How Crossing the Border Became a Crime

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Photo: Getty / Jim Cooke

In the wake of the child separation policy at the border, the government’s bizarre legal approach to migration has been thrown into the spotlight. Crossing an invisible line is a crime considered so heinous that ripping children away from their parents, and losing them indefinitely, is apparently justified. Except that this prosecution can be, according to documents reviewed by USA Today “seldom more than a symbolic undertaking,” with immigrants being “sentenced to whatever time they have already spent in the government’s custody and a $10 court fee” before they’re sent for deportation.


Yet while crossing the border without permission is a crime, unlawful presence in the United States isn’t. If you enter legally and overstay your visa, you’re not a criminal; if you sneak across the border, you are. Prosecuting those crimes requires a lot of resources: Half of the total arrests made by the federal government in 2014 were for immigration-related offenses. But more immigrants are now overstaying visas than entering the country unlawfully, according to the Center for Migration Studies. In 2014, 66 percent of those who entered illegally or became undocumented did so by overstaying visas, a commitment of a civil violation rather than a crime.

And that number is growing: Overstays have exceeded the number of illegal border crossings since 2007. In 2017, DHS reported that the number one nationality for visa overstays, among those who entered by air or sea, was Canada, with Brazil, the UK, and China also represented.

Why the difference? Why does U.S. law consider it so much worse to sneak across the border than to overstay a visa—surely, tricking the U.S. government into trusting you with the privileges of a visa and then abdicating your responsibility to leave is at least as grave a transgression as entering without permission? This difference goes back to 1929, and you’ll be shocked, I’m sure, to learn it’s rooted in racism.

The first major law restricting immigration to the United States at all was the infamous Chinese Exclusion Act of 1882, but it’s worth mentioning the Page Act of 1875, too. Page was ostensibly intended to prevent the trafficking of prostitutes and forced laborers from China, but some historians argue that it was more than that: ideas about perceived Chinese immorality and unwillingness to assimilate had been growing for years. The threat of cheap labor from China seems to have pushed Congress into action, too. Congressmen complained that of Chinese workers replacing whites, wailing that “virtue and decency are more valuable than cheap labor, and we cannot afford to have the Chinaman among us”—the classic, inextricable economic anxiety-racism matrix that has forever plagued American politics. Page himself warned about the labor implications of Asian prostitutes taking jobs:

“What…if these Chinese should take the place of the thousands of women and girls who are now employed in the Middle and New England States, and thereby throw out of employment thousands of this class who depend upon their daily toil for a subsistence?”

Perhaps the best evidence for the real motivation behind the Page Act: The Chinese Exclusion Act, which came just seven years later, banning all Chinese immigrants for 10 years and excluding them from citizenship. That same year, another law, the Immigration Act of 1882, ordered that “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge” should not be permitted into the United States. Subsequent laws banned all Asian immigration until 1943, when the law was repealed because of America’s alliance with China in World War Two. Even then, the law only allowed 105 Chinese immigrants per year.


In 1921, the first quotas on immigration were established, and in 1924, those quotas were made permanent. The 1924 law set a quota on immigration based on the national origins reflected in the US census, but used the 1890 census as the baseline, before recent waves of immigration from Eastern and Southern Europe. It was, Adam Serwer wrote last year, “designed to keep out Southern and Eastern Europeans, particularly Italians and Jews, Africans, and Middle Easterners, barring Asian immigration entirely.” (Why was Adam writing about it last year? Because Jeff Sessions praised the law as “good for America.”)

But we have two men to thank for the criminalization of illegal entry itself: James Davis, the Secretary of Labor from 1921-1930, and Sen. Coleman Blease. Davis argued in 1927 that an illegal entrant “should be treated as a law violator and punished effectively.” His reasoning for wanting to criminalize entry isn’t hard to see: He wanted to control the kind of immigrant allowed into the US.


He believed the US “should absolutely bar from our shores all races which are not naturalizable under the law of the land and all individuals of all races who are physically, mentally, morally, and spiritually undesirable.” He advocated “selective immigration,” “so that America may not be a conglomeration of racial groups […] but a homogeneous race striving for the fulfillment of the ideals upon which this Government was founded.” He supported “scientific testing” of immigrants in their home countries. His was a purely eugenicist approach to immigration. And some of his rhetoric is shamefully reminiscent of modern Republican rhetoric on immigration: He described immigrants’ harrowing stories of persecution in Europe as “sob stories,” saying “these ‘sob stories’ and especially European propaganda with which the country has lately been flooded are simply designed to break down the 3 per cent restriction immigration law.”

In 1929, Sen. Coleman Blease proposed an immigration act that would criminalize illegal entry, and it was passed that March. As Ian McDougall wrote for ProPublica this month, Blease saw Davis’ idea of criminalizing illegal entry as “a way to advance his vision of a white America.” (Blease was a rabid white supremacist, who defended lynching and introduced a constitutional amendment to punish individuals who engaged in interracial marriage.) The bill made it punishable by a $1,000 fine or imprisonment of up to two years to re-enter the United States after having been deported, and made illegal entry a misdemeanor, punishable by up to one year.


As the historian Kelly Lytle Hernandez argues, while the law would affect any immigrant who entered illegally, it was specifically intended “as a measure to control and punish unlawful Mexican immigrants.” It did not make illegal presence a crime, a distinction which lasts to this day. It did so, according to Hernandez, to respect court precedent: in Wing Wong v. United States, the court had ruled that “the detention of non-citizens was valid only to facilitate the ‘expulsion of aliens.’” Criminalizing unlawful presence was tricky, but criminalizing illegal entry could have the same desired effect: of deterring the kind of immigrants white America didn’t want.

Very shortly after the Blease bill passed, enforcement against Mexican immigrants ramped up, as Hernandez noted last year:

With stunning precision, the criminalization of unauthorized entry caged thousands of Mexico’s “birds of passage.” By the end of 1930, the U.S. attorney general reported prosecuting 7,001 cases of unlawful entry. By the end of the decade, U.S. attorneys had prosecuted more than 44,000 cases.

According to the U.S. Bureau of Prisons, the vast majority of immigrants imprisoned for breaking Blease’s law were Mexicans. Throughout the 1930s, Mexicans never comprised fewer than 85 percent of all immigration prisoners. Some years, that number rose to 99 percent. By the end of the decade, tens of thousands of Mexicans had been convicted of unlawfully entering or reentering the United States. The U.S. Bureau of Prisons built three new prisons in the U.S.-Mexico border region: La Tuna Prison in El Paso, Prison Camp #10 in Tucson and Terminal Island in Los Angeles.


This change in law happened almost concurrently with a huge uptick in Mexican deportations. In the 1930s, “anyone with a Mexican-sounding name” suddenly became at risk of deportation during the Mexican “repatriation efforts,” where even American citizens where deported to Mexico.

Though more landmark immigration bills were passed since 1929, including the 1965 Immigration and Nationality Act which got rid of quotas and discrimination on national origin, the law surrounding illegal entry has changed little, save for differneces in the severity of the punishment—the crime is now punishable by up to six months in jail and a $250 fine. But it’s still a criminal act to enter illegally, and only a civil violation to be unlawfully present.


The history of immigration in America is a history of racial control—of shifting categories of inadmissible, undesirable, unwanted peoples. As our government continues to enact a program of terror and misery on individuals, children, and families who come to the U.S. seeking a better life, it’s worth remembering the roots of this situation are in a racist program to exclude Mexicans, not in some high-minded respect for enforcing the law. After all, laws can be changed, and immigration law changed plenty of times in the 20th century. Maybe this one hasn’t because it’s right in line with America’s most racist impulses.