The Movement to Decriminalize Border Crossing

Abstract

Should it be a crime to cross the border into the United States? This Article explores the growing resistance to the politics and practices of mass border criminalization. In doing so, it makes three central contributions. First, it dissects the varied strands of the punitive practices of the U.S. Department of Justice, including policies of zero-tolerance prosecution for first-time unauthorized border crossers and enhanced punishments for those who reenter after deportation. Second, it traces how growing public awareness of the previously hidden practices occurring in Border Patrol holding cells and federal criminal courts along the Southwest border have sparked new and outspoken criticism of the illegal entry and reentry laws. These laws have resulted in the forced separation of families, interfered with the rights of asylum seekers, and fostered a racially segregated and substandard court process. Third, this Article analyzes the nascent movement by immigrant rights groups, prominent politicians, and grassroots coalitions of community members to decriminalize border crossing by repealing Sections 1325 and 1326 of the immigration law that have punished unauthorized border crossing since 1929. Although critics maintain that such a legislative change would create so-called open borders, irregular entry would remain a civil violation of the immigration law and be handled by the civil deportation system. As this Article argues, the call to decriminalize border crossing exposes the racialized harm imposed by current policing practices and inspires discussion of additional reforms that would make the civil side of immigration law more humane and equitable.

Keywords: criminalizing migration, immigration law, border crossing, federal enforcement of migration, illegal entry and reentry, decriminalization, crimmigration