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Trafficking in Persons

Mar 2003

Trafficking in persons, or human trafficking, is fast becoming the largest illegal industry in the world, exceeding both drug and gun trafficking. In June 2002, in its second annual Trafficking in Persons Report, the U.S. State Department concluded that globally between 700,000 and four million people a year are bought, sold, transported and held in slave-like conditions for sex and/or labor exploitation. It is estimated that in this country over 50,000 women and girls are trafficked each year, as well as unknown numbers of men and boys.

Trafficking in persons is today’s form of slavery. Although the media would have us believe it is all about the sex trade, many trafficked persons are used for labor. Through coercive or deceptive practices, vulnerable people are recruited and transported across borders into forced labor and servitude as domestic, agricultural and factory workers. In response to this growing epidemic, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”) to enable prosecution and punishment of traffickers and ensure protections for victims. The VTVPA uses the phrase “severe form of trafficking in persons” which it defines as:

Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform the act is under 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, debt bondage, or slavery.

While primarily a prosecutorial device aimed at combating trafficking through increased law enforcement, the VTVPA provides much needed help to those victims of trafficking who are willing to assist the government in its investigation and prosecution of traffickers. The VTVPA also allows victims to apply for new nonimmigrant visas, the T and U visas, that provide authorized stay in the United States, employment authorization, and the ability to apply for adjustment of status from nonimmigrant to permanent resident after three years.

However, none of these protections are available unless the victim is willing and brave enough to go to the authorities, report the crime, and assist in the investigation and prosecution of the trafficker. Traffickers are known to isolate their victims by telling them that they will be arrested and deported if they go to the authorities, threatening them and their families, and taking their passports and other forms of identification. Many victims do not speak English, have no money or supports in this country, and have a tremendous fear of government – not unreasonable, given the conditions many left at home and our treatment of immigrants since the events of September 11. Until the authorities and victim services providers recognize the scope and severity of the tragedy, the number of victims willing to come forward to find protection in the law will continue to be negligible.

And even then, the VTVPA places heavy burdens on the victim before providing any benefits or protections. In exchange for cooperation, victims may be entitled to a number of federal and state benefits and services to which immigrants with refugee status are entitled, but only after being certified by the U.S. Department of Health and Human Services. Certification requires that the victim has been willing to assist in every reasonable request and has made a bone-fide application for a T visa or has been granted “continued presence” status by the US Attorney General. The T visa application requires proof through extrinsic evidence that the applicant is a victim of a “severe form of trafficking in persons,” has reasonably complied with the government’s reasonable requests for assistance, and would suffer extreme hardship involving unusual and severe harm if removed. The U visa, which applies to non-citizens who suffer substantial physical or mental abuse resulting from a wide range of enumerated crimes, including domestic abuse, similarly requires significant proof of harm and assistance to the government.

To date, the INS has issued only interim regulations for implementation of the T visa applications. Of the 98 reported applications filed since the law took effect, the INS has granted only 15; most are still pending. Without regulations and a push from the top to implement this law, it is unlikely that the VTVPA will have much effect.

Moreover, on March 1, 2003, the INS will cease to exist. As a result of the Homeland Security Act, signed into law by President Bush on November 25, 2002, the INS and its 36,000 employees will be redeployed, along with 22 other federal agencies and 170,000 federal workers, to the new Department of Homeland Security. The INS’s two components, immigration enforcement and citizenship services (such as processing residency and citizenship applications), will be split into separate bureaus.

The mission of the Department of Homeland Security is to “prevent terrorist attacks within the United States; reduce the vulnerability of the United States to terrorism; and minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States.” Nevertheless, by including the immigration functions of the INS within its jurisdiction, Congress has committed the new agency to providing timely and efficient immigration services, and to protecting those non-citizens within our borders who are not here to do any harm.

It is expected that it will take a year before the Department of Homeland Security is up and running. In the interim, the backlogs, processing delays, and general bureaucratic delays that currently plague the INS will only become exacerbated unless there is an increase in funding and support for citizenship services. The agency cannot ignore immigration-related humanitarian protections, such as the VTVPA, which was enacted, in part, to protect victims of trafficking. However, without adequate funds, staff, and regulations in place to enforce it, the VTVPA will be a meaningless statute.

Congress and the Department of Homeland Security must balance the need for national security with our country’s history of welcoming and protecting immigrants in need. In New York and elsewhere around the country, local law enforcement personnel, social service providers and immigrant advocates are beginning to work together to heighten awareness and recognition of trafficking, and to coordinate services so that the benefits and protections become more accessible to victims. Unfortunately, the creation of the Department of Homeland Security with its emphasis on anti-terrorist enforcement does little towards developing effective immigration reform that distinguishes between terrorists and immigrants and even less towards eradicating trafficking within our borders.

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