Several Democratic presidential candidates have included in their policy platforms support for “decriminalizing” illegal border crossings, arguing that the Trump administration’s prosecution of migrants led to the child separations in 2018 and that repealing the provision of immigration law that allows for criminal prosecutions would prevent that from happening again. President Donald Trump has accused them of advocating “open borders,” and even some former Obama administration officials have come out publicly in opposition to the idea, saying it would create an incentive for smugglers to encourage more illegal immigration.
But what would “decriminalizing” illegal border crossing actually mean? Would it really mean no consequences for illegal crossings? Much of the confusion around these issues is because of the nature of immigration enforcement itself—is it “criminal” or “civil” enforcement? And what is the difference?
The debate around immigration enforcement can be confusing because many people assume that the Immigration and Nationality Act, or INA, consists of criminal statutes even though it is largely not criminal law and ask why the United States should not enforce criminal law. However, proponents of decriminalization argue that the enforcement of immigration law is primarily the domain of civil law, not criminal statute. But many Americans don’t generally understand the difference. “The law is the law, right?” Not exactly.
The U.S. legal system consists of three main bodies of law that govern specific interactions among parties and include different types of penalties for violations: criminal law, civil law and administrative law. For many people, “the law” refers to criminal law, which are federal and state statutes that designate specific offenses against the public or the state that result in sentences of jail time or criminal fines meant primarily to punish the offender. Federal crimes can include drug crimes, financial crimes, and criminal conspiracies, among others. States also have bodies of criminal law that may overlap in some respects with federal law.
In addition to criminal statutes, the U.S. legal system also includes civil law that governs interactions between individuals or entities in society, including contracts between private parties, personal injury law, family law, and laws regulating relationships between property owners and tenants. Although courts oversee the adjudication of disputes under these laws, and may require the party in violation to pay fines or damages to the injured party, there is no incarceration or any conviction on a person’s record based on this type of case. In some instances, individuals may decide to file a civil lawsuit against another party to seek payments for damages during or after a criminal trial involving both parties, but these cases operate in the domain of civil law.
Administrative law is the laws and legal principles governing the administration and regulation of government agencies. Agencies are delegated authority via legislative action of Congress (for federal agencies) or state legislatures (in the case of state agencies) to carry out legal provisions of statutes and have responsibility to interpret, administer and enforce these laws. These laws generally regulate the activities of individuals or entities in specific policy areas related to a public good or obtain access to a government benefit. Examples include immigration law, labor and employment law, environmental law, and tax law. Government agencies oversee these laws and can issue their own rules or regulations establishing the agency’s policies and procedures to administer the process and requirements to access a government benefit1 or to collect information needed to regulate the policy activity and the processes for administering penalties for violations of these rules. In the federal context, the Administrative Procedures Act sets out the government’s authorities to issue regulations under administrative law, and the limitations on its ability to regulate and/or punish violations of its regulations.
In contrast to criminal and civil law, violating administrative laws usually results in administrative or non-criminal fines or other administrative penalties such as prohibitions on current or future benefits. These penalties are meant to ensure compliance with the regulation and generally are much lower than criminal fines. Administrative violations involve no arrest or jail time but can have administrative punishments that include additional reporting or oversight from the agency, or a ban on future activity under the regulation.
However, even statutes that are mostly administrative laws can include some criminal provisions for the most egregious violations of the regulated activity—for example, criminal tax fraud. In these cases, in addition to any administrative penalties, the government can choose to prosecute the individual under the criminal statute, resulting in criminal fines and/or jail time. However, these prosecutions are usually much rarer than the imposition of administrative penalties.
The INA, the nation’s main immigration law, is primarily administrative law. It grants authority to the federal immigration agencies to interpret, regulate and enforce the actions of foreign nationals coming to or residing in the United States under the conditions set out in the INA. That means that enforcement of immigration law largely involves levying administrative penalties for violating the Department of Homeland Security’s administrative rules. These rules regulate foreign nationals entering and remaining in the United States, and their permissible activities while here, including applying for temporary nonimmigrant visas, work permits, green cards, and acquiring citizenship.
The INA’s administrative penalties deny offenders access to these benefits in two ways. First, the law can render offenders inadmissible, which prohibits them from entering the United States or changing their status in the country based on certain criteria or previous violations. It can also make them deportable, which makes them subject to removal from the United States if they are already here.2 In this sense, the INA mirrors other statutes with administrative penalties, like state driver’s licensing laws in which individuals lose access to their driver’s licenses for successive violations of codes of conduct while driving.
However, certain immigration violations are also subject to criminal prosecution and some criminal activity can result in immigration penalties. In the former case, the government can criminally prosecute individuals for illegal entry, illegal reentry, fraud, and smuggling, among other things, which can result in criminal fines or time in federal prison in addition to making them deportable. U.S. officials can also deport individuals under immigration law if they have committed certain federal or state crimes, an ability that has strengthened as reforms of the INA in the 1980s and 1990s expanded the categories of crimes that can lead to deportation.
Many people have confused administrative immigration enforcement with the criminal law enforcement in part because the immigration enforcement system over time has developed many parallels to the criminal justice system, including arrests, detention, judges and courts. And yet, unlike the criminal justice system, which involves both arms of the executive branches of government (law enforcement agencies, prosecutors) and the judiciary branch (state and federal courts), all the components of the immigration system are part of the executive branch agencies of the federal government, and immigration enforcement mostly does not include federal courts except for certain appeals. For instance, the INA authorizes the arrest and detention of noncitizens “on a warrant issued” by DHS or the Office of the Attorney General, pending a decision on whether the individual is to be removed from the United States..3 In contrast to a criminal arrest warrant, which must be issued by a state or federal judge, a warrant for immigration arrest and detention must have authorization from the DHS secretary or the U.S. attorney general, and can only be issued by a delegated immigration officer. The INA gives no authority to any federal judge to issue an arrest warrant on immigration violations.
Immigration enforcement can also involve detention, which is unique among other federal administrative laws. DHS enforcement agents can detain individuals at the U.S. border or inside the country and place them in removal proceedings before an immigration judge. The law also requires mandatory detention of immigrants in certain types of removal proceedings,4 or when immigrants have committed certain criminal offenses or may be a national security threat.5 Unlike criminal detention and jail, which is prescribed by criminal law and overseen by state or federal judges, this civil detention is subject to the rules, regulations, and policies prescribed by the immigration law and DHS regulations, and is authorized by officers of the executive branch. Finally, immigration detention is not a criminal punishment, but rather an instrument to ensure that an individual will show up for their administrative removal hearings and not abscond before they can be removed from the United States.
Confusion also arises from the existence of the immigration courts. The immigration courts, which decide whether noncitizens are to be removed from the United States, are an administrative agency that enforces administrative law, not an independent judiciary. Immigration judges are lawyers appointed by the attorney general to conduct proceedings for removal under the INA and are to “act as the attorney general’s delegates” in the cases that come before them.6 They are employees of the Department of Justice’s Executive Office for Immigration Review (EOIR) and their decisions must conform to orders and precedents set by the attorney general. They are similar to administrative law judges employed by many federal agencies to make decisions on appeals of agency decisions under the Administrative Procedures Act, including the Social Security Administration, the Department of Labor, and the Environmental Protection Agency. However, they have less independence in their decision-making than these other administrative judges. The “prosecutors” in the immigration courts are also lawyers employed by the executive branch: they work at Immigration and Customs Enforcement, or ICE, within the Department of Homeland Security, the same agency that conducts the arrests of immigrants.
These facets of the immigration enforcement system bear resemblance to the criminal justice system, leading many to confuse immigration enforcement with criminal enforcement. As described above, the immigration enforcement system is entirely within the executive branch of government and is not subject to the same due process requirements as the criminal justice system.7 In short, the INA authorizes, and the government uses, elements similar to the criminal justice system to administer immigration penalties for violations of its provisions. However, the INA also allows DOJ to criminally prosecute individuals who violate a small number of criminal provisions in the INA, including for illegal entry, smuggling, and fraud.8 When they are prosecuted, the migrants first go to criminal court, and if sentenced must pay a criminal fine or serve time in jail before they then proceed to the administrative deportation system, where they may serve additional time in immigration detention before removal.
The debate over decriminalization of illegal border entries revolves around whether the U.S. government should have the ability to use the prosecution of illegal entries to separate families at the U.S.-Mexico border, an issue that touches on the complex interplay between administrative and criminal law in immigration enforcement.
Although the INA is a body of administrative law with administrative penalties, a small number of provisions in immigration law allows the U.S. government to criminally prosecute individuals for engaging in certain actions. Two of these provisions, codified at 8 U.S.C. Sections 1325 and 1326 and often referred to in shorthand as just “1325 and 1326 prosecutions,” permit DHS to refer non-citizens who enter or reenter the country illegally to DOJ for criminal prosecution in federal court before deporting them. If the federal judge overseeing the case convicts them, the immigrant can receive a prison sentence of up to six months for illegal entry under Section 1325. Under Section 1326 they may be sentenced to up to a year in prison, or pay a criminal fine for illegal reentry, or both. After the individual completes their criminal sentence, DHS can begin removal proceedings through the immigration court system or order a removal without going to immigration court, depending on the circumstances. In addition, the deportations carry a further penalty of a five-year bar to returning to the United States in any legal status.
While DHS historically had discretion over when to refer immigrants for criminal prosecution, successive Republican and Democratic administrations have made 1325 and 1326 prosecutions core components of their border enforcement strategies to deter immigrants from continuing to try to enter the United States illegally. In 2005, the Bush administration introduced Operation Streamline, a policy requiring DHS to refer more illegal border crossers to DOJ for prosecutions. Although U.S. Attorneys in the districts along the border did take many of these referrals, the program allowed them to maintain requirements for when they would accept and prosecute these cases, and they mostly took only 1326 reentry cases and many fewer 1325 illegal entry cases. President Barack Obama continued the program before criticisms of his enforcement strategy led him to scale it back during his second term.
In late 2017, the Trump administration introduced its Zero Tolerance Policy, which encouraged DHS to refer all illegal crossings for prosecution and ordered DOJ attorneys to accept and prosecute these referrals. Although this policy had similarities to Operation Streamline, the measures targeted a different group of individuals arriving at the U.S.-Mexico border. Whereas Operation Streamline prosecuted single adult Mexican males who attempted to reenter the country illegally after being deported, Zero Tolerance targeted and separated thousands of families seeking asylum in the United States, as Customs and Border Protection referred adults to DOJ for prosecution while placing their accompanying children in Department of Health and Human Services custody. President Donald Trump suspended the policy in June 2018 in response to widespread criticism and litigation against the measure.
In response to the family separation crisis, some Democratic presidential candidates have called for “decriminalizing” border entries and repealing Section 1325 to limit the government’s ability to separate families at the border in the future. Immigration advocates have also called for repeal of these statutes. This proposal builds on advocates’ previous criticisms of Operation Streamline, which they argued unduly expanded the prison population and wasted federal funds without deterring irregular border crossers.
Not all Democratic candidates warmed to these measures, however, as some argued that the provision of law was used to go after smugglers and other criminals and not just migrants. Former Obama administration DHS officials, including former DHS Secretary Jeh Johnson, have also urged Democratic candidates not to support decriminalizing border crossings, saying it would only incentivize more illegal entries.
The push for decriminalization of immigration is popular with immigration advocates and some progressive voters, but multiple polls have shown it is not widely popular among the electorate because they assume this policy would eliminate all penalties for illegal crossings. However, as stated above, criminal prosecutions are an additional penalty to deportation, and no candidate has yet stated that persons apprehended crossing the border illegally should not be subject to deportation. Candidates have not been specific on this point, however, and many have avoided spelling out the penalties that would remain for any illegal crossings. Additionally, some candidates have stated they would put a moratorium on all deportations for a period of time if they are elected, and it is not clear if this would also apply to those apprehended at the border.
In short, the widespread confusion about the criminal vs. administrative nature of immigration law, and the lack of specificity by candidates and elected officials on how they would actually enforce immigration law, means that voters lack sufficient information to adequately evaluate these policy proposals. Lawmakers and officials should strive to help voters understand these issues to ensure that they have the facts to properly debate how the United States should enforce the nation’s immigration laws in 2020 and beyond.
1 Government benefit in this context extends beyond public assistance like welfare or subsidized housing. In the immigration law, for instance, these benefits include visas and Green Cards.
2 The arrest or detention of noncitizens for violating other federal, state, or local criminal statutes can lead to the imposition of these immigration-related administrative penalties, including deportation, after being released from federal, state, or local criminal custody.
3 Immigration and Nationality Act, Section 236(a) [(8 U.S.C. 1226(a)].
4 “Expedited Removal,” INA Section 235(b)(1)(B)(iii)(IV) [8 U.S.C. 1225(b)(1)(B)(iii)(IV)].
5 Immigration and Nationality Act, Section 236A [8 U.S.C. 1225(a)]
6 8 C.F.R. Section 1003.3(a).
7 For example, in immigration court there is no jury and the immigrant only has the right to an attorney if they can find (and pay for) one themselves; there is no right to a public defender. There is no requirement that immigrants be represented in immigration court and many represent themselves. The burden of proof is always on the immigrant to show why they should not be removed or qualify for a benefit, unlike criminal courts where the burden is on the government to prove the crime accused.
8 Sarah Herman Peck and Hillel R. Smith. Immigration Consequences of Criminal Activity. Congressional Research Service. April 5, 2018. Available at: https://fas.org/sgp/crs/homesec/R45151.pdf.