Trump immigration policies may interfere with human trafficking prosecution

Human trafficking is a growing epidemic in our country and foreign nationals are particularly susceptible to becoming victims.

Human trafficking encompasses any act of force, fraud, or coercion to make victims perform some form of labor or commercial sex act.  In 2017, 8,524 human trafficking cases were reported to the National Human Trafficking Hotline, a 13 percent increase from 2016, with California having the most reported cases. The crime may seem hidden, but it exists—and often traffickers use immigration issues as a means to control victims. In response, Congress created remedies to address the issue of trafficking and the immigration challenges that accompany it.

But current immigration policies can sometimes hinder trafficking victims who seek immigration relief. Immigration policies under the Trump administration are rapidly changing. They create an unsafe environment for trafficking victims and make it difficult to ensure the stability and security they need. Without safeguards, victims may be more hesitant to come forward. And when victims don’t come forward, it limits law enforcement’s capacity to investigate, resulting in the inability to prosecute traffickers.

These policies, however, contradict Congress’ original intent when it passed the Victims of Trafficking and Violence Protection Act (TVPA), designed to help law enforcement hold traffickers accountable and help victims receive needed benefits. In 2000, Congress passed the TVPA to support trafficking victims and ensure just and effective punishment of traffickers.  The act has undergone numerous reauthorizations to address the evolving needs of the issue. Under the TVPA, the two primary immigration remedies are the T visa and U visa. Both visas also have requirements designed to encourage trafficking victims to help law enforcement efforts against trafficking.

T VISA

A T visa allows victims of severe forms of human trafficking to legally stay in the United States for four additional years and later petition for permanent residency. To qualify, a victim must first show they meet these elements of severe trafficking under federal law:

• Sex trafficking: when commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age;

Or,

• The recruitment, harboring, transportation, provision, or obtaining of a person for labor or service, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

Next, the T visa requires victims to assist in the investigation and prosecution of the trafficker(s) unless victims are under 18 or unable to cooperate due to trauma.  Victims must also prove they would suffer extreme hardship if removed from the country.  The T visa is capped at 5,000 people each fiscal year but, unlike the U visa, the limit has never been reached since the enactment of the TVPA. The T visa also includes other benefits such as employment authorization, care and case management, and federal and state benefits.  As further support for victims, qualifying derivative family members are eligible for the T Nonimmigrant Status.

U VISA

A U visa allows victims of specified crimes to legally stay in the US for four years and then apply for permanent residency if they suffered substantial physical or mental abuse as a result of the crime (which includes human trafficking). To qualify for the U visa victims must also assist in the investigation or prosecution of the crime and, unlike the T Visa, they must submit a certificate of helpfulness from law enforcement in their petition.

This visa also allows for qualifying derivative family members to be granted U nonimmigrant status. U visas granted to principal petitioners each year is capped at 10,000. However, there is no cap for family members deriving status from the principal applicant. Once the quota is reached petitioners get placed on a waiting list until the next fiscal year.

LEGAL RESIDENCY

T visa and U visa petitioners have different requirements to be granted an adjustment of status allowing them to become a legal permanent resident.  U visa petitioners are eligible to become legal permanent residents as long as they did not unreasonably refuse to assist law enforcement. Their continued presence in America is justified on humanitarian grounds to ensure family unity which serves the public interest.  However, a T visa petitioner must show that they (1) exhibited good moral character since the time they were granted the T visa, (2) complied with reasonable requests for assistance from law enforcement, and (3) would suffer extreme hardship involving unusual and severe harm upon removal.

HOW THE CURRENT ADMINISTRATION IS UNDERMINING THE TVPA

Although the legislative intent to safeguard trafficking victims is clear in the TVPA, the Trump administration has undercut the security inherent in these safeguards. One recent policy change gives officials broader discretion to deny immigration remedies. On July 13, 2018, the United States Citizen and Immigration Services (USCIS) posted a memo giving adjudicators reviewing visa applications full discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or the evidence in the record does not establish eligibility.

Previously, an adjudicator had limited discretion for denials and was required to issue a RFE unless there was no possibility that additional evidence could cure the application.  Under the previous policy, only statutory denials, such as a request for non-existent benefits, would be issued without a RFE or NOID.  But under the new guidelines, adjudicators have full discretion to deny an application outright if the application fails to establish eligibility from the initial evidence.

This subjective and potentially unforgiving approach negatively affects trafficking victims. Victims already have a difficult challenge of breaking free of the abusive cycle of trafficking. Many victims have endured years of trauma, abuse, and manipulation by those in authority. This policy creates another unsafe environment for victims. An unknown official’s discretion determines the stability of their future status. And victims must perfectly package their complicated issues of abuse and trauma within their application or face denial with potentially no recourse.

USCIS appears to recognize that law enforcement and trafficking victims need policies promoting security and stability within the legal system.  The agency recently exempted trafficking victims from a new policy. This policy was enacted in July of 2018: the USCIS announced that Notice To Appear documents would be issued for a wider range of cases, including T and U Visas. A Notice to Appear is a document that instructs a foreign national to appear before an immigration judge on a certain date to begin removal proceedings if their application is denied and they are unlawfully present. Suddenly, trafficking victims applying for Visas could potentially be forced into deportation proceedings upon denial. This destabilizing scenario lacked the safeguards needed to support trafficking victims and was to be effective on October 1, 2018. But on September 26, USCIS revised the notice stating that the NTA policy would not affect humanitarian applications, which includes the T and U visa. This revision contributes to the security and stability trafficking victims need.

Congress should limit the discretion of USCIS officials to promote the original systemic intent of the TVPA to protect trafficking victims and effectively punish traffickers.  The TVPA forms a solid framework to combat trafficking. USCIC needs to create policies that promote stability and security to advance that framework. If trafficking victims, who are unlawfully here, know there is a chance of deportation they may be less likely to come forward to report trafficking crimes and assist law enforcement. Congress needs to ensure that human trafficking victims are in a position to help the United States reduce human trafficking.

—

About the Author

Amy Gunderson recently finished the J.D. program at the Santa Barbara and Ventura Colleges of Law. She lives in Ventura County with her husband and two children and plans to work with trafficking survivors as part of her future legal practice.