Are Border Crossings Illegal? Can We Put People in Prison for Crossing Illegally?

Dilley Lot1.jpg
This blogger in the parking lot at the Dilley, Texas South Texas Family Residential Center, where moms and their kids coming from Central America seeking asylum have been held in custody cir. 2015

Generally no, crossing the border at a U.S. point of entry to seek asylum is not illegal. In fact, the proper procedure for seeking asylum at the border is to approach a U.S. and Customs and Border Protection (CBP) Officer and claim that a person has "fear" of returning to one's home country. Crossing the U.S. Border to seek asylum is not only protected by international treaty, but it is protected by U.S. laws enacted by our U.S. Congress over a period of decades of immigration policy. Unfortunately, U.S. CBP Officers have been violating the law and turning away asylum applicants. (More here.) 

Now, to clarify, border crossings outside a port of entry are not strictly legal. So, crossing by fording the Rio Grande into Texas or walking the desert into Arizona to avoid an immigration office is not legal. However, if you have not been previously deported, while it is not legal, it is not criminal. That is, you have not committed a crime by crossing the border. It is a civil violation. The typical legal distinction between a civil violation and a crime is that

  • A crime has the potential consequence of serving time in jail or prison,
  • A civil violation does not - in the United States, it is generally carries the consequences of a fine - examples of civil violations would be traffic tickets or fishing without a license.

Even if a person crosses outside a port of entry, that person starts a legal process by claiming fear of returning to their home country - asylum. However, people apprehended making civil violations at the border, as well as those entering legally, are often imprisoned, sometimes for long periods of time, often months.

It is legal to put people in immigration detention when they are seeking asylum. So, unlike for those of us who get civil violations int he United States, immigration law treats people coming to this country much harsher. The U.S. government, though, can choose whether or not to hold asylum-seekers in custody. Immigration and Customs Enforcement (ICE) can decide to release a significant portion of asylum-seekers, as long as they don't have certain criminal history or other reasons that would make them a danger to public safety.

ICE currently uses the "public safety" excuse, however, to detain a large portion of immigrants at the border. ICE may detain a person until their case is completed (which takes a long time), or may also release a person on bond. The immigrant can pay the bond to be released from custody, with the bond being a surety that they show up for their immigration hearings.

Interestingly, the way the law works, a person actually has a better chance of getting out of immigration custody when a person enters the U.S. illegally - outside a port of inspection. Decisions on whether to detain a person in custody by illegal entrants must go before an immigration judge, including the amount of the bond. Decisions by legal entrants are generally subject to the discretion of ICE. ICE almost always either denies bond entirely, or sets a very high bond. 

So, U.S. immigration law actually gives an incentive to enter illegally rather than legally, because immigration judges are often more lenient than ICE law enforcement officers.

Why is this important? Because there is presently massive detention of numerous individual seeking asylum from Central America. ICE has been incarcerating people in concentration-style camps in large numbers, including parents and their young children. (The picture in this article, taken by the author - is of an immigration detention facility in Dilley, Texas, about an hour's drive from the U.S./Mexico border. The "South Texas Family Residential Center," administered by the Department of Homeland Security, largely through private contractors, holds hundreds of asylum seekers, and specializes in holding mothers and their young children.)

This has not only caused some public criticism, but also has been the subject of lawsuits regarding national and international conventions on the treatment of children. Children at the border, as well as adults, often do not receive proper health care at these facilities, and are often held in deplorable conditions. Children also do not receive the education required by national and international laws.

So, Attorney General Sessions is trying to narrow the ability of people to seek asylum as a deterrent to staunch the large population of people in immigration custody. Instead of releasing these people on bond, he is attempting to eliminate their options for asylum. This same reasoning has led to the policy to separate children and their parents.