How America Invented “Illegal Immigration”—And How We Can Uninvent It
A history lesson, an explainer, and a policy roadmap for ending border criminalization
Introduction: The Invention You Didn’t Know Happened
If you’re under 40, you’ve never known an America that didn’t treat unauthorized border crossing as an inherent crime and existential threat. “Illegal immigration” feels ancient—like it’s always been this way, like the border has always been militarized, like migration has always been a “crisis.”
But it hasn’t.
The modern framework—treating human migration as criminal activity requiring military-style enforcement—was invented between 1994 and 2005. Before that, migration across the U.S.-Mexico border was treated as normal human behavior subject to economic regulation, not as a categorical threat to national sovereignty.
This isn’t nostalgia. It’s documented history. And understanding this history reveals something crucial: what was constructed can be deconstructed.
This post has three parts:
- The History Lesson: How border criminalization was built (1994-2005)
- The Explainer: Why the system fails on its own terms
- The Policy Proposal: A three-part framework to restore migration as regulated activity, not criminalized identity
PART I: THE HISTORY LESSON
What Migration Looked Like Before 1994
For most of the 20th century, migration between the U.S. and Mexico followed a pattern called circular migration: workers crossed seasonally for agricultural or construction work, then returned home. This wasn’t occasional—it was the norm. Approximately 85% of Mexican migrants in the 1960s-1970s engaged in circular migration.
Border crossing for work was routine and expected. The same individuals might cross dozens of times over their lives, with civil/administrative processing each time. Most returned home voluntarily. Permanent settlement was the exception, not the rule.
The Border Patrol’s Real Mission (1924-1994)
The U.S. Border Patrol was established in 1924—but not primarily to control migration. Its original mission was enforcing Prohibition-era liquor smuggling laws. The Canadian border actually had more agents than the Mexican border because that’s where most alcohol smuggling occurred.
Over the next 70 years, the Border Patrol’s mission evolved with political priorities:
- 1930s-1940s: Smuggling enforcement (liquor, then drugs)
- 1950s-1960s: Drug interdiction, with migration as secondary concern
- 1970s-1980s: War on Drugs escalation, migration still handled administratively
Here’s the stunning fact: The Border Patrol operated for 70 years without a formal national border control strategy. The first such strategy wasn’t developed until 1994.
Why does this matter? Because it demonstrates that migration control was not the primary institutional purpose for most of the Border Patrol’s existence.
The Legal Framework: § 1325 Existed But Wasn’t Used
Since 1952, unauthorized entry has technically been a misdemeanor under 8 U.S.C. § 1325 (Immigration and Nationality Act). The law criminalizes:
- Entering “at any time or place” other than designated ports of entry
- “Avoidance of examination or inspection”
- “Misrepresentation and concealment of facts”
But here’s what changed: For the law’s first 42 years (1952-1994), it was barely prosecuted.
By 1940, 44,000 illegal entry cases had been filed total. After that, prosecutions “fell out of favor” and remained minimal for decades. The standard practice was:
- Civil/administrative processing (deportation hearings)
- “Voluntary departure” agreements (no criminal record)
- Same individuals crossing multiple times, each time with civil processing
The law existed for decades without being operationalized to systematically criminalize migration. Migration was a civil matter, like a parking violation—not a crime requiring incarceration.
The Watershed: 1994-2005
Between 1994 and 2005, everything changed. A series of policy shifts transformed migration from regulated activity into criminalized identity:
October 1994: Operation Gatekeeper
Launched in the San Diego sector, Operation Gatekeeper introduced the “prevention through deterrence” doctrine:
- Massive infrastructure: walls, stadium lighting, sensors, doubled personnel
- Deliberate funneling of migration into harsh terrain (deserts, mountains)
- Accepted that deaths would increase as “deterrence”
The consequences were catastrophic:
- Circular migration patterns ended (too dangerous/expensive to cross repeatedly)
- Deaths spiked: from 30-50/year pre-1994 to 200-300+/year after
- Unauthorized population grew (people stayed rather than risk return crossing)
- Created the “permanent unauthorized population” that enforcement claimed to address
The policy created the problem it was supposed to solve.
1996: IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act)
With bipartisan support under the Clinton administration, Congress:
- Massively expanded deportation grounds
- Created “expedited removal” (deportation without hearing)
- Made unlawful presence (not just entry) grounds for inadmissibility
- Increased penalties for immigration violations
2001-2003: Post-9/11 Securitization
The organizational transformation:
- 2002: Department of Homeland Security created
- 2003: Border Patrol moved from INS to DHS
- Immigration enforcement organizationally merged with counterterrorism
The Border Patrol’s mission statement changed in March 2005 to formally prioritize “preventing terrorists and terrorist weapons from entering the United States.”
Migration became “national security.”
2005: Operation Streamline
The final piece: systematic criminal prosecution of all border crossers.
Started in Del Rio, Texas, Operation Streamline introduced:
- Mass courtroom proceedings: 50-100 shackled defendants processed simultaneously
- Mandatory jail time (even if brief)
- Criminal records, making subsequent crossings felonies (up to 20 years imprisonment)
The result: By April 2019, 65.6% of all federal prosecutions had a lead charge under § 1325. Immigration offenses became the most prosecuted federal crime category—but this is entirely a 21st century phenomenon.
The Rhetorical Shift
The policy changes were accompanied by language changes:
Pre-1990s: “Undocumented workers” (labor frame), administrative/bureaucratic language
1990s-2000s: “Illegal immigration” becomes standard (ontological category), “homeland security,” “border security is national security”
2010s: “Rule of law” frame dominates, “secure the border FIRST,” bipartisan acceptance
2015-2020: “Invasion” enters mainstream Republican rhetoric, “Build the Wall,” Zero Tolerance, family separation
Today: Both parties accept “secure the border” as prerequisite. Debate is over methods, not whether borders should control migration itself.
PART II: THE EXPLAINER—Why The System Fails
The Enforcement Apparatus in Search of Missions
Here’s the pattern that explains everything:
1920s-1933: Border Patrol created for alcohol prohibition enforcement
1933: Prohibition ends → apparatus remains → shifts to drugs
1970s-1990s: War on Drugs justifies expansion
1990s: Drug war plateau → reframe mission around migration (1994)
2001-Present: War on Terror becomes new justification
The enforcement apparatus is constant—what changes is the justification. The border control regime doesn’t respond to objective threats; it manufactures threats to justify its existence.
This is why ending prohibition regimes (drugs, migration, “terrorism”) is essential to reform.
The Policy Failures
The current framework fails on its own terms:
Goal: Reduce unauthorized migration
Result: Unauthorized population grew from ~3.5 million (1990) to ~11 million (2020s)
Goal: Control the border
Result: Circular migration ended, creating permanent unauthorized population
Goal: Security
Result: Deaths increased tenfold, cartels profit from human smuggling, border violence escalated
Goal: Rule of law
Result: Mass criminalization of normal human behavior, largest federal prosecution category
Cost: $25+ billion annually in enforcement, 240,000+ DHS personnel, incalculable human cost
The Prohibition Parallel
| Alcohol Prohibition (1920-1933) | Migration Prohibition (1994-Present) |
|---|---|
| Created massive smuggling industry | Created human smuggling cartels |
| Enforcement violence escalated | Border crossing deaths escalated |
| Corrupted law enforcement | Corrupted asylum/immigration courts |
| Created permanent criminal class | Created “illegal immigrant” identity |
| Drove consumption underground | Drove migration into dangerous routes |
| Repeal didn’t increase alcohol use | Decriminalization wouldn’t increase migration |
Prohibition regimes don’t work. They create the harms they claim to prevent.
PART III: THE POLICY PROPOSAL
A Three-Part Framework for Ending Border Criminalization
What would it mean to restore migration as regulated activity rather than criminalized identity? Here’s a coherent, achievable framework:
Reform 1: Repeal and Replace § 1325 with Anti-Smuggling Statute
The Problem
8 U.S.C. § 1325 conflates three completely different activities:
- Commercial smuggling operations (transnational criminal enterprises)
- Customs/inspection evasion (avoiding documentation/duties on goods)
- Individual migration (people crossing to work/reunite with family)
All three are treated as the same crime, enabling mass criminalization of normal human behavior.
The Solution: “Transnational Smuggling and Customs Evasion Act”
Section 1: Commercial Human Smuggling
- Target: Organizations/individuals profiting from transporting people to evade inspection
- Penalty: Felony, substantial imprisonment (current 10+ year penalties appropriate here)
- Key distinction: Requires commercial profit motive or exploitation
- What this preserves: Ability to prosecute actual smuggling enterprises
Section 2: Customs and Inspection Evasion
- Target: Evading cargo inspection, import duties, contraband interdiction
- Penalty: Fines, civil penalties (not criminal for individuals)
- Key distinction: About what is being brought across (goods, contraband), not human movement
- What this preserves: Customs inspection authority
Section 3: Documentation Requirements
- Target: Ensuring public health, security screening (actual inspection functions)
- Penalty: Administrative (similar to traffic violations)—fines, required processing
- Key distinction: Civil enforcement, no criminal record, no incarceration
- What this preserves: Documentation/screening for legitimate security/health concerns
What This Eliminates
- Mass criminal prosecution of individuals crossing for work/family
- Criminal records that make subsequent crossings felonies
- Operation Streamline-style mass incarceration
- “Illegal immigrant” as criminal identity
- Immigration offenses as largest federal prosecution category
What This Looks Like in Practice
Current system: Person crosses seeking work → arrested → criminal prosecution → jail time → criminal record → subsequent crossing is felony (up to 20 years)
Proposed system: Person crosses seeking work → administrative processing → documentation requirements → civil fine if applicable → no criminal record → subsequent crossings handled identically
For actual smugglers: Criminal enterprise moving people for profit → felony prosecution → substantial prison time (unchanged from current law)
Reform 2: Decriminalize Labor—Universal Labor Standards
The Problem
Current law makes employment contingent on immigration status:
- Unauthorized work is civil violation for employee
- Criminal penalties for employer (rarely enforced)
- Creates exploitable workforce with no labor rights
The inversion: System claims to protect U.S. workers from wage competition, but actually creates an underclass with no wage floor, no OSHA protection, no right to organize. Employers benefit from a workforce that can’t report violations.
The Solution: Repeal Employer Sanctions, Enforce Labor Standards
Repeal: 8 U.S.C. § 1324a (employer sanctions, created in 1986)
Replace with: Universal labor standards enforced by Department of Labor (not DHS/ICE)
New Framework:
- All workers entitled to minimum wage, workplace safety, right to organize—regardless of immigration status
- Employers penalized for labor violations (wage theft, unsafe conditions, union busting)
- Immigration enforcement removed from workplaces entirely
Why This Works
Removes employer incentive to hire “undocumented” workers: If all workers have same rights, there’s no wage arbitrage. Employers can’t undercut labor standards by hiring those without status.
Addresses actual wage competition concerns: Through labor standards enforcement, not deportation. If all workers have wage/safety protections, immigrants can’t be used to undermine U.S. workers.
Eliminates workplace raids: ICE removed from labor enforcement. Workers can report violations without fear of deportation.
Historical Precedent
This was the actual framework before 1986. IRCA (Immigration Reform and Control Act) created employer sanctions, supposedly as a deterrent. But employer sanctions didn’t reduce unauthorized migration—they just created an exploitable workforce.
Before 1986, employment wasn’t tied to immigration status. Labor standards applied to all workers. The sky didn’t fall.
Reform 3: End Prohibition Regimes (Drugs and Migration)
The Connection
The border enforcement apparatus has always been driven by prohibition:
- 1920s: Alcohol prohibition
- 1970s-1990s: Drug prohibition
- 1994-present: Migration prohibition
Cartels profit from both drug and human smuggling. Border militarization justified by drugs enables migration enforcement. The two are institutionally and economically linked.
The Solution: End the War on Drugs
- Decriminalize drug possession (Portugal model)
- Regulate previously prohibited substances (reduce cartel profit)
- Treat substance use as public health issue, not criminal justice issue
Result: Remove cartel profit motive → reduce border violence → migration can be regulated rather than militarized
Restore Migration as Normal Human Behavior
What “ending migration prohibition” means:
- Not “no rules”—same as alcohol prohibition repeal meant regulation, not chaos
- Documentation/inspection without criminalization
- Economic visa categories matching actual labor demand
- Circular migration facilitated rather than prevented
Precedent: The Bracero Program (1942-1964)
The U.S. government actively facilitated circular Mexican migration through a formal temporary worker program. 4.6 million contracts were processed over 22 years.
Simultaneously, uncounted people crossed informally for work. Both formal and informal migration coexisted. The system was administratively messy but not catastrophic. No mass criminalization, no death toll, no militarization.
This is what “restoration of pre-1994 standards” looks like:
- Circular migration normalized
- Documentation without criminalization
- Labor market regulation (visa categories matching demand)
- Border as customs checkpoint (inspecting goods, health/security screening)
- Civil enforcement (administrative processing, fines)
How The Three Reforms Work Together
Your three reforms address the three engines of criminalization:
Repeal § 1325 → Stop mass prosecution → Criminal justice system no longer processes migration → End incarceration pipeline
Decriminalize labor → Universal labor standards → Remove employer incentive to exploit → Eliminate economic driver of unauthorized migration
End prohibition regimes → Remove cartel profit → Reduce violence justifying militarization → Eliminate “drug interdiction” mission from Border Patrol
Together, they restore migration to its pre-1994 status: normal human activity subject to regulation, not existential threat requiring militarized prohibition.
Addressing Counterarguments
“But there were always immigration restrictions!”
Yes—but we should be clear about what those restrictions were. Historical immigration restrictions focused on who could naturalize/settle permanently and included categorical exclusions that were explicitly racist and morally indefensible:
- Chinese Exclusion Act (1882): Banned Chinese laborers based solely on race
- Immigration Act of 1917: Created “Asiatic Barred Zone” excluding most Asians
- National Origins Quota System (1924): Designed to preserve “Nordic” racial composition
- Restrictions on naturalization: Limited to “free white persons” until 1952
These policies were wrong. They represented xenophobia, white supremacy, and racial pseudoscience codified into law. We should not romanticize historical immigration policy—much of it was designed to maintain racial hierarchy.
The key distinction: Even these morally bankrupt restrictions didn’t systematically criminalize temporary labor migration or physical presence. They controlled who could become citizens and which racial groups could enter, but they didn’t make border crossing itself a mass prosecution category requiring incarceration.
The shift from regulating status and rights (however unjustly) to criminalizing presence itself is the recent invention. Both systems are flawed, but for different reasons. The historical restrictions were racist gatekeeping; the modern system is mass criminalization. Ideally, we’d have neither—but understanding the distinction matters for dismantling the current framework.
“This is open borders!”
No. Open borders means no inspection, no documentation, no regulation. This proposal maintains:
- Documentation requirements
- Health and security screening
- Customs inspection for goods/contraband
- Civil penalties for violations
- Criminal prosecution of actual smuggling enterprises
It simply removes criminal prosecution of individuals and enforcement from workplaces.
“What about sovereignty?”
The Westphalian state system (1648) established territorial sovereignty—meaning control over political jurisdiction and economic policy, not policing human movement per se.
Medieval states charged tolls and regulated trade but didn’t systematically prevent people from crossing borders. The modern passport/visa system dates to post-WWI, not ancient history.
“Sovereignty” doesn’t require criminalizing migration any more than it required Prohibition. States can regulate migration (documentation, health screening, labor market policy) without criminalization—as they did for most of U.S. history.
“The Schengen comparison doesn’t work—Europe is smaller!”
The Schengen Area covers 4.3 million km² with 400+ million people and free movement across 27 countries with different languages, economies, and cultures. The U.S.-Mexico border is 3,145 km.
If Europe can manage free movement at that scale, the U.S. can manage regulated (not even free) movement across one border.
“Won’t this increase migration?”
Alcohol prohibition repeal didn’t increase drinking—it just ended the smuggling industry and violence. Similarly:
- Circular migration returns (people cross for work, then return home)
- Permanent settlement decreases (no need to stay if you can cross safely)
- Labor market naturally regulates (wages/employment conditions determine flow)
- Smuggling industry collapses (no profit in transporting people who can cross legally)
The current system created permanent unauthorized settlement by making return crossing dangerous. Decriminalization would restore circular patterns.
The Political Challenge
This framework is coherent, historically grounded, and would work. But it faces enormous obstacles:
Institutional resistance: DHS employs 240,000+ people, $90+ billion annual budget, private prison industry profits
Bipartisan consensus: Both parties accept “secure the border” frame
Rhetorical lock-in: “Border security is national security” accepted as axiom
But: The framework was built in living memory (1994-2005). What was constructed can be deconstructed.
Prohibition regimes do end. Alcohol prohibition lasted 13 years, and its repeal seemed impossible until it wasn’t. The question is whether we can build political will to end migration prohibition, or whether we wait for the system to collapse under its own contradictions.
Conclusion: What You Can Do
Understand the history: Share this post. The criminalization framework is recent and constructed—not ancient or inevitable.
Reject the framing: Stop saying “illegal immigration.” Use “unauthorized migration” or “undocumented people.” Language shapes reality.
Support the reforms:
- Repeal § 1325, replace with anti-smuggling statute
- Decriminalize labor—universal standards regardless of status
- End the War on Drugs—remove prohibition justification
Demand accountability: Current enforcement costs $25+ billion annually and has killed 10,000+ people since 1994 while failing to reduce unauthorized migration. This is policy failure, and taxpayers fund it.
Remember: For most of U.S. history, migration wasn’t a “crisis.” It became one when we invented mass criminalization. We can uninvent it.