Access to Justice in a Climate of Fear: New Hurdles and Barriers for Survivors of Human Trafficking and Domestic Violence
January 29, 2019
On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its November 15th gathering, CMS will be posting and publishing a series of blogs, essays, talks, and papers on the values and issues to which Mr. Osuna devoted his professional life, and ultimately compiling them as part of a CMS special collection in his memory.
“To be abused or to be a victim of any crime is against human dignity. If legal protection[s] are not provided to such cases then crime will go rampant in society. We all must respect the law but people who have supported the law and stood courageously with it amidst constant fears should be acknowledged and must be given a chance to re-start their lives.” – Saniya
As a teenager in Central America, Claudia met a foreign diplomat and his wife. The couple invited her to join them in Virginia. In exchange for her housekeeping services, they offered Claudia a steady income, health insurance, and educational opportunities. Motivated by the economic need to support her young disabled brother and excited to continue her education, Claudia took the offer. She and the couple signed a contract approved by the US Department of State (DOS) and she was subsequently issued a G-5 non-immigrant visa for employees of international organizations. A few days later, Claudia said a tearful goodbye to her family and boarded a plane to Washington Dulles International Airport.
After Claudia arrived in the United States, the diplomat’s home became her prison. She was forced to work long hours without pay and the couple monitored her every move. When Claudia became ill, she did not go to the doctor because the diplomat claimed she did not have health insurance and, therefore, could not be treated. Claudia lived many months in the Washington, DC area, in complete isolation, without access to communication with her family back home, her passport, or a credit card.
With the help of a friend, Claudia fled the diplomat’s home after three long years. When the diplomat discovered she had escaped, he immediately called the police, alleging that she had stolen his iPhone and other personal property of the family. Claudia courageously told the truth to the police — she had been the victim of years of labor trafficking.
Local police then brought in the Federal Bureau of Investigation (FBI), DOS, and Immigration and Customs Enforcement-Homeland Security Investigation (ICE-HSI) teams to investigate the case. Claudia bravely repeated her story to these officials. Several weeks later, ICE-HSI called Claudia into their office “to help clarify a few more things.” Once there, it served Claudia a Notice to Appear (NTA) that alleged that she no longer possessed valid US immigration status because she had fled the diplomat’s home. ICE-HSI filed the NTA with the Executive Office for Immigration Review (EOIR) to commence removal proceedings. Though Claudia is now safe in a new home, she is also in deportation proceedings, and anxious and uncertain about whether she will be permitted to stay in the United States.
Access to justice takes many forms. Claudia’s justice will look different from that of other trafficking survivors. For some, justice may mean writing a letter to the survivor’s abuser or going to the police or telling her story to the media (Fagan 2016). But how can trafficking survivors like Claudia access justice when doing so can subject them to possible deportation? And how can survivors like Claudia receive anything approaching justice when their traffickers cannot be prosecuted because of diplomatic immunity?
Distrust of the criminal justice system operates to deny immigrant victims of crime access to justice under federal immigration law; as a result, public safety is undermined. This paper relies on examples gathered from the authors’ direct work with immigrant survivors of gender-based violence. It reviews the dynamics of domestic violence, sexual assault, and human trafficking for immigrant victims, and the immigration remedies available to victims of these crimes. Additionally, this paper explores the detrimental impact of the administration’s enforcement initiatives on immigrant victims of crime and on public safety.
Hurdles and Barriers for Immigrant Victims
Immigrant survivors of violence face particularly high hurdles and barriers in accessing the US legal system. Language barriers often prevent them from reporting crimes (Robbin 2017). They may not know how to report a crime, or that this option or even a 911 number exists. Add fear and distrust of police to the mix — the result of the corruption of law enforcement in their home countries — and it is a testament to their courage that so many immigrant survivors come forward.
Gender dynamics often factor into encounters with law enforcement as well. Cultural or religious beliefs may prohibit a female from speaking with any man apart from her husband or another male family member. If two male police officers show up at a door after neighbors report noise complaints, the victim may be unwilling or unable to report her husband’s violence because of her cultural or religious beliefs.
Perpetrators of sexual assault, domestic violence, and human trafficking crimes often maintain their power and control through manipulation and misinformation. Threatening to call immigration officials or to turn the table on the survivor and misuse the criminal justice system can dissuade survivors from reporting a crime. Perpetrators also commonly turn family ties into an instrument of abuse — making threats against the survivor’s children or threatening to separate the survivor from other family in order to dissuade her from calling the police.
Lastly, economic constraints may prevent an immigrant survivor from leaving her abusive situation, let alone crimes to the police. One study found that the single greatest barrier to leaving an abusive relationship was lack of money (Dutton, Orloff, and Hass 2000). Because women are often the primary caregivers to their children, survivors must consider their family’s future livelihood, not just their own financial situation, when deciding whether to flee an abuser. The calculation can be gut-wrenching: domestic violence has been revealed as a leading cause of homelessness for women (ACLU 2006).
Abusers who are the primary breadwinners in their households often use finances as a tool of power and control, and deny immigrant survivors’ access to funds. Traffickers typically refuse to pay their victims for their long hours of work, leaving them unable to finance safe, independent lives. In addition, abusers commonly isolate their victims, limiting their access to friends, family, and other support networks.
Recognizing these dynamics, Congress established important protections for immigrant survivors of domestic violence, sexual assault, and human trafficking in the Violence Against Women Act (VAWA) and Trafficking Victims Protection Act (TVPA). The legislation expressly recognized that perpetrators of these heinous crimes commonly exploit a victim’s lack of immigration status as a tactic of abuse.
The U and T visa programs in the 2000 reauthorization of VAWA were created to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking…while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.” Since 1994, Congress has recognized the critical need for having protections in place so that immigrant survivors can safely reach out to law enforcement.
The Detrimental Impact of the Administration’s Enforcement Initiatives on Survivors and Safe Communities
“We do not have security right now with the police. I no longer trust the police. I am scared that they will ask me for my identity documents and then deport me. My family and my neighbors can no longer trust them. But it was never like this before. When I called the police several years ago to report the domestic violence against me, the police were very friendly and I did not feel scared.” – Nancy
Since the inauguration of President Donald Trump in January 2017 and the implementation of Executive Order 13768 that same month, immigrant victims of domestic violence, sexual assault, and human trafficking in the United States are less likely to report crimes to law enforcement due to the increased threat of deportation and separation from their children (Tahirih 2018). As a result, all of us are at increased risk, since “today’s unreported domestic violence case may become tomorrow’s homicide” (Daniels 2018).
As the US government intensifies pressure on local law enforcement agencies to engage in federal immigration enforcement functions through the resurgence of 287(g) agreements, a growing climate of fear is pervading immigrant communities nationwide (Tahirih 2018). As outlined above, immigrant survivors already face high hurdles and barriers in reporting and escaping violent situations and this “current environment makes it even more frightening for victims to come forward and seek help” (NNEDV 2017).
Since the implementation of Executive Order 13768, there has been an increase nationwide in immigrant survivors who have dropped civil or criminal cases because they were afraid to pursue their claims (Tahirih 2017). As immigrant communities around the country fear deportation and separation from their families (Glenn 2017), more and more immigrant survivors of crimes are dropping their cases and protective orders against their abusers and our communities are left with higher rates of unreported violence (Mettler 2017).
For example, though Houston’s immigrant population is one of the fastest growing in the country, there was a 16 percent decrease in domestic violence reports to law enforcement from the Latina community in 2017 (Engelbrecht 2018). Police departments in several cities with large immigrant populations, including Los Angeles, Denver, and San Diego, also reported a decline in domestic violence and sexual assault reports to law enforcement (Engelbrecht 2018). In a recent American Civil Liberties Union (ACLU) report, more than 50 percent of police surveyed said domestic violence, human trafficking, and sexual assault crimes are now harder to investigate because immigrant survivors of such crimes are afraid to seek assistance from law enforcement (ACLU 2018).
Not only are immigrant survivors hesitant to report crimes against them, they have also become extremely wary of courthouse visits, given ICE’s presence and practice of making arrests outside courtrooms. This practice undermines justice and due process, and diminishes the effectiveness of prosecutors, police, public defenders, and judges (ACLU 2018). Community safety and the integrity of the criminal justice system is compromised when noncitizens and their relatives fear being anywhere near courts (ACLU 2018).
Immigrant survivors who report crimes, as Claudia did, are often treated callously. Following Executive Order 13768, many ICE officers and trial attorneys no longer exercise prosecutorial discretion (American Immigration Council 2018), which leads to the initiation of more deportation proceedings against immigrant victims and witnesses, and the increased threat of removal. As a result, perpetrators may never be brought to justice. Because of the climate of fear and draconian enforcement policies, the United States is foregoing opportunities to interrupt and curtail violence, with far-reaching consequences (Robbin 2017).
These policy shifts have been recent and rapid. While their impacts are not well-studied to date, the fear they instil in our communities is palpable. What remains unchanged are the longstanding federal laws that protect immigrant survivors and afford them secure immigration status so they can rebuild their lives in safety and dignity. Immigrant survivors’ stories and voices must continue to be elevated in the media, in communities, and in courtrooms so that immigrant survivors can access justice and legal protections through existing systems.
Advocates nationwide are calling on the federal government, Congressional leaders, state and local authorities, and law enforcement to reinforce the intent of VAWA and the TVPA and to demonstrate their support for immigrant survivors by helping to create an environment that allows survivors to come out from the shadows and obtain justice (NNEDV 2017).
As for Claudia, she is disillusioned. When asked what justice means to her, she responded:
“Justice? There is no justice. I always thought the United States was better. But after everything I’ve gone through — reporting, helping law enforcement, telling my story — only to be placed into deportation proceedings, I now believe that justice doesn’t exist here. If I had known that my reporting would have led to my deportation proceedings, I would have never called for help in the first place. I cannot trust the police. I cannot trust this system.”
Her feelings of distrust compel her lawyers to keep fighting through this climate of fear and to navigate the US immigration system on her behalf. Tahirih Justice Center continues to advocate for immigration reform that would separate the public safety mandate of local law enforcement from the federal mandate to enforce immigration law. Immigrant survivors should never be dissuaded from seeking help and safety in the United States for fear of the immigration consequences (Tahirih Justice Center 2015).
 This paper is dedicated to the memory of Juan Osuna — a consensus builder, leader, mentor, dedicated public servant, immigration expert, and friend. Juan was a person who lived his beliefs and touched many lives in big and small ways. His bright light was not extinguished with his passing. Rather, it lives on through those of us who were privileged to have known him.
 Kathryn Finley is managing attorney of the greater Washington, DC office at the Tahirih Justice Center. Rená Cutlip-Mason is Chief of Programs at the Tahirih Justice Center and served as former Counsel to Director Juan Osuna. Tahirih Justice Center is a national nonprofit organization that serves courageous immigrant women and girls fleeing gender-based violence.
 To protect their identity, survivors’ names and identifying information have been changed throughout the paper.
 Pronouns she/her/hers will be used throughout this paper when identifying victims of gender-based violence (GBV) or violence against women and girls (VAWG). GBV and VAWG, a global pandemic, affect one in three women in their lifetimes. See World Bank (2018).
 Id. See also NNEDV (2017).
 Enhancing Public Safety in the Interior of the United States, Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017). On January 25, 2017, President Trump signed Executive Order 13768 titled “Enhancing Public Safety in the Interior of the United States” that announced a massive expansion in immigration enforcement, including a revival of the Secure Communities Program, a deportation program that relies on partnerships among federal, state, and local law enforcement agencies.
 Section 8 of Executive Order 13768 encourages the creation of enforcement partnerships with local authorities and governors. Section 287(g) of the Immigration and Nationality Act (INA) allows any officer or employee of a participating state or locality to perform the functions of an immigration officer, such as the “investigation, apprehension, or detention” of noncitizens, at the expense of the state or locality.
 On February 20, 2017, the Department of Homeland Security (DHS) issued guidance to significantly limit the ability of immigration-enforcement personnel to assess an individual’s equities when making case decisions, stating: “prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of [noncitizens] from enforcement of the immigration laws” (DHS 2017).
ACLU (American Civil Liberties Union). 2006. “Domestic Violence and Homelessness.” https://www.aclu.org/sites/default/files/pdfs/dvhomelessness032106.pdf.
———. 2018. ACLU Freezing Out Justice: How Immigration Arrests at Courthouses Are Undermining the Justice System. https://www.aclu.org/issues/immigrants-rights/ice-and-border-patrol-abuses/freezing-out-justice?redirect=issues/ice-courthouse.
American Immigration Council. 2018. “The End of Immigration Enforcement Priorities Under The Trump Administration.” https://www.americanimmigrationcouncil.org/research/immigration-enforcement-priorities-under-trump-administration.
Daniels, Jeff. 2018. “Immigrants Are Afraid of President Trump’s Crackdown, Making it Harder to Prosecute Crimes, ACLU Report Says.” CNBC, May 4. https://www.cnbc.com/2018/05/04/crimes-tougher-to-prosecute-due-to-immigrant-fears-says-aclu-report.html.
DHS (US Department of Homeland Security). 2017. Enforcement of the Immigration Laws to Serve the National Interest. Washington, DC: DHS. https://www.dhs.gov/publication/enforcement-immigration-laws-serve-national-interest.
Dutton, Mary Ann, Leslye E. Orloff, and Giselle Aguilar Hass. 2000. “Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas: Legal and Policy Implications.” Georgetown Journal on Poverty Law & Policy 7(2): 1-53.
Engelbrecht, Cora. 2018. “Fewer Immigrants Are Reporting Domestic Abuse. Police Blame Fear of Deportation.” New York Times, June 3.https://www.nytimes.com/2018/06/03/us/immigrants-houston-domestic-violence.html.
Fagan, Laurie. 2016. Justice Looks Different for Each Victims of Sexual Assault, Experts Say. CBC News, August 11. https://www.cbc.ca/news/canada/ottawa/post-secondary-sexual-assault-conference-1.3716302.
Glenn, Heidi. 2017. “Fear of Deportation Spurs 4 Women to Drop Domestic Abuse Cases in Denver.” NPR, March 21. https://www.npr.org/2017/03/21/520841332/fear-of-deportation-spurs-4-women-to-drop-domestic-abuse-cases-in-denver.
Mettler, Katie. 2017. “This is Really Unprecedented: ICE detains Woman Seeking Domestic Abuse Protection at Texas Courthouse.” Washington Post, February 16. https://www.washingtonpost.com/news/morning-mix/wp/2017/02/16/this-is-really-unprecedented-ice-detains-woman-seeking-domestic-abuse-protection-at-texas-courthouse/?utm_term=.99ec21a3860f.
NNEDV (National Network to End Domestic Violence). 2017. “Survey Reveals Impact of Increased Immigration Enforcement on Victims Experiencing Domestic Violence and Sexual Assault.” Washington, DC: NNEDV. https://nnedv.org/latest_update/increased-immigration-enforcement/.
Robbin, Debra. 2017. “When Undocumented Immigrants Don’t Report Crimes, We All Suffer.” WBUR, September 22. http://www.wbur.org/cognoscenti/2017/09/22/undocumented-immigrants-report-crimes-debra-j-robbin.
Tahirih Justice Center. 2015. “Fair Immigration Laws.” Washington, DC: Tahirih Justice Center. https://www.tahirih.org/what-we-do/policy-advocacy/fair-immigration-laws/.
———. 2017. Key findings: 2017 advocate and legal service survey regarding immigrant survivors. http://www.tahirih.org/wp-content/uploads/2017/05/2017-Advocate-and-Legal-Service-Survey-Key-Findings.pdf.
———. 2018. Nationwide survey: A window into the challenges immigrant women and girls face in the United States and the policy solutions to address them. Washington, DC: Tahirih Justice Center. https://www.tahirih.org/wp-content/uploads/2018/01/Tahirih-Justice-Center-Survey-Report-1.31.18-1.pdf.
World Bank. 2018. “Gender Based Violence (Violence Against Women and Girls).” Washington, DC: World Bank. http://www.worldbank.org/en/topic/socialdevelopment/brief/violence-against-women-and-girls.