The laws used to criminally prosecute people for entering and reentering the United States without permission, Sections 1325 and 1326 of Title 8 of the United States Code, evolved from a series of racist, nativist policies from the 20th century that continue to shape our current laws. While immigrant rights advocates have, for decades, called for the end of prosecution under these laws, the forces of privatized detention and surveillance perpetuate reliance on Sections 1325 and 1326, ostensibly to deter migration. There is, however, no evidence that deterrence of migration through prosecution works.
This report, authored by the American University Washington College of Law - Immigrant Justice Clinic, and the National Immigration Project, argues that prosecutions under Sections 1325 and 1326 both enable and are reinforced by the privatization of immigration detention and criminal incarceration in the United States. Additionally, the report argues that the criminalization of entry and re-entry enables and normalizes the use of invasive surveillance technologies and the collection of sensitive data on citizens and noncitizens alike in the name of national security and immigration enforcement.