Just Because Asylum Seekers Enter U.S. Illegally That Doesn’t Mean They Are Committing A Crime

What do you call someone who takes another person, straps him down to a table, then cuts open his stomach with a knife and starts removing internal organs? Is it a torturer? Crazed mad scientist? How about a surgeon? Context and motivation make all the difference.

Yesterday Brandon Judd, President of the National Border Patrol Council, said that members of the caravan of asylum seekers attempting to enter the U.S. by San Diego are criminals. You can read coverage of his interview in Newsweek.

The logic seems to be this. These people do not have travel documents, so they are entering the U.S. illegally. Entering the U.S. illegally is a crime. Whoever commits a crime is a criminal, so that’s what these caravan members should be called.

What Judd rather cynically neglected to mention is that these people claim that their motivation for attempting to enter the U.S. illegally is to escape danger or persecution back home. Consider a simple example. Going onto someone else’s property is against the law- it’s called trespassing. So no one should enter my house without my permission.

But let’s say someone is being chased and running for their lives from an armed pursuer. They run down the block, trying all the doors, and find the that I’ve left the door to my house empty. So they come inside and lock the door behind them until the danger passes. Yes, they’ve trespassed, but because of the context have they really done anything wrong?

This principle already discussed in Jewish law as far back as the Talmud. Rava says: A person fleeing a pursuer who in their attempt to escape damages the property of the pursuer is not liable to pay. If the fleeing person damages the property of a third party, he is liable to pay. The general rule is that a person who saves himself by damaging the property of a third party is liable to pay (Sanhedrin 74a)[i].

Obviously, a person is generally not allowed to damage other people’s property. But Jewish law says that saving one’s life is a good enough excuse! Now of course this person is expected later to pay for the damage caused (assuming they are able), but we don’t view causing damage when attempting to save your life as a crime. So too here we can reasonably demand that the Guatemalan caravan members expend their own savings on their support before looking to the U.S. government or others (which they clearly have already) but beyond that we can’t term their breaking of immigration law as they flee for safety to be a crime.

To be clear, there are valid reasons why members of this caravan may be denied asylum. The United States has a strong argument that they should seek asylum in Mexico instead of in this country. That’s something the two governments will have to work out. It’s possible that some of the caravan members are exaggerating the dangers back home. That’s for immigration judges to determine. It’s also possible that the type of dangers many of them are fleeing may not qualify them for asylum- that’s another issue for immigration court.

But calling them criminals for attempting to enter the U.S. illegally is just as ridiculous as confusing a surgeon with a mad scientist or torturer. These are poor, desperate people searching for assistance. Whether they have a legal right to asylum in the U.S. is all that’s left to be determined.

 

[i] I add the inference that damage to the property is permitted, although the Talmud does not explicitly say this. See Aruch Hashulchan Choshen Mishpat 380:6 for confirmation that this is the correct interpretation.

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