No One Is Illegal: Who Decided Who Gets to Belong
Quick Answer
The concept of the illegal immigrant did not exist in American law until 1882, when the Chinese Exclusion Act banned immigration based on race and nationality for the first time. Before that, there were no federal immigration restrictions. The Border Patrol was created in 1924, the same year a quota law was passed to limit non-European immigration. Illegal border crossing wasn't even a criminal offense until 1929.
For the first hundred years of American history, there was no federal immigration law. If you could get on a boat, you could come. The concept of the illegal immigrant was invented in 1882. Congress invented it to keep out the Chinese.
Everything that comes after that is a choice. Who gets to be here. Who doesn't. Who has always been here. Who the border moved around. These were decisions made by specific people at specific times for specific reasons. The reasons are worth looking at.
There was no such thing as an illegal immigrant until 1882
The Naturalization Act of 1790 was the first federal law to define who could become a citizen. It said: free white persons of good character. That was it. You could live here, work here, and own property without being a citizen. You just couldn't vote or naturalize unless you were white. But entering the country? No federal law restricted it.
For ninety-two years, the United States had no federal immigration controls. States managed their own ports. If you arrived healthy and weren't a convicted criminal, you entered. People moved across the U.S.-Mexico border in both directions without documentation because documentation wasn't required. The Irish came during the famine. Germans came in waves. No one checked papers because the federal government had not yet decided that papers were necessary.
The Founders were not for or against illegal immigration. The category did not exist.
Then Congress passed the Chinese Exclusion Act.
Chinese workers built the railroad. Congress banned them thirteen years later.
The transcontinental railroad was completed in 1869. Chinese workers did the most dangerous sections, blasting through the Sierra Nevada with nitroglycerin, working in conditions that killed hundreds of them. The Central Pacific Railroad relied on Chinese labor because it was cheaper and because white workers went on strike and Chinese workers did not. The railroad was celebrated as a national achievement. The men who built it were not celebrated.
In 1882, Congress passed the Chinese Exclusion Act. It suspended Chinese labor immigration for ten years. It barred Chinese immigrants already in the country from becoming citizens. It was renewed in 1892. Made permanent in 1902. Extended indefinitely in 1904. Not repealed until 1943, and then only symbolically: the repeal came with a quota of 105 Chinese immigrants per year.
The act created, for the first time in American law, the category of person who could not legally be here. Before 1882: no such category existed. After 1882: it did. That category was specifically and explicitly Chinese. The word "illegal" didn't come attached to the law, but the concept did. To be a Chinese laborer in America after 1882 was to be subject to arrest, detention, and deportation. The legal architecture for that had not existed the year before.
The Border Patrol was created in 1924 to enforce racial quotas
The Immigration Act of 1924, also called the Johnson-Reed Act, set immigration quotas based on national origin. The quotas were calculated from the 1890 census, not the current population, because by 1890 there were fewer Southern and Eastern Europeans in the country. The formula was designed to maximize Northern European immigration and squeeze out everyone else. Italians, Poles, Russians, Greeks: all sharply restricted. Most Asian nationalities: effectively banned entirely.
The law also created the Border Patrol. Same year. Same bill. The Border Patrol had not existed before 1924.
Before 1924, Mexicans crossed the U.S.-Mexico border freely. Farmers crossed to work. Families crossed to visit relatives. Workers crossed seasonally for agriculture, mining, and construction. They had been doing this for generations. The 1924 act didn't explicitly restrict Mexican immigration, but it created an enforcement apparatus along the southern border, and that apparatus's purpose was to control who crossed. Mexicans who had crossed freely in May 1924 were crossing illegally in July 1924. Nothing about them had changed. The law had changed.
Crossing the border without papers wasn't a crime until 1929
There is a legal distinction that most people don't know: before 1929, crossing the border without authorization was a civil offense, not a criminal one. You could be detained. You could be deported. But you were not a criminal under federal law.
The Registry Act of 1929, passed under Herbert Hoover, made illegal entry a federal misdemeanor for the first time. A second offense was a felony. That is when the word "criminal" became legally attached to the act of crossing without papers.
The criminalization of the person, the idea that crossing a line makes you a criminal, is less than a hundred years old. It was not handed down from the founders. It was not written into the Constitution. It was passed as a law in 1929 by a Congress that had spent the previous decade tightening restrictions on who was allowed to belong.
This is the context that gets left out when people say "they should have come legally." The law defining what legal and illegal meant was being written and rewritten in real time, by people with specific interests, targeting specific groups. We wrote about how the enforcement side of this history developed in the post on ICE being created in 2003.
Ellis Island immigrants came legally because the law was designed for them
Ellis Island processed immigrants from 1892 to 1954. The people who came through it were "legal" because the law at the time did not restrict European entry. It explicitly excluded Chinese, Japanese, and most other Asian nationalities. After 1924, it restricted Southern and Eastern Europeans too. But Northern Europeans, Western Europeans, Irish, Germans, Scandinavians: the law was built around them. They came legally because the law was designed to let them in.
You'd think the ancestors who came through Ellis Island represent the model of legal immigration the country has always honored. The model was built on exclusion. The people who couldn't come legally weren't offered another door. They were just told they didn't belong.
The "my family came the right way" argument is usually accurate. It's accurate because the right way was defined to include people who looked like them and exclude people who didn't.
The border crossed them
The Treaty of Guadalupe Hidalgo was signed on February 2, 1848. It ended the Mexican-American War. The United States took roughly 525,000 square miles of Mexican territory: all of present-day California, Nevada, and Utah; most of Arizona and New Mexico; and parts of Colorado, Wyoming, Kansas, and Oklahoma.
Between 80,000 and 100,000 Mexicans were living in that territory when the treaty was signed. They did not move. The border moved around them. The treaty offered them U.S. citizenship if they stayed. Most stayed.
Their descendants are still told to go back to Mexico.
Some of their families have lived in what is now the American Southwest longer than the United States has existed. The border is younger than they are. The concept of their presence as illegal is younger still, invented by a Congress that needed a legal category to describe who did and didn't belong, written to protect specific interests, and enforced by institutions that didn't exist until someone decided to build them. We've written about what it means to push back on that.
The No One Is Illegal T-Shirt and the Chinga La Migra T-Shirt are in the activism collection. Wear what you mean.
Murder Apparel is an independent, husband-and-wife brand making spooky, political gear for people who give a damn. We donate to fight injustice and support communities in need. 500,000+ weirdos on Instagram. Come find your people.
Frequently asked questions
When did the U.S. start having illegal immigration?
The concept of illegal immigration in the United States began with the Chinese Exclusion Act of 1882, the first federal law to ban entry based on nationality and race. Before 1882, there were no federal immigration restrictions. Anyone who arrived could stay. The category of "illegal immigrant" was created by that law and expanded by subsequent legislation in 1924 and 1929.
When was the Border Patrol created?
The U.S. Border Patrol was created in 1924 as part of the Immigration Act of 1924, also known as the Johnson-Reed Act. That law set national origin quotas designed to limit immigration from Southern and Eastern Europe and ban most Asian immigration. The Border Patrol was established to enforce the new restrictions, primarily along the southern border with Mexico.
Was crossing the border always a crime?
No. Illegal border crossing did not become a federal crime until 1929, when the Registry Act made unauthorized entry a misdemeanor. Before that, you could be deported for being in the country without authorization, but you were not a criminal. The criminalization of presence, not just deportability, was a legal choice made by a specific Congress in a specific year.
Did Ellis Island immigrants come here legally?
Yes, and the reason is important: the immigration law of that era was explicitly designed to allow Northern and Western European immigrants in while excluding or limiting most other groups. Chinese were entirely banned. Japanese were banned. Most Asian nationalities were excluded. Southern and Eastern Europeans were heavily restricted after 1924. The Ellis Island immigrants came legally because the law was built to let them in.
What does "no one is illegal" mean?
The phrase challenges the legal category itself. The argument is that a human being cannot be illegal: crossing a border without documentation makes an act unauthorized, not the person criminal. The category of illegal immigrant is a legal construction, created in 1882, shaped by race-based quota laws in 1924, and criminalized in 1929. "No one is illegal" is a rejection of applying criminal language to the existence of a person.
Were the Founding Fathers against illegal immigration?
The Founding Fathers did not have a position on illegal immigration because illegal immigration did not exist as a legal category during their lifetimes. There were no federal immigration restrictions until 1882, nearly a century after independence. The Constitution does not restrict immigration. The Naturalization Act of 1790 restricted who could become a citizen, but not who could enter or live in the country.
