Excerpted From: Rebecca L. Feldmann, Preventing Trafficking by Protecting Refugees, 2023 Utah Law Review 659 (2023) (437 Footnotes) (Full Document)


RebeccaFeldmannMarta an asylum-seeker from Honduras. She fled her home country after enduring years of abuse by her husband, a police officer. She has an 18-year-old son whom she is forced to leave behind, as she cannot afford to bring him with her. She hopes to find safety in the United States. Once she is safe, she also hopes she will be able to find work, to help support her son.

Marta pays a coyote to help her escape from her country, travel through Central America, and cross the Mexico-U.S. border. She cannot pay the entire cost of the journey upfront, so the smuggler agrees to let her pay the remainder once they cross into the United States. The smuggler coerces Marta into staying at a “stash house” once in Texas, leaving her in the hands of a “friend.” The “friend” steals Marta's phone and identification. If Marta wants these things back, he tells her, she has to work for him until she can pay back the money she “owes” for crossing into the United States. He tells her she must cook and clean for him, and abuses her verbally, physically, and sexually if she does not do as he demands. He doubles what Marta originally understood to be the cost of taking her to the United States. And, if *661 she tries to escape, he threatens to turn her over to immigration authorities for deportation and have his contacts in her home country harm her son.

As part of their normal operations, federal immigration officials encounter the house where Marta and other migrants are living, and arrest everyone therein. In combat gear and wielding weapons, the agents take the migrants to the nearest detention facility and process them for expedited removal proceedings. Although Marta is from Honduras, she speaks limited Spanish. As an indigenous woman, her native language is Garifuna. Marta tries to explain that she is afraid of being sent back to Honduras, but she does not reveal (and is not directly asked) anything about her trafficker. Because of the persecution she suffered in her home country as well as her trafficker's threats, she is terrified of the uniformed officers. They ask her if she was coming to the United States to work. She does not know how to answer, because her main reason for coming was to seek safety. However, she does hope to work, and she doesn't know how to fully express herself in Spanish, so she simply answers “Yes” to this question. She is told that if she wants to apply for asylum, she is going to have to wait in Mexico for a hearing with an immigration judge; otherwise, she can agree to be deported back to Honduras. Marta, who does not have a lawyer and does not understand what rights, if any, she has in this country, agrees to be sent back to Honduras. While she knows she is in danger in Honduras, she fears that her trafficker will more easily find her in Mexico and will kill her son if she reveals any information about her trafficker. She hopes that she will at least have a chance to protect her son if they are together.

Thus, despite a plethora of legal protections available to trafficking victims like Marta, U.S. authorities fail to identify her as a victim and therefore deny her the protections to which she is entitled.

For more than two decades, U.S. federal law has recognized a duty to prevent trafficking in persons and protect victims of trafficking-related crime. That duty is enshrined in international law in Articles 9 through 11 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children *662 (“Palermo Protocol”), which the United States signed in 2000 and ratified in 2005. U.S. presidential administrations have repeatedly voiced their commitment to combatting human trafficking and protecting victims of this heinous crime. Yet, too *663 often, efforts aimed at immigration enforcement exacerbate the vulnerabilities of potential trafficking victims and therefore undermine efforts to combat this crime.

In January 2019, then-President Trump signed into law the last of four bills that collectively represent the most recent reauthorization of the Trafficking Victims Protection Act (“TVPA”). While the legal achievements enacted with the TVPA re-authorizations are important, anti-immigrant rhetoric and policies suggesting that the solution to trafficking is to “build a wall” actively undermined those achievements. Such rhetoric and actions make the dangerous, but far too common, mistake of conflating human trafficking and human smuggling, ignoring well-established human rights norms, and endangering the lives of potential victims. In addition, as illustrated by Marta's story, policies that curtail the availability of asylum and other modes of legal immigration undermine the oft-repeated goal of *664 ending human trafficking by exacerbating the vulnerability of asylum-seekers and other migrants.

The challenge of identifying and protecting foreign national victims of trafficking is not new. During her 2017 visit to the United States, Special Rapporteur Maria Grazia Giammarinaro explained that the “current approach to migration policies and management ... create vulnerability to human trafficking, including re-trafficking.” Importantly, she concluded that “[e]conomic inequalities and social exclusion, discrimination and insufficient labour protections create a favourable environment for traffickers in the country.” These root causes existed long before the Trump administration, but were exacerbated by the more than 1,000 Trump-era policies aimed at closing the border and eroding human rights protections for asylum seekers and other migrants. As the Special Rapporteur explains, “[l]ack of confidence in law enforcement services, fear of arrest, prosecution or deportation are some of the obstacles that increase [trafficking] victims' insecurity and force them to work underground in dangerous environments, which in turn renders their identification as victims of trafficking more difficult.”

Scholars, non-governmental organizations, and courts have extensively analyzed the ways in which fast track deportations, the expansion of expedited removal, and the behemoth of immigration detention impede access to asylum and violate the rights of asylum seekers. Less scholarship exists, however, on how these same systems impact trafficking victims and impede the government's ability to have a truly comprehensive approach to ending human trafficking.

*665 This Article explores why and how immigration enforcement policies that criminalize refugees and other migrants at the southern border impede the government's ability to prevent trafficking by overlooking adult noncitizens who fail to identify themselves as victims. It focuses on adult, noncitizen victims of labor trafficking because, too often, law enforcement, the public, the media, and even attorneys fail to “look beneath the surface” for this population of survivors. This failure stems from a dangerous combination of several factors, including: a tension within the Palermo Protocol itself; limited awareness of what labor trafficking is and how it occurs; decades of increasingly criminalized immigration enforcement efforts, including the expansion of expedited removal; rhetoric and policies that dehumanize migrants; the myth of the “perfect victim”; and the erosion of basic human rights protections when the victim is not a citizen of the state in which the exploitation occurred. Part of the problem, as Marta's story illustrates, is that it is impossible to determine, without the application of a trauma-informed and truly victim-centered approach, whether a migrant is an asylum-seeker, trafficking survivor, smuggled migrant, or some combination thereof.

This Article proceeds in three parts. Part I introduces the relevant international and domestic framework underlying the duty to prevent human trafficking. After laying this groundwork, Part II explores how increasingly restrictive immigration enforcement policies impede efforts to prevent trafficking in the United States. This Part examines restrictionist immigration policies and explains how the erosion of protections for asylum-seekers undermined the country's stated commitment to eradicating human trafficking and, instead, increased individuals' vulnerability to trafficking. Part II concludes by summarizing how fast-track deportations, the criminalization of migration, and restricted access to humanitarian relief interfere with the United States' obligation to prevent human trafficking. Finally, Part III provides recommendations as to how the U.S. government should work to better *666 protect asylum-seekers if it truly hopes to meet its due diligence obligation to prevent human trafficking. These recommendations recognize the need to amend immigration enforcement policies to better identify and protect potential victims, shift the culture surrounding training of individuals responsible for identifying victims of trafficking, end fast-track deportations, and improve data collection to ensure that potential victims are not wrongfully detained and deported.

[. . .]

An inherent tension underlies the duty to prevent trafficking. On the one hand, nation-states are required to take border control measures aimed at preventing trafficking. At the same time, such measures must respect international obligations toward asylum-seekers and other migrants relating to the free movement of people. In the past twenty years, countries such as the United States have developed increasingly sophisticated systems designed to regulate and restrict the movement of people across borders. However, the same period has seen an increasing disregard for the human rights of the very people who are crossing those borders. In order to fully meet the duty to prevent trafficking, states must come to recognize the importance of involving victims of this crime in the solution, which will never happen if countries demonize all migrants as criminals and traffickers. In short, states that seek to lead the fight against human trafficking need to work with victims (including foreign national victims in the state's territory) and other partners (such as non-governmental organizations and victims' attorneys) to ensure that their rhetoric more closely matches reality.

While the United States consistently lauds the importance of the Palermo Protocol and the TVPA, the country's immigration policies have impeded its ability to identify and protect foreign national victims of trafficking. To adequately address the problem of human trafficking, we must realize that movement is a natural part of the human experience and recognize the basic human rights of migrants. We must also recognize that it is impossible to distinguish, on sight or migration status alone, between a trafficking victim and his or her trafficker. Identifying victims of and preventing this crime requires gaining the trust of individuals who have learned, as a consequence of their victimization, to fear law enforcement officials. Rhetoric that demonizes the migrant and legislation that makes migration a crime only serves to exacerbate that distrust. Ultimately, such rhetoric (as well as laws and policies that amplify this type of rhetoric) only serve to empower the trafficker and those who would profit from others' suffering.

The problem in the fight against trafficking largely is not, nor for several years has it been, the laws that are specifically aimed at this issue, such as the TVPA. *725 Rather, it is the disconnect between laws like the Palermo Protocol and TVPA (which seek to protect victims) and laws aimed at immigration enforcement (which increasingly detain and criminalize migrants, including those seeking humanitarian relief). Since the United States first signed the Palermo Protocol and enacted the TVPA into law, measures aimed at fighting human trafficking have consistently received bipartisan support. Government officials repeatedly recognize the challenges facing victims and tout the need for a “victim-centered approach” to combatting this crime. But immigration policies that imprison huge swaths of migrants and fast-track deportation for unauthorized presence undermine the “victim-centered” rhetoric. Moreover, the perpetuation of the myth of the perfect victim, xenophobic attitudes, and racial and gender inequality prevent us from making our actions match our promises to end modern-day slavery. Only once the United States disentangles its criminal system from its immigration system and respects the inherent dignity of all individuals within its borders--regardless of migration status, color, gender, age, or criminal history--will it truly succeed in its efforts to prevent trafficking.

Rebecca L. Feldmann. Assistant Professor of Clinical Education, William H. Bowen School of Law, University of Arkansas at Little Rock.