Cece v. Holder: an Unprecedented Look at the Asylum Claim for Victims of Attempted Sex Trafficking

• Publication year: 2014

Cece v. Holder: An Unprecedented Look at the Asylum Claim for Victims of Attempted Sex Trafficking

Emily Niklaus Davis

CECE V. HOLDER: AN UNPRECEDENTED LOOK AT THE ASYLUM CLAIM FOR VICTIMS OF ATTEMPTED SEX TRAFFICKING

Introduction

In 2001, Johana Cece, a woman in her mid-twenties, fled her hometown of Korçë, a small city near Albania's Greek border.¹ Cece had been the victim of attempted sex trafficking by a local gang member who was notorious for kidnapping young Albanian women and forcing them into prostitution.² Cece encountered this trafficker several times, but always managed to escape. Ultimately, Cece fraudulently obtained an Italian passport and sought refuge in the United States.³ Within a year of her arrival, Cece affirmatively applied for asylum, knowing a return to Albania meant a return to the fear of becoming a sex trafficking victim.⁴

The primary question in Cece's case, which eventually made its way before the United States Court of Appeals for the Seventh Circuit, was whether she proffered a "particular social group" (PSG) cognizable under 8 U.S.C. § 1101(a)(42)(A), thus making her statutorily eligible for asylum under that provision.⁵ In its opinion, the Seventh Circuit held that Cece did in fact belong to a cognizable PSG, and the court issued an extensive defense of asylum for targets of sex trafficking.⁶ The court's ruling set a precedent with the potential to protect thousands of other asylum-seekers, and Cece is expected to earn refugee status when her case goes back to the Board of Immigration Appeals (BIA).⁷

Prior to Cece's case, United States jurisprudence failed to adequately consider the asylum claims of those in danger of becoming sex trafficking victims because U.S. courts were improperly denying the legitimacy of petitioners' proffered PSGs. The United States Court of Appeals for the Sixth

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Circuit considered the issue previously in 2005 and again in 2009⁸ and held that women in similar circumstances (i.e. women who were the targets of attempted sex trafficking in their home countries) did not meet the statutory criteria essential to asylum, mainly because the petitioners could not meet their burdens of proof to show that they belonged to a PSG as required by the Immigration and Nationality Act (INA).⁹ This Comment argues against the Sixth Circuit's opinions, deeming the court's conclusion incorrect as a result of improperly interpreting PSG.¹⁰

In Cece v. Holder, the Seventh Circuit recognized that the Sixth Circuit took an unduly restrictive approach to interpreting the PSG language contained in the INA.¹¹ The Seventh Circuit correctly split from the precedent of that circuit, holding that Cece's legitimate PSG was defined as: young Albanian women living alone at risk of becoming victims of sex trafficking.¹²

Because the Seventh Circuit recognized victims of attempted sex trafficking as a particular social group, the court opened the door to the possibility of asylum for thousands of deserving women. By contrast, cases arising out of the Sixth Circuit are categorically excluded from asylum eligibility, as the Sixth Circuit has yet to recognize the PSGs offered by victims of attempted sex trafficking as legitimate. The Seventh Circuit's decision in Cece, which does not mean a petitioner will necessarily receive asylum,¹³ nonetheless remains important by embracing an expansive reading of the potential grounds upon which asylum applicants may claim to receive the protection of the U.S. government.

This Comment focuses on this recent circuit split between the Seventh Circuit Court of Appeals and Sixth Circuit Court of Appeals. Cece v. Holder is a monumental decision in United States jurisprudence for two important reasons: first, the Seventh Circuit correctly interpreted the "particular social

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group" language contained in the Immigration and Nationality Act (INA) for the first time in a case involving a victim of attempted sex trafficking; and second, the decision places the United States in compliance with its international obligations under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol),¹⁴ and its domestic obligations under the victims of Trafficking and violence Protection Act of 2000 (Victims Protection Act or TVPA).¹⁵

This Comment contains the following sections: Part I explains the global issue of sex trafficking. Part II explores national and international efforts to combat sex trafficking. Part III provides a background on asylum law in the United States, including the varying interpretations of the particular social group category. Part IV looks at cases arising from the Sixth Circuit that deal with attempted sex trafficking in Albania. Part V examines the Seventh Circuit's opinion in Cece v. Holder and shows why it was correctly decided. Finally, Part VI contains suggestions for the President of the United States, Congress, and the Supreme Court of the United States in dealing with future cases regarding the asylum claims of attempted sex trafficking victims.

I. Sex Trafficking: A Global Issue

Prior to analyzing the asylum claim of victims of attempted trafficking, it is essential to understand the nature of sex trafficking and the persecution victims fear if forced to return to their native countries. Sex trafficking is a contemporary form of slavery that violates a victim's fundamental human rights.¹⁶ Victims of sex trafficking often endure rape, violence, and

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humiliation.¹⁷ Additionally, many trafficking victims are economically powerless, as their trafficker demands that they give up all of their earnings.¹⁸ Furthermore, "[t]o exert control over these women and to keep them captive, traffickers commonly use psychological manipulation, forced drug use, physical and sexual violence, in addition to threats of violence against the trafficked women's family members."¹⁹ For example, one Albanian sex trafficking survivor stated that her trafficker "kept her in submission through physical abuse—beatings, rape, and slicing her with knives."²⁰ Another stated that, "after she was successfully abducted, her kidnappers 'often threatened to kill [her] or harm [her] family if [she] wouldn't comply,'²¹ and that she 'was afraid of them as [she] knew they carried guns and were on drugs.'"²²

Acknowledging the gravity of the issue, former U.N. Secretary General Kofi Annan declared: "trafficking of persons, particularly women and children, for forced and exploitative labor, including sexual exploitation, is one of the most egregious violations of human rights which the United Nations now confronts."²³ Though it is well documented that sex trafficking is a globally pervasive issue, "[i]t is extremely difficult to assess the true scale of sex trafficking due to the clandestine nature of the crime."²⁴ According to the United States Department of Health and Human Services, human trafficking is rapidly growing and is already one of the largest criminal industries in the world, second only to drug trafficking.²⁵ The International Organization for

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Migration places trafficking as the third most profitable illegal industry with a value of $7 billion.²⁶ According to conservative estimates, at least 27 million people are held in slavery or slave-like conditions worldwide²⁷ and some estimates suggest the number of trafficking victims worldwide is an overwhelming 12.3 million people.²⁸ According to the United Nations Office on Drugs and Crime, approximately seventy-nine percent of all human trafficking is for the purpose of sexual exploitation,²⁹ and the International Labor Organization (ILO) estimates that ninety-eight percent of the people trafficked for sexual exploitation are women and girls.³⁰ At least 20.9 million adults and children are bought and sold worldwide into commercial sexual servitude, forced labor and bonded labor.³¹

As this Comment focuses specifically on attempted sex trafficking cases arising from Albania, it is important to understand the current landscape of the problem of sex trafficking there. Once a strict communist state almost entirely isolated from the outside world,³² Albania has long been considered a hub for sex trafficking.³³ The Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, stated, "[t]rafficking in women flourishes in many less developed countries because the vulnerabilities arising from women's lack of access to resources, poverty and gender discrimination are maintained through the collusion of the market, the State, the community and the family unit."³⁴ According to one report, "[t]here are . . . about 30,000 Albanian

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prostitutes walking the streets of Europe."³⁵ The same report noted, "[i]n a country of only about three million people, that is almost one percent of the Albanian population."³⁶ One commentator states, "[a] teenage girl can be bought in Albania for as little as [fifteen] hundred [U.S.] dollars for work in a brothel in Western Europe."³⁷

The 2011 Trafficking in Persons Report for Albania created annually by the United States Department of State notes that "widespread corruption, particularly within the judiciary, continued to hamper overall anti-trafficking law enforcement and victim protection efforts."³⁸ Moreover, the Department of State classified Albania as a "Tier 2 Watch List" country for purposes of the Trafficking in Persons Report for 2013.³⁹ According to the U.S. Department of State website, Tier 2 Watch List countries are those:

[W]here governments do not fully comply with the [Trafficking Victims Protection Act]'s minimum standards, but are making significant efforts to bring themselves into compliance with those standards; and: a) the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year . . . ;

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