Sparks fly in Senate hearing as GOP senator presses former Biden adviser on criminalizing illegal entry
Key Takeaways
- A Senate Budget Committee hearing turned tense as Sen. Bernie Moreno pressed former Biden adviser Brendan Duke on whether illegal entry should be a crime.
- Duke, now at the Center for American Progress, declined to opine on immigration law, saying he was there to discuss budget issues.
- Committee leaders Sen. Jeff Merkley (D-Ore.) and Chair Lindsey Graham (R-S.C.) intervened as the exchange escalated.
- Existing law: improper entry is a federal misdemeanor under 8 U.S.C. § 1325; illegal reentry after removal is a felony under § 1326; unlawful presence is generally a civil, not criminal, violation.
A heated exchange at a budget hearing
It has been reported that a Senate Budget Committee hearing on Tuesday veered sharply into immigration when Sen. Bernie Moreno (R-Ohio) pressed Brendan Duke, a former Biden White House policy adviser now at the Center for American Progress, on whether entering the U.S. illegally should be a crime. Duke replied, “I don’t know anything about this law… I’m here to talk about budgets,” prompting repeated follow-ups and a home-entry analogy from Moreno. The back-and-forth drew interjections from Ranking Member Sen. Jeff Merkley (D-Ore.) and later from Committee Chair Lindsey Graham (R-S.C.) as the exchange grew heated and was quickly amplified on social media.
What the law actually says
For clarity: under the Immigration and Nationality Act (INA) framework enacted in 1952, federal law makes “improper entry” a misdemeanor (8 U.S.C. § 1325), and “illegal reentry” after a prior removal a felony (8 U.S.C. § 1326). By contrast, “unlawful presence” (for example, overstaying a visa) is typically a civil violation that can trigger removal and bars to reentry, not a criminal offense. These distinctions matter: criminal prosecution usually targets first-time improper entry at the border or reentry after deportation, while most interior cases proceed through civil immigration courts (EOIR), separate from the criminal system.
What this means for immigrants and practitioners now
The hearing did not change existing statutes or enforcement policy. Still, the spotlight on § 1325 and § 1326 signals continued political pressure over border enforcement and could foreshadow legislative or appropriations fights that affect resources for DHS, DOJ immigration courts, and border operations. For people navigating the system now—whether seeking asylum, adjusting status with USCIS (U.S. Citizenship and Immigration Services), or defending a case in removal proceedings—nothing in this exchange alters current eligibility rules, deadlines, or penalties. Attorneys should continue advising clients on the criminal-civil divide, the risks at entry and after prior removals, and the collateral consequences of unlawful presence, while monitoring any budget riders or bills that might reshape enforcement priorities.
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