Can Democrats Decriminalize Unauthorized Immigration?

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.


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