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New U.S. Policy Makes It Harder for Law Enforcement to Investigate Traffickers
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New U.S. Policy Makes It Harder for Law Enforcement to Investigate Traffickers

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WASHINGTON, D.C. – July 14, 2018

While the USCIS has always had some authority to initiate deportation proceedings, centered on criminals, fraud, and other negative eligibility indicators, that guidance has now been canned. For immigrant victims of trafficking or sexual exploitation, it is becoming harder and harder to comply with immigration laws.

On July 5th U.S. Citizenship and Immigration Services issued updates that align its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security, according to a USCIS news release.

Compared to the last policy guidance on deportation, issued in November 2011, the updated document has 141 removals, while 166 new items were added.

A Notice to Appear (NTA) is a document given to an alien that instructs them to appear before an immigration judge on a certain date. The issuance of an NTA commences removal proceedings against the alien. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is removable, and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.

USCIS, along with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), has legal authority under current immigration laws to issue NTAs. The updated Policy Memorandum contains the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA.

“For too long, USCIS officers uncovering instances of fraudulent or criminal activity have been limited in their ability to help ensure U.S. immigration laws are faithfully executed. This updated policy equips USCIS officers with the clear guidance they need and deserve to support the enforcement priorities established by the president, keep our communities safe, and protect the integrity of our immigration system from those seeking to exploit it,” USCIS Director L. Francis Cissna said.

The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

According to immigration lawyers and activists, new guidelines could make immigrant victims of human trafficking more vulnerable to deportation and affect immigrants forced into labor or sex work in the United States by criminals preying on their vulnerability.

Human trafficking, also known as trafficking in persons, is a form of modern-day slavery in which traffickers use force, fraud, or coercion to compel individuals to provide labor or services, including commercial sex. Traffickers often take advantage of vulnerable individuals, including those lacking lawful immigration status. In 2017, over 8,500 cases of human trafficking were reported in the United States, according to the National Human Trafficking Hotline.

Under the old policy, the victims could apply for special permits, commonly referred to as a T visa, which allows them to remain in the United States, work, and access benefits, often while cooperating with police investigations against their traffickers. Congress created this status in October 2000 as part of the Victims of Trafficking and Violence Protection Act.

In 2017, after 14 years of running the T visa program, The Department of Homeland Security (DHS) has updated the requirements and procedures for applicants seeking T nonimmigrant status and made other changes required by law.

T nonimmigrant status is a temporary immigration benefit that enables certain victims of a severe form of human trafficking to remain in the United States for up to 4 years if they have assisted law enforcement in an investigation or prosecution of human trafficking. T nonimmigrant status is also available for certain qualifying family members of trafficking victims.

T visas offer protection to victims and strengthen the ability of law enforcement agencies to investigate and prosecute human trafficking.

Under federal law, a “severe form of trafficking” is:

-Sex trafficking: When someone recruits, harbors, transports, provides, solicits, patronizes, or obtains a person for the purpose of a commercial sex act, where the commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such action is under 18 years of age; or

-Labor trafficking: When someone recruits, harbors, transports, provides or obtains a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery.

T nonimmigrant status can be obtained in the following ways:

  • If the applicant is or was a victim of a severe form of human trafficking as defined above;
  • If the applicant is in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking;
  • Complies with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking.

Even if the visa request was denied, immigration authorities usually refrained from taking action to deport the immigrants, according to anti-human trafficking activists.

Under the new guidelines, denial of a T visa will trigger an automatic summons for a hearing before an immigration judge — known as a “notice to appear.” Legal experts say such a notice effectively marks the start of the deportation process.

The policy states that “USCIS will issue NTA [a notice to appear] where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” (Page 7)

Jean Bruggeman, who runs a National Alliance of advocates for human trafficking victims known as Freedom Network USA, said immigrants already face stiff requirements for proving they were victims of trafficking. As a result, genuine victims of trafficking are sometimes denied the visa. Now, those victims will face deportation.

“Under previous policy, as a routine matter, T visa applicants were not referred [to immigration authorities],” Bruggeman told to Foreign Policy.

“What we tell applicants now: If your story is not presented perfectly if you can’t convince someone immediately that you are a trafficking victim through your application, you have this one opportunity, and then if you are not able to do it you will be deported.”

Other legal experts said USCIS was simultaneously making it harder to receive a T visa. According to the State Department’s 2018 Trafficking in Persons report, the United States granted T visas to “672 victims and 690 eligible family members of victims in FY 2017, a decrease from 750 and 986 in FY 2016.”

“The office that processes these cases has been denying [more petitions] and requesting more evidence, specifically [for] T visas, requiring more and more documentation that often doesn’t exist,” said Alicia Kinsman, a Connecticut immigration lawyer who works with victims of human trafficking.

She said this was happening with most of her serious cases, particularly ones in which the trafficking happened long ago or intersected with another crime.

The new policy was making victims more reluctant to come forward with evidence against their traffickers — which in turn was making it harder for police to investigate the crimes, says Jean Bruggeman.

Some law enforcement officials are worried as well.

“We’ve spent many, many years building trust with our immigrant communities, working with agencies and nonprofits to put together very clear messaging that when we are dealing with victims of crime, we don’t differentiate or ask questions about citizenship,” said San Diego County District Attorney Summer Stephan.

“We’re hearing now there is reluctance to come forward and there is fear that their immigration status could result in unintended consequences,” she said.

Cooperation with immigrant communities has always helped law enforcement to locate and apprehend traffickers and rescue survivors.

A municipal police officer in a California sanctuary city who works closely with his department’s Special Victims Unit — and spoke on condition of anonymity — also noted that now this cooperation regarding human trafficking is down.

Latest policy changes could lead to a situation, where pimps and smugglers feel more freedom and start preying on immigrant children more actively, according to immigration lawyers and activists, while slowing down the work of police investigating the crimes against children.

USA Really has reported earlier about activists’ actions against human trafficking on the East coast.

Author: USA Really