the Immigration and Nationality Act, to go back to the way we used to treat this when somebody comes across the border, not to criminalize desperation, to treat that as a civil violation. And here's why it's important. We see all of this horrendous family separation. They use that law, Section 1325, to justify under the law separating little children from their families. And so I want to challenge every single candidate on this stage to support the repeal of Section 1325.... Let's be very clear. 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.

Now Castro has since dropped out of the race. But my question is, which 2020 Democratic Presidential Candidates still in the race support repealing section 1325?

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    @bobsburner Illegal entry has been a federal crime since 1929. In all that time criminal prosecutions of illegal entry have been relatively low. There was a small uptick during Bush’s Operation Streamline, but it was only the Trump Administration which decided to criminally prosecute all illegal entries. – Keshav Srinivasan Jan 27 at 16:27
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    @StianYttervik not american either, but from what I understand the people used to be deported as a family and people had an "oh well, we'll try again next month" mentality. Now the families are separated and parents imprisoned while they await trial; the conditions for the kids aren't great either. Their aim is to make the experience of getting caught much worse so it serves as a deterrent to illegal immigration. I also sense a lot of spite: even if it would be easier and cheaper for the US to simply deport the illegal immigrants, they want to punish them for trying. – Alexandre Aubrey Jan 27 at 18:50
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    @AlexandreAubrey Ah. That does sound reasonable. Retributionism. – Stian Yttervik Jan 27 at 20:38
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    The question and some of the comments have false and misleading information. Prosecutions for illegal entry do happen, but the majority of cases causing so call separation of children occurs due to the families requesting asylum or not showing paper work that the children are family. I feel I have to remind everyone that the separation has occurred in the Obama administration as well. What has actually changed is the catch and release program where the families requesting asylum were released into the public with a promise to come back for their hearing. Now they have to stay in custody. – Frank Cedeno Jan 27 at 21:30
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    The whole reason there was "catch and release" is because there weren't enough beds for all the people who got caught, and even illegal immigrants have due process rights. Trump decided to not build courts and detention centers with the 25B the congressional leaders offered for border security. – nomen Jan 28 at 0:16
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Here are the Democratic Presidential Candidates that definitely support repealing section 1325:

  • Bernie Sanders: His website says “As president, Bernie will [r]epeal 8 U.S. Code Section 1325, putting border crossings on par with other forms of immigration violations, such as overstaying a visa.”
  • Elizabeth Warren: Warren has long supported repealing section 1325 even before Castro proposed it in the debate, but for instance she told the Huffington Post “I agree with Secretary Castro. We should not be criminalizing mamas and babies trying to flee violence at home or trying to build a better future.”
  • Andrew Yang: Yang raised his hand in the June 27 debate in response to the question “If you'd be so kind, raise your hand if you think it should be a civil offense rather than a crime to cross the border without documentation?”
  • Tom Steyer: Steyer told the Washington Post “I support decriminalizing unauthorized border crossings. These matters are better handled through civil proceedings.

Here are the candidates who definitely oppose repealing it:

  • Joe Biden: Biden said in the July 31 debate, “The fact of the matter is, you should be able to -- if you cross the border illegally, you should be able to be sent back. It's a crime. It's a crime[.]... I have guts enough to say his plan doesn't make sense. Here's the deal. The fact of the matter is that, in fact, when people cross the border illegally, it is illegal to do it unless they're seeking asylum. People should have to get in line. That's the problem. And the only reason this particular part of the law is being abused is because of Donald Trump. We should defeat Donald Trump and end this practice.”
  • Amy Klobuchar: Klobuchar told ABC News “I support different enforcement priorities and of course I'll look at the statute to see if you can make changes depending on the level of a security risk, but no I don't support open borders and simply getting rid of this statute.”
  • Michael Bennet: Bennet told the Washington Post that he does not support repealing section 1325.
  • John Delaney: Delaney told the Washington Post that he does not support repealing section 1325.

And here are the candidates whose position on the issue is unclear:

  • Pete Buttigieg: Buttigieg has been all over the map. In the June 27 debate, in the response to the question “If you'd be so kind, raise your hand if you think it should be a civil offense rather than a crime to cross the border without documentation?”, Buttigieg raised his hand and said “Let's remember, that's not just a theoretical exercise. That criminalization, that is the basis for family separation. You do away with that, it's no longer possible.” But then shortly thereafter a Buttigieg spokesperson told the Washington Post “No, we should not repeal all criminal penalties for crossing the border unlawfully”, and in November Buttigieg told the Washington Post “We should still have criminal penalties for people who engage in fraud or who willfully evade immigration laws.” So who knows? But I’m guessing that a President Buttigieg would probably not try to repeal section 1325.
  • Michael Bloomberg: Bloomberg has never addressed the issue.
  • Tulsi Gabbard: Gabbard has never addressed the issue.
  • Deval Patrick: Patrick has never addressed the issue.

So four support the policy, four oppose it, and four are unclear. Whew!

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    This confuses me on the differences between what everyone is proposing. For example, Biden is making it sound like changing the law would result in basically being impotent when it comes to dealing with immigration violations. Sanders on the other hand seems to suggest it would be similar to overstaying a visa; which, as far as I understand, the government is still able to deal with, including sending the ones violating it back, and potentially banning them from re-entry. Is this a matter of wording the law differently, or do we know if someone is misrepresenting the truth? – JMac Jan 27 at 21:13
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    @JMac - If it's a criminal offense, a conviction earns you prison time instead of just a fine, plus makes it much harder to legally immigrate in the future. Biden and other proponents of sec. 1325 are saying that they believe the civil penalties aren't enough to deter people from just trying again and again until they succeed. Opponents either believe that the civil fines are sufficient, or don't believe that illegal entry should be a crime. – bta Jan 27 at 22:21
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    @bta: "civil penalty" does not necessarily refer to a fine -- e.g. there is currently no fine for overstay – user102008 Jan 27 at 23:46
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    @JMac The penalty against visa overstays is banning from re-entry. Banning someone who didn't enter legally in the first place from re-entry is pretty much the definition of impotent. The entry ban is a very effective deterrent against people who enter by air. It's not so effective against people who just walk across an unprotected part of the land border (and who don't necessarily care about their legal presence being able to be confirmed for things like getting a legal job or attending classes.) – reirab Jan 28 at 17:21
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    @KevinCarlson probably not. I don't suppose there are many who would be more deterred by potential criminal sanctions than they are by potential civil sanctions, either. They know they're doing something illegal and they've decided to do it anyway. Specific technicalities are not going to make much of a difference to their behavior. But they do make a difference to the cost to the US of processing them (which I suspect is why the vast majority of such people are pursued for the civil violation only). – phoog Jan 28 at 23:58

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