Welcome to the first in my series of articles on the 2011 Trafficking in Persons Report. As I wrote earlier, the Department of State’s (DOS) evaluation of U.S. anti-trafficking efforts contained some encouraging examples of genuine self-reflection, but also raised many additional questions and concerns in my mind. Today’s article addresses the system of granting government benefits to trafficked persons through T visas and Health and Human Services (HHS) certifications.
Grants of T visas and certifications by HHS have increased, which is good to hear. The DOS report also notes that foreign victims who do not have a T visa or HHS certification are ineligible for government services, and fortunately, it actually recommends making services available to all trafficking victims regardless of what immigration relief they seek, or even if they seek none.
At least, it recommends making services available to all “eligible” victims. This may merely mean that anyone applying for services will have to prove they are a trafficking victim. That would make sense. But maybe the word “eligible” was included to affirm the continued existence of the caveat to availability of services...
Adult trafficking victims are expected to assist with investigations or prosecutions of the traffickers in order to receive a T visa or HHS benefits. Though there is an exception for victims who are too traumatized to work with law enforcement, successfully proving that one is too traumatized may not always be easy. Also, victims may wish not to cooperate with law enforcement for reasons other than trauma, such as fear of retaliation by traffickers. The requirement of cooperation with law enforcement, as numerous advocates have stated over the years, places the goal of prosecution over that of victim protection, and violates many victims’ human rights.
The new report does not fully acknowledge this problem (and that is an understatement). The report states that the government has “encouraged” foreign national and citizen victims to assist law enforcement.
Foreign nationals who need to remain in the United States for their own protection are essentially obligated to assist law enforcement. The report also notes that the T visa application does not require the approval of the investigating agency. While this is true, it is far easier to acquire a T visa if the victim can get a Law Enforcement Certification (LEC), a form signed by a law enforcement officer to certify that the victim has been willing to cooperate in the investigation or prosecution. The lack of an LEC can undermine an application.
Additionally, although DOS notes the difficulty reported by advocates in getting law enforcement officers to certify victims who are reluctant to cooperate, this also understates the problem. Even victims who are eager to cooperate may be denied certification by officers who do not find them useful, for example, if their testimony is not necessary or if the investigators decide not to continue the investigation. Victims are still eligible even if no investigation is ever opened, but law enforcement officers and prosecutors in many jurisdictions are unlikely to certify victims unless there is an on-going case and the victim’s testimony is crucial to it. The DOS report does not discuss this, and glosses over the importance of getting an LEC at all.
Currently, foreign victims who choose a form of immigration relief other than a T visa are not eligible for government services under the Trafficking Victims Protection Act (TVPA).
Why is this a problem?
Consider the plight of an asylum seeker. Although anyone who is granted asylum is eligible for refugee benefits (the same services available to T visa holders), these benefits are not available while the asylum application is pending. Asylum seekers are thus treated differently than T visa applicants, who can receive services while their application is pending. Not only does the pending asylum application NOT entitle asylum seekers to government services, most will also be ineligible for work authorization. They must survive on the charity of others – which puts them at risk for further abuse, including trafficking – for the duration of the application process, which can take years.
From a policy standpoint, this is a confusing distinction in general – why should asylum seekers be deemed less worthy of assistance and the right to work than trafficking victims? But from a TVPA policy standpoint, it is especially problematic, considering some trafficking victims will be ineligible for T visas (as well as U visas) and asylum may be their only option. Not only those who choose not to cooperate with law enforcement, but people trafficked outside the United States who flee here to seek protection cannot receive T visas. Thus, despite being in as much need of services as a T visa-eligible trafficking victim, asylum seekers are out of luck.
I am very happy to see that DOS recommends making government services available to all trafficking victims, even those who do not apply for T visas, but the problem was woefully understated, and I hope that provision of services to asylum seekers would not be conditioned on cooperation with law enforcement.