Re-Thinking Illegal Entry and Re-Entry

Abstract

This Article traces the history of two federal immigration crimes that have long supplemented the civil immigration system and now make up nearly half of all federal prosecutions: illegal entry and illegal re-entry. Academics have written little about the historical lineage of either crime, despite the supporting role each played in enforcing America’s civil immigration laws, particularly along the U.S.–Mexico border. This Article takes a critical look at the enforcement of each crime — from when they were initially conceived as a way to deter illegal immigration, then as a way to target dangerous aliens, and most recently as a means to do both. These shifting strategies, however, have one thing in common: ineffectiveness. Enforcing the crimes has never meaningfully deterred illegal immigration, and the government’s poorly designed proxy to determine whether an alien is “dangerous” ensured that prosecutions have not made the public safer. The most recent period is particularly troubling — approximately 72,000 combined prosecutions a year, at the cost of well over a billion dollars and at the expense of foregoing more serious criminal prosecutions. Despite these huge costs and the related human carnage, the criminalization of illegal entry and re-entry is invariably left out of the discussion of comprehensive immigration reform, which reflects the silent treatment these crimes have received in the immigration and criminal law literature more generally. By reviewing eight decades of ineffective policy, this Article contends that enforcing the crimes of illegal entry and re-entry warrants both more attention as well as a fundamental re-thinking of using the criminal justice system to regulate immigration.