(Photo by Edward A. Ornelas/Getty Images)

This article is part of the series The Contenders 2020: Criminal Justice in the Race for President. It was published in the Daily Appeal newsletter.

“On questions of immigration policy, Democrats know what they’re against,” writes Eric Levitz for Intelligencer. “The party has said, in no uncertain terms, that building medieval walls … and separating migrant children from their parents” are not acceptable. “But Nancy Pelosi, Chuck Schumer, and Team Blue’s small army of 2020 candidates appear far less certain about precisely what a wise (or just) alternative would look like.” The centrist Democrat position is to advocate a “pathway to citizenship for the law-abiding undocumented people already among us, and border militarization to keep future, aspiring undocumented immigrants out.” So, don’t torture migrants, but don’t abolish ICE. Keep families together, but in long-term detention, as President Barack Obama did in 2014? Or let them wait outside confinement, but deport those who fail to show up for their hearings after nationwide ICE raids, as Obama did in 2016? [Eric Levitz / IntelligencerBorder drones instead of a border wall?

“The Democratic Party’s views on immigration enforcement tend to be incoherent and contradictory for a reason—the general public’s are, too. In recent polling, roughly 80 percent of Americans—including a majority of Republicans—say that all undocumented immigrants who pass a criminal background check should be given a path to legal status,” Levitz continues. “And yet, a majority of American voters also support ICE’s efforts to enforce immigration law in the American interior. Which is to say: They ostensibly believe that law-abiding undocumented residents should have the right to live here legally—but until 60 senators come around to that position, ICE agents should go around arresting and deporting any random undocumented immigrants they happen to come across.” [Eric Levitz / Intelligencer]

This week, Julián Castro, a longshot presidential contender who was San Antonio’s mayor and a secretary of Housing and Urban Development, offered an answer. None of the other Democratic contenders have released detailed plans on immigration, and many advocates are hoping that Castro’s emphasis, like Washington Governor Jay Inslee’s on climate change, will push other candidates to adopt similar platforms. In a Medium post outlining his agenda, Castro emphasized that humanism must take precedence over nationalism: “When we see families seeking refuge, we don’t see criminals, or an invasion, or a threat to national security,” Castro writes. “We see kids. We see parents. We see people.” [Julián Castro / Medium]

So far, the Democratic candidates have stayed in “pretty safe territory on immigration,” writes Dara Lind for Vox, by promoting a path to citizenship for undocumented immigrants already here. Castro’s proposal would do the same, and also reverse the travel ban and the reduction in refugee resettlement. But it would go much further in dismantling immigration enforcement. [Dara Lind / Vox]

Castro would “repeal the provision of U.S. law that makes ‘illegal entry’ into the U.S. a federal crime, which has been on the books since 1929 but has only been routinely enforced in the 21st century,” writes Lind. “Prosecuting illegal entry—often referred to by ‘1325,’ the relevant section” of the U.S. Code—gave the Trump administration the power to separate thousands of families in 2018, “by referring parents for criminal prosecution.” Under Castro’s plan, an immigrant crossing into the U.S. without papers—seeking asylum or coming for another reason—would not be committing a federal crime. “If caught by Border Patrol agents, she’d be detained for a brief amount of time, but if she didn’t raise any red flags, she’d be released into the U.S. (with a case management system to check up on her whereabouts) pending an immigration hearing.” If she were found not to qualify for a form of legal status, she would be ordered deported. Entering illegally would be a noncriminal, civil offense, like a traffic ticket, and deportation would be the penalty. [Dara Lind / Vox]

Illegal entry has been a federal misdemeanor since 1929, but for most of the 20th century, border crossers were simply informally returned after being caught. It was a choice not to pour resources into enforcing this particular misdemeanor. Under the George W. Bush administration, illegal entry prosecutions became common, swamping federal courts along the border, and they have ramped up under the Trump administration. The “zero tolerance” policy served as the basis for separating families last year: “Children were separated because their parents were being transferred to criminal custody for prosecution.” [Dara Lind / Vox]

Crucially, Castro’s proposal would mean another kind of separation: separating immigration enforcement from criminal enforcement, and, possibly, separating the concept of migration from the concept of crime in the public’s eye.

Other key parts of Castro’s proposal include:

  • Enforcement and Removal Operations would be moved from ICE to other agencies, and immigration enforcement “would prioritize individuals with serious criminal convictions, threats to national security, and multiple reentries with a criminal history.”

  • Customs and Border Protection would be steered away from routine immigration enforcement within the U.S., where it currently operates within 100 miles of borders.

  • The Department of Homeland Security would stop signing agreements that conscript local law enforcement agencies to enforce immigration law (known as 287(g) agreements).

  • Immigrants would be detained only in the most serious cases, and never in private prisons, which currently account for the overwhelming majority immigrant detention facilities.

  • Castro would terminate the three- and 10-year bars, which require undocumented people—who otherwise qualify for legal status—to leave the U.S. for years before becoming citizens.

  • Immigration courts would be removed from the attorney general’s authority. Currently, immigration courts are not independent; they are controlled by the attorney general, which is part of the executive branch. Castro would make them “Article I” courts, under the control of Congress.

There is plenty to celebrate in these proposals, in addition to the legal and metaphorical separation of immigration from crime. One advocate told the Daily Appeal that eliminating the three- and 10-year bars alone would be “huge.” Castro’s proposal might also chip away at the emphasis in public discourse on distinguishing between deserving and undeserving migrants. Decriminalizing the act of migration, regardless of who is migrating and why, could be a start.

But Castro still prioritizes deportation of people with “serious criminal convictions.” This, of course, brings immigration and crime back together and plays into the fearmongering that has defined Trump’s stance toward immigrants. It also could allow the act of re-entering the country to constitute a criminal history, which would criminalize migration.

More fundamentally, what does “serious” mean? In immigration law, we have seen these categories expand to include absurdly minor infractions. One kind of conviction that can lead to deportation is a “crime involving moral turpitude,” which sounds serious, but includes jumping the turnstile to enter the subway.

The Daily Appeal asked Nikki Marquez, special projects attorney at the Immigrant Legal Resource Center, to explain some of her concerns with the criminalization of immigrants and policies like 287(g) agreements. When people are targeted because of prior convictions, “it creates a two-tiered immigration system, fails to give people a second chance, fails to recognize how people can change, mature, and rehabilitate, fails to see a person as more than just their conviction, and it fails to recognize how we target communities of color and generally set them up for failure.”

Although 1325 is part of the problem, Marquez said that the 1996 changes to immigration law are “what really started the criminalization of immigrants.” True disentangling of immigration from the criminal legal system would be far more involved. “Most people get deported because of contact with the criminal legal system,” she said. “1325 is just one example of the many ways people can come into contact with law enforcement. We need to address the prison-to-deportation pipeline.”

“And there’s nothing in this proposal to directly address the large number of people who won’t ultimately qualify for asylum under U.S. law—even if they have attorneys, and even if the Trump administration efforts to restrict asylum for, say, victims of gang and domestic violence are reversed,” writes Lind. “Not everyone fleeing their home country out of legitimate need qualifies for asylum as U.S. law defines it, and many of the people currently coming will not.” [Dara Lind / Vox]

Finally, Castro’s proposal, while surely a step in the right direction, would not necessarily prevent abuses such as these, which surfaced yesterday: