Since the first Democratic debates, Americans have found themselves discussing the legalese of Title 8 U.S. Code § 1325. Many armchair scholars have been weighing in arguing for the need to criminalize people crossing the border. While others argue for the need to repeal the section altogether. As pundits argue its merits, the conversation should be focused on its more sinister origins and its implementations.
To truly understand Section 1325, Title 8 of the U.S. code — the provision in U.S. federal law that criminalizes unlawful entry into the United States — we must look at its origins. Surely, by now you’ve heard of the person behind the law, Coleman Livingston Blease. While others reported on this once-obscure law, the nature of Blease’s racist ideology seems to be mentioned only in passing. As if the premise for such a law was to be regarded as normal for its time, therefore, it’s no big deal. However, the law is a remnant of the horrible stain on our nation’s history known as the Jim Crow era.
Blease wasn’t just an avowed white supremacist, he was the worst of his kind because of the power he wielded as the Mayor of the town he grew up in, as a lawmaker in South Carolina (both in the House and Senate), as the governor of South Carolina, and eventually as a Senator in the United States Senate.
As governor of South Carolina, he was known for having buried the severed finger of a lynched Black man in the gubernatorial garden. Prior to the passage of Section 1325, Blease proposed an amendment to the U.S. Constitution requiring that Congress set a punishment for interracial couples attempting to get married, and for people officiating an interracial marriage. A year later, after First Lady Lou Hoover invited Jessie DePriest, the Black wife of Illinois congressman Oscar De Priest, to tea at the White House, Blease proposed a resolution “To request the Chief Executive to respect the White House,” and to “remember that the house in which they are temporarily residing, is the ‘White House’.” In support of the resolution, Blease went so far as to recite the 1901 poem “Ni**ers in the White House” on the floor of the U.S. Senate. And yes, Blease encouraged lynching and opposed the education of Black folks.
“Whenever the Constitution comes between me and the virtue of the white women of the South, I say to hell with the Constitution.” — Coleman Livingston Blease
Blease, like Trump, was notorious for playing on the prejudices of the white working class to gain their votes. He was a key architect in bringing about many Jim Crow laws and was single-handedly responsible for criminalizing “unauthorized entry” into the United States. Blease was also the creator of the term “illegal immigrant/alien” and justified his beliefs by saying, “Whenever the Constitution comes between me and the virtue of the white women of the South, I say to hell with the Constitution.”
Prior to the passage of Section 1325, there was the Immigration Act of 1924 (the Johnson-Reed Act) which was passed in response to Italian immigrants fleeing economic hardship by moving to cities on our East Coast. America’s response at the time was to create anti-Catholic hate groups such as the Ku Klux Klan, which boasted millions of members, in an effort to scare off minority groups. Congress did their part with the passage of the Immigration Act of 1924, limiting entry from Southern and Eastern Europe and placing an outright ban on immigration from Asia. Those quotas remained in place until 1965.
Let’s also not forget the driving factors behind some of these laws. As president, Herbert Hoover accused Mexican laborers of stealing precious American jobs during the Great Depression. As a result, as many as 2 million people of Mexican heritage, including many who were American citizens, were deported to Mexico. Henry Ford purchased his hometown newspaper and used it to rail against “the Jewish plan to control the world.” Aviator Charles Lindbergh also joined in the hateful rhetoric and became a spokesperson for a large isolationist group called America First.
With the backing of some of the most prominent voices in American society at the time, it wasn’t difficult to convince Americans to abandon their humanity and adopt a dehumanizing mentality towards people of color that still persists today. In fact, the same idealistic propaganda and hate speech we see and hear today is the same as it was in the early twentieth century. And while many of the Jim Crow laws were steadily abolished (only to come back in new and more deceptive ways), section 1325 seems to have survived — even the Civil Rights era.
The Era of Trump
The statute, adopted in 1929, is the basis for Trump’s “zero tolerance” immigration policy, which his administration used to justify separating refugee families. In this application, the law is being used to criminalize every person coming across the border. Even when seeking asylum, which is legal, Trump’s policy has led to the incarceration of tens-of-thousands of refugees. By doing so, and holding refugee adults for extended periods of time, they force the children of those adults to be treated as unaccompanied minors. These children end up in foster homes, adopted by U.S. citizens, and lost to their parents and families forever.
Section 1325 Title 8 of U.S. code, is the basis for all that is wrong at the border right now. The so-called “crisis” is manufactured by arresting every refugee possible and creating a mass incarceration crisis. The idea is to push more inhumane policies as they attempt to normalize what they are doing to refugees of color at our Southern border. The photos, the reporting, and the rhetoric are all helping to normalize what the administration is doing right before our eyes.
Prior to Trump’s “zero tolerance” policy, federal authorities used discretion and generally only prosecuted refugees who had extensive criminal backgrounds, had gang ties or were suspected of human trafficking. But by prosecuting all adults for an illegal entry misdemeanor it forces refugees to be jailed and be brought before a judge, thereby leading to the extended separation of children from their parents. Since the vast majority of refugees apprehended at the border come as part of family units, Trump’s policy resulted in thousands of children being forcibly separated from their families. With many of them never to be reunited with their families again.
According to the Congressional Research Sevice, “under the zero-tolerance policy, DOJ prosecuted all adult aliens apprehended crossing the border illegally, with no exception for asylum seekers or those with minor children. DOJ’s policy represented a change in the level of enforcement of an existing statute rather than a change in statute or regulation. Prior Administrations prosecuted illegal border crossings relatively infrequently. Criminally prosecuting adults for illegal border crossing requires detaining them in federal criminal facilities where children are not permitted. While DOJ and the Department of Homeland Security (DHS) have broad statutory authority to detain adult aliens, children must be detained according to guidelines established in the Flores Settlement Agreement (FSA), the Homeland Security Act of 2002, and the Trafficking Victims Protection Reauthorization Act of 2008. A 2015 judicial ruling held that children remain in family immigration detention for no more than 20 days. If parents cannot be released with them, children are treated as unaccompanied alien children and transferred to the Department of Health and Human Services’ (HHS’s) Office of Refugee Resettlement (ORR) for care and custody.”
The repeal of Section 1325, Title 8 of the U.S. Code is of vital importance not just because of its racist roots that date back to the Jim Crow era, but because we are now seeing how far a someone can go by using the oppressive law if they are willing to abuse their power. This law is solely based on the premise of securing and maintaining the stranglehold white supremacy has on the United States. If we plan on moving forward from this dark stain on American history, we must abolish all of the laws passed by past, present, and future unapologetic racist politicians and replace them with more humane laws.
In addition, laws such as 287(g) of the Immigration and Nationality Act, which allows for the Department of Homeland Security to deputize local law enforcement to enforce federal immigration laws, need to be abolished as well. Laws that give police officers authorization to identify, process, and detain immigration offenders they encounter during their regular, daily law-enforcement activity has led to racial profiling and the incarceration of dozens of innocent U.S. citizens and refugees alike.
While America certainly has a history of family separations and incarcerating people of color, make no mistake, this is a dark time in our history like any other - with one exception: slavery.
In closing, I leave you with a quote from Benjamin Franklin in 1775, before the United States gained its independence from Great Britain: “A Colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them and will never adopt our Language or Customs any more than they can acquire our Complexion.”
Americans need to embrace Julian Castro’s Immigration Plan.