It Is Now Even Harder for Trafficking Survivors to Get Visas

Rita (not her real name) had gone looking for help. She’s 29, living in Northern California, an immigrant from Honduras, who graduated as a professional makeup artist. “I’m not scared of driving, because I have my driver’s license,” she told The Appeal through a Spanish interpreter. She wants to stay in the United States, and she had a way to do that, she thought—and it was connected to something that happened to her which she would rather not talk too much about.

Almost three years ago, Rita told The Appeal, she was threatened and forced to work for someone in the drug trade. “Sometimes, you come, and you’re very ignorant and you don’t know what’s going on, and you fall into the hands of people who take advantage of you,” she recalled. “I was a victim of that, of that kind of trafficking.” During that time, she said, she was also arrested on drug-related charges.

Later, Rita learned that as a trafficking survivor she could get protection and benefits, including a special visa that would allow her to stay in the United States, where she has been living for 11 years.

But Rita said she is afraid to apply. “There was a time I was going to apply for the visa with the help with the lawyers. It’s not possible now.” Under a set of new Trump administration policies issued in June, if U.S. immigration authorities denied her application, Rita would be referred to removal proceedings. Instead of getting help, she could be deported.

Rita is a client at Asian Pacific Islander Legal Outreach, a legal aid nonprofit in the Bay Area. The organization helps people apply for the T visa, created in 2000 for survivors of trafficking, offering them the same federal benefits as refugees, from housing to health care to education. Until June, applicants could expect that their applications would be kept confidential, and that if they were unsuccessful, the application would not result in them being considered for removal from the country.

That has changed, beginning with President Trump’s crackdowns on what he has called “criminal aliens.” Immigration authorities are now aligning their policies with his executive orders, prioritizing more people for removal. In this case, that extends to immigrants who the government had previously regarded as victims of crimes. Now immigrant trafficking survivors are left with these choices: risk deportation by applying for the T visa and being denied, or risk deportation by not applying at all.

It was never easy to get a T visa, advocates and attorneys who spoke to The Appeal pointed out. When Congress passed the Trafficking Victims Protection Act of 2000, it restricted the number of T visas to be issued each year to 5,000. The cap has never come close to being met. Though more and more people have applied for the visas, in the last 10 years the number of applications submitted has exceeded 1,000 per year only twice. Yet there is a growing backlog of pending T visa cases.

According to U.S. Citizenship and Immigration Services (USCIS) data, as of the end of March 2018, there were 1,541 trafficking survivors with pending T visa applications. Between October 2016 and September 2017, more than 1,100 trafficking survivors applied for a T visa. Of those, 672 were awarded and 226 were denied, and the number of pending applications exceeded the number of new applications. (The approvals and denials could also have been applicants from the previous year; the average wait time for a T visa, according to USCIS, is 10 to 13 months.)

The most recent data USCIS made available suggests that even though applications are coming in at a similar pace, fewer trafficking survivors are getting T visas. As of March, the percentage of T visa applicant approvals was declining compared with 2017—from around 33 percent to 16 percent.

Though Congress created the T visa, its administration is governed by a series of policy memos and guidance issued by U.S. Citizenship and Immigration Services, part of the Department of Homeland Security.

Before June, immigration authorities’ guidance had been more clear and offered more protections to immigrant survivors: “USCIS does not have a policy to refer applicants for T nonimmigrant status for removal proceedings absent serious aggravating circumstances, such as the existence of an egregious criminal history, a threat to national security, or where the applicant is implicit in the trafficking.” That is, barring those few circumstances, USCIS would not alert ICE about T visa applicants who were denied.

But a June 28 memo supersedes that. “USCIS will issue an NTA”—a notice to appear, the beginning of deportation proceedings—“where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.”

This will apply to those filing new T visa applications, and to those whose applications are pending—as well as those seeking other kinds of special visas, like the U visa for victims of crime. In making this change, USCIS cites compliance with President Trump’s January 2017 executive order, calling for “removal of criminal aliens.”

No clients of the groups that The Appeal spoke with have been removed; the policy is most likely still too new. But they are already feeling the chilling effect. Saerom Choi, a project manager for Asian Pacific Islander Legal Outreach, said most of of its clients are Spanish speakers from Mexico or Central America, along with a large population from the Philippines. They may be trafficked into construction, domestic labor, restaurant work, the drug trade, or the sex trade. “For folks caught up in being criminalized, either being forced into the drug industry or having been exploited in the sex industry,” said Choi, “it’s giving those clients and folks some hesitance in moving forward.”

Advocates must now be extra careful in the recommendations they make to their clients. But an additional memo, released in July, has added an extra element of risk and unpredictability to the process. This memo gives USCIS more discretion in making a denial by choosing not to ask applicants for additional information to strengthen their case.

In the past, applicants with criminal convictions were often flagged and given a “request for evidence,” or RFE. “Particularly in drug-related trafficking cases,” Choi noted, “there’s been a trend for USCIS to ask for more evidence to show that there was actually trafficking that happened. With the recent memo saying they have the discretion not to issue requests for additional evidence that’s concerning to us.” If immigration authorities decide to just move on and not seek more evidence, that could lead to applicant’s denial—and now, their removal.

Along with those trafficking survivors with past criminal convictions, those who crossed the border in the course of their trafficking situation have faced increased scrutiny, said Erika Gonzalez, training and technical assistance senior attorney at the Coalition to Abolish Slavery & Trafficking (CAST) in Los Angeles.

On average, said Gonzalez, CAST files 75 to 100 T visa applications each year—or about one-tenth of all T visa applications. The organization also provides technical assistance to attorneys nationwide, and through that it can review cases and assess trends in requests for evidence and denial. “What we are seeing through our document reviews is a lot more denials on ‘credibility’ issues,” Gonzalez said. Those could be cases where USCIS says an application doesn’t match up with the rest of the applicant’s immigration record, particularly in cases in which a survivor was detained at the border. But there are reasons that what someone who is trafficked says might also change over time, she said. “We’ve seen them picked up with their traffickers,” Gonzalez said. “We’ve seen them just scared. … Or they never told anyone.”

In the past, she said, she could advise clients—including those who may have cases involving criminal convictions—that even if their case was complicated, it was OK to apply. “And if you get denied, you can continue living your life as you do now.” Now, she said, even if she has a case that she thinks is strong, one that would typically be approved, she would say to a client, “If you aren’t approved, you could get forwarded to immigration. What do you want to do?”

One way survivors have to navigate this system is to figure out what the system says about them before they apply. Gonzalez says CAST attorneys will typically file Freedom of Information Act requests for their client’s history of interactions with law enforcement and immigration authorities, and will do an FBI background check. “It’s very common for trafficking survivors not to remember all their interactions with law enforcement,” she said. Between what CAST and its clients can document, they can “suss out” the risk of filing  a T visa application. They can also explore options for post-conviction relief, like vacating prior convictions, which California state law allows for.

Since the institution of the new policy, “we really want to make sure that we know enough to provide a clean application,” Gonzalez said. The stakes are just higher, when applicants are not given the chances they once had to submit more evidence to support their case, and when a denial can mean removal.

Several of API Legal Outreach clients are also unsure if they should apply, Choi told The Appeal. “It is concerning. We have to have very real conversations with our clients,” she said. They have to consider the risks they face as immigrants and survivors, particularly those who may have had interactions with law enforcement or been convicted of crimes related to their trafficking situation. Their chances of getting a T visa were always more difficult, and now more so. “A lot of folks might have been under the radar so far,” Choi said, “and this could be exposing them.”

Rita is one of those clients. She will remain in Northern California, she said, though she lives with the fear of what might happen to her just going about her life. “According to the law I’m still considered a criminal,” she said. “Here in this area ICE does raids, and that’s the risk for me—going outside of the house.”