Fact-check: When did it become a crime to cross the U.S. border between ports of entry?

Democratic presidential candidate Julián Castro sparred with fellow-Texan Beto O’Rourke during the first Democratic debate in June over whether to eliminate an immigration law that criminalizes crossing the border without authorization.

Castro wants to repeal 8 U.S. Code Section 1325, which lays out legal consequences for people who enter the country between ports of entry, while O’Rourke has said the law should stay in place.

In an interview on MSNBC after the debate, Castro discussed his immigration proposal and offered a brief history of the policy he wants to eliminate.

“It criminalizes the act of crossing the border,” Castro said. “This is a law that was put into place in 1929, by a segregationist by the way. From 1929 until 2004, it was mostly enforced as a civil violation.”

We’ve already looked at the second part of this statement from Castro, about changing enforcement of this policy under President George W. Bush. We rated the claim Mostly True — some immigrants were prosecuted for improper entry before Bush took office, but his administration created a program to prosecute most immigrants before deportation.

This time we’re taking a look at the historical component of Castro’s claim. Is he right when he says the policy was enacted by a segregationist in 1929?

Castro’s campaign pointed to a Washington Post article about the senator, a white supremacist, who authored the first version of federal law criminalizing entering the country between ports of entry.

But this isn’t the law Castro wants to repeal. This early act was eliminated in 1952, when Congress approved a sweeping immigration reform package that put policies like Section 1325 in place.

Let’s start from the beginning.

Coleman Livingston Blease

Coleman Livingston Blease of South Carolina was a Democrat elected to the U.S. Senate in 1924, after serving two terms as governor of South Carolina.

Kelly Lytle Hernández, a history professor at the University of California at Los Angeles who has researched this topic, told the Post that Blease was an “unrepentant white supremacist.”

In a speech delivered in 1911 after he was sworn in as governor, Blease described his vision for South Carolina, which included “liberal appropriations for Confederate veterans” and having “white and colored convicts worked in different camps.” He also said he opposed taxing white people to cover the cost of education for black people.

Blease also was a vocal supporter of lynching, and was quoted as saying, “to hell with the Constitution,” to the extent that it required people to be tried for crimes before a jury.

“When the Constitution steps between me and the defense of the virtue of the white women of my state, I will resign my commission and tear it up and throw it to the breezes,” Blease said in 1921, according to the Chicago Daily News.

His stance on lynching was seen as fundamental to his re-election campaign to the Senate in 1930 (which he lost).

“It looks, indeed, as if Mr. Blease is staking his hopes of re-election on the belief that there are more people in South Carolina who are in favor of lynch law than there are in favor of the prosecution and conviction of lynchers,” reads an article in The Greenville (S.C.) News.

While he was still in office, Blease became “the first United States Senator to be presented with the flag of the Confederacy, and to have it placed in his office,” according to a story in The Belleville Telescope in Kansas.

After receiving the flag at a ceremony, he said: “When I cease to praise and defend the southern soldiers and this emblem, this poor, lisping, stammering tongue will lie silent in the grave.”

Blease policy enacted in 1929

In March 1929, Blease authored an immigration act that made it a misdemeanor to enter the country between ports of entry, punishable by up to one year in prison. It also made it a felony to unlawfully return to the country after being deported, punishable by up to two years in prison.

Before this law was adopted, “the United States essentially had open borders,” but the 20th century saw a shift in “thinking about illegal immigration as a problem stemming from Mexico rather than from Asia and Europe,” according to a 2012 article in the Loyola University Chicago Law Journal.

Julia Young, a history professor at the Catholic University of America who studies migration and Latin America, said Blease’s policy was the first to target migration at the nation’s southern border — although some people still would have faced criminal charges for crossing the border before his act was adopted.

“For example, a Chinese migrant who crossed the southern border before 1929 would still be criminalized on the basis of the Chinese Exclusion Act of 1882,” Young said in an email.

But Blease’s policy targeted Mexican migrants in particular.

“The idea was to force Mexican immigrants into an authorized and monitored stream that could be turned on and turned off at will at ports of entry,” Hernández wrote in a 2017 article about the history of criminalizing crossing the border. “Any immigrant who entered the United States outside the bounds of this stream would be a criminal subject to fines, imprisonment and ultimately deportation.”

Immigration and Nationality Act of 1952

Blease’s act stayed on the books until 1952, when Congress approved the Immigration and Nationality Act, which repealed and reorganized portions of existing law and established new provisions — including the policy that would become Section 1325, which criminalized entry into the country between ports of entry.

The policy was included in the 1952 act, still on the books, as Section 275 and it reduced penalties for unlawful entry from the levels dictated in the 1929 law. Unlawful entry is still a misdemeanor, but is punishable by up to six months in prison, rather than a year.

This decision meant that criminal cases based on illegal entry could be tried before federal magistrate judges “without the right to trial by jury or grand jury indictment,” according to a 2010 paper published in the Northwestern University Law Review by Ingrid Eagly, a law professor at UCLA.

Blease’s act is not formally cited as the source of Section 1325, but it is considered the foundation of the policy.

A U.S. attorneys’ bulletin from the Department of Justice in July 2017 described Blease’s act as the “first version” of both the modern illegal entry and re-entry statutes.

Brian Owsley — assistant law professor at the University of North Texas at Dallas and former U.S. magistrate judge in the Southern District of Texas — said that “technically the language of 1325 begins in the 1952 act. However, one can see that the language from the 1929 act influenced the drafters of the 1952 act.”

Eagly said in her 2010 paper that the “law has remained fairly static over time” on the criminal side.

“For example, the criminal illegal entry and re-entry law passed in 1929 remains the core of the immigration crime law today,” she wrote.

Our ruling

Castro said Section 1325 immigration policy, which makes it a crime to enter the country illegally, was “put into place in 1929, by a segregationist.”

Technically Blease — a white supremacist who advocated for segregationist policies and lynching — was not the author of the statute on illegal entry into the United States as it exists in today’s immigration code.

But Blease’s act is considered the foundation of the 1952 policy that evolved into today’s Section 1325. It was the first policy criminalizing all unlawful entry at the nation's southern border.

We rate this claim Mostly True.

PolitiFact, Fact-checking Julian Castro on Bush's 2005 immigration policy, April 5, 2019

CNN, Beto O'Rourke says illegal border crossings should not be decriminalized, June 16, 2019

Washington Post, Who’s behind the law making undocumented immigrants criminals? An ‘unrepentant white supremacist,’ June 27, 2019

ProPublica, Behind the Criminal Immigration Law: Eugenics and White Supremacy, June 19, 2018

Library of Congress, Seventieth Congress, Session II. Chapter 690, March 4, 1929

The Conversation, How crossing the U.S.-Mexico border became a crime, April 30, 2017

Department of Justice, Prosecuting Criminal Immigration Offenses, July 2017

Loyola University Chicago Law Journal, Re-thinking Illegal Entry and Re-entry, 2012

UC Davis Law Review, Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation, 2018

Northwestern University Law Review, Prosecuting Immigration, 2010

The Brooklyn Daily Eagle, Antic Governor Cole Blease Sent to Senate; Capital Keeps Eye on Constitution Smasher, Sept. 20, 1925

Journal on Migration and Human Security, Making America 1920 Again? Nativism and US Immigration, Past and Present, 2017

The Bamberg Herald, Blease Scores Editors, Jan. 26, 1911

The Herald-Press, Blease and the Constitution, Dec. 11, 1912

The Belleville Telescope, Washington Observations, May 8, 1930

The Greenville News, Same Old Coley, July 13, 1930

Email interview with Brian Owsley, assistant law professor at the University of North Texas at Dallas, July 10, 2019

Email interview with Julia Young, history professor at the Catholic University of America, July 11, 2019

Sources