Paula Bird was a student in Professor’s Birdsong Refugee and Asylum course in the Spring of 2010. She has written a very fine seminar paper outlining many of the problems concerned with victims of human trafficking, including women who are trafficked as sex slaves to the United States. Her paper is aimed at examining the difficulties victims of human trafficking face and proposing a solution to assist victims in overcoming those hurdles. She has given her permission to publish her paper to a wider world of people who might wish to learn of this phenomenon. Read and Enjoy.
Asylum for Victims of Human Trafficking
By
Paula Bird
Introduction
In the early hours of dawn,[1] officers and agents from the Dallas Police Department and the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement burst through the doors of a Korean brothel, owned by Mi Na Malcolm.[2] What they discovered in the confines of this Dallas building would shock and disturb most individuals’ confidence in the concept of the United States as the land of the free.[3] As a result of the raid, forty-two women were found living in appalling conditions.[4] Malcolm, the brothel owner, paid human traffickers to transport Korean women into the United States and then proceeded to force the women into prostitution to pay off their smuggling debts.[5] To ensure her control over the women and guarantee that the smuggling debts would be paid, Malcolm forced the women into “slave-like conditions.”[6]
She seized their passports.[7] They slept on carpets and floor mats.[8] They were made to prostitute themselves six and seven days a week, during which they were on call for sex at all times of the day.[9] It did not matter if they were sick, sore, and bleeding; they were still forced to work.[10] It was not uncommon for the women to eat, sleep, and work in the same spaces. Many were charged extra for basic necessities such as lodging and clothing.[11] All of their movements were monitored, either by an escort or video surveillance.[12] The women were her slaves and she was their owner, master, and abuser.
Malcolm was sentenced to ten years imprisonment and ordered to pay a fine of $460,000.[13] The U.S. Department of Justice praised the sentence as a “loud and clear message that those individuals who abuse the most helpless and vulnerable members of our society will be aggressively investigated, swiftly prosecuted, and firmly punished.”[14] This may certainly seem like a fitting ending to the story. After all, the bad guy, or in this case, the bad woman was caught and punished for her crimes. However, the story has yet to be concluded. Before the story can actually be completed, the question must be asked, “What happened to the forty-two women?” Immediately after the raid, these women were arrested and transported to an immigration center.[15] Since then, thirty-four of the women have been deported from the United States or are currently in removal proceedings.[16] Three were lucky enough to face no immigration or criminal charges.[17] Only five of the forty-two victims were considered to be potentially eligible for immigration benefits afforded to victims of human trafficking who assist law enforcement to prosecute the trafficker.[18] Were these victims, these women who the Department of Justice described as “the most helpless and vulnerable members of our society,” truly vindicated, or were they just further victimized?
This paper is aimed at examining the difficulties victims of human trafficking face and proposing a solution to assist victims in overcoming those hurdles. Part I discusses the definition and prevalence of trafficking. Part II acknowledges the steps that both the international community and the United States have undertaken to stamp out this modern form of slavery. Part III scrutinizes the effectiveness of asylum claims in the United States and considers the reasons for the rejection of many of these claims. Finally, Part IV explores what changes need to be made in order to provide a safe haven for those victimized at the hands of human traffickers.
- I. General Background on Trafficking
- a. Definition of Trafficking
Human trafficking has been in the spotlight of the international community for an extensive period of time.[19] As far back as 1904, a succession of treaties and agreements were created to criminalize trafficking and to assure cooperation among countries in taking action against traffickers.[20] Part of the focus of these treaties is directed at defining exactly what human trafficking encompasses.[21] According to the United Nations Crime Commission, in its Convention Against Transnational Crime and its Trafficking Protocol, trafficking is:
(1) An action, consisting of: recruitment, transportation, transfer, harboring, or receipt of persons; (2) By means of: threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power of position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another; (3) For the purpose of: exploitation (including, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude, or the removal of organs).[22]
Note that human trafficking, as defined, is not merely a case of smuggling people into countries, but that there must be a nefarious purpose behind it and an element of having and exerting control over another human being.[23]
The United States has adopted a definition of human trafficking, which although slightly different from the one endorsed by the United Nations Crime Commission, has the same basic characterization and elements of trafficking.[24] The United States recognizes two forms of trafficking: sex trafficking and other “severe forms of trafficking.”[25] Sex trafficking is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act,” which includes both voluntary and involuntary movement on the part of the person being trafficked.[26] The term “severe forms of trafficking” refers only to involuntary movement on the part of the person being trafficked.[27] “Severe forms of trafficking” include “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age,” or in which there is “the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”[28]
- b. Prevalence of Trafficking
Due to the highly clandestine quality of human trafficking, it has been a challenge to ascertain exactly how prevalent human trafficking is in the United States and around the world.[29] However, it is estimated that approximately 800,000 people are trafficked across international borders annually.[30] Notice that this astounding number refers only to those who are moved across international borders, meaning that it does not even begin to cover those victims who are trafficked within their country’s own boundaries.[31] Of those who are trafficked, approximately 80% are women and 50% are children.[32] Determining the number of persons trafficked into the United States is a bit murkier.[33] The Department of State, in a 2002 report, estimated that approximately 50,000 people were trafficked into the United State annually.[34] However, by the following year, the number was dropped to 18,000 to 20,000 people trafficked each year.[35] This estimate was once again lowered by the Department of Justice in 2005, lowering the number to 14,500 to 17,500 per year.[36] The reason for the change in statistics has not been explained,[37] but in any case, these numbers serve as a wake-up call in showing how rampant the problem is in the United States and offers a glimpse into how widespread the problem is globally. Furthermore, this business of transporting and owning human beings – this global epidemic of modern slavery – is thriving at an alarming rate, ranking third in profits directly behind the arms and drug trafficking markets.[38] Just a simple glance at these statistics clearly point to why there is such an outcry by the international community to construct strategies to combat this degradation of human lives.
- II. Treaties and Laws Against Human Trafficking
- a. International
In 1998, The United Nations General Assembly created a committee which launched the creation of the currently applicable international protocols regarding human trafficking.[39] After several meetings, the Convention Against Transnational Crime and the Smuggling of Migrants and Trafficking Protocols were drafted in 2000.[40] While the creation of these documents have proven to be beneficial in uniting nations in the fight against human trafficking, these documents were created with prioritization on the crime-fighting and law enforcement aspects of trafficking rather than the human rights perspective.[41] For instance, when it came to the law enforcement stipulations in both the Convention Against Transnational Crime and the Trafficking Protocols, mandatory language, such as “state parties shall,” were used, whereas in the sections focusing on human rights and victim assistance, relatively weak language, such as “state parties may,” were utilized.[42]
Several countries, such as Italy, the United Kingdom, Belgium, and others, have also instituted special trafficking visas into their possible immigration benefits.[43] These trafficking visas can provide temporary legal status to victims of human trafficking depending on the victim’s willingness and ability to assist in the investigation and prosecution of the traffickers.[44]
However, these trafficking visas are often limited in nature due to their heavy connection with their utilization as a crime-fighting tool.[45]
Thus, the United Nations High Commissioner for Refugees (hereinafter UNHCR) took up the sword in advocating the human rights protections which should be granted to victims of human trafficking.[46] Forced prostitution and sexual exploitation are specifically recognized as forms of persecution by the UNHCR’s Gender Guidelines stating that:
Some trafficked women and minors may have valid claims to refugee status under the 1951 Convention. The forcible or deceptive recruitment of women or minors for the purposes of forced prostitution or sexual exploitation is a form of gender-related violence or abuse that can even lead to death. It can be considered a form of torture and cruel, inhuman or degrading treatment. . . In addition, trafficked women and minors may face serious repercussions after their escape and/or upon return, such as reprisals or retaliation from trafficking rings or individuals, real possibilities of being re-trafficked, severe community or family ostracism, or severe discrimination. In individual cases, being trafficked for the purposes of forced prostitution or sexual exploitation could therefore be the basis for a refugee claim where the State has been unable or unwilling to provide protection against such harm or threats of harm.[47]
The UNHCR’s endorsement for protecting the basic rights which should be afforded to victims of human trafficking is a clear representation of how nations should respond to these unfortunate sufferers.
- b. United States
The United States has taken note of the pervasiveness of human trafficking, and as such, has taken steps to combat this immense problem. In December of 2000, the United States signed onto the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which is a supplement to the United Nations Convention Against Transnational Organized Crime mentioned in the above section.[48] The United States went even further by enacting the Victims of Trafficking and Violence Protection Act of 2000 (hereinafter VTVP Act).[49] The legislative history of the VTVP Act reflects an acknowledgement of trafficking as a human rights issue of global proportions and recognizes the necessity of fighting trafficking on the “triple fronts of prevention, prosecution, and protection.”[50] Of particular importance within the VTVP Act is the promulgation of the T Visa.[51]
The T Visa allows for temporary legal residence within the United States for victims of “severe forms of trafficking” if (1) the victim complies with any “reasonable request for assistance in the investigation or prosecution” of the trafficker(s) or (2) the victim is under fifteen years of age.[52] There must also be proof that the victim would face “extreme hardship involving unusual and severe harm upon removal.”[53] If the victim is granted the T visa and lives within the United States for a minimum of the following three years, she can then be granted lawful permanent residence by the Attorney General upon a showing of “good moral character” while assisting with the investigation and prosecution of the traffickers.[54]
Although the T visa may seem like a monumental feat in advocating the protection of victims of human trafficking, there are several critical limitations. The first limitation arises in the definition of “severe forms of trafficking.”[55] The term “severe forms of trafficking” requires an element of force, fraud, or coercion.[56] Therefore, those who originally consented to being smuggled into the United States but then find themselves in abusive, slave-like conditions would generally be excluded for eligibility for the T visa.[57] Furthermore, those who had previously been involved in prostitution prior to being transported into the United States would also be ineligible.[58] The difficulties inherent with distinguishing between coercion and consent, plus the added probability that a considerable number of victims of trafficking have had former ties with prostitution, severely limit the pool of applicants eligible for the T visa.[59]
The second limitation is due to the prioritization of the VTVP Act as a crime bill aimed at eradicating trafficking, rather than being employed as an instrument to promote human rights.[60] An essential requirement to be eligible for the T visa is cooperation with the investigation and prosecution of the traffickers.[61] However, this raises issues of difficulties on the part of the victim, such as a victim’s reluctance to face their persecutor.[62] Also, their ability to assist with the investigation and prosecution is often affected by variables out of their control.[63] For instance, the victim may not have the “essential” information that the law enforcement officers are in need of because the victim may only be aware of general information that is already known by the officers and is, therefore, of no use.[64] This focus on crime-fighting, while certainly commendable, in effect restricts the rights that are afforded to these unfortunate victims.
There is also a limit on the number of T visas which can be issued each year.[65] Only 5,000 T visas are allowed to be granted annually.[66] Considering that, at a minimum, at least 14,500 individuals are estimated to be trafficked into the United States each year, a limitation of 5,000 T visas certainly seems inadequate.[67] The numbers are even more staggering when viewed in light of the estimates stating that 50,000 individuals are trafficked annually into the United States.[68] Nevertheless, perhaps the most disturbing detail about the quantity of T visas issued is that the quota of 5,000 T visas annually has yet to even be met.[69] From the time of the T visas inception in 2001 up to 2008, only 1,094 T visas were granted to victims of human trafficking.[70] The security that the T Visa bestows on those fortunate enough to obtain it has eluded thousands of victims, which leads one to wonder if the protection that Congress initially set out to provide in the VTVP Act has honestly been successful.
- III. Asylum for Trafficking Victims
- a. Foundation and Elements of Asylum
For those unable to qualify and receive the benefits of the T visa, the next viable option is to apply for asylum under refugee law.[71] The asylum laws within the United States arose from the international standards for the protection of refugees originating from the 1951 United Nations Convention and the 1967 Protocol Relating to the Status of Refugees.[72] The United States assented to the provisions of the 1967 Protocol and in the year 1980, Congress proceeded to enact its own Refugee Act, which has the same basic provisions.[73] Under the Refugee Convention, a refugee is a person who:
[O]wing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.[74]
In essence, there are three basic elements which must be met in order to be granted asylum.[75] First, the applicant must have a “well founded fear of persecution.”[76] Second, that fear must be based upon either past persecution and/or the risk of future persecution.[77] Third, the persecution has to be “on account of race, religion, nationality, membership in a particular social group, or political opinion.”[78] As such, a victim of human trafficking would argue that she has a well founded fear of persecution by her traffickers, due to either past abusive actions against her and/or future risk of her traffickers retaliating against her, on account of her membership in the social group of vulnerable females. This is, of course, a bit of an oversimplification and generalization of how exactly a claim for asylum would be made. In reality, the specific facts of the case would be integral to how the applicant’s claim would be stated.
- b. Case Law of Asylum for Victims of Trafficking
The despair and powerlessness of an individual who has had her freedom stolen, who has been brutalized at the hands of others, and who does not possess the ability to shield herself from harm should, by all means, qualify for refuge under our asylum laws. Unfortunately, however, human trafficking asylum claims, along with other gender-related asylum claims, have not had as favorable of treatment as one would hope or expect.[79] In Rreshpja v. Gonzales, an unknown man attempted to kidnap Vitore Rreshpja, a young Albanian woman, as she was walking home from school.[80] Rreshpja managed to escape, but as she was running away her attacker yelled out that she “should not get too excited because she would end up on her back in Italy, like many other girls.”[81] This incident was reported to the police.[82] However, they informed her that there was nothing which could be done.[83] Fearful for her safety, Rreshpja’s family sent her to the United States.[84]
Upon having removal proceedings initiated against her, Rreshpja filed for asylum, withholding of removal, and protection under the Convention Against Torture, asserting that she would be forced into prostitution if she were required to return to Albania.[85] The Immigration Judge (IJ), Board of Immigration Appeals (BIA), and Sixth Circuit all concluded that Rreshpja failed to prove that the reason for her persecution would be due to her membership in a particular social group.[86] The court determined that the demographic which Rreshpja was a part of, that of “young (or those who appear to be young), attractive Albanian women who are forced into prostitution,” did not qualify as a social group for purposes of asylum.[87] They stated two reasons for concluding that this demographic could not qualify as a social group.[88] They first mentioned that almost all “pertinent decisions” have denied “generalized, sweeping classifications.”[89] Second, they declared that a social group may not be “circularly defined.”[90] In other words, the members of the group have to share a “narrowing characteristic other than their risk of being persecuted.”[91] The most striking piece of the court’s opinion, however, was the seeming concern that if Rreshpja’s claim were to be granted, then it would open the doors to claims brought by “virtually any” young, attractive Albanian woman.[92] The court made it supremely obvious that it had never been held, at least not by the BIA, that an entire gender can constitute a social group for asylum claims.[93]
In Kalaj v. Holder, another case involving a young, Albanian woman, the issue of what qualifies as a “social group” for purposes of asylum claims was once again explored.[94] As Vjolete Kalaj was walking home from the store, she was approached by three men who asked her if she would be interested in traveling to Italy to work as a waitress.[95] She declined their offer.[96] Just three days later, one of the same men from before, approached her and asked if she had changed her mind.[97] When she again declined his offer, he became aggressive in his manner of tone and facial expression.[98] Two weeks later, a white Mercedes Benz stopped in front of her as she was once again walking home from the store.[99] Two men came out of the car. Kalaj, correctly realizing that something was wrong, dropped her groceries and ran.[100] The men, nevertheless, managed to catch her and started dragging her back to the car.[101] Their attempt would have been successful had it not been for a good Samaritan who interceded and yelled at the men to stop.[102] The men ceased what they were doing, but as they were running away they shouted out that they knew where Kalaj lived and that they would return.[103]
Kalaj based her claim upon her membership in a social group defined as “young, impoverished, single, uneducated women who risk kidnapping and forced prostitution.”[104] The court acknowledged the high levels of human trafficking in Albania, deemed that Kalaj’s recitation of the facts were credible, and conceded that she had a valid and well-founded fear, but nonetheless, denied her asylum.[105] The court reasoned that Kalaj had failed to establish membership in a particular social group because she had not presented an “immutable” group trait other than that of a “generalized risk to women associated with the reportedly high levels of human trafficking in Albania.”[106]
Likewise, in Sarkisian v. Attorney General, a young Armenian woman was unsuccessful in persuading the court that her persecution was based on her membership in a particular social group.[107] Armine Sarkisian, an orphan who lived with her uncle, was abducted as she was on her way home from a friend’s house.[108] She was held against her will for five hours by three men, who tied her up, tore at her clothes leaving her partially undressed, and threatened that she would be their “slave” and would work for them as a prostitute.[109] Disturbingly, the men knew personal details about Sarkisian, such as her family situation and the location of her home. They also let her know that they were aware that Sarkisian’s uncle would soon be leaving Armenia.[110] Sarkisian eluded rape due to the mere fact that she would be worth more to them as a virgin.[111] The men eventually let her escape.[112]
However, that was not the end of the story. Two months later, the same men once again abducted Sarkisian and held her for approximately two and a half hours.[113] They pushed her around and she acceded to their demands but was able to convince them to release her for the time being.[114] Since her uncle was about to leave, Sarkisian was running out of time and she asked her uncle to report the incidents to the police.[115] Unfortunately, no action was taken by the police.[116] A friend of Sarkisian gave her a passport and bought her a ticket to come to the United States.[117] In addition to her testimony and other evidence which she offered to the Court, Sarkisian presented expert testimony by, Maria Velikonja, a former FBI agent who had prior experience with training foreign law enforcement on how to handle human trafficking.[118] The agent testified about the inadequacy of the Armenian police force, stating that the Armenian police were the “least experienced and least knowledgeable on [the] topic” of any other law enforcement group she had trained and that she would not recommend that a young woman in Armenia report a trafficking occurrence to the police.[119]
While conceding that Sarkisian’s story was credible, the court nevertheless concluded that the classification of her proposed membership, that of “young, Armenian women who were previously targeted for trafficking,” was insufficient to constitute an adequate social group to qualify for asylum.[120] The court specifically asserted that “possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular social group.”[121]
- c. Treatment of Trafficking Victims Across the Board: Statistical Analyses and Reasoning for Denials
The above cases are simply a few examples among a litany of cases involving women fleeing from trafficking only to be denied protection.[122] The Center for Gender & Refugee Studies (CGRS), a national resource center investigating the success of gender-related asylum cases, had tracked ninety-three cases in which trafficking was at least a substantial part of an applicant’s asylum claim.[123] The data from these cases is taken from information supplied to the CGRS by attorneys and appears to be the “largest and best available body of data” on how trafficking victims are being handled within the United States refugee system.[124] Of these ninety-three cases, there are fifty-two cases with information about the decision.[125] Within the Asylum Office, seven grants and four denials have been made.[126] There are thirteen grants and twenty-six denials in immigration court.[127] The BIA boasts a meager three grants of asylum accompanied by triple the number of denials.[128] Finally, the federal circuits lay claim to a total of zero grants and three denials.[129]
Of particular interest is the treatment of the cases arising from Albania,[130]the country from which both Rreshpja[131]and Kalaj[132] were citizens. Over one-third of the applicants of the ninety-three CGRS cases came from Albania.[133] It should come as no surprise then, that the United State’s State Department Trafficking in Persons Report for 2002, the year during which many of the attempted and successful abductions of the applicants occurred, ranked Albania as a “Tier 2” country and stated: “The Government of Albania does not yet fully comply with minimum standards for the elimination of trafficking; however it is making significant efforts to do so.”[134] The latest such report, from 2009, makes nearly the identical statement about the conditions of Albania, still listing it as a “Tier 2” country.[135] Whatever efforts these ongoing “significant efforts” consist of, what is truly significant for purposes of asylum law is the inability of the country to protect its citizens.[136] However, despite the well-documented and disturbing repute of the country as a place rampant with involvement in human trafficking, the majority of applicants have been denied asylum.[137]
The opinions of these human trafficking-based asylum claims are overwhelmingly alike in their reasoning.[138] The rationale for denying these claims is rarely due to the lack of veracity in the women’s accounts of feared or actual abduction, rape, trafficking, or forced prostitution.[139] In other words, the IJ’s, BIA, and courts are often not contesting the fact that these women have, in all actuality, been “persecuted.”[140] Rather, the foremost reason for denial of these claims is because these women are not considered to possess membership in any particular social group that can be defined under asylum law.[141] As a result, there is no qualifying “nexus” – that these women are not being persecuted “on account of” their membership in a particular social group.[142] Instead, the position frequently taken is that what these victims suffer at the hands of their traffickers are simply personal, criminal problems not deserving of protection under the United State’s refugee law.[143]
The difficulty of delineating what exactly is necessary to be encompassed within a particular social group for purposes of asylum law is noticeably apparent. Therefore, in order to fully comprehend the issue, it is crucial to scrutinize how immigration courts have defined a “particular social group.” The seminal case in determining the definition of a “particular social group” is In re Acosta.[144] According to the BIA in this case, the fundamental aspect of membership in a social group is that the members within the group must share a “common, immutable characteristic.”[145] The BIA further expanded upon this definition, stating, “[t]he shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience. . .”[146] Additionally, the shared characteristic must be a characteristic which the group members either “cannot change, or should not be required to change because it is fundamental in their individual identities or consciences.”[147]
Without a doubt, it appears that gender, a characteristic which is an unchangeable and fundamental aspect to every woman’s identity, should by all means fit perfectly within the meaning of a social group. This is especially true when taking into consideration the subjugation and disparagement that many women continue to face in less progressive countries. In fact, the UNCHR has expressly professed that women qualify as a “social subset of individuals who are defined by innate and immutable characteristics and are frequently treated differently to men . . . [and therefore,] may constitute a particular social group.”[148]
Why then, are so many victims of trafficking, and other gender-based applicants, being denied asylum due to their lack of membership in a particular social group? The common theme amongst many of the decisions which have denied asylum seems to be that the group is considered to be too large to be regarded as a particular social group.[149] The fear of prompting “an unwanted influx of women seeking asylum” by granting these women’s plea for refuge is wholly unwarranted.[150] Denying asylum because a particular social group happens to be too large diverges from the foremost objective of refugee law, which centers on a human rights concern for those who lack protection.[151] Moreover, the classic fear of setting off a floodgate of asylum seekers has not proscribed recognition of other large groups on the grounds of race, religion, and nationality – all groups which inevitably comprises of vast populations.[152] It cannot remotely be fair, then, that gender is deemed insufficient to qualify as a particular social group by the mere happenstance that it encompasses a large population. Furthermore, it is not as if all women will be eligible for asylum simply on the basis of her membership in the female gender.[153] Victims of trafficking must still prove a well-founded fear of persecution, as well as an unwillingness or inability of her native country to protect her from her persecutors, before she can be granted refuge.[154] Consequently, it stands to reason that claims based upon gender should not be singled out for denials of asylum by immigration courts.
- IV. Solving the Deficiency in Asylum Grants for Victims of Human Trafficking
- a. Replicate the Standards Set Forth by the United Nations’ High Commissioner for Refugees
Due to the abounding difficulty faced by countries and lawmakers in delineating the parameters of a social group, as intended to be defined by the 1951 Convention and 1967 Protocol, the UNHCR Gender Guidelines created a set of principles aimed at providing “interpretive legal guidance for governments, legal practitioners, decision-makers and the judiciary” on how to handle victims of gender-related persecution.[155] Recognizing that, historically, the definition of refugee has been construed through a “framework of male experiences,” the UNHCR acknowledged the fact that this has meant that many claims made by women have gone unrecognized.[156] The Gender Guidelines additionally mentioned that although gender is not specifically referenced in the definition of a refugee, gender can significantly affect the type of persecution experienced and the reasons for such treatment.[157] Specifically, the UNHCR defined a particular social group as, “a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society.”[158] “The characteristic will often be one which is innate, unchangeable, or . . . fundamental to identity, conscience or the exercise of one’s human rights.”[159] Following directly from this definition, the Gender Guidelines advanced that gender fits properly within the realm of the social group category, with women being a “clear example of a social subset defined by innate and immutable characteristics.”[160] Moreover, the UNHCR rebuffed the argument that gender-related claims are to be denied due to the mere size of the group, emphasizing that none of the other grounds are constrained by this question of size or number.[161] This clear championing of defining a particular social group so as to encompass gender should serve as a standard to be followed by the IJ’s, BIA, and judiciary in deciding asylum claims.
In terms of how the definition of a social group affects victims of human trafficking, the UNHCR crafted the Guidelines for Victims of Trafficking in order to assist in the amelioration of the obstacles placed before applicants.[162] In explaining the causal link between human trafficking and persecution on a Convention ground, the UNHCR identified human trafficking as a commercial enterprise, aimed more at profit than persecution.[163] However, the circumstances in which human trafficking tend to thrive often correspond with situations where victims and potential victims are particularly vulnerable precisely as a result of features contained in the definition of a refugee.[164] In other words, the enhanced vulnerability of women and children in some societies make them a target for traffickers.[165] Therefore, they are, in essence, targeted on the basis of their membership to a particular social group.[166]
The arbitrary treatment of victims of human trafficking within United State’s asylum law fails to appreciate the ultimate principle behind the 1951 Convention and 1967 Protocol – the ultimate human rights goal of extending protection to those vulnerable. And, until the standards set forth by the UNCHR are met, it is doubtful that the United States will be able to accurately profess that it is a country determined to offer shelter to the defenseless. Considering the fact that these International Guidelines provide a comprehensive exemplar of the standards and procedures which should be upheld and that there has yet to be a valid reason proposed for denying asylum on the basis of gender as a particular social group, United States’ asylum law should model the regulations imposed upon the IJs, BIA, and judiciary after the UNCHR Guidelines.
- b. Enforce the Current Immigration & Naturalization Service Gender Guidelines
In response to the international outcry regarding the failures of nations to adequately extend refuge to those persecuted on gender-related grounds, the INS did create the Considerations for Asylum Officers Adjudicating Asylum Claims from Women (INS Gender Guidelines).[167] The INS emphasized the elusiveness of defining membership in a particular social group, conceding that it was the “least clearly defined ground for eligibility as a refugee.”[168] The INS Gender Guidelines assert the magnitude of importance that gender may have upon a claim, specifically acknowledging that an applicant may bring a claim based upon a particular kind of harm which is either unique to women or is borne by women more frequently than men.[169] Becoming a victim of human trafficking undoubtedly fits within this description since, as stated previously, 80% of victims of human trafficking are females.[170] Despite recognizing that gender can be used as a basis to an asylum claim, the INS Gender Guidelines are, in all actuality, fairly vague as to how asylum officers should proceed in making a determination of whether gender qualifies as a particular social group.[171] Instead, it seems to simply highlight the unpredictability of the decisions amongst the courts.[172]
Besides the ambiguity still present in the INS Gender Guidelines, the principle reason why asylum officials and courts have yet to fully recognize gender as a particular social group is a result of the un-enforceability of the Guidelines.[173] Although all asylum officers are required to read the INS Gender Guidelines, they are not required to strictly adhere to its standards.[174] Rather, the principles set forth in the Guidelines are mere considerations or suggestions that asylum officers may or may not follow.[175] The arbitrary rulings by the IJs, BIA, and courts are a patent reflection of the indifference that asylum officials feel towards the INS Gender Guidelines. Until a binding rule expanding the definition of membership in a social group is imposed upon asylum officials, victims of human trafficking will continue to face nearly impossible hurdles in attempting to flee their persecutors.
- c. Emulate the Comprehensive Model Employed by Canada in Recognizing Gender as a Social Group
Simply enforcing the INS Gender Guidelines, as currently written, would still be insufficient in providing asylum officials with the proper framework to utilize when deciding gender-related claims, such as human trafficking claims, because it neglects to propose how exactly those principles should be applied.[176] In order for asylum officials to be fully informed of the appropriate analyses to employ in these cases, a step further must be taken in generating a comprehensive model. A useful model for the United States to exemplify would be the Canadian Gender Guidelines, which have attracted considerable attention from the international community because they were the first set of national guidelines to formally acknowledge that women fleeing from persecution due to their gender could be granted refugee status.[177] The Canadian Gender Guidelines clarify that while “gender is not specifically enumerated as one of the grounds for establishing Convention refugee status, the definition of Convention refugee may properly be interpreted as providing protection for women who demonstrate a well-founded fear of gender-related persecution. . .”[178] Membership in a particular social group, as defined by the Canada Supreme Court, is actually remarkably similar to the definition accepted by United States’ immigration courts.[179] The Supreme Court of Canada indicated three possible categories of a particular social group: “1) groups defined by an innate or unchangeable characteristic; 2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; 3) groups associated by a former voluntary status, unalterable due to its historical permanence.”[180]
As far as the application of the ground in regards to gender, the Immigration and Refugee Board of Canada deem gender as an innate characteristic, thereby allowing women to form a particular social group within the 1951 Convention refugee definition.[181] Accordingly, the appropriate assessment is whether the applicant, as a woman, has a well-founded fear of persecution in her country of origin due to her membership in this group.[182] Also, sub-groups of women may be found within a particular social group.[183] These sub-groups can be classified by reference to other factors which may also be innate or unchangeable, such as age, race, marital status, or economic status.[184] For example, sub-groups of women could include young women, unmarried women, or poor women[185] – all common characteristics of victims of human trafficking.[186] Thus, Vjolete Kalaj, one of the applicants denied asylum under United States refugee law, who defined her membership in a social group as “young, impoverished, single, uneducated women who risk kidnapping and forced prostitution,” would most likely be granted asylum under Canadian standards.[187]
In order to address the often insurmountable obstacles victims of human trafficking face in attaining asylum, a detailed and comprehensive model, such as that employed by Canada, must be implemented. Additionally, the standards must be rules that are mandated rather than mere suggestions that asylum officials may want to take into consideration. The ultimate goal should be to emulate the humanitarian rights principles advocated by the UNHCR. Otherwise, the purpose of the 1951 Convention and 1967 Protocol will not be achieved.
Conclusion
Enslavement of another human being is a practice deplored by the International community.[188] The degradation and abuse imposed upon victims of trafficking would make even the most cynical cringe with disgust. Even Congress has taken notice and has described trafficking as “an evil requiring concerted and vigorous action by countries. . .”[189] However, despite the efforts by Congress on the criminal front of eradicating human trafficking, there has been a failure of protection in providing asylum to these unfortunate victims.[190] To protect the rights of these victims, immigration law is obligated to step in where law enforcement efforts are not enough.[191] “Expansion of the definition of ‘refugee’ under U.S. law would prevent gender inequalities, reduce the trafficking of women and children as they would be unavailable for re-trafficking, and create uniformity in application of the law.”[192]
In conclusion, our Declaration of Independence recognizes the “inherent dignity and worth of all people.”[193] It asserts that “all men are created equal . . . and are endowed . . . with certain unalienable rights.”[194] This appreciation for the value of human life and freedom stands in direct contradiction to the treatment of victims of human trafficking. The abhorrent practice of modern slavery must be confronted as much from the humanitarian front, as from the criminal front. Ultimately, it is imperative that immigration law embraces the concept of the inclusion of gender as a social group, in order to uphold the values entrenched within the foundations of our country.
[1] Paul Meyer, Sex Slaves or Capitalists? Arrest of 42 South Korean women in Dallas brothel raids stirs debate on how trafficking laws used, The Dallas Morning News, May 7, 2006 available athttps://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/DN-sexslaves_07met.State.Bulldog.7eae7bb.html [hereinafter Meyer].
[2]Marisa Silenzi Cianciarulo, The Trafficking and Exploitation Victims Assistance Program: A Proposed Early Response Plan for Victims of International Human Trafficking in the United States, 38 N.M. L. Rev. 373 (2008) [hereinafter Cianciarulo].
[3] See Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Meyer, supra note 1.
[9]CianCiarulo, supra note 2.
[10] Meyer, supra note 1.
[11] Id.
[12]Cianciarulo, supra note 2.
[13] Id.
[14] Id.
[15] Meyer, supra note 1.
[16]Cianciarulo, supra note 2.
[17] Id.
[18] Id.
[19]Anna Marie Gallagher, Triply Exploited: Female Victims of Trafficking Networks – Strategies for Pursuing Protection and Legal Status in Countries of Destination, 19 Geo. Immigr. L.J. 99 (2004) [hereinafter Gallagher].
[20] Id. at 101.
[21] See Id. at 102.
[22]United Nations Convention Against Transnational Organized Crime, U.N. GAOR, 55th Sess., Annex 1, Agenda Item 105, at 25, U.N. Doc. A/55/383 (2000) (English version) [hereinafter Transnational Organized Crime Convention];Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, G.A. Res. 55/25, U.N. GAOR 55th Sess., Annex II, U.N. Doc. A/RES/55/25 (2001) [hereinafter Trafficking Protocol].
[23] See Id.
[24]Cianciarulo, supra note 2 at 379-80.
[25] Id. at 380.
[26] 22 U.S.C. §7102(9).
[27] 22 U.S.C. §7102(8).
[28] Id.
[29]Calvin C. Cheung, Protecting Sex Trafficking Victims: Establishing the Persecution Element, 14 Asian Am. L.J. 31 (2007).
[30]Central Intelligence Agency, The World Factbook (2010), available at https://www.cia.gov/library/publications/the-world-factbook/fields/2196.html.
[31] See Id.
[32]U.S. Dep’t of State, Trafficking in Persons Report 8 (2007), available at https://www.state.gov/documents/organization/82902.pdf [hereinafter TIP Report 8].
[33]Dina Francesca Haynes, (Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfill the Promise of the Trafficking Victims Protection Act, 21 Geo. Immigr. L.J. 337 at 343 (2007) [hereinafter Haynes].
[34]U.S. Dep’t of State, Trafficking in Persons Report June 2002 at 2 (2002), available at https://www.state.gov/documents/organization/10815.pdf [hereinafter DOS Trafficking Statistics 2002].
[35]U.S. Dep’t of State, Trafficking in Persons Report June 2003 at 7 (2003), available at https://www.state.gov/documents/organization/21555.pdf.
[36]U.S. Dep’t of Justice, Assessment of U.S. Government Efforts to Combat Trafficking in Persons in Fiscal Year 2004, at 4 (2005), available at https://www.usdoj.gov/ag/annualreports/tr2005/assessmentofustipactivities.pdf [hereinafter DOJ Trafficking Statistics 2005].
[37] Haynes, supra note 33 at 343.
[38] Gallagher, supra note 19 at 101.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id. at 118.
[44] Id.
[45] See Id.
[46] See United Nations High Commissioner for Refugees, Guidelines on International Protection on Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees (HCR/GIP/02/01) May7, 2002 [hereinafter UNCHR Gender Guidelines].
[47] Id.
[48]Tala Hartsough, Asylum for Trafficked Women: Escape Strategies Beyond the T Visa, 13 Hastings Women’s L.J. 77 (2002) [hereinafter Hartsough].
[49] Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 Division A, 114 Stat. 1464 (codified as amended in scattered sections of 22 U.S.C.).
[50]Hartsough, supra note 48 at 96.
[51]Jacqueline Bhabha, Internationalist Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights, 15 Harv. Hum. Rts. J. 155, 175 (2002) [hereinafter Bhabha].
[52]Hartsough, supra note 48 at 98.
[53] Id.
[54] Id. at 101.
[55]Bhabha, supra note 51.
[56]Hartsough, supra note 48 at 99.
[57]Bhabha, supra note 51.
[58] Id.
[59] Id.
[60]Hartsough, supra note at 101.
[61] Id. at 99.
[62] See Gallagher, supra note 19 at 121.
[63] Id.
[64] Id.
[65]Hartsough, supra note 48 at 99.
[66] Id.
[67] See generally DOJ Trafficking Statistics 2005, supra note 36.
[68] See generally DOS Trafficking Statistics 2002, supra note 34.
[69] See Lise Olsen, Sex Trafficking Victim’s Lives in Visa Limbo, Only half of the rescued women have gotten papers needed to make a fresh start in U.S., Houston Chronicle, Nov. 24, 2008, available athttps://www.chron.com/disp/story.mpl/metropolitan/6129019.html.
[70] Id.
[71]Hartsough, supra note 48 at 102.
[72] Leonard Birdsong, A Legislative Rejoinder to “Give Me Your Gays, Lesbians, and Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution…”, 35 Wm. Mitchell L. Rev. 198, 201 (2008) [hereinafter Birdsong].
[73] Id.
[74] Protocol Relating to the Status of Refugees, Oct. 4, 1967, 606 U.N.T.S. 267 at Article 1(2) (incorporating by reference Article 1(a)(2) of the 1951 Convention).
[75] Birdsong, supra note 72.
[76] Id.
[77] Id.
[78] Id.
[79]Stephen Knight, Asylum from Trafficking: A Failure of Protection, 07-07 Immigr. Briefings 1 (2007) [hereinafter Knight].
[80]Rreshpja v. Gonzales, 420 F.3d 551, 553 (2005).
[81] Id.
[82] Id.
[83] Id.
[84] Id.
[85] Id. at 554.
[86] Id. at 555.
[87] Id.
[88] Rreshpja, 420 F.3d at 555.
[89] Id.
[90] Id.
[91] Id. at 556.
[92] Id.
[93] Id. at 555.
[94]Kalaj v. Holder, 319 Fed. Appx. 374 (2009).
[95] Id. at 375.
[96] Id.
[97] Id.
[98] Id.
[99] Id.
[100] Id.
[101]Id.
[102] Kalaj, 319 Fed. Appx. at 375.
[103] Id.
[104] Id. at 376.
[105] Id.
[106] Id.
[107]Sarkisian v. Attorney General, 322 Fed. Appx. 136 (3rd Cir. 2009).
[108] Id. at 138.
[109] Id.
[110] Id.
[111] Id.
[112] Id.
[113] Id.
[114] Id.
[115] Sarkisian, 322 Fed. Appx. 138.
[116] Id.
[117] Id.
[118] Id.
[119] Id.
[120] Id. at 139.
[121] Id. at 143.
[122] See Knight, supra note 79 at 5.
[123] Id. at 1, 5.
[124] Id. at 5.
[125] Id.
[126] Id.
[127] Id.
[128] Id.
[129] Id.
[130] See Knight, supra note 79 at 5.
[131] See generally Rreshpja, 420 F.3d 551.
[132] See generally Kalaj, 319 Fed. Appx. 374.
[133] Knight, supra note 79 at 5.
[134] U.S. State Department, 2002 Trafficking in Persons Report, Country Narratives–Countries A through G, available athttps:// www.state.gov/g/tip/rls/tiprpt/2002/10679.htm.
[135] U.S. State Department, 2009 Trafficking in Persons Report, Country Narratives–Countries A through G (“The Government of Albania does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so.”), available athttps://www.state.gov/documents/organization/123357.pdf.
[136] Knight, supra note 79 at 10.
[137] Id. at 5.
[138] Id. at 6.
[139] Id.
[140] See Id.
[141] Id.
[142] Id.
[143] Id.
[144] In re Acosta, 19 I & N Dec. 211 (BIA 1985).
[145] Id.
[146] Id.
[147] Id.
[148] UNHCR, Guidelines on International Protection: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked, 19 Int’l J. Refugee L. 372 (2007) [ hereinafter Guidelines for Victims of Trafficking].
[149]Jessika Johnson, Rreshpja v. Gonzales: The Sixth Circuit’s Failure to Consider Geneder’s Place in Asylum Claims, 14 Tul. J. Int’l & Comp. L. 623, 630 (2006) [hereinafter Johnson].
[150] Id.
[151] See generally 1951 Convention Preamble, available athttps://www2.ohchr.org/english/law/refugees.htm.
[152] Johnson, supra note 146.
[153] Id. at 639.
[154] Id. See generally Protocol Relating to the Status of Refugees, Oct. 4, 1967, 606 U.N.T.S. 267 at Article 1(2) (incorporating by reference Article 1(a)(2) of the 1951 Convention).
[155] UNHCR Gender Guidelines, supra note 46
[156] Id. at 2.
[157] Id. at 3.
[158] Id.
[159] Id.
[160] Id. at 7.
[161] Id.
[162] Guidelines for Victims of Trafficking, supra note 148.
[163] Id. at 383.
[164] Id.
[165]Id.
[166] Id.
[167] United States Bureau of Citizenship and Immigration Services, Considerations for Asylum Officers Adjudicating Asylum Claims from Women, 26 May 1995, available athttps://www.unhcr.org/refworld/docid/3ae6b31e7.html [hereinafter INS Gender Guidelines].
[168] Id. at 12.
[169] Id. at 8.
[170] See generally TIP Report 8, supra note 32.
[171] INS Gender Guidelines, supra note 12-16.
[172] Id.
[173] See Id. at 1-19.
[174] See Id.
[175] See Id.
[176] See generally Id.
[177] Id. at 3.
[178]Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, Guideline 4, Women Refugee Claimaints Fearing Gender-Related
Persecution, available at https://www.irb-cisr.gc.ca/Eng/brdcom/references/pol/guidir/Pages/women.aspx#AIII [hereinafter Canada Gender Guidelines].
[179] See Id.; see also In re Acosta, 19 I & N Dec. 211.
[180] Canada Gender Guidelines, supra note 176; Canada v. Ward, 2 S.C.R. 689 (1993).
[181] Canada Gender Guidelines, supra note 176.
[182] Id.
[183] Id.
[184] Id.
[185] Id.
[186] 22 U.S.C. §7101(b)(4).
[187] See generally Kalaj, 319 Fed. Appx. 374.
[188] See generally UNHCR Guidelines for Victims of Trafficking, supra note 148.
[189] 22 U.S.C. §7101(b)(21).
[190]Sara Elizabeth Dill, Old Crimes in New Times, Human Trafficking and the Modern Justice System, 21 Spg Crim. Just. 12 (2006).
[191] See Id. at 16-17.
[192] Id. at 17.
[193] 22 U.S.C. §7101(b)(22).
[194] Id.
