Professor Birdsong’s student, Joneall’e Hill, has granted her permission to for me to post her interesting, timely and well written seminar paper wherein she argues why Human Trafficking should be a recognized ground for asylum in the United States. Please read it and learn.
Human Trafficking: Should be a Recognized Ground for Asylum.
Joneall’e I. Hill © 2012
- I. Introduction
Webster’s New Collegiate Dictionary defines slavery as: “drudgery, toil,” or “submission to a dominating influence,” or “the state of a person who is a chattel of another.”[1] A vast majority of the general public finds slavery inhuman and awful.[2] In fact, the Thirteenth Amendment of the United States Constitution abolished slavery.[3] What the Thirteenth Amendment did not do, was guarantee that all forms of slavery would cease to exist here in the United States. Unfortunately, although many people may not realize it, a form of modern day slavery is still among us.
Over the past 15 years, “human trafficking” also known as “trafficking in persons” are phrases that have been used to describe modern day slavery.[4] The United States government defines trafficking in persons to include all criminal conduct involved in forced labor and sex trafficking.[5] Essentially, any conduct which compels the service of another person.[6] Human trafficking seems to connote movement, but actually at the heart of the human trafficking phenomenon is the enslavement and not the actual international transportation activities that are involved.[7]
Human trafficking has gained a considerable amount of attention around the world; it has been covered in the news and it has been the focus of many documentaries. Even still, the topic remains unknown to a lot of people. For those who are aware of the topic, an even smaller number fully understand it. I first became interested in human trafficking when I took a politics of Japan course as an undergraduate student. At that time, I was introduced to human trafficking in the context of “comfort women” –women who were forcibly and repeatedly raped to meet the needs of Japanese soldiers during World War II.[8] From that point on, human trafficking has been troublesome to me. It is a topic for which I am passionate. It is a real problem with real victims. For those reasons, I chose to write this paper on the topic. A solution to human trafficking needs to be reached soon, and not later. The time is now.
This paper will broadly discuss an overview of human trafficking. Part II of this paper will discuss the background of asylum law focusing on laws that directly apply to human trafficking. Part III of this paper includes background information on human trafficking to provide the foundation for the analysis which follows. While recognizing that there are many forms of human trafficking, part IV of this paper will narrow the focus to three areas: sex trafficking, organ trafficking, and forced labour trafficking. Part V of this paper contains the analysis of why human trafficking victims face additional barriers in their asylum claims. Part VI of this paper proposes solutions to those barriers. Part VII of this paper contains proposed language to be included in future immigration law. The paper concludes with part VIII, which advocates that human trafficking should be a recognized sub-category within “particular social group” for the purposes of asylum law.
II. Asylum Law and Human Trafficking
A. Generally
The United Nations High Commissioner for Refugees (UNHCR)[9] adopted the 1951 United Nations Convention relating to the Status of Refugees (hereinafter 1951 Convention) which declared the 1951 Convention to be, “the key legal document in defining who is a refugee[10],” and “their rights” as well as “the legal obligations of states.”[11] The 1967 Protocol amended the 1951 Convention thereby allowing the term “refugee” to also apply to persons after January 1, 1951.[12] Approximately 150 of the world’s 200 states have signed the 1951 Convention and/or its 1967 Protocol which signifies the undertaking to protect refugees and not to return them to their country of origin where they face persecution.[13] In 1980, United States enacted the Immigration and Nationality Act (INA) into its immigration law which codified the 1967 Protocol.[14]
B. The United Nations Convention against Transnational Organized Crime
In November of 2000, the United Nations Convention against Transnational Organized Crime[15] was adopted by General Assembly resolution (hereinafter United Nations Convention).[16] The United Nations Convention is the main international instrument used to fight against transnational organized crime.[17] Upon ratification of the United Nations Convention, the United States, as well as other signatory countries, recognized the problem of human trafficking, the commitment to fight against it, and established a legal means providing a form of protection for victims of human trafficking.[18] “The purpose of United Nations Convention is to promote cooperation and to prevent and combat transnational organized crime more effectively.”[19]
C. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
In 2000, the United States signed onto the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereinafter Trafficking Protocol) with the purpose, “to prevent and combat trafficking in persons, paying particular attention to women and children.”[20] The Protocol also set out, “to protect and assist the victims of such trafficking, with full respect for their human rights.”[21] Its third enumerated purpose is, “to promote cooperation among States Parties in order to meet those objectives.”[22] The Protocol is the first legally binding instrument with an agreed upon definition of human trafficking.[23]
D. Victims of Trafficking and Violence Protection Act of 2000
The United States signed the Victims of Trafficking and Violence Protection Act of 2000 (hereinafter VTVP Act).[24] The goal of the act is to recognize human rights in global proportions and to fight human trafficking on the, “triple fronts of prevention, prosecution, and protection.[25] The VTVP Act promulgated the T Visa which provides an alternative for those who do not qualify for asylum.[26] Receipt of the T Visa requires victims to participate with authorities, but this is problematic because many of the victims fear threats from the traffickers[27] to retaliate against them and/or their families.[28] Another reason why the T-Visa is not a viable solution is because only five thousand are granted annually to human trafficking victims.[29] Although the five thousand mark is never reached[30] with estimates as high as four million persons trafficked across borders every year[31] the T Visa limitation does not provide an adequate remedy for the many victims of human trafficking. The victims must also demonstrate that they “would suffer extreme hardship involving unusual and severe harm” if they were removed from the United States.[32] To satisfy this condition the victim could present newspaper articles of similar victims who are being persecuted in their home country. The victim could also submit letters from family members back in the origin country advising them that they should not return because they would be in risk of persecution. But what if the family members are the persecutors and are unwilling to assist the victim? This creates yet another barrier for trafficking victims.
III. Human Trafficking Background Information
There is a distinction between trafficking and smuggling.[33] Smuggling is typically initiated by people who volunteer or pay to be smuggled into another country.[34] Human trafficking typically involves victims whom have been tricked or coerced.[35]Interestingly enough, some human trafficking victims enter the United States on a legal basis.[36] However, it is not uncommon for those who voluntary engage in smuggling to end up being forced into human trafficking.[37] Moreover, it is the final destination that makes one a victim of human trafficking and not the original origin where one consented to smuggling.[38] Most smuggled person consists of males as opposed to an estimated eighty percent of trafficking victims who are female.[39]
The victims are forced into prostitution and prohibited from leaving.[40] The typical process involves traffickers assisting the victims financially to transfer abroad by covering the costs of transportation, passports, and visa acquisition.[41]Trafficking victims find themselves in a debt bondage owing tens of thousands of dollars once they arrive at the destination country.[42] Traffickers force the victims to work to pay off the debt and the traffickers help themselves to a cut of the profit.[43] Victims are rarely able to pay off the debt.[44] To control the women that are being prostituted, traffickers employ numerous tactics including: threats against the victim’s family, brutal beatings and sexual violence, deceit, isolation, blackmail, and psychological pressure.[45] Many of the victims are closely watched by their trafficker, making the chance to escape impossible.[46]
Human trafficking is very lucrative as it ranks as the third most lucrative organized crime group, right behind arms and drugs trafficking markets.[47] The large monetary gain that the traffickers receive makes it clear why they partake in the human trafficking market. The answer to the financial incentive of human traffickers is to grant the victims asylum. Here is why, the more human trafficking victims that are granted asylum will directly decrease the number of victims available on the market. The obvious goal of granting the victims asylum, and though perhaps unrealistic, would be to completely deplete the number of human trafficking victims. While that goal may not be attainable, the implications of granting asylum to the victims may reduce the lure of the market. For instance, if a large number of human trafficking victims are granted asylum, the overall availability of victims significantly decreases. This in turn decreases the profitability of human trafficking making it less appealing to traffickers which would cause the human trafficking market to decline considerably.
Victims of human trafficking typically lack the required legal status to remain here in the United States.[48] This allows the traffickers to take advantage of the victims because the risk of detection and prosecution is highly unlikely.[49] Human trafficking needs to be classified as a sub-set of a “particular social group” so that the victims have an entry point into asylum proceedings.
IV. Different Forms of Trafficking
This section of the paper narrows the focus from an overview of human trafficking to focus on specific forms of trafficking. Of course, human trafficking is not limited to only a few categories, but I believe that a narrow focus offers readers a meaningful foundation for the trafficking phenomena and thus aide in the understanding of why it is crucial for human trafficking, as a whole, to be a “particular social group” enabling the victims to be granted asylum.
A. Sex Trafficking
I felt it necessary to include sex trafficking as one of the sub-categories covered herein as it is the most prevalent form of human trafficking. Sex trafficking is defined as, “[occurring] when people are forced or coerced into the commercial sex trade against their will.[50] In other words, sex trafficking is “human trafficking into prostitution.”[51] The UN Offices of Drugs and Crimes estimate that there are 2.5 million victims of human trafficking at any given time and that 79% of human trafficking is for the purpose of sexual exploitation.[52] Disturbingly, 98% of those involved in human trafficking are women and girls.[53]
In the global context sex trafficking is comprised of four components: first “the men who buy commercial sex acts,” and of course, “the exploiters who make up the sex industry,” and third, “the states that are destination countries,” and last and arguably why the problem continues to exists, “the culture that tolerates or promotes sexual exploitation.[54] Sex trafficking is very lucrative and is estimated to globally rake in between $7 billion and $12 billion dollars annually.[55] “The sexual services of trafficked victims can be sold again and again,”[56] this allows the services of just one victim to account for countless profits in the overall trafficking estimate. To illustrate the point, this differs from the sale of, say, a gun for example because once the gun is sold it is sold and out of the market.[57]
The findings demonstrate that sex trafficking disproportionately affects women. But more so, what the examination of sexual trafficking does is support the conclusion that gender needs to be directly accounted for in asylum law. Not necessarily as a separate enumerated ground for which persecution can be established, but as an explicitly identified group within the meaning of a “particular social group.”
B. Organ Trafficking
Trafficking in organs was a novel and shocking concept to me as I was first introduced to it through general human trafficking research. The subject presented another form of human trafficking that I had not previously considered; the market of organ trafficking. Trafficking in organs is the secretive trade in human body parts.[58] The problem of organ trafficking is no longer just a domestic issue but an international problem.[59] As transport technology advances the need for organs has also increased enormously.[60] The supply of organs has not been able to keep up with the demand leaving organ trafficking market wide open.[61] Organ trafficking is a lucrative hidden economy.[62] Take for instance the story of Rani, a woman in Tsunami Nagar who was taken advantage of by organ brokers. Rani, in desperate need of money to pay the medical expenses to save her daughter’s life, agreed to sell her kidney to an organ broker.[63] Organ trafficking occurs whenever a human is trafficked for the purpose of selling organs for use in transplant procedures that benefit another individual.[64] This is organ trafficking even if the organs are given voluntarily.[65]
It is not hard to imagine why victims of forced organ trafficking should find protection in asylum. But what about those who voluntary donate their organs? Are they deserving of protection? The answer is simply, yes. The answer in the affirmative is not to circumvent proper procedures for organ transplants by allowing the victims to voluntary take a chance in organ trafficking and then allowing them a platform for grievance if the transplant goes wrong. But it is very important that organ donors, even if voluntary involved in organ trafficking, be aware that certain protections exist if they face medical complications. This will make the donors more likely to come forward. The brokers who organize the removal of the organs have very little incentive to ensure that the procedures are done safely. The donors have no consequences to consider. If the brokers knew that they face certain penalties if upon complaint of the donors, this would serve as a deterrence mechanism.
C. Forced Labor
For the purposes of international law, International Labour Office (ILO) defines forced labour as, “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntary.”[66]
Forced labour restricts human freedom and represents a severe violation of human rights.[67] It is important to note that forced labour is not based on economic necessity alone and cannot be used simply to describe poor working conditions or low wages.[68] A case study in Immokalee is an example of a forced labour. Here, forced labour will be examined in a narrow context focusing on a case study in Immokalee, Florida. On January 17, 2007 nine defendants were charged with forcing undocumented immigrants to work in slave like conditions in Immokalee.[69] Domestic workers, mainly female migrants, are particularly vulnerable to forced labour.[70] This is because of the nature of the work is unprotected and the workers work in a personalized setting with the employer.[71]
The vast majority of member States have ratified one or more of ILO’s Conventions joining in the fight against forced labour.[72] The member States who have already ratified the Convention should be commended. The ratification indicates that the States have recognized forced labour to be a problem. The ratification, in effect, made the States accountable to workers involved in forced labour. Still, more needs to be done. Many of the member States have only provided for the specific offence in their labour law, and not into the criminal law of the respective state.[73] Adding forced labour as a criminal offence in member States criminal law would serve as a deterrent to employers who force workers into forced labour.[74] The law may be used in general terms or may fail to specify appropriate penalties for using forced labour.[75]
Forced labour should be added as an offence into criminal law with clear specific penalties for those who commit the offence. It is estimated that between 10,000 to 20,000 victims are trafficked annually into the United States, and between 30,000 to 50,000 sex slaves are held in captivity in the United States.[76]
A Member in a Particular Social Group, What does it mean?
A. In re Acosta
A clear definition of the meaning “particular social group” would be helpful in asylum law. Of the five enumerated categories, “Membership in a particular social group” is one of the most difficult factors listed in the 1951 Convention and in the United States statue.[77] In 1985, the Board of Immigration Appeals’ (BIA) holding in Matter of Acosta set a precedent defining “persecution on account of membership in a particular social group.” Acosta held that it meant, “Persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.”[78]The case also held that, “The 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 such as former military leadership or land ownership.”[79] The finding of a qualifying common group characteristic “remains to be determined on a case-by-case basis.”[80] Regardless of the common characteristic found “it must be one that the members of the group either cannot change, or should not be required to change.”[81]
The definition of “particular social group” held In re Matter Acosta provides a residual category for those who do not qualify for asylum because the persecution was not based on race, religion, nationality, or political opinion. This category offers promise to the victims of human trafficking. Being that the victims of human trafficking do not qualify for asylum based on race, religion, nationality, or political opinion the victims could qualify for asylum based on a membership in a “particular social group.” “Membership in a particular social group” should be more clearly defined. Human trafficking should be explicitly identified as one of the groups within the meaning of a “particular social group”.
B. Gender
Sex trafficking is the largest form of human trafficking which is composed of nearly all females.[82] This fact clearly indicates the vital need to include gender as a recognized ground.[83] “Enhancing understanding of and sensitivity to gender-related issues will improve U.S. asylum adjudications…it is important that United States asylum adjudicators understand those complexities and give proper consideration to gender-related claims.[84]
C. In the Matter of Kasinga[85]
The BIA held that “female genital mutilation” (FGM)[86] can be a basis for asylum.[87] BIA found the characteristics of a “young woman” and “member of the Tchamba-Kunsuntu Tribe” cannot be changed which met the criteria of a “particular social group.”[88]
Kasinga opened the door to future gender-based asylum claims but its scope is limited to FGM. More needs to be done. Advocates pro including gender, including myself, believe that the including of gender within a “particular social group” will serve as an entry point for asylum claims which are not presently covered by the Refugee Convention.[89]
D. Social Visibility
Between 2006 and 2008 social visibility factor became a requirement for any applicant asserting a “particular social group” claim.[90] This meant that for an applicant to be successful, said applicant had to establish the immutability trait as well as social visibility.[91] The social visibility requirement is unreasonable and makes absolutely no sense whatsoever.[92] Victims in fear of persecution would do anything to not be visible.[93] The “social visibility” requirement creates a grave danger for human trafficking victims. Even if the remainder of the “particular social group” elements are present, requiring the victims to be socially visible requires them to put there life and or their family lives in jeopardy. The “social visibility” requirement needs to be abandoned.
E. Particularity
The BIA also required applicants to demonstrate “particularity” if the asylum claim is based on membership in a “particular social group.[94] A simple reinforcement or restatement of the basic Acsota immutable trait passes the “particularity” test.[95] However, the BIA has rejected groups that otherwise meet the Acosta standard but fail to meet this particularity criteria.[96] Moreover, if only a simple restatement of the immutable trait is all that is needed, why have the requirement at all? Similar to the “social visibility” requirement in asylum claims based on membership in a “particular social group” the “particularity” requirement makes little, if any sense. Deborah Anker, author of Law of Asylum in the United States finds the requirements problematic, “Both social visibility and particularity threaten the Acosta framework and its statutory and logical integrity. Either a self-correction by the Board or clarifying regulations or legislation, all of which have been proposed, would be a welcome development.[97] Once the applicant has been identified as a member of a “particular social group” that ground in of itself should be meet the burden of the enumerated category.
The particularity requirement may have been established as a response to floodgate concerns, or a reaction to “circular” and “overly narrowly defined” members of a “particular social group.”[98] Granting asylum to victims of human trafficking does not lessen the applicant’s burden as the victim must still prove their case.[99] The claim must still be valid and a finding of a false claim precludes the applicant from making future claims. In 1999, only one out of four asylum seekers were granted refugee status.[100] Thus, it is highly unlikely and even unrealistic that removal of the “particularity” requirement among other things will open the asylum floodgates. The additional tests requiring asylum victims to demonstrate “social visibility” and “particularity” need to be abandoned.
VI. Proposed Solutions
Victims need a solution to the human trafficking problem. The asylum statue needs to be amended to define a clear meaning of “membership in a particular social group.” Further, the asylum amendment needs to state that victims of human trafficking are an identifiable group within the meaning of a “particular social group.” The amended statue needs to be applicable to all human trafficking victims including those involved in sex trafficking, organ trafficking, and forced labour. Immigration judges (IJs) have a great deal of discretion when deciding asylum cases.[101]
For those cases that fall under “particular social group” a clear definition with human trafficking qualifying as such included therein would be meaningful in providing guidance to IJs, applicants, and their attorneys. A clear standard would serve to lessen the IJs broad discretion and increase similar outcomes in cases that involve the same or similar facts.
The second proposal is for asylum law to recognize gender as a protected group within the meaning of “particular social group.” Gender need not be a separate, or new, ground added to the five already established grounds. Several tribunals of member States to the 1951 Convention have recognized that women are often trafficking victims because of gender.[102] The tribunals found a nexus to a “particular social group” because the women were “women in Azerbaijan,” “young, female, rural Fujanese,” “women of a minority clan,” “single women without male protection,” and “young women in Albania.”[103] Exemplary above, the tribunals did not allow a finding of membership in a “particular social group” based on gender alone. Gender needs to be explicitly stated a recognized “particular social group.”
Lastly, the two-prong test of social visibility and particularity need to be eliminated as requirements for asylum victims in order to establish that they are a member in a “particular social group.” The social visibility prong directly jeopardizes the lives of those who are already in fear of persecution. The particularity requirement is “at best, redundant and at worst confusing and even incoherent.”[104] Mary Robinson, United Nations High Commissioner for Human Rights, said it best in her keynote address: “A human rights approach to trafficking…demands that we acknowledge responsibility of governments to protect and promote the rights of all persons within their jurisdiction.” She went on to say, “This responsibility translates into a legal obligation on governments to work towards eliminating trafficking and related exploitation. Passivity and inaction are insufficient. Tolerance or complicity is inexcusable.”[105]
In summary, the Immigration And Nationality Act of 1952 needs to be amended to include the following changes:
- A clear meaning of the phrase, “particular social group” needs to be established so that a consistent understanding of the phrase will be readily identifiable to groups who wish to commence asylum proceedings. This is imperative as the courts have demonstrated inconsistent verdicts in cases involving almost identical facts. If “particular social group” had a clear meaning it will aide not only the potential applicants seeking asylum but also provide guidance to those who are responsible in adjudicating asylum claims.
- Gender needs to be explicitly stated as a qualifying group for members who fit within the membership of a “particular social group” requirement. This is not meant to be the end of the inquiry, of course. Applicants who are seeking asylum must still meet the additional burden of proof, “…owing to a well-founded fear of being persecuted…is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of the country of his former habitual residence…”[106]
- The social visibility requirement needs to be established. Asylum applicants should not be required to make their selves socially visible. Asylum law in its human rights capacity was formed to give protection to those who face persecution in their home country. Requiring asylum applicants to be socially visible seems counterintuitive to helping protect them. The social visibility, as the name implies, requirement means that the asylum applicant has to be recognized socially. This is outrageous. Asylum law should not only abandon the requirement of making applicants socially visible but is should encourage the victims to remain “invisible” in the eyes of their would-be persecutors to avoid persecution.
- The particularity requirement needs to be abandoned. The requirement is redundant and makes little sense in asylum applicants establishing their membership in a “particular social group.”
VII. Proposed Language for Model Legislation
Amendment to:
The Nationality Act of 1952: This amendment shall serve to amend the Nationality Act of 1952 in regards to the terms of those who qualify as a member of a “particular social group.” Human trafficking- “human trafficking” also known as “trafficking in persons” are phrases that have been used to describe modern day slavery.[107] The Nationality Act of 1952 shall apply to all victims who expressly fit within the human trafficking definition previously given for purposes of those members who are identified as falling within a “particular social group” for the purposes of asylum law. Gender- gender plays a crucial role in those who become victims of human trafficking.[108] For those reasons, gender is now an explicitly recognized group satisfying the requirement of those who fit membership within a “particular social group” for the purposes of asylum law. Social visibility: the social visibility requirement previously established shall now be abandoned by this amendment. Social visibility requires asylum applicants to be visible which directly puts them in harm by way of persecutors. Particularity- particularity requirement as the second prong required for asylum applicants to be considered a member in a social group is now abandoned. The particularity requirement adds little to the analysis when considering if the applicant should be granted asylum.
The above proposed language to the Immigration Nationality Act is not meant to lessen applicant’s burden in asylum proceedings. Thus the applicant must still establish that he or she, “is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of the country” the applicant must also establish that, “or not 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.”[109]
VIII. Conclusion
Of the 2.5 million men, women, and children that have been victims of human trafficking at any given time, one-third of those persons have been trafficked for economic gain other than just sexual exploitation purposes.[110] This is indicative that adding gender alone as a protective ground, cannot resolve the human trafficking problem.[111] The addition of gender is a good start, but it is merely a start. Asylum law needs to go much further and adopt a broader approach. Identifying human trafficking categorically as an area that warrants protection in asylum law will provide greater protection to human trafficking victims.[112]
It is time that the United States takes a stand to effectively fight against human trafficking and to provide the victims with protection in our asylum laws. Our asylum has taken steps to protect human trafficking victims through enacted certain laws aimed directly at the victims. Still, much more remains to be done. The above proposals with respect to our immigration laws need to be addressed. More specifically, they need to be implemented. By adding the proposals to our immigration law, human trafficking victims from everywhere can do exactly what our refugee law was meant to do. That is, protect those who are in fear of and being persecuted. As the above information supports, human trafficking is not a small issue. It is an issue on a global level that urgently needs a solution.
The longer the United States takes to implement laws that directly address human trafficking victims, the more lives will be life. The United States can no longer fail to recognize human trafficking and gender alone as sufficient grounds in meeting the requirement for membership in a “particular social group.” We, as a country that prides itself on freedom of all people and equal protection rights for all, simply cannot afford to ignore the cries of human trafficking victims any longer.
[1]Webster’s New Collegiate dictionary 1091(8th ed. 1973).
[2] Richard holbrooke, Foreword to E. Benjamin Skinner, A Crime So Monstrous Face-to-Face With Modern-Day Slavery xi (Free Press, 2008).
[3] U.S. Const. amend. XIII, § 1. (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”).
[4] U.S. Department of State, https://www.state.gov/j/tip/what/index.htm (last visited Dec. 10, 2012).
[5] Id.
[6] U.S. Department of State, https://www.state.gov/j/tip/what/index.htm (last visited Dec. 10, 2012).
[7] U.S. Department of State, https://www.state.gov/j/tip/what/index.htm (last visited Dec. 10, 2012).
[8] Maki Arakawa, New Forum for Comfort Women: Fighting Japan in United States Federal Court, A, 16 Berkeley Women’s L.J. 174, 177 (2001) (beginning in 1931, the Japanese government devised the comfort women system to: 1) prevent soldiers from uncontrollably raping local women, 2) preserve the soldiers strength by controlling the spread of venereal disease, 3) increase the soldiers fighting strength, 4) increase morale and provide a leisure and recreational reward for the soldiers for fulfilling their patriotic duties, 5) protect the nation against espionage, and to 6) tax the comfort stations to raise revenue).
[9] The UN Refugee Agency, www.UNHCR.org/homepage/aboutus/historyofUNHCR (establishing UNHCR on December 14, 1950 by the United Nations General Assembly was for the purpose of helping Europeans displaced by WWII.) (last visited Dec. 10, 2012).
[10] Convention relating to the Status of Refugees, art. 1A(2), July 28, 1951, 189 U.N.T.S. 150, available at https://www2.ohchr.org/English/law/pdf/refugees.pdf.
The 1951 Convention defines the term refugee:
As a result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of 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 as a result of such events is unable or, owing to such fear, is unwilling to return to it.
[11] The UN Refugee Agency, www.UNHCR.org/homepage/aboutus/historyofUNHCR (last visited Dec. 10. 2012).
[12] Protocol Relating To The Status of Refugees, art. 1(2), Jan. 31, 1967, 606 U.N.T.S. 267, available at http:www.unhcr.org/3b66c2aa10.pdf.
[13] David A. Martin et al., Forced Migration law And policy 9 (Thomson West, 2007).
[14] See Immigration & Nationality Act (INA) §101 (a) (42).
[15] United Nations Office on Drugs and crime, https://unodc.org/unodc/treaties/CTOC/index.html (last visited Dec. 10, 2012). (Three Protocols supplement the United Nations Convention: “the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the Protocol against the Smuggling of Migrants by Land, Sea and Air; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition.).
[16] United Nations Office on Drugs and crime, https://unodc.org/unodc/treaties/CTOC/index.html (last visited Dec. 10, 2012).
[17] U.S. Citizenship and Immigration Services, https://www.uscis.gov (last visited Dec. 10, 2012)
[18] United Nations Convention Against Transnational Organized Crime And The Protocols Thereto, (2004), available at https://unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf.
[19] available at https://unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf.
[20] United Nations Office on Drugs and crime, https://www.unodc.org/unodc/treaties/CTOC/index.html (last visited Dec. 10, 2012).
[21] Id.
[22] United Nations Convention Against Transnational Organized Crime And The Protocols Thereto, (2004), available at https://unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf.
[23] United Nations Office on Drugs and crime, https://www.unodc.org/unodc/treaties/CTOC/index.html (last visited Dec. 10, 2012). (“The intention behind this definition is to facilitate convergence in national approaches with regard to the establishment of domestic criminal offences that would support efficient international cooperation in investigating and prosecuting trafficking in persons cases.”).
[24] Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (2000).
[25] The United States Department of Justice, https://www.justice.gov/deptOfJustice/Laws,Regs,andMandatesEnactedForVictimsOfCrime (last visited Dec. 10, 2010) (The VTVP Act of 2000 provides protection to immigrant victims of domestic violence, human trafficking, and other crimes preventing deportation in certain situations).
[26] U.S. Citizenship and Immigration Services, https://www.uscis.gov (last visited Dec. 10, 2012) (The T Visa is reserved for persons who are involved in severe forms of trafficking but do not meet the qualifications for asylum. Id. The T Visa only permits temporary legal residence in the United States. Id. The T Visa offers promise but it still falls short as a viable solution for victims of human trafficking. The T Visa only permits temporary legal residence in the United States. Id. After three years of good moral character the victims become candidates for Legal Permanent Status (LPR). Id. The victims are required to cooperate with law enforcement officials and to reveal information against the traffickers.) Id.
[27] Kathryn Bolkovac & Cari Lynn, The Whistleblower: Sex Trafficking, Military Contractors, and One Woman’s Fight for Justice 130 (Palgrave MacMillan, 1st ed. 2011) (A trafficker is, “someone who buys, sells, transports, enslaves, entices, promises, kidnaps, deceives, assaults or coerces a person within or across international, state, county, cantonal, municipal boundaries, or a combination of such, usually organized by more than one person for material gain.”).
[28] The UN Refugee Agency, https://www.unhcr.org (last visited Dec. 10, 2012).
[29] Id.
[30] Id.
[31] Id.
[32] U.S. Citizenship and Immigration Services, https://www.uscis.gov (last visited Dec. 10, 2012)
[33] The UN Refugee Agency, https://www.unhcr.org (last visited Dec. 10, 2012).
[34] Made By Survivors, https://www.madebysurvivors.com/humantrafficking (last visited Dec. 10, 2012).
[35] The UN Refugee Agency, https://www.unhcr.org (last visited Dec. 10, 2012) (Some women involved in sex trafficking enter the United States through both illegal and legal avenues: student visas, tourist visas, or forged documents. Id. Traffickers use fear to induce cooperation from the victims. Id.).
[36] Available at https://www.unhcr.org (last visited Dec. 10, 2012).
[37] Made By Survivors, https://www.madebysurvivors.com/humantrafficking (last visited Dec. 10, 2012) (A woman may volunteer to work with smugglers to get into the United States under the pretense that she will work at a hotel upon arrival in the United States. Id. Upon arrival, the woman is not paid through the use of force, she is not allowed leave. Id.).
[38] Id.
[39] The UN Refugee Agency, https://www.unhcr.org (last visited Dec. 10, 2012).
[40] See Generally ://www.unhcr.org (last visited Dec. 10, 2012).
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Erin C. Heil Sex Slaves and Serfs: The Dynamics of Human Trafficking in a Small Florida Town 74 (First Forum Press, 2012) ( “Additional tactics of control include “denying freedom of movement, isolation, controlling money…intimidation, drug and alcohol addition, threatened exposure of pornographic films, and sexual violence.”).
[47] The UN Refugee Agency, https://www.unhcr.org (last visited Dec. 10, 2012).
[48] The UN Refugee Agency, https://www.unhcr.org (last visited Dec. 10, 2012).
[49] See Plyer v. Doe, 457 U.S. 202, 218 (1982) (identifying a “shadow population” Supreme Court Justice Brennan recognize the vulnerability of undocumented persons because of their invisible status.) See Erin C. Heil Sex Slaves and Serfs: The Dynamics of Human Trafficking in a Small Florida Town 82 (First Forum Press, 2012) (Due to their vulnerable status undocumented persons are subject to criminal abuse because they fear, “that judicial protection will result in deportation.”) See Id. “Unauthorized aliens’ are almost the perfect victims…They cannot turn to authorities because they have problems with their legal status…They’re prime for the picking.”).
[50] Polaris Project, https://www.polarisproject.org/human-trafficking/sex-trafficking-in-the-us (last visited Dec. 10, 2012).
[51] Made by Survivors, https://www.madebysurvivors.com (last visited Dec. 10, 2012).
[52] The UN Refugee Agency, https://www.unhcr.org (last visited Dec. 10, 2012).
[53] Id.
[54] Erin C. Heil Sex Slaves and Serfs: The Dynamics of Human Trafficking in a Small Florida Town 68 (First Forum Press, 2012).
[55] Id. at 69.
[56] Id. at 70.
[57] Id.
[58] Scott Carney, Preface to On the Trail of the World’s Organ Brokers, Bone Thieves, Blood Farmers, and Child Traffickers: The Red Market (William Morrow, ed. 1st ed. 2011).
[59] Elizabeth Pugliese, Organ Trafficking And The TVPA: Why One Word Makes A Difference In International Enforcement Efforts, 182 (2007-2008), available at https://heinonline.org.ezproxy.barry.edu/HOL/Page?handle=hein.journals/aihlp2&div=6&collection=journals&set_as_cursor=7&men_tab=srchresults&terms=organ|trafficking&type=matchall#15.
[60] Id.
[61] Id at 183.
[62] [62] Scott Carney, Preface to On the Trail of the World’s Organ Brokers, Bone Thieves, Blood Farmers, and Child Traffickers: The Red Market (William Morrow, ed. 1st ed. 2011).
[63] Id. at 68. (Rani’s daughter attempted suicide and Rani desperately needed money to pay for hospital care in hopes of saving her daughter. Id. Rani, agreed to sell her kidney. Id. Dhanalakshmi, an organ broker, gave Rani $900 up front and promised her an additional $2,600 when the procedure was over. Dhanalakshmi made it clear to Rani that if she backed out thugs on his payroll would use violence against Rani. Id. Rani was required to give a blood and a urine sample to ensure that she was a match with the recipient. Id. If the samples are a match, the Transplant Authorization Committee is supposed to conduct an ethic review to ensure that the transplants are legal and unpaid for. Id. This is hardly the case as the committee routinely approves illegal transplants through brokers. Id. The members are meticulous about covering their tracks and make the proceedings appear legal. Id. The hearing proceeds along a mutual understanding between the organ sellers and buyers and the committee members so they can say that every measure was taken to ensure the transplant was ethical. Id. Rani, although under an oath to tell the truth, was coached by her broker and instructed to only speak when spoken to and do tender forge documents and leave immediately after the proceedings. Id. Before the meeting, Dhanalakshmi paid $2,000 to ensure the proceedings went smoothly. Id. Rani had her procedure but it went worse than she had planned. Id. Still draining fluid from surgery, the doctor sent her home. Id. When Rani returned with complications, the doctor pretended not to know Rani. Id. The broker disappeared, and Rani was left in pain and unable to return to work indefinitely. Id.).
[64] Made by Survivors, https://www.madebysurvivors.com (last visited Dec. 10, 2012).
[65] [65] U.S. Citizenship and Immigration Services, https://www.uscis.gov (last visited Dec. 10, 2012)
[66] A Global Alliance Against Forced Labour 5 (International Labour Conference 93rd Session 2005) available at http:www.ilo.org/declaration) (The penalty is not confined to penal sanctions, but can take many forms. Id. Menace of penalties examples include, physical violence or restraint, death threats to the victims or their families, psychological abuse, economic penalties of debt, the non-payment of wages, loss of wages, threats of job termination if workers do not comply with working overtime, “employers sometimes also require workers to hand over their identity papers, and may use the threat of confiscation of these documents in order to exact forced labour. Id.).
[67] Id.
[68] Id.
[69] Erin C. Heil Sex Slaves and Serfs: The Dynamics of Human Trafficking in a Small Florida Town 68 (First Forum Press, 2012). (The defendants were charged with beating, threatening, restraining, and locking workers in trucks forcing them to work as agriculture laborers. Id. Local advocates and detectives say that the victims had been locked in a boxcar every night for a number of years. Id. The boxcar had no facilities forcing the victims to sleep in the same corners where they urinate and defecate. Id. The doors and windows remained locked with the victims inside. Id. Temperatures sometimes reached over one hundred degrees. Id.).
[70] A Global Alliance Against Forced Labour 50 (International Labour Conference 93rd Session 2005) available at http:www.ilo.org/declaration
[71] Id. (A private household is often excluded from labour market regulations).
[72] Id. at 5.
[73] Id.
[74] Id.at 7. (The law may be used in general terms or may fail to specify appropriate penalties for using forced labour).
[75] Id.
[76] C. Heil Sex Slaves and Serfs: The Dynamics of Human Trafficking in a Small Florida Town 73 (First Forum Press, 2012).
[77] David A. Martin et al., Forced Migration law And policy 255 (Thomson West, 2007).
[78] Matter of Acosta, 19 I. & N. Dec. 211, 213 (1985).
[79] Id.
[80] Id.
[81] Id. (denying Acosta’s asylum claim concluding that he did not fear “persecution on account of membership in a particular social group. Id.Acosta, an El Salvadorian, claimed that he was a member of a particular social group: that group consisted of young taxi drivers who feared persecution by guerrillas who were seeking to disrupt the transportation services in San Salvador.Id.)
[82] See Due Diligence And Its Application To protet Women From Violence 193(Carin Benninger-Budel, ed., 2008) (“Trafficking is also a highly gendered phenomenon and gender affects all aspects of the trafficking process.”).
[83] Memorandum Regarding Adjudicating Asylum Cases on the Basis of Gender, United States Department of Justice (May 26, 1995) See Phyllis Coven, Policy Memorandum from Immigration and Naturalization Service Office of International Affairs, Immigration and Naturalization Service, Guidelines Regarding Adjudicating Asylum Cases on the Basis of Gender (May 26, 1996), available at https://www.state.gov/s/l/65633.htm (discussing considerations or asylum officers and adjudicating asylum claims from women).
[84] See Phyllis Coven, Policy Memorandum from Immigration and Naturalization Service Office of International Affairs, Immigration and Naturalization Service, Guidelines Regarding Adjudicating Asylum Cases on the Basis of Gender (May 26, 1996), available at https://www.state.gov/s/l/65633.htm
[85] Matter of Kasinga, 21 I.&N. Dec. 302 (BIA 1996) (The applicant, 17, testified that under tribal custom, her aunt and her husband planed to force her to undergo FGM before her also forced marriage was consummated. Id. The applicant fled her home country of Togo because she feared the FGM was imminent. Id.
[86] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide 18 (Anika Rahman and Nahid Toubia, eds., 2000) (Female genital mutilation also known as female circumcision is the collective name given to traditional practices involving the cutting of female genitals) (“The procedure is commonly performed on girls anywhere between the ages of four and twelve years of age as a rite of passage into womanhood.” Id.).
[87] Matter of Kasinga, 21 I.&N. Dec. 302 (BIA 1996).
[88] Id. at 306.
[89] The UN Refugee Agency, https://www.unhcr.org (last visited Dec. 10, 2012).
[90] Deborah E. Anker, Law Of Asylum in the United States 345(Thomsan Reuters, 2011 ed., 2011).
[91] Id.
[92] See Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. 2009); Gatimi v. Holder, 578 F.3d 611, 615 (7th Cir. 2009) But see Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir. 2009); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009) (deferring to Board “social visibility” requirements.)
[93] Deborah E. Anker, Law Of Asylum in the United States 346 (Thomson Reuters, 2011 ed., 2011) See Also Koudriachova v. Gonzales, the Second Circuit, criticized BIA’s “application of criteria that were inconsistent with Acosta.”)
[94] Deborah E. Anker, Law Of Asylum in the United States 346 (Thomson Reuters, 2011 ed., 2011).
[95] Id.
[96] Id.at. 348.
[97] Id.
[98] Id.
[99] United Nations Office on Drugs and crime, https://www.unodc.org/unodc/treaties/CTOC/index.html (last visited Dec. 10, 2012).
[100] Id.
[101] Patrick Radden Keefe, The Snake head 187 (Doubleday, 2009)( Disparities in rulings emerged when similar asylum cases were treated differently based on the location of the case. Id. Chinese asylum-seekers applying for asylum in San Francisco have a 74 percent chance of success. Id. The Chinese asylum-seeks with a similar case who applied for asylum in Newark had only an 18 percent success rate. Id. Immigration cases are randomly assigned to IJs. Id. One IJ in Los Angeles grants 81 percent of asylum claims of all Chinese applicants while her colleague in the same court only grants asylum to 9 percent of the applicants. Id. Having a female IJ increases your chance by 44 percent to have a grant asylum. Id.
[102] Deborah E. Anker, Law Of Asylum in the United States 368 (Thomson Reuters, 2011 ed., 2011).
[103] Id.
[104] Id. at 346.
[105] Martinus Nijhoff Publishers, Due Diligence and its Application to Protect Women From Violence 195 (Carin Benninger-Budel, ed., 2008).
[106] Convention relating to the Status of Refugees, art. 1A(2), July 28, 1951, 189 U.N.T.S. 150, available at https://www2.ohchr.org/English/law/pdf/refugees.pdf.
[107] U.S. Department of State, https://www.state.gov/j/tip/what/index.htm (last visited Dec. 10, 2012).
[108] Id.
[109] Convention relating to the Status of Refugees, art. 1A(2), July 28, 1951, 189 U.N.T.S. 150, available at https://www2.ohchr.org/English/law/pdf/refugees.pdf.
[110] U.S. Department of State, https://www.state.gov/j/tip/what/index.htm (last visited Dec. 10, 2012).
[111] Id.
[112] Id.
