Today’s post is part one of three posts explaining the immigration law that Julián Castro alluded to in last week’s Democratic debate. As you might remember, Castro challenged Beto O’Rourke’s refusal to call for ending Section 1325 of the immigration law.

Section 1325 is the basis for Donald Trump’s caging of children at the border.

What is rarely understood by most is that it is not illegal to be in the country without the proper papers. What can be illegal is crossing the border through a point that is not a designated point of entry. Note the use of the term “what can be”. This is because Section 1325 allows the government to choose how to deal with an immigrant that crossed the border through a point that is not designated a point of entry.

Under Section 1325, the government, i.e. the Border Patrol agent or Homeland Security chooses whether to apply a civil penalty or a criminal one. It is subjective.

Immigration law uses the term “improper entry” instead of “illegal”. Improper entry, according to U.S. law, is crossing the border at any place other than at an official port of entry, or border crossing. Improper crossing is also hiding in a car’s trunk to cross at a legal point of entry or by using fraudulent documents. Improper entry is also willfully lying or misleading an immigration official about material facts. For example, lying about marrying a U.S. citizen to attain an immigration benefit.

The first violation of the improper entry provision of the law carries two penalties.

One is a “criminal penalty” that carries a fine, imprisonment for up to six months or both.

The civil penalty for the first violation of the improper entry provision ranges from $50 to no more than $250. Subsequent violations are twice the amount of any previous fines levied against the individual.

However, the law adds additional penalties for any subsequent improper entry. The more severe penalties include 10-20 years in prison and additional fines. These penalties are applied to individuals that were formally deported from the country.

So how are civil/criminal penalties levied?

A May 15, 2015 Homeland Security Office of Inspector General report details how the Border Patrol deals with Section 1325 of the law – whether to apply criminal or civil penalties on individuals caught crossing the border at a point other than a legal point of entry. It starts; “before 2004, Border Patrol only referred a limited number of illegal entry aliens” to the Department of Justice “for criminal prosecution.” The report continues, “historically, when apprehending aliens entering the United States illegally for the first time, Border Patrol would: immediately return most Mexican nationals to Mexico through the Voluntary Return process, that is, departure without an order of removal; administratively detain and process aliens for removal from the United States through the civil immigration system; issue a Notice to Appear in immigration court and release aliens on their own recognizance pending their appearance; or refer to prosecution aliens deemed dangerous based on criminal history or suspected of smuggling.”

In simple terms, before 2004, most immigrants caught entering the country through an illegal point on the border were treated as a civil matter and escorted back across the border. Only those suspected of being smugglers or “deemed dangerous” would have the criminal provisions of Section 1325 applied to them.

The report states that officials noted an increase of “Other Than Mexican (OTM)” citizens crossing the border at the Del Rio sector of the Border Patrol stating 2004. The Voluntary Return procedures, where the immigrant was simply escorted back across to México could no longer be used because the immigrants were not Mexican nationals. The report points out that the government did not have the capacity to hold the immigrants pending their deportation. This led us to the “catch and release” process. Tomorrow we will delve into that.

Martin Paredes

Reporting on public corruption, border politics, immigration and public policy in El Paso since 2000.