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esources. The problems were highlighted in three cases reported to Human Rights Watch
in which defendants said that men associated with organized crime had actually
compelled them to cross the border. One defendant, Robin Whiteley, even won his case at
jury trial, one of the few times a defendant has ever been acquitted of illegal reentry. 165
Even more problematic is the potential impact on asylum seekers. Not all persons who fear
returning to Mexico or another country have a fear of persecution that would support a
claim to asylum under US law. 166 However, based on our research, Human Rights Watch
believes that prosecutions for illegal entry or reentry may include a number of defendants
with a colorable claim to asylum. The Universal Declaration of Human Rights, which is
considered reflective of customary international law, provides that everyone has a right to
seek asylum from persecution. 167
The criminal prosecution of individuals fleeing violence or persecution at home is
problematic for at least two reasons. First, the prosecutions impede the asylum process,
which is intended to assist the most vulnerable migrants. 168 Criminal prosecution and
incarceration can delay asylum applications, exacerbate trauma or psychological problems,
and potentially discourage people from pressing their asylum claims at all. Thus, illegal
165 Human Rights Watch interview with Stephen Castro, Pecos, Texas, September 24, 2012; videoconference interview with Juan
Cruz Guera, Phoenix, Arizona, April 2, 2013; interview with Lorrie and Royce Whiteley, Austin, Texas, September 14, 2012; interview
with Robin Whiteley, Tijuana, Mexico, October 22, 2012; and telephone interview with Nigel Cohen, attorney for Robin Whiteley,
August 14, 2012. In 2012, 2 out of 24,089 cases were acquitted, and both were acquitted by bench trial. The 45 defendants who
were tried by jury were all convicted. Administrative Office of US Courts, Federal Judicial Caseload Statistics 2012.
166 Under US law, general violence or strife is not a grounds for seeking asylum. An asylum applicant must provide evidence
of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. Immigration and Nationality Act Section 101(a)(42)(A), 8 US Code Section
1101(a)(42)(A). Mexicans who fear particular persecution on one of these grounds, however, have increasingly sought to
apply for asylum. See Molly Hennessy-Fiske, “More Mexicans seek asylum in U.S. as drug violence rises,” Los Angeles Times,
October 28, 2012, http://articles.latimes.com/2012/oct/28/nation/la-na-texas-asylum-20121028 (accessed April 10, 2013)
(stating that applications have tripled from five years ago, and the approval rate has increased from 7 to 9 percent).
167 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 14.
168 A conviction for illegal entry or reentry should not generally bar a non-citizen from pursuing protection before removal,
under the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention) (to which the US is bound through
ratification of the related 1967 Protocol). Convention relating to the Status of Refugees (1951 Refugee Convention), 189
U.N.T.S. 150, entered into force April 22, 1954; Protocol relating to the Status of Refugees (1967 Protocol), done January 31,
1967, entered into force Oct. 4, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267. By ratifying the 1967 Protocol in
1968, the United States bound itself to respect articles 2 through 34 of the 1951 Refugee Convention. See article 1(F) of the
1951 Refugee Convention for categories of persons who may not be eligible for refugee status. Human Rights Watch remains
concerned about whether the US government might construe multiple reentry convictions as a “particularly serious crime”
that would deny eligibility for asylum or withholding of removal. 8 US Code Section 1101(a)(43)(O).
63 HUMAN RIGHTS WATCH | MAY 2013