During the first Democratic debate, presidential hopeful Julián Castro pressed his fellow candidates to support rescinding what is known as “Section 1325,” a law that treats entry into the United States as a criminal violation, rather than a civil one.
The law has long wreaked havoc on migrant families. Vox’s Dara Lind has this deep dive into the policy, some version of which has been on the books since 1929.
It goes without saying that this would be a marked shift from the Trump administration’s approach to immigration, which has increasingly attempted to make everyone in the United States without authorization deportable. The Trump administration has specifically wielded Section 1325 like a weapon, using the law as the basis for its family separation policy at the southern border and its ongoing zero-tolerance policy.
Castro, who previously served as President Barack Obama’s secretary of Housing and Urban Development and the mayor of San Antonio, has made repealing the section of Title 8 of the United States Code a central component of his “People First Immigration” plan. In a statement after last night’s debate, Castro’s team wrote that “repealing this provision would change the way the United States government views migrants entering our nation—not as threats to our national security, as prescribed by antiquated policies of previous administrations—but rather as people and families in search of a better life who can contribute tremendously to the fabric of our nation and economy.”
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At Rewire.News we wanted to highlight recent examples of how Section 1325 has deeply harmed migrants, and how the law sets off a series of events that penalize migrants in cruel and unusual ways. Here are a few examples.
Increasing Risks for Pregnant Asylum Seekers
As I reported previously:
When someone enters the United States without authorization, they are subject to prosecution if their case is referred to a U.S. attorney by [Customs and Border Protection]. Under zero-tolerance, federal attorneys have been directed by the Trump administration to accept and prosecute all those cases …. This means that when CBP encounters people in the borderlands who may have traveled more than a thousand miles to escape persecution or flee violence in their country of origin, rather than ushering them through the asylum process, the agency is choosing to refer them to the U.S. Department of Justice (DOJ) for prosecution.
Last month, Rewire.News published a three-part series about pregnant migrants prosecuted under the Trump administration’s zero-tolerance policy. In the Western District of Texas, pregnant asylum seekers have been funneled into the custody of U.S. Marshals Service (USMS) because they have violated Section 1325—making them, as the Trump administration has put it, they are “criminals.” This is where serious harm can begin.
As Rewire.News reported, pregnant migrants in USMS custody as a result of zero-tolerance are denied regular prenatal care; they are shackled when they do access care; and they are always, according to the account of one health-care provider in the Western District of Texas, shackled postpartum. Most troubling, however, is that some women who give birth in Marshals custody may have their newborns taken from them by the Texas Department of Family and Protective Services (DFPS) as they return to federal custody. These in-hospital family separations of newborns and their mothers, taking place all along the southern border, are a direct result of Section 1325.
Legal Guardians Ineligible for Reunification
Last summer, Rewire.News reported the stories of legal guardians and non-biological parents separated from children at the border at a time when the American Civil Liberties Union (ACLU), the courts, and the media were trying to keep close tabs on the number of parents and children who remained separated. We now know that the administration separated thousands more children from their parents than was previously believed. But even today, no one seems to be keeping count of the number of legal guardians traveling with children who continue to be charged under Section 1325 and separated at the border.
This happened to women like Leisby. She migrated from Honduras to the United States with her sister, Mariela. As I reported in August, they “got swept up in the administration’s family separation policy. Leisby has legal custody of Mariela, whom she has raised since their mother died when Mariela was a young child. Mariela, who turned 15 in detention, is now living with a cousin she met in person for the first time upon being released from federal custody.”
It also happened to Marta, an 81-year-old great-grandmother. She had migrated with her great-grandson Edras, who turned 5 while in government custody. Not only was Marta prosecuted under Section 1325, but she was deemed ineligible for reunification with Edras because she was not his biological parent.
At the time of Rewire.News’ original reporting, in August 2018, the ACLU told Rewire.News it did not have statistics on the number of legal guardians or non-biological parents prosecuted under zero-tolerance and deemed ineligible for family reunification.
Some Doctors Must Determine Who’s “Fit” for Detention
The prosecution of migrants under Section 1325 has led to an entire hellscape of unexpected consequences, including the way that some pregnant or injured migrants are processed at local hospitals after being apprehended in the borderlands.
As Rewire.News reported earlier this month, officers with Border Patrol have brought in newly apprehended injured and pregnant migrants for medical evaluations at Banner-University Medical Center in Phoenix, Arizona. Once the hospital visit has ended, health-care providers interviewed by Rewire.News have said immigration agents will “pressure” them to write a “cleared for detention letter.” Residents like Dr. Samantha Varner reported that because these patients are being brought to the hospital almost directly from the borderlands, Border Patrol agents inevitably ask for letters clearing them for detention. Why? Because they tried to enter the country in violation of Section 1325 and they’re going to be detained. Federal immigration authorities are essentially asking health-care providers to determine—and put into writing—that pregnant or injured migrants are healthy enough to be detained for the duration of the time it takes for their case to be adjudicated. Translation: indefinitely.
At Banner, and potentially at other hospitals, these letters have become a point of contention between doctors, their hospitals, and federal immigration agencies. Sometimes these hospitals contract with federal agencies to offer migrants health care, which can complicate matters further for doctors who believe that providing such a letter is a violation of the oath they took to do no harm.
Further Persecuting and Prosecuting Victims of Crime
It seems that Border Patrol agents have a great deal of discretion regarding whom they refer to the DOJ for prosecution, and that includes asylum seekers. But there is no evidence to suggest federal authorities use that discretion to avoid charging marginalized communities and/or asylum seekers under Section 1325. This affects LGBTQ migrants like Johana Medina Leon, whom ICE claimed first encountered immigration officials on April 11 while ”illegally entering” the United States from a port of entry. (The Trump administration has actually instructed asylum seekers to enter through ports of entry.) ICE reportedly denied Medina Leon medical care and when her health worsened, the agency transferred her to a local hospital the same day it released her from custody. She died shortly thereafter.
This also affects indigenous communities, who are migrating to the United States in larger numbers. Indigenous Guatemalans, for example, are being criminalized by the federal government for trying to save their families from starvation.