Border Enforcement and Criminal Law: How States Regulate Unauthorized Entry. A Comparative Analysis of Canada, the United States, and International Legal Standards-2026

Abstract

Border enforcement sits at the intersection of immigration law, criminal law, and international human rights obligations. States differ in how they treat unauthorized entry: some criminalize it, while others treat it mainly as a civil immigration issue. These choices shows deeper legal and political values about sovereignty, punishment, and humanitarian protection. This paper compares Canada and the United States and assesses their approaches against international legal standards, especially the 1951 Refugee Convention and the UN Smuggling Protocol. The United States criminalizes unauthorized entry under 8 U.S.C. §§ 1325 and 1326, thereby leading to widespread federal prosecutions. Contrastingly, Canada, mainly treats unauthorized entry as an administrative immigration matter under the Immigration and Refugee Protection Act (IRPA), reserving criminal law for serious offences such as human smuggling. The paper finds that the U.S. model relies more on criminal prosecution, and raisesg concerns about proportionality, due process, and consistency with international refugee protection. However, Canada’s system is more aligned with international standards but still faces enforcement and administrative challenges. Hence, the paper concludes that criminalizing entry is a policy choice rather than a legal necessity and suggests reform toward more proportionate and rights-based enforcement systems.