Expert Commentary

Decriminalizing unauthorized border crossing: What the research says

Some presidential candidates want to repeal a federal law that makes it a crime to cross the U.S. border without permission. We look at research on the law's effectiveness and impact on migrants.

decriminalize border crossing immigration research democratic presidential candidates
(U.S. Customs and Border Protection)

In the lead-up to the 2020 elections, the Journalist’s Resource team is combing through the Democratic presidential candidates’ platforms and reporting what the research says about their policy proposals. We want to encourage deep coverage of these proposals — and do our part to help deter horse race journalism, which research suggests can lead to inaccurate reporting and an uninformed electorate. We’re focusing on proposals that have a reasonable chance of becoming policy, and for us that means at least 3 of the 5 top-polling candidates say they intend to tackle the issue. Here we look at research on criminalizing unauthorized U.S. border crossing.

Candidates favoring repealing criminal penalties for unauthorized entry

Pete Buttigieg*, Bernie Sanders, Tom Steyer*, Elizabeth Warren*, Andrew Yang*

What the research says

Amid calls for immigration reform, some presidential candidates have taken aim at a previously obscure provision within federal law known as Section 1325, which makes it a crime to cross the U.S. border without going through controlled inspection areas. While research provides mixed evidence that the law has discouraged unauthorized immigration, studies document a range of negative consequences for migrants and their children, many of whom were born in the U.S. and are, therefore, citizens.

Key context

When Congress adopted Section 1325 in 1929, “improper entry by alien” became a federal misdemeanor punishable by fine and up to six months in prison for the first offense. A subsequent violation is a felony that carries a possible prison sentence of up to two years.

Most of the top-polling Democratic presidential candidates have said they want to decriminalize improper border crossing. On the other hand, three Democratic candidates — Michael Bennet, Joe Biden and John Delaney — support keeping Section 1325 on the books. Amy Klobuchar said at an event held at The Washington Post last year that she opposes eliminating border crossing penalties, the Post reported.

It’s unclear what position, if any, candidates Michael Bloomberg*, Tulsi Gabbard and Deval Patrick* have taken on the issue.

Since the law took effect, the federal government has gone through phases of relaxed and aggressive enforcement. Prosecutions of illegal entry rose sharply under President George W. Bush in 2005 and became even more common during President Barack Obama’s tenure, according to Syracuse University’s Transactional Records Access Clearinghouse, a research center that tracks cases and activity within U.S. immigration courts.

Journalist Roque Planas, who covers immigration for HuffPost, reported last year that, “Although the law criminalizing illegal entry was first passed in 1929, the Justice Department only began prioritizing those cases in 2005, as a way to funnel migrants into federal jails in areas that lacked bed space for those detained in the civil system. By the time Barack Obama took office in 2009, immigration prosecutions had skyrocketed to the point that they had overtaken half the federal criminal docket. They continued to take up half the federal criminal caseload through his presidency.”

Prosecutions have further increased under President Donald Trump. Section 1325 became the basis for his zero-tolerance immigration policy, announced in 2018 and used to justify separating immigrant children from adult family members who had been charged with violating the law.

The number of improper entry cases filed in U.S. Attorney’s Office districts along the southwestern border more than doubled from about 27,000 in fiscal year 2017 to about 62,000 in fiscal year 2018, according to a report the U.S. Government Accountability Office released in December 2019.

The U.S. is not alone in treating unauthorized border crossing as a crime. More than 120 other countries impose criminal sanctions for unauthorized entry, according to an August 2019 report from the Law Library of Congress. In France, for example, individuals who are caught entering the country without permission face spending a year in prison if convicted, the report explains. Meanwhile, in Malaysia, entering the country without a valid entry permit or pass could result in a five-year prison sentence and receiving a whipping “of not more than six strokes.”

The number of immigrants living in the U.S. without permission has fallen since its peak of 12.2 million in 2007, the Pew Research Center estimates. There were an estimated 10.5 million people living here without authorization in 2017, about 5 million from Mexico, Pew reported in 2019. Almost 2 million were from Central America.

Many of the immigrants who are not supposed to be in the U.S. have called it home for years. About two-thirds of the adults who were living here without authorization in 2017 had been in the country more than a decade, according to Pew.

The U.S., however, removes hundreds of thousands of immigrants a year, a significant portion of whom have prior criminal convictions, according to the U.S. Department of Homeland Security. In fiscal year 2018, the federal government removed 337,287 immigrants, including 149,440 with prior convictions, according to a DHS report published this month. The report does not indicate how many of these individuals had been in the U.S. without authorization. It also does not offer details about the crimes for which they were convicted, including where they were committed.

Of those removed in 2018, 74% of immigrants from South America, 89% of immigrants from Oceania and 43% of immigrants from North America had criminal backgrounds.

The American public appears to have mixed feelings about immigration. While a Gallup poll conducted in June 2019 found that 57% of respondents think immigrants have improved food, music and the arts and 43% believe they have made the economy better, 42% said immigrants have had a negative impact on taxes and “the crime situation.” More than 60% of Americans who participated in a different Gallup poll in 2006 said unauthorized immigration should be a crime.

When a nationally representative sample of registered voters was asked about illegal immigration in July 2019, 41% said immigrants who cross the border without permission should be subject to criminal prosecution. Thirty-two percent of those who participated in that online poll, from The Hill newspaper and market research and consulting firm HarrisX, said illegal border crossing should carry civil fines, and 27% of respondents were unsure whether either approach is the correct one.

Recent research

In 2015, the DHS’ Office of the Inspector General released a report that questions the effectiveness of a federal initiative known as Streamline, which targets individuals who enter the country’s southwestern border without permission and refers them to the Department of Justice for criminal prosecution.

Operation Streamline, the precursor to the Streamline initiative, was launched in 2005 to deter improper entry and end the Border Patrol’s longstanding practice of apprehending individuals who were not supposed to be in the U.S. and then releasing them into surrounding U.S. communities until their cases could be heard by an immigration court. Under Streamline, which covers a larger geographical region than Operation Streamline, migrants convicted of illegal border crossing are processed for removal after serving their sentences.

The Border Patrol had claimed that Streamline was a more effective way to curb illegal entry than simply returning migrants to the other side of the border. According to the agency’s data, immigrants who had been criminally prosecuted were less likely to try again to cross the border between ports of entry

In fiscal year 2012, for example, 10.3% of immigrants who were criminally prosecuted and removed from the U.S. tried to cross the border again, according to the Inspector General’s report. The following year, 9.26% did. When immigrants who did not have authorization to be here were simply returned to the other side of the border and released, 27.06% tried to cross again in fiscal year 2012, and 28.61% did in fiscal year 2013.

In its report, the Inspector General’s office pointed out that the Border Patrol’s data did not offer a complete picture because it did not take into account an immigrant’s attempts to enter the country over multiple years. “By the Border Patrol’s metric,” the authors of the report write, “an alien attempting to cross the border at the end of a fiscal year and making a second attempt at the beginning of the next fiscal year would not be considered a recidivist.”

A study published in 2015 in the Journal on Migration and Human Security also raises questions about whether criminalizing border crossings discourages illegal entry. For the study, researchers examined data gathered during survey interviews with more than 1,100 adult migrants who had been recently returned to Mexico after entering or attempting to enter the U.S. without permission. Researchers discovered that imposing criminal sanctions on illegal entry did not dissuade migrants from making plans to try again. Those who had been prosecuted and returned to Mexico were as likely to say they intended to try again in the future as migrants who were not prosecuted prior to removal.

The researchers write that migrants who have family in the U.S. and consider it home are willing to endure physical hardships and criminal penalties to return. “The idea that the cost of migration can be too great, the danger too perilous, and the punishments too harsh to keep people from reuniting with their loved ones needs to be rejected,” the researchers write.

A newer study that relies on data from the same survey finds that Mexican migrants who were prosecuted for illegal entry were 47% less likely to say they intended to try again within the next week than migrants who were not prosecuted before their removal. However, the deterrent effect appears to be short-lived, especially among migrants with strong ties to the U.S., the researchers explain in their paper, which appeared in the International Migration Review in 2018.

In fact, despite the threat of a criminal charge, 55% of all the Mexican migrants surveyed said they planned to try to cross again in the future, and another 22% were undecided.

But a 2019 working paper from the National Bureau of Economic Research finds that sanctions, including criminal sanctions, imposed by the U.S. Customs and Border Protection between 2008 and 2012 did discourage unlawful entry among a group of Mexican nationals. The authors used fingerprint data to track male migrants aged 16 to 50 years old who had been apprehended six or fewer times while attempting to enter the U.S. without permission. The researchers looked at whether these migrants were less likely to try again after facing one or more sanctions.

They found that “exposure to penalties reduced the 18-month re-apprehension rate for males by 4.6 to 6.1 percentage points.”

While there is conflicting evidence that criminal penalties discourage unauthorized immigration, a growing body of research highlights the negative consequences of criminalizing border crossing for migrants and their families.

In “What Part of ‘Illegal’ Don’t You Understand? The Social Consequences of Criminalizing Unauthorized Mexican Migrants in the United States,” Daniel E. Martínez of the University of Arizona and Jeremy Slack of the University of Texas at El Paso examine the harms of holding migrants in the same prisons where violent offenders and individuals convicted of human and drug smuggling are serving time.

There, they are exposed to illicit social networks such as drug trafficking organizations and prison gangs, Martínez and Slack write in the journal Social & Legal Studies in 2013.

“Policies that systematically criminalize and incarcerate people at high rates, such as Operation Streamline, are exposing economic migrants to criminal networks and certain norms and values that they may have otherwise never been exposed to,” they write. They add that prosecuting improper border crossing might deter some migrants from coming to the U.S. while also “funneling other migrants into the previously unfamiliar and violent world of drugs and crime.”

Numerous studies over the years have documented the hardships faced by many migrant children, including poverty, poor health, inadequate housing and a constant fear that one or more family members will be suddenly deported. In “U.S. Immigration Policy and Immigrant Children’s Well-Being: The Impact of Policy Shifts,” published in 2011 in the Journal of Sociology & Social Welfare, researchers explain how the federal government’s more aggressive stance against illegal entry has made children’s lives more difficult.

“Workplace raids leave hundreds of children without one or both of their parents within minutes, as undocumented workers are immediately detained,” the authors write. “Detention in immigration facilities and deportation to Mexico results in significant family disruption. The disruption of undocumented families, when parents are separated from their children, results in increased symptoms of mental health problems among children.”

Migrants who are in the U.S. without permission are particularly vulnerable to violence and exploitation, partly because they are afraid to call the police or draw attention to themselves, asserts a study published in the Annual Review of Law and Social Science in 2012. “This lack of protection from the criminal justice system makes immigrants particularly attractive targets for victimization,” the researchers explain.

Multiple studies find that the federal government’s aggressive enforcement practices — and the news media’s coverage of it — have helped shape immigrants’ views of themselves and how others see them.

Deisy Del Real of the University of Southern California explains in Immigration and Health that many Americans conflate Mexican origin with “undocumented immigrant.” She conducted in-depth interviews with 52 young adults in California who were either Mexican American or immigrants who came to the U.S. from Mexico without permission. She found that almost all of them had experienced social rejection and discrimination when others assumed they were unauthorized or discovered they were.

In the resulting paper, published in 2019, Del Real notes that one young woman told her that “strangers, children, and coworkers regularly reminded her that undocumented Mexicans in the U.S. are as valuable as ‘trash.’” Del Real concludes that so-called “Mexican illegality stigma” is especially harmful for undocumented young adults “because it deteriorates their self-regard, sense of control over their lives, and financial stability that can disrupt their transitions into parenthood and the workforce.”

When Joanna Dreby of the University at Albany, State University of New York interviewed 110 children of Mexican immigrants living in Ohio and New Jersey, she learned that they also associated immigration with “illegality,” regardless of their family’s legal status.

“With news programs highlighting the worst case scenarios of families caught up in enforcement politics, children in Mexican immigrant families believe that all immigrant families are at risk,” Dreby writes in a paper published in the Journal of Marriage and Family in 2012. “Misunderstandings about immigration and their immigrant heritage are perhaps the most devastating effect of the threat of deportability on children and children’s identity.”

Further reading

Why Border Enforcement Backfired
Douglas S. Massey, Jorge Durand and Karen A. Pren. American Journal of Sociology, 2016.

The gist: “The authors show how border militarization affected the behavior of unauthorized migrants and border outcomes to transform undocumented Mexican migration from a circular flow of male workers going to three states into an 11 million person population of settled families living in 50 states.”

Remittances: Background and Issues for Congress
Martin A. Weiss. Report from the Congressional Research Service, Updated 2019.

The gist: “This report focuses on remittances, transfers of money and capital sent by migrants and foreign immigrant communities to their home country … The United States is the destination for the most international migrants and is by far the largest source of global remittances.”

Unauthorized Aliens in the United States: Policy Discussion
Andorra Bruno, Report from the Congressional Research Service, 2014.

The gist: “How to address the unauthorized immigrant population remains a key point of disagreement in discussions about immigration reform legislation. … It remains to be seen in the current environment if agreement can be reached on the unauthorized immigrant issue — whether on a legalization-focused strategy that involves establishing new adjustment of status mechanisms and/or amending current law, or on a primarily departure-based approach, or on some combination of the two.”

Expert sources

Leisy J. Abrego, professor in Chicana/o studies, UCLA.

Mathew Coleman, professor of geography, The Ohio State University.

Deisy Del Real, postdoctoral fellow, University of Southern California.

Joanna Dreby, associate professor of sociology, University at Albany, State University of New York.

Daniel E. Martínez, assistant professor of sociology, University of Arizona.

Ricardo D. Martínez-Schuldt, assistant professor of sociology, University of Notre Dame.

Douglas S. Massey, Henry G. Bryant Professor of Sociology and Public Affairs, Princeton University.

Cecilia Menjívar​, Foundation Distinguished Professor, University of Kansas.

Victor Romero, professor of law, Penn State Law.

Jeremy Slack, assistant professor of geography, University of Texas, El Paso.

Maria-Elena Young, research scientist, UCLA Center for Health Policy Research.


*Dropped out of race since publication date.

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