The Movement to Decriminalize Border Crossing
61 Boston College Law Review, Forthcoming
Posted: 16 Sep 2019 Last revised: 17 Sep 2019
Date Written: September 13, 2019
Should it be a crime to cross the border into the United States? This Article is the first to explore the growing resistance to the politics and practices of border criminalization. In doing so, it makes three central contributions. First, it dissects the varied strands of the punitive practices of prosecutors in the United States Department of Justice—including policies of zero-tolerance for first-time border crossers and enhanced punishment for those who reenter after deportation. Second, it traces how controversy surrounding the project of criminalizing migration has sparked a new era of resistance to federal enforcement practices that have resulted in the forced separation of families, interfered with the rights of asylum seekers, and fostered a segregated and substandard court process. Third, it analyzes the nascent movement to repeal the law that criminalizes migration and sketches how this proposed legislative reform would reconstitute border crossing as a civil, rather than criminal, violation of the immigration law. As this Article shows, ending criminal punishment for border crossing would have important implications for the structure immigration law, including preserving rights to affirmative relief from deportation and fostering the development of a more graduated system for civil penalties.
Keywords: criminalizing migration, immigration law, border crossing, federal enforcement of migration
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