Abused, Blamed, and Refused: Protection Denied to Women and Children Trafficked Over the U.S. Southern Border

The current U.S. administration asserts that its border policies are designed to protect women and children from traffickers. However, its actions tell a very different story. Over the course of the last two years, the administration has failed to protect trafficking victims, as reflected in a dramatic increase in denials of visas for them, resulting from a new and highly restrictive interpretation of requirements under the Trafficking Victims Protection Act. A review of all published appeals of applications for visas for victims of trafficking since 2017 shows that the administration’s decision-making has been particularly dismissive of claims by women and children who have been trafficked over the southwestern border, and has effectively blamed them for their own victimization. Recently implemented policies also scare survivors from coming forward to report abuse and even push them into the hands of traffickers.

In 2000, Congress passed the Trafficking Victims Protection Act (TVPA), which created T visas for victims of severe labor or sex trafficking.[1] Beyond proving that they have been forcibly transported for commercial sex or involuntary servitude, T visa applicants also must comply with reasonable requests to assist law enforcement in investigating and prosecuting their traffickers. In addition, they must prove they are physically present in the United States on account of trafficking, and that they would face “extreme hardship involving unusual and severe harm” if removed from the United States. T visas allow victims of trafficking who are in the United States without authorization to legalize their status and petition for the legal entry of certain family members. They also provide access to work permits and federally funded health and other benefits. Congress capped the number of T visas at 5,000 per year, but never more than one-third of that total have been provided in any given year. 

From 2005 to 2016, each time Congress reauthorized the TVPA and the Department of Homeland Security (DHS) revised its implementing regulations, the pool of applicants eligible for T visas was widened. New groups of applicants included farm laborers recruited abroad and subsequently underpaid and housed in unacceptable conditions, and young women lured to the United States by relatives or marriage partners who abused them and subjected them to domestic servitude. New and expanded provisions also provided access to T visas for children kidnapped and enslaved by narco-traffickers working along the U.S. southern border.[2] Among other liberalizing elements, the 2016 DHS regulations loosened the evidentiary standard to meet eligibility requirements for T nonimmigrant status.[3]

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Just after the liberalized regulations went into effect in January 2017, however, the T visa denial rate began to rise. Whereas the denial rate for victims of trafficking for the period October–December 2016 was 19 percent, that figure had grown to 46 percent by the first quarter of fiscal year 2019 (see figure 1).[4] 

Available data indicate that, in addition to an increase in overall denials, applicants from Mexico, El Salvador, Guatemala, and Honduras have been disproportionately impacted. In 2017, the T visa denial rate for applicants from these countries was 39 percent, whereas for applicants from elsewhere, it was 17 percent. In 2016, comparable figures were 29 percent and 14 percent, respectively.[5] Thus, although denial rates increased for both groups between 2016 and 2017, the rate of increase of visa denials for applicants from Mexico, El Salvador, Guatemala, and Honduras was far higher than the rate of increase of visa denials for applicants from elsewhere.[6]

Rejection of trafficking visa applications since 2017 is based on new, overly narrow, and harsh interpretations of the standards required to meet the definition of a victim of severe forms of trafficking. 

For example, U.S. Citizenship and Immigration Services (USCIS), the branch of DHS that handles applications for T visas, has become very dismissive of claims of forced labor in stash houses. USCIS also dismisses most cases in which applicants have paid smugglers, regardless of how applicants were later victimized. Some decisions reveal a reluctance to consider victims of domestic violence as victims of trafficking, even when there are clear elements of compulsion, including involuntary servitude that would indicate trafficking. Recent decisions also demonstrate a reluctance to recognize the need for victims to remain in the United States due to the trauma they experienced, as the law’s regulations permit. In determining whether an applicant has been trafficked, recent USCIS decisions have also relied on incomplete and cursory Customs and Border Protection (CBP) interviews rather than assessments by medical professionals, the Department of Health and Human Services, or even the State Department. Many of these actions are in conflict with accepted best practices for protecting victims of trafficking, including those of the United Nations Office on Drugs and Crime (UNODC), which has endorsed a definition of trafficking that “capture[s] all forms of exploitation…encountered in practice.”[7]

In addition, Immigration and Customs Enforcement (ICE) has not opened up enough investigations in response to requests by T visa applicants, leading adjudicators to dismiss applicant accounts without having factually based alternatives. Instead of investigating the traffickers who T visa applicants have brought to their attention, DHS investigators, overly concerned with fraudulent applications, focus their attention on multiple interviews with T visa applicants and sometimes their service providers and family members.

Moreover, since 2017, the Trump administration has instituted several policies that further increase denials of T visa applications and discourage victims from reporting their trafficking and accessing the public benefits they (and their children) need.[8] These policies include the deputizing of local police for immigration enforcement and ICE arrest of undocumented victims at courthouses and shelters. Moreover, increased USCIS issuance of requests to applicants for additional evidence in T visa cases has prolonged the time it takes to adjudicate them. Thus, some people with T visa applications or pending appeals have been deported, especially because the Attorney General put in place policies to limit immigration judges from granting continuances in removal proceedings. USCIS is also making it more difficult for survivors to obtain fees waivers related to expensive waiver of inadmissibility applications they must file with most trafficking visa applications; this violates Congress’s intent to make relief available to all survivors regardless of income. Finally, USCIS has begun issuing “Notices to Appear” to those applicants to whom it has denied T visas, thus targeting them for removal. 

In addition, Refugees International is deeply concerned that the administration’s metering and “Remain in Mexico” policies at the border have pushed Central American asylum seekers into the hands of traffickers in Northern Mexico. President Trump’s recent threats to shut the border completely and eliminate asylum altogether have led more Central American families to leave home before harsher policies are put in place and cross the border between ports of entry, further increasing business for smugglers.[9]

The Trump administration’s rhetoric and the activities of some DHS personnel conflate Central American families with the criminals and smugglers who exploit them, belying professed “grave” concern for vulnerable women and children.[10] Decisions by the USCIS Administrative Appeals Office (AAO), which handles appeals in T visa cases, reveal a disregard for the well-being of women victims of rape in circumstances related to trafficking. At the end of 2018 and the beginning of 2019, the AAO issued decisions denying T visas to women who were raped and threatened with forced prostitution by their smugglers while crossing the border and on the American side.[11] These decisions were made at a time when President Trump repeatedly spoke about the need to build a border wall to save women from being bound, taped, and trafficked over the border.[12] Reports also emerged of sexual assault of migrants by CBP and ICE personnel.[13] 

American anti-trafficking policy has always been limited in its ability to protect migrants.[14] Since 2017, however, the Trump administration has been rolling back protections that advocates, Congress, and previous DHS adjudicators and personnel had worked to implement in the previous decade. The Trump administration should quickly reverse course if it is serious about protecting the victims of trafficking. The Department of Justice (DOJ) and DHS each have essential roles to play, as do state and local officials along the U.S. southern border. For its part, Congress must vigorously assert its oversight function. 

Recommendations: Positive Approaches and a Better Way Forward

To the Department of Homeland Security, including USCIS and ICE 

  • Interpret T visa regulations such that applicants found to be victims of trafficking and experiencing ongoing trauma and the need for a variety of services are permitted to remain in the United States; abide by existing regulations directingDHSto broaden its definition of involuntary servitude when assessing T visa applications. 

  • In assessing T visa applications, place more evidentiary weight on certifications of victimization by the State Department, which is charged with assessing and responding to trafficking all over the world; and the Department of Health and Human Services―thesole federal agency authorized to certify that foreign victims of human trafficking are eligible for specified benefits. 

  • In assessing T visa applications, abide by the best practices and guidance that UNODC provides for assessing consent, the purpose of exploitation,and evidentiary requirements in trafficking cases. 

  • Revoke policies and reverse practices regarding notices to appear and not issuing fee waivers that discourage and make it more difficult to apply for T visas. 

  • Allocate more resources to USCIS to reduce adjudication times in T visa cases.

  • Reinstate trainings on the relationship between trafficking and domestic violence. The USCIS Office of Policy and Strategy should put out guidance on this issue for adjudicators. 

  • Do not arrest undocumented immigrants at courthouses or the offices of service providers; this practice limits the ability of immigrant survivors to secure justice and access needed services.[15]

  • Ensure that Border Patrol agents receive training on how to advise victims of trafficking about how to apply for T visas.

  • Require Homeland Security investigators detailed to the border to investigate smuggling and trafficking to inform all identified victims that they can apply for T visas and can access housing, transportation, education, and health care services.

  • Direct the DHS Office of Civil Rights and Civil Liberties to prepare and publish a report on filed complaints received regarding the handling of T-visas.

  • Direct the DHS Office of the Inspector General to report on USCIS handling of T visa applications. 

 

To the Department of Justice, including the Attorney General

  • Make clear that immigration judges should grant continuances so trafficking survivors can have their T visas fully adjudicated.

  • Invite external researchers to give presentations on trafficking to better direct interagency discussions on the relationship between smuggling and trafficking, the motives of traffickers, and their exploitation of migrants. 

  • Direct that the Human Trafficking Protection Unit of the DOJ investigate and report on the impact of DHS border enforcement practices on the well-being of trafficking victims and their ability to obtain relief.

 

To Members of Congress

  • Require DHS and DOJ to report on how U.S.-Mexico anti-human trafficking initiatives consider the needs of trafficking victims.

  • Conduct investigatory hearings into how CBP and ICE handle victims of smuggling and trafficking found in the course of enforcement actions. 

  • Request copies of written policies or standard operations/protocols that DHS and ICE personnel follow in their anti-smuggling and anti-trafficking investigations at the border, including policies regarding handling victims and their family members residing in the United States and abroad; to the extent possible, request that such policies be made public. 

  • Require that USCIS publicly disclose the number of T visa applications and appeals in T visa cases that prompted Requests for Evidence.

  • Request that USCIS provide to Congress any internal policy guidance regarding the making of decisions in T visa cases involving hired smugglers, applicants who crossed the southwestern border, unaccompanied minors, or applicants from Central America; to the extent possible, request that such policies be made public. 

  • Request a Government Accountability Office report about the performance of USCIS, including the AAO, in handling T visas in light of the analysis in this report regarding recent changes in adjudications.

  

To State and Local Governments

  • Enact laws mandating that law enforcement agencies certify T visa applications promptly and expanding who can certify them to help victims provide evidence of assistance in the investigation and prosecution of trafficking. 

  • Work with nongovernmental organizations that support and provide services to victims of trafficking. These local, victim-centered approaches should continue to be supported by grants from large foundations and DOJ.[16]


Footnotes

[1]The law defined severe trafficking in this way: “(A) the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act that 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 services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”

[2]Gosia Wozniacka, “Little Known Visas Free Immigrants from Abuse,” The Oregonian, July 18, 2009. https://www.oregonlive.com/news/2009/07/littleknown_visas_free_immigra.html; Peter Smith, “‘This is No Way to Survive’: Guatemalan Human Trafficking Victims Gain Green Card and Life Here,” Pittsburgh Post - Gazette; 23 July 2017, A7; Kathryn M. Doan, “The T Visa: Protection for Young Victims of Narco Human Trafficking,” https://www.caircoalition.org/2013/11/04/the-t-visa-protection-for-young-victims-of-narco-human-trafficking.

[3]Kristina Karpinski, “DHS Amends T Nonimmigrant Regulations,” Catholic Legal Immigration Network, accessed May 14, 2019,

https://cliniclegal.org/resources/dhs-amends-t-nonimmigrant-regulations.

[4]The T visa denial rate for victims of trafficking jumped from 21 percent to 25 percent in fiscal year 2017, to 35 percent in fiscal year 2018, and then to 46 percent in the first quarter of fiscal year 2019. The denial rate is calculated by dividing the number of denied applications for victims of trafficking (not including their family members) by the number of resolved applications (approved plus denied).

U.S. Citizenship and Immigration Services, “Number of Form I-914, 2008–2017,” accessed May 14, 2019, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Victims/I914t_visastatistics_fy2017_qtr4.pdf;U.S. Citizenship and Immigration Services, “Number of Form I-914, 2008–2019,” accessed May 14, 2019, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Victims/I914t_visastatistics_fy2019_qtr1.pdf.

David Bier’s data on the T visa denial rate includes also application by family members of trafficking victims. See, figure 3 of David Bier, “Immigration Form Denials Rise Every Quarter Except One Under Trump, Up 80%,” https://www.cato.org/blog/immigration-form-denials-rise-every-quarter-except-one-under-trump-80-overall

[5]Data about T visa grants and denials disaggregated by nationality are not available for 2018 or 2019. 

[6]U.S. Citizenship and Immigration Services, “T-1 applications Filed from Fiscal Year 2008 to 2018 by Nationality…”, accessed May 14, 2019, https://www.uscis.gov/sites/default/files/files/nativedocuments/Form_I-914_Application_for_T_Nonimmigrant_Status.xlsx.

[7]United Nations Office on Drugs and Crime, “The International Legal Definition of Trafficking in Persons: Consolidation of Research Findings and Reflection on Issues Raised,” UNODC, 2018, accessed May 14, 2019, https://www.unodc.org/documents/human-trafficking/2018/Issue_Paper_International_Definition_TIP.pdf.

[8]Jenna Krajeski,“The Hypocrisy of Trump’s Anti-Trafficking Argument for a Border Wall,” The New Yorker, February 5, 2019, https://www.newyorker.com/news/news-desk/the-hypocrisy-of-trumps-anti-trafficking-argument-for-a-border-wall.

[9]David Bier, “Amid Crisis, Ports Process 34% Fewer Central Americans,” accessed May 14, 2019 https://www.cato.org/blog/amid-crisis-ports-process-34-fewer-central-americans;

American Immigration Council et al., “Letter to U.S. Secretary of Defense Kirstjen M. Nielsen,” accessed May 14, 2019,http://americanimmigrationcouncil.org/sites/default/files/general_litigation/letter_urges_sec_nielsen_end_migrant_protection_protocols_policy.pdf;

Sarah Kinosian, “The Booming Business for Smuggling People to the U.S.: ‘Everybody Wins,’”The Guardian,April 9, 2019,https://www.theguardian.com/us-news/2019/apr/08/the-booming-business-for-smuggling-people-to-the-us-everyone-wins.

[10]U.S. Department of Homeland Security,“Secretary Kirstjen Nielsen Statement on Border Emergency,” March 29, 2019,https://www.dhs.gov/news/2019/03/29/secretary-kirstjen-nielsen-statement-border-emergency.

[11]U.S. Citizenship and Immigration Services,“Matter of A-R-M-R-, ID# 1879191 (AAO Dec. 28, 2018),” accessed May 19, 2019, https://www.uscis.gov/sites/default/files/err/D12%20-%20Application%20for%20T%20Nonimmigrant%20Status/Decisions_Issued_in_2018/DEC282018_01D12101.pdf;

U.S. Citizenship and Immigration Services, “Matter of B-J-T-G-, ID# 1810655 (AAO Jan. 7, 2019),” accessed May 19, 2019, https://www.uscis.gov/sites/default/files/err/D12%20-%20Application%20for%20T%20Nonimmigrant%20Status/Decisions_Issued_in_2019/JAN072019_01D12101.pdf;

U.S. Citizenship and Immigration Services, “Matter of Y-M-G-L-, ID# 1810413 (AAO Jan. 16, 2019),” accessed May 19, 2019, https://www.uscis.gov/sites/default/files/err/D12%20-%20Application%20for%20T%20Nonimmigrant%20Status/Decisions_Issued_in_2019/JAN162019_02D12101.pdf.

[12]Katie Mettler, “Trump Again Mentioned Taped-Up Women at the Border. Experts Don’t Know What He Is Talking About,” The Washington Post, January 17, 2017, https://www.washingtonpost.com/politics/2019/01/17/trumps-stories-taped-up-women-smuggled-into-us-are-divorced-reality-experts-say/?utm_term=.b6219bd4fd60.

[13]Manny Fernandez, “Yes, There was Duct Tape: The Harrowing Journeys of Migrants Across the Border, New York Times, Feb. 28, 2019; “‘You have to Pay with Your Body’: The Hidden Nightmare of Sexual Violence on the Border,” New York Times, March 3, 2019; Alice Speri, “Detained, The Violated,” https://theintercept.com/2018/04/11/immigration-detention-sexual-abuse-ice-dhs/.

[14]Susan J. Terrio, Whose Child Am I? Unaccompanied, Undocumented Children in U.S. Immigration Custody(Berkeley: University of California Press, 2015). Denise Brennan, Life Interrupted: Trafficking into Forced Labor in the United States (Durham: Duke University Press, 2014). 

[15]Immigrant Defense Project,“Safeguarding the Integrity of Our Courts: The Impact of ICE Courthouse Operations in New York State,” accessed May 14, 2019, 

https://www.immigrantdefenseproject.org/wp-content/uploads/Safeguarding-the-Integrity-of-Our-Courts-Final-Report.pdf.

[16]Pathways to Freedom, “Three Winners of Pathways to freedom Announced,” accessed May 19, 2019,https://pathwaystofreedom.org/three-winners-of-pathways-to-freedom-announced/; U.S. Department of Justice, 

“Justice Department Invests More than $47 Million to Combat Human Trafficking and Assist Victims, “September 29, 2017, https://www.justice.gov/opa/pr/justice-department-invests-more-47-million-combat-human-trafficking-and-assist-victims.