Key Facts from “The Dual Mandate: Immigration Enforcement and Human Trafficking”

In the United States today, there are an estimated 11.5 million undocumented immigrants living and working in the margins of society, vulnerable to labor exploitation and even human trafficking. Human trafficking is a pervasive problem in the United States that continues to thrive as a modern-day form of slavery in dozens of industries and sectors. The U.S. Department of State estimates that between 14,500 and 17,500 persons are trafficked into the country each year and that approximately 50,000 trafficked individuals may be present at any given time.[i] While exact numbers are notoriously difficult to calculate, the degree of overlap between undocumented immigration and human trafficking is thought to be significant. This overlap creates challenges for a government that tries to both combat undocumented immigration and simultaneously identify and help victims of human trafficking. Below are some key findings from the forthcoming brief report “The Dual Mandate: Immigration Enforcement and Human Trafficking,” which explores this conflict further.

The relationship between smuggling and human trafficking often overlaps.

  • The Customs and Border Protection (CBP) at the Department of Homeland Security has doubled its number of agents to 21,444 in FY2011, completed 649 miles of physical pedestrian and vehicle fencing, and 53 miles of “virtual” fencing along the southwest border.[ii]
  • Undocumented immigrants are increasingly turning to smuggling networks to facilitate passage into the United States. This makes them more vulnerable to becoming victims of human trafficking (debt bondage, involuntary labor, kidnapping, and sexual exploitation).[iii]
  • Immigrants who have outstayed their visas, an estimated 757,000 in the United States, are also vulnerable to becoming victims of human trafficking because traffickers use fear of deportation as a coercion tactic.[iv]

The increased use of immigration enforcement programs can create barriers for undocumented victims of trafficking.

  • DHS addresses undocumented immigration by increasing immigration enforcement programs such as Immigration and Customs Enforcement (ICE) ACCESS.
  • The cumulative results of all ICE efforts were removal of a total of 396,906 individuals in FY2011, which is the highest number of deportations in the agency’s history.[v]
  • ICE ACCESS funnels a large number of undocumented immigrants into the detention and deportation system. This deportation-focused strategy can cause problems for survivors because they can be hard to identify as victims and agents in the field must often make quick assessment of victim status. Mistakes can result in survivors unintentionally being captured in the immigration system.
  • Once in the system, immigration proceedings can begin before survivors are able to share their story, receive aid from NGOs, or consult an attorney on their rights.
  • Undocumented immigrants may be detained, placed into removal proceedings, or deported without further investigation into human trafficking. According to the advocates we interviewed, even if the victim is identified in detention, securing a release can be difficult.

The Obama Administration has new directives on U.S. immigration enforcement policy, but legislation regarding comprehensive immigration reform has largely failed.

  • In June 2012, President Obama announced that the Administration had a new decree to stop the removal of some eligible youth to grant them deferred action and employment authorization for a period of two years, referred to as Deferred Action for Childhood Arrivals (DACA).
  • DACA does not grant individuals permanent resident status — it is not a path to citizenship — but it does give them temporary protection from removal.[vi] It allows individuals to apply for work permits and a social security number.
  • The Comprehensive Immigration Reform for America’s Security and Prosperity Act and the Development, Relief, and Education for Alien Minors Act (DREAM Act) are both still in progress while the AgJobs Act of 2009 and the Comprehensive Immigration Reform Act of 2007 both failed.[vii]

In June 2011, Director John Morton of ICE issued new memoranda pertaining to prosecutorial discretion for undocumented immigrants that were meant to help prioritize use of resources, but there are fears that they may not be working.[viii]

  • The memoranda encourage ICE agents to give the detention and deportation of criminal aliens priority over so-called “low priority” cases.[ix]
  • The Administration has moved to halt the deportation of some 300,000 undocumented immigrants pending review of their cases, to weed out “high priority” criminal alien cases from other “low priority” non-criminal cases that are to be dropped.[x]
  • There are fears that the proiritizing may not be working because out of the 78,246 undocumented immigrants removed in FY2011, only 20,179 (26%) had been convicted of a Level 1 criminal offense, while 20,266 (26%) were “non-criminal” aliens.[xi]
  • Due to continuing pressure from community groups against “Secure Communities,” ICE announced guidelines to stop issuing detainers for people who have been arrested for low-level misdemeanors or infractions (with other caveats). However, immigrant advocates note extant weaknesses that make the entire program untenable (e.g., that it continue to “rely on a pre-conviction model that will still trap survivors of domestic violence and other crime victims and witnesses in deportations.”[xii]

The Victims of Violence and Trafficking Prevention Act of 2000, which included the Trafficking Victims Protection Act and the Violence Against Women Act, created two new temporary nonimmigrant statuses for undocumented survivors of human trafficking and other crimes.

  • The TVPA was passed by Congress as part of the larger Victims of Violence and Trafficking Protection Act and was the first comprehensive legislation dealing with the issue of human trafficking within the United States.
  • The U visa, for victims of crime, covers those who have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime and be certified by law enforcement to be helpful in the investigation or prosecution of the crime committed against them.
  • T visas allow a victim to remain in the United States for a period of four years to assist in the investigation and prosecution of their trafficker and build a life free of the fear of deportation. They also allow an individual to become eligible for public assistance programs like food and health assistance.
  • The Blue Campaign was launched in July of 2010 by the DHS to help improve US anti-trafficking efforts. The campaign coordinates efforts of the DHS, increases public awareness, protects victims, aids in the criminal justice response, and helps facilitate immigration assistance (helps victims to acquire CP, T, and U visas).
  • Despite the critical importance of the TVPA and VAWA, Congress has failed to reauthorize both after their expiration. The bill had previously been passed and reauthorized with unanimous consent, but the partisan gridlock has stalled progress.

Recommendations for Government:

  • Reauthorize and fully fund the Trafficking Victims Protection Act and Violence Against Women Act.
  • Ensure that government-sponsored PSAs and trainings paint a true picture of human trafficking — including who is at risk and in what locations and industries trafficking may be found.
  • Create metrics for measurement of the efficacy of the DHS Blue Campaign training.
  • Host and promote “know your rights” and human trafficking informational/educational sessions led by NGO’s in each of the 250 detention centers throughout the United States and allow NGO advocates greater access to detention centers.
  • Increase the use of Continued Presence and extend the length of provision.
  • Allow the victim herself, or her representative, to petition for Continued Presence on her own behalf.
  • Increase the use of T visas through the streamlining of the application process and issuance of specific visa guidance.
  • Ensure “non-criminal” aliens and Level 3 offenders are not detained and removed as part of the Secure Communities program, and address loopholes and criticisms identified by community groups and law enforcement.
  • Ensure the effectiveness of policies and practices meant to halt the detention of undocumented individuals identified through the reporting of victimization.
  • Improve collaboration between federal government, law enforcement and NGOs for the purposes of human trafficking identification and service provision.
  • Enhance training in identification, victim-centered interviewing, and case coordination for federal, State, and local law enforcement.

[i] Trafficking in persons Report, U.S. State Department, June 2007. Available at: http://www.state.gov/documents/organization/82902.pdf

[ii] “Securing America’s borders: CBP fiscal year 2010 in review fact sheet,” U.S. Customs and Border Protection, March 15, 2011. Available at http://www.cbp.gov/xp/cgov/newsroom/fact_sheets/cbp_overview/fy2010_factsheet.xml; “Southwest border fence construction progress,” U.S Customs and Border Protection. Available at http://www.cbp.gov/xp/cgov/border_security/ti/ti_news/sbi_fence/; and Cheryl Sullivan, “US cancels ‘virtual fence’ along Mexican border. What’s plan B?,” The Christian Science Monitor, January 15, 2011. Available at http://www.csmonitor.com/USA/2011/0115/US-cancels-virtual-fence-along-Mexican-border.-What-s-Plan-B.

[iii] J. M. Chacón, “Tensions and trade-offs: Protecting trafficking victims in the era of immigration enforcement,” University of Pennsylvania Law Review, 158, 1609-1653 2010.

[iv] Eli Lake, “Visas reviewed to find those who overstayed,” The Washington Times, July 13, 2011. Available at http://www.washingtontimes.com/news/2011/jul/13/visas-reviewed-to-find-those-who-overstayed/.

[v] “FY 2011: ICE announces year-end removal numbers,” U.S. Immigration and Customs Enforcement, October 18, 2011. Available at http://www.ice.gov/news/releases/1110/111018washingtondc.htm.

[vi] Barack Obama, Remarks by the President on Immigration, July, 15 2012. Available at http://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration

[vii] “Comprehensive immigration reform in the 111th Congress,” National Immigration Forum. Available at http://www.immigrationforum.org/policy/legislation/comprehensive-immigration-reform-in-the-111th-congress; and “The DREAM Act in the 111th Congress,” National Immigration Forum. Available at http://www.immigrationforum.org/policy/legislation/the-dream-act-in-the-111th-congress.

[viii] John Morton, “Exercising prosecutorial discretion consistent with the civil immigration enforcement priorities of the agency for the apprehension, detention, and removal of aliens,” U.S. Immigrations and Customs Enforcement, June 17, 2011. Available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.

[ix] John Morton, “Civil immigration enforcement: Priorities for the apprehension, detention, and removal of aliens,” U.S. Immigrations and Customs Enforcement, March 2, 2011. Available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf.

[x] Mike M. Ahlers, “Napolitano: Deportation reviews to begin shortly,” CNN, October 19, 2011. Available a thttp://articles.cnn.com/2011-10-19/politics/politics_napolitano-deportation-reviews_1_immigrants-with-criminal-convictions-illegal-immigrants-immigration-enforcement?_s=PM:POLITICS.

[xi] “Secure communities IDENT/IAFIS interoperability monthly statistics through September 30, 2011,” U.S. Immigration and Customs Enforcement, October 14, 2011. Available at http://www.ice.gov/doclib/foia/sc-stats/nationwide_interoperability_stats-fy2011-to-date.pdf.

[xii] “Movement to pass TRUST Act spurs new guidelines from ICE, but few families will be kept together in practice, ” Reshma Shamasunder, California Immigrant Policy Center, Press Release December 21, 2012