Janet B. Beck 0000-00-00 00:00:00
An estimated 20,000 individuals are trafficked into Texas each year from other countries.1 Thirty-eight percent of all calls to the National Human Trafficking Resource Center hotline were dialed in Texas.2 It is estimated that human trafficking generates $32 billion in annual profits for the perpetrators.3 Human trafficking victims are often smuggled into the United States by traffickers who have kidnapped them or lured them to the United States with the promise of legitimate jobs. Once they arrive, they are forced to work in cantinas, factories, or on street corners. Some are forced into a life of prostitution, others work in sweatshops under horrible conditions for little or no pay. They are frequently subjected to acts of brutality that the majority of Americans can only imagine. This article will focus on existing laws against human trafficking, challenges to law enforcement agencies, and the manner in which victims of severe forms of human trafficking may legalize their status in the United States through the T visa process.4 Trafficking Laws The United States first outlawed slavery and involuntary servitude in 1865.5 In 1910, Congress passed a law that prohibited white slavery and the interstate or foreign transport of females for the purpose of prostitution.6 Despite our laws, slavery and involuntary servitude are, unfortunately, alive and well in the United States. In recognition of the burgeoning humantrafficking trade, the U.S. Congress enacted the Victims of Trafficking and Violence Protection Act of 2000, which provides for protection for human trafficking victims and criminal penalties for traffickers.7 The act also created the T visa to encourage victims of severe forms of human trafficking to assist law enforcement in the prosecution of traffickers. In 2005, the United States signed and ratified the United Nations Convention Against Transnational Organized Crime, which includes protocols regarding human trafficking and smuggling.8 Every year, the U.S. Department of State issues a Trafficking in Persons Report, which ranks countries, including the United States, on the volume of trafficking and efforts to combat trafficking.9 In 2011, the U.S. Department of Justice announced the Human Trafficking Enhanced Enforcement Initiative to combat human-trafficking threats.10 More than half the states have enacted laws to combat human trafficking, punish traffickers, and help survivors.11 In 2009, Texas enacted legislation criminalizing human trafficking, and in 2011, the Texas Penal Code was amended to include the offense of Continuous Trafficking in Persons.12 Texas also has a Human Trafficking Prevention Task Force.13 The mayor in Houston recently formed a committee to study human trafficking and recommend how best to combat it. Challenges Facing Law Enforcement Agencies U.S. government agencies involved in legal actions against traffickers include the FBI, the U.S. Department of Labor, and the U.S. Department of Homeland Security. DHS includes U.S. Customs and Border Protection, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. The Labor Department includes the Wage and Hour Division as well as the Office of Inspector General. State, county, and local police also track down human traffickers.14 Among the many challenges to law enforcement agencies in the prosecution of traffickers is that it is difficult, without the testimony of a victim, to prove fraud, force, and coercion. Thus, although an LEA may have surveillance over a business where it is believed there are trafficking victims, prosecution is almost impossible without the testimony of a victim. Many victims are afraid to leave their traffickers, fearing they will be killed or their families in their home countries will be subjected to extortion or physical abuse for the “debt” owed by the victim. If victims were trafficked from their hometown, the trafficker knows where their family lives. Most individuals never pay off their “debts” to the traffickers because the traffickers ensure that the debt keeps rising. For example, a “coyote” brings a woman to the United States and sells her for $1,000 to a trafficker who puts her to work in a cantina where she is forced to provide sexual services to customers. The trafficker then deceives the victim by telling her that he paid $10,000 for her and this is what she owes him. He provides her with food, clothing, and housing. All of this he adds to her “debt,” which is only minimally offset by the money she receives from customers. In addition, many women in the sex trade exhibit the same traits as women who are abused in domestic relationships, i.e., they are so psychologically traumatized that they are unable to leave their abusers. Other victims of severe forms of human trafficking identify with their traffickers, falling victim to the Stockholm Syndrome, and don’t want to leave their traffickers.15 Other victims who were brought to work in factories or small businesses are subjected to horrible treatment and receive little or no wages. Many believe they will bring shame to their families in their home countries if they cannot pay their debt; in some countries these victims will be shunned if they are forced to return. Most human-trafficking victims fear that they will be deported if they escape from their traffickers. Most victims of severe forms of human trafficking do not know that there are national and state hotlines, and that they may be eligible for medical assistance and counseling from the federal or state government due to their status as human-trafficking victims.16 Requirements for the T Visa Some trafficking victims may also qualify for asylum or a U (crime victim) visa. This article, however, will focus only on the T visa. In order to qualify for a T visa, victims must prove that they have been subjected to a “severe form of trafficking in persons” which is defined as: • Sex trafficking in which a 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 services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery17 Victims must prove all of the following: • They are or have been a victim of a severe form of trafficking in persons. • They are physically present in the United States, American Samoa, or at a port-of-entry thereto, on account of such trafficking in persons. • They have complied with any reasonable request for assistance in the investigation or prosecution of acts of such trafficking in persons or are younger than 15 years of age. • They would suffer extreme hardship involving unusual and severe harm upon removal from the United States.18 A Law Enforcement Agency endorsement (on CIS form I- 914B) is sufficient to prove that the individual is a victim of severe trafficking in persons, and that she has complied with a reasonable request for assistance in the investigation or prosecution. 19 The LEA endorsement is not a requirement for the T visa. However, without the LEA endorsement, the individual must demonstrate that DHS arranged for her continued presence as a potential witness or she must submit sufficient credible evidence describing the victimization.20 If the individual is younger than 18 years of age, this requirement is waived.21 If the victim escaped before an LEA became involved, the individual must show that she did not have a clear chance to depart the United States in the interim.22 Whether an applicant had a clear chance to depart may include, but is not limited to, factors such as trauma, injury, lack of resources, or travel documents that traffickers have seized.23 Factors that may be considered in a determination of hardship may include, but are not limited to: 1) age; 2) the nature and extent of the physical and/or psychological harm; 3) the loss of access to U.S. courts for purposes of relating the trafficking; 4) the likelihood that the trafficker in persons or others acting on behalf of the trafficker in the foreign country would severely harm the applicant; 5) the reasonable expectation that the applicant would be severely penalized in her home country for having been a victim of human trafficking; 6) the likelihood of re-victimization; 7) the ability and willingness of the foreign authorities to protect the applicant; and 8) the likelihood that the applicant’s safety would be seriously threatened by the existence of civil unrest or armed conflict.24 Inadmissibility Even if a victim meets all the criteria for a T visa, she still may be denied a T visa if she triggers a ground of inadmissibility. 25 Some young girls are sold by their families in their home countries to traffickers who travel to different countries to sell their services. These girls may be trafficked into the United States where they present a false passport to CBP at the U.S. port of entry. In this example, three grounds of inadmissibility are triggered: 1) the lack of a valid entry document; 2) misrepresentation because of the false passport; and 3) engaging in prostitution within the past 10 years.26 Although she may be inadmissible, Congress provided waivers for certain grounds of inadmissibility if it is in the national interest to grant the T visa.27 As with other nonimmigrant visas, the waiver also may be granted, for any other reason, as an exercise of discretion.28 Grounds of inadmissibility that cannot be waived are: terrorist or security threats, international child abduction, and renunciation of citizenship for tax purposes.29 The T Visa Process The T visa petition is filed with CIS. There is a cap of 5,000 visas issued each year. Pending applications are held over to the next fiscal year if they would be approved except for the cap. Eligible family members are not included in the cap. An employment authorization document is issued if the T visa petition is approved.30 The T visa is valid for four years.31 Children (younger than 21), siblings, and spouses of T visa applicants (or parents of the T visa applicant if the victim is a child) may be granted T visas whether they reside inside or outside the United States.32 Family members of a T visa applicant must show that the T visa applicant or the family member would suffer extreme hardship if the family member were not allowed to accompany or follow to join the principal T-1 nonimmigrant.33 An individual who is in removal proceedings before an immigration judge or who has an appeal pending before the Board of Immigration Appeals may be granted a stay while her T visa application is pending.34 Even if the individual has a final order of removal from the United States, she still may be granted a T visa. The T visa cancels the removal order by operation of law.35 The T visa may be revoked under certain circumstances, e.g., the law enforcement agency informs CIS that the victim has unreasonably refused to cooperate with the investigation or prosecution of the trafficking in persons.36 Adjustment of Status An individual must apply for Lawful Permanent Resident status before her T visa expires if she wants to retain legal status in the United States.37 She must show that she has been physically present for three years before she applies for Adjustment of Status to LPR and has been a person of good moral character from the time of the grant of the T visa through Adjustment of Status.38 She must also show that she has complied with any reasonable request for assistance in the investigation or prosecution of the trafficking, or that she would suffer extreme hardship involving unusual and severe harm if removed from the United States.39 The Number of applications granted per year may not exceed the statutory cap.40 Family members may also file Adjustment of Status applications.41 U.S. Citizenship Five years (three years if married to a U.S. citizen) minus 90 days after the grant of LPR status, or at any time thereafter, the individual may apply for U.S. citizenship by filing a naturalization application with CIS.42 The individual must satisfy the requirements for naturalization.43 Conclusion Although human trafficking continues to be a problem in many countries, including the United States, our laws protect the victims and provide for criminal prosecution and civil suits to combat human trafficking. In addition, victims of severe forms of human trafficking in the United States are afforded a pathway to legal status and an opportunity to be free from slavery and involuntary servitude. Notes 1. A Report of the Texas Advisory Committee to the U.S. Commission on Civil Rights, August 2011, Letter of Transmittal, p. 3. 2. Id. 3. Id. at 1. 4. 8 USC §§ 1101(a)(15)(T), 1427. 5. U.S. Const. Amend. XIII § 1. 6. 18 U.S.C. § 2421, The Mann Act (amended in 1986 and 1998). 7. 18 USC §§ 1581-1596; 22 USC §§ 7101-7012, Victims of Trafficking and Violence Protection Act of 2000, Div. A of Pl-196-386, 114 Stat. 1464 (Oct. 28, 2000); see also Trafficking Victims Protection Reauthorization Act of 2003); Trafficking Victims Protection Reauthorization Act of 2005; Wilber Wilberforce Trafficking Victims Protection Reauthorization Act of 2008; and Trafficking Victims Protection Reauthorization Act of 2011- still pending. 8. http://www.unodc.org/unodc/en/treaties/CTOC/ 9. http://www.state.gov/j/tip/rls/tiprpt/2012/ Trafficking in Persons Report. 10. U.S. Dept. of Justice, Office of Public Affairs, Feb. 1, 2011 11. Polaris Project, Aug. 7, 2012, www.polarisproject.org 12. TX. PEN. CODE § 20A. 13. The Texas Human Trafficking Prevention Task Force Report 2011 to the Texas Legislature. 14. 8 USC § 1101(a)(15)(T)(i)(III). 15. The Stockholm Syndrome http://medical-dictionary.thefreedictionary.com/Stockholm +Syndrome 16. www.polarisproject.org; http://www.dhs.gov/human-trafficking-victimassistance-program. 17. TVPA (Trafficking and Victims Protection Act) § 103; 8 CFR § 214.11(a). 18. 8 CFR § 214.11(b), (f )-(i). 19. 8 CFR § 214.11(f)(1). 20. 28 CFR § 1100.35; 8 CFR § 214.11(f ). 21. Id. 22. 8 CFR § 214.11(g)(2). 23. Id. 24. 8 CFR § 214.11(i)(1). 25. 8 USC § 1182(a). 26. 8 USC §§ 1182(a)(2)(D); (a)(6)(i), (a)(7)(B)(i). 27. 8 USC § 1182 (d)(13), (d)(3)(b); 8 CFR §§ 212.16, 214.11(j). 28. 8 USC § 1182(d)(3)(B); 8 CFR § 212.16(b). 29. 8 USC §§ 1182(a)(3), (10)(c), (10)(e); 8 CFR § 212.16(b). 30. 8 CFR § 214.11(l)(4). 31. 8 CFR § 214.11(p). 32. 8 CFR § 214.11(o); Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2 (April 15, 2004). 33. 8 CFR § 214.11(o)(3). 34. 8 CFR §§ 214.11(d)(8),(d)(9), 241.6(a). 35. 8 CFR § 214.11(d)(9). 36. 8 CFR § 214.11(s). 37. 8 USC § 1255(l); 8 CFR § 245.23. 38. 8 CFR § 245.23(a),(g). 39. 8 CFR § 245.23(a). 40. 8 USC § 1184(o)(2); 8 CFR § 245.23(l). 41. 8 CFR § 245.23(b). 42. 8 USC § 1427, 1429. 43. 8 CFR § 1422 et seq. Janet B. Beck has been certified in Immigration and Nationality law by the Texas Board of Legal Specialization since 1995 and has been practicing immigration law since 1987. She is currently a Clinical Assistant Professor at the University of Houston Law Center, supervising law students in the Immigration Clinic. She also teaches a class in Immigration Law and Business at the Law Center.
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