By Patricia L. Medige, Colorado Legal Services
Introduction
Your office receives a report that a group of construction workers was recruited from a Latin American country to work in a nearby town, but when they arrived, there was little work and they were stranded, without money to leave.
A community advocate reports that a fourteen-year-old girl is living with her uncle and aunt and is being forced to be a servant and nanny against her will.
A domestic violence advocate contacts your office about a woman brought from an Asian country to marry a U.S. man who is now extremely violent and controlling, subjecting her to sexual abuse and battering.
Are these cases human trafficking? Each example demonstrates some of the red flags that are indicators of possible trafficking, and each is an example of a case that has been reported to Colorado Legal Services and other legal aid offices. However, much more information is required before determining whether any of these involves human trafficking.
This article will review the definitions of human trafficking, the types of immigration relief that might be available to survivors of trafficking, and the rules that allow Legal Services Corp.-funded programs to represent survivors of trafficking regardless of immigration status.
The Trafficking Victim Protection Act
Human trafficking has received considerable media attention in the past decade, and the term often is incorrectly used. Very simply put, the term refers to involvement against one’s will in a highly exploitive labor and/or commercial sex activity, or any situation where a child is induced to participate in a commercial sex activity.
Under the federal Trafficking Victims Protection Act (TVPA), which was enacted in 2000, human trafficking is comprised of sex trafficking and labor trafficking.[1] Sex trafficking is the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.[2] The term “severe trafficking in humans,” which triggers many protections under the TVPA, includes 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.[3] Labor trafficking is defined as “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 slavery.”[4]
The TVPA is significant in that it does not require the use of physical force for the exploitation to be a severe form of trafficking. The definitions specifically include “fraud” and “coercion” as means in which traffickers can enslave their victims.[5] “Coercion” means threats of serious harm to or physical restraint against any person; 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 any person; or the abuse or threatened abuse of the legal process.[6] These definitions are significant because there are many scenarios in which an individual is victimized without physical force ever being used. They may be threatened with deportation, harm to their family members, law enforcement arrest and retaliation, to name a few.
Further, human trafficking is not the same as human smuggling. Human smuggling involves an agreement to facilitate an entry into the country without permission. Human trafficking can begin as smuggling, but becomes trafficking when some further controlling conduct is involved, placing the victim into a slavery-like situation.
Finally, victims can be U.S. citizens, lawful residents, or persons otherwise present in the U.S. with permission, as well as unauthorized immigrants. Traffickers can be subject to federal criminal charges and survivors have a private right of action to sue their traffickers, as well as possible immigration relief and eligibility for certain public benefits.
In the above construction worker scenario, the situation would look more like trafficking if the workers were unpaid for their work and were tricked or coerced into staying, such as through fears of deportation, threats of harm to themselves or their family members, withholding of documents, or other restrictions on their freedom of movement, to name a few possibilities. One would examine the situation of the young girl living with her uncle, to determine the details of how she is being held and forced to work against her will. Sexual abuse by a spouse alone does not constitute sex trafficking, if there is not a commercial sex element to it. But in the spousal case, other factors might point to forced labor, or, even if there is not human trafficking, there might be other relief for the victim as the abused noncitizen spouse of a U.S. citizen.
T-Visas, U-Visas and Other Possible Immigration Relief
Federal laws provide a safety net for survivors of human trafficking who assist law enforcement, through a temporary visa called a “T-visa.” Another similar visa, called a “U-visa,” is available to victims of human trafficking and certain other crimes who cooperate with law enforcement. Child victims of human trafficking may be eligible for a quicker path to residency than the T-visa, called Special Immigrant Juvenile Status, or SIJS, which is available to certain abused, abandoned, and neglected non-citizen children who are declared dependents of a state juvenile court. Depending on the circumstances, other forms of relief may be available as well, such as the VAWA self-petition for certain spouses, children and parents of U.S. Citizen or lawful permanent resident abusers or asylum for those fleeing persecution in another country.
T-Visa: The T-visa is a four-year visa that gives the holder the right to live and work in the U.S. T-visa holders are eligible to apply for lawful permanent residence (“green card”) after three years with the visa, or sooner if the related investigation or prosecution is complete.
A T-visa applicant must demonstrate that he or she: 1. Is or has been a victim of a severe form of trafficking in persons; 2. Is physically present in the U.S. on account of such trafficking, including those who have been allowed entry into the U.S. for participation in an investigative or judicial process associated with trafficking; 3. Has complied (with some exceptions) with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking related crimes (or that the victim has not attained 18 years of age); and 4. Would suffer extreme hardship involving unusual and severe harm in the event of removal.[7]
The statute also provides for derivative status for certain family members.[8] If the primary T-visa applicant (trafficking victim) is an adult over 21, any spouse or children under 21 of that applicant can apply as derivatives. If the primary T-visa applicant (trafficking victim) is under 21, their spouse, children, unmarried siblings under age 18 (at the time of application) and parents can apply for a T-visa as derivatives.[9]
An experienced immigration attorney should always be involved in the T-visa process. Legal advocates who are not familiar with human trafficking should try to identify local or state anti-trafficking networks, including immigration attorneys, to provide support to victims.
U-Visa: The U nonimmigrant classification (“U visa”) is available to noncitizen victims of certain criminal activity, including human trafficking, who help government officials in investigating or prosecuting such criminal activity. The express purpose of the U Visa is “to strengthen the ability of law enforcement agencies to investigate and prosecute such crimes as domestic violence, sexual assault, and trafficking in persons, while offering protection to alien crime victims in keeping with the humanitarian interests of the United States.”[10]
Like the T-visa, the U-Visa results in permission to work and live in the U.S. for four years, as well as the ability to obtain U visa status for certain “derivative” family members. Also like the T-visa, the U-visa provides eligibility for permanent resident status after three years. However, the eligibility requirements for the U are different from the T, and there is a wider range of qualifying crimes. An experienced immigration attorney should help the survivor assess which form of relief is best.
A U-visa applicant must demonstrate that: 1. She or he has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity (defined below); 2. That she or he possesses information concerning the relevant criminal activity (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien possesses this information); 3. That she or he (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to Federal, State, or local authorities investigating or prosecuting the relevant criminal activity; and 4. That the relevant criminal activity violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States.[11]
“Qualifying” criminal activity includes: one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; [human] trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes.[12]
In the case of a U-visa petitioner who is 21 years of age or older, his or her spouse and children under 21 may qualify for derivative status. If the crime victim/petitioner is under 21 years of age, the petitioner’s spouse, children, unmarried siblings under 18 at the time of application and parents may qualify for U nonimmigrant status as “derivatives.”
Neither of these visas is a quid pro quo between law enforcement agencies and victims. They are a way of stabilizing the status of a victim who is assisting law enforcement in investigating or prosecuting such crimes.
What Legal Services Can Do
The Legal Services Corp. has made it very clear that LSC-funded programs generally may represent victims of human trafficking, domestic violence and other U-visa crimes without regard to immigration status. LSC Program Letter 06-2 provides that LSC-funded programs may use LSC or other funds to represent U-visa eligible individuals, prepare VAWA self-petitions and otherwise represent domestic violence victims and victims of other U-visa crimes, without regard to immigration status.[13] This representation, however, is limited to representation in matters “directly related” to the prevention of, or obtaining relief from the crime. This requires an individualized assessment of the facts and legal matters.
The permissible representation of trafficking victims is even broader. While Program Letter 06-2 applies to trafficking victims, a separate program letter, 05-2, also remains in effect, and governs representation of trafficking victims. It allows for representation of trafficking victims in any legal matter, if within the program’s priorities and not otherwise restricted. Representation is limited to victims of trafficking who are seeking certification — official recognition by the federal government that they are trafficking victims.[14] The program cannot continue representation if this certification is denied, but representation still would be allowed for the individual as a U-visa crime victim, if the representation were related to the prevention of, or obtaining relief from, the crime. All of the cases discussed in these two program letters may be brought using LSC funds and counted as LSC cases.
Conclusion
Legal Services advocates should be alert to potential human trafficking regardless of their areas of practice. Human trafficking occurs in all parts of the country and exploits U.S. citizens and noncitizens alike. A range of helpful materials are available to advocates who are interested in learning more about human trafficking. For example, Freedom Network (USA), a coalition of 25 non-governmental organizations that provide services to, and advocate for the rights of, trafficking survivors, is a leading network supporting the rights of trafficked people.[15]
Patricia L. Medige, Esq. is a Senior Attorney with Colorado Legal Services, Denver, where she specializes in workers’ rights and immigrant crime victim advocacy. Previously she served for ten years as the Managing Attorney of CLS’s Migrant Farm Worker Division. She also serves as a founding board member of the Rocky Mountain Immigrant Advocacy Network, Colorado’s only nongovernmental organization dedicated exclusively to serving men and women in immigration detention and immigrant children who have suffered from abuse, neglect, or violence.
Colorado Legal Services is a statewide legal services program with 15 offices.
[1] 22 U.S.C. § 7101 (b)(2), (3)
[2] 22 U.S.C. § 7102 (9).
[3] 22 U.S.C. § 7102 (8) (A).
[4] 22 U.S.C. § 7102 (8)(B).
[5] 22 U.S.C. § 7102 (8)(A), (B).
[6] 22 U.S.C. § 7102 (2).
[7] INA § 101(a)(15)(T) (i), [8 U.S.C. § 1101(a)(15)(T)(i)].
[8] INA § 101(a)(15)(T) (ii) [8 U.S.C. § 1101(a)(15)(T)(ii)].
[9] Id.
[10] “New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status,” Interim rule, Summary, 72 Fed. Reg. 53014 (Sept. 17, 2007).
[11] INA § 101(a)(15)(U)(i) [8 U.S.C. § 1101(a)(15)(U)(i)].
[12] INA § 101(a)(15)(U)(iii) [8 U.S.C. § 1101(a)(15)(U)(iii)].
[13] Program Letter 06-2, found at http://www.lsc.gov/pdfs/progltr06-2.pdf.
[14] Program Letter 05-2, found at http://www.lsc.gov/program/pl/pl2005-2.pdf.
[15] For more information, see http://www.freedomnetworkusa.org. Colorado Legal Services is a Freedom Network Member.
