Asylum Seekers as Law Breakers

by Jason Dzubow on August 29, 2012

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 refugees.

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.

{ 3 comments… read them below or add one }

Eritrean American September 26, 2012 at 9:40 pm

Great points, but i am afraid the Judge has little knowledge of how the world works outside the US borders. Eritreans are under threat of torture, murder, kidnapping, forced repatriation and more in neighboring countries, such as Eastern Sudan, Egypt, Sinai, and Ethiopia. Government security agents of the Eritrean regime (PFDJ agents) routinely sweep refugee camps looking for dissidents and potential threats to eliminate. Some are forcibly returned back to Eritrea and tortured in shipping containers at 45 Celsius in Massawa prison camps or the prison at EiraEro where all of our independent journalists died since the 2001 crackdown.

There is no way out of Eritrea without human “smugglers” and paying corrupt border guards. Every city has multiple checkpoints and you need a permit just to exit the city of Asmara. The country is a giant prison and our youth are forcefully conscripted from age 16 to 60. This indefinite slavery labeled as “national service” is the driving force behind immigration from Eritrea. there is no hope in our country. the government shut down the only university in 2006 (University of Asmara).

It is VERY dangerous for Eritrean asylum seekers to live in any country without a strong rule of law. Europe & Israel treats the refugees like criminals and doesn’t give them any chance of work, earning income legally, or sometimes returns them back to Libya or Malta where they are forcefully repatriated.

Its a dire situation and it seems the US legislature is ignorant to the main driving force behind immigration of Eritrean refugees and how to stop it.

The only way that this situation will end would be with regime change in Eritrea.


bill holston August 29, 2012 at 11:20 am

I get the Judge’s point, but in the case of Eritreans, what is their alternative? FWIW we are seeing much fewer Eritreans coming in, which makes me think the smuggling routes have been disrupted somewhere, and perhaps some of these poor people are stuck somewhere in South or Central America.


Jason Dzubow August 29, 2012 at 9:54 pm

Hi Bill – I hope you are well. Maybe I will do a posting refuting some of the IJ’s points one of these days. You are correct about the smuggling route. A Ethiopian or Eritrean smuggler named “Jack” who was based in Ecuador was arrested. Also, groups of Eritreans and others were stranded in Honduras and Ecuador (or maybe Colombia). In addition, while Ecuador previously did not require a visa (and hence became a hub for illegal migrants), that country now requires a visa and so it is more difficult to pass through. My news on this is probably six months old, but I think we are seeing a slow-down based on these events. And for the record, I agree with you that Eritreans like my client don’t have too many options for finding protection.


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