Asylum Granted!

Human Rights USA wishes to congratulate Colleen O’Brien of Steptoe & Johnson for her recent victory in an asylum case. When her client Farid* first contacted Human Rights USA, he was deeply afraid of returning to his native India where he had already suffered persecution at the hands of family and community members who could not accept his homosexuality. Farid believed his family would try to force him into marriage and subject him to further punishing attempts to “cure” him if he returned. Steptoe & Johnson agreed to take Farid’s case, and with Human Rights USA’s support and many hours of hard work and creative legal thinking by Colleen and her team at Steptoe, Farid’s case was approved by the asylum office in Los Angeles, which will allow him to remain in the United States.

If you are an attorney handling an asylum case involving forced marriage, check out Human Rights USA’s Guide and Sample Briefs.

*The name has been changed to protect the individual’s privacy.

Trafficking in Persons Report: New Government Training Programs Only Addressing the Tip of the Iceberg

This is post # 2 in my series on the 2011 Trafficking in Persons Report. (See post # 1 here). Today I’m addressing the report’s evaluation of the U.S. government’s training programs to help officials identify and assist trafficked persons.

The report includes highlights of various training programs, as well as recommendations for additional ones. Perhaps most impressive is that all asylum field offices have held trainings to identify trafficking victims among their asylum applicants, and all future asylum officers must receive this training. Naturally, however, this raised a question: what about immigration judges? Many asylum seekers’ claims are never filed until after they are in removal proceedings, and thus an immigration judge is the only official to review their application. Extending the training program to immigration judges will help a far broader number of trafficking victims; limiting it to asylum officers halves its effectiveness.

The Department of State’s (DOS) report also notes that Department of Labor (DOL) investigators, often the first government officials to discover labor exploitation, are not given specific trafficking-related training, and the report recommends providing such training. DOS also noted that detention and removal officers are not trained to identify trafficked persons, and recommends training them. As evidence of the problem, the report notes examples cited by NGOs of potential trafficking victims held in immigration detention or placed into removal proceedings. While more could undoubtedly be said on that, DOS has at least highlighted the issue; the lack of training for DOL and detention officers is clearly a problem and it needs to be remedied. Let’s hope the recommendation is meant seriously.

One of the most troubling characterizations of an issue was DOS’s discussion of the 287(g) program. The program, as explained in the report, “authorizes state and local law enforcement agencies to carry out enforcement of certain immigration authorities related to the investigation, apprehension, and detention of unauthorized immigrations.” As an example of a good practice, the report points out that the training for law enforcement agencies that participate includes information about assisting trafficked persons. Then the report briefly mentions that NGOs have cited examples of non-citizen trafficking victims being afraid to report crimes to the police in 287(g) jurisdictions. No recommendation is made regarding this problem.

The way the report makes such bare mention of the problem is troubling enough. DOS could have perhaps more accurately stated the issue: the 287(g) program has probably impeded the discovery of trafficking situations and the provision of assistance to victims. Many advocates, as well as law enforcement officials in non-287(g) jurisdictions, have complained that the program will cause undocumented immigrants to avoid reporting crimes to the police, for fear of being detained on an immigration basis or deported. Advocates have also complained of racial profiling and other abuses of the program, problems apparently too unrelated to anti-trafficking efforts to be mentioned in the report. Given these issues, it seems unlikely that any training on trafficking will actually result in greater assistance being provided to trafficked persons in 287(g) jurisdictions.

The training of asylum officers is a great first step, and DOL training should also prove a benefit for many trafficked persons. But the mere existence of a training program or training materials does not ensure that all the needs of trafficked persons will be met. Nor does it absolve the U.S. government of responsibility for overseeing its agencies and programs. I hope that the government takes the complaints it receives about programs like 287(g) more seriously than it appears from this report.

T visas and HHS Certifications Are Up, but Many Are Still Left in the Cold

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.

Encouraged?

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.