How Crossing the Border Became a Crime

This is the history of Section 1325 — the federal law used to justify family separations at the border.

Has the U.S. ever been "Borderless"?

A little-known provision of U.S. immigration law is taking the spotlight in the 2020 election. Section 1325 is a federal law used to justify family separations at the U.S.-Mexico border. The law makes entering the U.S. outside of a port of entry a federal misdemeanor. Though authorities could still deport immigrants who hadn’t gone through an official entry point, they couldn’t be detained and prosecuted for a federal crime. But that all changed in 1929 when the U.S. passed a bill to restrict a group of immigrants it hadn’t really focused on before: people who crossed the U.S.-Mexican border.

The origin of Section 1325 goes back to 1929, when South Carolina senator and avowed white supremacist Coleman Livingston Blease introduced a bill into Congress. Several years later, in 1929, this new law was passed to create a crime for individuals who were coming to the United States outside of that quota-based process. For decades, Section 1325 was rarely enforced. Those caught crossing the border were deported without criminal prosecution. That changed in 2005 in George W. Bush’s administration.

There were about 40,000 Criminal prosecutions for immigration that year according to data from Syracuse University. Under President Barack Obama, immigration criminal prosecutions went up to 90,000 in 2013. In defending its “zero tolerance” border policy that has caused the separation of families, the Trump administration has argued that the Obama and Bush administrations did this too. That’s misleading. Experts say there were some separations under previous administrations, but no blanket policy to prosecute parents and, therefore, separate them from their children. In 2018, criminal prosecutions for immigration reached about 100,000. Section 1325 enabled the Trump administration to separate children from their parents. Castro says he will repeal Section 1325 and have civil courts handle deportations. Former congressman Beto O’Rourke disagrees and the battle of U.S. immigration continues on.