Section 1325: the 90-year-old law that defines border crossing criminality

One issue at the heart of current immigration debate is the criminalization of unauthorized entry in the US. Criminalization began in 1929 under section 1325, but prosecution of unauthorized entry has been inconsistent over the years.

Published Mon, December 2, 2019 by the USAFacts Team

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One issue at the heart of the current immigration debate is this question: should unauthorized entry int he US continue to be criminalized? The criminalization of unauthorized entry in the US. Criminalization began in 1929 under section 1325, but prosecution of unauthorized entry has been inconsistent.

While the passage of 1325 led to thousands of illegal entry prosecutions after it first passed, usage of it declined throughout the 20th century. More recently, illegal entry prosecutions have been on the rise.

Here’s a look at the numbers behind the law and who would be affected if a repeal was passed.

What is Section 1325?

In 1929, South Carolina Senator Coleman Blease proposed a change in the US Code that made unauthorized entry into the country a misdemeanor. Formally titled Section 1325, it was designed to target Latin American immigration, which unlike European and Asian immigration at the time, was not otherwise limited by quotas or bans.

Under the law, unauthorized immigrants can either be deported without filing charges or authorities can choose to initiate federal criminal procedures. By 1940, 44,000 illegal entry cases had been filed through Section 1325. However, after that time, illegal entry prosecutions fell out of favor, and Section 1325 became somewhat irrelevant to immigration enforcement.

This began to change during the Bush administration and the number of illegal entry prosecutions has been climbing over the past decade. In 2016, 340,056 unauthorized immigrants were removed through a formal court order, compared to 106,167 unauthorized immigrants who were returned without formal deportation proceedings.

Individuals convicted of these charges can face up to six months in prison as well as deportation. In addition, having a criminal record negatively impacts an individual’s ability to seek legal immigration to the US in the future.

Under the Trump administration, Section 1325 is cited as the legal reason for the family separation policy, detaining families for illegal entry and separating parents from their children.

Repealing Section 1325

Critics of Section 1325 frequently cite the backlog of immigration cases in federal courts. As of March 31, 2019, 30, 223 individuals were facing an immigration related charge. These cases account for 33.48% of all criminal defendants in US District Courts, an increase of 4.9% percentage points from 2018.

US District Court, Criminal defendants filed

However, of those facing immigration-related charges, only those facing charges for an initial illegal entry would be potentially impacted by the repeal of Section 1325. This is important because while few individuals are facing charges for illegal entry, many are facing charges for illegal re-entry.

Immigration offenses by type

Illegal re-entry is a more serious felony offense that results in prison time up to two years. Illegal re-entry is covered under Section 1326, meaning repealing Section 1325 would not directly impact illegal re-entry prosecutions unless the repeal was part of a larger effort to decriminalize unauthorized entry.

Criminal entry proceedings vs. asylum

Those who are facing criminal charges for illegal entry are frequently confused with asylum seekers in popular discourse.

Deportation, or more accurately removal, proceedings are overseen by the Executive Office for Immigration Review (EOIR). These proceedings are designed to determine the admissibility of immigrants to the United States. Sometimes, asylum seekers are already in removal proceedings. These individuals are defensive asylum seekers, and their requests are overseen by EOIR.

Asylum proceedings for individuals not already in removal proceedings are considered affirmative asylum seekers, and their case is overseen by US Citizenship and Immigration Services (USCIS).

By the end of the fiscal year 2019, there were over 869,000 pending immigration court cases including both removals and asylum requests. As of 2017, there were about 142,961 total asylum cases, a three-fold increase from the 43,032 asylum cases. However, more recent data is not available.