The View from Brattle Street: We'll fix immigration while you rot in jail

By Scott V. Sandford
Justice Correspondent

We're not eight years old anymore, so on the Fourth of July we were less interested in the spectacle of the Abrams tanks that won The Battle of Baggage Claim C than in the Declaration signed that on the date in Philadelphia a thousand years ago.

Every time we read the Declaration of Independence, we find something new in it.  Deep inside the list of the Colonies' grievances against King George III lurks this:

“He [King George] has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of foreigners; refusing to pass others to encourage their migrations hither"

Wait a minute – the white men who founded our country realized that immigration was a good thing?  Flash forward a mere 243 years and surprise – white men have f*cked up immigration law!

As a result, some people who aren't white men are running for President and they have some ideas about how to fix it.  One idea, proposed by Congressman Julian Castro, is to “decriminalize” immigration enforcement by repealing an obscure statute, codified at 8 USC §1325.

From the teeth-gnashing that followed, you would have thought he had proposed hiring Elon Musk to build a hyperloop tunnel from Guatemala to Mar-a-Lago.

Spoiler alert: he didn't.  But to understand why, you need to, unlike President U Bum and a surprising number of people who should know better (more on that later), understand a bit about American immigration law.

Here goes.

Relax – Even without Sec. 1325, she wouldn't have been let in

You know I can tell when you leave this page, right?

Now that we're alone, we would point out that the American immigration system is a civil system.  It isn't based on indictments and jail.  Every important aspect of it, from inspection at the border, through interrogation, decisions on admission, and judgments of removal and deportation, is derived from civil immigration provisions.

If you repealed every single criminal provision in the statute book, US immigration officials would still have the power to admit aliens at the border (or not), detain them pending adjudications of their claims for entry, and remove them, by force, if necessary, if they are adjudged to have no basis to remain in the US.

In fact, those helpless women and children immured in non-concentration camps and denied basic human rights, not to mention food, water, soap, and medical care, have been neither charged with or convicted of any crime.  They are civil detainees, kept in misery by the intentional cruelty of President U Bum and his Republican enablers.

So what's the point of Section 1325, which makes entering the United States without inspection and admission a misdemeanor?  One answer can be found in its history.  If you had white supremacy, you won:

The provision of federal law criminalizing unlawful entry into the United States — which some Democratic presidential candidates now want to undo — was crafted by an avowed white supremacist who opposed the education of black Americans and favored lynching, which he justified by saying, “to hell with the Constitution.”

And indeed he would have been so proud of how it had been used.  The original U Bum program of ripping babies away from their mother's breasts at the border was based on a disingenuous use of Section 1325 known as “zero tolerance.”

The legal theory, originally concocted by Stephen Miller when his classmates were all at the prom,  was designed to get around legal decisions that required detained mothers and children to be housed together.  But the U Bum regime contended that if everyone crossing the border without showing up for a Customs inspection were charged with Section 1325, then, like others charged with crimes, they could be held in pretrial criminal detention.  And as you may have noticed, Paul Manafort was not allowed to stay with his children when he was chucked into the slam prior to his conviction.

Of course it was bogus – misdemeanants aren't held without bail prior to trial.  You couldn't build enough jails for that.  They're released on their promise to show up because misdemeanors aren't serious crimes.

Section 1325 is also abused to coerce aliens into waiving their legal rights.  Those of us remember that George W. Bush's body snatchers used to raid factories, round up those without valid visas, and then immediately charge them with a Section 1325 crime.  They could avoid criminal charges by waiving whatever rights they might have had to immigration hearings and agree to immediate deportation.  And it worked: the club of criminal charges led the unfortunate detainees to sign away their rights.  How those Assistant United States Attorneys, who under canons of ethics applicable to all lawyers are not permitted to threaten criminal action to resolve a civil matter, kept their law licenses is a matter for another day, perhaps on a very special episode of Nicolle Wallace's daily TV show.

It's no surprise then that relatively few aliens are charged under Section 1325: 7,326 last year, according to the body snatchers' official records.  In the same period, ICE made 158,581 civil arrests.  So 95.4% of their civil arrests don't result in criminal charges.  And without Section 1325, ICE would have had the legal authority to make every single one of those 158,581 arrests.

So if Section 1325 is used rarely and then either to snatch babies or bludgeon aliens into signing away their rights, doesn't Julian Castro have a point?

No, says Juliette Kayyem.

Who she?
 
Juliette Kayyem is a former assistant secretary at the Department of Homeland Security and faculty chair of the homeland security program at Harvard University’s Kennedy School of Government, says The Washington Post.

You might think then that her views have a great deal of validity.  And often they do.  Today, though, we're going to have to drag Marshall McLuhan out from behind the pillar.

She graced the Op-Ed page of the Post earlier this week with a column arguing that Julian Castro had somehow missed the point:

The 1325 debate, then, allows Democrats to avoid what can’t be avoided: that a nation based on laws must have deportation, enforcement and removal standards to protect its borders. It is too easy to say Trump is ruthless in this regard, though he is. But regardless of whether repeal of 1325 is good or bad politics for the party, the reality is that the next president will need to govern the United States. And that requires laws that allow a commander in chief to protect the borders, deport individuals and keep some people out.

Does it though?  Can she name a single Democrat who believes that our immigration problems would be solved simply by repealing Section 1325?  We haven't heard anyone say that and neither has she.  Since, as we just explained, repealing Section 1325 would leave the entire civil immigration apparatus untouched, it's at best wrong to allege that repealing that section would leave us without deportation, enforcement, and removal standards, because those are all civil laws, standards, and procedures.

(And by the way the basis for those standards is not, thank God, the Commander-in-Chief clause in Article II, but Article I, Sec. 8, cl. 4:  “The Congress shall have Power To  . . . establish an uniform Rule of Naturalization, . . .”)

We wonder if her real concern is not the substance of repeal, but the politics: “Repeal is an understandable reaction to President Trump and is quickly becoming party boilerplate. But that path is not a good one for the party or the country.” (emphasis added).

Who better to tell you how to appeal to the common folk
than Harvard Professors?

Now we have been listening to Harvard gasbags telling us what the great democratic masses, some of whom didn't even go to Harvard, want and will vote for ever since they promoted the 1962 Senate candidacy of H. Stuart Hughes.  Their batting average was only slightly below Carl Crawford's.

Perhaps the view from Brattle Street isn't the best perspective on what will motivate the electorate.  Perhaps Julian Castro, who's actually won an election (unlike Juliette Kayyem), may have a point when he advocates repealing a pointless and cruel criminal law not only because repeal is the right course, but because it may inspire Latino voters to turn out more than they did in 2016 in unimportant states like Florida, Arizona, and Texas.

Perhaps Kennedy School Faculty Chair Kayyem should spend more time figuring out who's going to teach Rick Snyder's course on depriving poor people of color of clean and safe water and leave the politics of immigration to people who understand the fears and concerns of communities that contain, respect, and love immigrants regardless of their legal status.

We'd drink to that, although not with the water that Rick Snyder provided to Flint, Michigan.