The most prosecuted federal crimes throughout the United States are related to migration. At the turn of the decade, mass incarceration of migrants reached exponential heights. On any given day, the number of migrants stuck in detention facilities across the country has increased from an average of 7,000 per day in 1994 to more than 50,000 in 2019.
The criminalization of the immigration enforcement system is uniquely American. In fact, criminalization of immigration has been banned in most major developing nations, including in Europe, where separate facilities are built specifically for migrants. The U.S., however, allows ICE to employ facilities that are contracted by private prisons and local jails to confine undocumented immigrants as if they were felons.
Sections 1325 and 1326 of the U.S. Code define unauthorized entry into the United States as a federal crime, effectively labeling asylum seekers, refugees, and immigrants as criminals. Migrants are subject to not only deportation, but also incarceration. So where did these laws come from and what do they enforce?
When and why did the U.S. choose isolationism?
The beginnings of isolationism and anti-immigrant sentiment that let to the formation of Section 1325 began to develop in 1914. World War I broke out and President Woodrow Wilson pushed for a stance of neutrality. By encouraging the U.S. to avoid becoming physically or ideologically involved, he won reelection in 1916 under the slogan that he “kept us out of war.” In April 1917, President Wilson motioned for a resolution to enter the war, which Americans began to view as a costly mistake.
What ensued in the 1920s was a period of isolationism, during which Warren G. Harding won the Presidential election through the claim that the U.S. would evade itself from global affairs, and would instead focus on internal problems to foster a sense of normalcy for the nation. Once the U.S. had adopted a global affairs policy of isolationism, anti-immigration sentiment began to flourish. People who supported the restriction of immigration deemed migrants as racially inferior.
American citizens spoke of the dangers associated with immigrants as “allowing a ‘melting pot’ made up of an impoverished, criminal, radical and diseased horde.” This wave of anti-immigration hysteria changed Ellis Island’s role from an immigrant depot to a detention center at the turn of the 1920s. Officials began detaining immigrants to a greater extent, as they examined them for disease and effectively assessed how much of a “threat to society” each migrant would be if they were allowed to pass.
How racism was signed into law
Until 1929, the U.S. was able to deport unauthorized migrants, though it couldn’t prosecute them. Senator Coleman Livingston Blease proposed a U.S. law that would criminalize those who did not cross the border through an official entry point. This law was eventually passed in March of that year, becoming Section 1325 of Title 8 in the U.S. Code. This made unlawful entry a federal misdemeanor, punishable by six months in prison, and the second offense a felony, punishable by up to two years in prison.
With all of the anti-immigrant sentiment sweeping through the United States, the 1920s brought a wave of nativist sentiment throughout the West. The Immigration Act of 1917 had created an “Asiatic barred zone” that banned almost all immigration from Asia. As refugees entered the Western part of the U.S. after the Mexican Revolution, southwestern employers were also seeking out cheap labor to replace the presence of Asian immigrants in the labor force. This created a clash between the nativist push to limit immigration and the agricultural demand for a workforce. This led to Senator’ Blease’s compromise. However, there was a caveat to his idea: the concept of “entry points.”
At these entry points, immigrants had to pay a high fee and submit to tests. Mexican immigrants were then subjected to torture, suffering kerosene baths and humiliating delousing procedures, because U.S. authorities believed they “carried disease and filth on their bodies.” Yet, this eugenic line of thinking does not stop with section 1325 of Title 8 in U.S. code. In fact, Ellis Island intercepted those who were deemed as likely “public charges,” including unescorted women and children, criminals, and individuals who were judged as “immoral.”
How this relates to current procedures for DACA applicants
The similarity in logic behind the procedures for detainment at Ellis Island, the official entry points at the time of Section 1325’s establishment, and current day Deferred Action for Childhood Arrivals (DACA) applications points toward a system with roots in racism and in dire need of revision. The last two requirements for DACA applicants hold that:
- an applicant is currently attending school, has graduated or received a certificate of completion from high school, has received a GED, or is an honorably discharged veteran.
- an applicant has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
The procedures that Ellis Island utilized to waylay certain migrants and the original purpose of Section 1325, to keep Mexican immigrants out of the United States, parallel our country’s history. Just as many migrants throughout history were denied entry under the idea that they were “a threat to society,” DACA applicants are forced to prove their utility to earn legal status. Today’s immigration system is a product of a past influenced by racism and suffering: immigrants are faced with mental and physical perils to migrate, legal challenges once they arrive, and are at risk of indefinite detention.
In my next article, I will explore the injustices that immigrants suffer when faced with double punishment in the legal system, as well as the differences between parole and bond.
**Section 1325 is the basis for the government’s separation of parents from their children at the border, often subjecting migrants and their children to decades of generational trauma. Read about this in my three part series on the intersection of mental health and the refugee experience in America.
Want to make an impact? The National Immigrant Justice Center works to decriminalize immigration, making recommendations that include repealing Section 1325. NIJC also works on providing access to counsel, as many migrants lack such a resource, and more broadly engages in impact litigation to advocate for migrant communities across the United States.
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