Tensions and trade-offs: protecting trafficking victims in the era of immigration enforcement.

• Author: Chacon, Jennifer M.

INTRODUCTION I. FRAMING ANTITRAFFICKING POLICY WITHIN THE DISCOURSE OF MIGRANT CRIMINALITY A. Trafficking as an Immigration Crime B. Victim Vulnerability and the Myth of Migrant Criminality II. ANTITRAFFICKING ENFORCEMENT AND THE CRIMINALIZATION OF MIGRATION A. Border Control Policy as Antitrafficking Policy B. State and Local Immigration Enforcement Through Antitrafficking Policy? CONCLUSION INTRODUCTION

The restrictions on migration that have been imposed by individual countries--and, in recent years, particularly those imposed by wealthy nations--have contributed significantly to the contemporary problem of international trafficking. (1) Rising restrictions on migration over the past two decades have coincided with unprecedented freedom of movement for goods and capital. The physical movement of people and goods from one nation to another has never been easier. But while free trade agreements and technology have facilitated the flow of goods and money across borders, immigration restrictions have resulted in more rigid restrictions on the cross-border movement of people. Unsurprisingly, unauthorized migration ensues. (2) This includes both economically motivated migrations and migrations undertaken by individuals fleeing oppression and conflict in their home countries. Facing waves of refugees and job seekers with new modes of transportation, the West has moved to raise legal barriers to entry for desperate and vulnerable populations. (3)

These legal barriers are backed up by physical barriers to entry. In the United States, for example, the build up of border enforce merit began in earnest in the mid-1990s and has continued to the present day. (4) And in just a few short years, the federal criminal justice system has been converted into an important legal adjunct to the growing human and technological barriers along the border. (5) Beginning several years ago, the prosecutorial arm of the Department of Justice turned to the systematic prosecution of thousands of misdemeanor illegal entry and felony reentry cases along the southern border. (6) These prosecutions, which are conducted in a mere handful of federal districts, have had a huge impact on the shape of U.S. criminal justice. Immigration prosecutions make up over fifty percent of all federal criminal prosecutions, handily outstripping prosecutions for drug crimes, weapons possession, and white collar crime) As immigration restrictions and border enforcement have increased, the sophistication and violence of the organizations that promote the illicit movement of people across borders--whether in the form of smuggling or trafficking--have also grown. (8) In the U.S. context, the recent rise in border enforcement has not only fueled violence along the southern border but also has made the northward journey much more difficult and expensive. (9) As criminal networks replace morn-and-pop smuggling operations, migrants who rely on the services of these networks are vulnerable to debt bondage, kidnapping, and exploitation. In other words, the humans that comprise the cargo transported by professionalized networks of smugglers are in. creasingly vulnerable to exploitation. (10) For some migrants, what may begin as a contractual agreement to be smuggled converts into a trafficking arrangement characterized by coercion during the course of the journey. (11)

Moreover, U.S. immigration law and policy unintentionally helps traffickers assert control over victims once those victims are in the United States. Unauthorized peoples are more vulnerable to threats because they know that efforts to seek legal recourse can result in protracted immigration detention, criminal prosecution, and, of course, removal. The legal limbo of unauthorized migrants has left many migrant laborers reluctant to report crimes (12) and labor violations." (13)

The Trafficking Victims Protection Act of 2000 (TVPA) (14) and its successive reauthorizations, including the Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003), (15) the Trafficking Victims Protection Reauthorization Act of 2005 (TVPRA 2005), (16) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), (17) were designed to remedy some of the forces generated by U.S. immigration policy that have the effect of promoting trafficking in persons. In particular, these laws not only targeted traffickers for unique punishment (over and above that which would apply to smugglers) but also created a legal space for unauthorized migrant victims to come forward to report and seek protection from trafficking. (18) Some of the relevant legal mechanisms included the T visas that allow victims of trafficking to normalize their immigration status, at least temporarily; resources from the Department of Health and Human Services (HHS) that provide trafficking victims with a means of support and access to necessary services; and a clearly communicated policy of nonprosecution for trafficking victims. (19) The reauthorizations of the TVPA also have added a private right of action for trafficking victims against their traffickers and added special protections for child victims. (20)

The TVPA has made progress in ensuring the protection of trafficking victims and the prosecution of traffickers in the United States. (21) Since the original TVPA was enacted in 2000, over two thousand individuals--both victims of trafficking and qualifying family members--have gained access to T (22) visas. This not only allows them to normalize their legal status in the United States but also provides them with a range of services from HHS that are designed to provide them with a financial safety net and a source of treatment for the physical and psychological injuries that they have suffered as a result of their trafficking. (23) Moreover, the U.S. government has successfully prosecuted over three hundred individuals for their participation in various trafficking schemes. (24)

Unfortunately, the humanitarian aims of the TVPA are often hindered because the goal of protecting exploited migrants frequently runs squarely into the competing goal of enforcing immigration laws. (25) The line between voluntary migrants who participate in smuggling schemes and unwilling trafficking victims--a line that is often murky at best (26)--has been vigilantly policed. (27) The ability of public officials to use the tools of the TVPA to assist trafficking victims is thereby limited by the more powerful prerogatives of immigration enforcement. (28)

This is not to suggest that the TVPA has failed. U.S. antitrafficking efforts, like the international efforts to protect trafficking victims, have been important in protecting a small number of victims, punishing a small number of traffickers, and, perhaps most importantly, raising awareness about the nature and scope of the international trafficking problem. These advances are worthy of recognition. Nevertheless, it is equally important to acknowledge that antitrafficking efforts in the United States and elsewhere have been heavily constrained by the politics and policies of rigid immigration enforcement. In the end, there is no way to eliminate the scourge of trafficking on the international level as long as cross-border movement is subject to the high degree of regulation and criminalization that characterizes the contemporary global order.

More troublingly, some efforts to address the problem of trafficking within the framework of heightened border restrictions have the perhaps unintended effect of reinforcing migrants' vulnerability to exploitation. This Article seeks to expose some of the tensions and trade-offs between immigration policy choices and antitrafficking efforts. Part I of this Article focuses on the ways in which antitrafficking advocacy and policies can actually fuel the discourse that drives restrictionist immigration policies. Discussions regarding trafficking--including media coverage of trafficking, law enforcement antitrafficking--training efforts, and official statements on trafficking--have played into and compounded the myth of migrant criminality. Rather than increasing the focus on the ways in which immigration enforcement policies can foster exploitation, discussions about trafficking have tended to focus on particular bad actors. And the "bad actors" that are scrutinized are neither the middle-class beneficiaries of labor exploitation nor the customers who purchase services in the sex trade but the migrants who service the markets that these other actors create.

While it is certainly desirable to punish traffickers, ignoring the complicity of the vast array of people who generate the markets that traffickers service results in a misleading view of the trafficking problem. In popular discourse concerning the trafficking of migrants, the traffickers--almost always identified as noncitizen men or men of color, but occasionally including noncitizen women--bear sole responsibility for the human misery of trafficking. Framing the trafficking problem in this way fits comfortably within the larger narrative that has been constructed around unauthorized migration--a narrative in which migrant laborers are presented as criminal interlopers, but their criminality is entirely detached from the conduct of the consumers of their labor.

Part II of this Article explores how growing attention to the trafficking issue (in the United States and internationally) has occurred alongside, and has served as an additional justification for, the increasing reliance on the criminal justice system to manage migration. Section II.A explores the extent to which references to trafficking have been used to justify, among other things, greater law enforcement presence along the U.S.-Mexico border, greater numbers of prosecutors in border districts, and the rapid acceleration of immigration-related prosecutions. This has been the case even though very few of the...