Understanding Immigration Law: What is Section 1325?

In the first night of a two-night Democratic presidential debate, a sharp disagreement emerged over what should be done about immigration law and “Section 1325”. Julián Castro, the former Secretary of Housing and Urban Development, challenged former Texas congressman Beto O’Rourke to support his proposal to outright repeal Section 1325. 

Many people who are interested in immigration issues may not understand the precise implications or meaning of Section 1325. In this article, our experienced Los Angeles, CA immigration attorney offers an overview of Section 1325 — explaining what it says and what would happen if it were repealed under the next administration. 

Section 1325: The Most Important Things You Need to Know

Section 1325 Makes ‘Unlawful Entry’ a Potential Misdemeanor

A person who is undocumented in the United States has only committed a civil offense — at least by that fact alone. As an example, if an immigrant overstayed their student visa, their only offense is a civil one. 

That being said, under Section 1325 (1911. 8 U.S.C. 1325), the act of crossing the U.S. border between two points of entries without authorization to do so can be charged as a misdemeanor criminal offense. 

It is important to dispel a common myth here: this is not synonymous with requesting asylum. Asylum is legal immigration — immigrants have the legal right to come to the U.S. border and to make an asylum claim. In itself, that is neither a civil or criminal offense. 

The Statute Was Enacted in 1929 — But Enforcement Priorities Have Changed

Section 1325, which allows prosecutors to pursue a misdemeanor charge for unlawful entry, was first enacted into law nearly 90 years ago. Yet, for the vast majority of the life of the statute, virtually no one was ever charged under it. It was not until recent years, and especially under the Trump Administration, that prosecutors started to more aggressively use this statute to punish immigrants. 

Why this issue has gained such prominence has a lot to do with President Trump’s immoral, cruel 2018 family separation policy and the ongoing detention of migrants, including very young children, in terrible conditions. In many cases, children were initially split from their parents because their parents were being put into criminal custody to be prosecuted for a Section 1325 violation. 

Repeal Would Make Unlawful Entry a Civil Offense 

If Section 1325 is repealed, as is supported by Julian Castro and many other prominent Democratic presidential candidates, then unlawful entry would no longer be a criminal offense. It would be an entirely civil matter that is handled much the same way as the country currently handles a person who overstays their visa. 

Discuss Your Case With a Los Angeles Immigration Lawyer Today

At the Law Office of Joshua L. Goldstein, PC, we are tireless, aggressive advocates for immigrant rights. If you or your family member needs immigration advice, please call us now for a completely confidential case evaluation. With an office location in Los Angeles, we serve clients in many communities, including Santa Monica, Cerritos, Monterey Park, and Long Beach.