Relief for Trafficking Victims

Reprinted with permission from Immigration & Nationality Law Handbook (2002-03 ed).

Copyright (c) 2002 American Immigration Lawyers Association

RELIEF FOR TRAFFICKING VICTIMS

By Gail Pendleton[*]

Congress contemplated that victims of human trafficking would need swift access to protection and benefits, so it created a certification process for receiving benefits and two forms of immigration relief. The “continuous presence” status is designed to ensure applicants’ swift access to benefits, shelter and protection. The T visa provides a route to secure immigration status. Since the definition of human trafficking is central to both forms of relief, this section begins with a review of the law and regulations’ treatment of this new concept in the immigration law. The rest of the section follows victims of trafficking chronologically through the process, starting first with HHS certification for benefits. The process for obtaining “continuous presence” precedes a description of the T visa eligibility requirements and application process.

A. Trafficking Definition

Only victims of “severe forms of trafficking” are eligible for relief under the Trafficking Act. [1] Severe forms of trafficking are:

(A)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

(B)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.[2]

The preamble to the first set of regulations on the trafficking provisions, which addressed “continuous presence” and access to services and public benefits, discuss the difference between being smuggled and being trafficked.[3] Except for sex trafficking of minors,[4] trafficking must be by a particular means and for particular ends.[5] Those smuggled in may become trafficking victims if, “for example, after arrival the smuggler uses threats of serious harm or physical restraint to force the individual into involuntary servitude, peonage, debt bondage or slavery. Federal law prohibits forced labor regardless of the victims initial consent to work.”[6]

One question for those who may fit under either prong is “What constitutes fraud or coercion.” Does psychological coercion count? The statutory definition includes (a) threats of serious harm to or physical restrain against nay person, (b) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against the person, and (c) the abuse or threatened abuse of the legal process.[7] The second prong, in particular, appears to contemplate psychological coercion. The preamble to the T visa regulations indicate that INS will recognize psychological coercion, citing the legislative history of the new forced labor crime at VTVPA § 103(5),[8] but the regulation itself cites authority that limits consideration of psychological coercion.[9]

For those who fit in the labor exploitation prong, one potentially controversial question is “What acts are sufficient to show ‘purpose to subject someone to involuntary servitude, peonage, debt bondage or slavery?’” Will it cover someone brought in to work in an exploitive sweatshop? Will it cover a nanny brought in to take care of children who is never paid, kept incommunicado from those around her and threatened with being reported to INS if she attempts to leave?

The T visa regulations define “peonage” as “a status or condition of involuntary servitude based upon real or alleged indebtedness;[10] the statute defines only “debt bondage” and “involuntary servitude.” Debt bondage is the condition of a debtor who pledged his or her personal services in security for debt but whose services are not reasonably applied toward relieving the debt, or the length and nature of the services are not limited and defined.[11] Involuntary servitude is defined as (a) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint or (b) the abuse of threatened abuse of the legal process.[12]

Since the VermontServiceCenter personnel who adjudicate VAWA petitions will interpret these phrases, the answer to these questions may be “yes.” These personnel already have received training on the various manifestations of trafficking and appear to understand that coercion need not be physical and that traffickers may be individuals as well as members of organized criminal conspiracies.[13]

B. HHS Certification for Public Benefits

Noncitizens certified by the Department of Health and Human Services (HHS) are eligible for the same public benefits as refugees.[14] HHS has delegated certification authority to the Office for Refugee Resettlement (ORR), which has placed relevant documents on its website.[15] Those under 18 do not need such certification to be eligible for these benefits, although ORR does issue letters explaining their eligibility for public benefits. [16]

To be eligible for certification, noncitizens must be:

(1) willing to assist in every reasonable way in the investigation and prosecution of severe forms of trafficking in persons and either:

(A) has made a bona fide application for a visa under 101(a)(15)(T) that has not been denied; or

(B) is a person whose continued presence in the United States the Attorney General is ensuring in order to effectuate prosecution of traffickers in persons.”[17]

The certification is useful primarily for those who have not filed T visa applications or who have not yet received a bona fide notice from the Vermont Service Center (see section IV.D. below for discussion of T visas). These noncitizens must obtain interim relief from INS, because their continued presence is necessary for prosecuting traffickers.

There appears to be no formal process for obtaining certification from ORR yet, but the documents on ORR’s website provide phone numbers for various entities to call to initiate the process.[18] As of November 6, 2001, child eligibility and adult certification letters do not expire. Certifications issued prior to that date expire after eight months, but ORR indicates it will reissue such certifications without expiration dates.[19]

ORR letters should satisfy public benefits agencies, although applicants may lack identification documents.[20] HHS has established a trafficking victim verification line for agencies to use instead of the INS Systematic Alien Verification for Entitlements (SAVE) system.[21] According to ORR, agencies must help applicants obtain non-work social security numbers and may not deny them benefits, such as Temporary Assistance for Needy Families (TANF), Medicaid or Food Stamps while the application is pending.[22]

C. Continued Presence

The regulations on the protection and assistance provisions of the trafficking statute state that INS may use parole, voluntary departure, stays of removal, “section 107(c)(3)-based deferred action, or any other authorized form of continued presence. . .”[23] Those granted 107(c)(3)-based deferred action are considered present pursuant to a period of stay authorized by the Attorney General and therefore do not accrue unlawful presence for purposes of INA §§ 212(a)(9)(B).[24] INS has issued guidance to the field instructing them to use existing authority, such as deferred action, parole and stays of removal, to prevent removal of “possible victims” (see section III on U visas for more on this “interim” process).[25]

The INS guidance also contains guidelines for local INS offices to certify that a noncitizen is a victim of trafficking and is willing to assist in INS investigations and prosecutions of traffickers.[26] One major drawback of continued presence status is that the guidance explicitly states that it is effective only as long as the noncitizen’s continued presence “is necessary to effectuate prosecution of traffickers in persons.”[27] Since ORR is issuing certifications without expiration dates, will INS decide whether continued presence is required when interim relief is up for renewal? Will it refer for removal those whose continued presence it does not deem necessary?

Interim statuses such as deferred action, parole and stays of removal provide minimal protections for noncitizens. Combined with the possibility of INS refusing to extend such statuses based on its own assessment of whether someone is necessary for a prosecution, noncitizens with continued presence should consider whether they qualify for the new T visa. If they do, they should file T visa applications well before the expiration date of their interim status arrives.

D. The T Visa

On January 31, 2002, the Department of Justice (DOJ) issued interim regulations governing the new nonimmigrant T visas.[28] The good news is that the VermontServiceCenter, which adjudicates all VAWA self-petitions, will also adjudicate all T visa applications. The bad news is that the regulations require a level of federal law enforcement involvement and filing deadlines not mandated by the statute. They may, however, allow Vermont enough leeway to grant visas to all those Congress intended to benefit from the new law.[29]

1. Eligibility Requirements

To be eligible for a trafficking visa, a noncitizen must show that she or he is or has been a victim of a severe form in trafficking, is physically present in the U.S. or at a port of entry on account of trafficking, has complied with any reasonable request for assistance in investigating or prosecuting trafficking (if 15 or older), and would suffer extreme hardship involving unusual and severe harm upon removal.[30] The regulations do not provide a general definition for the any credible evidence standard,[31] but practitioners should peruse the INS memo addressing this standard in the VAWA context.[32]

The regulations add an extra eligibility requirement: that applicants have contacted a federal law enforcement agency (LEA).[33] There no explicit statutory requirement that applicants contact law enforcement agencies, and many applicants may receive help from state or local law enforcement officers, whose endorsements should satisfy the statutory requirements as much as a federal LEA will. This may be an issue the courts will resolve if INS does not eliminate this ultra vires requirement in the final regulations.

In the mean time, applicants may comply with this requirement by contacting INS, the FBI, the local US Attorneys Office or the Civil Rights Division of the Department of Justice. Trafficking victims attempting to receive interim relief while awaiting the T regulations have not had uniformly positive experiences with any of these agencies. Contacting the Civil Rights Division’s Trafficking in Persons and Worker Exploitation Task Force complaint hotline should satisfy this extra requirement.[34]

a. Victim of Severe Form of Trafficking

T visa applicants satisfy this requirement by showing INS granted continued presence based on trafficking, by providing a federal law enforcement agency endorsement, or by providing sufficient credible secondary evidence.[35] Although a federal LEA endorsement is not required, it is primary evidence that the applicant meets the “victim” requirement. LEAs must use Supplement B to the I-914 T visa application form.[36] Those who plan to use LEAs should read the special form closely, as well as the sections of the regulations governing their content.[37]

The documents from an INS grant of continued presence are also primary evidence of victim status.[38] Credible secondary evidence should explain why there is no primary evidence, include the applicant’s “original statement indicating that he or she is a victim of a severe form of trafficking,” should demonstrate good faith attempts to obtain an LEA endorsement, and should include other secondary evidence. The regulation provides a non-exhaustive list of secondary evidence that focuses on prosecutorial evidence, but notes that petitioners may submit “affidavits of other witnesses.”[39]

b. Physically Present On Account of Trafficking

This is another area where the regulations apply a creative interpretation of the statutory language. They state that an applicant must show she is (1) being subjected to trafficking now, (2) was “recently liberated” from such trafficking, or (3) is here because of past trafficking and her continued presence in the United States is “directly related to the original trafficking in persons.”[40] Unless INS applies a liberal standard for evaluating evidence under the third prong, the regulations will effectively limit T visas to those whose connection to trafficking is very recent. They also will penalize trafficking victims who manage to escape the perpetrators.

Those who manage to escape on their own, without federal law enforcement assistance, must meet a higher standard. They must show that they “did not have a clear chance to leave the United States” in the time between escaping their traffickers and receiving assistance from an LEA.[41] To meet this standard, those assisting T visa applicants should rely heavily on the regulations’ non-exhaustive list of “circumstances attributable to the trafficking in persons situation,” such as “trauma, injury, lack of resources, or travel documents that have been seized by the traffickers.”[42] Since several of the Form I-914 questions relate to this eligibility requirement, applicants should take care in filling it out.[43] Review of the special extreme hardship factors may prove helpful too (see section IV.D.1.d below for extreme hardship discussion). For instance, concern that traffickers might harm family members should be a relevant “circumstance.”

c. Complied with Reasonable Requests

Children under fifteen need not meet this requirement, but must prove their age. Primary evidence is a certified copy of their birth certificate, passport or certified medical opinion.[44] Secondary evidence must comply with 8 CFR §103.2(b)(2)(i).[45] For those fifteen or older, an LEA endorsement is primary evidence of compliance, although INS may contact the LEA if it believes an applicant has not complied with reasonable requests.[46] Secondary credible evidence is similar to that for proving the applicant is a victim, focusing on why the applicant does not have an LEA.

Applicants also may show that requests were not reasonable, although the regulation on proving compliance fails to mention this.[47] One must read the definition section to find this helpful language:

The “reasonableness” of the request depends on the totality of the circumstances taking into account general law enforcement and prosecutorial practices, the nature of the victimization, and the specific circumstances of the victim, including fear, severe traumatization (both mental and physical) and the age and maturity of young victims.[48]

At a recent conference, INS personnel indicated that they would not necessarily consider every request made by law enforcement reasonable.[49] For example, they pointed out that forcing a victim to wear a wire and to meet with the trafficker might well be an unreasonable request, given the context of the situation for the victim. This “totality of the circumstances” analysis will be crucial in such situations. Using the T visa as leverage for manipulating trafficking victims harms the victims and undermines Congressional intent, since trafficking victims will not avail themselves of the protections of the criminal justice system if doing so further victimizes them. Any request that subjects a trafficking victim to further victimization, whether at the hands of the trafficker or at the hands of the criminal justice system, is inherently unreasonable. Explain what happened in detail and argue that the statute does not require compliance with such requests.

d. Extreme Hardship

The regulations note that the T visa extreme hardship standard is higher than extreme hardship under 8 CFR §240.58 because it involves “unusual and severe harm.”[50] Hardship to people other than the applicant is irrelevant,[51] and “current or future economic detriment, or the lack of, or disruption to, social or economic opportunities” will not be sufficient.[52] In addition to “traditional extreme hardship factors,” INS will consider factors associated with the trafficking context. Applicants should “describe and document all factors that may be relevant; no particular factors guarantee a positive finding.[53] The non-exhaustive list of such factors includes:

(i) The age and personal circumstances of the applicant;

(ii) Serious physical or mental illness of the applicant that necessitates medical or psychological attention not reasonably available in the foreign country;

(iii) The nature and extent of the physical and psychological consequences of severe forms of trafficking in persons;

(iv) The impact of the loss of access to the United States courts and the criminal justice system for purposes relating to the incident of severe forms of trafficking in persons or other crimes perpetrated against the applicant, including criminal and civil redress for acts of trafficking in persons, criminal prosecution, restitution, and protection;

(v) The reasonable expectation that the existence of laws, social practices, or customs in the foreign country to which the applicant could be returned would penalize the applicant severely for having been the victim of a severe form of trafficking in persons;

(vi) The likelihood that the trafficker in persons or others acting on behalf of the trafficker in the foreign country would severely harm the applicant; and