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Jason Dzubow on Political Asylum

Asylum Seekers as Law Breakers

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I recently litigated an Eritrean asylum case where my client traveled
through various countries to reach the United States.  He passed
through each country illegally--sometimes with a false South African
passport; other times, he just crossed the borders without inspection. 
From the beginning to the end of his journey, smugglers assisted him
(for a price--the average cost for such a trip is around $15,000.00).  My
client did not ask for asylum in any of the countries he passed
through, even though he remained in some countries for several months
and even though such countries (theoretically at least) offer asylum to

Asylum seekers or asylum sneakers?

From my client's perspective, he was fleeing an extremely repressive
regime, and he dreamed of starting a new life in the U.S., where he
would be safe and enjoy freedom.  (It's said that in art, imitation is
the highest form of flattery; I'd say that in international affairs,
immigration is the highest form of flattery).

The Immigration Judge was not pleased with my client's illegal
journey or with his failure to seek asylum in any country along the
route, and he had some strong words for the client at the end of the
hearing.  While I don't agree with all that the Judge had to say, I
think his words are important, and I wanted to share them here:

First, the Judge told my client that asylum exists to help people who
are fleeing persecution.  It is not an alternative for those without a
better immigration option.  When a person flees her country, she should
seek asylum in the first country of safety; she should not shop around
for the country where she would prefer to live.  To use asylum as an
alternative to immigration is an abuse of the system, and takes
advantage of our country's generosity.  If enough people abuse the
system, we might change the law to make asylum more restrictive.

Second, smuggling is a criminal activity and when an asylum seeker
pays a smuggler, he is complicit in that activity; he is not an innocent
bystander.  Each smuggled person pays thousands of dollars to
smugglers.  Collectively, this is big--and illegal--business.  It violates
the sovereignty of nations and possibly supports a network that might
be used for more nefarious purposes, like facilitating the transport of
terrorists, criminals, and drugs.

Third, each asylum seeker who enters the U.S. in the manner of my
client makes it more difficult for legitimate asylum seekers who follow
him.  As more people enter the U.S. this way, a reaction becomes more
likely.  Maybe the law will be changed to deny asylum claims where the
applicant passed through other countries without seeking asylum.  Maybe
other restrictions will be put into place.  In any case, if there are
new restrictions, legitimate refugees will suffer.

Finally, the Judge warned my client against encouraging his fellow
countrymen by his example.  He noted that such encouragement might
violate criminal and immigration laws, and this could cause problems for
my client.  It could also be dangerous for any future asylum seekers,
as people have been harmed and killed on the journey to the U.S.

I think the Judge said all this to try, in a small way, to stem the
flow of asylum seekers across the Southern border.  I am not sure
whether his words will have any effect, but I believe they are worth
hearing.  And while his points are legitimate and important, there are
convincing (to me at least) counterpoints to each.  But I will leave
those for another time. 

Under the current asylum law, illegal travel through various
countries is a discretionary factor, but without more, it is generally
not a basis for denying an asylum claim.  Despite his concerns, the IJ
granted my client's application (and DHS did not appeal).  How many more
people will follow him and receive asylum in the United States remains
to be seen.

Originally posted on the Asylumist:

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