Keeping Illegal Immigration Illegal

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Decriminalization of illegal immigration is one of the many new immigration policy ideas put forward by the 2020 Democratic presidential candidates, including abolishing U.S. Immigration and Customs Enforcement and providing government-funded healthcare to illegal immigrants. These ideas—radical or progressive, depending on where you stand—have elicited a strong reaction from proponents and opponents alike.

Divided We Fall aims to bring these differing viewpoints and their advocates together to engage with one another in the arena of ideas.  Below, as part of our new “In Response” series, we have provided an overview of an article by Domenic Powell of Jacobin Magazine titled “Decriminalize the Border? Obviously. But Then What?” Then, we asked C.J. Larabee, a legal expert on the other side of the aisle, to respond. We present both sides so you can decide where you stand. Read on to see what you think!

The Proposition: Domenic Powell of the University of Pennsylvania Law School and the American Civil Liberties Union

The title of Domenic Powell’s op-ed in Jacobin Magazine, a self-described socialist quarterly, says it all: “Decriminalize the Border? Obviously. But Then What?” We encourage you to read the piece in its entirety here. Powell begins the article by arguing that decriminalization is “hardly radical” and that prosecuting illegal immigration is stupid, cruel, and racist. He identifies the specific law in question—Section 1325, Title 8, “Improper entry by alien”—which makes entering the United States “at a time or place other than as designated by immigration officers” a misdemeanor offense punishable by a fine and up to six months in prison. He also references to Section 1326, which makes illegal re-entry a felony offense punishable by up to 20 years in prison. Powell describes how illegal immigrants are forced to navigate two complicated legal bureaucracies, civil and criminal, even though most first-time violators are deported under civil proceedings. 

Powell principally objects to the criminalization of illegal entry because of the way the statute has been enforced. He argues that criminal prosecution was used to justify family separation under the Trump Administration, for example, and that prosecutors coerce migrants to abandon their claims for asylum under threat of criminal prosecution as well. He argues that the overburdened federal court system cannot sustain the volume of illegal immigration cases, sometimes resulting in “mass trials” involving as many as eighty people at one time, violating the immigrants’ constitutional right of due process.

Powell concludes his piece by objecting to the common “comprehensive immigration reform” proposal, which he characterizes as “Why fix this now…when we could fix everything later?” Powell argues that this policy has been a disaster for Democrats politically as well as the immigrants who need immigration reform so desperately. He believes that while decriminalization isn’t a complete solution, it’s a start, and concludes: “And then we’ll demand more.”

In Response: Written by C.J. Larabee, a graduate of Duke University School of Law, former Assistant U.S. Attorney, and editor of the Connecticut Criminal Procedure

While I believe that we should welcome legal immigrants with open arms and that we should treat all immigrants—legal or illegal—humanely, I disagree with Domenic Powell’s conclusion that we should decriminalize improper entry. I believe that we can take a more enlightened approach to criminal prosecution of illegal entry.

In criminal law, a crime is either “malum in se,” which means morally wrong and necessarily criminal or “malum prohibitum,” which means wrong because we choose to make it wrong. Acts of violence or theft are malum in se whereas gun and drug possession offenses that do not harm other people are closer to malum prohibitum crimes. Illegal entry perhaps defies easy characterization but it does contain some elements of a malum in se crime. Unlike gun or drug possession, it is hard to say that there is ever any situation (aside from asylum cases, which I will discuss later) when society condones illegal entry. Even those in favor of decriminalization generally agree that we should impose civil sanctions such as deportation for improper entry. Perhaps there are some who believe in completely open borders, but that belief is simply contrary to the notion that the United States is a sovereign nation that can determine who may enter and who may not—a determination that is fundamental to the way that the world is currently organized.

It is true that illegal entry and reentry are heavily prosecuted offenses. In 2016, more than half of federal criminal prosecutions were for immigration violations with the vast majority of those prosecutions brought under the statutes for illegal entry and reentry. However, the status of illegal entry as a federal crime does not mean that everyone who commits it must face criminal prosecution. Although lately, the government has taken a zero-tolerance approach, prosecutors traditionally have exercised discretion over whether to file charges. An enlightened approach might involve prosecuting only the cases where aggravating factors—such as illegal drugs or human trafficking—are present. Additionally, prosecutors could decline to prosecute cases in which there appears to be a valid asylum claim. Certainly, the current “Operation Streamline,” in which the government prosecutes illegal entrants en masse sacrifices the individual consideration to which every defendant charged with a crime is entitled. 

Critically, the availability of the misdemeanor of illegal entry can play an important part in the prosecution of more serious immigration crimes. Let’s say that agents see a person attempting to cross the border illegally and that person destroys suspected drugs upon detection. Or that a human trafficker or smuggler crosses illegally and his victim refuses or is unable to testify. Or a person reenters illegally but the proof of his first illegal entry is questionable because of identification issues. In all these instances, which are quite realistic, prosecutors can drop the charge down to the misdemeanor of illegal entry and request a guilty plea. This sort of plea bargaining is typical for many criminal cases, saves both sides the expense and risk of trial, and has received the approval of the United States Supreme Court.

Preventing illegal entry is important for many additional reasons.  Although the evidence suggests that prosecuting illegal entry as a criminal offense does not have a strong deterrent effect, it is obviously important to our health and safety to screen immigrants before they enter. Further, it is only fair to those desiring to emigrate legally from areas not contiguous with the United States—whether from the Middle East, Africa, Asia, or elsewhere—that they have the same opportunity to enter as those who approach our southern border.  And there is an element of compassion toward those tempting to cross illegally in remote areas that we do not encourage them to make that hazardous journey and or to let them think that life in the United States as an illegal immigrant will be easy. 

The United States is not alone in making illegal or improper entry into a crime. In fact according to a 2019 Library of Congress study, the United States, in making improper entry a misdemeanor subject to a maximum punishment of six months, has one of the world’s weaker laws for illegal entry. Our treatment of illegal entry is in line with Canada and the United Kingdom. 

Yes, our immigration system needs reform. But we should not throw out the baby with the bathwater.  Maintaining illegal entry as a criminal offense serves important national interests. And it should stay that way.

This post is part of our new “In Response” series. If you liked what you read, be sure to check out our Political Pen Pals debates. 

Joseph Schuman
Editor-in-Chief at Divided We Fall

Joe Schuman is the Founder and Editor-in-Chief of Divided We Fall. He works to set the vision of the organization and to build the team to meet that mission. Joe works as a civilian for the Department of Defense promoting innovation and emerging technology. Joe is also an Officer in the Air National Guard and a graduate of the Massachusetts Institute of Technology. In his spare time he can be found reading non-fiction, playing piano, and running triathlons.


Free Thinker July 27, 2021 at 8:55 pm

As an American-born citizen, I have decided to take illegal immigration matters into my own hands through the type of companies I select as service providers. I have noticed that certain companies have what appears to be a very large population of non-English speaking (and possibly illegal) immigrants working for them. What really pisses me off is the way some of these individuals do lousy work and break or damage things in and around our homes and property, and they flat don’t care! If you don’t catch them in the act, then they will simply smile in your face and let you find whatever they broke or damaged long after they’re gone for the day.

I am also sick and tired of the rude and arrogant manner in which owners of certain minority-owned small businesses (such as landscaping companies) handle customers and potential customers. There really seems to be a jacked up attitude of “I work on my time… not yours” and/or “I don’t have to care about your needs because I have a lot of business.” I think some of this behavior also translates to a certain amount of racism as well as this relates both other minorities and white folks as well. We, as American consumers, do NOT have to put up with this crap, so do NOT allow these type of business owners and individuals make YOU feel like you need THEM so bad that we have to tolerate their attitude, behavior or LOUSY WORK if this is the case!

As for me personally, I have decided to insist that a service provider only dispatch people who speak English to my home. I don’t have a problem with foreign accents, but I want to be able to communicate with whoever comes on my property without someone acting as translator for another person or the entire group! I have the right to make this request, and if a company doesn’t like it then screw ’em. If the company decides to test me by getting bold, stupid, and sending someone to my house that I suspect to be an illegal immigrant, then I am going to send them packing, and feed this information to Immigration and Customs Enforcement (aka ICE) at

Let’s all get busy and see what THIS approach does for CHEAP & UPPITY business owners and illegal immigrants with little or no work ethic; can’t speak and will not bother to learn English. Note that I have also been advised to come right out and ask a company if the use E-Verify as part of their pre-screening and hiring process. We can make an impact if we just get pissed off and DO it!

Now… did you notice how I did not have to single out any one particular racial or ethnic group to make my point? That’s because my words apply to any person of any race or ethnicity who happens to be an illegal immigrant. We all know (or should know) that illegal immigration occurs with more than just one racial and ethnic demographic, and here’s an example:

In closing, let me say that I support and stand behind any and everyone of ANY race or ethnic group who enters the United States legally and takes time to learn the language of THIS country. If this is not you, then I don’t want you in my home or on my property. It’s as simple as that.

Thank You

Richard Brock DeLaTorre July 30, 2020 at 5:06 pm

Enforcing immigration laws is not a racial issue. In recent cases most illegal immigrants happen to be Hispanic. These are the people breaking our laws, we didn’t decide for them, they made their own choice. It has absolutely nothing to do with race, I know for fact that democrats wouldn’t support them if they voted Republican!


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